TBQH and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

TBQH and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4975 (23 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4755
Re:TBQH
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President A Younes
Date:23 August 2022
Place:Sydney

The Tribunal finds that the correct and preferable decision is that the decision under review be set aside and in substitution a decision be made that the original decision to cancel the applicant’s visa be revoked.
..................................[SGD]......................................
Deputy President Antoinette Younes
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted
Legislation
Child Protection (Offenders Registration) Act 2000 (NSW) – ss 3, 9, 10, 11, 14A
Migration Act 1958 (Cth) – ss 500, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
KellyvMinisterforImmigration,Citizenship,MigrantServicesandMulticulturalAffairs [2022] FCA 396
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Press Release, Simon Communities: Simon Communities of Ireland call for Urgent Action on Vacant Properties as Number in Homelessness Passes 10,000 (27 May 2022)
Department of Housing, Local Government and Heritage Monthly Homelessness Report, May 2022
Australian Institute of Health and Welfare, Health of people experiencing homelessness (7 December 2021)
National Health Care for the Homeless Council, Fact Sheet Homelessness and Health: What’s the Connection? (February 2019)
Residential Tenancies Board Rent Index, Quarter 4, 2021
Australia vs Ireland – Cost of living Comparison
REASONS FOR DECISION
Deputy President A Younes
23 August 2022

The applicant is a citizen of Ireland. At the age of 19 years, he arrived in Australia on 26 May 1971. The applicant is now 71 years old.
On 4 April 2018, the applicant was convicted of Persistent Sexual abuse of a child and sentenced to six years' imprisonment with a non-parole period of 3 years and 6 months at the District Court of NSW at Penrith.
On 13 December 2019, the applicant's Resident Return (subclass 155) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that the applicant had a "substantial criminal record" within the meaning of s 501(6)(a); had been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c); had been convicted of one or more sexually based offences involving a child: s 501(6)(e); and was serving a full-time sentence of imprisonment in a custodial institution because he had committed an offence or offences against Australian law: s 501(3A)(b).
On 9 January 2020, the applicant made a request for revocation of the cancellation decision. On 24 April 2020, he was invited to comment on further information obtained by the Department which was relevant to the decision on whether to revoke the visa cancellation. The applicant provided further submissions in support of his revocation request. On 28 June 2020, the applicant was released on parole and was taken to immigration detention, where he has remained.
On 4 August 2020, the Minister made a personal decision not to revoke the cancellation under s 501CA(4) of the Act (“the Minister's decision”). The applicant sought judicial review of the Minister's decision in the Federal Court and, on 11 December 2020, Stewart J quashed the Minister's decision and issued a writ of mandamus requiring the Minister to determine the matter according to law.
On 16 June 2021, the applicant was invited to make further submissions on the judgment of Stewart J, the submissions filed on behalf of the Minister in the Federal Court proceedings, and independent country information about the healthcare and welfare systems in Ireland. The applicant responded on 14 July 2021. On 30 May 2022, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision. On 8 June 2022, the applicant lodged an application for review at the Tribunal.
The hearing before the Tribunal was held by video on 3 and 4 August 2022 using the Microsoft Teams platform. The applicant and a witness gave evidence in the course of the hearing.
The parties provided submissions and supporting documents, including ERISP transcript, Sentencing Remarks, Orders and Reasons for judgment of the NSW Criminal Court of Appeal (CCA), Apprehended Domestic Violence Order, IHMS records, statements of the applicant, character references, reports of Mr Patrick Newton,[1] reports of Mr John Machlin,[2] IHMS Health Summary Report for Commonwealth Ombudsman, IHMS Special Needs Health Assessment, Cost of living Comparison between Ireland and Australia, and Residential Tenancies Board Rent Index.
[1] Clinical and Forensic Psychologist.
[2] Clinical Psychologist.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act, which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. Paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the applicant passes the character test as defined by s 501(6)(a) and s 501(7)(c) of the Act: s 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii).
The applicant was sentenced to a term of imprisonment of 12 months or more. He has a “substantial criminal record” for the purposes of s 501(7)(c) and does not pass the character test in s 501(6)(a). The parties accept, and the Tribunal finds, that the applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be set aside.
The case of Viane[3] is of relevance in relation to the task of identifying “another reason”. In that judgment, the Full Court of the Federal Court of Australia held that:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision 'should be' revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[4]
[3] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13.
[4] Ibid at [64].
The Tribunal now turns to assess the primary considerations.
primary considerations
PRIMARY CONSIDERATION A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, 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. Decision-makers should also 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the applicant presents to the community.
