TXQW and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 81

TXQW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 81 (4 February 2025)
Applicant:TXQW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9501

Tribunal:General Member K. Thornton
Place:Melbourne
Date:4 February 2025

Decision:The Tribunal affirms the reviewable decision.

...................[SGD].....................................................
General Member K. Thornton
Catchwords
MIGRATION – cancellation of the Applicant’s ex-citizen visa – 2003 convictions for sexual offences against children – failure to pass good character test – whether the discretion in s 501(2) should be exercised to cancel the Applicant’s visa – Ministerial Direction No. 110 applied – Primary considerations 1, 2, and 5 weigh against Applicant – reviewable decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Brown v Minister for Immigration & Citizenship [2009] FCA 1098
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The Applicant seeks review of the decision of the Respondent to cancel his ex-citizen visa made under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).
The hearing was conducted by video on 28 and 29 January 2025 at the Melbourne registry of the Administrative Review Tribunal (‘the Tribunal’). The Applicant was represented by Ms Angela Julian-Armitage of counsel. The Respondent was represented by Ms Kaylla Theocharous, lawyer, from Clayton Utz. To protect the privacy of the victims in this matter, who were related to the Applicant through marriage, a pseudonym has been applied.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant was born in the Cook Islands and is currently 57 years of age.[1] He first arrived in Australia on 9 July 1990 as a 22-year-old.[2] He was granted a Class TY-444 visa on 3 February 1995.[3]
[1] Exhibit A1 [2].
[2] Exhibit R1, 167.
[3] Ibid 168.
On 26 January 1991, the Applicant was convicted in the Brisbane Magistrates Court of ‘Behave in an indecent manner’ after he was observed by police urinating in public.[4] He was fined $25 and sentenced to 24 hours’ imprisonment.
[4] Ibid 36.
On or about 30 May 2003, the Applicant applied for Australian citizenship which was granted on 23 July 2003.[5]
[5] Exhibit A1 [8].
On 28 November 2003, the Applicant was convicted in the District Court of Queensland at Brisbane for the offences of ‘Indecent treatment of a child between the ages of 12 & 16 years’ (‘the first offence’) and ‘Indecent treatment of a child under 12’ (‘the second offence’).[6]
[6] Exhibit R1, 36.
The first offence was alleged to have taken place between 2 September 1990 and 4 September 1991.[7] The second offence was alleged to have taken place between 6 October 1991 and 8 October 1992.[8]
[7] Ibid 36.
[8] Ibid.
The Applicant was sentenced on each charge to a term of imprisonment of three years to be suspended for three years. The Applicant was required to serve 12 months’ imprisonment on each charge concurrently.[9]
[9] Ibid.
On 2 November 2017, the Applicant’s Australian citizenship was revoked under s 34(2) of the Australian Citizenship Act 2007 (Cth).[10] The Applicant has remained in Australia on an ex-citizen visa since that time.[11]
[10] Exhibit A1 [9].
[11] Exhibit R1, 92.
On 17 June 2022, the Respondent issued the Applicant with a Notice of Intention to Consider Cancellation under s 501(2) of the Act.[12]
[12] Ibid 92-6.
On 17 July 2024, the Respondent issued the Applicant with a second Notice of Intention to Consider Cancellation under s 501(2) of the Act.[13] That Notice stated in part:[14]
By letter dated 17 June 2022, you were notified that consideration would be given to whether to cancel your visa on character grounds under s501(2) of the Migration Act 1958. This notice supersedes that letter, and you have a further opportunity now to comment in relation to the possible cancellation.
[13] Ibid 41-5.
[14] Ibid 41.
In response, the Applicant provided the Department with the following materials:
·Written submissions from ‘Results Migration’ dated 10 July 2024;[15]
·Personal Circumstances Form dated 17 July 2024;[16]
[15] Ibid 71-80.
[16] Ibid 52-70.
Annexed to the Applicant’s written submissions was an Australian Federal Police Digital National Police Certificate dated 24 July 2024, and a Psychological report dated 31 July 2024 from Ms Lynne Rodgers of Open Space Psychology, with an attached GP Mental Health Plan dated 29 May 2024.[17]
[17] Ibid 81-91.
The written submissions dated 10 July 2024 referred to the Applicant’s submissions provided to the Department in response to the 2022 Notice.[18] However, the delegate’s record of decision dated 25 September 2024 notes there was no record of these submissions having been received directly from the Applicant in response to the 2022 Notice.[19]
[18] Ibid 71.
[19] Ibid 21.
On 25 September 2024, a delegate of the Respondent, having found that the Applicant does not pass the character test, made a decision to exercise the discretion under s 501(2) of the Act to cancel the Applicant’s visa (‘the cancellation decision’).[20]
[20] Ibid 16.
The Applicant was notified of this decision on 13 November 2024, and he was taken into immigration detention on this date.[21]
[21] Ibid 165.
On 18 November 2024, the Applicant lodged an application for review of the cancellation decision with the Tribunal.[22]
[22] Ibid 1-11.
LEGISLATIVE FRAMEWORK
Section 501(2) of the Act provides the Minister with a discretionary power to cancel a person’s visa:
(2) 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.
The character test is defined in s 501(6) of the Act. Relevantly, s 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by sub-s (7)).
Section 501(7)(c) of the Act provides that for the purposes of the character test, a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
If a person fails the character test, the Tribunal must then determine whether to exercise the discretion under s 501(2) to cancel the person’s visa, taking into account primary and other considerations.[23]
[23] Brown v Minister for Immigration & Citizenship [2009] FCA 1098 [16].
DIRECTION 110
Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction given under sub-s (1).
On 7 June 2024, the then Minister for Immigration, Citizenship and Multicultural Affairs made such a Direction under s 499 of the Act, being Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’).
Paragraph 5.1(2) of Direction 110 provides that where the discretion to refuse to grant or to cancel a visa is enlivened under s 501(2) of the Act, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) of Direction 110 provides that the purpose of Direction 110 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA of the Act, and that decision-makers must comply with directions made under s 499 of the Act.
Paragraph 5.2 sets out the principles that provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA.
Those principles are:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The 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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2, paragraph 6 provides that a decision-maker must take into account the considerations identified in ss 8 and 9, where relevant to the decision.
Paragraph 8 provides that in making a decision under s 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 provides that in making a decision under s 501(1), 501(2) or 501CA(4), the following other considerations must also be taken into account, where relevant, in accordance with their respective provisions. Those other considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
Paragraph 7 provides guidance in taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other consideration.
