Westwood and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 678

Westwood and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 678 (28 May 2025)
Applicant/s:  Colin Westwood
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:               2025/1875

Tribunal:Senior Member K Raif
Place:  Sydney
Date:28 May 2025
Decision:The Tribunal sets aside the decision under review and substitutes the decision to revoke the cancellation of the Applicant’s previously held Transitional (Permanent) visa.

Statement made on 28 May 2025 at 5:17pm
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class BF Transitional (Permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – effect of absorbed person visas under s 34 of the Migration Act on s 501(3A) mandatory visa cancellation – cancellation of visa revoked – decision under review set aside.
Legislation
Migration Act 1958 (Cth) ss 34, 34(2), 501(3A), 501CA(4), 501F(3)
Cases
Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (No 3) [2004] FCA 137
Sales v MIAC (2008) 171 FCR 738
Heathcote and MIMA (Migration) [2025] ARTA 131
Cowgill v MICMSMA [2024] AATA 729.
Johnson No 3 (2004) 136 FCR 494
Potter v Minahan (1908) 7 CLR 277
Toia v MIAC (2009) 177 FCR 125
Moore v MIAC (2007) 161 FCR 236 at [53]
Johnson [2004] FCA 137; (2004) 136 FCR 494, 510
Uelese v Minister for Immigration and Border Protection[2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
FYBR v Minister for Home Affairs [2019] FCA 500.
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
BACKGROUND

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BF Transitional (Permanent) visa previously held by the Applicant.
The Applicant is a national of the UK, born in May 1950. He travelled to Australia in February 1959 at the age of eight.
In June 2023 the Applicant was convicted of an offence and was sentenced to a term of imprisonment exceeding 12 months. On 3 September 2024 the Applicant’s visa was mandatorily cancelled under s. 501(3A) of the Migration Act 1958 (Cth) (‘Migration Act’). On 26 September 2024 the Applicant made a request to revoke the cancellation and on 7 March 2025 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 22 May 2025. He was represented on review. For the following reasons, the Tribunal has concluded that the decision dated 7 March 2025 not to revoke the cancellation of the Applicant’s Transitional (Permanent) visa should be set aside and substituted with the decision to revoke the cancellation.
ABSORBED PERSON VISA (APV)
What is an absorbed person visa?
Section 34 of the Migration Act 1958 provides criteria by which a person is deemed to have been granted a permanent visa knowns as an absorbed person visa. If the requirements in s 34(2) are met, the visa is taken to have been granted on 1 September 1994.
For a person to be deemed to have been granted an absorbed person visa on 1 September 1994, they must be a non-citizen currently in the migration zone who:
·     on 2 April 1984, was in Australia; and
·     before that date, had ceased to be an immigrant; and
·     on or after that date has not left Australia; and
·     immediately before 1 September 1994, was not a person to whom s 20 of the Act as then in force then applied.
Authorities such as Johnson (No 3)[1], Toia[2] and Moore[3] and the cases referred to therein set out considerations that are relevant to determining whether a person had ceased to be an immigrant. In Johnson[4] French J explained that the concept of absorption ‘is an evaluative metaphor which invites consideration of a variety of factors relevant to its application.’ His Honour then went on to identify, at 510–11, a list of factors relevant to assessing whether a person ‘has become a member of the Australian community’.
Did the Applicant hold an absorbed person visa?
[1] (2004) 136 FCR 494 at [46] citing Potter v Minahan (1908) 7 CLR 277.
[2] Toia v MIAC (2009) 177 FCR 125.
[3] Moore v MIAC (2007) 161 FCR 236 at [53].
[4] [2004] FCA 137; (2004) 136 FCR 494, 510.
On 2 April 2025 the Tribunal wrote to the parties inviting submissions on whether the Applicant has been a holder of an Absorbed Person visa and, if so, the implications of that for the present review.
The Applicant submits in his written submission to the Tribunal of 7 April 2025 that he was a holder of an Absorbed Person visa. The Applicant submits that he entered Australia in 1959 and was present in the country in April 1984. The Applicant submits, by reference to factors identified in Johnson, that he ceased to be an immigrant and he referred to his settlement in Australia, his education and employment, family connections and contribution to community.
The Tribunal has considered whether the Applicant has ceased to be an immigrant before 2 April 1984 and had not left Australia since that time.
Evidence before the Tribunal indicates that the Applicant entered Australia in 1959. There is nothing to suggest that immediately before 1 September 1994, the Applicant was a person to whom s 20 of the Act, as then in force, applied (noting that the first criminal conviction did not occur until 2006 and the earlier conviction in September 1969 is unlikely to constitute a ‘serious crime’).
Having regard to the factors set out in Johnson, the Tribunal is of the view that the Applicant was a holder of an absorbed person visa.
Effect on the present proceedings
In his written submission to the Tribunal dated 7 April 2025, the Applicant submits that he has been taken to be granted the Absorbed Person Visa on 1 September 1994. The Applicant refers to the reasoning in Johnson and Sales as authorities for the proposition that where the Minister purports to cancel a visa not held by the Applicant, the Minister has not exercised his power with respect to a visa actually held and has fallen into jurisdictional error. The Applicant submits that he never held a Class BF Transitional visa and the purported decision to cancel that visa is invalid or of no effect. In his further submissions to the Tribunal the Applicant did not pursue these claims.
In the submission, received by the Tribunal on 22 April 2025, the Respondent argues that s. 34 is not relevant to the current proceeding. The Respondent submits that on 1 September 1994 the Applicant was deemed to have been granted a Transitional (Permanent) Class BF visa and, if he was also deemed to be granted an Absorbed Person visa, this was granted on the same day so that the Applicant was subsequently the holder of both the Absorbed Person visa and the Class BF visa. The Respondent notes the Applicant’s reliance on Johnson[5] where it was suggested that a Class TY visa could not be granted to an APV holder but the Respondent claims this is not relevant here as the Applicant held a different type of visa. The Respondent also seeks to distinguish the circumstances in Sales v MIAC[6] where the Applicant was not the holder of an entry permit. The Respondent submits that as the Applicant’s Class BF visa was cancelled, any Absorbed Person visa that the Applicant may have been granted has also been cancelled.
[5] Johnson v MIMIA [2004] FCA 137 at [29].
[6] (2008) 171 FCR 738.
In Heathcote[7] DP Burford considered the effect of s. 501 cancellation in circumstances where the Applicant held an Absorbed Person visa. DP Burford stated at [203]:
The terms of s 501 are unqualified. It is expressed as a general provision applicable to all kinds of visas. There was no information before me to suggest she held any migration status which would prevent or preclude the mandatory cancellation of her visa. She was the holder of a permanent visa which was subject to the operation of the provisions of s 501 of the Migration Act. In any event, the holder of an absorbed person visa is not immune from the operation of the provisions of s 501(3A) of the Migration Act. They are lawful non-citizens holding a visa and to whom the mandatory cancellation provisions would apply
[7] Heathcote and MIMA (Migration) [2025] ARTA 131.
Similarly, DP Burford held in the matter of Cowgill[8] that the Applicant’s status as a holder of an Absorbed Person visa did not preclude the operation of s. 501 of the Act and, as a holder of the Absorbed Person visa, an Applicant would not be immune from the operation of the provision of s.501(3A).
[8] Cowgill v MICMSMA [2024] AATA 729.
The all-encompassing nature of s. 501(3A) is such that any visa held by an Applicant may be subject to the automatic cancellation and there are no exclusions. The Tribunal considers that the Absorbed Person visa is capable of being cancelled. Significantly, the Tribunal also finds that it is possible to hold more than one visa and, in this case, the Applicant may have held a Transitional visa as well as an Absorbed Person visa.
As the Applicant’s Transitional visa was cancelled under s. 501, the Tribunal finds that the effect of s. 501F(3) is that the Absorbed Person visa would also have been cancelled.
The Applicant also submits that the notification of the cancellation decision only referred to the cancellation of the Transitional visa and not the Absorbed Person visa. However, any error in notification, even if established, does not invalidate the decision. The Applicant has made a valid application for review and the Tribunal has jurisdiction to conduct the review.
RELEVANT LAW – CHARACTER ASSESSMENT
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and / or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of [protection of the Australian community] is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report. Information before the Tribunal indicates that the Applicant had been convicted of the following offences.

