The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct

1. 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.
2. 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: > > 1. information and evidence on the risk of the non-citizen re-offending; and > 1. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence

3. 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 his 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.
4. The Respondent submits that any future offending by the Applicant of similar nature would have the potential to cause physical and / or psychological damage to vulnerable members of the community. The Respondent submits that the Applicant's conduct has not been tested in the community and the Applicant has not completed any rehabilitation recommended by the psychologist. The Respondent notes that the protective factors had been in existence previously did not prevent offending while the risk factors, including social isolation and impulsivity, continue to be present.
5. For the reasons set out above, the Tribunal has found the applicant's most recent offending to be very serious. The Tribunal is of the view that, should the Applicant engage in further offending of similar kind, such conduct has the potential of causing significant psychological harm to vulnerable members of the community such as children. The Tribunal has found earlier offending to be of far lesser seriousness but the Tribunal considers that there may be serious harm caused to others, in particular other road users, if the Applicant were to engage in driving under influence.
6. The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct by considering the risk of reoffending and evidence of rehabilitation.
7. In his written submission to the Tribunal the Applicant states that he is not a risk to the public or children because he takes full responsibility for everything he has done and he is 'sorry'. The Applicant states that he knows he has done the wrong thing and he has no interest in children and has no past history of being involved with children. The Applicant states that he attempted to be involved in a program while in prison but he was not able to and he was also seeing a psychologist during his court case and at VIDC. The Applicant states that he will not reoffend again.
8. There is evidence that the Applicant had completed a MERIT program in 2005 following the drug offending and the Applicant told the Tribunal that he had given up drugs and alcohol long time ago. The Applicant concedes that what he had done was wrong and that he should have 'deleted' the profile but he was curious and did not think he was doing anything wrong at the time. The Applicant states that he will not reoffend as he has been away from his family and he wants to go back to his family and support his mother and "get his life back". He refers to his mental health and states that he will continue sessions with the psychologist if he is in the community.
9. The Respondent notes the remarks of Musgrave J in relation to the assessment of risk of reoffending, noting that evidence of remorse was very limited and noting the applicant's denial of his conduct. The Respondent notes that there is no evidence that the Applicant has undertaken any meaningful, formal or targeted rehabilitation, there is no evidence of rehabilitation efforts, progress or future plans, no evidence regarding future plans or protective factors and the Respondent submits that the applicant's unmet treatment needs increase the likelihood of reoffending.
10. The Respondent submits that the information in the police summons concerning previous sexual conduct by the Applicant (which did not result in convictions) indicates that the 2023 offence was not an isolated incident and the Respondent submits there is a real risk the Applicant will engage in similar offending. (As noted above, the Tribunal has formed the view that it is unsafe to rely on any untested evidence of past conduct in the absence of the applicant's admission of such conduct, any objective evidence of such conduct occurring or any finding of guilt).
11. The Respondent notes that the protective factors of to which the Applicant refers, such as family and friends' support, had been present when the past offending occurred. The Respondent submits that the Applicant lacks remorse and insight and continues to minimise his guilty by blaming his conduct on the police. The Respondent submits the Applicant's remorse is 'superficial' and only in relation to the impact on himself and his family. The Respondent refers to the DCJ reports indicating that in November 2021 the Applicant denied culpability or responsibility.
12. The Tribunal has been provided with the Department of Corrective Services notes including classification assessments, a copy of the case management file, bail reports, court and police records and other materials. There are before the Tribunal police reports and fact sheets.
13. The Applicant provided to the delegate and the Tribunal several character references. The Tribunal accepts that those who provided statements believe the Applicant to be of good character. Some also refer to the hardship the Applicant would experience if he returns to the UK.
14. In assessing the risk of reoffending, the Tribunal places significant weight on the Applicant's apparent lack of meaningful insight into his conduct. While he concedes that what he did was 'wrong', the Applicant repeatedly claims that he was 'pushed' into the communication, that he did engage in the conversation because he wanted to find out who that person was (and it is unclear how he would have done that by engaging in sexually explicit messaging) and that he did not think he was doing anything wrong. The Applicant appears to genuinely believe that because there was 'something wrong' with the person he was communicating with, his communication was appropriate and acceptable. The Tribunal has formed the view that there remains the risk of the Applicant reoffending, given his persistent denials that he has done anything wrong and his claims that he was merely curious.
15. As for the other offending, the Applicant claims that he has given up drugs and alcohol. There is little evidence of the Applicant engaging in formal rehabilitation (he told the Tribunal he had completed a few sessions of the MERIT program and his evidence is that he was not eligible for participating in programs while in jail) and while the Applicant refers to his ongoing sessions with the psychologist, he refers to these being due to his mental health rather than rehabilitation. The Applicant told the Tribunal that if released, he would arrange appropriate courses in consultation with Probation and Parole but there is no evidence before the Tribunal about any arrangements being made for future session.
16. The Tribunal accepts the Respondent's submission that some of the risk factors, such as social isolation, will continue to be present. However, the Tribunal is also of the view that the possibility of the visa cancellation and of removal from Australia, and the possibility of being removed from his family, may act as a strong incentive for the Applicant not to reoffend.
17. The Tribunal has formed the view that there remains a real risk of reoffending, but it is not a high risk. That seems to be consistent with the assessment by Ms North. The Tribunal has formed the view that the protection of the Australian community weighs against the revocation.