(3) One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 28 November 2003, the Applicant was convicted in the District Court of Queensland of Indecent treatment of a child under 12 and Indecent treatment of a child between the ages of 12 and 16. He was sentenced to three years’ imprisonment on each charge, which was suspended for a period of three years. The Applicant was required to serve 12 months’ imprisonment on each count. The sentences for each charge were concurrent.
It is conceded by the Applicant that, as a result of this sentence, he does not pass the character test.[24]
[24] Exhibit A1 [13].
The Tribunal therefore finds that the Applicant does not pass the character test under s 501(6)(a) because he has a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment of 12 months or more.
ISSUE TO BE DETERMINED
The issue to be determined therefore is whether the discretion under s 501(2) of the Act to cancel the Applicant’s visa should be exercised.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal received into evidence the following material:
(a)Exhibit R1: G-documents numbering 168 pages;
(b)Exhibit R2: Respondent’s Statement of Facts, Issues and Contentions dated 17 January 2025;
(c)Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions dated 17 December 2024; and
(d)Exhibit A2: Applicant’s Hearing Bundle comprising:
(i)Statement of the Applicant dated 15 December 2024;
(ii)Statement of the Applicant’s current wife (SB) dated 17 December 2024;
(iii)Psychological report from the Applicant’s psychologist, Dr Freeman, dated 24 July 2022, and Supplementary report from Dr Freeman dated 22 January 2025;
(iv)Statement from the Applicant’s eldest son (SC) dated 17 December 2024;
(v)Statement from the Applicant’s eldest daughter (RA) dated 15 December 2024;
(vi)Statement from the Applicant’s daughter (KC) dated 15 December 2024;
(vii)Statement from the Applicant’s son (JC) dated 15 December 2024;
(viii)Two statements from the Applicant’s ex-wife, one undated, and one dated 16 December 2024;
(ix)Statement from a church elder belonging to the Applicant’s church (RT), undated;
(x)Statement from a church elder belonging to the Applicant’s church (TA), undated;
(xi)Statement from a family friend (MT), undated;
(xii)Letter from the Applicant’s former employer dated 22 July 2022 with attached ATO Notice of Assessments; and
(xiii)Letter and ‘Individualised Fellowship Agreement’ from the Applicant’s church dated 26 July 2022.
The Tribunal also heard oral evidence from the Applicant, his wife, four adult children, his ex-wife, and the two elders from the Applicant’s church.
A consistent theme throughout the Applicant’s oral evidence to the Tribunal, as well as that of his witnesses, was the Applicant’s denial that the criminal offending for which he was sentenced in 2003 ever took place. This is further explored in the considerations below.
PRIMARY CONSIDERATIONS
Primary consideration 1: Protection of the Australian community
Paragraph 8.1 provides:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
In considering protection of the Australian community, the Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had particular regard to the principle that entering or remaining in Australia is a privilege conferred 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.
The Tribunal has also had consideration to the matters listed at paragraph 8.1(2) of Direction 110.
The nature and seriousness of the non-citizen’s conduct to date
Paragraph 8.1.1(1) provides that in considering the nature and seriousness of the non‑citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
e)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
f)     the cumulative effect of repeated offending;
g)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
h)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
i)   where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

The Applicant pleaded guilty in the District Court of Queensland to one count of indecent treatment of a child under 12 (between 6 October 1991 and 8 October 1992) and one count of indecent treatment of a child aged between 12 and 16 years (between 2 September 1990 and 4 September 1991).[25]
[25] Exhibit R1, 36.
The sentencing judge noted that the offences occurred some time ago, which has some relevance to the sentencing exercise because the court had to have regard to sentences at the time, but it was also noted that it took a decade of the victims ‘believing that they had done the wrong thing and not you, before they finally picked up the courage to report the matter’.[26]
[26] Ibid 38.
The sentencing judge noted that there were two pretext telephone calls with the victims during which the Applicant ‘said some really quite incredible things’, by suggesting, for example, the offending (being oral sex with ejaculation in the mouth) was the victim’s idea. The sentencing judge described this as ‘truly despicable’ as the Applicant initially suggested that he did (the offending) as a ‘joke’.[27]
[27] Ibid.
The sentencing judge made the following remarks in relation to the offending:
I'm sentencing you on the basis that you fully understand the impact of this. You have, in effect, along with others, it would seem, ruined their lives. For that you can live with your conscience for the rest of your life, as can your wife, as can the other members of your religious community.
There has been full cooperation with the police and I accept that.
You have four children. Your counsel says they will suffer. That is true. As I said to your counsel, it makes it just so much worse. You would be truly appalled if somebody did it to your children, yet you did it to somebody else who was related to your wife and you and your wife did a cover-up.
These things are coming out and the community will no longer tolerate children being treated in this way.
I am told that you apologised. I don't know whether that's true or not. I don't know whether it is accepted or not.
I am told you said you were evil at the time. I agree with that and the community would agree with that. Indecent treatment of children is evil.
…
There are some aggravating features here. The first is that both girls were young, both were related to you and in a position of trust. One offence involved penetration with the fingers. The other offence involved oral sex and ejaculation in the mouth. These are all serious matters but they must of course be balanced against the fact that you have fully cooperated, you have minimised the trauma to the girls and you have pleaded guilty.
The Applicant and the Respondent agree that the Applicant’s sexual offending against two children is conduct that should be considered as ‘very serious’ in the context of paragraph 8.1.1(1)(a) of Direction 110.[28] The Respondent further contends that there is important context which underscores the seriousness of the Applicant’s offending, being:[29]
(a)One victim complained to someone at the time and no action was taken (that person’s identity is redacted in the sentencing remarks). As noted by the sentencing judge, ‘[t]hat can be a matter for her conscience and yours’;[30]
(b)The offending only came to light a decade after it occurred when the victims ‘finally picked up the courage to report the matter’;[31] and
(c)The pretext phone calls with the Applicant in which the Applicant ‘said some really quite incredible things’ which included suggesting that oral sex with ejaculation in the mouth was the child victim’s idea, and initially suggesting that he did it ‘as a joke’.[32]
Conclusion on the nature and seriousness of the conduct to date
[28] Exhibit A1 [22], Exhibit R2 [18(a)].
[29] Exhibit R2 [20].
[30] Exhibit R1, 38.
[31] Ibid.
[32] Ibid.
