Rylands and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 971
•8 July 2025
Rylands and Minister for Immigration and Citizenship (Migration) [2025] ARTA 971 (8 July 2025)
Applicant/s: Michael Leslie Rylands
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3439
Tribunal:Senior Member K Raif
Place:Sydney
Date:8 July 2025
Decision:The Tribunal sets aside the decision not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa and substitutes the decision that the cancellation of that visa is revoked.
Statement made on 07 July 2025 at 2:05pm
Catchwords
MIGRATION – mandatory cancellation of a Class BF Transitional (Permanent) visa under section 501(3A) – where Applicant does not pass the character test – substantial criminal record – use a carriage service to groom minor for sex – whether there is another reason the decision should be revoked – strength, nature and duration of ties to Australia – where Applicant has resided in Australia since infancy – decision under review set aside.
Legislation
Migration Act 1958 (Cth)Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR and Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 110 – Migration Act 1958 – Direction under section 499 – Visa Refusal and Cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11.
Statement of Reasons
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BF Transitional (Permanent) visa previously held by the Applicant.
The Applicant is a national of the UK, born in December 1963. The Applicant travelled to Australia in 1964 when he was under the age of one. He has been convicted of multiple offences set out below. Notably, in November 2023 the Applicant was convicted of an offence ‘use a carriage service to groom person < 16 for sex’ for which he was sentenced to a term of imprisonment. On 14 May 2024 the Applicant’s visa was mandatorily cancelled. On 19 May 2024 the Applicant made representations to revoke the cancellation and on 8 May 2025, a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 4 July 2025. For the following reasons, the Tribunal has concluded that the decision dated 8 May 2025 not to revoke the cancellation of the Applicant’s visa should be set aside and substituted with the decision that the cancellation of the Applicant’s visa is revoked.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
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))
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
In June 2024 Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) came into effect. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act. Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to revoke mandatory cancellation decisions.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian Government. Further, at Paragraph 5.3(3) the Direction provides that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of [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.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with a copy of the Criminal Intelligence Commission Check Results Report issued in December 2024. Information in that report, as well as in the various other documents, indicates that the Applicant had been convicted of the following offences.
24/11/23
Cth – use of carriage service to groom a person < 16 for sex
Imprisonment 2 years 6 months
29/09/21 · Possess prohibited drug
· Possess or use a prohibited weapon without permit
Community corrections order 12 months
Community corrections order 6 months
30/09/16
Drive vehicle, illicit drug present in blood
Fine
04/09/12
Possess prohibited drug
Fine
20/02/07 Possess / use prohibited weapon without permit Fine 30/08/05 · Supply prohibited drug <= small quantity
· Possess prohibited drug
s. 9 bond 12 months
Fine
23/09/96 · Mid PCA
· Unregistered
· Uninsured
Fines 21/12/89 · High PCA
· Drive manner dangerous
· Unregistered
· High PCA
Appeals dismissed 24/04/86 Receiving 140 CSO 09/08/84 BE&S Recognisance $500 05/01/84 Unlicensed driver Fine 18/05/83 Malicious injury Fine 20/01/83 Hinder police Fine
The Tribunal finds that in November 2023 the Applicant was convicted of an offence for which he was sentenced to a term of imprisonment of 2.5 years. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE REVOCATION SHOULD BE REVOKED?
The Applicant acknowledges his criminal convictions but claims that significant hardship would be caused to him and his family if he was required to leave Australia where he has lived his entire life. The Applicant states that his entire family are in Australia and he has no connection to England. The Applicant claims that he is not a risk to any one and will not reoffend.
The Respondent submits that the Applicant does not pass the character test and that there is no other reason why the cancellation should be revoked. The Respondent submits that the offending is objectively very serious as it involved a crime of sexual nature against a child. The Respondent submits that the protection of the community and the expectations of the community weigh heavily against the revocation while the strength, nature and duration of ties weigh ‘moderately’ in favour of revocation and other considerations have neutral weight. The Respondent submits that the delegate’s decision should be affirmed.
The Tribunal’s considerations are set out below with regard to Direction 110.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequently of the non-citizen’s offending and/or whether there is any tread of increasing seriousness.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the Police Facts Sheets, court documents and sentencing remarks, where available.