Nature and seriousness of the conduct
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that conduct that is viewed "very seriously" includes violent and/or sexual crimes, crimes of a violent nature against women or children, regardless of the sentence imposed, and acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed.
The Tribunal considers it appropriate to refer to the applicant’s background. In his report of 24 March 2018, Mr Machlin summarised the applicant’s personal history, as reported by the applicant. Mr Machlin noted that the applicant
never knew his biological father, believed to have been an English sailor. His younger brother was born to a different man. The two youngest girls were born to … a crane driver, who stayed for many years … was described as an alcoholic who came home drunk at weekends and was frequently violent to [the applicant’s] mother. She stood up to him, which escalated the violence. Police were sometimes called, but nothing much ever came of it … [The applicant] recalled a time at age 14 when he tried to step in and protect his mother, and ended up going through a plate glass door which resulted in hospital treatment to save the use of his arm. He still bears the scars near the elbow
[The applicant] would sometimes stay with relatives or friends, and even an orphanage which he could barely remember. His siblings would sometimes be dispersed among carers. Some insights have only been acquired later in life as to his mother’s absences due to physical and mental health treatments … [The applicant’s] mother became more settled as she grew older, but she maintained liaisons with a range of men …[5]
[5] Section 501G Documents, G2, p 247.
In a report of 7 December 2021, Mr Patrick Newton noted that the applicant comes
from a complex family constellation … He has no full-siblings and he does not know who his biological father was … [The applicant] told me that he has six siblings born to different relationships of his mother. Each of her partners was reportedly violent and unstable.[6]
[6] Ibid, p 255.
Mr Newton noted that the applicant had reported that one of his mother’s partners “who remained with her for the bulk of [the applicant’s] childhood and teens” was “a violent alcoholic who had perpetrated repeated acts of violence” on his mother, his siblings, and the applicant personally.[7]
[7] Ibid, p 255.
In submissions to the Tribunal, Counsel for the applicant summarised the applicant’s background, consistent with the summaries provided by the experts,[8] namely Mr Newton and Mr Machlin.
[8] Applicant’s Outline of Submissions, dated 7 July 2022, para. 4.
The Tribunal is satisfied of the accuracy of the backgrounds discussed above.
On arrival to Australia, the applicant lived with a school friend (Mr T). The applicant was married on two occasions. Until 2016, he ran a children's clothing business with his former second wife. There is no evidence before the Tribunal to indicate that the applicant ever engaged in any inappropriate conduct with children during this work. The Tribunal accepts that this is the case.
The evidence before the Tribunal shows that the applicant did not commit any offences until 2008. Between 2008 and January 2013, the applicant committed sexual offences against his daughter who was a minor. In 2013, the applicant ceased offending. He was arrested four years later when his daughter disclosed the offending conduct to her mother on 29 December 2016. The applicant was arrested on that day and he made admissions to the offending.[9] The Tribunal notes the submission of the respondent that the applicant did not initially make full admissions. The Tribunal observes that the applicant participated in an electronically recorded interview with the New South Wales police on 30 December 2016 where he denied one of the offences[10] but he later pleaded guilty to all offences. The Tribunal has decided not to draw adverse conclusions on that basis, given the fact that the applicant later pleaded guilty.
[9] Section 501G Documents, G2, pp 46-47.
[10] Respondent’s Tender Bundle, p 32.
The Tribunal accepts the applicant’s submissions, which are not disputed by the respondent, that in relation to the offences, the Tribunal is bound by the essential facts upon which the sentence is based. The Tribunal therefore now turns to the Sentencing Remarks[11] which the Tribunal accepts as being an accurate summary of the offending.
[11] Section 501G Documents, G2, p 39-57.
His Honour, Judge Hanley SC, outlines the five incidents. The first, second, third and fourth incidents occurred in 2008, when the victim was six years of age. The fifth incident occurred in 2012, when the victim was 10 years old. In summary, the offences relate to the victim being ‘rewarded’ with lollies, ice cream, choosing DVDs or story time, for intimate touching and other sexual behaviour. The offending conduct happened predominantly when the victim’s mother was out of the house. In January 2013, the applicant told the victim that they “can’t do that anymore”. As mentioned earlier, in December 2016, the victim told her mother that the applicant had been sexually abusing her and that nothing had happened for about four years. The mother contacted the police, and the applicant was subsequently arrested and charged.[12]
[12] Ibid, p 39-41.
The Tribunal is of the view that it would be an understatement to say that the applicant’s conduct is serious. The Tribunal considers the applicant's behaviour to be abhorrent and involves a significant breach of trust and care by a parent towards their child. The Tribunal considers sexual abuse to be horrific and, in this case, the applicant’s offending is magnified by the fact that on repeated occasions, he sexually assaulted his own daughter who was a minor at the time.

