ZDGF and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 204
•12 February 2025
ZDGF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 204 (12 February 2025)
Decision and Reasons for Decision
Applicant/s: ZDGF
Respondent: Minister for Immigration and Multicultural Affairs Tribunal Number: 2024/9786
Tribunal: General Member S Evans
Place: Sydney
Date: 12 February 2025
Decision:The decision not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution, the decision of 17 April 2023 to cancel the Applicant’s visa is revoked.
............................[SGD]............................................
General Member S Evans
CATCHWORDS
MIGRATION – Applicant citizen of New Zealand - Mandatory cancellation of Applicant’s visa – substantial criminal record – offences include crimes of a sexual nature perpetrated against children - Direction 110 - whether there is ‘another reason’ to revoke mandatory cancellation – Applicant has undertaken rehabilitation – strong protective factors - low risk of reoffending - decision under review set aside and substituted
CASES
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110)
STATEMENT OF REASONS
ZDGF (the Applicant) is 30 year-old citizen of New Zealand who first arrived in Australia in November 2006 when he was 11 years-old.1 The Applicant seeks review of a decision of a delegate of Minister for Immigration and Multicultural Affairs (the Respondent) dated 20 November 2024 not to revoke the mandatory cancellation of his visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).2
INTRODUCTION
On 5 December 2022, the Applicant was convicted in the District Court of two counts of Use carriage service to access child abuse material; one count of Use carriage service to solicit child abuse material; one count of Possess/control child abuse material-use carriage service; and six counts of Use carriage service to make available child abuse
1 G-Documents (‘G’), G17, p.209; G43, p.847-848; Respondent’s Supplementary Documents, S2, p.12.
2 G1-G2, p.1-15; G4-G5, p.36-56.
material.3 The Applicant was sentenced to an aggregate term of imprisonment of three years and eight months expiring on 1 June 2026 with a non-parole period of 22 months.4
On 17 April 2023, the Applicant’s visa was mandatorily cancelled by a delegate of the Respondent pursuant to section 501(3A) of the Act on the basis that he did not pass the character test by operation of section 501(6)(e) of the Act having been convicted in Australia of one or more sexually based offences involving a child.5
On 6 May 2023, the Applicant made representations to have the visa cancellation revoked under s 501CA of the Act.6 On 20 November 2024, a delegate found that the power under s 501CA(4) to revoke the cancellation was not enlivened.7 On 26 November 2024, the Applicant sought review of the delegate’s decision in the Tribunal.8
For the reasons that follow, the reviewable decision will be set aside and substituted with a decision that there is another reason to revoke the cancellation of the Applicant’s visa.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(6)(e) relevantly provides that a person does not pass the character test if a court in Australia has convicted a person of one or more sexually based offences involving a child or has found the person guilty of such an offence.
3 G6, p.57-60; G10, p.71-102.
4 G10, p.101.
5 G11, p.103-109.
6 G13, p.114-132.
7 G4-G5, p.36-56.
8 G2, p.4-15.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 non- citizen poses a measurable 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the 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. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction 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 set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a) that the Applicant passes the character test; or
(b) that there is another reason why the original decision should be revoked.
It is not in dispute that the Applicant does not pass the character test by operation of s 501(6)(e) of the Act. As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
The Applicant’s parents have provided a statement dated 12 May 2023, and both gave evidence at the hearing. The Applicant was born in South Africa in 1995. In 1999, when the Applicant was five years-old, he, his parents and younger brother emigrated to New Zealand where they acquired New Zealand citizenship.9
The Applicant’s parents remain married, and his father runs a business in Australia.10 The Applicant’s parents say ZDGF grew up surrounded by a loving family, extended family and friends. However, the Applicant had a difficult childhood due to his visual impairment, social awkwardness and low self-esteem and was frequently bullied at school. After graduating, the Applicant obtained employment using his IT skills and remained employed until his arrest in July 2021.11
The Applicant’s parents consider their son a polite, well-mannered and good natured person who keeps himself to himself. They say he is not very outgoing and takes time to get to know people and make friends. They note his contribution to the community, establishing a computer system for disadvantaged communities in Vanuatu and his work as a volunteer firefighter in the NSW Rural Fire Service.12
