Scott and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 997
•4 July 2025
Scott and Minister for Immigration and Citizenship (Migration) [2025] ARTA 997 (4 July 2025)
Applicant/s: Martin Gilroy Elliot Scott
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3135
Tribunal:General Member J Papalia
Place:Perth
Date of decision: 4 July 2025
Date of written reasons: 9 July 2025
Decision:The Tribunal affirms the reviewable decision.
Statement made on 09 July 2025 at 4:13pm
........................................................................
General Member
CATCHWORDS
MIGRATION – visa cancellation – Five year resident return visa – Mandatory cancellation under s 501(3A) of Migration Act 1958 – Where Applicant does not pass the character test –– Using electronic communication to procure child under 16 to engage in sexual activity - whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – Meaning of ‘The safety of the Australian Community’- Whether cogent reasons to depart from government policy - strength, nature and duration of ties to Australia - best interests of minor children in Australia affected by the decision - expectations of the Australian community – legal consequences of decision – extent of impediments if removed - Applicant is a 63-year-old citizen of the United Kingdom of Great Britain and Northern Ireland – Reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Erujin Pty Ltd v West Australian Planning Commission [2010] WASC 326
Hinton v Western Australia (2023) 306 A Crim R 23
Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Re CLKQ and Minister for Immigration and Multicultural Affairs [2025] ARTA 231
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Kumsuz and Commissioner of Police (unreported, Administrative Decisions Tribunal of New South Wales, 23 March 1999)
Re Mizen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] AATA 3113
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth)
Statement of Reasons
The decision in this matter was made on 4 July 2025 and provided to the parties with a note that written reasons would be provided within a reasonable time.[1] These are those written reasons.
THE APPLICATION
[1] See Khalil v Minister for Home Affairs (2019) 271 FCR 326, [41], [48].
The Applicant is a 63-year-old citizen of the United Kingdom of Great Britain and Northen Ireland (UK), from Scotland. He seeks review of a decision not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return (permanent) visa (resident visa).[2]
[2] Exhibit 1, p 21.
The Applicant emigrated in June 1983,[3] with his wife. They have two Australian-born sons (D and B), and one grandchild (M).[4] In September 1985, he obtained employment as a prison officer with the then Prisons Department (now Department of Justice (WA)).[5] He worked in that capacity until June 2023,[6] and is the recipient of the National Medal, recognising long and diligent service where life or safety is put at some risk to protect or assist the community in enforcement of the law.[7]
[3] Exhibit 1, p 171.
[4] See Exhibit 1, p 79 [7] and [9].
[5] See Exhibit 1, p 75, q 11.
[6] Ibid.
[7] See Exhibit 1, p 161.
The Applicant resigned from his employment following his arrest and subsequent prosecution for four counts of using an electronic communication with intent to procure a person he believed to be under 16 years of age to engage in sexual activity, in late January 2023 or mid-February 2023.[8] He was granted bail until he was sentenced to 22 months’ imprisonment by the District Court of Western Australia on 2 November 2023.[9]
[8] See Exhibit 1, pp 240-241, 245 [16]-[22].
[9] See Exhibit 1, pp 279-281.
On 7 December 2023, the Applicant’s resident visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Migration Act) because of that sentence and his then incarceration in Western Australia.[10]
[10] See Exhibit 1, pp 172-178.
On 18 December 2023, the Applicant made representations seeking revocation of the cancellation,[11] and, on 11 April 2025, a delegate of the Respondent (Minister) refused to revoke the cancellation under s 501CA(4) of the Migration Act (Non-Revocation Decision).[12]
[11] See Exhibit 1, p 22 [3].
[12] Exhibit 1, p 21.
The Applicant sought review of the Non-Revocation Decision in this Tribunal. After hearing from the parties, the Tribunal has determined that the correct decision is to affirm the reviewable decision. In other words, and for the following reasons, the Tribunal is not satisfied that there is ‘another reason’ why the visa cancellation should be revoked.
THE HEARING AND THE EVIDENCE
The Applicant appeared in-person before the Tribunal on 23 June 2025. He was represented by Ms Jasmin Angel of Estrin Saul Lawyers. The Minister was represented by Mr Ashley Burgess of the Australian Government Solicitor’s Office - Perth.
The following documents were marked as exhibits:
(a)Joint Hearing Bundle, including the parties’ respective Statements of Facts, Issues and Contentions (375 pages) (Exhibit 1); and
(b)Amended Certificate of Final Outcome dated 26 June 2025 (Exhibit 2).
At the hearing, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[13] He was also provided an opportunity to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under the Direction.
[13] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].
The Tribunal took oral evidence from the Applicant, his wife, sister, and oldest son.
BACKGROUND
The Applicant is a fitter and turner by trade.[14] He and his wife met in Glasgow, and they married there in March 1983.[15] The pair emigrated to Australia shortly thereafter because they had extended family already resident here.[16]
[14] Evidence on 23 June 2025.
[15] Exhibit 1, p 138.
[16] See Exhibit 1, p 120.
The Applicant’s first son, D (41), was born in Perth in 1984.[17]
[17] See Exhibit 1, p 79 [7].
The Applicant commenced his State employment in September 1985.[18]
[18] See Exhibit 1, p 79 [8].
The Applicant’s second son, B (38), was born in Kalgoorlie in 1987.[19]
[19] See Exhibit 1, p 79 [9].
The family moved to Albany in or around 1989.[20] During this period, the Applicant’s sister also emigrated to Australia.[21]
[20] See Exhibit 1, p 80 [10].
[21] Ibid.
In or around 2004/2005, the Applicant’s wife was diagnosed with a rare neurological condition called transverse myelitis.[22] This condition causes long-standing deficits, and the wife otherwise suffers from bilateral trigeminal neuralgia (pain on both sides of the face), hypertension, cholesterol, osteoarthritis and diabetes.[23] The Applicant has generally been his wife’s carer since.[24] He was previously in receipt of some form of carer benefits prior to his incarceration.[25] However, the wife has more recently been in receipt of a disability support pension (DSP), including at the single rate.[26]
[22] See Exhibit 1, pp 80 [11], 135-136.
[23] See Exhibit 1, pp 128, 135.
[24] See Exhibit 1, p 132 [4].
[25] See Exhibit 1, p 80 [11].
[26] Evidence on 23 June 2025; Exhibit 1, p 137.
