Strachan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Strachan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 496 (13 March 2020)
Division:GENERAL DIVISION
File Number: 2019/8494
Re:John Richard Strachan
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:13 March 2020
Place:Melbourne

The decision under review, being the decision on 18 December 2019 to cancel Mr John Strachan’s Class BB Return Residence Subclass 155 (Five Year Resident Return) visa, is affirmed.
........[sgd]................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – Cancellation of applicant’s Class BB Return Residence Subclass 155 (Five Year Resident Return) visa – applicant is a citizen of the United Kingdom – applicant has failed character test – whether discretion should be exercised to cancel visa – consideration of ministerial Direction No. 79 – protection of the Australian community – the nature and seriousness of the conduct – child abuse material offences – the risk to the Australian community should the person re-offend – expectations of Australian community – strength, nature and duration of ties to Australia – applicant’s long residence in Australia – extent of impediments if removed – applicant is elderly – other relevant matter – spouse of applicant has temporary visa and applicant is sponsor – decision under review is affirmed
Legislation
Crimes Act 1958 (Vic), ss 51A, 51G
Crimes Amendment (Sexual Offences) Act 2016 (Vic)
Migration Act 1958 (Cth), ss 499, 501
Sex Offenders Registration Act 2004 (Vic)
Cases
FYBR v Minister for Home Affairs [2019] FCFCA 185
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
Department of Social Services – Social Security Guide – Version 1.2.61 Released 10 February 2020 (dss.gov.au/guide-social-security-law)
REASONS FOR DECISION
Senior Member D. J. Morris
13 March 2020

On 15 June 2019 the Applicant, Mr John Strachan, was given a notice by the Department of Home Affairs (the Department) notifying him that a delegate of the Respondent was considering whether there were grounds to cancel his Class BB Return Residence Subclass 155 (Five Year Resident Return) visa (the visa), and if so, whether the visa should be cancelled under s 501(2) of the Migration Act 1958 (the Act).
Mr Strachan was invited to make representations to the Department, and on 2 September 2019 he did so. On 18 December 2019 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to cancel the visa under s 501(2) of the Act. The Applicant failed to satisfy the delegate that he passed the character test on the basis of section 501(6)(e) of the Act, namely that a court in Australia or a foreign country has convicted the person of one or more sexually-based offences involving a child.
On 20 December 2019 the Applicant was notified of the decision. The notice advised

Mr Strachan that he was entitled to apply to the Tribunal for a merits review of the decision. On 20 December 2019 Mr Strachan applied to the Tribunal for a review of the decision.
The hearing was held on 3 March 2020. The Applicant was represented by Mr Fei Su of Su and Associates. Mr Strachan gave evidence and was cross-examined by

Mr Christopher Orchard of Sparke Helmore Lawyers, representing the Respondent.