The applicant has accepted that his offending was objectively very serious and had significant adverse consequences for his former wife and daughter,[13] and that the offending also meets the definition of family violence.
[13] Section 501G Documents, G2 pp 173, 213, 391-392
The Tribunal is satisfied that the applicant’s offending is caught by all elements in sub-paragraph (a) of paragraph 8.1.1(1) of the Direction which provides that conduct that is viewed “very seriously”, includes violent and/or sexual crimes, crimes of a violent nature against women or children, regardless of the sentence imposed, and acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed. It is clear that the applicant's offending was of a sexual nature against his daughter and involved multiple incidents over a four-year period when the applicant's daughter was between the ages of 6 and 10. The applicant's offending is also be considered an act of family violence, which the applicant concedes.[14]
[14] Applicant’s Outline of Submissions, para 16
Paragraph 8.1.1(1)(c) of the Direction provides that, in considering the nature and seriousness of the non-citizen's criminal offending, regard must be had to the sentence imposed by the courts for a crime. It is accepted that sentences involving a term of imprisonment are the last resort in the sentencing hierarchy.[15] The respondent made submissions, which the Tribunal accepts, that an indicator of the seriousness of the applicant's offending is that the maximum sentence for the offence was 25 years at the time of the offending conduct,[16] but it was increased from 1 December 2018 to life imprisonment.[17] The Tribunal accepts the respondent’s submissions that, despite the applicant's sentence of 6 years’ imprisonment being less than the maximum sentence available, a sentence of 6 years' imprisonment is significant, given the applicant had no criminal antecedents.
[15] Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
[16] Crimes Act 1900 (NSW) s 66EA(1).
[17] Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
The Tribunal is required to give regard to sub-paragraph (e) of paragraph 8.1.1(1) of the Direction, providing consideration of the cumulative effect of repeated offending. It is not disputed that the applicant's offending occurred over a period of more than four years. The sentencing Court referred to the injury and emotional harm caused to the applicant's daughter by his offending. The Court observed:
I do take into account as an aggravating factor that the injury and emotional harm caused by the offences towards a vulnerable child would have been substantial. It is well established that these harms are established without the necessity of any proof being placed before the Court. It has been recognised by the superior courts that the harm caused by the sexual abuse of a child does have profound and deleterious impacts upon the victims that can occur for many years if not their entire lives. It can give rise to significant psychological damage. I accept that is the case here. I also accept that it is inherent in the facts that she was vulnerable and this involved multiple acts of sexual assault although that appears to be inherently an element of the offence. I do not propose to take into account again as a separate aggravating factor.[18]
[18] Section 501G Documents, G2, p 46.
The Tribunal considers that this aspect weighs heavily against revocation.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that, in considering the need to protect the Australian community from harm, the Tribunal should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 8.1.2(2) sets out two factors that the Tribunal must have regard to in considering the risk to the Australian community, namely: (a) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and (b) the likelihood of the applicant engaging in further criminal or serious conduct.
The applicant has contended that he will not re-offend. In written statements and in oral evidence, he has shown remorse and displayed an understanding of the gravity of his offending. The evidence before the Tribunal indicates that whilst in prison, the applicant made attempts to undertake sex offender rehabilitation programs, but they were not available to him due to his low risk of offending. The Tribunal was concerned about comments made by the applicant in the course of the hearing that he has no intention in undertaking a sex offender prevention or rehabilitation programs. He explained to the Tribunal that he has been advised by Mr Newton that there would be little advantage to undertake such programs which could also have a negative impact on him. He emphasised that, if needed, he would be open to undertaking such a program. The Tribunal is persuaded by the applicant’s explanations and does not consider those comments to show a lack of remorse or understanding of the offending conduct.
The sentencing Court outlined the applicant’s prospects of rehabilitation and likelihood of reoffending. The Court observed:
In assessing this I take into account a number of factors. One, the fact that prior to the commission of these offences he had no criminal history. He could be regarded as a person of prior good character. Any satisfaction of his inclination towards fetish behaviour had been resolved appropriately with adult female partners. That together with a second factor being that he ceased committing the offences in 2013 indicate he has good prospects of rehabilitation. The fact that he ceased offending demonstrated he recognised the damage being done to his daughter and indicated a desire by him to cease offending and commence rehabilitation by not offending. I am satisfied his cessation of offending demonstrated his desire not to commit any further criminal offences. It is a significant and substantial factor to be taken into account as a mitigating one when assessing the appropriate sentence. Thirdly, I take into account the fact that there have been no offences committed by him since the cessation of this offending behaviour which is now over a considerable period of time and is consistent with his previous good character …
The pre-sentence report and the attach[ed] report also make an assessment …
I am satisfied overall in view of all those factors that his prospects of rehabilitation as demonstrated by not offending since his cessation of committing these offences against his daughter, his age and the evidence he gave before me which demonstrated a heartfelt remorse that it is unlikely he will reoffend and his prospects of rehabilitation are good. I will take those factors into account as mitigating ones in determine an appropriate sentence.[19]
[19] Section 501G Documents, G2, pp 48-50.