The Applicant and his wife have been separated for some time, but they continued to live together (until the Applicant’s incarceration and immigration detention) primarily because of the wife’s need for ongoing support and care.[27]
[27] See Exhibit 1, p 270.
It was an agreed fact that the Applicant’s wife booked a flight to the UK on the morning of 24 January 2023, and that she departed from Perth (with the Applicant taking her to the airport by road) on 26 January 2023. She returned to Australia on 22 February 2023.
The Applicant was charged with the criminal offences on or about 21 February 2023. He gave an indicated plea of guilty in April 2023, formally pleaded guilty on 4 May 2023 and was ultimately committed for sentence in the District Court.[28] He was on bail in Albany until his sentencing in Perth on 2 November 2023.[29] During the Tribunal hearing, it became apparent that there was an issue with the District Court’s records from the sentencing (discussed further below in the context of the character test).
[28] See Exhibit 1, p 245.
[29] See Exhibit 1, pp 249-282.
The Applicant was released on a parole order on 30 September 2024.[30] He has been detained under s 189(1) of the Migration Act at Yongah Hill Immigration Detention Centre since.
[30] See Exhibit 1, pp 110-111.
The Applicant’s oldest son has a daughter, M (8).[31] She resides in Perth, with her mother (who is estranged from D, since M’s infancy).[32] D moved from Perth to Albany at some stage between 2022 and 2024, ostensibly to care for his mother from at least April 2024.[33] During this period, he had another partner and child. However, for reasons that do not need to be stated, this relationship ended, and it was agreed by the parties that the second child will not be affected by this decision.
[31] See Exhibit 1, p 130.
[32] Evidence on 23 June 2025.
[33] See Exhibit 1, p 358 [5]; cf Exhibit 1, pp 60, 80 [14], 98 [3].
The Applicant’s youngest son resides in Albany. He is an epileptic and suffered a bad seizure in October 2024 requiring medevac to, and hospitalisation at, Fiona Stanley Hospital (FSH).[34] The Tribunal heard evidence about how he has returned to living and working in Albany on a full-time basis but is still suffering side-effects and is trialling new medications.
[34] See Exhibit 1, pp 101-104, 151-155.
The oldest son more recently suffered a heart attack on or about 20 March 2025.[35] He was discharged following surgery at FSH on 24 March 2025.[36] He testified to the Tribunal about how this experience was made worse by his father’s detention in circumstances where the Applicant could not come to see him at FSH, drive him home (instead, he had to take public transport with the very limited clothing he had brought with him on the Royal Flying Doctor Service flight from Albany) and because this meant that there was no one to look out for his mother/brother in Albany when he was in FSH.
[35] See Exhibit 1, pp 144-148.
[36] Ibid.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of the Applicant’s resident visa is the ‘correct or preferable decision’ on the material before the Tribunal.[37]
[37] Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a).
In oral opening submissions, the Applicant’s counsel submitted that the proper test was the ‘correct and/or preferable’ decision on the material before the Tribunal. When asked to explain the basis for that submission, she submitted that the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) may have had the term ‘correct and preferable’ and that the Administrative Review Tribunal Act 2024 (Cth) (ART Act) had the term ‘correct or preferable’.
In its first deportation case, the inaugural President of the AAT (Brennan J) posed four questions:
There are four related but distinct issues which may arise in any application to review a decision to order deportation under s 13(a) of the Migration Act 1958. First, is it a case where the Minister may order deportation under s 13(a)? Second, if the Minister has a policy which governs or affects his exercise of the power, is that policy consistent with the Act? Third, if the Minister has such a policy is any cause shown why the Tribunal ought not to apply that policy either generally or in the particular case? And finally, on the facts of the case and having regard to any policy considerations which ought to be applied, is the Minister’s decision the right or preferable decision?[38]
(emphasis added)
[38] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, 161-162 (emphasis added).
The Full Court subsequently held in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68, that:
The question for the determination of the Tribunal is whether [the reviewable decision] was the correct or preferable one on the material before the Tribunal.
(emphasis added)
In dealing with the remitted decision arising from that decision, Justice Brennan observed in Drake (No 2):
The Tribunal’s function, when it undertakes a review of a Minister’s decision to deport, is to form its own judgment of what is the correct or preferable decision in the circumstances of the particular case as revealed in the material before the Tribunal (Drake’s case, supra, at 589). It is discretionary judgment …and ministerial policy may play a part in it.[39]
[39] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 636.
The High Court confirmed the test stated in Drake’s case in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [33]-[38], [96]-[98], [116]-[117], [131]-[146]. Specifically, in Shi, Justice Keifel (as her Honour then was) observed:
[140] The term "merits review" does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the "correct or preferable decision". "Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.
Separate from those judicial pronouncements, in 2005, s 29(1B) was inserted into the AAT Act and provided the Tribunal with a specific power to request that an applicant amend their originating application for review to identify why they believe the reviewable decision ‘is not the correct or preferable decision’.[40] Similar wording is now found in s 56(1)(a) of the ART Act, where the original decision-maker (and any person representing them) are commanded to ‘use their best endeavours to: (a) assist the Tribunal to make the correct or preferable decision in relation to the proceeding’.
[40] This section was repealed with the passage of the Tribunals Amalgamation Act 2015 (Cth).
The term ‘correct and preferable decision’ does, however, appear in other enactments, particularly those establishing some of the state-based administrative tribunals.[41]
[41] See State Administrative Tribunal Act 2004 (WA) s 27(2); Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
In Erujin Pty Ltd v West Australian Planning Commission [2010] WASC 326, Justice Allanson observed in respect of the relevant provision in the State Administrative Tribunal Act 2004 (WA) that:
[29] Section 27(2) [of the SAT Act] reflects the language used by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419, describing the nature of the review jurisdiction exercised by the Commonwealth Administrative Appeals Tribunal. The verbal formula 'correct and preferable' recognises that in some cases more than one decision may correctly be made, and the role of the tribunal in such a case is to make the decision that is preferable.
In the Tribunal’s humble opinion, nothing turns on the formulation of the test. As Judicial Member Smith remarked in Re Kumsuz and Commissioner of Police (unreported, Administrative Decisions Tribunal of New South Wales, 23 March 1999):
The change of language from “correct or preferable” to “correct and preferable” is mysterious, but in my opinion nothing turns on it. Both formulations confine the review tribunal to the legal limits on the primary decision-maker's power, while freeing it from the decision-maker's reasoning and investigations. If the power in question confers a discretion to identify and choose between relevant considerations, then the tribunal must reach a decision which is correct in its conclusions of fact and law and is also preferable on its merits. If the power allows no discretion, then the correct decision must necessarily be the preferable decision.[42]
[42] As quoted by the judicial member in the subsequent reported decision of Woodward v Minister for Fisheries [2000] NSWADT 143, [47].