9 G17, p.209-210; G43, p.847-848; Respondent’s Supplementary Documents, S2, p.12.
10 Report of Tim Watson-Munro dated 13 January 2024, p.4.
11 G17, p.209-210; Report of Tim Watson-Munro dated 13 January 2024, p.5; G10, p.73.
12 G17, p.209-210; G28, p.237; G29, p.238.
The Applicant’s mother gave evidence that should he return to New Zealand, the Applicant would find it exceptionally difficult to manage without a support network given his social anxiety and mental health conditions.
The Applicant’s parents have supported him since his arrest and plan to continue their emotional and practical support when he is released from custody. At 30 years-old, the Applicant has his life ahead of him but will require their intensive support to re-establish himself. His parents gave evidence they are of limited financial means and would be prepared to travel to New Zealand to help the Applicant get settled, but could not afford to provide the ongoing support he will require should he return to New Zealand. The Applicant’s mother said she and her husband had discussed moving to New Zealand to support their son should his visa remain cancelled, but they are committed to Australia, they have a business in Australia and are active in their local community.
The Applicant’s grandparents have provided a character reference stating that his offending was out of character and unfortunate.13
The Applicant’s aunt provided an undated statement and gave evidence at the hearing.14 She and her husband reside in New Zealand and are aware of the Applicant’s offending. She said she understood that the Applicant’s offending was driven by his friendships with people he met online and trusting others. She said that the Applicant had been a loving cousin to her children. Should he return to New Zealand, her support for the Applicant would be limited to emotional support and would be prepared to invite him to family events.
In an undated statement, the Applicant’s brother writes that he is committed to helping his brother but will be unable to provide support should he be removed from Australia.15
13 G18, p.211.
14 G19, p.212.
15 G20, p.213.
CONSIDERATIONS AND REASONING
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
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.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the conduct to date
Paragraph 8.1.1 of Direction 110 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;
Nature and seriousness of the Applicant’s conduct
I have set out the Applicant’s convictions and sentence in paragraph [2] of these reasons. The Applicant plead guilty to the offences. In sentencing the Applicant, Her Honour Judge Beckett noted his plea was entered in the face of a strong Crown case.16
The detail of the Applicant’s offending is set out in the sentencing remarks of Her Honour Judge Beckett and summarised in the Respondent’s Statement of Facts, Issues and Contentions:
The sentencing judge found that the applicant's offending commenced on 11 December 2014 and continued until his arrest on 12 July 2021. It 'establishes a long held sexual interest in children, over more than five years' and 'reflects an interest in accessing, accumulating, sharing and by transmitting material with other like- minded people and entering into communication with one child directly, being ST'. The sentencing judge considered that the offending falls into three separate categories and made the following remarks:
(a) Between 21 February and 6 March 2020, the applicant interacted with a 13-year-old female (ST) on the application Instagram. The sentencing judge noted that it was 'not explicit that the offender knew precisely that the person he was talking to was 13 years of age, although so much might have been inferred from her handle name which appears to contain numbers which appear to be referrable to a date of birth'. However, the applicant's plea of
16 G10, p.95.
guilty was made on the basis that the applicant was reckless in this regard. During the course of the communication:
(i) The applicant spoke to ST directly in 'highly sexualised language with reference to explicit parts of the body and sexualised conduct' and in doing so exposed her 'to graphic content'. The sentencing judge accepted that this offence 'represented a further step towards seeking out a child for direct involvement in his sexual interest' and assessed the objective seriousness to be 'below the mid-range'.
(ii) ST transmitted an image of herself between her legs to the applicant, which was unsolicited and reasonably depicted a person under the age of 18.