In his report dated 24 March 2018, Mr Machlin noted that the applicant
would have met criteria for the condition [Paedophilic Disorder] given his behaviours that are understood to have occurred between 2008 and 2012. The behaviour ceased when[the applicant], with increased awareness of the harm he was causing, made decisive action to desist … There is no indication of distressing urges or fantasies before or after that period. The diagnosis therefore applies to the period in which the offences were carried out, and he is no longer considered to have the condition.[20]
[20] Ibid, p 251.
Mr Machlin reported that the applicant
denied any risk of recidivism, putting the chances at “the zero below zero.” He said there was never any other child victim. His offences had stopped for years before his arrest. He has “no libido.” He has reflected on the offences and the consequences. He indicated that he would accept any sort of treatment, including sex offender treatment, if so directed …
He states there is zero chance of reoffence, and I agree that the risk is extremely low. The offences occurred in the context of his relationship with the one victim, his daughter, in circumstances that no longer exist. She is no longer the young child susceptible to his manipulation. He ceased the activity years before his daughter’s disclosure. There is no indication that he presented a danger toward any other child. He has greater awareness now of the unacceptable nature of his acts, and is paying the consequences.
In summary, he displays a very high level of remorse, and is at very low risk of reoffending.[21]
[21] Section 501G Documents, G2, pp 250-251
Mr Newton provided reports and gave oral evidence. In his report of 7 December 2021, Mr Newton noted that he conducted a risk assessment of the applicant’s case and in doing so, he had regard to a structured clinical judgement framework informed by a consideration of relevant empirical factors which have demonstrated their utility in predicting sexual recidivism. Mr Newton noted that he had regard to the STATIC-99R, which is considered to be a robust predictor of sexual reoffending risk. The applicant scored ‘-3’ on that instrument which Mr neutron explained to be the lowest possible score which places the applicant in the low-risk range. Mr Newton noted that the score is “well below the average level seen in sex offenders undergoing sentence”.[22] Mr Newton noted that offenders scoring at that level are at about one-fifth of the risk of a “‘typical’ sex offender undergoing sentence with fewer than 1% of individuals scoring at this level reoffending within five years of release”.[23]
[22] Ibid, p 262.
[23] Ibid, p 263.
Mr Newton noted that the applicant’s mental status was normal and that he continued to feel shame and regret for his offending. In relation to the diagnosis, Mr Newton noted that the applicant would have met the diagnostic criteria for a fetish disorder and that his conduct was also sufficiently severe to warrant the additional diagnosis of paedophilia disorder.[24]
[24] Ibid, pp 265-266.
In his more recent report of 27 July 2022, Mr Newton noted that the applicant is assessed
as a low risk for further sexual offending, well below the average level of a sex-offender undergoing sentence. There are no extant risk factors suggesting that his risk of general offending would be elevated beyond the low-risk range.[25]
[25] Exhibit 6, Supplementary Expert Report of Patrick Newton, 27 July 2022, para 24.
Mr Newton referred to the registration of the applicant on the sex offender registration program and observed that the sex offender registration provisions
reduce risk by limiting or preventing access of registered offenders to potential victims and by increasing the degree of police scrutiny of offenders to ensure their compliance with risk-management strategies. In short, sex-offender registration increases monitoring, reduces opportunity for offending and magnifies the deterrent component of sentencing.[26]
[26] Ibid, para 23.
Mr Newton reiterated that the applicant has been designated as being at low risk and that the designation is an
absolute level of risk, as indicated by the probability estimate provided. His designation as being ‘well below the average’ level of risk is a relative assessment designed to allow the finder of fact to ‘benchmark’ [the applicant] in comparison with other sex-offenders who may be the focus of adjudication.[27]
[27] Ibid, para 35.