There are before the Tribunal the sentencing remarks of Judge Musgrave made in November 2023. The circumstances of the offending are described by Her Honour as follows. The Applicant was found guilty by jury that in May – June 2021 he used a carriage service to transmit communications to a fictitious recipient whom he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself. Her Honour noted that the case against the Applicant consists almost entirely of Facebook messages and the jury found that the Applicant believed the person he was communicating with to be under 16 years of age and that he used the service with the intention of making it easier to procure that person to engage in sexual activity. The victim was the police officer and had sent a friend request to the Applicant in May 2021 and later identified himself as a 14 year old. There was an exchange of messages over about a one month period with the Applicant escalating the conversation telling the victim she would look ‘hot nude’, asking for nude or sexualised photographs, stating that he would kiss her and in later messages the Applicant referred to sexual contact.
Her Honour determined that the offending was not of the highest order. Her Honour noted that while the Applicant was approached by a police officer, there was no element of pressure, inducement or coercion and it was the Applicant who had answered the approach and ‘ran with the questions’. Her Honour did not find that the applicant’s social isolation at the time made him vulnerable. Her Honour referred to a report by Ms North who assessed the Applicant as having a below average risk of sexual recidivism. Her Honour noted that there was very limited evidence of the Applicant’s remorse and while in his interactions with the psychologist he expressed feeling embarrassed and remorseful, he also denied any intention of meeting the person. Her Honour stated that the expression of remorse must be given limited weight and found that the Applicant had limited insight into his offending.
The Respondent submits that the November 2023 offence was not isolated, because:
(a)in January 2020 a sexual assault was recorded in circumstances where the Applicant and victim engaged in sexual activity involving digital and penile penetration. The police notes state that due to the unwillingness of the victim to make a formal statement and the different versions provided to police, no further action was to be taken.
(b)in November 2015 “child/young person at risk” actual sexual offence was recorded in relation to the Applicant. The Respondent refers to a report that that the Applicant sent to the 14 year old victim an image of a penis, claiming later it was sent in error. The report refers to other communication between the Applicant and the young victim. It is stated that without any formal statement of the victim, no formal action could be taken.
In oral evidence the Applicant denied these allegations. With respect to the 2015 allegations (sending sexually explicit photos and messages to a minor) the Applicant denied these claims and states that ‘he knows nothing about it’ and had never messaged that person. The Applicant states that he was never charged with these offences. With respect to the 2020 allegations, the Applicant denied any sexual assault and suggested that the alleged victim made up the allegations because of the drugs. The Applicant states that he was never charged or convicted over this conduct.
The Respondent submits that although the Applicant was not convicted of these offences, it is permissible under the Direction to have regard to the other conduct committed by the non-citizen and the Minister also refers to the comments in Vu[1] at [64] and Lucas[2] as enabling the Tribunal to have regard to the conduct that did not lead to a conviction.
[1] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90.
[2] Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653.
The Tribunal considers the circumstances in Vu to have been very different. There, the Applicant had made admissions that police had been called to his home, that some property was broken and that he had made threats against his wife and there was evidence of a breach of an AVO. Against that evidence and admissions, the Court held that it was open to the Tribunal to consider the applicant’s conduct. In the present case, the Applicant denies the conduct to which the Respondent refers and denies all wrong-doing. There is no other objective evidence before the Tribunal (such as the issuance of a protection order) that may lead the Tribunal to infer, on a reasonable basis, that such conduct did occur. The evidence to which the Respondent refers has not been tested and the Tribunal cannot be satisfied as to its reliability. There are certainly no convictions in relation to that alleged conduct. The Applicant denies that conduct and notes that he has not been charged with these offences. There is no other probative evidence to support a claim that the conduct did take place. In the circumstances, the Tribunal does not consider that the information to which the Respondent refers provides a probative basis for a finding that the Applicant did engage in the alleged conduct. The Tribunal has not had regard to that alleged conduct and does not draw any adverse conclusions from it.
The Respondent submits that the 2023 offending was viewed as being very serious by the court, noting that the sentence involved incarceration. The Respondent submits that the Applicant’s history illustrates a recurrent and escalating disregard for the law and his other offending had the potential of causing significant harm to the community.