In light of the sentencing remarks and the factors identified by the Respondent above, the Tribunal finds that the Applicant’s conduct is to be considered ‘very serious’.[33] Direction 110 states that these types of crimes or conduct are viewed very seriously by the Australian Government and the Australian community.[34]
[33] Direction 110, 8.1.1(1)(a).
[34] Direction 110, 8.1.1(1)(a).
The seriousness of the Applicant’s offending is also reflected in the sentence handed down, being three years’ imprisonment on each count, to be suspended for three years, after serving 12 months’ imprisonment concurrently.[35]
[35] Exhibit R1, 40.
The Tribunal has had regard to the impact of the offending on the victims.[36] The sentencing judge noted that the Applicant’s offending had ‘ruined their lives’.[37]
[36] Direction 110, 8.1.1(1)(d).
[37] Exhibit R1, 39.
There is no question that the Applicant’s conduct is to be considered ‘very serious’ and the Tribunal makes this finding.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction 110 provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal has had 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(1)). The Tribunal considers that this is a case where, if the conduct and the harm were to be repeated, it is so serious that any risk it may be repeated is unacceptable.[38] As noted by the sentencing judge, the Applicant ‘ruined the lives’ of his child victims.[39] If the same conduct were to be repeated by the Applicant, it would have the potential to seriously harm future victims and their families. The Tribunal has had regard to the nature of the harm to individuals and the Australian community should the Applicant engage in further criminal or other serious conduct.
[38] Direction 110, 8.1.2. (1).
[39] Exhibit R1, 39.
In regard to the likelihood of the Applicant engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b)), the Tribunal has taken into account information and evidence on the Applicant’s risk of reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence. In doing so, the Tribunal has had regard to the Applicant’s maintenance of innocence, the role the Applicant’s church has played in his rehabilitation and the expert reports of the Applicant’s psychologist, Dr Freeman and Dr Rodgers. Each of these is addressed in turn.
Applicant’s maintenance of innocence
During the course of his oral evidence to the Tribunal, the Applicant maintained he was innocent of the offences to which he pleaded guilty. His evidence was that he only pleaded guilty because of ‘financial reasons’ and because his lawyer at the time told him he would receive a lighter sentence if he did so. The Applicant was steadfast in his maintenance of innocence during examination-in-chief and during cross-examination.
In regard to the pretext phone calls, the Applicant said he was ‘shocked’ to receive those calls and he made a joke to the victims. He maintained that there were language barriers between him and his lawyers, and that he didn’t mean to imply that sexual offending against children was a ‘joke’.
The Applicant admitted he was guilty of the earlier charge of Behave in an indecent manner, but completely denied the sexual offending.
The Tribunal notes that the Applicant’s maintenance of innocence is at odds with his written statement to the Tribunal in which he stated that in his young age he ‘made some wrong choices’ and is ashamed to admit that ‘my actions have likely had significant impacts on the girls and for that I am very sorry’.[40]
[40] Exhibit A2, Statement of the Applicant dated 15 December 2024, p 6.
The Applicant also stated that during that time in his life he was ‘making many bad choices, drinking, smoking and not putting my family first above my selfish ways’.[41] He says he lives in fear ‘everyday’ that his boss will do a police check and find out his past.[42]
[41] Ibid.
[42] Ibid.
He goes on to state that he ‘made mistakes’ over 30 years ago, but since that time his life has been completely turned around and he is no longer the same person.[43]
[43] Ibid.
The Tribunal considers that these conflicting accounts are relevant to the question of the Applicant’s risk and rehabilitation. The Respondent submits that the Applicant has demonstrated limited remorse.[44] The Tribunal agrees with this submission. The Tribunal notes that despite the earlier plea of guilty to the offending, the full cooperation with police, alleged apology to the victims, payment of compensation to the victims, and conceding that he ‘was evil at the time’, his maintenance of innocence (both in his earlier submission to the Department in July 2024, and during his oral evidence to the Tribunal) is reflective of this limited remorse. The Tribunal’s finding that the Applicant has demonstrated limited remorse is relevant to the question of the Applicant’s risk because in the Tribunal’s view the Applicant has not fully taken responsibility for his offending conduct and has in fact denied it ever took place.
[44] Exhibit R2 [21].
The Tribunal of course cannot go behind the Applicant’s convictions nor the essential findings of fact upon which he was convicted and sentenced.[45] The Applicant’s counsel conceded that this was so during her closing submissions, but nonetheless invited the Tribunal to consider the Applicant’s reasons for his plea of guilty in the context of his evidence that he was experiencing financial pressure at the time and agreed to plead guilty to receive a reduced sentence.
[45] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
The Tribunal has taken note of the Applicant’s maintenance of innocence and his explanation for his plea of guilty, but the Tribunal cannot go behind the fact of the Applicant’s conviction and sentence for these offences. In those circumstances, the Tribunal finds that the Applicant has demonstrated limited remorse and insight into his offending behaviour.
Role of the Applicant’s church in his rehabilitation
The Applicant called character evidence from two church elders (RT and TA) who gave largely consistent evidence that they believed the Applicant was innocent of these crimes. TA gave evidence that the Applicant was a good man who is dedicated and passionate about his role as an assistant leader in the church.[46] RT gave evidence that the Applicant is of ‘good character’ and is always helping people in his church and local community.[47]
[46] Exhibit A2, Statement from a church elder belonging to the Applicant’s church (TA), undated, p 1.
[47] Exhibit A2, Statement from a church elder belonging to the Applicant’s church (RT), undated, p 1.
The Applicant also provided evidence that he signed an ‘Individualised Fellowship Agreement’ with his church in July 2022.[48] The Fellowship Agreement states that it is ‘made primarily to reduce and minimise the risk to children, young people, and vulnerable people, and is a requirement under the Local Church Policy …’[49] Further, ‘[t]he Fellowship Agreement is to provide generic risk management and accountability standards for safe ministry to a person who is known to have a history of a sexual offence and is deemed to be of low risk of reoffending’.[50]
[48] Exhibit A2, Individualised Fellowship Agreement, pp 3-4.
[49] Ibid 1.
[50] Ibid.
The Applicant’s church also provided a letter which confirmed that they were aware of the Applicant’s offending, and offered the Applicant a ‘low-risk Fellowship Agreement’ which is offered to individuals ‘that have shown compliance with the process and have been determined to be of a low-risk of reoffending’.[51] The letter doesn’t state the basis on which the church has reached this finding, only that it was based on documentation gathered by the Applicant.[52]
[51] Exhibit A2, Letter from Applicant’s church, dated 26 July 2022, p 1.