Returning to the issues arising in this review, s 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, the majority of the High Court described this section of the Migration Act as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[43] The majority held that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[44]
[43] M1/2021, [22].
[44] M1/2021, [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594, [6].
In reviewing decisions of this kind, the Tribunal must comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[45] given by the Minister under s 499(1) of the Migration Act.[46] This is a legislative constraint on the Tribunal’s process of reasoning.[47] However, as the Full Court identified in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, the principles stated in Drake (No 2) by Brennan J, and the cases since,[48] regarding the application of governmental policy, and the Tribunal’s ability to depart from it, where appropriate, remain applicable (at [23] and [81]).[49]
[45] Direction, cl 1.
[46] Direction, cl 5.1(4); Migration Act s 499(2A).
[47] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, [33].
[48] See e.g. Minister for Home Affairs v G (2019) 266 FCR 569.
[49] See also Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82, [27].
Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must ‘take into account’ the factors identified in cls 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[50] In this review, those factors are:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the strength, nature and duration of ties to Australia;
(c)the best interests of minor children in Australia;
(d)the expectations of the Australian community;
(e)the legal consequences of the decision; and
(f)the extent of impediments if removed.
CONSIDERATION
[50] Direction, cl 6.
Representations in accordance with invitation
The Applicant was hand-delivered notification of the mandatory cancellation on 7 December 2023, which is a method prescribed by reg 2.55(3)(a) of the Migration Regulations 1994 (Cth) (Regulations). He was taken to have received the notice when it was handed to him.[51]
[51] Regulations, reg 2.55(5).
Regulation 2.52(2)(b) prescribes that any representations seeking revocation of the cancellation must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation.
As discussed at [5] above, the Applicant made representations seeking revocation of the Cancellation Decision within that timeframe. They were in English and complied with the balance of the requirements set out in reg 2.52(4) of the Regulations.
Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501 of the Migration Act.[52] Failure to pass the character test arises as a matter of law.[53]
[52] Direction, cl 5.1(3) and Annexure A; See also Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40] (not disturbed on appeal, [2025] FCAFC 78).
[53] See Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63].
Section 501(6) of the Migration Act sets out that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
The term ‘substantial criminal record’, includes when ‘the person has been sentenced to a term of imprisonment of 12 months or more’[54] and when they have been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.[55] Where a person has been ‘sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms’, for the purposes of determining whether they pass the character test.[56]
[54] Migration Act, s 501(7)(c).
[55] Migration Act, s 501(7)(d).
[56] Migration Act, s 501(7A).
The parties agreed that the Applicant does not pass the character test due to the sentences of imprisonment imposed by the District Court of Western Australia on 2 November 2023.[57]
[57] ASFIC, [23]; RSFIC, [17]-[18].
That concession was appropriate. However, as noted at [19] above, the District Court’s records for the Applicant’s conviction and sentence, on that date and at the time of the Tribunal hearing, were respectfully problematic.
(a)In accordance with s 22 of the Criminal Procedure Act 2004 (WA) (CP Act), the Applicant’s prosecution for four indictable offences was commenced in the Magistrates Court of Western Australia by prosecution notice lodged in the Albany Registry of that Court on or about 21 February 2025.[58] It would seem that the Applicant was initially charged with four offences under s 204B(2)(b)(ii) of the Criminal Code (WA), being ‘an adult who uses electronic communication with intent to expose a person the offender believes is under the age of 16 years to any indecent matter, either in Western Australia or elsewhere’ (Charges AL 449-452/2023).
[58] See Exhibit 1, pp 242-245, 284-288.
(b)The Applicant entered guilty pleas to those indictable charges in the Magistrates Court on 4 May 2023 and they were committed to the District Court for sentencing under s 99 of the CP Act.
(c)On 4 August 2023, an authorised officer lodged an indictment in the District Court alleging the commission of four offences under s 204B(2)(b)(i) of the Criminal Code, being ‘an adult who uses electronic communication with intent to procure a person the offender believes is under the age of 16 years to engage in sexual activity, either in Western Australia or elsewhere’ (IND 792 of 2023).[59] An Amended Statement of Material Facts for the charges listed on the indictment was lodged on 7 August 2023.[60]
[59] See Exhibit 1, pp 240-241.
[60] See Exhibit 1, pp 242-245.
(d)On 2 November 2023, the Applicant was arraigned on the indictment in accordance with s 99(2) of the CP Act.[61] He pleaded guilty to each charge on the indictment, and this was accepted by the District Court.[62] The sentencing judge then proceeded to hold a sentencing hearing, where the Applicant was present and represented by Senior Counsel.[63] Following that hearing, the sentencing judge gave ex tempore reasons for sentencing the Applicant to terms of imprisonment as follows:
[61] See Exhibit 1, pp 251-252.
[62] Ibid; see also CP Act, s 3.
[63] See Exhibit 1, pp 252-267.
Count 1:
On or about 25 January 2023, at Spencer Park, [Applicant], being an adult, used electronic communication with intent to procure a person he believed to be under the age of 16 years, to engage in sexual activity.
(in substitution for Charge AL 449/2023)
17 months’ imprisonment (CC)
Count 2:
On 26 January 2023, at Spencer Park, [Applicant], being an adult, used electronic communication with intent to procure a person he believed to be under the age of 16 years, to engage in sexual activity.
(in substitution for Charge AL 450/2023)
10 months’ imprisonment (CC)
Count 3:
On 30 January 2023, at Spencer Park, [Applicant], being an adult, used electronic communication with intent to procure a person he believed to be under the age of 16 years, to engage in sexual activity.
(in substitution for Charge AL 451/2023)
14 months’ imprisonment (CC)
Count 4:
On a date unknown between 31 January 2023 and 21 February 2023, at Spencer Park, [Applicant], being an adult, used electronic communication with intent to procure a person he believed to be under the age of 16 years, to engage in sexual activity.