21/12/06

·     Possess child pornography

·     Disseminate / produce child pornography

16 months imprisonment (concurrent), reduced on appeal

26/06/23

·     Possess child abuse material

·     Fail to comply with reporting obligations

Imprisonment 2 years, 8 months

12 months CCO

The Respondent also notes that in 1969 the Applicant was convicted for two offences of acts of indecency and submits the offending was serious, which can be inferred from the nature of the offending.
The Tribunal finds that in June 2023 the Applicant has been convicted and sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in section 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The Applicant concedes that his offending was serious but submits that the risk of reoffending is low. The Applicant refers to his ties in Australia and the significant impediment if he was to be removed to England, where he would have no family and no other supports. He believes the cancellation of his visa should be revoked.
The Respondent submits that the Applicant’s offending was so serious that any repeat poses an unacceptable risk to the community. The Respondent notes that the safety of the Australian community is to be afforded the highest priority under the Direction. The Respondent submits that two of the primary considerations, which are required to be given the highest priority, protection and expectations of the community, outweigh other considerations that weigh in favour and which should be given limited weight.
The Tribunal’s considerations are set out below with regard to Direction 110.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent and/or sexual crimes; crimes of a violent and / or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the sentencing remarks of Judge Beckett made on 20 June 2023. Her Honour notes that the Applicant had been previously convicted of a registrable offence under the Child Protection (Offenders Registration) Act 2000 with reporting obligations until June 2022. In May 2022 the police attended his home and during a search the police located a file called ‘Preteen Nymphets’ which contained a text documents that described incestuous sexual acts committed by fathers and mothers on young female children between the ages of 3 and 13. When questioned by the police, the Applicant could not say whether he had ever seen that file and had no knowledge of its content, the Applicant stated he did not know how document came to be on his computer but agreed the computer belonged to him. The police subsequently seized a number of hard drives and computers. Her Honour states that the analysis of the hard drives seized from the Applicant’s home indicated one hard drive contained child abuse material. This was categorised into Category 1, depicting a real pre-pubescent child and child involved in, or witnessing a sex act, and Category 2 which depicts a person appearing to be, or who is implied to be a child and who is depicted in a way that a reasonable person would regard as offensive, who is either a victim of torture, cruelty or physical abuse, is engaged or apparently engaged in sexual pose or activity, or in the presence of another person engaged in such activity.