In oral evidence the Applicant repeated his written evidence and stated that once he received the ‘friend request’ on Facebook, he had to accept it because he knew something was wrong and he wanted to find out who that person was. The Applicant conceded that his messages contained requests for photos and suggestions to meet up and messages of sexual nature. The Applicant states that he said what he believed this person wanted to hear and he was ‘pushed into saying’ those things. The Applicant concedes that what he did was wrong but states that he knew from the start that the profile was fake, that the profile picture depicted a person who was much older and he did not believe he was doing anything wrong because he knew it was all fake and the person was not underage. The Applicant states that he immediately admitted everything to the police because he did not believe he was in the wrong. The Applicant states that when he realised he would not know who the person was, he had deleted the profile and stopped communications. The Applicant stated that he only asked for [explicit] pictures as he knew he would not get these.
In his written statement to the Tribunal of 30 June 2025 and the earlier submission to the Tribunal, the Applicant states that he had never denied the grooming offence and he always said he knew he was being ‘played’ by someone. The Applicant states that he knows it was the wrong thing to do and what he said was ‘disgusting’. The Applicant states that even his legal team who read the messages believed that he knew he was being played. The Applicant states that he should have deleted the friend request. The Applicant states that his legal team were against him taking the stand due to his depression and anxiety but he wished that he did. The Applicant states that he had no intention of doing anything or meeting anyone. The Applicant states that he was found guilty and the court suggested he do a rehabilitation course in jail but when he asked about it, he was told he could not do the course.
With respect to the claim that he had sexually assaulted someone previously, the Applicant denies that and states that he never sold drugs. He states that he does not deny that friends used to come around and have a smoke but he was never charged with sexual assault. As for the 2015 incident, the Applicant states in his written submission that had never sent a picture of penis to anyone and he was never charged. With respect to drugs, the Applicant states that the drugs for his personal use and not for sale. The Applicant states there is no excuse for him driving with drugs. Ten applicant refers to having completed a merit program with a drug and alcohol counsellor and states that he has not touched drugs for a number of years and has no intention of touching drugs. In relation to illegal weapons, the Applicant states that he found one bullet when camping and put it in the glove box of his car for safe keeping and forgot it was there. The Applicant states that he bought a pair of handcuffs to secure his car and he made knuckle dusters out of plastic. The Applicant states that he cannot live in the UK as he has nothing there, he cannot live in cold weather due to his health and lung condition, high blood pressure, depression and anxiety. He is worried about his mental health and he is seeing a psychologist. He has no family or friends in the UK and does not know anything about the UK. He has been living in Australia since he was 10 months old and has never left Australia where he has family support.
The Tribunal has been provided with police facts sheets in relation to the earlier convictions. These were discussed with the Applicant in the course of the hearing:
(a)With respect to the possession of drug offences, the Applicant states that he used to smoke marijuana ‘a lot’ but he never sold drugs.
(b)With respect to the prohibited weapon offending, the Applicant states that he found a bullet while camping and put it in his glove box ‘for safekeeping’ and forgot about it.
(c)The Applicant admits to driving while under the influence of drugs and he admits to ‘having a drug problem’. He states that he realised he was doing ‘stupid things’, had attended a D&A program and had given up drugs. He states he has not used drugs for a number of years.
(d)With respect to the supply of drugs offending, the Applicant states that he had ‘shouted’ drugs to others, rather than sold drugs.
(e)The Applicant concedes that drug offences could have caused harm and states that he has given up drugs.
(f)The Applicant states that he had made a pair of knuckle dusters out of plastic.
The Applicant states that he has done ‘stupid things’ but has learned from his mistakes and has never denied his conduct. He repeatedly told the Tribunal that he would not reoffend.
The Direction provides that offending involving crimes of a sexual nature and crimes of a sexual nature against children, are regarded as serious. The Tribunal notes that the most recent offending was offending of sexual nature against a child, which the Direction specifies as being serious. The Respondent submits, by reference to Nguyen[3] that the fact that the offence did not involve a real victim is irrelevant. The Tribunal accepts that this is so.
[3] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468.
The Royal Commission into Institutional Reponses to Child Sexual Abuse noted the significant impact of abuse:
For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties.[4]
[4] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11.
The Tribunal is mindful that the type of offending committed by the Applicant may have had detrimental and long-term effect on the victim (had the victim been a genuine minor). The Tribunal finds that the most recent offending, being an offence of a sexual nature against a child, which was capable of causing significant psychological harm to a victim, was very serious and this is also reflected in the fact that the Applicant has been given a custodial sentence.