Whether the conduct engaged in constituted family violence

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen

1. There is no evidence to indicate that the Applicant had committed family violence. This consideration is neutral.

The strength, nature, and duration of ties to Australia

(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

1. How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that

   1. Less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   3. 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.

1. The Applicant has been living in Australia virtually his entire life, since he was a very young child under the age of one. He did not begin offending soon after arriving in Australia. The Applicant provided to the Tribunal evidence of his employment while in prison in 2024 and in his written statement to the Tribunal the Applicant refers to his past employment. The Tribunal is prepared to accept that the Applicant had contributed positively to the Australian community through his past employment and other activities.
2. The Applicant's immediate family, including mother and four siblings live in Australia. (The Respondent notes that the sentencing judge also referred to the presence of the Applicant's daughter in Australia but the Applicant told the Tribunal that he has had no contact with his daughter for many years and is estranged from her.) The Applicant's multiple nieces and nephews live in Australia.
3. In his statement to the Tribunal, the Applicant states that his mother suffers from dementia and other medical conditions. The Applicant states that he thought he was an Australian citizen and calls Australia home as his family and friends are here. The Applicant states that he has support from family and friends. The Applicant submits that his family will suffer if he was required to leave Australia. There are before the Tribunal statements from family members addressing the hardship that had been caused by the cancellation of the Applicant's visa. In particular, the Applicant claims to have been the main caregiver for his mother and the caring responsibilities have now passed to other siblings.
4. In oral evidence the Applicant told the Tribunal that he used to look after his mother, who suffers from dementia. While he has been away, his sister has been living near the mother's house but acting as a carer has taken a toll on his sister's marriage. The Applicant states that his mother does not wish to enter a nursing home. The Tribunal has been provided with a statement from the Applicant's sister supporting these claims.
5. The Tribunal accepts that the Applicant's family reside in Australia and are Australian citizens or permanent residents. The Tribunal accepts that prior to his incarceration, the Applicant acted as a primary caregiver to his mother and that he wants to resume that role. The Tribunal accepts that hardship had been caused to the Applicant's family due to having to assume these caring responsibilities in the Applicant's absence.
6. The Tribunal accepts that the Applicant's family members would be adversely impacted if the Applicant was to be removed from Australia. In particular, the Tribunal accepts that the Applicant wishes to retain the caring responsibilities towards his elderly mother.
7. The Respondent submits that the mother's GP recommends that the family seek an aged care assessment and access formal services and that may reduce the impact on the Applicant's sister. In the Tribunal's view, that suggestion is speculative in the absence of any information as to the nature and extent of services that may be available to the mother and in the absence of any evidence as to the availability of such services in the area where the family resides. The Applicant submits that his mother prefers to be looked after by the family members. It is not for this Tribunal to impose a particular model of care. The Tribunal accepts that the applicant's removal from Australia would have significant adverse effect on the applicant's mother and siblings.
8. The Tribunal accepts that in addition to strong family ties, the Applicant also has social and employment ties. The Tribunal also accepts that the Applicant has social ties and there are a number of character references from the applicant's friends.
9. The Tribunal finds that this consideration weighs very heavily in favour of the revocation.

The best interests of minor children in Australia

1. 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.
2. There is no evidence before the Tribunal to indicate that there are any minor children in Australia who would be affected by the present decision. This consideration is neutral.

1. 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.'

1. 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.
2. 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.

1. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[5] 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.[6]
2. 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.
3. In Ismail[7] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):

... para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.

Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...

1. The Applicant has committed a serious offence, being a sexual offence involving a child. He has a history of other offending. The Tribunal considers that the community expectations would be against revocation. The Tribunal gives this consideration considerable weight.

1. 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...

1. The Applicant is not subject of a protection finding. The Applicant does not claim, and there is no evidence before the Tribunal to indicate that Australia's non-refoulement obligations are engaged in this case.
2. If the Applicant's visa remains cancelled, the Applicant would be removed from Australia and may spend time in detention until the removal can be effected. The cancellation of the visa means that the Applicant may not be granted another Australian visa in the future.
3. The Tribunal is of the view that this consideration weighs in favour of the revocation. The Respondent submits that these are the intended consequences of the offending and the Tribunal accepts that this is so and gives this consideration limited weight.