Her Honour stated that the authorities analysed the content of the drive and found 486 videos / images or documents classified as Category 2 child abuse material. Among these was an instruction manual for men who wished to have sexual intercourse with a young female child. It is noted that the images depicted sexual intercourse between men and female children aged 5 or around that age and two images of females appearing to be in pain or distress whilst engaged in intercourse. One image depicted bestiality between a child and a dog.
The officers analysed other hard drives from which data had been deleted. The officer suspected that the drive had been used to store child abuse material noting a number of file names describing child abuse acts including penetration of children as young as 5 years of age. The other drive containing four images of child abuse material, three of which were classified as category 1 and one as category 2. Her Honour refers to a sample of material found on the hard drive. The eight images include naked real children aged 10-12 involved in touching each other’s genitals, performing cunnilingus, digital penetration and a photograph of a child estimated to be 5 with an erect penis inserted into her vagina, penile penetration of children aged 8-10, acts involving 10-12 year olds performing fellatio on an erect penis, a photograph of a 5 year old with a female present and holding a dog’s erect penis with the child having the dog’s penis on her lips or mouth.
It is stated that during the interview with the police the Applicant stated that he was aware that child abuse material was an offence. The Applicant claimed that he brought the computer from another person but conceded that he had 20 years knowledge of IT and a Diploma of IT. The Applicant denied searching for child abuse material and said he would delete such material if he came across it.
Her Honour noted that the offending concerned over three computers, the images were in the hundreds and thousands, with 486 images and videos in Category 1 and 23,289 in Category 2 with some involving very young children at the age of 5 and other children between the ages of 11 and 13. There was no evidence of communication, sharing or profit. Her Honour took into account the inference that the children have been grossly exploited and likely to be damaged for life in lasting and significant ways and that the material related to many different children and not one child. Her Honour found that the offending fell at or only just below the mid-range.
The Respondent submits that there are a number of factors indicative of the extreme seriousness of the offending, including the fact that the offending was not isolated, took place over multiple computers and over a 13 year period, the images numbered in the dozens of thousands, depicted very young children and some involved penetration of young children, the images also related to different children. The Respondent submits that the offending followed the 2006 child pornography offence and involved a degree of sophistication, with the Applicant using technology to mask his home IP address and avoid detection. The Respondent submits that the Applicant’s offending poses a grave risk of harm to the Australian community.
The Tribunal finds that the Applicant had engaged in offences that can be characterised as being sexual in nature and against children. The Directions provide these are viewed very seriously. The Tribunal is mindful that the type of offending is capable of causing significant psychological harm to the children involved in the production of the offending material. Her Honour Beckett J stated, by reference to the comments in R v Booth [2009] NSWCCA89 that [child exploitation] material is a ‘ callous and predatory crime and... this material cannot come into existence without exploitation and abuse of children somewhere in the world… The damage done to such children may be and, undoubtedly often is, profound’. Her Honour noted that the possession of pornography is not a victimless crime as children are abused in order to supply the market.
The Royal Commission into Institutional Reponses to Child Sexual Abuse noted the significant impact of abuse:
For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties.[9]
[9] Commission into Institutional Responses to Child Sexual Abuse Final Report (2017) vol 3, 11.
The Tribunal finds that the offending involved a crime of a sexual nature against children and such type of offences is considered as very serious in the Direction. The offending involved a very large number of images, involving multiple children. The Tribunal finds that on the offending had occurred over a lengthy period of time (on the Applicant’s own evidence, ‘on and off’ for a period exceeding ten years). The Tribunal accepts that this type of offending could have profoundly adverse implications for the children involved and such implications may be life-changing and life-long. The Tribunal has formed the view that the offending was very serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of her offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
As noted above, the Tribunal found the offending to be very serious. Should the Applicant engage in further criminal offending of this kind, there could be significant physical and psychological harm to the children involved and potentially those around them. In his submission to the delegate the Applicant accepts that if he were to engage in like conduct, the nature of harm to individuals or the community would be significant.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Respondent submits that the Applicant’s offences are very serious and any likelihood that they may be repeated is ‘completely unacceptable’. The Respondent submits that the Applicant had committed child pornography offences in 2006 and it appears that he began reoffending only 3 years later. The Respondent notes that the Applicant attended counselling but did not complete counselling and did not complete rehabilitation courses in prison. The Respondent submits that the fact that the Applicant’s prior conviction and imprisonment for child pornography in 2006 and his appreciation that his conduct was causing harm to children failed to deter or rehabilitate the Applicant from further offending only three years later, with the offending continuing for 13 years, is a strong indication that there is a real risk of the Applicant engaging in further criminal or other serious conduct. The Respondent submits that there is a heightened risk of reoffending because the Applicant suffers from social anxiety and alcohol use disorder which were triggers for his criminal conduct, has no family or other support network and is likely to continue to be socially isolated, due to the ease of access of child abuse material and the fact that there is little evidence the Applicant sought out rehabilitation for alcohol abuse problems. The Respondent submits that the risk factors – such as social isolation and alcohol abuse – are likely to continue. The Respondent submits that there is a more than a nominal risk of reoffending, even if it is reasonably low and, given the severity of offending to date, even that risk is unacceptable.
Judge Beckett in her sentencing report had regard to the various reports by health professionals. Her Honour notes that possession of child abuse material is not a contact form of sexual abuse and can be relatively easily obtained, increasing the risk factor. Her Honour noted that the Applicant had been on a sex register before which did not stop him from participating in this crime. Her Honour noted that the Applicant had showed expressed insight into his offending and chose to accept treatment in the form of medication and counselling and it is noted that the Applicant is an intelligent person who knows what he needs to do in order to not reoffend. Her Honour also accepted that the Applicant is remorseful for his conduct. Her Honour had ‘cautiously’ assessed the prospects of rehabilitation as ‘reasonably positive’. The Tribunal has also been provided with Crown submissions on sentence.
The Applicant’s evidence
In his revocation request the Applicant claims that the risk of reoffending is low given his age and medication. The Applicant states that he was not eligible to any rehabilitation programs while in prison but is willing to undertake ongoing programs while on parole. The Applicant refers to assessments by Dr O’Dea and Dr Furst and the suggested treatment and he submits that there is a very low risk of reoffending.
In his submission to the delegate, with respect to anxiety, the Applicant states that he has commenced using a higher dose of SSRI and removing or controlling his anxiety would reduce his desire to view inappropriate material. With respect to alcohol, the Applicant submits that alcohol was viewed as a disinhibiting factor and he has dramatically reduced his drinking since May 2022 and has had no access to alcohol since his incarceration. With respect to testosterone, the Applicant states that he has commenced a daily testosterone lowering drug which has reduced his libido and sexual urges. With respect to psychological treatment, the Applicant states that he had attempted to maintain access to rehabilitative services while incarcerated but was unable to attend such sessions. He has the intention to seek treatment if returned to the community. He has had regular appointments with psychologists.