[52] Ibid.
The Tribunal has taken the material and the evidence of RT and TA into account in regard to the likelihood of the Applicant reoffending. The Tribunal finds that the church elders are supportive of the Applicant and have put in place measures to ‘reduce and minimise risk to children’.[53] The Tribunal finds that this evidence, on its face, is evidence of a somewhat reduced risk of reoffending, as it appears the signing of the Individualised Fellowship Agreement by the Applicant was voluntary, and the demonstrated compliance with the process led to a determination by the church that the Applicant was of ‘low-risk’.[54] The Applicant appears to be acknowledging his past behaviour by signing an agreement that would limit his access to children within the church environment. The Tribunal finds that this evidence is in the Applicant’s favour and reduces his overall likelihood of reoffending.
Expert evidence
[53] Exhibit A2, Individualised Fellowship Agreement, p 1.
[54] Exhibit A2, Letter from Applicant’s church, dated 26 July 2022, p 1.
The Applicant’s psychologist, Dr Freeman, provided two expert reports (dated 24 July 2022 and 22 January 2025) to the Tribunal. In the July 2022 report, Dr Freeman states that the Applicant pleaded guilty at the time due to legal advice in order to reduce the financial costs of representation and to receive a reduced sentence.[55] Dr Freeman reports that the Applicant acknowledged providing a statement to police (thereby accepting culpability) but has always maintained a stance of innocence to family and friends.[56]
[55] Exhibit A2, Report of Dr Freeman dated 24 July 2022, p 2 [2.3].
[56] Ibid.
The Applicant also told Dr Freeman that during his incarceration, he consistently abided by the conditions of the custodial environment and was not directed to engage in any core correctional interventions.[57] He reported participation in a range of vocational courses (such as welding and powder coating).[58] The Applicant also reported paying $20,000 compensation to each of the complainants.[59]
[57] Ibid, p 2 [3.3].
[58] Ibid.
[59] Ibid, p 2 [3.4].
Dr Freeman’s report states that the Applicant presents with symptoms consistent with an adjustment disorder, with anxious distress.[60] He states that the Applicant presents with functional levels of intelligence with sufficient insight/self-awareness.[61]
[60] Ibid, p 4 [10.2]-[10.3].
[61] Ibid, p 4 [10.4].
Dr Freeman administered various risk assessment tools to calculate the Applicant’s risk of reoffending.[62] The Applicant’s results on these risk assessment tools consistently fell into the ‘low-risk’ category.[63] This, coupled with the Applicant’s prosocial goals and focus on his stable relationship with his wife, his employment, faith, and familial bonds, led Dr Freeman to conclude that the Applicant’s risk of reoffending can be considered in the ‘low’ category.[64] As a result, Dr Freeman concluded that his ‘forensic psychological assessment did not reveal any clear criminogenic treatment needs or outstanding risks’.[65]
[62] Ibid, pp 6-8 [12].
[63] Ibid.
[64] Ibid, pp 8-9 [14.2], [15.3].
[65] Ibid, p 9 [15.6].
These findings were also reflected in the 2024 report which again placed the Applicant in the low-risk category for sexual recidivism.[66]
[66] Exhibit A2, Supplementary report of Dr Freeman dated 22 January 2025, p 5 [10.3].
Ms Lynne Rodgers, psychologist, also provided an expert report dated 31 July 2024.[67] Ms Rodgers stated that the Applicant presented with an adjustment disorder with mixed anxiety and depressed mood.[68] Ms Rodgers was of the view that the Applicant’s current anxiety and depressed mood is precipitated by and maintained by his uncertain immigration status.[69] Ms Rodgers noted that the Applicant does not display any evidence of anti-social or violent ideation or behaviour, or sexually violent or paedophilic ideation, intention or behaviour.[70]
[67] Exhibit R1, 82-7.
[68] Ibid 82.
[69] Ibid.
[70] Ibid 87.
The Tribunal takes note of the expert evidence in this regard and agrees with the findings that the Applicant is at a low risk of reoffending.
Conclusion on risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk, the Tribunal has had regard to the cumulative nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct, and it makes a finding that any risk that the conduct may be repeated is unacceptable. The Tribunal makes a finding that while the Applicant’s risk of reoffending is low, the Tribunal considered should the conduct be repeated, the harm that would be caused is so serious that any risk that it may be repeated is unacceptable.
The Applicant contends that the Applicant’s risk of reoffending is ‘extremely low’ and that the Applicant has lived and worked in the community for over 30 years (except for the period of incarceration) without any risk of harm to the Australian community.[71] The Respondent submits that there remains a risk, albeit a low one, that the Applicant may reoffend in the future.[72] The Respondent contends that primary consideration 1 ought to weigh strongly in favour of the cancellation of the Applicant’s visa.[73]
Conclusion on primary consideration 1
[71] Exhibit A1 [24].
[72] Exhibit R1 [45].
[73] Ibid [46].
The Tribunal has taken into account the matters described above and has also taken note that primary consideration 1 is generally to be given greater weight than other primary considerations.[74]
[74] Direction 110, 7.2(2).
The Tribunal finds that the nature and seriousness of the conduct is very serious. The Tribunal also finds that the Applicant is at a low risk of reoffending, however the Tribunal is of the view that were the Applicant’s conduct and the harm that would be caused repeated, it would be so serious that any risk it may be repeated is unacceptable.
The Tribunal finds that this primary consideration weighs strongly in favour of exercising the discretion to cancel the Applicant’s visa.
Primary consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of Direction 110 states:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; 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, noting that the absence of a warning should not be considered to be in the non‑citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

‘Family violence’ is defined in paragraph 4(1) of Direction 110 to include ‘an assault’ or ‘a sexual assault or other sexually abusive behaviour’ of a family member.[75]
[75] Direction 110 4(1)(a), (b).
The Applicant’s sexual offending was perpetrated against two child victims to whom he was related by marriage.[76] The Applicant agreed in closing submissions that the offences necessarily must be considered family violence, because the alleged victims were related to the Applicant by marriage. However, the Applicant maintained he is innocent of the charges, and therefore denied having committed family violence of any kind.[77] The Respondent contends that notwithstanding the victims were not part of his immediate family, his access to them was facilitated through his familial relationships, and this would satisfy the definition of family violence.[78]
Conclusion on primary consideration 2
[76] Exhibit R1, 75.
[77] Ibid.
[78] Exhibit R2 [51].