The applicant took a screenshot the image without ST's consent and retained possession of it from 28 February 2020 until the time of his arrest. The sentencing judge assessed the objective seriousness as towards the bottom of the range.
(iii) The applicant solicited a further image from ST for an obvious sexual purpose. There was 'some but limited persistence and no particular sophistication'. The sentencing judge assessed the offending as falling words the lower end of the range of seriousness.
(b) Between 20 June 2020 and 21 June 2021, the applicant used Telegram, a messaging application, to transmit and receive child abuse material using seven devices. The sentencing judge observed that' the criminality of this offence is in the sharing with like-minded people and creating the market for interest in this kind of product with its associated exploitation damage and misery'. This offending involved the sending and receiving of video files depicting over seven real children aged between less than five and 14 years of age and depicting various conduct, including penetrative intercourse between children, and between adults and children; digital penetration of children by adults; children involved in oral sex; and acts of bestiality involving children). The sentencing judge assessed the objective seriousness of the conduct as varying between the 'bottom of the range' to a 'under mid-range' due in part to the reasonably low number of files transmitted.
(c) Between 11 December 2014 and 30 June 2021, the applicant was found in possession of 238 files, being 826 photos and 457 videos, across seven devices depicting real pre-pubescent children under the age of 13 involved in sex acts, witnessing sex acts or concentrating on their anal or genital areas. The sentencing judge remarked that the offences are 'a reasonably serious example of this kind of offence' and 'indicates the offender's interest does not appear to be insignificant'.17
It was submitted on behalf of the Applicant that the most serious offending, which involved the 13 year-old child ST, took place over a period of about two weeks. The Applicant was not found to have specific knowledge of her young age and the plea of guilty was on the
17 G10, p.71-102; Respondent’s Statement of Facts, Issues and Contentions dated 14 January 2025 at [21].
basis that he was reckless of her age. Further, the conduct of speaking to ST directly and exposing her to graphic content involved a single incident and did not involve the transmission of footage of any kind, and the sentencing judge found this to be ‘below the mid-range of seriousness’.18 When considering the seriousness of the offending, the Applicant also notes the court found that the single unsolicited image ST sent of herself to the Applicant was ‘towards the bottom end of the range’ of seriousness. An additional unsolicited image sent from the child ‘for an obvious sexual purpose’ involved ‘no particular sophistication’ and was ‘towards the lower end of the range’.19
I acknowledge the Applicant’s submissions, but the offences must be considered very serious, as they are crimes of a sexual nature perpetrated against children. Further, the Applicant, who was a first-time offender, was sentenced to a moderate term of custodial imprisonment. This is a reflection of the objective seriousness of the offences, noting imprisonment is a penalty of last resort in the sentencing hierarchy.
As found by the court, the Applicant’s offending against ST, which occurred in 2020, was his most serious offence. Having been convicted of 10 offences over a period of over five years, I find there was a degree of increasing seriousness in his offending.20
Having regard to the Direction, the Applicant’s offending includes crimes of a sexual nature perpetrated against children for which he was sentenced to a moderate term of imprisonment. His offending must be regarded as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:
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.
18 Applicant’s Statement of Facts, Issues and Contentions dated 19 December 2024 at [5]; G10, p.86.
19 G10, p.86-87.
20 G6, p.57-60; G10, p.71-102.
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 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to the Australian community should the Applicant commit similar offending is very serious, having the potential to cause physical or psychological harm to members of the Australian community including minors. Further offending may cause harm to children and their families in the Australian community.