The Applicant states that he would be on parole for 11 months after his release from prison and would be subject to parole conditions. (The Tribunal is mindful that the parole period, at the time of this decision, would not be significant.) The Applicant also notes that he is prohibited from being in the company of young persons, and there are limitations on his online activities and such orders would be in place until July 2027 when he will be 77 years of age. The Applicant refers to Dr Furst’s report that a person with his characteristics has a life expectancy of 68.7 years and that he is ‘more likely to die than re-offend’ over the next 10 years. The Applicant submits that Ms Blake’s report should be given minimal weight and more weight should be given to other reports (by Dr Furst, Dr O’Dea and Ms Gambert) which suggest a low risk of reoffending.
In his submission to the Tribunal of 7 May 2025 the Applicant claims that, for a variety of reasons, there should be ‘extreme scepticism’ in relation to the assessment by Ms Blake (which assessed the risk of reoffending at above average) and the Applicant also refers to the more recent assessments by Dr Furst and Mr Watson-Munro. The Applicant submits that his undertaking of rehabilitative treatment, supervision on release, and the overall assessment of his reasonably low risk of reoffending, would mean that this primary consideration should be given some but not dispositive weight against revocation.
The Tribunal has been provided with a copy of the Applicant’s affidavit prepared in June 2023 for the purpose of his criminal proceedings and other court documents, as well as the Department of Corrective Services report. The Tribunal has also considered the Applicant’s statement dated 20 December 2024 in which he referred to the factors leading to his offending, his ongoing efforts at rehabilitation and his desire to remain in Australia.
In oral evidence, the Applicant stated that after separation from his wife, he was not successful in finding a companion and started watching pornography and soon found material that was problematic. That started around 2004. During his first imprisonment his sons supported him and after he was released in 2007, his sons monitored his computer use. The Applicant states that after his mother passed away and his sons moved out, he felt ‘abandoned’ and turned to the computer for solace, and started watching child pornography around 2011-2012. (The Applicant denied providing different information to Mr Watson-Munro and claims Mr Watson-Munro’s reference to 2009 is incorrect). The Applicant states that in 2012, he felt abandoned and lonely and that played a big part in the offending. The Applicant stated that he was aware that what he was doing was wrong and wanted to stop.
With respect to the 2006 conviction for dissemination, the Applicant stated that it related to the platform he used to download the photographs as he had inadvertently uploaded up to a few hundred photographs for other users. The Applicant conceded that he is computer savvy but states that he was not familiar with that particular platform. In relation to the taking of the photograph of a child (which led to discovering the images on his computer in 2006), the Applicant stated that he was given a new camera and wanted to test it and was simply taking photographs of the neighbourhood but he concedes that one of the many photographs depicted a child.
The Applicant could not recall whether counselling was offered as part of his first parole and whether he had undertaken counselling voluntarily or as part of the parole requirements. He could not recall how long it took him to arrange counselling after being released from detention, stating that his recollection was that he arranged counselling ‘as soon as he practically could’. The Applicant confirmed seeing the counsellor regularly until 2009 (about a year after his parole ended) when he ceased counselling because he found the counsellor ‘inappropriate’ but he did not seek a new counsellor. The Applicant states that there were a number of issues going on in his life at the time (his mother’s health, his relationship with the children and financial concerns) that contributed to his not continuing counselling. The Applicant states that when reoffending occurred around 2012, there were ‘definite signs’ such as depression, and in hindsight, he should have approached a counsellor. The Applicant states that if released, he will ‘definitely’ take up counselling and he has referred to having done several counselling sessions while in detention.
The Applicant agreed with Mr Watson-Munro’s assessment of the factors that led to the offending. The Applicant acknowledged that unregulated access to a computer could contribute to the offending and expressed an undertaking not to use the computer unless for legitimate purposes. The Applicant concedes that he will have unsupervised access to computers in the future but states he has now changed. The Applicant states that the psychologists helped him identify tools to deal with social isolation, he states he has been proactive in finding supports in the community, is able to identify weaknesses and triggers and has learned about alcohol being a trigger to social anxiety. He states that he has not taken alcohol for over two years, has not had any withdrawal and can see the benefits of not having it. The Applicant states he will seek assistance for alcohol dependence.
The Applicant conceded that, following his first offence, he appreciated the harm to children and stated that he will always regret what he has done. The Applicant referred to his experience in prison (appreciation of the seriousness of his offending, loss of privileges, loss of family and friends) and states that these will act as a deterrent for future reoffending. The Applicant submits that after the first offending the repercussions were not significant for him. He still had the support of his family and involvement in the community. He sought professional help and took steps to address the problem but did not continue counselling because of other events. The Applicant states that the consequences at present are more significant than during his first offending. The Respondent submits that the first offence led to significant consequences for the applicant, such as cessation of his relationship with his son and giving up his engagement in community activities so it is not correct to state that the second offending has had greater consequences. The Tribunal accepts that it would be inaccurate to state that the effect of the first offending were insignificant and even though the effects of the 2022 may be more serious, the fact that there would have been perceptible effects from the earlier conviction which did not prevent the Applicant’s reoffending, suggests that very limited weight should be given to the claim that the consequences of reoffending would act as a preventative factor.
The Applicant told the Tribunal that by 2022 he decided to stop using child pornography and he thought he deleted the materials which is why he told the police there was nothing else on his computer and he was too afraid to confess to the police that he had downloaded the offensive material. The Applicant conceded that he lied to the police out of fear of imprisonment. He also concedes that he used software to hide his IP address. The Respondent notes that there is no evidence that the applicant deleted the materials by 2022 and decided to stop and the Applicant failed to mention this when being sentenced or, more recently, to Mr Watson-Munro. The applicant explains that he was never asked but the Tribunal finds that explanation unpersuasive as in the Tribunal’s view, the applicant would have volunteered that information in support of his sentencing or in his dealings with Mr Watson-Munro as he was aware that a report would be prepared for the benefit of this Tribunal. The Tribunal is not convinced that the applicant was truthful in that evidence.
The Applicant refers to other preventative factors. He states that his circumstances are now different. In 2012 he was depressed, he had to look after his father and felt ‘trapped’ and abandoned while now he has developed a plan of how he will avoid the past triggers. The Applicant told the Tribunal that he has been taking testosterone reducing medication reducing his libido and as a result, he feels like a ‘weight has lifted off his shoulders’ and he is happy to continue. The Applicant states that the medication and the ageing would reduce his libido and that means he will not reoffend. The Applicant refers to the ongoing parole, a court order in place until 2027 which limits his access to the internet and enables parole officers to conduct random searches of his internet usage and he refers to a 14 year supervision which allows random searches of his electronic devices. The Tribunal considers that these monitoring mechanisms may be somewhat useful in preventing reoffending but in the Tribunal’s view, these are largely ineffective. While these provide for the possibility of monitoring the Applicant’s online activities, they are dependent on the enforcement agencies taking active steps to do such monitoring. The Tribunal is mindful that while there was also the possibility of monitoring in the past, and the Applicant’s evidence is that the police regularly visited and checked his computer, the Applicant’s own evidence is that he has been offending since around 2009 or 2012 and the images were not discovered until 2022 despite such monitoring.
Expert and other evidence

