1. On 4 February 2025, another delegate of the Minister found that the applicant was owed protection obligations under s 36(2)(a) of the Act. The delegate was satisfied that the applicant has a well-founded fear of persecution for reasons of his sexual orientation.

1. The decision to refuse to grant a protection visa resulted from the applicant being convicted of using a carriage service to transmit a communication to a person the applicant believed to be under 16 years of age with the intention of procuring that person to engage in sexual activity (the offence). This is an offence under s 476.26 of the Criminal Code,1 and carries a maximum penalty of 15 years imprisonment. The applicant pleaded guilty. He was sentenced to 27 months' imprisonment and released on entering a recognisance of

$2,500.00 to be of good behaviour for two years. The applicant served no time in prison, having been on bail pending the trial.

1. The application for review was lodged on 24 April 2025 and was heard on 24 and 25 June 2025. The applicant was represented by Dr J Donnelly of counsel and the Minister was

1 Criminal Code Act 1995 (Cth) - Schedule - The Criminal Code.

represented by Mr M Sheedy, solicitor. The applicant gave evidence, as did his friends Mr Ho, Mr Andrawos and Mr Kaiss and his previous treating psychologist, Mr Jones.

1. For the following reasons, I have decided to set aside the decision under review and substitute a decision not to exercise the discretion under s 501 (1) to refuse the grant of a protection visa.

1. The Tribunal has jurisdiction to review a decision to refuse to grant a visa on character grounds, where the application for review is lodged within nine days after the decision is notified: s 500(6B). The application for review was lodged on 24 April 2025, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.

1. In deciding the application, I have considered:

(a) The applicant's statement of facts, issues and contentions (SOFIC) - Exhibit A1

(b) The applicant's statement dated 29 May 2025 - Exhibit A2

(c) The Visa Entitlement Verification Online (VEVO) Visa Details Check - Exhibit A3

(d) The applicant's response to the Minister's SOFIC - Exhibit A4

(e) The Minister's SOFIC - Exhibit R1

(f) The Minister's tender bundle - Exhibit R2

(g) The Minister's supplementary tender bundle - Exhibit R3

(h) Selected material summonsed from NSW Department of Communities and Justice and the District Court of NSW - Exhibit R4

(i) The G documents - Exhibit G

(j) The oral evidence given by the applicant and his witnesses.

(k) The closing oral submissions made by Mr Donnelly and Mr Sheedy.

1. All exhibits other than Exhibit A3 are included in the Hearing Book (HB).

1. Relevant parts of the oral evidence and submissions are considered below.

1. The following background is taken from the statement of agreed facts, the sentencing judge's remarks, the applicant's statements, the parties' respective SOFICs, the protection visa assessment record and other relevant material in the HB.

1. The applicant is a citizen of Lebanon who arrived in Australia at the age of 28 on a Skilled Migrant (subclass 189) visa. He is currently 37 years of age and identifies as bisexual. He is a Shia Muslim. In a statement provided in support of the protection visa application, the applicant stated that he has 'a strong attraction to men' and has 'an attraction to teenage boys', which he knows is wrong.2

1. During his protection visa application interview, the applicant told the delegate that he was born and raised in Beirut, that his father was killed during the war when he was three years old and that he had never known his mother. The applicant claimed that he was raised in an orphanage until the age of twelve, when he went to live with his grandmother. He claimed to have suffered physical abuse and isolation in the orphanage. He stated that it was only when he started university at the age of 18 that he began to understand and acknowledge his sexuality. The applicant told the delegate that he started considering a move to Australia in around 2014, due to a combination of the employment opportunities and social freedoms he considered Australia offered.

1. Prior to committing the offence, the applicant worked for an information technology company. His work required a security clearance. The applicant lost the security clearance because of the offence. He ultimately found other employment with an information

technology consultancy company, for which he currently works full time as a senior systems engineer. The applicant also runs a small IT consultancy, doing some pro bono and some paid work for small businesses and people who otherwise need technology support.

1. On 25 October 2020, an adult male who I will refer to as 'D' created a Grindr account. Grindr is a location based social networking and online dating application, which uses GPS locations to connect users who are geographically close. The account was created using the name 'Jacob' and listed the user's age as 18, which is the lowest age available on the application. The profile featured images of a young male, apparently located online, and a public caption stating: 'hi I am new here and want to try and make new friends and new people to hang out with'.

1. In these reasons for decision, when referring to the exchanges between the applicant and D which form the basis of the offence, I will refer to D as 'Jacob'.

1. On 25 October 2020, the applicant and 'Jacob' started exchanging messages. The applicant's profile used the name 'Looking'. During the communications, 'Jacob' told the applicant he was doing homework, that he was a virgin, that he was 'only 15' and that he had 'never done anything with people before'.

1. The applicant then sent several sexually explicit messages to 'Jacob' and tried to arrange a meeting with him. Included in the messages the applicant sent on 25 October 2020 were the following:

You haven't hot [sic] a suck before?" Did someone suck you off before?

1. When 'Jacob' responded 'Nah never', the applicant responded:

I'm cheeky so I will be grabbing it and sucking it for you. You can fuck me as well that's for being a friend.

1. 'Jacob' asked 'What's it like? I'm shy so I don't know if I could do that' and the applicant responded:

To get sucked or to fuck?" I'll help you and you will enjoy it to the maximum.: It feels great you will ask for it whenever you come over.