The Tribunal is of the view that the earlier offending has been less serious and most of the earlier offending (with the exception of the 2021 offending) was dealt with by way of fines.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in 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 of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be 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;
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The Respondent submits that any future offending by the Applicant of similar nature would have the potential to cause physical and / or psychological damage to vulnerable members of the community. The Respondent submits that the Applicant’s conduct has not been tested in the community and the Applicant has not completed any rehabilitation recommended by the psychologist. The Respondent notes that the protective factors had been in existence previously did not prevent offending while the risk factors, including social isolation and impulsivity, continue to be present.
For the reasons set out above, the Tribunal has found the applicant’s most recent offending to be very serious. The Tribunal is of the view that, should the Applicant engage in further offending of similar kind, such conduct has the potential of causing significant psychological harm to vulnerable members of the community such as children. The Tribunal has found earlier offending to be of far lesser seriousness but the Tribunal considers that there may be serious harm caused to others, in particular other road users, if the Applicant were to engage in driving under influence.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct by considering the risk of reoffending and evidence of rehabilitation.
In his written submission to the Tribunal the Applicant states that he is not a risk to the public or children because he takes full responsibility for everything he has done and he is ‘sorry’. The Applicant states that he knows he has done the wrong thing and he has no interest in children and has no past history of being involved with children. The Applicant states that he attempted to be involved in a program while in prison but he was not able to and he was also seeing a psychologist during his court case and at VIDC. The Applicant states that he will not reoffend again.
There is evidence that the Applicant had completed a MERIT program in 2005 following the drug offending and the Applicant told the Tribunal that he had given up drugs and alcohol long time ago. The Applicant concedes that what he had done was wrong and that he should have ‘deleted’ the profile but he was curious and did not think he was doing anything wrong at the time. The Applicant states that he will not reoffend as he has been away from his family and he wants to go back to his family and support his mother and “get his life back”. He refers to his mental health and states that he will continue sessions with the psychologist if he is in the community.
The Respondent notes the remarks of Musgrave J in relation to the assessment of risk of reoffending, noting that evidence of remorse was very limited and noting the applicant’s denial of his conduct. The Respondent notes that there is no evidence that the Applicant has undertaken any meaningful, formal or targeted rehabilitation, there is no evidence of rehabilitation efforts, progress or future plans, no evidence regarding future plans or protective factors and the Respondent submits that the applicant’s unmet treatment needs increase the likelihood of reoffending.
The Respondent submits that the information in the police summons concerning previous sexual conduct by the Applicant (which did not result in convictions) indicates that the 2023 offence was not an isolated incident and the Respondent submits there is a real risk the Applicant will engage in similar offending. (As noted above, the Tribunal has formed the view that it is unsafe to rely on any untested evidence of past conduct in the absence of the applicant’s admission of such conduct, any objective evidence of such conduct occurring or any finding of guilt).
The Respondent notes that the protective factors of to which the Applicant refers, such as family and friends’ support, had been present when the past offending occurred. The Respondent submits that the Applicant lacks remorse and insight and continues to minimise his guilty by blaming his conduct on the police. The Respondent submits the Applicant’s remorse is ‘superficial’ and only in relation to the impact on himself and his family. The Respondent refers to the DCJ reports indicating that in November 2021 the Applicant denied culpability or responsibility.
The Tribunal has been provided with the Department of Corrective Services notes including classification assessments, a copy of the case management file, bail reports, court and police records and other materials. There are before the Tribunal police reports and fact sheets.
The Applicant provided to the delegate and the Tribunal several character references. The Tribunal accepts that those who provided statements believe the Applicant to be of good character. Some also refer to the hardship the Applicant would experience if he returns to the UK.
In assessing the risk of reoffending, the Tribunal places significant weight on the Applicant’s apparent lack of meaningful insight into his conduct. While he concedes that what he did was ‘wrong’, the Applicant repeatedly claims that he was ‘pushed’ into the communication, that he did engage in the conversation because he wanted to find out who that person was (and it is unclear how he would have done that by engaging in sexually explicit messaging) and that he did not think he was doing anything wrong. The Applicant appears to genuinely believe that because there was ‘something wrong’ with the person he was communicating with, his communication was appropriate and acceptable. The Tribunal has formed the view that there remains the risk of the Applicant reoffending, given his persistent denials that he has done anything wrong and his claims that he was merely curious.