The Tribunal has been provided with the pre-sentence report prepared by Ms Anderson in December 2006. It states that at first, the Applicant continued to justify and minimise his actions but since that time gained some insight and expressed shame and remorse. It is stated that while some insight was evident, the Applicant continued to justify his actions on occasions and minimise his responsibility in relation to his offending behaviour. The report indicates that the Applicant is undertaking counselling and has been assessed as being suitable for a community service order.
The Tribunal has considered a report by Dr Richard Furst dated 22 October 2022. Dr Furst outlines the Applicant’s personal background, drug and alcohol history and medical history and offers the diagnoses of social anxiety disorder, paedophilic disorder and alcohol use disorder. Dr Furst states that the Applicant has a long history of anxiety and previously had an exhibitionistic disorder and his past offending is consistent with the presence of a paedophilic disorder. Dr Furst notes that the viewing of pornography would release neurotransmitters and in the Applicant’s case, relieved tension and anxiety. With respect to treatment, Dr Furst proposes treatment with a clinical psychologist and with a psychiatrist and counselling with a psychologist. With respect to risk of recidivism, Dr Furst expressed an opinion that the risk of reoffending in the Applicant’s particular circumstances is in the range of 1-7% for accessing further child abuse material in the next 5 years and less than 1-2% for hands on sexual offence in the next 5 years, noting the decreased rate of recidivism for offenders over the age of 60. Dr Furst states that engagement in individual psychological counselling to address anxiety, drinking and paedophilic disorder and treatment with anti-libidinal medication would likely be of assistance in managing the risk of reoffending effectively. Dr Furst clarified information in a further report dated 16 June 2023.
The Tribunal has been provided with a report by Dr Youssef dated 5 March 2023. Dr Youssef states that the Applicant self-reported being depressed around 2014 and started drinking. He did not disclose any sexual behaviour. Dr Youssef reports on a number of co-morbidities. A further statement by Dr Youssef outlines the Applicant’s medication.
The Tribunal has had regard to a report by Thea Gumbert, registered psychologist, dated 28 March 2023. Ms Gumbert states that the Applicant had attended multiple sessions in 2022 – 2023, had demonstrated insight into his offending, identified personal risk factors and had engaged in rehabilitation such as commencing antilibidinal medication and reducing alcohol intake.
The Tribunal has considered the report by Dr O’Dea dated 14 April 2023. Dr O’Dea refers to the prescribed medication and refers to the Applicant’s attendance with psychologist and reported reduction in sex drive and paedophilic urges, as well as reduction in alcohol intake.
The Tribunal has been provided with the pre-sentencing report by Cheryl Brougham dated 29 May 2023. It is stated that the Applicant accepted responsibility for his offending and expressed regret and expressed willingness to undertake intervention to address offending risk factors. Ms Brougham assessed the risk of reoffending as low. There is also before the Tribunal a general publication regarding the profile of child sex offenders. A pre-sentence note prepared by Kellie Blake states that the Applicant’s risk of sexual reoffending was considered using the Child Pornography Offender Risk Tool and the Applicant had scored 4, an above average score on the assessment. (The Applicant submits that this assessment is unreliable.) Ms Blake states that potential risk factors include social influences and societal rejection (limited support from family) and sex drive / preoccupation and sexual deviancy.
The Tribunal has also been provided with a report by Mr Tim Watson-Munro dated 24 April 2025. The report outlines the Applicant’s background, employment and medical history, as well as his past community engagements. The report refers to the Applicant’s denial of drug intake but also refers to alcohol intake. With respect to the Applicant’s involvement with child pornography, Mr Watson-Munro states that the Applicant reported that after the conviction in 2007, he avoided using this material until about 2009 when a ‘well-entrenched pattern’ was established, continuing until 2022 when he was arrested. (The Respondent notes that this means child pornography offending continued for 13 years.) The Applicant reported that his detection occurred in the context of him photographing a child and being apprehended by the police. It is stated that the Applicant reported stress caused by his mother’s death in 2009 and stated that he would view the material when psychologically distressed as a means of emotional self-regulation. Mr Watson-Munro states that the Applicant had limited and inconsistent treatment and he has been prescribed psychotropic medication more recently, as well as anti-androgen medication to lower his libido and psychological sessions.
Mr Watson-Munro states that the Applicant has reported a range of symptoms reflective of ongoing depression and anxiety. It is reported that the Applicant has expressed ‘deep regret’ into his offending. Mr Watson-Munro reports that the Applicant has a depressive disorder (moderate and recurring) and describes a history of anxiety, depression, low self-esteem and alcohol use disorder. Mr Watson-Munro expressed the view that alcohol misuse impacted upon the Applicant’s judgement, involving diminished impulse control and a reduction in consequential thinking and when coupled with underlying feelings of anxiety, social isolation and loneliness, all this contributed to his offending conduct. Mr Watson-Munro states that the Applicant has been deeply affected by his exposure to the criminal justice system and the prospect of having to leave Australia. Mr Watson-Munro states that the Applicant would benefit from ongoing treatment from a clinical psychologist and from regular attendance with a treating psychiatrist to monitor medication. Mr Watson-Munro refers to reduced libido due to the medication.