The Applicant’s evidence
The Applicant gave evidence that he understood his offending behaviour was wrong and that there are serious consequences for offences of this nature. Between 20 July and 21 December 2023, the Applicant completed the Moderate Intensity Sexual Offender Program (MISOP).21 The MISOP Treatment Report dated 29 January 2024 from NSW Corrective Services is in evidence.22 The Applicant told me the MISOP has aided his appreciation of the impact of his offending. He has matured and now has practical tools to use when he is struggling or feeling isolated. The program also demonstrated there was more to life than spending time online. His participation in the Real Understanding of Self Help program (RUSH) had been similarly helpful, and the programs complement each other.23
The Applicant is not eligible for parole until June 2025. Should he be returned to the community, the Applicant would not be allowed electronic devices in the first instance. He understands he would be placed on the Child Protection Register (the Register). He would be subject to strict supervision, and would be required to hand over any electronic devices,
21 G37, p.637.
22 G36, p.601-613.
23 G27, p.236; Respondent’s Supplementary Documents, S2, p.15.
emails and passwords should he be asked to do so.24 If released on parole, he intends to live with his parents and brother. Should his brother leave the family home, he would remain in close proximity.
The Applicant said he came into contact with child abuse material after he joined a ‘discord group’ related to online gaming, from where he was asked to join another group. He was smoking a lot of marijuana at the time and claims he was not thinking correctly, but concedes he knew it was child abuse material. He joined the group when he was age 19, and was 24 years-old when he engaged with ST.
The Applicant claims not to have accessed the abuse material for his own sexual gratification. He said he did not obtain any excitement from pornography and the only excitement he was feeling was that he had friends. In retrospect, he says that he should have sought help.
Risk of reoffending
In evidence is a psychological assessment prepared by Katie Martens for the Long Bay Parole Unit which is part of a NSW Corrective Services pre-release report dated 13 March 2024.25 Ms Martens writes that the Applicant was assessed under the Level of Service Inventory – Revised (LSI-R) tool as being ‘low’ risk of reoffending.26 In December 2024 he was assessed under the Static-99R tool as being in the “Above Average” risk level.27 The MISOP report concludes that:
Overall, [the Applicant] presented as motivated and engaged during his time in the MISOP. He made significant progress in overcoming an initial barrier to his participation (i.e., low social confidence) and appeared to place meaningful effort into task work and group discussions. He formed seemingly genuine connections with other group members, had a respectful view towards the role of therapists, and responded well to feedback and guidance. He demonstrated positive shifts across a number of criminogenic needs, and he developed detailed and relevant plans to further manage these risk factors in the future. Whilst providing an account of his offending that was consistent with official records, he maintained throughout his time in the program that his behaviour was not sexually motivated. As such, it is likely that his plans are not inclusive of all of his risk factors. If [the Applicant] does
24 Applicant’s Statement of Facts, Issues and Contentions dated 19 December 2024 at [21]-[22].
25 G26, p.226-235.
26 G26, p.231.
27 G36, p.610.
acknowledge any difficulties with sexual self-regulation in the future, his plans should be amended to include strategies to manage this aspect of his life.28
Consultant psychologist Tim Watson-Munro has prepared a psychological assessment report of the Applicant dated 13 January 2024.29 He also gave oral evidence at the hearing. Mr Watson-Munro stated the Applicant presented as a cooperative if psychologically troubled man. He said the Applicant described a complex clinical and developmental history, characterised by long-standing symptoms of depression, anxiety, low self-esteem and attendant to these dynamics being highly isolated in the community. He reports that the Applicant had previously been diagnosed with social anxiety and that psychometric instruments revealed severe depression, severe stress and extremely severe anxiety. Mr Watson-Munro notes the Applicant’s use of cannabis throughout his offending.
The report notes that the Applicant had undertaken considerable treatment since his arrest. While he was on bail, he had 18 sessions with psychologist Claudia Bakewell. His rehabilitation also included participation in MISOP, the RUSH program and the EQUIPS foundation program while in custody.
Mr Watson Munro opined that the risk the Applicant may reoffend was trending from moderate to low. His assessment is based on the progress the Applicant has made since his arrest, citing the treatment he has undertaken and the insights he has gained into the dynamics surrounding his prior offending conduct. He enjoys the full support of his family and no longer smokes cannabis. He has acknowledged his wrongdoing and in Mr Watson- Munro’s opinion he has expressed appropriate remorse for his behaviour.30
The Applicant said that marijuana was the only drug he had ever used and acknowledged his involvement with cyberspace and illegal pornography was a form of escape for him. He described a pattern of disassociating when he was online, but was aware of what he was doing. He reported he could spend up to 14 hours a day online when he was gaming.