The respondent has contended that there is still a real risk of reoffending. The respondent argued that Mr Newton's risk assessment was based on the applicant's age, and his self-reporting that he had not engaged in any fetish-related activities and had no other attraction, interest or other behaviour toward other underage individuals since he "came to his senses" in 2013,[28] but there is a concern that the applicant cannot explain what triggered his offending.[29] The respondent argued that without fully understanding what triggered the applicant's paedophilic disorder in the first instance, the Tribunal cannot be satisfied that there is no risk of a relapse. The Tribunal acknowledges those submissions; however, the Court concluded that the risk of reoffending is low. The Tribunal accepts that both psychologists are experts who are qualified and skilled to give the opinions that they did; they both concluded that the risk of reoffending is low. Contrary to the respondent’s submissions, on the basis of the cumulative evidence before the Tribunal, the Tribunal is satisfied that the risk of reoffending is remote.
[28] Section 501G Documents, G2, pp 262- 263 at [42], [46].
[29] Ibid, p 259 at [28].
The respondent submitted that even a low risk is unacceptable. There is no question that given the seriousness of the offending, it would be unacceptable for any reoffending to occur. However, the Tribunal is of the view that it is impossible to guarantee that the applicant will never reoffend. The tested evidence before the Tribunal is that the applicant’s risk of reoffending is low. The Tribunal acknowledges that given the magnitude and the seriousness of the offending, any risk is serious; however, on the cumulative evidence, the Tribunal considers the risk to be remote.
The Tribunal has given regard to Mr Newton’s assessment that “fewer than 1% of individuals scoring at this level [reoffend] within five years of release”,[30] and the applicant's rehabilitation has been partly tested in the community – after the applicant stopped his offending in January 2013, he continued to live with the victim and did not reoffend. In this regard, the Tribunal has considered the respondent’s contentions that the applicant only stopped offending because of his daughter’s age, which meant that there was risk of reporting. The applicant’s motive can only be speculated at this stage, but the fact remains that he ceased his offending conduct in January 2013 and has not reoffended since.
[30] Section 501G Documents, G2, p 263.
The Tribunal has also given weight to the fact that the applicant has shown remorse, and this was evident in the course of the hearing. The Tribunal did not get an impression that the applicant was inauthentic or disingenuous in his expression of remorse. He has also engaged in acts of reparation, signing over almost all his assets and savings to his former wife. He gave evidence that his total wealth currently is approximately $10,000.
The applicant has demonstrated a high level of insight and both experts, Mr Machlin and Mr Newton, have found that his fetishist and paedophilic disorders are in remission. The Tribunal is persuaded by the applicant’s submissions that, to the extent there is a risk, it can be managed by the NSW Sex Offender Registration Scheme. As the applicant's offence was against s 66EA of the Crimes Act 1900 (NSW), the applicant committed a ‘class 1’ offence under the Child Protection (Offenders Registration) Act 2000 (NSW) (s 3). The applicant has reporting obligations for 15 years (s 14A). He is required to annually register with police his name, address, work, details of travel outside of New South Wales, his e-mail address, internet services used, and significant interactions with children (ss 9, 10). The applicant must report any change to this information to the Commissioner of Police (s 11). The Tribunal is of the view that the registration on the Offender Registration Scheme is a solid monitoring mechanism, providing added protections.
The Tribunal finds that the aspect relating to the risk to the Australian Community weighs in favour of revocation.
The Tribunal gave significant weight against revocation to the nature and seriousness of the conduct; however, given the factors discussed above in relation to risk, the Tribunal finds that Primary Consideration A must be moderated in favour of revocation.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The applicant accepts that his offending involved family violence.
Paragraph 8.2(1) of the Direction states that the Government has serious concerns about non-citizens who engage in family violence remaining in Australia, and that those concerns are proportionate to the seriousness of the family violence. Paragraph 8.2(3) of the Direction lists four factors which the Tribunal must take into account when considering the seriousness of the family violence engaged in by the applicant, namely, the frequency of the relevant conduct and/or whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, and rehabilitation achieved at time of decision since the person’s last known act of family violence.
On the evidence, the Tribunal is satisfied that the applicant’s offending involved “countless” acts of abuse over a period of more than four years.[31] The sentencing Court suggested an “escalation” in the applicant’s offending.[32] The applicant does not dispute that the offending involved increasing seriousness.[33] The Tribunal is satisfied that the repeated abuse of the kind committed by the applicant causes serious and long-lasting psychological damage to victims. As the sentencing Court noted, the applicant's offending would have been "distressing and confusing" as the victim became older.[34]
[31] Section 501G Documents, G2, p 65
[32] Ibid, p 44
[33] Applicant’s Outline of Submissions, para 23
[34] Section 501G Documents, G2, p 44.