As for the other offending, the Applicant claims that he has given up drugs and alcohol. There is little evidence of the Applicant engaging in formal rehabilitation (he told the Tribunal he had completed a few sessions of the MERIT program and his evidence is that he was not eligible for participating in programs while in jail) and while the Applicant refers to his ongoing sessions with the psychologist, he refers to these being due to his mental health rather than rehabilitation. The Applicant told the Tribunal that if released, he would arrange appropriate courses in consultation with Probation and Parole but there is no evidence before the Tribunal about any arrangements being made for future session.
The Tribunal accepts the Respondent’s submission that some of the risk factors, such as social isolation, will continue to be present. However, the Tribunal is also of the view that the possibility of the visa cancellation and of removal from Australia, and the possibility of being removed from his family, may act as a strong incentive for the Applicant not to reoffend.
The Tribunal has formed the view that there remains a real risk of reoffending, but it is not a high risk. That seems to be consistent with the assessment by Ms North. The Tribunal has formed the view that the protection of the Australian community weighs against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
There is no evidence to indicate that the Applicant had committed family violence. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or 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 has been living in Australia virtually his entire life, since he was a very young child under the age of one. He did not begin offending soon after arriving in Australia. The Applicant provided to the Tribunal evidence of his employment while in prison in 2024 and in his written statement to the Tribunal the Applicant refers to his past employment. The Tribunal is prepared to accept that the Applicant had contributed positively to the Australian community through his past employment and other activities.
The Applicant’s immediate family, including mother and four siblings live in Australia. (The Respondent notes that the sentencing judge also referred to the presence of the Applicant’s daughter in Australia but the Applicant told the Tribunal that he has had no contact with his daughter for many years and is estranged from her.) The Applicant’s multiple nieces and nephews live in Australia.
In his statement to the Tribunal, the Applicant states that his mother suffers from dementia and other medical conditions. The Applicant states that he thought he was an Australian citizen and calls Australia home as his family and friends are here. The Applicant states that he has support from family and friends. The Applicant submits that his family will suffer if he was required to leave Australia. There are before the Tribunal statements from family members addressing the hardship that had been caused by the cancellation of the Applicant’s visa. In particular, the Applicant claims to have been the main caregiver for his mother and the caring responsibilities have now passed to other siblings.
In oral evidence the Applicant told the Tribunal that he used to look after his mother, who suffers from dementia. While he has been away, his sister has been living near the mother’s house but acting as a carer has taken a toll on his sister’s marriage. The Applicant states that his mother does not wish to enter a nursing home. The Tribunal has been provided with a statement from the Applicant’s sister supporting these claims.
The Tribunal accepts that the Applicant’s family reside in Australia and are Australian citizens or permanent residents. The Tribunal accepts that prior to his incarceration, the Applicant acted as a primary caregiver to his mother and that he wants to resume that role. The Tribunal accepts that hardship had been caused to the Applicant’s family due to having to assume these caring responsibilities in the Applicant’s absence.
The Tribunal accepts that the Applicant’s family members would be adversely impacted if the Applicant was to be removed from Australia. In particular, the Tribunal accepts that the Applicant wishes to retain the caring responsibilities towards his elderly mother.
The Respondent submits that the mother’s GP recommends that the family seek an aged care assessment and access formal services and that may reduce the impact on the Applicant’s sister. In the Tribunal’s view, that suggestion is speculative in the absence of any information as to the nature and extent of services that may be available to the mother and in the absence of any evidence as to the availability of such services in the area where the family resides. The Applicant submits that his mother prefers to be looked after by the family members. It is not for this Tribunal to impose a particular model of care. The Tribunal accepts that the applicant’s removal from Australia would have significant adverse effect on the applicant’s mother and siblings.
The Tribunal accepts that in addition to strong family ties, the Applicant also has social and employment ties. The Tribunal also accepts that the Applicant has social ties and there are a number of character references from the applicant’s friends.
The Tribunal finds that this consideration weighs very heavily in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
There is no evidence before the Tribunal to indicate that there are any minor children in Australia who would be affected by the present decision. This consideration is neutral.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[5] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[6]
[5] [2019] FCAFC 185 (‘FYBR’).
[6] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail[7] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
… para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
[7] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52].
The Applicant has committed a serious offence, being a sexual offence involving a child. He has a history of other offending. The Tribunal considers that the community expectations would be against revocation. The Tribunal gives this consideration considerable weight.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not subject of a protection finding. The Applicant does not claim, and there is no evidence before the Tribunal to indicate that Australia’s non-refoulement obligations are engaged in this case.