Mr Watson-Munro outlines the protective factors that will reduce the likelihood of reoffending such as medication, age, expression of remorse and insight and the fear of being required to leave Australia. Mr Watson-Munro expressed the view that the risk of reoffending is now trending from moderate to low with ongoing treatment.
In oral evidence Mr Watson-Munro spoke about his understanding of the timeline of offending and confirmed the factors which he identified as contributing to the offending (alcohol use, the death of the Applicant’s mother, anxiety, social isolation and loneliness). Mr Watson-Munro confirmed the recommendation for regular treatment with psychiatrist (preferably monthly to prescribe and monitor medication) and with psychologist (preferably weekly and later fortnightly). Mr Watson-Munro stated that despite the protective factors, the Applicant has a complex history and would benefit from treatment and will need supports and, if the ongoing treatment and support are provided, the risk of reoffending would be trending from moderate to low. Mr Watson-Munro stated that in the absence of appropriate treatment and support, he would be ‘more concerned’. Mr Watson-Munro states that the Applicant is ‘wiser’ in that he has an understanding of the consequences of reoffending (including incarceration and deportation) and recognises that there are real victims of pornography. Mr Watson-Munro confirmed that the Applicant has expressed a genuine motivation to engage in treatment, noting that there was no treatment available in jail, and he now has better insight of the need for treatment.
The Tribunal has considered the written character report prepared by Mr Kilpatrick and the Tribunal also received oral evidence from Mr Kilpatrick. In written evidence, Mr Kilpatrick states that in his opinion, there are sufficient external strategies (being under supervision, seeing a psychiatrist and being on the sex offender register) to limit the prospect of the Applicant reoffending and he observed the Applicant being remorseful, contrite, humiliated and embarrassed. Mr Kilpatrick states that if the Applicant was to be deported to the UK, he would become profoundly depressed and may take his own life. Mr Kilpatrick states that the Applicant has expressed profound shame about his conduct. Mr Kilpatrick expressed the view that the risk of reoffending is low, particularly if the Applicant remains in Australia under the supervision while the risk of reoffending if he was to move to UK may increase, given the likely depression and suicidal ideation.
Assessment of risk
The Respondent submits that even if the risk of reoffending is low, the risk is measurable. The Respondent notes that the offending took place over a long period and was not isolated, involved multiple children with the images being in the dozens of thousands. The Respondent submits that the 2022 offending was an escalation compared to the 2006 offending which involved about 200 images. The offending involved a degree of sophistication to avoid detection and the Applicant admitted to lying to the police when the images were discovered. The Respondent notes that while the Applicant claims to have voluntarily deleted the offensive images, he failed to report this to Mr Watson-Munro who assumed the offending stopped in 2022 and it is not mentioned in the sentencing judgment so it was not put before the court and this evidence cannot be relied on. The Respondent submits that some of the factors that led to the earlier offending continue to exist, such as the Applicant’s loneliness and social isolation.
The Respondent submits that the nature of the harm, if the conduct was to be repeated, is so serious that any countervailing considerations do not overcome the protection of the community. The Respondent refers to several points in the Direction which elevate the consideration of protection of the Australian community above others and which require that it be given the greatest weight.
Having carefully considered all the evidence before it, the Tribunal has formed the view that there remains the risk of reoffending. The Tribunal reaches this conclusion for the following reasons.
The Applicant had been convicted of the same, or largely similar offence, in the past. He told the Tribunal that in 2006–07 he understood that his conduct was problematic and yet, because, he claims, of his particular circumstances at the time, he turned to child pornography for emotional regulation. That is, despite appreciating the problematic nature of his behaviour, the Applicant determined that his personal circumstances justified his conduct.
The Tribunal places weight on the fact that the Applicant had previously undergone counselling. His evidence to the Tribunal is that his counselling continued until 2009, for over a year after his release from prison. He indicated he found that counselling useful. Yet, that counselling did not prevent reoffending from about 2009 (or 2012). The Applicant also states that loneliness and social isolation were significant contributors for his past offending and such circumstances continue to exist at present. While the Applicant states that he wishes to reconcile with his family and find new friends and engage with the community, that may or may not occur. The fact that the Applicant has developed a plan for his future re-engagement with the community does not necessarily mean he will be successful. The Tribunal finds that some of the factors that are put forward at present as preventative of future reoffending were present in the past and did not prevent reoffending.