1. The applicant pressed 'Jacob' for a meeting and repeatedly commented 'Show me your cock'. When that request was declined, the applicant asked for a photo of 'Jacob's' 'bulge', which was also declined.

1. There were further communications on 26 and 27 October, during which the applicant pressed 'Jacob' for a meeting. Eventually a meeting was arranged at a park near the applicant's residence. By this stage, the applicant had sent 'Jacob' his photograph, his phone number and the location of his apartment. He had also described the clothing he would be wearing when he went to the park.

1. D went to the park with another person ten minutes before the appointed meeting time. He recognised the applicant when he arrived. D approached the applicant and had a conversation with him which he recorded on video. The applicant denied being at the park to meet a 15-year-old boy for sex and said that he was waiting for a friend and his dog to arrive. He denied having a Grindr account, claimed that someone was using his photograph and contact details and said that he was being set up. D rang the phone number the applicant had provided and the phone in the applicant's hand began to ring. The applicant left the park shortly afterwards. Within a minute D's Grindr account was blocked and messages from and to the applicant were erased.

1. On 30 October 2025, D went to a police station and gave the police the screen recording of the Grindr conversations and the video taken at the park. D told the police that he had previously created false accounts to 'expose sex offenders and bring them to justice'. The police investigated the report and executed a search warrant at the applicant's address on 17 November 2020. They located the Grindr application in a secure folder of the applicant's work phone. Further examination of the phone later revealed a text message conversation between the applicant and an unknown male on 27 May 2020. Also located on the phone was the photograph of the applicant sent to D during the Grindr communications. This photograph was also found on the applicant's personal phone.

1. The applicant was arrested. He denied using Grindr to communicate with 'Jacob" or going to the park to meet him. The applicant told the police that he had been speaking to a woman named Alicia on an app and had arranged to meet her in the park. The applicant claimed that he had installed Grindr on his work phone a week previously to try to locate the person who was using his picture. He said that he did not have Grindr before then. The applicant

said that there was no record of communications with Alicia because she had probably blocked him. He claimed that he had sent her his photograph and told her what he would be wearing so that she could identify him. He thought that someone was setting him up but could not suggest who would do this to him.

1. Some weeks before the trial, the applicant pleaded guilty and was sentenced as follows on 19 August 2022:

The offender ... is sentenced a term of imprisonment of 27 months to commence on 19 August 2022 and expiring on 18 November 2024

Execution of the sentence is wholly suspended upon the condition that the offender enter into a recognizance self in the sum of $2500.00 without security

(a) that the offender is to be of good behaviour for a period of 27 months to date from 19 August 2022

(b) that the offender is to comply with the following further conditions:

To accept the supervision and guidance and comply with all reasonable directions of the Community Corrections Service for the term of the bond/recognizance.

To report to Community Corrections Service at Sutherland Community Corrections Office within 4 Days. For the period of the recognizance to be subject to supervision by a probation officer for as long as seen

fit and obey all reasonable directions of the probation officer.

The offender is not to travel interstate or overseas without the written permission of the probation officer. The offender is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

The offender is to report to Sutherland Community Corrections by telephone by 4pm on Monday 22 August 2022.3

1. A 10% discount was applied because of the guilty plea.4

1. Relevantly to the application for review, the Court summarised the factors it considered in sentencing as follows:5

Accordingly in particular I have regard to the following facts, the criminality was in the lower range, contributed to by its limited duration, a fictitious victim although that is a neutral factor.

The fictitious victim being at the top of the age range, the offender using a social media site that is for adults only. The offending being opportunistic, the offending being very unsophisticated with a great risk of exposure with the offender using his own name and address and phone number. The offender not sending or receiving images, the offender not threatening or offering an inducement but nonetheless the offender attending the location for an arranged meeting.

The subjective features include the circumstances of no prior criminal history, a plea of guilty, albeit entered later but still attracting a discount. The Bugmy6 features of the offender's youth. His decline in mental health. The impact of the COVID lockdown and isolation, the experience of custody being more onerous due to COVID. His mental health needs, the risk of isolation exacerbating his mental health. His need for rehabilitation and his suicidal ideation deserving sensitivity. The extra curial punishment with loss of employment and social connection. The offender's good prospects of rehabilitation given his level of education and engagement with charity. The offender's diligence in engaging with therapy particularly more recently. He is in my view risk of reoffending being tempered by his commitment to rehabilitation. The offender's insight as to the harm of what he has done. The offender acting out of his character, the need for general deterrence and specific deterrence being tempered or reduced. The offender being ineligible in custody for the sex offender program or in the community for the publicly resourced sex offender program but nonetheless the fact that the offender himself has been privately funding targeted rehabilitation in that area. The offender engaging with two psychologists for his current condition of depression, anxiety and stress.

The offender in my view having been in some circumstances already experiencing punishment for his engagement in the offences. The need for adequate punishment being relative to the level of offending in this case being at the lower range and the circumstance that in this case given where the offender's current trajectory and mental health currently places him it being in fact counter productive to his rehabilitation to place him in gaol.

In all of the circumstances I am of the view that exceptional circumstances are established on the balance of probabilities. I accept as conceded on behalf of the offender that it is acknowledged that a custodial sentence of some type is warranted but it is not acknowledged that full-time custody is warranted. Given all of the features in the Crimes Act to the sentencing of Commonwealth child sex offenders I am of the view that the following sentence is the minimum appropriate outcome to meet the sentencing purposes and to provide adequate punishment and ongoing rehabilitation...