28 G36, p.610.
29 Applicant’s Bundle of Documents in Reply filed 17 January 2025, p.9-31.
30 Ibid, p.12.
Should he be able to remain in Australia, the Applicant is committed to remaining away from all forms of IT and expressed an understanding it had ruined his life. He plans to live with his parents and continue psychological treatment.
When giving evidence Mr Watson Munro was asked about the MISOP Treatment Report where the author reported the nature of the Applicant’s offending was indicative of him experiencing sexual arousal to prepubescent children, before observing:
When this was highlighted to [the Applicant], he stated that his sexual offending was not motivated by arousal and claimed that he engaged in the behaviour solely to obtain a sense of acceptance from the people he was sharing the child abuse material with online. As he did not acknowledge the deviant sexual attraction [the Applicant] did not identify this as one of his risk factors or subsequently include strategies to manage this in his Self-Management Plans. If he does acknowledge or experience any difficulties in this domain in the future, he is encouraged to seek assistance with this from a psychologist.31
Similarly, the psychological assessment report from Katie Martens provided on 30 April 2024 states under the heading ‘Attitudes’ that the Applicant has continued to deny any sexual attraction to children and also denied viewing and transmitting the child abuse material for his own sexual gratification, despite his offending spanning a seven year period from 2014 - 2021.32 The Applicant maintained his offending was motivated out of a desire to build and maintain connections with people he was communicating with online. He reported that his anxiety disorder led to feelings of isolation and loneliness which led him to increase the amount of time he spent socialising online.
That explanation is not accepted in the MISOP Treatment Report which observed ‘the chronicity of [the Applicant’s] offending and him engaging in explicit sexual talk with the 13- year-old female victim suggests that his actions were also driven by an underlying sexual interest in children’, and supports the observation in the pre-release report that “[the Applicant] appears to have little insight into sexual deviancy being a risk factor to his offending”.33
31 G36, p.608.
32 G26, p.227-228.
33 G26, p.228.
Mr Watson-Munro gave evidence it is common for sexual offenders to deny their motivation for offending of this nature. He said that it is clear that the Applicant requires further treatment, but it does not follow that he will necessarily reoffend. He said the Applicant has a desire to continue treatment and is addressing his underlying problems. He also has the benefit of his supportive and involved family and notes the medication he is taking to treat his depression has the side-effect of reduced libido. He also noted the primary diagnosis of the Applicant is a voyeuristic disorder not paedophilic.
Absent a formal risk assessment, the sentencing judge was cautious of assessing the risk the Applicant may reoffend, stating in part:
… I am more readily able to find that [the Applicant’s] prospects of rehabilitation are reasonable, although I am unable to make a more positive finding without the benefit of a risk assessment, noting that Ms Martin did not provide an assessment nor did Ms Bakewell and no sentencing assessment report was sought.
Despite the lengthy period in which the offender has been involved with this offending of this kind, I am prepared to make a finding as to reasonably positive prospects based upon his otherwise good record, his willingness to admit his guilt, his preparedness to undertake counselling and his insight that he may be better placed to avoid reoffending by obtaining a more social occupation and to spend more time with family members to reduce his isolation.34
This is the first time the Applicant has been in any form of custody. On 5 September 2021, the Applicant was assaulted by three other prisoners, which he reports was traumatising Despite that, he has maintained positive behaviour in custody and is reported to have been polite and engaged.35
He has been proactive in undertaking counselling and various courses to aid his rehabilitation and his record is of having seized every opportunity to ensure his best chance of rehabilitation. While he was on bail, he attended 18 sessions with psychologist Claudia Bakewell and has completed 51 sessions in the intensive MISOP while in custody.36 I also take into account that the Applicant was arrested on 12 July 2021 and released on bail on 13 September 2021.37 In the community he abided by the conditions of his bail and without incident.