However, the Tribunal is also mindful that there are significant differences between the Applicant’s present circumstances and the past. Firstly, the Tribunal accepts that at present, the Applicant has a genuine intention to engage in counselling and treatment and the Tribunal is of the view that he will do so, at least in the immediate term (whether or not it will continue long-term). Secondly, the Applicant appears to genuinely wish to engage with the community and form social connections. Again, it is difficult to predict whether he will be successful in doing that but the Applicant’s present intention to take these steps is a positive sign. Thirdly, the Applicant refers to his abstinence from alcohol, which he recognises was a disinhibitor in the past. Again, the Tribunal is mindful that the applicant has been in detention for some time and will have greater access to alcohol in the community but he has expressed his intention not to and has been able to verbalise the benefits of abstinence. Fourthly, the evidence indicates that the Applicant is receiving testosterone reducing medication. The evidence of Dr Furst is that the combination of that medication and the Applicant’s age would effectively reduce his libido, thus reducing the risk of reoffending and the Applicant’s own evidence supports that. Fifthly, the Applicant is on the child protection register, parole and is subject to a court order that is in existence until 2027 that would allow active monitoring of the Applicant’s online activities. The Tribunal does not necessarily consider this to be effective, noting past offending while under monitoring. Nevertheless, the possibility of monitoring offers some protection against further reoffending. Sixthly, the Tribunal accepts that the possibility of future imprisonment and removal from Australia, if he were to reoffend, may act as a significant deterrent for future offending.
The Tribunal has also taken into account the professional opinions. Mr Watson-Munro in his report indicates that, with appropriate treatment, the risk of reoffending is trending to low. That is, even with recommended treatment, it is merely ‘trending’ to low and is therefore above low. The Applicant has expressed his desire to engage in treatment, and Mr Watson-Munro told the Tribunal that the Applicant has insight into the need for treatment, however, there is nothing to enforce the Applicant’s engagement in the type and extent of treatment recommended by Dr Furst and Mr Watson-Munro. The Applicant’s evidence is that in 2009 he stopped seeing the counsellor when he felt the counsellor was inappropriate and he has not recommenced counselling until his incarceration. It may be that the Applicant will engage in counselling and treatment but it is equally possible that he will cease that treatment in the future. As the recommended treatment has not been completed, the Tribunal does not consider that the preconditions to the risk being reduced to low, as suggested by Mr Watson-Munro, have been met.
The Tribunal has formed the view that there remains a risk of reoffending and at present, that risk is higher than the low risk. It may not be a significant risk but the Tribunal is of the view that it is a real risk. The Tribunal has determined that there could be significant harm if the Applicant were to engage in the same conduct in the future. The Tribunal has formed the view that the protection of the Australian community weighs very heavily against the revocation. The Tribunal acknowledges that the Direction requires this consideration to be given greatest weight.
Whether the conduct engaged in constituted family violence
There is no evidence before the Tribunal to indicate that the Applicant engaged in family violence offending. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant has been living in Australia since the age of eight, for a period exceeding 65 years. He did not begin to offend soon after arriving in Australia. The Applicant refers to his contribution to the community, including his involvement in a number of community organisations, such as a soccer club, cricket club, a community hall and as an administrator of a school Facebook page. The Applicant also refers to his past employment and his role as a carer for his father. The Tribunal accepts that the Applicant has spent formative years in Australia and that he has made a significant positive contribution to the Australian community in the past. The Tribunal also accepts the Respondent’s submission that at present the Applicant has limited links to the community and the Tribunal acknowledges the Applicant’s own evidence that social isolation was one of the contributing factors for his offending.
The Applicant stated in the revocation request that he has two adult children in Australia, their spouses and grandchildren, as well as several cousins and second cousins. He also has some extended family living in England. Evidence indicates that the Applicant has, at best, limited contact with his family in Australia. He told the Tribunal that his relationship with one of his sons was affected by the first conviction and his relationship with the other son ceased after the second conviction.
In his revocation request the Applicant states that he wants to remain in Australia to reconcile with his family and he told the Tribunal that he now wants to use professional help, such as Relationships Australia to approach his children. The Tribunal is mindful that there is no evidence from the Applicant’s children to indicate that they wish to reconcile or otherwise have a meaningful connection with the Applicant and the Applicant’s evidence is that while he continues to communicate with his sons, there is no desire by his sons to reconcile. The Applicant concedes in his oral evidence to the Tribunal that the repeat offending would make it less likely that his sons would wish to reconcile with him and that he has no ‘Plan B’ if his approaches fail.
The Applicant states that his children should have the opportunity to have their father in their lives. In the Tribunal’s view, such an opportunity is not limited to the Applicant residing in the same country as his children but in any event, this claim is unpersuasive in the circumstances where on the Applicant’s own evidence, his children do not wish to have any contact with him. The Tribunal does not consider that the present decision will have an impact on the Applicant’s children and family in Australia.
The applicant also told the Tribunal that he believes he has a good prospect of reconciling with his cousins but, again, there is no evidence to indicate that his cousins have any intention to reconcile. The Tribunal does not consider that the present decision will have an impact on the Applicant’s cousins or other family members in Australia.