1. The applicant was compliant with the conditions of the recognisance and no longer has reporting obligations in respect of this issue. At the hearing, the applicant stated that he is on the child sex offender's register and will be until 2030.

1. The applicant has not committed any other offences, either in the community or in immigration detention.

6 This is a reference to the Bugmy Bar Book, which provides accessible summaries of key research concerning the impacts of experiences of trauma, socioeconomic inequality, structural disadvantage and strengths-based rehabilitation. The relevant factor in relation to sentencing was the applicant's childhood experience of trauma.

1. Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:

(a) Section 501(1) states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

(b) Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and

c) Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

1. The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).

1. In this case, 'Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (the Direction) applies.

1. For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker's application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.

(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 measureable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

1. Informed by these principles, in making a decision I must take into account the relevant primary and other considerations set out in the Direction.

1. Section 7.1 of the Direction states that appropriate weight to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations.

1. The primary considerations are set out in section 8 of the Direction. They 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

1. A non-exclusive list of other considerations is set out in section 9 of the Direction. They are:

1. In FHHM v Minister for Immigration,7 the Full Federal Court considered 8.4 of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O'Callaghan and Colvin JJ (Derrington J agreeing) referred to remarks made by Colvin J in Suleiman v Minister for Immigration,8 and stated at [34] that '...particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations'.

1. As noted above, s 501(6)(a) of the Act states that a person does not pass the character test for the purposes of s 501(1) if the person has a substantial criminal record, which relevantly to this application is defined in s 501(7)(c) as a term of imprisonment of 12 months or more.

1. The issues to be determined are therefore:
   • Whether the applicant passes the character test; and

7 [2022] FCAFC 19.

8 [2018] FCA 594 at [23].

• If not, whether the discretion to refuse to grant a protection visa to the applicant on that basis should be exercised, taking into account relevant considerations in the Direction.

1. The applicant concedes that he does not pass the character test and I accordingly find this to be the case.

Should the discretion to refuse to grant a protection visa to the applicant be exercised?

Protection of the Australian community from criminal or other serious conduct - 8.1

1. In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered 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.

1. As required by 8.1(2) of the Direction, I have considered:

(a) the nature and seriousness of the applicant's conduct; and

(b) the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.

Nature and seriousness of the applicant's conduct - 8.1.1

1. The applicant concedes that the offence of which the applicant was convicted falls within 8.1.1.(1)(a)(ii) of the Direction; that is, it is a crime of sexual nature against a child. Such crimes are regarded as very serious, regardless of the sentence imposed.

1. The details of the applicant's conduct are set out above. The applicant used the Grindr application to exchange a series of sexually explicit messages with a person who told him

that he was 15 years old, a virgin and a school student who lived with his parents. He pressed this person to send him a photograph of his penis. He also pressed for a meeting for the purpose of engaging in sexual activity and when the meeting was arranged, went to the meeting place.

1. Included in Exhibit G is a report dated 20 February 2025 prepared by Mr Tom Jones, clinical psychologist, apparently for the purposes of the applicant's protection visa application.9 The applicant consulted Mr Jones on five occasions between 1 August and 22 November 2022. In his report, Mr Jones states:

When I first saw him, he said that although he had engaged in the prohibited activity as charged, he had believed the alleged victim to be an adult not a person under 16 years of age...

On 1/8/2022 [the applicant] said that his wrongdoing in this case had been to not believe the alleged victim when this person told him they were 15 years old. He said that he believed child sexual abuse to be wrongful and said "I am against it."

1. At the hearing the applicant maintained the position he had expressed to Mr Jones, claiming that he thought 'Jacob' was 'role-playing':

The applicant's evidence in this regard does not sit well with the statement dated 28 September 2024 which the applicant submitted in support of his protection visa application. In that statement, the applicant states at [20]: I lied to the police because I was scared for my life. I know I made a big mistake. I have a strong attraction to men. I also have an attraction to teenage boys, but I understand that this is wrong.'10

1. When questioned about this during the hearing, the applicant claimed that when he referred to teenage boys, he meant '18-to-21-year olds' and that when he wrote 'I understand that this is wrong', he was referring to having lied to the police. The applicant asserted that in his culture 18-to 21-year-olds are teenagers. He indicated that in Lebanon a person is not considered an adult until they are 25.

1. I do not accept the applicant's evidence that he thought that 'Jacob' was an adult who was role-playing.

1. First, the applicant's evidence in this regard is inconsistent with the statement of agreed facts in the criminal proceedings,11 which represents the essential facts upon which the conviction and sentence were based.

1. Paragraph 2 of that document, which was signed by the applicant, describes the offence as follows (emphasis added):

Between 24 October 2020 and 27 October 2020 the Offender, being 33 years of age, used a carriage service to transmit a communication to the recipient, being somebody that the Offender believed to be under 16 years of age with the intention of procuring the recipient to engage in sexual activity with himself.

1. That the applicant believed 'Jacob' was under the age of 16 was therefore an agreed fact in the criminal proceedings. The Court referred to this fact on several occasions in the sentencing judgment. For example, the sentencing judge stated:

...[F]or all intents and purposes the offender believed he was communicating with a 15 year old boy....

...[T]he offender was in his belief communicating with a 15 year old boy...

