CRNL v Minister for Immigration, Citizenship and Multicultural Affairs

On 1 March 1994, the applicant was convicted of three counts of indecent act with/presence child U/16 in the Melbourne County Court. The offences occurred between January 1993 and February 1993 and involved the same victim child. On two separate occasions, the applicant had licked the child on or around her vagina area. On the third occasion, he rubbed her vagina with his fingers in a secret manner while the victim was in a bedroom with other children playing Nintendo.[7] In relation to two of the charges, the applicant was sentenced to two years' imprisonment for each count, concurrent sentence, which was wholly suspended for two years under section 27 of the Sentencing Act 1991 (Vic). The sentencing judge set the period ending 28 February 1996 as the time during which the applicant must not commit another offence punishable by imprisonment. For the third charge, the applicant was sentenced to a community-based order for 12 months and required to complete 150 hours of unpaid community work.[8]

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs | Case summary | Zoe

[19]

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non‑-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable [sic] risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-‑ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

[47]

In this matter, I have had regard to the applicant's criminal offending as well as other conduct.
As noted previously, the applicant has been convicted of multiple offences between 1994 and 2019. His first and most serious conviction occurred in 1994 for offences committed in 1993 against an eight-year-old child on three separate occasions.[17] On two occasions, he licked the child on or around her vagina, and on the third, he rubbed her vagina. He was sentenced to two years' imprisonment, which was wholly suspended, and 150 hours of unpaid community work.
The applicant was convicted again in June 1998 for committing an indecent act in the presence of a child under 16. The offence involved the applicant loitering in the infant section of a Kmart store, exposing his penis and masturbating, following a five-year-old girl to another section and continuing the act despite being observed by the staff.
Approximately ten years later, in February 2008, the applicant was convicted of behaving in an indecent manner in a public place and received a 12-month Community Based Order. At the same hearing, he was also convicted of the offence of loitering near a school etc as a convicted sex offender and sentenced to six-months' imprisonment, suspended for 24 months. He was further ordered to report to Victoria Police for life under the Sex Offender Registration Act 2004 (Vic).
Following his 2008 convictions, the applicant received two further convictions in 2014 and 2019 for failure to comply with reporting obligations. The latter conviction was for engaging in inappropriate contact with a 16-year-old customer service employee at a Woolworths supermarket. He handed her a note containing his phone number and asked for hers, then failed to report the contact to the police within the timeframe required under his reporting obligations. He was sentenced to six months' imprisonment.
The applicant's offences have consistently involved sexual crimes targeting or involving minor children, with the seriousness of crimes varying over time. Crimes of a sexual nature against children are viewed very seriously by the Australian Government and the Australian community (8.1.1(1)(a)(ii)). In his statutory declaration of 23 October 2024, the applicant acknowledged he has 'several convictions for extremely serious offences in Australia.'[18]
In a submission to the Department dated 23 October 2024, Ms Iona Moller of Refugee Legal stated that, although the applicant's 1994 offending carried a maximum penalty of 10 years imprisonment, the imposed sentence of two years was wholly suspended. She further noted that in the 31 years since the first conviction, there were two subsequent incidents resulting in convictions in 1998 and 2008, which were dealt with by way of ICOs and suspended sentences of imprisonment. Over the 16 years since 2008, the applicant's only offending has related to breaches of his reporting obligations.[19] I note, however, that the applicant's most recent conviction in 2019 resulted in an actual term of imprisonment of six months, reflecting the ongoing seriousness of his offending. In any event, the Direction expressly provides that crimes of sexual nature are to be regarded very serious regardless of the sentence imposed. I accept the Minister's submission that the imposition of a term of imprisonment is a clear indicator of the seriousness of the applicant's conduct, noting that custodial sentences are regarded as a measure of last resort within the sentencing hierarchy.
In sentencing the applicant for the offences he was convicted of on 1 March 1994, Judge Dyett noted the 'very serious nature of these offences.' However, this was balanced with the following mitigating circumstances: the applicant had admitted guilt at the outset when questioned by elders of the Jehovah's Witnesses congregation; he pleaded guilty at the earliest opportunity and made admissions to interrogating police officers; he had shown remorse since the offence was revealed and had made 'earnest endeavours' to seek effective psychiatric or psychological treatment.[20] Judge Dyett also made observations regarding the impact of the offending on the victim, noting that, since the offending, the victim 'has exhibited symptoms which her parents no doubt considered consistent with psychological harm from these incidents such as nightmares, temper tantrums, episodes of tearfulness and feelings of confusion.' However, as the victim was later found to be suffering from a brain tumour, the treating paediatrician was 'not prepared to link these symptoms with the offences before the court' and a forensic physician who examined the victim 'expressed his findings as a normal examination of a pre-adolescent child and so there [was] no evidence of any physical harm to the girl.'[21]