1. 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.

2. The Applicant is 61 years of age. He had lived in Australia since the age of about 1 and the Tribunal accepts that the Applicant has spent virtually his entire life in this country. Nevertheless, it is not apparent that the Applicant would experience substantial language or cultural barriers if he was to live in the UK.
3. The Tribunal has been provided with the applicant's IHMS, hospital and other medical records. It is recorded that the Applicant has a number of ailments, including anxiety and depression and lung disease and the Applicant told the Tribunal that his mental health would deteriorate if he was to live in the UK. The Applicant states that due to his lung disease, it would be difficult for him to live in a cold climate like the UK and being removed would also exacerbate his mental condition; but the Respondent notes that these claims are unsubstantiated, there is no evidence that the Applicant will not be able to access health treatment and he can continue to communicate with his family by electronic means. The Tribunal accepts that this is so, however, the Tribunal also considers that the nature of the Applicant's relationship with his family members if he were to maintain only electronic contact would be different to his relationship now. Significantly, the Applicant would be denied the opportunity to provide physical and practical support to his mother.
4. The Tribunal accepts the evidence regarding the Applicant's health, however, the Tribunal also accepts the Respondent's submission that there is no evidence that the Applicant will not have access to appropriate and adequate medical treatment in the UK.
5. The Applicant told the Tribunal that he has no family in the UK and would have no support. The Tribunal accepts that the Applicant may have limited (if any) social and economic support in the UK. The Tribunal accepts that the Applicant would be separated from his immediate family and his familiar surroundings in Australia. The Tribunal accepts that there would be a significant impediment to the Applicant if he is removed from Australia. This consideration weighs heavily in favour of revocation.

1. Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:

Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.'

1. There is no evidence before the Tribunal to indicate that a decision not to revoke the cancellation of the Applicant's visa would significantly compromise the delivery of a major project or of an important service in Australia. This consideration is neutral.

1. The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
2. The Tribunal has determined that the Applicant had engaged in serious conduct which involved an offence of a sexual nature against a minor. Some of the earlier conduct, such as the drug offending and the driving offences, had the potential of causing serious harm to the community. The Tribunal has formed the view that the Applicant lacks meaningful insight into his conduct and there remains a risk (albeit not a high risk) of the Applicant reoffending. The Tribunal finds that the protection of the community weighs heavily against the revocation. The Tribunal acknowledges that the Direction provides that this consideration should be given more weight than other primary considerations.
3. The Tribunal has also determined that the expectation of the community weighs against the revocation. The Tribunal gives these considerations significant weight.
4. The Tribunal finds that the Applicant has strong family, social and other ties in this country. He has lived in Australia since being a very young child and has spent his entire life here. His family, including mother and siblings, are in Australia and the Tribunal accepts that he has no family and no social supports in the UK.
5. The Tribunal accepts that there may be significantly adverse impact on the Applicant's family members if the decision is made not to revoke the cancellation. In particular, the Tribunal accepts that the Applicant had acted as a primary caregiver to his elderly mother who suffers from dementia and will resume that role, if released into the community. The Tribunal accepts that there had been some adverse impact on other family members who had to take on the carer role while the applicant has been in detention. This factor weighs heavily in favour of revocation.
6. The Tribunal has formed the view that there would be a significant impediment to the Applicant if he is removed from the UK. This is because of the Applicant's health conditions and medical needs, lack of any meaningful social supports in the UK, and uncertain opportunities for employment and housing. This factor weighs heavily in favour of revocation.
7. The Tribunal has determined that the legal consequences of the decision weigh in favour of the revocation, but the Tribunal gives this consideration limited weight, noting that these are the intended consequences of the failure to pass the character test.
8. Other considerations, such as the family violence, best interests of children and effect on business interests, are neutral.
9. In the particular circumstances of this case, the Tribunal has decided to give greatest weight to the extent of impediment if removed and the strength, nature and duration of the Applicant's ties to this country. In the particular circumstances of this case, the Tribunal has decided that these considerations outweigh other considerations.
10. The Tribunal has decided that the decision under review should be set aside and substituted with the decision that the cancellation of the applicant's Class BF visa is revoked.

The Tribunal sets aside the decision not to revoke the cancellation of the Applicant's Class BF Transitional (Permanent) visa and substitutes the decision that the cancellation of that visa is revoked.

[1] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90.

[2] Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653.

[3] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468.

[4] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11.

[5] [2019] FCAFC 185 ('FYBR').

[6] 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.

[7] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]- [52].