Ms ‘XX,’ wife of the Applicant, also gave evidence. The Tribunal appreciates the assistance received from an interpreter in the Mandarin language.
The Tribunal admitted into evidence a bundle of ‘G’ documents collated by the Respondent (GD) (Exhibit R1) and paginated 1 to 307, with the exception of pages 104 to 106 which the Respondent agreed did not relate to the matter before the Tribunal and had been included in error. The Tribunal also admitted a volume of ‘SG’ documents tendered by the Respondent, paginated 1 to 119 (SG) (Exhibit R2).
The Tribunal also admitted into evidence two documents tendered by the Applicant: a Victorian Department of Justice Order Completion Report dated 9 January 2020 (Exhibit A1), and a psychological report from Dr Lester Walton, consultant psychiatrist, dated 24 October 2017 (Exhibit A2).
The legislative framework
Section 501 of the Act relates to refusal or cancellation of a visa on character grounds. Section 501(2) of the Act states:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Act defines the ‘character test,’ and relevantly states:
(6) For the purposes of this section, a person does not pass the character test if:
[…]
(c)a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child.
Does the Applicant fail the character test?
The Minister contended in his written submissions that Mr Strachan does not pass the character test (section 501(2)(a) of the Act) because he has been convicted of one or more sexually based offences involving a child (section 501(6)(e)(i)), namely the offence of ‘Knowingly possess child pornography.’ The Minister also submitted that the Applicant cannot satisfy the Tribunal that he passes the character test for this reason (section 501(2)(b)).
In the Applicant’s written Statement of Facts, Issues and Contentions, Mr Su acknowledged that Mr Strachan has been convicted of a sexually based offence involving a child and therefore does not pass the character test under section 501(6)(e) of the Act.
Before the Tribunal (GD, p 20-21) was an Australian Criminal Intelligence Commission Criminal History Check document dated 3 May 2019. It recorded that Mr Strachan was convicted at the Magistrates’ Court of Victoria on 8 January 2018 of the offence of ‘Knowingly possess child pornography,’ and was sentenced by the Court to a Community Correction Order (CCO) for a period of 24 months.
Also before the Tribunal was a letter dated 23 July 2019 from Refugee & Immigration Legal Centre Inc. stating that they are instructed that Mr Strachan pleaded guilty to the above offence, that the CCO included a condition that he undertake an offending behaviour programme, and also that the offence resulted in the Applicant’s automatic registration for eight years under the Sex Offenders Registration Act 2004 (Vic).
There is no definition in the Act of ‘sexually based offence involving a child,’ but the Tribunal is satisfied that the offence for which the Applicant was convicted and sentenced is in this category. The original provisions in the Crimes Act 1958 (Vic) under which the Applicant was charged were amended in 2016 by the Crimes Amendment (Sexual Offences) Act 2016 (Vic) to replace the term ‘child pornography’ in section 51G of the principal Act with the term ‘child abuse material.’ The term ‘child abuse material’ is defined in section 51A to mean, inter alia, material that depicts or describes a person who is, or appears to be, or is implied to be, a child, engaging in, or apparently engaging in a sexual pose or sexual activity. The Tribunal is satisfied on the material before it that the nature of the offence fits the category contemplated by the Act, and this view is reinforced by the linkage between a conviction under these provisions of the Crimes Act and registration on the Sex Offenders Register, under that register’s own Act.
Finding in relation to the character test
On this evidence, the Tribunal finds that discretion to cancel Mr Strachan’s visa is enlivened because the two limbs of section 501(2) of the Act are met: the Tribunal reasonably suspects that the Applicant does not pass the character test and he has not satisfied the Tribunal that he passes the character test.
Direction No. 79
Section 499(1) of the Act provides a power for the Minister to give directions to a person or body having functions or powers under the Act relating to the performance of those functions or the exercise of those powers. On 20 December 2018 the Minister made a direction, Direction No. 79 (the Direction). The Direction commenced on 28 February 2019 and was the Direction the delegate referred to when exercising the discretion to cancel Mr Strachan’s visa. In undertaking this review, the Tribunal stands in the shoes of the decision-maker, in this case the Minister’s delegate. The Tribunal must comply (under section 499(2A) of the Act) with the Direction.
The Direction comprises a Preamble which contains the Objectives of the Direction, and General Guidance for decision-makers that provide a framework within which decision-makers should approach their task to cancel or refuse a non-citizen’s visa or revoke a mandatory cancellation of a visa. Part A of the Direction identifies considerations relevant to visa holders in determining whether to exercise the discretion to cancel a non-citizen’s visa.
The Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to cancel a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part A, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part A are set out in paragraph 9(1) of the Direction. They are: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community.
Paragraph 10 of the Direction also requires a decision-maker to take into account, where relevant, the following other considerations: (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed. Paragraph 10 also makes clear that a decision-maker is not limited only to the stipulated other considerations. Logically, any other consideration that is consistent with the purpose of the Act and which is raised by parties or in the knowledge of the Tribunal should also be taken into account in the merits review.
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
Should the visa be cancelled?
As the discretion to cancel Mr Strachan’s visa is enlivened, the question before the Tribunal is whether the visa should be cancelled. To answer this question, the Tribunal now considers the evidence at the hearing, and in the papers before it, and then applies the considerations in the Direction.
EVIDENCE
The Applicant
Mr Strachan confirmed that he was born in September 1941, and so recently turned 79. He told the Tribunal about a number of health challenges, saying he was in good health apart from difficulties with his legs, for which he has seen two orthopaedic surgeons. He said he recently obtained a mobility scooter.
Mr Strachan said he takes regular medication for blood pressure control and reflux. He sometimes also takes Panadol osteo for pain and recently had a course of antibiotics for an infected finger. He says he has non-insulin controlled (Type 2) diabetes mellitus.

Mr Strachan said that he had been diagnosed in the past with sleep apnoea and had obtained a continuous positive airway pressure (CPAP) machine but rarely used it because he didn’t like wearing the mask.
Dr Walton records that Mr Strachan suffers from longstanding deafness, the cause of which has not been identified, and osteoporosis (Exhibit A2, p 3). He had a cerebrovascular accident (a ‘stroke’) in 1990 and has had left knee replacement surgery.
Mr Strachan said he came to Australia in 1965 from Britain under the Assisted Passage Migration Scheme (GD, p 136) He arrived in June of that year and was then aged 23. He said he had never returned to the United Kingdom since arriving, but had left Australia for holidays (for about 2-3 weeks at a time) to the United States, Canada, Thailand and the People’s Republic of China. A movement record was at GD pp 28-30.
In terms of his working history, Mr Strachan told Dr Walton (Exhibit A2, p 2) that he first worked as an office boy in a shipping company in London, a postal clerk and then a postman with the Royal Mail in the United Kingdom, and continued that occupation in Australia with the Postmaster-General’s Department. He then worked for a time as a labourer in a cigarette factory, briefly as an insurance salesman, and driving a lorry delivering soft drinks to homes. Mr Strachan told the Tribunal he had always wanted to train as a nurse, and eventually obtained a placement to train at the former Mount Royal Hospital in Parkville. He said he became a state enrolled nurse and spent 14 years working on the multiple sclerosis ward at that hospital. Subsequently, he said he worked as an agency nurse for a few years, in nursing homes.
Mr Strachan said that, when he first arrived in Australia in 1965, he was accompanied by his first wife whom he had married in the United Kingdom. They subsequently divorced, he said because of his alcoholism. His second marriage lasted 14 years, and also ended, Mr Strachan said, because of his alcohol abuse. His third marriage lasted until he was aged 62. He said that by this time he had given up alcohol but his wife had a particular mental health condition which caused some difficulties in the relationship and the marriage eventually broke down.
Mr Strachan married his current wife, Ms XX, in China in 2014. The Applicant said he retired from nursing around 2014 or 2015 when he remarried, to spend more time with his wife and mainly because of her English language ability.
Mr Strachan said he had undertaken some voluntary work at the local library, tending to the garden. He said he has been a member of a car enthusiasts’ club for around ten years, and had formerly been a member of Probus for about five years, and more recently had attended some ‘University of the Third Age’ meetings.
The Applicant said that he has two adult children, from his second marriage, one son and one daughter. Mr Strachan said that he had lost contact with his son and hadn’t spoken to him for several years. He said that his daughter lives a short distance away from him but he had not spoken to her for around three years after he telephoned her to tell her about his offending and the call developed into a “row.”
Mr Strachan said that neither of his children has any children of their own. He said that he is an only child, his parents separated soon after his birth and he has had no further contact with his father (who he assumes is now deceased), and that his mother passed away some thirty years ago (Exhibit A2, p 3).
Mr Strachan said that he had a computer at home but did not, as far as he could remember, use it for email; he said he uses the computers at the local library for email. When asked whether he had the Internet at home when he had a computer, the Applicant responded that he “thought so.”
The Applicant was asked about his interview with police in April 2017. He said he did not remember having an interview. Mr Strachan was asked what he felt about the offences for which he was convicted. He responded: “I realise, which I didn’t then, it is a very serious offence. I didn’t know what I’d done was illegal. I shouldn’t do it, nor should anyone else.”
When pressed about his claim that he didn’t know that viewing child pornography online was illegal, Mr Strachan said “the police or someone told me it was illegal.” He said he learned that through the legal proceedings.
Mr Strachan was asked if he remembered seeing Mr David Sullivan, a forensic psychologist. He responded that he did and that he discussed his offence and the seriousness of it, and also “general things.”
Mr Su asked the Applicant whether he learned anything from his sessions with