The Tribunal agrees with the Respondent’s contention in this regard and makes a finding that the offending conduct constitutes family violence. The Applicant was related to the victims by marriage. They were, at the time, the nieces of his then wife.[79]
[79] Exhibit R1, 75.
In considering the seriousness of the family violence engaged in by the Applicant, the Tribunal has considered the factors at paragraph 8.2(3) of Direction 110. The Tribunal has considered the seriousness of the conduct, and its cumulative effect on the victims. As noted by the sentencing judge, the Applicant’s offending would have the effect of ruining the victims’ lives.[80]
[80] Ibid.
The Respondent contends that in circumstances where the Applicant has committed family violence against two young victims, and that this offending is characterised as very serious, this primary consideration weighs strongly in favour of exercising the discretion to cancel the Applicant’s visa.[81]
[81] Exhibit R2 [56].
The Tribunal agrees with this contention. The nature of the family violence perpetrated by the Applicant is abhorrent. The offending conduct has been characterised by this Tribunal as very serious. Direction 110 states that the Government has serious concerns about conferring on non-citizens the privilege of entering or remaining in Australia, and that these concerns are proportionate to the seriousness of the family violence engaged in by the non‑citizen.[82] Given the Tribunal’s findings regarding the seriousness of the family violence perpetrated by the Applicant, the Tribunal finds that this primary consideration weighs strongly in favour of exercising the discretion to cancel the Applicant’s visa.
[82] Direction 110 8.2(1).
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 110 states:
(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 on a permanent basis since 1990, arriving as a 22‑year‑old.[83] He has four adult children with his ex-wife (two sons and two daughters), and 11 grandchildren, all of whom reside in Australia.[84]
[83] Exhibit R1, 167.
[84] Exhibit A1 [25]-[26].
The Applicant is married to his current wife (SB) and is step-father to three adult step‑daughters. The Applicant also has one step-grandchild.[85]
[85] Ibid [26].
The Applicant’s wife, his ex-wife, and four adult children all gave evidence in support of the Applicant.
The Applicant’s wife’s gave evidence that she relies heavily on the Applicant for not only love and emotional support, but also practical and financial support.[86] She is a self‑employed midwife and is ‘on-call 24/7’ and often has to travel large distances, and often in the middle of the night, to attend to births.[87] She stated that often the Applicant has travelled long distances to pick her up if she is too tired to drive, or to deliver supplies she may require.[88] SB also gave evidence that she and the Applicant had planned for SB’s elderly mother to reside with them due to her failing ill-health. SB’s evidence was that because she is often required to be away from home for extended periods of time, and in those circumstances, she would rely on the Applicant to assist in providing care to SB’s mother.
[86] Exhibit A2, Statement of Applicant’s wife (SB), p 1.
[87] Ibid, p 8.
[88] Ibid, p 1.
SB also gave evidence that the withdrawal of the Applicant’s practical and emotional support due to his being in immigration detention has caused her depression and anxiety and that she worries about their future.[89] SB expressed grave concern about adjusting to life without the Applicant’s support, and how this might ultimately affect their plans for her mother to reside with them.
[89] Ibid, p 6.
The Applicant’s ex-wife (MA) also gave evidence in support of the Applicant and described the Applicant as her ‘best friend’. She said that she and the Applicant have always been close, especially when it comes to providing care and support for their children and grandchildren. MA is legally blind and gave evidence that the Applicant provides practical assistance to her. MA stated that her children enjoy seeing her and the Applicant together and that this relationship is an important familial bond in their children’s lives.[90]
[90] Exhibit A2, Statement of the Applicant’s ex-wife, undated, pp 1-2.
The Applicant’s four adult children also gave evidence in support of their father. The eldest son (SC) gave evidence that the Applicant provides emotional, practical and financial support to him and his four children (the Applicant’s grandchildren).[91] SC’s evidence was that the Applicant plays an important and vital role in his life and that of his own children and he can’t imagine his father (the Applicant) not being around. The Applicant’s eldest daughter (RA) gave evidence consistent with SC; that her father provides emotional, practical and financial support to her and her two children. RA gave evidence that she is a single mother and as such the Applicant has stepped in to provide whatever support he can to her and her children.[92] RA also gave evidence that one of her children has a disability, and that the Applicant’s love and support of her and both her children is everything.[93] The Applicant’s youngest daughter (KC) gave evidence that she is also a single mother, has one child, and currently resides with her mother (being the Applicant’s ex-wife).[94] KC gave evidence that her child sees the Applicant as a father figure in her life and has regular contact with him.[95] Again, KC relies on the Applicant for emotional, practical and financial support. The Applicant’s youngest son (JC) gave evidence that he is the father of three children and that he also relies on the Applicant’s guidance and support.[96] JC described the Applicant as someone who has always been there for the family, and it would be ‘life shattering’ if his father were to be removed from Australia.[97]
[91] Exhibit A2, Statement of the Applicant’s eldest son (SC) dated 17 December 2024, pp 1-2.
[92] Exhibit A2, Statement of the Applicant’s eldest daughter (RA) dated 15 December 2024, pp 1-4.
[93] Ibid, p 3.
[94] Exhibit A2, Statement of the Applicant’s daughter (KC) dated 15 December 2024, pp 1-11.
[95] Ibid, p 10.
[96] Exhibit A2, Statement of the Applicant’s son (JC) dated 15 December 2024, pp 1-3.
[97] Ibid, 2.
In terms of other ties, it is noted that the Applicant has worked consistently since his arrival in Australia, including working for one employer for approximately 10 years in infrastructure as a Specialist Team Member.[98] The Applicant took a redundancy from that employer in June 2003 in order to pay his legal fees in relation to the criminal offending.[99]
[98] Exhibit A1 [27], Exhibit A2, Letter from Applicant’s former employer dated 22 July 2022.
[99] Exhibit A1 [27].
Prior to immigration detention, the Applicant had a full-time job as a welder, and, according to his evidence, he is able to return to that employer should he be released into the community.[100] The Tribunal notes that the Applicant has not provided any corroborative evidence in this regard in the forms of letters or other material from this employer, but nonetheless accepts the Applicant’s oral evidence in this regard.
[100] Ibid [31].
The Applicant is also a longstanding and active member of his local church.[101] The Applicant gave evidence to the Tribunal that his role in the church is to arrange the set-up on the weekends, assist with the IT, and ensure that the church service runs smoothly, amongst other tasks. He gave evidence that he works closely with the church elders and assists with any tasks that need doing.
[101] Ibid [28].