...[T]he offender gave evidence under oath where he conceded that he knew that what was happening was a type of child abuse.

...He does not resist the fact that he was intentionally seeking to meet what he thought was a 15 year old boy.12

1. The Court also quoted from an earlier report dated 11 August 2022 of Mr Jones, in which Mr Jones states: 'He [the applicant] said he feels disgusted and ashamed that he proceeded with sex talk and had been willing to meet the victim knowing the victim was aged 15.'13

1. Second, the applicant's claim that he did not believe that 'Jacob' was 15 years old is implausible.

1. In relation to this, the applicant told Mr Jones in 2022 that his preferred age for sexual partners is around 25.14 In his 28 September 2024, statement the applicant stated that he is attracted to 'men', who he described as the hearing as being over the age of 30, and to teenage boys, who he claimed at the hearing are 18 to 21 years of age. If the applicant is

13 HB page 70. Mr Jones' 11 August 2022 report is at HB 395-398.

not attracted to younger males, it is unclear why he would have wanted to engage in a sexually explicit conversation with someone he thought was pretending to be a 15-year-old. It is even more unclear why he would have pressed that person for a meeting for the purpose of engaging in sexual activity.

1. Further, if during the conversations on Grindr, the applicant genuinely thought that 'Jacob' was an adult pretending be a 15-year-old boy, I consider that he would have confirmed that 'Jacob' was role-playing at some point during those conversations and prior to arranging a meeting.

1. I conclude that in accordance with the statement of agreed facts in the criminal proceedings, the applicant believed that 'Jacob' was under the age of sixteen years. This means that the applicant engaged in a sexually explicit conversation and wanted to meet a 15-year-old boy for the purpose of having sex with him. The fact that the applicant did not in fact have sex with a fifteen-year-old boy is not because of anything the applicant did. On the contrary, the applicant went to the meeting he arranged with 'Jacob' for that explicit purpose. It is fortunate for the applicant that 'Jacob' was not a 15-year-old boy but an adult impersonating one, otherwise the outcome for the applicant is likely to have been significantly worse. The nature of the applicant's conduct is therefore very serious.

1. Paragraph 8.1.1.(1)(d) requires me to consider the impact of the offence on any victim. In relation to this, 'Jacob' does not exist. The only person who can be considered to be a victim of the applicant's conduct is D, who is an adult. There is no evidence that the applicant's conduct had any adverse impact on D.

1. In relation to 8.1.1.(1)(d), (e), (f), (g) and (h) of the Direction, the applicant offended on one occasion only. There is therefore no trend of increasing seriousness and no cumulative effect of repeated offending. There is no evidence that the applicant provided false or misleading information to the Department, as opposed to not being truthful to the police when he was charged. I accept that the applicant's lack of truthfulness in that regard was motivated by fear and shame. The applicant's offence was not committed after he had been formally warned or otherwise made aware in writing of the consequences of further offending.

1. In accordance with 8.1.2, when assessing the risk that the applicant may pose to the Australian community, I must have regard to, cumulatively:
   • The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
     • The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence about the risk of the applicant re-offending, as well as evidence of rehabilitation achieved by the time of the decision.

1. Dr Donnelly conceded that if the applicant were to engage in the same or other offending it could have a very serious impact. There is no doubt that this is the case. As noted above, the fact that the applicant did not actually engage in sexual activity with a 15-year-old boy was not something he can take credit for. I consider that the harm to individuals and through them to the Australian community would be devastating should the applicant engage in further criminal or other serious conduct.

1. The applicant's position is that there is a remote or a very low risk that he will re-offend. The Minister rejects that position, expressing the view that the applicant lacks insight into his offending and has not undergone sufficient rehabilitation.

1. I am of the view that the risk that the applicant will re-offend is low. First, the applicant has offended on one occasion only. Other than a period in immigration detention, he has been in the community since the offence was committed in October 2020.

1. Second, the sentence imposed on the applicant indicates that the sentencing judge was satisfied that the risk the applicant posed could be managed in the community. As noted above, the maximum sentence for the applicant's crime is 15 years imprisonment. The applicant did not spend any time in prison, the sentencing judge stating that the sentence imposed on him was appropriate 'to meet sentencing purposes and to provide adequate punishment and ongoing rehabilitation'.15

1. Third, the applicant has not been required to report to Sutherland Community Corrections since 2023. I conclude from this that Sutherland Corrective Services were satisfied that, in accordance with the sentence imposed on the applicant, the applicant had undertaken 'such treatment or rehabilitation programs that his probation officer reasonably directs'.

1. Fourth, the applicant had no criminal history prior to this offence and the fact that he was on Grindr, which is an application for adults, suggests that he does not have any general propensity to engage in predatory behaviour towards children or people under the age of consent. I conclude from this that the offence was one-off and opportunistic.

1. Fifth, the applicant is now a registered sex offender and will be until 2030. I am of the view that this operates as a significant protective factor.

1. Sixth, the consequences of the applicant's offending, which includes not only registration as a sex offender, but cancellation of his visa, several months in immigration detention and rejection by members of his family in Lebanon are also protective factors reducing the risk of the applicant re-offending.

1. That said, I have some concerns about the level of insight the applicant has achieved into the reason for his offending.