Mr Sullivan. Mr Strachan responded that he learned the offence “should not have been done and the reasons why. I don’t want another computer; you can press one button and can get into a lot of trouble.”
Under cross-examination, Mr Strachan was asked what he meant by “getting into a lot of trouble.” He responded that he had “clicked on child pornography, it wasn’t accidental.”
Mr Orchard asked the Applicant whether he knew that some of the children in the images which were found on his computer ranged in age from 6 to 14, as he told police.

Mr Strachan responded that he assumed that “they were very young.”
Mr Strachan was taken through the categories of illegal images found his computer (SG, p 17). He agreed that there were six images showing nude children with no sexual activity; two images showing sexual activity between children or masturbation; seven images showing non-penetrative sexual activity between adults and children; four images showing penetrative sexual activity between adults and children; and one image showing an animated child sexual image. He said that he had to accept that the description recorded by the police was accurate, but that he did not remember specifically.

Mr Strachan was asked whether he initially denied to the police seeing the images and suggested his computer had been “hacked,” and he responded “I think so.” The Applicant agreed with the proposition that he actively searched for the material and that he looked at the images to see if any of the images would give him sexual gratification.
The Applicant agreed that he undertook searches for pornography around three times a week for a period of around 12 months before his arrest.
Mr Strachan confirmed that he told the police that he did not believe what he had done was wrong because it was viewed in the privacy of his own home and that the participants were willing and paid.
When asked whether this was still his view, Mr Strachan said that he was told by the Magistrate at the Court hearing that it was wrong. He said he assumed that the participants were being paid but now realised that they cannot give consent, because they are children.
Mr Strachan said that part of the reason he searched for the images was boredom. He said his wife left home early to travel by train to work, and didn’t return until early evening. He said that he suffers from impotence and thought viewing these images might help with this medical problem. In answer to a direct question from the Tribunal about whether he had been prescribed any treatment for his erectile dysfunction by his general practitioner, Mr Strachan said “not as such.”
Mr Orchard took Mr Strachan to references in the tendered documents to historical intervention orders (IVO) relating to him and his then wife in 1998 (SGD, pp 113, 116 and 117). He was asked about an incident involving his third wife where she had claimed that he had punched her while they were driving on the highway. Mr Strachan said “It wasn’t so much a punch as a push,” and said that he remembered attending the Sunshine Court in regard to the IVO.
Mr Strachan said that his wife has an adult daughter who lives in Wuhan in China, who his wife had visited, and who she would probably visit again after the current Coronavirus disease (COVID-19) outbreak is over. Mr Strachan said that his stepdaughter is aged about 35 and he had last seen her about three years ago, in China.
Ms XX
The Applicant’s wife gave evidence and adopted a written statement she had made (GD, pp. 50-52).
Ms XX said that she had come to Australia in August 2014, initially on a tourist visa. She married Mr Strachan in November of that year, in China. She said that they had initially lodged an application for a temporary spouse visa on the basis of a de facto relationship earlier in 2014 but it had been rejected, so they went back to China to marry. Ms XX said she first learned that Mr Strachan was a British citizen when they went to the British Consulate-General in Shanghai in order to obtain a certificate confirming that he was unmarried, a requirement before they could marry in China.
Mr XX said she now held a temporary partner visa and that her husband had made inquiries with the Department of Home Affairs about obtaining a permanent partner visa, but there had been no response as yet.
Ms XX said that she could only read and speak a little English. Her husband had helped her and had hired an English tutor for her, so she could become more fluent.
Ms XX said she works as a massage therapist, from 9 am to 5.30 pm, but not every day. She said she sometimes works for six days in a row, or sometimes two or three days, depending upon clients. Ms XX said she had to travel by train to the place where she works, which meant leaving home early and returning late.
Ms XX said that, before her husband’s offending, she had plans to set up her own business at their home, and had bought various equipment such as tables and basins to enable her to do that. She said this would allow her to better care for Mr Strachan and, at the same time, earn an income. She said that she had asked her husband to obtain an Internet connection to their house so she could study English. In her written statement, she said that she had bought him a laptop computer for his birthday, because previously he had to go to the local library to use the Internet.
Ms XX said that she had one child, a daughter born in 1984, who lives in Wuhan. Ms XX said that she has her own property, a two-bedroom apartment, also in Wuhan. Ms XX said that her daughter lives with her husband in a different part of the city but was currently staying in her apartment because of the coronavirus disease (COVID-19) outbreak, which had temporarily prevented the daughter returning to her own residence. Ms XX said that normally the apartment she owns stands empty, but her daughter sometimes uses it on weekends.
In respect of Mr Strachan’s offending, Ms XX said that she knew nothing about it until she saw a lawyer in Melbourne sometime in 2019, who explained the offending to her.
CONSIDERATION OF THE DIRECTION
Protection of the Australian community from criminal or other serious conduct (paragraph 9.1)
The nature and seriousness of the conduct (paragraph 9.1.1.)
The Direction requires decision-makers, in respect of this consideration, to have regard to stipulated principles, including, that without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously (9.1.1 (1)(a), that crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed (9.1.1 (1)(b)), and that crimes committed against vulnerable members of the community are serious.
On all of these factors, the offence for which Mr Strachan is very serious. The manufacturing of these images involves sexual abuse of minors who are incapable of giving consent. In addition, some of the images that the Applicant admitted he had downloaded onto his computer involve sexual abuse of children by adults. As such, this is a crime of a violating nature against children, who are vulnerable members of the community. In terms of a computer-based crime, this industry is based on coercion of minors, who are incapable of giving consent, into undertaking sexually charged and sexual acts, for the commercial gain of the perpetrators. It is difficult to think of a crime of this nature that is more serious, and more undermining of the values of a decent society.