The Tribunal will now consider the rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (Direction 90, sub-paragraph 8.2(3)(c)):
(a)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(b)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(c)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
The respondent has conceded that the evidence before the Tribunal supports a finding that the applicant has accepted responsibility for his offending and demonstrated insight.[35] With respect to the applicant’s understanding of the impact of his behaviour on the victim, the respondent notes the remarks of the sentencing Court that there was no suggestion the applicant was a person “who had the disclosure of this offence hanging over him”.[36] The Tribunal observes that the Court noted that:
There has been a delay of some years since the cessation of these offences. I am satisfied during this period of time there has been considerable rehabilitation by him … To some extent he has had the inherent benefit of rehabilitation. He has also had the benefit, during the period of time between the cessation of the offending behaviour and its disclosure, of being able to live within the community, enjoy being at liberty, conducting his business and receiving the respect of members in his community.[37]
[35] Respondent’s Statement of Facts, Issues and Contentions para 61.
[36] Section 501G Documents, G2, p 51.
[37] Section 501G Documents, G2, pp 51- 52.
In his report dated 27 July 2022, Mr Newton noted that the applicant “continues to show clear remorse and regret for his offending together with insight into its impacts and empathy for the suffering he has caused”.[38] Mr Newton further noted that the applicant is “clear about the effects of his conduct upon his victim and the damage he has caused through his offending”.[39]
[38] Exhibit 6, Supplementary Expert Report of Patrick Newton, 27 July 2022, para 17.
[39] Ibid, para 22.

The Tribunal finds that this consideration weighs in favour of revocation, given the extent to which the applicant accepts responsibility for his conduct and understands the impact of his behaviour. The Tribunal has given weight to the applicant’s rehabilitation as a moderating aspect in the context of the objective seriousness of the applicant’s offending and the harm caused by the offending.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
This consideration is not relevant to the present circumstances.
The Tribunal gives this consideration neutral weight.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are analogous with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The applicant’s contention, that the Tribunal should only give weight to the Government’s views as to the seriousness of the applicant’s offending once[40], was later abandoned. The applicant contended that, should the expectations of the Australian community be given any weight, the relative weight should be moderated by the unique factors in this case: the applicant’s remorse and acts of reparation; his insight; his age; the fact that he has lived in Australia for 52 years; his health; and his likelihood of being homeless in Ireland.[41]
[40] Applicant’s Outline of Submissions, para 22
[41] Ibid, relying on Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [69] – [71], [97], [106] – [109].
The Tribunal is satisfied that the Direction treats the expectations of the community as a separate primary consideration and, despite there being overlap between the community expectations in paragraph 8.4 of the Direction and the protection of the community in paragraph 8.1 of the Direction, the Tribunal needs to consider the seriousness of the offending in the context of community expectations as a separate factor.[42]
[42] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 at [65]-[66].
The Tribunal is satisfied that the Australian community would show abhorrence towards offences of a sexual nature, particularly offences against children who are vulnerable and rely on adults for care and protection. The abhorrence in this case is magnified by the fact that the victim is the applicant’s daughter and that the offending was repeated for a number of years.
Accordingly, the Tribunal gives this consideration weigh against revocation.
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations.
Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called ‘the Refugees Convention’), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above or any obligations accorded by customary international law that are of a similar kind.
The applicant has not made any claims, and there is no evidence before the Tribunal that there are any non-refoulment obligations.
The Tribunal gives this consideration neutral weight.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account, the non-citizen's age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
The applicant has been living in Australia for about 52 years. The evidence shows that prior to his offending, he was a law-abiding citizen and a productive member of society for 37 of those years. He had a business with his former wife and worked in various textile roles for 25 years. The Tribunal accepts the evidence that the applicant considers Australia to be his home and Ireland his place of birth.
In his Statement of 7 July 2022, the applicant noted that he travelled to Ireland on about 10 occasions for short visits, when his mother was still alive and he had a relationship with his siblings. He last visited Ireland in 2014 with his daughter and former wife. His offending conduct has severed friendships and familial connections in both Ireland and in Australia. In Australia, he has a long-term friend, Mr T, with whom he intends to live in case of being permitted to remain in Australia. It is intended that, in case of revocation, the applicant and Mr T would share accommodation and the cost of living. If returned to Ireland, while the applicant accepts that he would receive the pension, he argues that, on his own, the pension would not be sufficient to pay rent and cover basic cost of living.
The Tribunal notes that Mr T’s circumstances are challenging due to his estrangement from his children, and the death of his wife by suicide. Mr T takes anti-depressants and has attempted suicide on two occasions in 2013 and on one occasion in 2015.[43] He is isolated given his estrangement from his daughters and has stated that he will not return to Ireland.[44] Mr T is however the applicant’s most significant support system in Australia or indeed anywhere else.