1. First, the applicant's claim that he did not believe 'Jacob' was 15 years old suggests that the applicant still has limited insight into why he committed the offence. This is also reflected in the sentencing remarks, which note that the applicant had 'not been recorded by any of the psychological material as having really explained what was going through his mind at the time of the offending' and which refer to the applicant's 'confusion about why he engaged in the offence'.16 The applicant's lack of insight as to the reason he committed the offence is also reflected in the applicant's oral evidence at the hearing. When cross- examined about the Grindr conversation, the applicant stated that he wasn't in his right mental health, that he was 'blinded' and that he 'didn't know what [he] thought'.

1. Second, the Court placed weight on the applicant's commitment to rehabilitation, noting that he was receiving treatment for child sex offending from Mr Grahame Randall17 and had been privately funding targeted rehabilitation around sex offending18. However, the applicant's evidence is that he had two sessions only with Mr Randall in 2022.19 Mr Randall's 11 August 2022 report,20 which was before the sentencing judge, confirms that as at the date of the report, he had seen the applicant on two occasions. A third session was booked on 22 August 2022. The report states that the applicant had commenced a treatment program specifically designed for men who have committed sexual offences, particularly against minors. It states further that the applicant 'requires ongoing therapy to continue the treatment program he has commenced', which could be conducted either through group therapy or individual sessions and which would take one to one and a half years to complete.

1. The applicant had five sessions with Mr Jones, also in 2022. The first of these sessions was on 1 August 2022. Mr Jones' evidence at the hearing was that he treated the applicant based on an assumption that what the applicant had told him was true; that is, that the applicant thought that 'Jacob' was an adult. Mr Jones stated that if the applicant had indicated a desire to seek underage sex partners, he would have approached treating the applicant differently and would have focused on controlling that desire.

1. According to the applicant's evidence at the hearing, the remainder of the 25 treatment sessions he had with a psychologist were with a person named John in Lebanon,21 who was a friend of his grandmother. The applicant has not provided John's family name or details of his qualifications and experience. Nor has the applicant provided a report from John. There is therefore no evidence from John concerning the treatment he provided to the applicant.

1. I am somewhat concerned by the fact that the applicant did not continue the program recommended by Mr Randall, by the fact that he told Mr Jones that he believed 'Jacob' was

an adult, by the fact that he maintained that position in oral evidence and by the fact that there is no evidence about the treatment the applicant claims to have received from John.

1. I do not consider that the applicant's difficult childhood or the stresses associated with Covid lockdowns fully explain why the applicant, who claims to have no interest in engaging in sexual activity with under aged people, behaved in the way that he did. Neither the psychological reports, the applicant's statements nor his oral evidence adequately explain this.

1. That said, I accept that the applicant is genuinely remorseful and that he is ashamed of his behaviour. At the hearing, Mr Jones stated that shame was the strongest factor that would deter re-offending. He stated that he believed the applicant when he told him that he regarded sex with children as shameful. Mr Jones noted that the applicant comes from a conservative middle eastern culture, which would make such an act even more shameful. He stated that the applicant is a professional and his offence caused disgrace in personal and family contexts, which would also have a deterrent effect. In addition, the applicant is aware of the consequences of imprisonment and the other severe legal consequences he would face if he offended again. I accept Mr Jones' evidence in this regard.

1. Further, the sentence imposed on the applicant required him to undertake 'such treatment or rehabilitation programs that the probation officer reasonably directs'. As noted above Sutherland Community Corrections was satisfied that the applicant had complied with this condition and he was not required to continue reporting to Community Corrections after 2023. The applicant committed one offence only and has not re-offended in more than four and a half years. The community also has the benefit of the protection offered by the applicant being a registered sex offender.

1. Overall, whatever the applicant's offence was motivated by, I consider the likelihood that the applicant will re-offend is low, even in stressful circumstances. I do not consider that the fact that the applicant is seeking a visa which would allow him to remain in Australia indefinitely increases the risk of him re-offending.

Conclusion in relation to protection of the Australian community

1. I have found that the applicant's offence was very serious. I accept that should he again engage in similar conduct the resulting harm to an individual and more broadly to the

Australian community would be serious. However, I have concluded that the risk that the applicant will engage in similar conduct is low.

1. The view of the Government is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In this regard, I have had regard to 8.1.2(1), which states that '[s]ome 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'.

1. In view of the fact that the applicant committed a single offence more than four and a half years ago, did not spend any time in prison for the offence and has several protective factors operating in his favour, not the least of which is his status as a registered sex offender, I do not consider that the applicant's offence, while very serious, falls within this category.

1. I conclude that protection of the Australian community weighs against granting a protection visa to the applicant, but only moderately so.

1. The applicant has not committed a family violence offence. This consideration is neutral and carries no weight.

The strength, nature and duration of ties to Australia - 8.3

1. In accordance with 8.3(1) of the Direction, I have considered 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.

1. The applicant has an uncle and cousins in Australia. However, his evidence at the hearing indicated that he does not have a close relationship with them. None of his Australian based relatives provided statements. The applicant conceded that there is no evidence that the decision would cause any hardship to family members in Australia.
2. Under 8.3.(2), where consideration is being given to whether to cancel a visa or revoke the mandatory cancellation of a visa, decisions makers must have regard to the strength, duration and nature of any other ties the applicant has to Australia.