34 G10, p.96.
35 G31, p.255.
36 G35, p.535; Report of Tim Watson-Munro dated 13 January 2024, p.11.
37 G31, p.343-345; G10, p.73.
Since his imprisonment, he has progressed through the classification system and is a classed a ‘C2 minimum security’ inmate.38 The Applicant’s parents submit that had it not been for his visa status, he would have been eligible for external leave programs. This may be the case, but I note the pre-release report dated 13 March 2024 considered community release did not appear warranted as he had not been in custody for a significant period.39 The same report provides an overall assessment of the Applicant, stating in part:
[The Applicant] has utilised his time positively in custody by engaging in some educational and employment opportunities, as well as offence specific intervention, namely through the MISOP. The attached MISOP treatment report provides a detailed overview of his engagement in sex offender intervention. It was concluded that through his participation in the program, he gained meaningful insight into his offending behaviour and most of his risk factors and developed detailed and relevant plans to further manage these risk factors in the future. Although it is currently unknown if he will be permitted to remain in Australian, a detailed community supervision plan has been developed, which will seek to link him in with relevant services to continue to address his offending. He benefits from supportive family relations, and his support network have indicated a willingness to work with Community Corrections during [the Applicants] supervision.40
The pre-release report recommended a parole order be made for the Applicant on the basis of his having completed the MISOP, modelled positive prisoner performance and if released into the community he will have access to intervention in the community to address his risk factors and gain further insight into his offending behaviours.41
The Applicant submits that being placed on the Register is a significant protective factor as it ensures close supervision with strict reporting conditions. The Register records the personal details of offenders who have committed sexual offences against children or are otherwise found to pose a risk to children. He will be required to report personal information to police for at least eight years. During the reporting period police can collect intelligence which is added to his case file.
When considering the risk of further offending by the Applicant, I take into account that if he were to be released, he would be subject to strict parole conditions including the completion of a sex offender supervision assessment. He will be required to regularly liaise with the
38 Respondent’s Supplementary Documents, S2, p.15.
39 Respondent’s Supplementary Documents, S2, p.16.
40 Ibid, p.19.
41 Ibid.
Registrar and police. His parents and treating professionals will also monitor his compliance with conditions, his stability in the community, his engagement in treatment and potential concerns regarding online access. If financially possible he intends to recommence psychological treatment from Claudia Bakewell around managing his mental health and social anxiety disorder. Plans are also in place for him to manage his mental health through his local GP in conjunction with Dr Senda.
Having regard to the evidence, I am satisfied that the Applicant is at low risk of reoffending.
Protection of the Australian community – conclusion
The Applicant’s offending was very serious and the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
The evidence regarding the future risk of reoffending is not definitive. The Applicant spent a period in the community while awaiting sentencing for the offending during which he abided by parole conditions. It is of significant concern that contrary to the evidence, the Applicant does not concede his offending was linked to sexual arousal. That said, having particular regard to his psychological treatment, intense rehabilitation efforts, the risk assessment provided in sentencing and the thorough consideration of risk provided in the pre-release report, I accept a structured and realistic plan exists to averting further offending behaviours early on.
Should he return to the community, the Applicant will do so with considerable insight into his offending. He has been chastened by his imprisonment, consequent visa cancellation and the significant burden his offending has brought upon his family. He will also benefit from protective factors including his family – who are now aware of his offending and associated risk factors - monitoring by authorities, his intensive rehabilitation to date and ongoing treatment. For these reasons I find there is a low risk that the Applicant may reoffend. While this consideration weighs against revocation, I afford it less weight owing to the low risk of further offending by the Applicant.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Subsection 8.2(1) of Direction 110 provides that the Australian government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’.