[43] Section 501G Documents, G2 p 245, at para 6; Exhibit 7, Statement of Al Tierney (unsigned), para 2.
[44] Ibid, p 220, at para 8-10.
The applicant argued that the rise in rental prices in Ireland has triggered an increase in homelessness, with the number of people experiencing homelessness reaching over 10,000 in May 2022[45], and that homelessness can have a negative impact on a person's mental and physical health. The Tribunal accepts the submissions that the negative impact is due to the associated stress, the difficulties in maintaining healthy routines, accessing health care and maintaining a medication regime, and living in environments in which infectious disease are more easily spread.[46]
[45] Press Release, Simon Communities: Simon Communities of Ireland call for Urgent Action on Vacant Properties as Number in Homelessness Passes 10,000 (27 May 2022); Department of Housing, Local Government and Heritage Monthly Homelessness Report May 2022.
[46] Australian Institute of Health and Welfare Health of people experiencing homelessness (7 December 2021); National Health Care for the Homeless Council, Fact Sheet Homelessness and Health: What’s the Connection? (February 2019).
The applicant further argued that his health problems could worsen and that a further decline in his health may make it hard for him to find accommodation, to access health care, and to manage medication. Further, the uncertainty and stress of homelessness could have significant impact on the applicant's mental health. The applicant argued that there is a risk of further decline in his mental health due to the isolation and stress associated with return.
There is before the Tribunal material such as the Irish Residential Tenancies Board Index,[47] noting among other things, that the standardised average rent in new tenancies in Ireland for apartments varied between €1,311 for a one-bedroom apartment, €1,490 for a two-bedroom apartment, and €1,715 for a three-bedroom apartment, and that overall the fourth quarter saw a national annual growth of 9% for rents in new tenancies.[48] A comparison between the cost of living in Australia was provided which shows that the “average cost of living in Australia ($1,963) is 1% less expensive that Ireland ($1,982)”.[49]
[47] Residential Tenancies Board Rent Index, Quarter 4, 2021.
[48] Residential Tenancies Board Rent Index, Quarter 4, 2021, pp 12-13.
[49] Australia vs Ireland – Cost of living Comparison, p 1.
Although the cost of living in Ireland is slightly higher than in Australia, that difference is negligible. However, the rental situation in Ireland presents challenges for the applicant. It is accepted by the parties that the Social Security Agreement between Australia and Ireland provides that if certain conditions are met (e.g. a means test), a person with 35 years’ residence in Australia during “working life”, who is not living in Australia, can be paid a full Australian aged pension. The applicant will therefore be eligible to receive a pension in Ireland through the Social Security Agreement between Australia and Ireland.[50]
[50] Section 501G Documents, G2, pp 168; 560 – 569.
The Tribunal is satisfied that it is likely that the applicant would be entitled to the same level of economic support in Ireland as he would if he were to remain in Australia, through the age pension. However, the central argument put forward by the applicant is that, in Australia, he would share rental and other costs with Mr T, whereas in Ireland, he would have to cover all costs on his own, from his pension which would be about $400 a week. The Tribunal accepts this as being a significant distinguishing factor.
The Tribunal accepts the applicant’s submissions that he could potentially become homeless for a period of time and that, for an elderly person with no family or friends, this would be significant. The Tribunal is satisfied that there would be a significant financial hardship faced by the applicant in case he has to depart Australia. His age and lack of support from family and/or friends would elevate that hardship. Although the applicant has lost many of his friends due to the offending, he has his closest friends, Mr T and Ms C, in Australia, and if the applicant is released, he will be able to secure stable accommodation with Mr T in New South Wales. Ms C also resides in New South Wales.
Moreover, due to his health the applicant faces a significant challenge. The evidence before the Tribunal is that the applicant suffers from multiple ailments including depression, anxiety, stress, cardio complications, macular degeneration, Cauda Equina Syndrome, and adjustment disorder with depressed mood. The applicant has recently been prescribed Venlafaxine, Olanzapine, and Quetiapine in detention.[51]
[51] Ibid, pp 414, 418.
Mr Newton, in his report of 27 July 2022, noted that in case of the applicant’s removal from Australia, it is “almost certain”[52] that the applicant’s symptoms would exacerbate and that he would be “at considerable risk for relapse to a major depressive disorder, and would require the provision of mental-health care to address this condition and contain the risk of impulsive suicidal behaviour”.[53]
[52] Exhibit 6, Supplementary Expert Report of Patrick Newton, 27 July 2022, para 20.