1. Given that the applicant's case involves the refusal of a visa and not the cancellation or revocation of the cancellation of a visa, 8.3.(2) is technically not relevant. However, the list of considerations set out in the Direction is not exclusive. I have accordingly considered the other ties the applicant has to the Australian community. In doing so, I have had regard to the length of time the applicant has been in Australia and to the strength, duration and nature of any family or social links the applicant has with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The applicant has now been in Australia for nine years, having originally arrived on a skilled migrant visa. He came to Australia as an adult in his twenties, not as a young child. He has consistently worked as a systems engineer and IT consultant since arriving in Australia although, in common with many others, he lost part of his work during the Covid lockdown period. He then lost his employment because of the charge against him. However, the applicant obtained other full-time employment and regained employment with the same employer after his release from immigration detention.

1. I accept that through his employment the applicant has contributed positively to the Australian community. I also accept that the evidence given by Mr Andrawaos that the applicant has undertaken IT consultancy on a pro bono basis. I accept that the applicant has also made a positive contribution to the Australian community though his self- employment.

1. Mr Ho and Mr Andrawos also gave evidence about the applicant's volunteer work. I accept that the applicant has engaged in volunteer work, specifically beach litter cleaning efforts and, on occasion, setting up sound systems and cameras for community events.

1. I accept that the applicant has social links to Australian citizens, permanent residents and other people who have an indefinite right to remain in Australia. The applicant's three witnesses, Mr Ho, Mr Kaiss and Mr Andrawos, all spoke highly of the applicant and clearly value their relationship with him. They are aware of his offence. I accept that the applicant's removal from Australia would have an adverse impact on them.
2. That said, the applicant's evidence indicated that he does not have a wide circle of friends. None of the applicant's friends suggested that that they are reliant on him. Further, as noted above, the applicant is not close to family members who live in Australia. In these circumstances, while I conclude that this consideration weighs in the applicant's favour, it does so only moderately.

The best interests of minor children in Australia - 8.4

1. There is no evidence that minor children will be affected by the decision. This consideration is neutral and carries no weight.

1. In relation to this consideration, 8.5(1) of the Direction states '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 remain in Australia.'

1. In accordance with 8.5(4) of the Direction, I must consider the expectations of the Australian community as a whole and proceed based on the Government's views expressed in the Direction, without independently assessing the community's expectations in the particular case.22

1. The applicant has failed to obey Australian laws. He would therefore be expected to be removed from the community, as his offence is very serious.

1. In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,23 Horan J stated:

The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] -[67] , [74] -[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see

also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] -[30] (Moshinsky, O'Bryan and Cheeseman JJ). The "degrees of tolerance" referred to elsewhere

22 See Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2, at [38] and [51] to [52].

23 [2024] FCA 876 at [56].

in the Direction "are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion" (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and "in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences": FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.

1. This factor weighs against granting a protection visa to the applicant. I have considered it further when undertaking the balancing exercise required to make a decision.

1. The decision has several legal consequences for the applicant.

1. The applicant is the subject of a protection finding made on 4 February 2025. Consequently, he was granted a BVR and released from immigration detention. This is consistent with the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ).24 For as long as the applicant has a protection finding in his favour, he cannot be removed to Lebanon. Nor can he be removed to a country that would remove him to Lebanon. The applicant will therefore remain in the community, either as the holder of a BVR or as the holder of a protection visa.

1. If the applicant is not granted a protection visa and remains in Australia on a BVR, there will be significant restrictions on his ability to apply for any other kind of visa. This includes the statutory bar contained in s 48A, which prevents the applicant from making a further application for a protection visa unless the Minister thinks that it is in the public interest to lift the bar under s 48B. Further, an application for any visa other than a protection visa would be subject to s 501E; that is, it could not be made from within the migration zone unless it was for a Bridging Visa R (Class WR) as prescribed by cl 2.12AA of the Migration Regulations 1994. The applicant could only apply for such a visa in response to an invitation.

24 [2023] HCA 37.

1. Amendments to the Act passed in December 2024 include the establishment of a ceasing event in a new s 76AAA of the Act. Under this section, a BVR ceases to be in effect immediately after a mandatory notice is given to the BVR holder by the Minister that s 76AAA of the Act applies to the BVR holder. This can be done in certain circumstances where permission (however described) is granted by another country for the BVR holder to enter and remain in that other country.

1. In addition, ss 197C and 197D of the Act were amended to broaden the application of these provisions to include 'removal pathway non-citizens', with a new definition of this term inserted in s 5 of the Act. The definition includes BVR holders. This enables the Minister to decide that a protection finding will no longer apply to a non-citizen who holds a visa as a removal pathway non-citizen. Amendments to the Act also authorise the Australian government to pay third countries to receive removal pathway non-citizens.

1. Section 199C enables the Minister to give a direction to a removal pathway non-citizen to do specified things necessary to facilitate their removal, or to do other things the Minister is satisfied are reasonably necessary to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future. However, a non-citizen on a removal pathway cannot be directed to interact with, or be removed to, a country in respect of which the non-citizen has been found to engage Australia's protection obligations. That said, such a non-citizen may otherwise be given a direction to do certain things necessary to facilitate their removal to a safe third country. Failure to comply with a removal pathway direction without a reasonable excuse is an offence under s 199E, punishable by five years' imprisonment, 300 penalty units, or both. If a person is convicted of such an offence, the court must impose a sentence of imprisonment of at least 12 months.

1. The applicant's presence in the community as the holder of a BVR could therefore change if a legitimate non-punitive purpose for his re-detention were to be identified, such as potential removal to a third country.