Subsection 8.2(3) of the Direction specifies the following factors must be considered where relevant when considering the seriousness of family violence:
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.
There is no evidence that the Applicant has engaged in conduct that constitutes family violence and this consideration is afforded neutral weight.
Primary Consideration 3: The strength, nature and duration of ties in Australia
I am required to consider the impact of the decision on the Applicant’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. I am
also required to consider the strength, nature and duration of any other ties that ZDGF has to the Australian community having 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 immediate and extended family in Australia, most notably his parents and brother. The Applicant has an aunt, uncle, two grandparents and two cousins residing in Australia who would be affected by his removal.42
The Applicant began residing in Australia from November 2006 when he was age 11.43 He has spent many of his formative years in this country. It is not controversial that the Applicant’s offending did not start soon after his arrival in Australia, or that he has made a positive contribution to the community through his paid employment and volunteering work with Rotary and the NSW Rural Fire Service.44
The Applicant’s brother resides in Australia. In a statement he writes that the Applicant is his ‘best friend’ who has always been there for him.45
The Applicant is very close to both his parents. Should his visa be reinstated, he is expected to live with them upon his release. They have stated their intention to aid in their son’s rehabilitation and adjustment back into society. The emails they have sent to the Respondent seeking information and updates regarding the cancellation of the Applicant’s visa, and the emotional and financial support they have provided, speaks to an unwavering
42 G13, p.127.
43 G43, p.848; G17, p.209.
44 G22, p.215; G28, p.237; G39, p.238.
45 G20, p.213.
commitment to their son. I accept that the impact of his removal would be emotionally devastating for both his mother and father who would be deeply affected by this decision. They would also experience practical and financial hardship should they be required to support the Applicant in New Zealand.
The Applicant’s family in Australia would be expected to experience emotional, practical and financial hardship if the cancellation decision is not revoked. I accept that the Applicant has contributed to the community through his paid employment and volunteer work.
For these reasons, the strength, nature and duration of the Applicant’s ties in the Australian community weigh very heavily in favour of revoking the mandatory cancellation of his visa and is afforded significant weight.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(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 identified two minor cousins whose interests would be impacted by the Tribunal’s decision, child A is age six, and her sister Child B is age 3. There is no evidence as to the relationship that the Applicant has with the children, but the children’s mother has provided a statement in which she says the Applicant is a loyal, loving cousin to the children.46
I accept the Respondent’s submission that contact with the children is likely to be subject to restrictions owing to the nature of his offending. The conditions of his release will restrict his unsupervised contact with children under the age of 18 years.47 I also accept that the children are cared for by their mother and the extent to which the Applicant may be likely to play a positive parental role in the future is very limited.
This consideration is afforded nominal weight in favour of revocation.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(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.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
46 G19, p.212.
47 G36, p.610.
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. Rather, the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
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.
The Applicant’s offending is very serious and includes sexual offending against children which the Direction identifies as conduct that is particularly concerning. The Direction provides that the Australian community would expect that a person with this criminal history presents serious character concerns and should not continue to hold a visa.
Having regard to his serious offending, this consideration weighs very heavily against revocation.
OTHER CONSIDERATIONS IN THE DIRECTION
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that 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, 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 non-citizen.
Paragraph 9.1(2) of the Direction defines a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 9.1.2(2) of the Direction provides that where it is open to a non- citizen to apply for a protection visa, it is not necessary to consider non-refoulement obligations to the same level of detail as those type of issues are considered in a protection
visa application. However, I am required to ‘read, identify, understand and evaluate’ the representations.48
The Applicant does not contend that non-refoulement obligations arise and there is no evidence to indicate otherwise. This consideration weighs neither for nor against revoking the cancellation decision.