The Direction also requires the Tribunal to consider the frequency of the person’s offending and whether there is any trend of increased seriousness. Mr Su submitted to the Tribunal that, although 20 images were found, and there was no argument from the Applicant that the images were not illegal in nature, this was not a large number.
The Tribunal notes, in this respect, that Mr Strachan agreed to the Respondent’s question in cross-examination that he used his computer for an hour at a time, up to three times a week, over a 12 month period, for sexual gratification. This is consistent with what he told Victoria Police when he was interviewed at a police station on 19 April 2017. The police summary of the interview was at GD, p 99, and relevantly stated:
The accused initially suggested that his computer had been hacked and that he had not seen the images as produced by the police from the analysis. The accused further described ‘pop ups’ appearing on his screen of scantily clad women and that he would simply click on to see what happens and then have a look. The accused struggled to appreciate or define the term of child pornography, and went on to describe it as an adult having sex with a child. The accused ultimately described using ‘Google’ searches looking at topics such as “school girls with their teacher” “school sex” “sex from different countries” “American sex” “Swedish sex”.
The accused stated that he did not believe it was wrong as it was viewed in the privacy of his own home, in his spare room, and the participants were willing and paid. The accused described the females in the images as aged 14 years, 12-10 years, 6 years old and that he had no genuine reason other than boredom and he would often use the computer for an hour at a time up to 3 times a week for sexual gratification.
Before the Tribunal was a statement dated 27 April 2017 from the owner of a local computer consultancy, Mr JI (SGD, pp 13-15). Mr JI recorded that the Applicant had brought his laptop to him for repair in the middle of December 2016. He knew Mr Strachan as a past customer. The Applicant left the laptop with Mr JI, saying something about a virus or that it had been hacked.
A few days later, Mr JI started work on the Applicant’s computer. He installed some software designed to detect and remove computer viruses. He then wrote:
I then opened the Internet Browser and there was 5/6 webpages open, one stating that a virus had infected the system and if you contact this number and pay money they would fix your computer.
I closed this page and there were 5/6 other pages open all related to child or school girl pornography. They were all logged on with a user name of John. I checked the browser history and found similar pages, these also had a user id of John and were in September 2016.
The pictures that were on display were disgusting, depicting young girls and teens not developed, performing sexual acts and in the nude. I then checked the data for any saved photo’s or videos using the file manager. I then left the office and spoke to my wife. I then called the Police, they came took pictures of the laptop and screens. We then turned off the laptop and left it locked in my office until [police officer’s name redacted] arrived the following day and took it with him.
I have been doing this for 22 years, and have never seen anything like it. I found it offensive, disgusting and morally wrong I was very upset and advised the Police to make sure Mr Strachan never come[s] to my house again.
Mr Strachan freely agreed in his evidence at the hearing that his searching for child abuse material was a deliberate act. He agreed with the category summary of the images that the police found on his computer. He agreed that he had told the police he thought he was doing nothing illegal because he was viewing this images in the privacy of his own home and because he “assumed they were being paid.”
The Tribunal considers that the conduct admitted by the Applicant and which founds the convictions made by the Court is at a very high level of seriousness. It involves sexual exploitation of the worst kind, because the very act of seeking out these images provides a commercial black market for the manufacturers of these images to sexually abuse children.
Although Mr Strahan received a Community Corrections Order of two years, and the maximum sentence for this offence is 10 years’ imprisonment, the Direction reminds decision-makers that this category of offence is serious, regardless of the sentence imposed.
The Tribunal finds that the nature and seriousness of the conduct of the Applicant weighs heavily in favour of exercising the discretion to cancel his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 9.1.2)
The Direction states that the Tribunal should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and harm, the Direction goes on, is so serious that the risk that it may be repeated may be unacceptable.
The Tribunal must have regard, cumulatively, to the nature of the harm to individuals or the Australian community should the person engage in future criminal or other serious conduct, and the likelihood of the person engaging in further criminal or other serious conduct. The Tribunal must take into account information and evidence on the risk of re-offending and evidence of rehabilitation.
Dr Walton wrote (Exhibit A2, p 4):
Across the panoply of acquirers of child sexual abuse materials, Mr Strachan’s activities are striking by the minimal amounts he retained. Most offenders are extraordinary hoarders often with tens of thousands of images and videos. It is also the case that most acquirers of child pornography are not meaningful paedophiles and I believe this does apply to Mr Strachan. He described being mainly motivated by an attempt to overcome boredom and it is a measure of his criminal naiveté that he would present his computer to a third party with the offending materials remaining on it.
There is no suggestion that Mr Strachan has a formal mental state defence available to him but it is probable that his chronic depression may have partly eroded his capacity to consistently exercise proper social judgement, which is not to suggest that his misconduct is fundamentally a pathological psychiatric phenomenon.
[…]
It is reassuring that Mr Strachan does not have an established history of antisocial behaviour. Now that his alcohol abuse is under control there would seem to be no other readily identifiable risk factors in relation to the likelihood of his reoffending in a similar fashion.
The Tribunal also had before it a report of Mr David Sullivan, forensic psychologist, to the Refugee and Immigration Legal Centre Inc., dated 22 November 2019 (GD, pp 59-62).