1. As the holder of the BVR the applicant is subject to a number of conditions25, which include but are not limited to a daily telephone reporting requirement, attending interviews if

required, notifying the Department of any change of address, other contact details and employment, obtaining approval before undertaking certain kinds of employment or activities, a prohibition on undertaking specified types of employment and activities and not going within 200 metres of a school, childcare centre or daycare centre. Other conditions require the applicant to assist with, report for, and facilitate his own removal from Australia. The conditions do not include a curfew or the wearing of a monitoring device.

1. A failure to comply with any of the BVR conditions has potentially serious consequences for the applicant, including being charged with a criminal offence for breach of the conditions.26 If the applicant were to be convicted of such an offence, under s 76DA the court must impose a minimum sentence of one year imprisonment.

1. The applicant's submissions in relation to the legal consequences of the decision place weight on the possibility that the applicant may be removed to a third country and on what are said to be the onerous conditions of the applicant's BVR.

1. In relation to removal to a third country, in oral submissions Dr Donnelly referred to an arrangement the Australian government has made with Nauru. The applicant submits that granting a protection visa to the applicant is the most straightforward way of discharging Australia's non-refoulement obligations under various international instruments while providing legal certainty. The applicant further submits that being in the community on a BVR places the applicant in 'a state of legal limbo', which is contrary to the intention of the migration framework. The applicant submits that the grant of a protection visa permits 'structured, lawful management of any residual risk'27 and refers to the Minister's powers to impose conditions, to monitor compliance and to cancel the visa if future conduct requires it. The applicant also referred to the practical consequences of a non-citizen remaining in Australia on a temporary visa, pointing out that the applicant is working and contributing to the community, but could be removed from Australia.

1. The Minister's position is that I should not place weight on the applicant's possible removal to a third country. In oral submissions, this was put on the basis that to do so would involve two levels of speculation: first, what the Australian government may do and second, what

26 See ss 76B, 76C, 76D, 76DAA, 76DAB and 76DAC of the Act.

another government may do. The Minister relied on Ali v Minister for Immigration and Border Protection, 28 as authority for the proposition that the Tribunal should not speculate about the decisions the Minister or anyone else should make in the future, however real the prospects of those are. The Minister submitted that the possible removal of the applicant to a third country was so speculative that it should be given limited weight. In relation to the agreement with Nauru, the Minister referred to the Federal Court's judgment in TCXM v Minister for Immigration and Multicultural Affairs (TCXM),29 noting that the agreement with Nauru concerned three specified individuals only.

1. In relation to the applicant remaining in Australia on a BVR, the Minister submitted that the conditions imposed on the applicant are protective of the Australian community and that the applicant would no longer be subject to reporting conditions should the protection visa be granted. The Minster further submits that the only condition the Minister could impose on a protection visa is Condition 8559, preventing an applicant from returning to a country in relation to which they have been found to engage Australia's protection obligations.30

1. The legal consequences of the decision are, based on the submissions summarised above, the restrictions on the applicant applying for another visa, the potential for the applicant to be removed to a third country (and again placed in immigration detention if such an arrangement is made) and the consequences of the applicant remaining in Australia as the holder of a BVR. It was also submitted on behalf of the applicant that there are practical consequences for the applicant in not being granted a protection visa. However, I consider that these are largely subsumed into the consequences of living in Australia on a bridging visa, rather than as the holder of a permanent visa.

1. Of these consequences, I consider that the most difficult for the applicant is the combination of remaining in Australia indefinitely as the holder of a BVR, coupled with the possibility that at some point in the future, he may be removed from Australia to a third country.

1. In relation to the possibility of removal, as discussed in TCXM the Commonwealth government entered into an arrangement with Nauru pursuant to which the Nauruan

28 [2018] FCA 650 at [31] to [33].

29 [2025] FCA 540.

30 Clause 866.6 of Schedule 2 to the Regulations and clause 8559 of Schedule 8 to the Regulations.

government issued 30-year visas to three people who were released from immigration detention because of the NZYQ judgment. There is no evidence of any such arrangement having been made which affects the applicant. However, the Act contemplates that such an arrangement could be made. While it may not happen in the applicant's case, it is not speculative to conclude that it could (as opposed to it will) occur. Further, it is not speculative to conclude that should such an arrangement be made in the future the Minister may (as opposed to will) exercise his or her powers to remove the applicant from Australia. I conclude that the possibility of removal from Australia in the future is a legal consequence of the decision on which weight can be placed.

1. I accept that if the applicant is not granted a protection visa and he is not removed to a third country, he will remain in Australia indefinitely as the holder of a BVR. The BVR permits the applicant to retain employment within certain parameters. The applicant's evidence was that he is currently employed as a senior systems engineer on a full-time basis by the same employer he worked for before he went into immigration detention. Accordingly, the fact that the applicant is on a BVR does not appear to have limited his employment. While the applicant lost the employment he held before he committed the offence, this was because he no longer held the requisite security clearance because of his offence, rather than because of his visa status.

1. I accept that the applicant's BVR conditions involve a wide range of reporting requirements, including daily reporting by telephone. In view of the nature of the applicant's offence, I do not consider the restriction on him being within 200 metres of a school, childcare centre of day care centre to be unreasonable or onerous. Further, I do not consider the BVR conditions generally to be particularly onerous, at least not in the short term. This is particularly so in circumstances where the applicant is not subject to a curfew or to the wearing of an ankle bracelet. However, I am of the view that if the applicant were subject to these conditions indefinitely - potentially for the rest of his life - they would become very onerous.