Extent of impediments if removed
Paragraph 9.2 of the Direction 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 29 years-old and suffers from mental health conditions with symptoms of social anxiety, depression and PTSD.49 He was placed on a mental health care plan prior to being sentenced for his offending, has seen a psychologist and takes medication for anxiety and depression.50 The Applicant’s parents state he has a vision impairment, but the Respondent notes there is no evidence as to how this is managed.51 In any event, the Applicant presents with a misaligned eye and is socially awkward. The Applicant finds it extremely difficult to make friends or acquaintances and I accept his social anxiety disorder will vastly magnify the difficulties he will face if returned to New Zealand.
The Applicant’s parents said that he has no friends, family or support in New Zealand as he has lived in Australia for 19 years.52
48 See Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]-[25].
49 G24, p.218.
50 G13, p.130.
51 G17, p.209; Respondent’s Statement of Facts, Issues and Contentions dated 14 January 2025 at [54].
52 G17, p.209.
It is not disputed that the Applicant would have access to the same level of medical and economic support as to what is generally available to other citizens in New Zealand. He would also be expected to have access to psychological support. However, I accept Mr Watson-Munro’s opinion that the Applicant’s significant psychological problems will make it difficult for him to secure employment and manage independently in New Zealand. I also accept that it is unlikely the Applicant would be able to access the same level of psychological care should he be returned to New Zealand as the continuity of treatment he receives would lapse.
The Applicant reported being traumatised by an assault on him while in prison which has aggravated his low self-esteem, and ongoing anticipatory anxiety and depression.53 His depression has been compounded by his exposure to the criminal justice system and the possibility of him being returned to New Zealand. He told Mr Watson-Munro that he has no friends and family outside of Australia and in this context, he fears that if he is deported he will be essentially isolated which will inevitably aggravate his feelings of despair loneliness and pessimism.
Although he holds New Zealand citizenship, the Applicant was born in South Africa. When he and his family left South Africa, New Zealand proved an interim domicile before the family eventually settled in Australia. While the Applicant acquired New Zealand citizenship, he has very limited familiarity with New Zealand. His parents have expressed a willingness to do what they can to assist the Applicant should he return to New Zealand, but I accept this would be limited.
In my view, the Applicant will require the intensive support and unconditional assistance of his family to reintegrate into society and reestablish himself. He will not have access to that support should he return to New Zealand, which will also likely prove a significant impediment to his rehabilitation.
Overall, this consideration weighs very heavily in favour of revoking the cancellation decision.
53 G31, p.255; Applicant’s Bundle of Evidence in Reply filed 17 January 2025, p.4-5.
CONCLUSION
The Applicant’s offending is objectively very serious. I have taken into account that the offending was below the mid-range of seriousness, and his dedication to rehabilitation and finding there is a low risk that he will reoffend. Nonetheless, the nature of the offending is such that the protection of the Australian community weighs against revocation and is afforded significant weight. The expectations of the Australian community weigh very heavily against revoking the cancellation decision.
The Applicant’s immediate family will undoubtably be integral to his wellbeing and rehabilitation. His removal would be emotionally taxing and place a intolerable burden on them. In recognition of this, the primary consideration of the Applicant’s ties to the community is afforded very heavy weight in favour of revocation.
The Applicant has no children of his own. There is no evidence as to the role he expects to play in the lives of his two minor cousins. Given the nature of his offending his ability to play a positive role in their lives is likely to be very limited. The primary consideration of the best interests of minor children affected by this decision nominally weighs in favour of revocation and carries little weight.
Should he return to New Zealand, the Applicant would face exceptional difficulty reestablishing himself considering his social anxiety, lack of ongoing support and mental health conditions. I place significant weight in favour of revocation on the impediments the Applicant would face without access to the support he has in Australia.
On balance, I am satisfied that there is another reason to revoke the cancellation decision.
DECISION
The decision not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution, the decision of 17 April 2023 to cancel the Applicant’s visa is revoked.
Date(s)ofhearing: 22 and 23 January 2025 CounselfortheApplicant:
N Poynder
SolicitorsfortheApplicant:
Y Gasic, Citation Legal
SolicitorsfortheRespondent:
J Fyfe, Minter Ellison
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