Nevertheless, it may reasonably be inferred that the impact of sexual offending of the type committed by the applicant against his eight-year-old victim was particularly serious given the well-recognised potential of such conduct to inflict profound and lasting psychological harm. Sexual offences of this nature can cause significant emotional trauma, interfere with normal development, and have enduring effects on a child's sense of safety, trust and well-being.
The only other sentencing remarks available as evidence before the Tribunal are those relating to the applicant's conviction in July 2019, in which the sentencing judge referred to the seriousness of the offence, noting that the applicant had 'previously been in trouble for exactly the same thing.'[22]
While no specific evidence has been presented regarding the impact of the offending on the victims in 1998 and 2008, the circumstances of each offence indicate that the conduct was sexually exploitive and degrading, and likely to have caused fear, anxiety, and emotional harm to those who witnessed it. In 1998, the applicant exposed himself and masturbated in a store, following a five-year-old girl from one section to another and continuing the behaviour despite realising the staff observing him. Such conduct would likely have been very distressing and confronting for the five-year-old, exposing her to behaviour of a sexual nature that was degrading, deeply inappropriate and harmful. In 2008, a witness who observed the applicant looking at the children present in a playground and masturbating in his car, described the behaviour as 'very disturbing' and said it caused her to become extremely fearful as she also had a young child in her vehicle at the time. Similarly, the Woolworths customer service representative, who was 16 years old at the time of the offence, told the Court in 2019 that the note given to her by the applicant made her feel 'very uncomfortable and worried for [herself]' and that she was 'quite upset about it.'
The applicant's offending has occurred over a considerable period, with convictions recorded in 1994, 1998, 2008, 2014 and 2019. While there were intervals of several years between some of these offences, the pattern nevertheless demonstrates a degree of persistence in offending behaviour. I note that the latter two convictions related to failure to comply with reporting obligations rather than new sexual offences, and that there is no evidence of escalation in the seriousness of the applicant's conduct overtime. However, the recurrence of offending despite prior convictions, periods of supervision, and opportunities for rehabilitation indicates an ongoing disregard for the law. When considered cumulatively, the applicant's repeated sexual offending increases the overall seriousness of his conduct. Reoffending of this nature compounds the harm caused, both to victims and the border communities' sense of safety and trust. Each instance of sexual misconduct reinforces the lasting impact of prior offending, reflects disregard for the law and, cumulatively, adds significantly to the gravity of the applicant's criminal history.
As noted by the delegate in the decision record, the applicant travelled to Uruguay for a visit, and on return to Australia in January 1995, completed an incoming passenger declaration card. On that card, he did not disclose his 1994 convictions, answering 'no' to the question 'have you any criminal conviction/s for which the sentence/s (whether served or not) totalled 12 months imprisonment or more?'
In his statutory declaration dated 23 October 2024, the applicant stated that he did not fully understand the question on the card, and believed that, because he never had to go to prison due to his sentence being wholly suspended, his sentence 'did not count as '12 months imprisonment.''[23] In submissions of the same date, Ms Moller argued that the applicant's response did not reflect a disregard for Australian law but stemmed from a misunderstanding of the question. It was submitted that his explanation in his statutory declaration was a 'completely reasonable explanation for someone who does not speak much English', that the question was ambiguously worded and that the applicant 'made an honest mistake.' Ms Moller drew attention to the applicant's overall credibility and willingness to tell the truth in prior interactions.[24]
At the hearing, however, the applicant offered a different explanation, repeatedly claiming that he thought the question referred only to convictions for offences committed outside of Australia. I'm not persuaded that the applicant's non-disclosure was a deliberate attempt to mislead the Department. Nevertheless, the fact that he provided inconsistent explanations over time significantly undermines the reliability of his account. In any event, the applicant's failure to disclose a prior conviction of such seriousness on an official declaration is a matter of concern.
Finally, in May 2017, the applicant was issued with a notice of intention to consider cancelling his visa on character grounds under s 501(2) of the Act. Despite this warning and becoming aware of the consequences of further offending, the applicant was convicted and sentenced to six months' imprisonment in July 2019 for failing to comply with his reporting obligations.
Having considered the relevant factors under this consideration, relating to the nature and seriousness of the applicant's conduct, I find that the applicant's offending, which was committed in Australia, was very serious and weighs in favour of exercising the discretion to cancel the visa.

[68]