Ms Rodgers, psychologist, stated in her expert report that the Applicant would experience extreme psychological distress in the ‘forced separation’ from his wife, his community and his employment should he be removed from Australia.[102] In Ms Rodgers’ view there would be additional negative consequences for his wife, family and community.[103]
[102] Exhibit R1, 87.
[103] Ibid.
In closing, the Applicant’s representative described the strength, nature and duration of the Applicant’s ties to Australia as ‘incredibly strong’ and that those ties are sufficient to be afforded strong weight in the Applicant’s favour.
The Respondent accepts that this primary consideration should be afforded some weight in the Applicant’s favour, but it is outweighed by primary considerations 1, 2 and 5.[104]
Conclusion on primary consideration 3
[104] Exhibit R2 [69].
The Tribunal has considered the impact of the decision on the Applicant’s immediate family and the strength, nature and duration of his other ties to the Australian community. The Tribunal concludes that the Applicant’s immediate family would be significantly impacted if he were to be removed from Australia. The Tribunal notes that the Applicant arrived in Australia on 9 July 1990, and that his sexual offending commenced shortly thereafter, on or about 2 September 1990.[105] Paragraph 8.3(2)(a)(i) of Direction 110 provides that less weight should be given where the non-citizen began offending soon after arriving in Australia. The Tribunal also notes that the Applicant has otherwise not been convicted of any further offending in the 21 years since he was sentenced for the current offences. The Tribunal considers that the strength, nature and duration of his other ties to the Australian community is strong and weighs in the Applicant’s favour.
[105] Exhibit R1, 36.
In conclusion, the Tribunal considers that primary consideration 3 weighs in the Applicant’s favour. The Tribunal has considered the weight to be afforded to this primary consideration, as against the other primary and other considerations. The Tribunal notes that primary considerations are generally to be afforded greater weight than the other considerations according to paragraph 7.2(2) of the Direction. Although the Tribunal has decided that this primary consideration weighs in the Applicant’s favour, it does not outweigh primary considerations 1, 2 and 5 which strongly support the exercise of the discretion to cancel the Applicant’s visa.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction 110 states:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has 11 minor grandchildren in Australia, and one minor step-grandchild.[106] Each of the Applicant’s four adult children gave written and oral evidence to the Tribunal that the Applicant has a close bond to all of his grandchildren.
[106] Exhibit A1 [32].
In regard to four of the minor grandchildren, the Applicant also plays a parental role in their life as the fathers of those children are absent. One of these children has a disability, and the Applicant has provided additional emotional and practical support to this child by keeping up to date on medical appointments, and otherwise taking an active interest in the child’s development.[107]
[107] Exhibit A2, RA’s statement dated 15 December 2024, p 3.
The Tribunal accepts that the nature of the Applicant’s relationship with his minor grandchildren and step-grandchild is close, and that the Applicant plays an important role in each of their lives. The Applicant gave evidence that prior to being detained, he visited his grandchildren every weekend and that they usually talk by phone on a daily basis. Since being detained, the Applicant gave evidence that they try and visit every week and speak on the phone daily. Although the relationship between the grandchildren of the Applicant is non-parental, the Tribunal accepts that the Applicant plays an important role in their lives, especially in the lives of the four grandchildren of his adult daughters.
The ages of the grandchildren range from 15 years to 9 months old. The Applicant’s eldest son (SC), who is the father of four of the grandchildren, stated that the Applicant ‘is the cornerstone of our family’ and that he has been a ‘constant, unwavering presence in their lives’. SC states that his older children especially ‘rely on him for guidance, affection, and a safe haven in moments of uncertainty’. SC asked the Tribunal to consider the emotional, developmental, and psychological impact that a decision to cancel the Applicant’s visa would have on his children, and that the ‘loss of their grandfather will leave a void that cannot be filled, and I fear for their well-being in ways words can barely express’.
The Applicant’s eldest daughter (RC) is the mother of three children. RC describes the bond with her daughter as ‘unbreakable’ and that he is the greatest father a daughter could ask for. RC also described the Applicant’s relationship with her second child (who has a disability) as close and that the bond the Applicant shares with this child is the ‘missing piece’. Finally, RC described the Applicant’s bond with her third child. RC stated that the Applicant willingly stepped in and provided practical and financial support to her and her three children. RC now lives with her current partner but describes how the Applicant still provides support to the family.
The Applicant’s youngest daughter (KC) is a single mother to one child and lives with her mother (the Applicant’s ex-wife). KC says that her child sees the Applicant as a father figure. She states that her child rings the Applicant every night to share her days at school. KC said her child is heartbroken that the Applicant is not currently present in their lives.
The Applicant’s youngest son (JC) is the father of three children. JC states that his children love and respect the Applicant. JC said his children have much to learn from his father (the Applicant) and if the Applicant is removed from Australia the effect on his children will be life shattering. JC states that the Applicant plays a big role and is involved in their lives, upbringing and traditions.
The Applicant’s ex-wife also gave evidence that she is blessed to have the Applicant as a father to her children, and grandfather to their grandchildren, because of his loving and caring role.[108] She said the Applicant performs a loving and nurturing role in her grandchildren’s life, but especially with the grandchild that lives with her because he fulfills a fatherly role, and their adult daughter (the child’s mother) is a single parent.[109]
[108] Exhibit A2, Statement of Applicant’s wife (SB), p 3.
[109] Ibid.
The Applicant’s current wife (SB) stated that the Applicant provides stability and a sense of security for his grandchildren. She describes the relationship with her own children and grandchild, and states that she made the decision to not tell her children or family the reason the Applicant was in gaol but that they are aware he was in gaol. SB’s evidence placed more emphasis on the Applicant’s relationship with his biological grandchildren, rather than his step-grandchild. In considering the factors at paragraph 8.4(4) of Direction 110, the Tribunal finds that the best interests of the step-grandchild would be less affected by a decision to cancel the Applicant’s visa.
Conclusion on primary consideration 4
In terms of the best interests of the Applicant’s biological grandchildren, the Tribunal considers that they would be significantly affected by a decision to cancel the Applicant’s visa. The Respondent agrees that the Applicant’s grandchildren would be emotionally impacted by a decision to cancel the Applicant’s visa but says in circumstances where the Applicant is not the primary caregiver to any of the grandchildren, and where those grandchildren would be able to maintain contact by other means, any adverse impact should afforded moderate weight.[110] The Applicant contends that his separation from the grandchildren would have a devastatingly negative impact on them. The Applicant invited the Tribunal to place heavy weight on this primary consideration in the Applicant’s favour and submitted that the weight afforded to this primary consideration, and primary consideration 3, should outweigh any weight to be afforded to primary consideration 1.