1. I do not accept the applicant's submission that the community would be better protected if the applicant were the holder of a protection visa. Nor do I accept the argument that the applicant being granted a protection visa is necessary for the Australian government to meet its obligations under international law. In relation to this, I accept that the only condition the Minister could relevantly impose on a permanent visa is that the applicant does not return

to Lebanon without written approval from the Minister. In my view, a protection visa as opposed to a BVR does not give any additional degree of protection to the community, to the extent that this is required. Further, in making a protection finding and in not removing the applicant to Lebanon, I consider that the Australian government has met its relevant international obligations as reflected in domestic law.

1. However, I also do not accept the Minister's submission about the protective effects of the BVR conditions. In relation to this, it is difficult to see how these conditions provide any additional protection from the low risk of future offending beyond the obligations imposed on the applicant as a registered sex offender.

1. In my view, being indefinitely subject to BVR conditions with the possibility of being removed from Australia at some unspecified time in the future are significant legal consequences of the decision. Overall, whether the applicant is removed to a third country at some time in the future or remains in Australia as the holder of a BVR, I consider that the legal consequences consideration weighs strongly in favour of granting the protection visa.

1. In considering the extent of impediments if removed, 9.2 of the Direction requires the Tribunal to consider the extent to which the applicant would face impediments in establishing himself and maintaining basic living standards if removed from Australia to his home country in the context of what is generally available to other citizens of that country.

1. As a protection finding has been made in favour of the applicant, he cannot be returned to Lebanon. Consequently, this consideration is neutral and carries no weight.

1. In relation to this consideration, I must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia. I note that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. The applicant is employed in Australia and operates a consultancy business. However, there is no evidence to suggest that the decision would significantly compromise the

delivery of a major project or delivery of an important service in this country. In any event, even if the visa is refused, the applicant will remain in Australia for the foreseeable future and will be able to continue working.

1. I conclude that this consideration is neutral and carries no weight.

1. I have made the following findings concerning the relevant primary considerations in the Direction:

(a) Protection of the Australian community against criminal and other serious conduct weighs moderately against granting the protection visa.

(b) The family violence consideration is not relevant and carries no weight.

(c) The strength, nature and duration of ties to Australia weigh moderately in favour of granting the protection visa.

(d) The best interests of minor children are not relevant and carry no weight.

(e) The expectations of the Australian community weigh against granting the protection visa.

1. I have made the following findings concerning the other considerations:

(a) The legal consequences of the decision weigh strongly in favour of granting the protection visa.

(b) The extent of the impediments if the applicant were removed is not relevant to the decision and carries no weight.

(c) Australian business interests are not relevant and carry no weight.

1. However, compliance with the Direction is not achieved by focussing upon the weight I have given to the various considerations in isolation. As stated in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL), my role in deciding this case to

'bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together'.31

1. The balancing process described in CRNL was in the context of determining whether there was 'another reason' why the cancellation of a visa should be revoked. However, the process is equally relevant to considering whether a visa should be granted where it has been refused on character grounds. The Court stated:

Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.32

1. As noted above, 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations. However, this does not mean that the protection of the Australian community must always be given greater weight than other primary considerations or that primary considerations must always be given greater weight than 'other' considerations.

1. In this case, the applicant committed one offence only, more than four and a half years ago. He did not spend any time in prison for the offence and was considered by Sutherland Community Corrections to have completed the treatment or rehabilitation programs required by the sentence. I have found that the applicant is at a low risk of re-offending. I have therefore given only moderate weight to the primary consideration of protection of the Australian community.

1. Further, while the expectations of the Australian community weigh against granting a protection visa to the applicant, I do not consider that they do so strongly. This is because

31 [2023] FCAFC 138 at [28].

while the applicant committed a crime of a sexual nature, it was considered by the sentencing judge to be at the lower end of scale. Furthermore, D, who is the only person who could be described as the victim of the crime, was not a child or otherwise a vulnerable person, but an adult posing as a 15-year-old boy.

1. Balanced against these considerations are the primary consideration of the applicant's ties to Australia and the other consideration of the legal consequences of the decision. I have given moderate weight to the applicant's ties to Australia because he arrived as an adult and is not close to those of his relatives who live in Australia. However, the applicant came to Australia as a skilled migrant and continues to work in the area of his expertise, which represents a contribution to the Australian community, as do the applicant's pro bono and volunteer activities. For the reasons set out above, I have found that the legal consequences of the decision weigh strongly in favour of granting a protection visa to the applicant.

1. I conclude that the considerations that weigh in favour of the applicant outweigh the primary considerations of the protection and the expectations of the Australian community. I have reached this conclusion in circumstances where the applicant committed a single offence found by the sentencing judge to be at the lower end of the scale, did not spend time in prison for that offence, has spent several years in the community without re-offending, completed the rehabilitation that community corrections authorities considered was warranted and is at a low risk of re-offending. In my view a decision that would result in the applicant remaining in Australia on a bridging visa potentially for the rest of his life - or possibly being removed from Australia in the future - is not an appropriate exercise of the discretion, particularly given the applicant's ties to the community and the contribution he makes to the community through his skilled employment and other activities.

1. The Tribunal sets aside the decision under review and in substitution decides to not exercise the discretion under s 501(1) to refuse the grant of a Protection visa.