[53] Exhibit 6, Supplementary Expert Report of Patrick Newton, 27 July 2022, para 20.
The applicant reiterated in the course of the hearing that he has suicidal ideation. The Tribunal notes the respondent’s reference to the applicant’s past expressions of self-harm[54] and the respondent’s suggestion that the applicant has been ‘manipulative’, which was rejected by the applicant. The Tribunal considers expressions of self-harm to be serious and ought to be taken in that fashion. The Tribunal is of the view that it would be harsh, particularly given the expert evidence, to conclude that the applicant has been manipulative in the expressions of self-harm. Given Mr Newton’s expert assessment, and on the basis of the evidence as a whole, the Tribunal accepts that in case of removal, there is the risk of self-harm.
[54] Section 501G Documents, G2, pp 442, 446, 455, 459, 464, 467.
The applicant’s age, mental and physical health, limited financial position, and his connections to Australia, lead the Tribunal to conclude that there are significant impediments that the applicant would face if removed from Australia to Ireland.
The Tribunal gives this consideration significant weight in favour of revocation.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Although the Tribunal can speculate, there is no direct evidence before the Tribunal about the impact of a revocation decision on the applicant’s daughter or her mother, or any other person.
Accordingly, the Tribunal gives this consideration neutral weight.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)   less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)     more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has resided in Australia for a substantial period of his life, namely 51 years. The respondent concedes that the applicant has contributed positively to the community for most of that time, approximately 37 years, prior to his offending. He worked, ran a busines with his former wife, paid taxes, and formed friendships. He has however lost many of his friends due to his offending. The applicant has no ongoing contact with his sisters in Ireland. The applicant's brother has declined to help if the applicant returns. The applicant's mother and stepfather have passed away.[55]
[55] Section 501G Documents, G2, p 212.
In oral submissions to the Tribunal, Counsel for the applicant submitted that the applicant only has significant ties in Australia and that he has
fashioned a life that he sees as having social purpose, in Australia, and he doesn’t in Ireland. That distinction is important and it’s from that distinction that the weight given to these considerations rises … the fundamental point that the applicant seeks to make … is he has fashioned a life with some purpose in Australia, living with [Mr T], something he sees as value, supporting [Mr T] … A life that will be stable, and a life that will not involve significant hardship … the same cannot be said about Ireland, a country in which his social connections are atrophied, the remainder being severed by his conduct and where he has hasn’t resided for a number of years.[56]
[56] Transcript of Proceedings, TBQH and Minister for Immigration, Citizenship and Multicultural Affairs, p 95.
The applicant has known Mr T for over 55 years and, as noted earlier, Mr T has mental and physical health challenges. The Tribunal is satisfied that Mr T would be adversely impacted in case of the applicant’s removal from Australia. The respondent accepted that consideration should be given to the applicant's links to Mr T and Ms C, who could experience some emotional hardship if the applicant is removed.

There is no evidence before the Tribunal about the impact of the decision on the applicant's immediate family members in Australia.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh strongly in favour of the revocation of the cancellation decision.
Impact on Australian business interests
There is no evidence that a non-revocation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal gives this consideration neutral weight.
Conclusion
As contemplated by Part 2 of the Direction, primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. Although the applicant’s conduct in his offending is abhorrent, that conduct is not the only consideration. The Tribunal has given the applicant’s conduct significant weight against revocation. However, the hardship that could be suffered by the applicant on removal, his lengthy ties with Australia, low risk of reoffending, his age, his physical and mental health, and risk of suicide, mean that on the balance of all relevant considerations, those matters outweigh the reasons not to revoke.
For those reasons, the Tribunal is satisfied that there is another reason why the original decision to cancel the applicant’s visa should be revoked.
decision
The Tribunal finds that the correct and preferable decision is that the decision under review be set aside and in substitution a decision be made that the original decision to cancel the applicant’s visa be revoked.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes

.................................[SGD].......................................
Associate
Dated: 23 August 2022

Date(s) of hearing: 3 August 2022, 4 August 2022

Counsel for the Applicant: Mr Mathew Kenneally

Solicitors for the Applicant:
Ms Solina Sam, Clothier Anderson Immigration Lawyers

Solicitors for the Respondent: Ms Sophie Roberts, Mills Oakley

[2022] AATA 4975

23 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Date(s) of hearing:	3 August 2022, 4 August 2022
Counsel for the Applicant:	Mr Mathew Kenneally
Solicitors for the Applicant:	Ms Solina Sam, Clothier Anderson Immigration Lawyers
Solicitors for the Respondent:	Ms Sophie Roberts, Mills Oakley