Mr Strachan gave evidence that he had seen Mr Sullivan on around eight occasions as part of Court-directed counselling following his conviction.
Mr Sullivan’s report summarises the Applicant’s health history and Mr Sullivan’s past correspondence with the Applicant’s general practitioner referring to the Applicant’s substantially solitary life, that he told Mr Sullivan he has “no friends,” and no recreational activity other than almost daily visits to the local library and the local opportunity shops. Mr Sullivan was of the opinion, in January 2019, that Mr Strachan was suffering a Major Depressive Disorder.
Mr Sullivan in the report then expands his opinion, as of November 2019, to say he considers Mr Strachan is suffering a significant Adjustment Disorder with Mixed Anxiety and Depressed Mood, as defined by DSM-5 or significant Major Depressive Disorder. He was of the view that Mr Strachan would require ongoing psychological treatment for the foreseeable future.
He then states:
I consider, given his age, his multifaceted and chronic medical condition, his significant mobility issues, his hearing difficulties and consequential social interactional difficulties and his chronic longstanding depressive disorder and associated anxiety difficulties, Mr Strachan does not constitute a risk of reoffending.
The Tribunal must consider the reports of Dr Walton and Mr Sullivan in the context of the evidence the Applicant gave at the hearing. Mr Strachan said that only part of the reason he sought out the child abuse images was owing to boredom. He said the other motivation was for sexual gratification. When asked directly by the Respondent’s solicitor why he looked for the images, he said “No reason.” When pressed whether it may be because he is suffering from depression and anxiety, and was that possibly the reason, Mr Strachan responded “Part of it. I thought it might help my impotence.”
The Tribunal considers that there is a significant deficiency in Mr Sullivan’s report. There is no mention in the report at all about the nature of the offending, or what may have been the motivation for it, in the opinion of a forensic psychologist. That is all the more puzzling because Mr Sullivan records that the Applicant attended eight consultations for treatment upon the direction of the Victorian Department of Justice and Regulation.
Because this report does not include any assessment of the offending, and the psychological linkage of that type of offending or motivation with the Applicant, the Tribunal gives it little weight in terms of providing useful information to assess future risk of re-offending. While the Tribunal may accept that Mr Strachan’s deafness and certain other mobility difficulties such as his knee problems, may contribute to a sense of isolation, the lacuna that remains is that Mr Strachan did not inherently know (or did not comprehend) that the images he was viewing were reprehensible.
It was deeply concerning to the Tribunal that Mr Strachan still does not fully acknowledge the gravity and moral repugnance of his wrongdoing. Even after being arrested and interviewed by police, and having pleaded guilty, he repeated to the Tribunal in his oral evidence his written submission that he didn’t realise what he had done was wrong (putting aside the fact that it was illegal) until the Magistrate told him, but “now” knew it was wrong.
The Tribunal also found other aspects of Mr Strachan’s oral evidence evasive, possibly deliberately evasive, in terms of his computer skills. He attempted to give the impression that he had only rudimentary understanding of computers. That is inconsistent with other evidence before the Tribunal: his own evidence in his written statement that he met his wife on-line, his wife’s evidence that he regularly attended the library to use the computers there for the Internet and email, and the factual evidence from the examination of the computer that he had downloaded 20 child abuse images.
In terms of his mobility, the Tribunal accepts that Mr Strachan is an elderly man who has walking difficulties. However, he also offered to the Tribunal that he mows his own lawn with a push-along (not a ride-on) mower, and “tinkers” with two collectible cars that he owns, although he no longer drives. It is reasonable to conclude that his mobility fluctuates; it is accepted that he sometimes uses a recently acquired mobility scooter. The main agent isolating him is probably his deafness. The Tribunal notes in this respect the comprehensive report of Ms Karen Gillies, audiologist, confirming significant hearing loss, even when wearing hearing aids (SGD, pp 81-82).
The Tribunal does not accept Mr Sullivan’s opinion that there is “no risk” of re-offending. Mr Su submitted to the Tribunal that the Applicant and his wife were prepared to have the Internet disconnected from their residence and she was prepared to give up her touch mobile phone for another model. These propositions were put to the Tribunal as steps to create a protective environment to remove the factors that were ingredients in the offence. However, these submissions could also be interpreted, perhaps, as a lack of confidence that, should these tools still be available, the Applicant may not be tempted to again offend in the same manner. The Tribunal makes no conclusion on this.
The Tribunal notes that, although Mr Sullivan’s opinion was that Mr Strachan needs continuing psychological counselling for the foreseeable future, there was no plan put forward by the Applicant to undertake such counselling. Mr Su said in his closing submissions that Mr Strachan was happy to participate in any treatment in the future, but that is not the same as a person who recognises that they may have a significant psychological problem, and decides to take proactive steps to address that.
Mr Strachan’s evidence to the Tribunal that he “does not really remember” his police interview when charges were initially laid in April 2017 sits inconsistently with his relatively sharp memory of interactions with his third wife which led to an IVO in 1998. This contributes to the Tribunal’s view that the Applicant’s evidence was less than frank.
To the extent that any depressive or anxiety condition may play a factor in his conduct, the Tribunal relies on Dr Walton’s professional expertise as a consultant psychiatrist that there was no formal mental state defence available in terms of the offending.
The Tribunal finds that there is a real risk that the Applicant could re-offend. In respect of the nature of harm to individuals or the Australian community, I am not satisfied that