(in substitution for Charge AL 452/2023)
5 months’ imprisonment (CM, on sentence imposed for Count 1)
Total Effective Sentence:
22 months’ imprisonment
Parole eligibility order
Applicant declared to be a ‘reportable offender’ under s 6(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act)
Order made for the destruction of the chat logs, images and videos sent by the offender
(e)On 2 November 2023, the Clerk of Arraigns issued a Certificate of Final Outcome of Charge and an associated Warrant of Commitment; both were signed by the sentencing judge as required by rr 49(1)-(4) of the Criminal Procedure Rules 2005 (WA) (Criminal Procedure Rules).[64] However, the Certificate and the Warrant each referred to the Magistrates Court charges, being the charges contrary to s 204B(2)(b)(ii) of the Criminal Code, and not those listed on the indictment.
(f)In accordance with r 49(5) of the Criminal Procedure Rules, the Certificate of Final Outcome was subsequently provided to the Commissioner of Police, Department of Justice and the Chairperson of the Prisoners Review Board. Accordingly, the Applicant’s History for Court, Sentence Summary, Parole Order and other associated documents each refer to those original charges rather than to the charges on the indictment.[65]
[64] See Exhibit 1, pp 279-282.
[65] See Exhibit 1, 38-39, 52-53,107-108, 283.
The Certificate of Final Outcome is the formal record of the District Court.[66] However, the Tribunal put to the parties that it was minded to find that this was not properly drawn.[67] That is, the Tribunal intended to proceed on the basis that the evidence before the Tribunal proved that the Applicant had been convicted of the four ‘procuring’ offences listed on the indictment, and that those convictions were prima facie evidence that the Applicant committed those offences rather than the ‘exposure to indecent matter’ offences listed on the Certificate and subsequent official documentation.[68]
[66] See Criminal Procedure Rules, r 49(6); HSV v State of Western Australia (2020) 281 A Crim R 147, [3].
[67] See Reid v Director of Public Prosecutions (WA) (2012) 224 A Crim R 100, [59], [70].
[68] See Mickelberg v Director of Perth Mint (1986) WAR 365, 371, 374, 382; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali), [41].
The Tribunal notes that where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the Minister’s decision, may not impugn or ‘go behind’ either the conviction or sentence.[69] However, in this matter there was compelling reason to doubt the integrity of the official documentation relating to the Applicant’s conviction and sentence, which meant that the factual foundation of the parties’ contentions, and the Minister’s earlier exercises of power, should not be accepted so far as they referred to the convictions as relating to offences contrary to s 204B(2)(ii) of the Criminal Code.
[69] See Ali (2000) 106 FCR 313, [42]; HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, [63], [68], [71], [76]-[79], [179], [181]-[196]
Following that indication, the Applicant sought an opportunity to clarify the matter with the District Court.
On 26 June 2025, an Amended Certificate (Exhibit 2) issued, reflecting the Applicant’s conviction and sentence for the charges listed on the indictment. This was provided to the Tribunal on 27 June 2025, at the Tribunal’s direction - such that it is not caught by the 2-day rule found in s 500(6J) of the Migration Act.[70]
[70] See Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, [5], [44], [102], [104].
The parties jointly agreed that the Amended Certificate was a correct reflection of the Applicant’s conviction and sentencing on 2 November 2023.
The sentences imposed by the District Court on 2 November 2023 are listed in the table at [46(d)] above. The total effective sentence was 22 months’ imprisonment. Two of the individual sentences meet the 12-month threshold found in s 501(7) of the Migration Act on their own account (Counts 1 and 3). Given there were concurrent sentences imposed (Counts 1 to 3), each sentence clearly exceeds the threshold when they are aggregated. Accordingly, the Tribunal finds that the Applicant does not pass the character test because he has a ‘substantial criminal record’, as defined in s 501(6)(a) read with ss 501(7)(c), 501(7)(d) and 501(7A) of the Migration Act.
The Tribunal is therefore not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.
Is there ‘another reason’?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and to any relevant primary and other considerations contained within the Direction, there is ‘another reason’ why the Cancellation Decision should be revoked.
Further guidance as to how the Tribunal is to have regard to the relevant considerations within the Direction can be found in cl 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.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[71] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the applicant engages in other serious conduct.[72]
[71] See Direction, cls 8(1) and 8.1.
[72] Direction, cl 8.1(2).
It should be noted at this juncture that the Tribunal is not sentencing the Applicant for his past deeds. That has already happened. Rather, the Tribunal must assess whether the Applicant’s ‘continued presence here would be opposed to the safety and welfare of the nation’.[73]
[73] See Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [94].
In addressing this overall question, the Tribunal is directed by cl 8.1(1) of the Direction to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’. This ‘priority’ is also a stated policy ‘principle’ at cl 5.2(2) of the Direction.
During closing submissions, the Applicant’s counsel submitted that:
‘…the principle that the safety of the Australian community is the highest priority of the Australian government should not be limited to just victims but should also be extended to the safety of the community if the Applicant’s removed. It is clear that [the Applicant’s family] are members of the Australian community that would be severely disadvantaged, and the evidence given was that lives could be at risk if the Applicant were to be removed’.
This submission developed to ‘given the evidence as to the Applicant’s wife’s current physical inability to care for herself, she would be in harm’s way if the Applicant is not at home able to care for her’, and that the Applicant’s ‘family will be broken’.
In reply to this submission, the Minister’s counsel submitted that this phrase had to be considered in its proper context within the Direction. Specifically, the chapeau to cl 5.2 and cl 8.1, respectively, provide:
5.2 Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
…
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. 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectations 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.
(emphasis added by counsel)
The Full Court recently confirmed in Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84 that terms of the Direction should be construed according to orthodox principles of statutory construction, namely that their meaning is to be ascertained by reference to the text, the context in which they appear, and their purpose.[74]
[74] Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84, [64]
Direction 110 was made on 7 June 2024 and commenced on 21 June 2024.[75] It revoked former Direction 99.[76] The principle that ‘the safety of the Australian community is the highest priority of the Australian Government’ is a new addition. It was not in cl 5.2 of Direction 99 and former cl 8.1(1) of that Direction read:
When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
[75] Direction, cl 2.
[76] Direction, cl 3.