The Applicant refers to the presence of friends in Australia and the Tribunal acknowledges evidence from Mr Kilpatrick who stated that he would ‘stand by’ the Applicant. He also told the Tribunal that there had been very little contact between them in recent years.
The Tribunal has formed the view that the applicant has very limited social ties in Australia. The Applicant does not appear to have any meaningful relationship with his family and only some social contact with others. Nevertheless, given the length of the Applicant’s stay in Australia and the links he has formed here over the years, the Tribunal finds that this consideration weighs in favour of the revocation. The Tribunal gives it very limited weight in favour of the revocation in light of the limited ties to Australia that the Applicant presently enjoys.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
The Applicant refers to the presence of his two minor grandchildren, TW and CW, in Australia. The Applicant claims in his revocation request that he is denied access to these grandchildren by their parents but intends to reconcile upon release from prison. The Applicant submits that if his visa is cancelled, it would prevent the chance of reconciliation and a relationship with the grandchildren. In his submission to the Tribunal of 7 May 2025 the Applicant also states that it is in the best interests of his two grandchildren to have the opportunity of reconciliation and of having contact with their grandfather and this should weigh in favour of the revocation.
The Tribunal finds the Applicant’s claim unpersuasive. The Applicant’s evidence to the Tribunal is that he was estranged from his youngest son around 2018 as his son was ‘uncomfortable’ with his conviction and with the Applicant being around the grandchildren. The Applicant states that his relationship with the older son ended when the second conviction took place, he attempted to call his son but his son does not answer his calls. The Applicant confirmed in his oral evidence to the Tribunal that his son is uncomfortable about having him around his grandchildren and has refused contact.
The fact that the Applicant has not been able reconcile with his sons and the sons’ families, and the Applicant’s evidence is that his sons do not wish to have any relationship or even contact with him, suggests that there is little interest in reconciliation by the Applicant’s children and their families. Although the applicant claims that he wants to engage Relationships Australia, the Tribunal is not convinced that the Applicant will be able to effect the reconciliation with his family in the future. In such circumstances, the Tribunal is of the view that the Applicant’s claims of having a normal grandparent/grandchildren relationship with TW and CW is merely aspirational and speculative but unrealistic.
In the absence of any evidence concerning the Applicant’s relationship with the grandchildren, and given the speculative nature of the Applicant’s claim that he will be able to establish such a relationship in the future, the Tribunal does not accept that it is in the best interests of the two grandchildren that the Applicant’s visa cancellation is revoked.
There is no suggestion that any other child would be affected by the cancellation. The Tribunal is of the view that this consideration is neutral.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[10] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[11]
[10] [2019] FCAFC 185 (‘FYBR’).
[11] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Applicant concedes that this factor weighs against him but submits that, given the other factors, this consideration ought not weigh heavily against him. The Tribunal has formed the view that, given the nature of the Applicant’s offending, the community expectations would weigh very heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. The Applicant has not made any claims that could indicate that non-refoulement obligations arise in this case.
The cancellation of the visa under s. 501 means that the Applicant will be an unlawful non-citizen subject to detention and removal from Australia. He will not be entitled to be granted another visa and will not be able to return to Australia. The Tribunal is of the view that this consideration weighs somewhat in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen’s age and health;
b)    whether there are any substantial language or cultural barriers; and
c)     any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 75 years of age. He refers to having a number of conditions which include asthma, chronic obstructive pulmonary disease, kidney dysfunction, emphysema, hypertension, gout, hand deformity, skin lesions, sleep apnoea, adrenal gland benign tumour, prostate enlargement, erectile dysfunction, social anxiety, paedophilic disorder and alcohol use disorder. In oral evidence the Applicant told the Tribunal that he needs an operation for his hernia. The Tribunal has been provided with a number of medical reports relating to the Applicant. The Tribunal accepts the evidence concerning the Applicant’s health.
There would be no language or cultural barriers if the Applicant was to live in the UK.
The Applicant states that he considers UK a strange country and would find it difficult making new friends, adding to his anxiety and loneliness. The Applicant submits that he would have little income, no place to stay and he has had limited contact with his family there who may not be able and willing to provide support. The Applicant’s evidence is that unless he has worked for at least a year in the UK, he would be ineligible for the UK pension and would have no income and would be required to seek employment at his age.
The Applicant states that in Australia he has a place to stay and access to medical supports. The Applicant states that due this social anxiety he would find it difficult to make new friends, exacerbating his abandonment issues, loneliness and anxiety. The Applicant refers to the assessment by Mr Kilpatrick who claims that the Applicant’s prognosis to readjust and settle in the UK is extremely poor and states that the Applicant would become ‘profoundly depressed’ and at risk of self-harm including suicide.
There is nothing to suggest that the Applicant would be unable to access the health system in the UK or that such supports would be inadequate. However, the Tribunal accepts that the Applicant may find it difficult to establish himself in the UK, that he would have limited (if any) social supports and that these matters may exacerbate his mental health issues. The Tribunal is also prepared to accept that the applicant may not be eligible for a pension if he has not worked in the UK.
The Tribunal accepts that there will be considerable impediment to the Applicant if removed, given his health conditions, age, the period of absence from his home country and his individual circumstances. This weighs strongly in favour of the revocation.
Impact on Australian business interests
There is no evidence before the Tribunal to indicate that any Australian business would be impacted if the Applicant is not allowed to remain in Australia. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant does not pass the character test. Importantly, the Tribunal has found that the Applicant had engaged in serious offending involving offending of sexual nature against children and if he were to reoffend, there may be significant harm. The Tribunal has determined that there remains a real risk of reoffending. The Tribunal found that the protection of the Australian community weighs very strongly against the revocation and the Tribunal acknowledges that several parts of the Direction require this consideration to be given greatest weight.
The Tribunal has also determined that the expectations of the community weigh against the revocation and the Tribunal gives this consideration significant weight.
The Tribunal has found that several other considerations, such as the best interests of children, family violence and business interests, are neutral. The Tribunal has decided that the nature and duration of the Applicant’s ties to Australia and the legal consequences of decision weigh in favour of the revocation but to a very limited extent.
The Tribunal has determined that there would be a significant impediment to the Applicant if he is removed from Australia. This is particularly in light of the Applicant’s personal characteristics such as his advanced age, medical condition, the length of his residence in Australia and likely lack of support, including financial support, if he were to live in the UK.
In the particular circumstances of this case, and having regard to the Applicant’s particular personal characteristics, the Tribunal has decided that the extent of impediment if removed should be given greatest weight and that it outweighs other considerations. That is, the Tribunal has determined that in this case, the factors that weigh in favour of revocation outweigh others.
The Tribunal has decided that the decision under review should be set aside and that the cancellation of the visa should be revoked.
DECISION
The Tribunal sets aside the decision under review and substitutes the decision to revoke the cancellation of the Applicant’s previously held Transitional (Permanent) visa.

Date(s) of hearing: 22 May 2024

Counsel for the Applicant: N. Poynder, Frederick Jordan Chambers

Solicitors for the Applicant: C. Dengate, Kah Lawyers

Counsel for the Respondent: S. Murray, Eleven Wentworth Chambers

Solicitors for the Respondent: C. Saunders, Australian Government Solicitor

Date(s) of hearing:	22 May 2024
Counsel for the Applicant:	N. Poynder, Frederick Jordan Chambers
Solicitors for the Applicant:	C. Dengate, Kah Lawyers
Counsel for the Respondent:	S. Murray, Eleven Wentworth Chambers
Solicitors for the Respondent:	C. Saunders, Australian Government Solicitor