Mr Strachan still fully appreciates why the production, viewing and dissemination of child abuse material carries significant criminal penalties. His response to certain specific questions about the images he viewed was disturbingly matter-of-fact. Most importantly, he does not seem to appreciate that such material brings great harm to children, and is only commercially lucrative to the purveyors of it if persons without a moral appreciation of the inherent depravity in disseminating child abuse material provide a market.

The Tribunal finds that this primary consideration weighs heavily in favour of exercising the discretion to cancel the visa.
Best interests of minor children in Australia affected by the decision (paragraph 9.2)
Both parties submitted that there are no relevant minor children to be considered. The Tribunal notes that both of Mr Strachan’s children are middle-aged and his evidence that neither of them has children. No other minor children were nominated as being relevant.
The Tribunal finds that this primary consideration is not engaged, and weighs neutrally.
Expectations of the Australian community (paragraph 9.2)
The Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a person has breached, or where there is an unacceptable risk that they will breach, this trust or where the person has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. The Direction states that “decision-makers should have due regard to the Government’s views on in respect.”
In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court of the Federal Court of Australia considered how decision-makers should approach this primary consideration in the Direction. In that matter, the Court was considering the equivalent part of a superseded direction, but the wording in the current Direction is relevantly identical. Two of the three judges in that case, Charlesworth and Stewart JJ, held that this part of the Direction expresses a “norm.” It is not for a decision-maker to make his or her own personal assessment of what the expectations of the Australian community may be. In this respect, the expectations are “deemed” – they are what the executive government has declared are its views in the Direction, not values that may be gleaned from some other independent process.
Stewart J (who agreed with the conclusions of Charlesworth J but wrote his own reasons) stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
Stewart J i later stated (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is “appropriate” in the particular circumstances.
In this matter, the Tribunal considers that Mr Strachan has committed a very serious breach of the law in a particular area of criminality that would objectively be seen as completely antithetic to the foundation of any civilised society. The only reason the Tribunal considers that this primary consideration is not, by itself, determinative is that in the Applicant’s case his age and general health, and the length of his residence in Australia, are particular circumstances that should be taken into account.
The Tribunal finds that this primary consideration weighs relatively strongly in exercising the discretion to cancel the visa.
International non-refoulement obligations (paragraph 10.1)
There were no submissions from parties that Australia’s international obligations would be engaged in this particular case. Mr Strachan is a citizen of the United Kingdom, and would be returned to that country if his visa is not restored.
Strength, nature and duration of ties (paragraph 10.2)
The Direction requires the Tribunal to have regard to how long the person has resided in Australia, including whether they arrived as a young child, noting that less weight should be given when the person began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community.
In the Criminal History Check (GD, pp 20-21) there are only two disclosed appearances of Mr Strachan before the Courts, one of which is the offence which precipitated the Respondent’s action to cancel the visa. The other entry is a record that on 30 September 1969 Mr Strachan appeared before the Prahran Court of Petty Sessions charged with three counts of Larceny and one count of Receiving. There was no other information in the papers before the Tribunal about these offences. The Respondent submitted that, as the Applicant had only arrived in Australia in 1965, it was relevant in terms of this part of the Direction that he commenced offending relatively soon after arriving.
The Tribunal does not consider this particular earlier offending of any particular significance in the current merits review. The Magistrate in 1969 adjourned all four charges for one year on a $200 good behaviour bond, which is an indication that the Court was prepared to be lenient. There is no other evidence of any offending by the Applicant until 2018. The Tribunal therefore gives this first offending instance little weight against the Applicant.
The Tribunal must also consider the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents or others who have an indefinite right to remain in Australia, including the effect of cancellation of the visa on