In Mizen, the Full Court held, in respect of former cl 8.1.2(2) of Direction 99, that:
[73] The purpose of Direction 99 is to guide the making of a decision under s 501(1), s 501(2) and s 501CA(4), which decision will necessarily be made in circumstances in which a non-citizen will not have, but is seeking a visa, or where a non-citizen is seeking to resist the cancellation of a previously granted visa. Accordingly, it is abundantly clear that the considerations in para 8.1.2(2) require decision-makers to evaluate the future risk to the Australian community should a non-citizen commit further offences or engage in other serious conduct in the event they are granted a visa, or if their previously granted visa is not cancelled. In other words, those considerations require an assessment to be made about the risk to the Australian community that may flow from the grant of a visa.
[74] It would make little sense if para 8.1.2(2)(b) of Direction 99 required decision-makers to have regard to the risk to the Australian community were a visa not to be granted.
[75] Accordingly, in relation to the consideration in para 8.1.2(2)(b) with which this appeal is concerned, on the proper construction of that paragraph, decision-makers are required to have regard to the likelihood of a 'non-citizen engaging in further criminal or other serious conduct' if they were to be granted a visa, or if their previously granted visa were not to be cancelled.
[76] At this point, it is important to recall that the term 'visa' is used in the Act to describe the permission that is granted to a non-citizen to: either or both (a) travel to and enter Australia; and (b) remain in Australia: s 5 and s 29 of the Act. According to Note 2 in para 4 of Direction 99, which appears under the heading 'Interpretation', the term 'visa' has the same meaning as it has in the Act. Therefore, an alternative, and equally correct, way in which to describe the task that a decision-maker is required to undertake when having regard to the consideration in para 8.1.2(2)(b), is that the decision-maker is to have regard to the likelihood of a non-citizen engaging in further criminal or other serious conduct if the non-citizen were to be granted permission to travel to and enter Australia or to remain in Australia.
(original emphasis)
That reasoning is equally applicable to the task required by the present Direction, notwithstanding the identified additions made to the relevant clauses of Direction 110.
This is confirmed by the media release published on 7 June 2024 by the Minister, Hon Andrew Giles MP (who authored both Directions 99 and 110), as follows:[77]
[77] See also Acts Interpretation Act 1901 (Cth), s 15AB.
Today, I have signed Ministerial Direction 110, a new, revised Direction to strengthen the consideration of community safety in Australia’s migration system.
Since coming to office, the Government has refused and cancelled a large number of visas on character grounds in the interests of community safety.
However, it is clear the AAT has made a number of decisions independently of Government that do not reflect the Government’s intent or meet community expectations.
Since the beginning of last week, I have cancelled 40 visas in the national interest.
Today, we take the next step in strengthening our cancellation system to better reflect community expectations.
Ministerial Direction 110 is guided by two key principles; the protection of the Australian community and common sense.
This new revised Direction makes crystal clear that the Government expects the protection of the Australian community be given greater weight in visa decisions.
The Government has also taken further steps to strengthen the new revised Direction.
The revised Direction makes it clear that the safety of the Australian community is the Government’s highest priority – and includes this as a key principle of the decision-making framework.
It elevates the impact on victims of family violence and their families into one of the existing primary considerations, reflecting the Government’s zero-tolerance approach to family and domestic violence.
Ministerial Direction 110 is an important step in ensuring that our migration system works in our national interest, and visa decisions are in line with common sense and the safety of Australians.
Community safety is and always will be our Government’s highest priority.
(emphasis added)
For those reasons, the Tribunal agrees with the Minister’s submission that the phrase ‘safety of the Australian community’ found in cls 5.2(2) and 8.1(1) of the Direction is targeted towards the risk posed by an applicant to the safety of the nation should they be granted a visa. It is not directed at the potential consequences for a segment of the Australian community (namely the non-citizen’s family members) should the visa not be granted or restored.
The concept of ‘risk’, and whether it is ‘unacceptable’, under cl 8.1 of the Direction is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’.[78] For this purpose, an ‘unacceptable risk’ is a risk which the Tribunal considers to be ‘unacceptable’ having regard to a variety of considerations, including:
(a)the nature and seriousness of the applicant’s criminal offending and other conduct to date (including the sentences imposed by the courts for a crime or crimes);
(b)the likelihood of the applicant engaging in further criminal or other serious conduct; and
(c)the nature of the harm that could be caused by further offending.
[78] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471, [74].
The Direction informs the Tribunal’s risk assessment, at cls 5.2, 8.1(1), 8.1.1(1) and 8.1.2(1), by reiterating, amongst other things, that the Executive Government:
(a)is committed to ‘protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’;
(b)considers identified types of conduct to be ‘very serious’ or ‘serious’; and
(c)considers that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’.
Those are not unfamiliar concepts. As Justice Mortimer (as her Honour then was) identified in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424:
[103] It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
It follows that the ‘risk’ referred to in the balancing exercise contemplated by those clauses of the Direction is not to any risk that an applicant may commit further criminal or other serious conduct but is calibrated towards the Tribunal’s assessment of the nature and degree of the harm said to be in prospect in the particular case at hand.
Nature and seriousness of the conduct to date
The Applicant emigrated as an adult (aged 21).[79] For most of his life in Australia, he has provided long and diligent service to the community of Western Australia as a prison officer. He has also been actively involved in the Albany community.[80] His only offending or other serious conduct to date occurred in late January and early February 2023.
[79] See Exhibit 1, pp 167-168.
[80] See Exhibit 1, p 124.
Both parties contended that, ‘despite no actual/physical child being involved’, the Applicant’s offending must be characterised by the Tribunal as ‘very serious’ because of the guidance in cl 8.1.1(1)(a)(ii) of the Direction,[81] which provides ‘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: … ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed’.
[81] ASFIC, [33]; RSFIC, [20].
The majority of the Full Court recently held that the Tribunal was not bound by the expressed views as to the seriousness of certain conduct found within cls 8.1.1(a) and (b) of the Direction, and instead the Tribunal was required to assess for itself the nature and seriousness of an applicant’s conduct to date, and the weight which should be attributed to this factor.[82]
[82] BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2025) 307 FCR 150, [107]; see also Siale v Minister for Immigration and Citizenship [2025] FCA 608, [34]; Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667, [89]-[90].