If the Applicant’s visa remains cancelled, the Applicant would be removed from Australia and may spend time in detention until the removal can be effected. The cancellation of the visa means that the Applicant may not be granted another Australian visa in the future.
The Tribunal is of the view that this consideration weighs in favour of the revocation. The Respondent submits that these are the intended consequences of the offending and the Tribunal accepts that this is so and gives this consideration limited weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 61 years of age. He had lived in Australia since the age of about 1 and the Tribunal accepts that the Applicant has spent virtually his entire life in this country. Nevertheless, it is not apparent that the Applicant would experience substantial language or cultural barriers if he was to live in the UK.
The Tribunal has been provided with the applicant’s IHMS, hospital and other medical records. It is recorded that the Applicant has a number of ailments, including anxiety and depression and lung disease and the Applicant told the Tribunal that his mental health would deteriorate if he was to live in the UK. The Applicant states that due to his lung disease, it would be difficult for him to live in a cold climate like the UK and being removed would also exacerbate his mental condition; but the Respondent notes that these claims are unsubstantiated, there is no evidence that the Applicant will not be able to access health treatment and he can continue to communicate with his family by electronic means. The Tribunal accepts that this is so, however, the Tribunal also considers that the nature of the Applicant’s relationship with his family members if he were to maintain only electronic contact would be different to his relationship now. Significantly, the Applicant would be denied the opportunity to provide physical and practical support to his mother.
The Tribunal accepts the evidence regarding the Applicant’s health, however, the Tribunal also accepts the Respondent’s submission that there is no evidence that the Applicant will not have access to appropriate and adequate medical treatment in the UK.
The Applicant told the Tribunal that he has no family in the UK and would have no support. The Tribunal accepts that the Applicant may have limited (if any) social and economic support in the UK. The Tribunal accepts that the Applicant would be separated from his immediate family and his familiar surroundings in Australia. The Tribunal accepts that there would be a significant impediment to the Applicant if he is removed from Australia. This consideration weighs heavily in favour of revocation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal to indicate that a decision not to revoke the cancellation of the Applicant’s visa would significantly compromise the delivery of a major project or of an important service in Australia. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has determined that the Applicant had engaged in serious conduct which involved an offence of a sexual nature against a minor. Some of the earlier conduct, such as the drug offending and the driving offences, had the potential of causing serious harm to the community. The Tribunal has formed the view that the Applicant lacks meaningful insight into his conduct and there remains a risk (albeit not a high risk) of the Applicant reoffending. The Tribunal finds that the protection of the community weighs heavily against the revocation. The Tribunal acknowledges that the Direction provides that this consideration should be given more weight than other primary considerations.
The Tribunal has also determined that the expectation of the community weighs against the revocation. The Tribunal gives these considerations significant weight.
The Tribunal finds that the Applicant has strong family, social and other ties in this country. He has lived in Australia since being a very young child and has spent his entire life here. His family, including mother and siblings, are in Australia and the Tribunal accepts that he has no family and no social supports in the UK.
The Tribunal accepts that there may be significantly adverse impact on the Applicant’s family members if the decision is made not to revoke the cancellation. In particular, the Tribunal accepts that the Applicant had acted as a primary caregiver to his elderly mother who suffers from dementia and will resume that role, if released into the community. The Tribunal accepts that there had been some adverse impact on other family members who had to take on the carer role while the applicant has been in detention. This factor weighs heavily in favour of revocation.
The Tribunal has formed the view that there would be a significant impediment to the Applicant if he is removed from the UK. This is because of the Applicant’s health conditions and medical needs, lack of any meaningful social supports in the UK, and uncertain opportunities for employment and housing. This factor weighs heavily in favour of revocation.
The Tribunal has determined that the legal consequences of the decision weigh in favour of the revocation, but the Tribunal gives this consideration limited weight, noting that these are the intended consequences of the failure to pass the character test.
Other considerations, such as the family violence, best interests of children and effect on business interests, are neutral.
In the particular circumstances of this case, the Tribunal has decided to give greatest weight to the extent of impediment if removed and the strength, nature and duration of the Applicant’s ties to this country. In the particular circumstances of this case, the Tribunal has decided that these considerations outweigh other considerations.
The Tribunal has decided that the decision under review should be set aside and substituted with the decision that the cancellation of the applicant’s Class BF visa is revoked.
DECISION
The Tribunal sets aside the decision not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa and substitutes the decision that the cancellation of that visa is revoked.
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