Mr Strachan’s immediate family.
The Applicant gave evidence that he has two children born in Australia, who are Australian citizens, a son and a daughter. Mr Strachan said he had had no contact with his son for several years and “believed” he lived in Melbourne. In respect of his daughter, Mr Strachan said that he had formerly seen her on occasion, because she lives relatively near to him, but had not seen her for three years. He said the last spoken contact they had was when he telephoned her to tell her about his offending, and they had not spoken since.
Mr Strachan told Mr Sullivan he “had no friends” and lived a fairly isolated social existence, and told Dr Walton he had “no social life.” There was, however, some evidence before the Tribunal of his involvement in a number of organisations, notably a car enthusiasts’ club. The Applicant did not highlight any particular person outside his family to whom he is close.
The Respondent submitted that Ms XX was not a person in a category encompassed by the wording of the Direction, because she is not an Australian citizen and, holding a Partner (Temporary)(Class UK)(Subclass 820) visa, does not have an indefinite right to remain in Australia. The Tribunal accepts this is the strict wording of this particular consideration in the Direction. However, paragraph 6.1(2) of the Direction requires decision-makers to consider the specific circumstances of the case. Consistent with that, the Tribunal considers that the proper approach given that Ms XX is the Applicant’s wife and resides with him, is to consider her situation separately.
The Tribunal finds that, although it would appear on the evidence that Mr Strachan does not have especially close ties with either of his children, nevertheless the estrangement from his daughter is relatively recent, and possibly could be repairable.
It is also a matter of fact that Mr Strachan has resided in Australia for something approaching 55 years, and has worked in this country, notably and creditably in the essential profession of nursing, and been otherwise generally involved in the community, making, in the Tribunal’s view, a measurable positive contribution to Australian society in that time. Consistent with paragraph 10.2 of the Direction, more weight is given in favour of the Applicant in terms of the positive contribution that he has made in his employment and other community activities.
The Tribunal finds that this consideration weighs against exercising the discretion to cancel the visa.
Impact on Australian business interests (paragraph 10.3)
The Direction sets out that the Tribunal should consider the impact on Australian business interests if a person’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery or a major project or important service in Australia.
Mr Strachan’s evidence was that he last worked part-time around 2014. He has been fully retired from work since that time. The Tribunal finds that this consideration is not engaged and weighs neutrally.
Impact on victims (paragraph 10.4.)
The Direction sets out that the Tribunal should consider the impact of a decision to cancel a visa on victims of a person’s criminal behaviour, and any impact on victims’ family members, where that information is available. There was no such information before the Tribunal, so the Tribunal finds this consideration is not engaged and weighs neutrally.
Extent of impediments if removed (paragraph 10.5)
The Tribunal should consider the extent of impediments Mr Strachan may face if removed from Australia to the United Kingdom in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Tribunal should take into account Mr Strachan’s age and health, any substantial language or cultural barriers, and any social or medical support available in that country.
The Tribunal notes that Mr Strachan, as a citizen of the United Kingdom, would have access to the universal health system administered by the UK Government, the National Health Service. That system includes the provision of medical care and the supply of prescription medication. It is also noted that there is no evidence of any language or cultural barriers that would be placed in Mr Strachan’s way; he speaks English and resided in the United Kingdom from birth until early adulthood.
In respect of social support, the Tribunal notes that Mr Strachan would be able to continue to receive the Australian age pension in the United Kingdom. The Social Security Guide issued by the Department of Social Services indicates that a recipient of age pension who relocates to another country may continue to receive the benefit for an unlimited period, but should advise the Department of their location. There may be some adjustment depending upon whether he was accompanied by his wife or reverted to the single rate of pension. The energy supplement is not payable overseas.
The Tribunal accepts Mr Strachan’s evidence that he has not been back to the United Kingdom since he embarked from that country in May 1965 as a participant in the Assisted Passage Migration Scheme. Given his significant age and a number of health challenges set out by Dr Walton, and by his general practitioner Dr Griffiths (GD, p 57-58), re-establishing himself in Britain may well present challenges. In particular, the Tribunal is mindful that Ms XX may not be able to accompany him, or may not be immediately able to accompany him, to the UK. That would inherently provide an impediment because, apart from the obvious emotional impact, she currently cooks and otherwise provides a certain amount of care for her husband.
The Tribunal finds that this consideration weighs somewhat against the discretion being exercised to cancel the visa.
Other relevant matter
As mentioned above, the Applicant’s wife, Ms XX, is currently on a Partner (Temporary)(Class UK)(Subclass 820) visa. The Applicant is the sponsor of this visa. The Tribunal had before it an email letter dated 20 February 2019 to the Applicant from the office of Mr Strachan’s local Member of the Commonwealth Parliament. That email letter relevantly advised:
Partner visa applications are generally a two stage process. [Ms XX] lodged her combined Partner visa application on 1 December 2014, subsequently was granted her Temporary Partner visa (subclass 820) on the 1 July 2016.
Based on departmental systems, I can further confirm that [Ms XX] became eligible for the assessment of her permanent Partner visa (subclass 801) and commenced her application for subclass 801 visa on the 6 July 2017. Please be assured that [Ms XX’s] subclass 801 visa application currently remains under consideration and at this stage there does not appear to be any further request for information.