[110] Exhibit R2 [78].

The Tribunal has considered the best interests of the Applicant’s grandchildren and step-grandchild. The Tribunal finds that the Applicant’s biological grandchildren would be significantly affected by a decision to cancel the Applicant’s visa. The Tribunal finds that the step-grandchild would still be affected, but to a much lesser extent than his biological grandchildren.
The Tribunal has considered the unique circumstances of the Applicant’s minor grandchildren, especially where the Applicant is said to play a parental role in their lives. The Tribunal considers that a decision to exercise the discretion to cancel’s the Applicant’s visa would adversely affect the Applicant’s biological grandchildren. This primary consideration is given significant weight in favour of not exercising the discretion to cancel the Applicant’s visa. However, to the extent that this primary consideration is given significant weight, the Tribunal does not consider it outweighs the primary considerations 1, 2 and 5 which are in favour of exercising the discretion to cancel the Applicant’s visa.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 provides that:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of 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 this 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.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) 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.
As submitted by the Respondent, the expectations of the Australian community are to be applied normatively.[111] The expectations of the Australian community are to be determined by reference to the Direction itself, rather than by an independent assessment to be conducted by the Tribunal.[112]
[111] Exhibit R2 [81].
[112] Exhibit R2 [81] citing FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Applicant submits that he is a law-abiding person who has respected the laws of Australia and contributed greatly to his church, his family, and any person in need that he comes across.[113] It is submitted that he ‘may have made poor choices in the earlier part of his residence in Australia’, but that he has clearly ‘turned his life around’, and that he has lived in the Australian community for 32 years without posing any risk.[114] The Applicant contends that the Australian community would afford the Applicant a higher level of tolerance.[115]
[113] Exhibit A1 [39].
[114] Ibid.
[115] Ibid [42].
The Respondent contends that the Australian community would expect the Applicant’s visa to be cancelled, given the seriousness of the Applicant’s offending.[116] The Respondent submits that this consideration weighs against the Applicant.[117]
Conclusion on primary consideration 5
[116] Exhibit R2 [82].
[117] Ibid.
The Tribunal has considered the expectations of the Australian community as set out in primary consideration 5. There is no question that the Applicant has engaged in serious conduct in breach of these expectations. The Tribunal considers that although the Applicant may be at a low risk of reoffending, any risk that he may reoffend is unacceptable. The Australian community would expect the Government to not allow such a person to remain in Australia.
The Tribunal has had regard to the matters raised at paragraph 8.5(2) of Direction 110. The nature of the offences of which the Applicant has been convicted is such that the Australian community would expect such a person to not continue to hold a visa. Paragraph 8.5(2) of the Direction specifically identifies certain conduct by which the Australian community would expect that the Australian Government can and should refuse entry to non-citizens or cancel their visas. That conduct includes acts of family violence (8.5(2)(a)) and commission of serious crimes against women, children or other vulnerable members of the community (8.5(2)(c)). Direction 110 provides that ‘serious crimes’ in this context includes crimes of a violent or sexual nature.
Paragraph 8.5(3) provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Therefore, despite the finding that the Applicant is at a low risk of reoffending, the expectations as enunciated in Direction 110 apply regardless.
Finally, paragraph 8.5(4) provides that primary consideration 5 is about the expectations of the Australian community as a whole, and that decision-makers should proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
In this case, the Applicant submitted that the Australian community would afford him a higher level of tolerance, given his lengthy history of living and working in the community without further criminal offending. However, in the Tribunal’s view, to do so would be in breach of the requirements of paragraph 8.5(4) of the Direction. The Tribunal is required to consider the community’s expectations as set out in the Direction and is not permitted to independently assess the community’s expectations in the Applicant’s case.
The Tribunal has had regard to the expectations of the Australian community as a whole, and as articulated on the basis of the Government’s views in the Direction. The Tribunal finds that the Australian community would expect that the Applicant, having been convicted of serious crimes against children, would have his visa cancelled. The Tribunal makes this finding regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
The Tribunal finds that this primary consideration weighs in favour of exercising the discretion to cancel the Applicant’s visa. The Tribunal gives this primary consideration more weight than primary considerations 3 and 4 which are in the Applicant’s favour. This is because the seriousness of the Applicant’s offending is such that the Australian community would expect that the Applicant’s visa be cancelled, despite the strength, nature and duration of ties, and the best interests of the minor grandchildren in the Applicant’s life.
OTHER CONSIDERATIONS
Paragraph 9(1) provides that:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    legal consequences of the decision;
b)    extent of impediments if removed;
c)    impact on Australian business interests.
Paragraph 7(2) of Direction 110 provides that primary considerations should generally be given greater weight than the other considerations.
Legal consequences of decision under s 501 or 501CA
Paragraph 9.1 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section. This other consideration also provides that s 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non‑citizen.
The other consideration then goes on to consider non-citizens who are covered by a protection finding (as defined in s 197C of the Act), and those who are not.
Neither party has raised any claims in relation to this other consideration. There is no evidence that the Applicant is subject to a protection finding. This other consideration is not relevant to the Tribunal’s decision. As such the Tribunal gives this other consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 provides:
(1) Decision-makers must consider the extent of any impediments that the non‑citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen’s age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
The Applicant is a 57-year-old citizen of New Zealand.[118] In terms of health, a letter from his GP dated 29 May 2024 indicates that the Applicant suffers from calcific tendonitis and degenerative disc disease.[119]
[118] Ibid [86].
[119] Exhibit R1, 88.
In addition, Dr Freeman and Ms Rodgers have each diagnosed the Applicant with an adjustment disorder with mixed anxiety and depressed mood.[120]
[120] Exhibit A2, Report of Dr Freeman dated 24 July 2022, p 4 [10.3], Exhibit R1, 82.
The Applicant has not provided any evidence that he would face substantial language or cultural barriers if he were returned to New Zealand or the Cook Islands. The Tribunal notes that the Applicant arrived in Australia as a 22-year-old so he has therefore spent his formative years overseas.
It can be expected that the Applicant would have access to the same medical treatment as other citizens of New Zealand or the Cook Islands. The Applicant has provided no evidence to the contrary.