The facts of the Applicant’s offending were read to the District Court on 2 November 2023 and are contained in an Amended Statement of Material Facts.[83] They were largely agreed.[84] In summary, on 25 January 2023, the Applicant contacted a person he believed to be a 15-year-old girl on an online platform. The child persona was in fact a police officer. On the first platform, the Applicant was using the username ‘Hugh Mungus’. During the initial conversation they agreed to continue their conversation on Google chat and the Applicant provided the persona with a Gmail email account, which had the associated username of ‘bob jobbs’. The Applicant then engaged in a series of highly sexualised communications with the child persona for a period of about a week. He made numerous sexually explicit comments, seeking to encourage her to engage in sexual activity and also exposed her to indecent material. He suggested that they meet in person but did not make any specific arrangements to do so.
[83] See Exhibit 1, pp 242-245, 252-254, 266, 269-270.
[84] See Exhibit 1, p 254.
The sentencing judge considered the offending to be ‘very serious’,[85] and remarked that:[86]
As with offences of possession of child pornography, there’s a paramount public interest in protecting children from sexual abuse. The seriousness of these types of offences will often outweigh the personal circumstances of an offender, even where the offender is a first offender and has no prior record.
The extent to which the offender poses a risk to real children and the risk of re-offending are significant considerations in sentencing for offending of this kind.
[The Applicant’s] offending in this case is aggravated – that is, it’s made more serious – because [he] knew [he was] conversing with someone [he] believed to be a 15-year-old girl. There was a significant age difference between [him] and the child persona, some 47 years. [The Applicant is] 61 years old…
There was only one child persona involved in the offending, though it was not a particularly prolonged period, [his] conduct overall during the time that [he] engaged in it was persistent. It was not a one-off or an aberration. [He] persisted in [the] communications on a number of separate occasions over a period, as I’ve said, of about a week, making multiple explicit comments and engaging the child persona in sexualised conversations, seeking to encourage her to engage in sexual activity and exposing her to sexually explicit and indecent material …
Though [he] only communicated with one child persona and did not ultimately go through with [his] suggestions to meet, [his] offending is still very serious.... It’s not the worst of its kind but certainly, it’s not at the lowest end of the range of seriousness for this kind of offending.
By way of explanation, [he] say[s] that [he was] under a great deal of stress in [his] personal and … professional life at the time, including [his] wife’s long-standing medical issues, her returning to Scotland and [him] finding [himself] suddenly and unexpectedly at home alone in an empty house, and this has been referred to on behalf of the State. That does appear to be inconsistent in some respects with the evidence as has been referred to.
…
[He says he] started using chat sites to escape from [his] problems and [he] now accept[s] that those are not matters that excuse [his] actions. They certainly do not …but it does perhaps go some way to putting in context what was going on in [his] life at the time.
[85] Exhibit 1, p 270.
[86] See Exhibit 1, pp 268-270.
The sentencing judge was satisfied that the offending was out of character, that the Applicant cooperated with the authorities and that he had demonstrated remorse and shown some insight.[87] Relevant to risk of recidivism, the sentencing judge accepted that the Applicant had been assessed as a low risk of re-offending[88] and remarked:
There are some positive matters in [the Applicant’s] favour including the steps [he’s] taken by engaging in psychological counselling and the matters [he’s] explored to date with Ms Watson [, the psychologist. He’s] found [familial] support…[and] expressed a willingness to engage in future treatment to address factors that led [him] to offend and to reduce [his] risk of re-offending.
[87] See Exhibit 1, pp 271-272.
[88] See Exhibit 1, p 273.
The maximum penalty for the offence under s 204B(2)(i) of the Criminal Code is 5 years’ imprisonment.[89] As set out at [46(d)] above, the Applicant was sentenced to a total effective sentence of 22 months’ imprisonment. This included consideration and application of the ‘totality principle’.[90]
[89] See Exhibit 1,p 245; Criminal Code, s 204B(2).
[90] See Exhibit 1, pp 273-274; see also Roffey v State of Western Australia [2007] WASCA 246, [24]-[26].
To the extent that the Applicant made submissions about the comparative seriousness of his conduct based upon the combined maximum sentence for all four counts on the indictment (i.e. 20 years’ imprisonment),[91] these submissions were wrong regarding the approach to sentencing in this country for multiple offences.[92] Rather, the maximum penalty for each offence is to be regarded by the courts as but one of the many factors that bear upon the assessment of the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case.[93]
[91] See ASFIC, [37].
[92] See Jarvis v The Queen (1998) 20 WAR 201.
[93] See Markarian v The Queen (2005) 228 CLR 357, [30]-[31]; Roffey v State of Western Australia [2007] WASCA 246, [24]; Sentencing Act 1995 (WA), s 6.
It is trite to say that imprisonment is a sentence of last resort.[94] The sentences that were imposed by the District Court reflect that Court’s assessment of the seriousness of the conduct, including that it was ‘very serious’ conduct.
[94] See McFarlane v State of Western Australia [2024] WASCA 33, [41].
The absence of a ‘victim’ has also been comprehensively rejected by the courts as not being relevant to the objective seriousness of the conduct contemplated by s 204B of the Criminal Code.[95] Rather, the existence of an actual child who had been traumatised by such conduct would be a factor that increases the seriousness of such offending (rather than detracts from the seriousness of offending where there is a persona).[96] For the Tribunal’s purposes, this would also be a factor that would be required to be considered when assessing the seriousness of the conduct by virtue of cl 8.1.1(d) of the Direction.
[95] see Western Australia v Collier (2007) 178 A Crim R 310, [24]-[25]; Western Australia v Porter [2008] WASCA 154, [72], [77].
[96] Western Australia v Porter [2008] WASCA 154, [73].
The Court of Appeal relatively recently made the following observations in Hinton v Western Australia (2023) 306 A Crim R 23, regarding the purpose and object of s 204B of the Criminal Code:
[43] The legislative history of s 204B was explained by Buss JA in The State of Western Australia v Johnson. After setting out the Attorney General's second reading speech in relation to the Bill that became, upon enactment, the Criminal Code Amendment (Cyber Predators) Act, his Honour identified four points as to the purpose or object of s 204B that could be discerned from the Attorney General's speech:
… First, Parliament was concerned with the apparent prevalence of predators seeking to use the internet and other types of electronic communication for the purpose of engaging a potential child victim in a conversation, gaining the child's trust, grooming the child for planned sexual exploitation, and attempting to arrange an actual meeting with the child for the purpose of engaging in sexual activity with the child. Secondly, Parliament was concerned with the apparent prevalence of predators using the internet and other types of electronic communication to persuade potential child victims to engage in indecent acts and to describe these acts by means of electronic communication with the predator. Thirdly, Parliament was concerned with the apparent prevalence of predators using the internet and other means of electronic communication to supply children with indecent material (a common method used in grooming to lower a child's inhibition to engaging in sexual activity) and to persuade children to send digital photographs of themselves to the predator by electronic means. Fourthly, s 204B was intended to prevent child abuse. The offences created by s 204B are, in essence, preventative offences. They merely require the existence of an intent to procure a child to engage in sexual activity or an intent to expose a child to indecent matter. Pursuant to s 204B, police officers may, in using the internet and other electronic communications, pose as children. Section 204B merely requires that an offender believe that he or she is communicating with a child. (original emphasis)
[44] This court has observed that the offences created by s 204B are intrinsically serious. Generally at least, the dominant sentencing considerations in the case of offending against s 204B are punishment, general deterrence, personal deterrence and the protection of vulnerable children from cyber predators.