Please not that at this stage 75% of subclass 801 applications are processed in 21 months, while 90% are processing [sic] in 26 months.
Mr Su submitted that any decision to remove Mr Strachan to the United Kingdom “will have a devastating and long-lasting adverse effect on the family unit.”
The Tribunal is very mindful that if the decision to cancel Mr Strachan’s visa is affirmed, there will be a direct and significant consequence for his wife. The question of Ms XX’s continuing eligibility for her visa is not a question before the Tribunal and no findings are made about that. However, it would appear that an absence of a sponsor in Australia may affect the tenure of the visa. The Tribunal urges Ms XX to make her own inquiries to the Department about that. This is particularly relevant during the emergency situation that currently applies in her home city in China.
Mr Su submitted that Ms XX “will face obstruction and uncertainty for applying a United Kingdom visa to reunite with the Applicant.” There was no particular evidence brought before the Tribunal which expanded upon, or corroborated, this contention. The grant of a partner visa to a British citizen would be a matter for the United Kingdom immigration authorities.
In his written statement (GD, p 44), Mr Strachan wrote:
I have been told that [Ms XX’s] partner visa application would be prejudiced if my Resident Return visa were to be cancelled. Please consider the terrible impact this would have on her. She has lovingly decided to move to Australia to be my wife. She has to face many challenges to make a life here and has done so very bravely. We provide each other with a great deal of support. I could not function without her, and she would be lost without me. She was not happy in China, and would be very fearful of returning after experiencing life in Australia. I have no idea whether she would be legally able to accompany me if I were forced to return to the United Kingdom. The consequences of a cancellation of my visa on both myself and my wife would be extremely serious to myself and particularly to my innocent wife.
I stress that Ms XX bears no culpability whatsoever in Mr Strachan’s offending, and accept her evidence that she did not appreciate the nature of what he had done until it was explained to her in 2019. I also note that, since settling in Australia, Ms XX has returned to China on at least one occasion to visit her daughter, and that she expressed no fears in her oral evidence about travelling back there. The Tribunal notes Ms XX’s evidence that she has maintained a residence in China.
In her own written statement (GD, p 51), Ms XX said:
“I have never been to England. It has taken my quite some time to settle into Australia and adjust to the culture here. I would have to start all over again which would be very hard for me as I am now 61.”
The Tribunal accepts that affirming the cancellation of the visa would cause significant disruption to the life of Ms XX, through no fault of her own. That is a matter greatly to be regretted. However, the Tribunal is not considering Ms XX’s status in Australia in this review. The question before me is whether the discretion to cancel Mr Strachan’s visa was the correct decision in law and the preferable decision where a discretionary power, as in this case, is available under the Act.
However, in the general sense of considering whether, in the whole of the specific circumstances (see paragraph 6.1(2) of the Direction), the discretion should be exercised to cancel the Applicant’s visa, I do believe that the effect on the Applicant’s wife is a relevant factor to take into account. It is not a pivotal factor, owing to the relatively short length of time Ms XX has been resident in Australia and the temporary nature of her visa, but the Tribunal finds, in the particular circumstances of this case, the effect on the Applicant’s wife weighs against exercising the discretion to cancel Mr Strachan’s visa.
SUMMARY AND CONCLUSION
In reviewing this decision, the Tribunal has conducted a weighing exercise of the primary and other considerations set out in the Direction for persons whose visas have been cancelled. The two relevant primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh in favour of exercising the discretion to cancel the visa, and both relatively heavily in that direction. In respect of the other relevant considerations, the strength, nature and duration of ties to Australia weighs in favour of not cancelling the visa, and the consideration relation to the extent of impediments if removed weighs somewhat in favour of not cancelling the visa.
As remarked above, the Tribunal is not constrained only to consider the considerations stipulated in the Direction, and may consider any other matter relevant to the exercise of the powers under the Act, a point rightly made by Mr Su in his submissions at the hearing. In this regard, a factor to inject into the weighing exercise is the circumstances of the Applicant’s wife. This is a factor that weighs against exercising the discretion to cancel the visa.
In this matter, while the number of child abuse images the Applicant downloaded was not a large number, the images were of a highly offensive nature and several of them involved child exploitation at the very worst end of the scale. Mr Strachan’s less than frank evidence to the Tribunal and his somewhat blasé attitude to the offence is of central concern to the Tribunal. It contributes to my finding that, given the opportunity, he may well re-offend in the same manner. The expressions of remorse in his written statement were not matched in his oral testimony.
An important factor in this case is the long period of time that the Applicant has resided in Australia, for the main part without committing any offence or engaging in other serious conduct. However, having found that the discretion is enlivened under section 501(2) of the Act, the Tribunal concludes, based cumulatively on the seriousness of the offence, the risk of re-offending and the expectations of the Australian community, that the exercise of the discretion available to cancel Mr Strachan’s visa is the preferable decision.
DECISION
The decision under review, being the decision on 18 December 2019 to cancel Mr John Strachan’s Class BB Return Residence Subclass 155 (Five Year Resident Return) visa, is affirmed.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

……[sgd]……………………………………………
Associate
Dated: 13 March 2020

Date of hearing:

3 March 2020

Advocate for the Applicant:

Mr F Su

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Su and Associates

Mr C Orchard

Sparke Helmore Lawyers

[2020] AATA 496

13 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Proportionality

Jurisdiction