The Applicant has submitted he has concerns regarding his ability to financially and mentally start a whole new life without the support of his wife and children.[121] The Applicant reports he has limited contacts in the Cook Islands, and notes that most of his family reside in Australia. The Applicant however noted in his Personal Circumstances Form that he has many relatives in New Zealand and the Cook Islands, including siblings who reside in both New Zealand and the Cook Islands.
[121] Exhibit R1, 67.
The Respondent submits that the Applicant would be able to use his experience in welding to find work if removed from Australia.[122] During cross-examination, the Applicant told the Tribunal he has various licences including a forklift licence, a scissor-lift licence, and other relevant skills.
[122] Exhibit R2 [90].
The Respondent acknowledged that the Applicant would suffer emotional and sentimental difficulties if removed from Australia.[123] The Tribunal agrees with the Respondent in this regard, and also acknowledges the practical and financial hardship the Applicant would suffer if the Applicant were removed from Australia. However, the Tribunal is also of the view that any hardship would be temporary and that, with family support, the Applicant would be able to re-establish himself as necessary.
[123] Exhibit R2 [91], citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3].
The Tribunal accepts that the Applicant will face some impediments if removed from Australia. The Tribunal gives this other consideration moderate weight in the Applicant’s favour. The weight afforded to this other consideration is not outweighed by the weight afforded to primary considerations 1, 2 and 5 which are in favour of exercising the discretion to cancel the Applicant’s visa.
Impact on Australian business interests
Paragraph 9.3 provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant claims this other consideration is relevant to his circumstances. The Applicant relies upon the practical and financial support he offers his current wife in conducting her midwifery practice.[124] The support offered to her includes maintaining her motor vehicle, ensuring her safety when she drives long distances, and running their household in her absence.[125] The Applicant’s wife has expressed the financial and emotional burden the Applicant’s detention has had on her business, in particular, the added financial burden to maintain their property whilst still providing financial support to the Applicant’s children.[126] The Applicant claims that this impact is exacerbated by her physical issues, such as fatigue and arthritis, and her mental health issues regarding her concerns about maintaining the household, her business and caring for family members should the Applicant be removed from Australia.[127]
[124] Exhibit A1 [44].
[125] Ibid.
[126] Ibid.
[127] Ibid [45].
The Respondent contends that there is no evidence that the Applicant’s removal from Australia would impact on any Australian business interests, or significantly compromise the delivery of a major project or important service in Australia.[128]
[128] Exhibit R1 [94].
The Tribunal has considered the Applicant’s claims and determined that the claims do not meet the requirements of paragraph 9.3 of Direction 110 in regard to impacting ‘Australian business interests’, nor ‘significantly compromising the delivery of a major project, or delivery of an important service in Australia.’
The Applicant is not employed by his wife, so there is an absence of an employment link. Even if the Applicant was employed by her, there is no evidence that a decision under s 501(2) to cancel the Applicant’s visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal finds that this other consideration does not apply to the Applicant’s circumstances.
Accordingly, The Tribunal has afforded this other consideration neutral weight in the balancing exercise.
Other considerations
In regard to other considerations, the Applicant’s written submissions raise the unlikelihood of the Applicant’s wife being unable to join him overseas if he was removed from Australia.[129] It is submitted that the Applicant’s wife would need to remain in Australia to care for her elderly mother.[130]
[129] Exhibit A1 [46].
[130] Ibid.
The Tribunal has accepted in regard to primary consideration 3 that there would be impact on the Applicant’s family members, including his wife, who reside in Australia. The Tribunal has already afforded weight in favour of the Applicant in regard to that other consideration. To the extent it is raised again as an ‘other consideration’, the Tribunal gives it limited weight in the Applicant’s favour.
CONCLUSION
The Applicant does not pass the character test. The issue the Tribunal therefore needs to determine is whether to exercise the discretion under s 501(2) of the Act to cancel the Applicant’s visa. The Tribunal has applied Direction 110 to the specific circumstances of the Applicant’s case. The Tribunal finds there is no reason to depart from the guidance in the Direction that greater weight should generally be given to the primary considerations.
The Applicant committed two sexual offences against two child victims, whom he was related to by marriage. These are family violence offences in the context of primary consideration 2 of Direction 110. The sentencing judge described the nature of the offending conduct as ‘evil’.[131] It took almost 10 years for the victims of the offending to pick up the courage to make a formal complaint to police.[132] When the Applicant participated in a pretext phone call with the victims, he suggested his offending against them was ‘a joke’, which was behaviour the sentencing judge described as ‘truly despicable’.[133]
[131] Exhibit R1, 39.
[132] Ibid 38.
[133] Ibid.
The Tribunal acknowledges that the Applicant has otherwise lived and worked in the community since sentenced for these offences in 2003. The Applicant does not have any subsequent convictions.
The Tribunal also acknowledges that the Applicant has established strong familial ties in Australia and enjoys the love and support of his four adult children, his 12 grandchildren, his former wife and current wife. The Tribunal also acknowledges that the Applicant has had a steady employment record in Australia. The Applicant is connected to the Australian community through his work and devotion to his church; a place where is he is well-supported and highly regarded.
It is of concern to the Tribunal that the Applicant maintained a stance of innocence through the Tribunal proceedings and did not acknowledge his offending, although there is some expression of remorse in his earlier statements to the Department.
The Tribunal has weighed the relevant considerations carefully. It has determined that primary considerations 1, 2 and 5 weigh heavily against the Applicant, and are therefore in favour of exercising the discretion to cancel the Applicant’s visa. It is acknowledged that primary considerations 3 and 4 weigh in the Applicant’s favour, but the Tribunal is of the view that they are not outweighed by the primary considerations that weigh against the Applicant. In accordance with paragraph 7(2) of the Direction, the Tribunal has afforded greater weight to primary consideration 1. The other considerations that weigh in the Applicant’s favour are outweighed by primary considerations 1, 2 and 5.
Having weighed the relevant considerations individually and cumulatively, the Tribunal makes a finding that the discretion in s 501(2) should be exercised and the Applicant’s visa ought to be cancelled.
The Tribunal therefore finds that the reviewable decision should be affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 158 (one-hundred-and-fifty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton

............................[sgd]............................................
Associate
Dated: 4 February 2025

Dates of hearing: 28 and 29 January 2025

Counsel for the Applicant: Ms Angela Julian-Armitage

Advocate for the Respondent: Ms Kaylla Theocharous

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	28 and 29 January 2025
Counsel for the Applicant:	Ms Angela Julian-Armitage
Advocate for the Respondent:	Ms Kaylla Theocharous
Solicitors for the Respondent:	Clayton Utz