[45] In Vucemillo v The State of Western Australia, the court summarised principles relevant to offences under s 204B:
(1) adults who make use of the internet to locate and make contact with children so as to engage them in sexual activity can ordinarily, as a matter of fact, expect to receive a term of immediate imprisonment;
(2) as with offences of possession of child pornography, there is a paramount public interest in protecting children from sexual abuse;
(3) the seriousness of these offences will often outweigh the personal circumstances of the offender, even in the case of a first offender;
(4) the extent to which the offender poses a risk to real children and the risk of reoffending are significant considerations in sentencing for an offence of this kind; and
(5) an attempt by an offender to meet with the child or child persona, after a process of grooming, will often indicate a high risk of reoffending against real children.
Offences featuring the last of these will generally mark especially serious contraventions of s 204B.
[46] Several features of s 204B are apparent from its structure:
(1) As Steytler P observed in Speering, the offence is one of using electronic communication with intent to procure the person in question to engage in sexual activity or to expose the person in question to indecent matter. The penalty applies whether or not the child is actually procured to engage in sexual activity or exposed to indecent matter.
(2) Each of s 204B(2)(a), 204B(2)(b), 204B(3)(a) and 204B(3)(b) has two alternative limbs: one concerned with procuring the child to engage in sexual activity and the other concerned with exposing the child to any indecent matter. It cannot be assumed that one limb is inherently more serious than the other.
(3) The offences created by s 204B(2), relating to a person under the age of 16 years (or believed to be under the age of 16), and the offences created by s 204B(3), concerned with persons under the age of 13 (or believed to be under the age of 13), are, apart from the age of the victim, in materially identical terms. The penalty under s 204B(3) is a maximum of 10 years' imprisonment, while the penalty under s 204B(2) is a maximum of 5 years. This difference must be borne in mind in consideration of comparable cases.
…
[78] While the offences created by s 204B are intrinsically serious, those offences are, to a significant degree, preventative in character, as is revealed by the focus on the offender's intent, rather than on the actual effect of the offender's conduct. The prohibitions in s 204B reflect a recognition by the legislature of techniques commonly used by would‑be abusers of children to gain a child's trust and to groom the child for sexual exploitation. That is why the most serious examples of offences under s 204B are those where the offender sought to meet with the child and where there is a substantial risk of the offender committing contact offences with the child.
[79] Thus, the presence or absence of an attempt to meet the victim and the extent of the risk of the commission of contact offending are of central significance to the assessment of the seriousness of offending against s 204B. This must be kept squarely in mind in evaluating the appellant's criminality, including by reference to comparable cases.
(footnotes removed)
The Tribunal notes that the Applicant’s offending occurred over about a week and was part of a persistent course of conduct for that period. However, chronologically speaking, there is no real frequency or identifiable trend in increasing seriousness.
For the above reasons, the Tribunal finds the nature of the Applicant’s offending to date, involving predatory conduct seeking to groom a 15-year-old child for sexual exploitation, to be very serious.
Risk to the Australian community should the Applicant engage in further conduct
When the Applicant’s resident visa was cancelled, he became an ‘unlawful non-citizen’.[166] That is, a non-citizen in the migration zone that did not hold a visa that is in effect.[167] This status conferred liability to be detained under s 189(1) of the Migration Act. This occurred when he was released to parole on 30 September 2024.
[166] Migration Act s 15.
[167] See Migration Act ss 13-14.
The Applicant is relevantly required to be detained under the Migration Act until he is either removed from Australia under s 198 or he is granted a visa (including having his resident visa restored to him under s 501CA(4)).[168] Sections 198(1) and (2B) of the Migration Act relevantly provide for removal either at written request or where there has been a mandatory cancellation and a subsequent decision made not to revoke that cancellation, respectively.
[168] Migration Act ss 196(1)(a), 196(1)(c), 196(4)-(5), 501C(6)-(7).
There is no reason to suppose that any required removal to the UK would not be practicable in the reasonably foreseeable future and the Applicant has previously returned there on several occasions.[169]
[169] See Exhibit 1, pp 159 [9],170-171.
Further, the Applicant is not presently the subject of a protection finding.[170] The Applicant specifically confirmed through counsel that he was not seeking to engage Australia’s protection obligations.[171] No non-refoulement issue arises on the material before the Tribunal.
[170] See Direction, cl 9.1.2.
[171] ASFIC, [127].
It was accepted by the parties that a likely consequence of a decision to affirm the reviewable decision would be that the Applicant would be excluded from Australia and from the members of his Australian family into the foreseeable future, and that this would be a factor that would favour revocation.[172]
[172] Closing submissions.
The legal and other consequences of the Tribunal’s decision weigh in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to the UK, in establishing himself, and in maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in the UK.[173]
[173] Direction, cl 9.2(1).
The Applicant is 63 years old. He is a Type-2 diabetic, at high risk of cardiovascular disease and has low vitamin D levels.[174] He also suffers from Gastro-Oesophageal Reflux Disease.[175] He is medicated for each of these issues.[176]
[174] See Exhibit 1, p 327.
[175] Ibid.
[176] See Exhibit 1, pp 328, 366 [11].
The Applicant testified that his health ‘isn’t too bad’ but raised concern about his asthma in the UK, and how historically this has turned to bronchitis in winter.
The Applicant left Scotland as an adult. Accordingly, the Tribunal does not accept that there are any language or cultural barriers to the Applicant’s return to the UK. That lack of language or cultural barriers does not diminish the fact that the Applicant has spent most of his life in Australia and that he has no immediate family members remaining in the UK.
The Applicant’s counsel characterised the Applicant’s impediments to removal as ‘severe emotional and psychological hardship if he is separated from his entire family and support network in Australia and returned to an unfamiliar country’.[177] It was put that the Applicant will face significant difficulties maintaining his mental health and accessing adequate healthcare.[178]
[177] ASFIC, [129].
[178] ASFIC, [132].
The Minister submitted that there were some impediments to the Applicant being able to establish himself and maintain basic living standards in the UK, but that they were not ‘insurmountable’.[179] Specifically, the Minister identified that the Tribunal has previously accepted, in cases such as Re Mizen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] AATA 3113 at [164], that UK nationals in equivalent circumstances to the Applicant would have access to comparable standards of health care, social welfare, and housing support upon any return.
[179] RSFIC, [51].
The Tribunal accepts that the Applicant would be able to access the National Health Service in the UK upon providing information confirming that he no longer resides in Australia.[180] Those available public health services would be able to adequately treat the Applicant’s health conditions.
[180] See >
The Tribunal summarised the evidence before it regarding the Applicant’s financial circumstances at [146] above. There is no reason to suppose that the Applicant would not have access to his defined benefit or superannuation in the UK. However, the Tribunal accepts that those funds may be reduced should the understandable choice be made to continue to provide financial support to his immediate family in Australia, particularly his wife (who is in receipt of a DSP and has no superannuation).[181]
[181] Applicant’s reply, [26].
The Applicant’s written evidence and reply submissions sought to make good an argument about a lower standard, and higher cost, of living in the UK.[182] The financial planning firm, bdhSterling Ltd, provides advice on comparing the cost of living in Australia and the UK.[183] Relocations WA and Budget Direct, also offer similar online comparison tools.[184] The average house price in Glasgow (in April 2025) was £187,000, with an average monthly rent of £1,231.[185] In the same month, the average two bedroom property in Glasgow was rented for £1,051 per month.[186] Working at a conversion rate of roughly £1 to $2, this would be about $2,100 per month. The Applicant testified that he presently receives $500 a week as part of his defined benefit. He also had access to over $500K in superannuation and jointly owns a property in Albany. The Tribunal does not accept that the Applicant is physically or mentally unable to work. He only resigned his previous and long-standing employment in Western Australia because of the criminal charges. Whilst the Applicant has referred to the stress associated with that former employment, there is nothing before the Tribunal to suggest that he could not find other forms of employment in the UK, including based on his prior Scottish qualifications after completing any necessary employment or re-qualification training.[187] Community services such as Prisoners Abroad provide resettlement assistance, including accommodation advice and a work preparation programme.[188] The Tribunal accepts that the Applicant’s mental health will suffer as a consequence of his removal, and that this might impair his ability to gain such training or employment. However, as noted above, there are comparable services available in the UK. Accordingly, the Tribunal does not accept the Applicant’s evidence that he would be ‘homeless’ in the UK.
[182] See Applicant’s reply, [26]-[27]; Exhibit 1, p 368 [21], [24].
[183] See See
[186] Ibid.
[187] See See
The Tribunal considers that the Applicant will be personally and deeply affected by any removal to the UK. The potential emotional and psychological hardship can be withstood, and the Applicant has previously adjusted to life in foreign places such as Western Australia, and more recently prison and immigration detention, with little issue, but it should not be dismissed.
The Tribunal finds that the Applicant could likely re-establish himself in the UK and maintain basic living standards. Nevertheless, removal to the UK is a potentially devastating consequence, with very real impediments to permanent return, including associated negative impacts on his immediate family (particularly his wife). This weighs in favour of revocation.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.[189]
[189] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160, [8].
Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is ‘generally to be given greater weight than other primary considerations’, and that, otherwise, the relevant ‘primary considerations should generally be given greater weight than the [relevant] other considerations’. This guidance is consistent with the principle articulated at cl 5.2(2), that ‘the safety of the Australian community is the highest priority of the Australian government’. The Tribunal notes that the above policy guidance does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[190]
[190] See Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545.
The Applicant argued in this case that the Tribunal should depart from aspects of the policy contained within the Direction. The Tribunal has already given reasons for considering it inappropriate in this case to depart from those identified policy positions. The power to depart from Ministerial Policy is something that should be exercised with great care and only when satisfied that there are cogent reasons to do so. There may be a s 501 case where it would be appropriate for the Tribunal to depart from the policy positions contained in the prevailing Direction. This is not such a case.
The Tribunal has found that the Applicant poses an unacceptable risk of re-offending. His previous conduct was undoubtedly very serious and is of a kind where any risk of repetition is unacceptable. Against this, it was clear to the Tribunal that the Applicant has developed significant ties to the Australian community over the last 40 years in which he has resided here, including his Australian-born children and grandchild. The Applicant’s removal will have an adverse impact on the Applicant and each of his immediate family members, particularly his wife and sons. The Tribunal acknowledges that a decision not to revoke the mandatory cancellation in this case may seem like a harsh outcome. Unfortunately, the Applicant poses a threat to the safety of the nation because of conduct he was found to have committed in 2023, and he has outstanding treatment needs with respect to the risk of its repetition. As a non-citizen, his permission to remain in this country can be revoked. That happened by command of Parliament, and the Tribunal, after considering the relevant considerations identified within the Direction, is not satisfied that that there is ‘another reason’ to revoke that cancellation decision.
In summary, the Tribunal has considered the relevant considerations in this matter and determined that there is not ‘another reason’ to revoke the cancellation. Those factors which weigh against revocation, particularly the consideration of the protection and expectations of the Australian community, outweighed those factors that are in favour of revocation, including his ties to Australia, the best interests of his granddaughter, the consequences of an adverse decision, and the impediments to removal. The Applicant’s unacceptable risk of re-offending in a sexual way (coupled with the Minister’s articulation of community expectations) commanded that conclusion, notwithstanding the force of the other relevant factors which pointed to a contrary conclusion. The correct decision is therefore to affirm the decision under review.
DECISION
The Tribunal affirms the reviewable decision.
I certify that the preceding 196 (one hundred and ninety-six) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia
...................[SGD].....................................................
Associate
Dated: 9 July 2025
Date of hearing: 23 June 2025 Solicitor for the Applicant: Ms J Angel, Estrin Saul Lawyers Solicitor for the Respondent: Mr A Burgess, Australian Government Solicitor’s Office
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