At the hearing, the applicant accepted that his 1993 offending was a serious crime and acknowledged that he had not appreciated the seriousness at the time. He stated that he felt 'compelled' to touch his victim when she sat on his hand as he sat on a bed. However, his evidence showed limited insight into the impact of his conduct, as he stated that he did not know and could not say what effect it had on the victim. When pressed, he said he 'just doesn't know.' He recognised that he had done 'a bad thing' but repeated that he did not know what impact the offending has on the victim.
When asked what role his own experience of sexual assault has played in his offending, the applicant said he had felt confused as a child and 'things were strange,' but he did not think the abuse had affected him. He explained that he had not experienced trauma, but he had done 'stupid things.' He also stated that he did not think the victim would have been traumatised by the touching. When asked about his 2017 personal circumstances form and his references to his frustrations in his marriage, he stated that he could not blame his ex-wife for what he did and that 'it just happened.' He acknowledged feeling sexually frustrated, but said he could not see a link between his frustration and his offending. Later in the course of the hearing, he attributed his offending more generally to 'stupidity' and idiocy.
I accept that the applicant was sexually abused and assaulted as a child. However, based on his own evidence, I am not satisfied that this experience or his references to marital difficulties, or sexual frustration establish any causal link to his conduct, provide meaningful insight into his motivations or offer any mitigating context for his offending. Rather, they reflect a limited understanding of the underlying drivers of his behaviour and the harm caused, as well as a failure to genuinely appreciate the seriousness of his actions. These factors do not assist in explaining his sexual offending against his eight-year-old victim in 1993.
In relation to his 1998 conviction, the applicant appeared to minimise the seriousness of the offence for which he was sentenced to six-months' imprisonment, to be served by way of ICO. In an email to the Department dated 9 August 2017, he stated when he 'exposed' himself, he was not 'targeting children,' but women 'in general', who, he claimed, 'just pretend nothing happens or don't not see anything (sic).'[33] In a further email to the Department the following day, the applicant said he had been at Kmart to buy fishing equipment and to look at new toys. He added that he was not a predator and did not pose a danger to anyone.[34]
At the hearing, when questioned about the offending, the applicant stated that he did not think about 'anything,' 'anyone else,' or the 'consequences' of his actions. He maintained that he was not targeting children, although two children and an adult saw him. When asked whether he believed the children were affected, he replied that he did not know, but 'probably not too well,' as they had spoken to relatives about what they saw. He also stated that he was not aware that more than one child was present.
The applicant's later account of the 1998 offence reflects continued minimisation and limited insight. His denial of targeting children and assertion that he posed no danger are inconsistent with the facts contained in the Victoria Police summons material and the seriousness of the conduct, which resulted in his conviction for committing an indecent act in the presence child under 16 and a sentence of six months' imprisonment, served by way of an ICO. His explanations in his representations and at the hearing downplayed the deliberate nature of the behaviour and disregarded its impact on those who witnessed it, demonstrating continued lack of appreciation of the gravity of his offending.
In relation to his 2008 conviction, the applicant stated in an email to the Department dated 10 August 2017 that he had parked in a carpark in front of the children's playground because he knew that MacDonald's restaurant very well, had stopped there many times and the carpark in front of the playground was the biggest in that restaurant. He said when he was caught masturbating by a woman who reported the incident to the police, he initially thought it 'was her word against my word,' and denied the conduct when first questioned. He later decided to tell the truth to police after speaking with his son.[35]
In his statutory declaration declared on 23 October 2024, the applicant stated:

[70]

At the hearing, the applicant explained that the incident occurred in the car park of a McDonald's restaurant located between his wife's and his father-in-law's homes. He said that on that occasion, there were no children present and that he had been sitting alone in his car eating an ice cream and touching himself when a woman parked beside him and saw him. The applicant accepted that the conduct constituted a serious crime and acknowledged that it was of a sexual nature. He stated that he had not been deliberately displaying himself but had been touching himself in a public setting. He said that, following this incident, he began questioning his behaviour and considering a return to the Jehovah's Witness faith. He believed that reading the Bible and taking his faith seriously would be beneficial and said that members of the congregation gave him a list of groups he was expected to attend.
The applicant's account of the 2008 offending is inconsistent with the information received by the Department regarding Facts of the Charge and reflects an ongoing tendency to minimise the seriousness of his conduct. His evidence at the hearing that no children were present on that particular occasion and that he was merely 'touching' himself while eating ice cream is directly contradicted by the Facts of the Charge, indicating that the offending occurred in a car park adjacent to a children's playground, at the time when children were present and observable from his vehicle. His attempt to recast the incident as private or incidental disregards the deliberate and sexually motivated nature of the behaviour and the distress caused to the witness, who observed him masturbating while 'looking straight ahead in the direction of a young girl playing in the playground.'[37] The seriousness of the conduct is underscored by the court's decision to impose a custodial sentence, albeit suspended, and by his inclusion on the Sex Offenders Register for life. The applicant's continued minimisation of the offending, limited insight into its impact, and denial of key facts, demonstrate a limited appreciation of the gravity of his actions or their implications for community safety.
The applicant has two convictions for failing to comply with reporting obligations, in 2014 and 2019. In an email to the Department dated 7 August 2018, he explained the first by claiming his ex-partner created a Facebook account for him without his knowledge. He said police contacted him and requested an interview at the police station, which he refused because he 'was very sure [he] did nothing wrong.' He claimed the police put pressure on him and his ex-partner by threatening him with imprisonment if he did not plead guilty.[38]
At the hearing, when asked about the conviction, the applicant gave an account that did not address the charge directly. He stated he had gone to run an errand and had been asked to correct his name by driver's licence authorities. He said that when police subsequently asked whether he had changed his name, he told them he had not, and they said they would check. According to the applicant, police later told him there was 'no problem,' and he claimed they had lied to him by saying everything was in order. Despite being given several opportunities to explain the circumstances of the Facebook conviction, the applicant failed to provide any clear or meaningful explanation of the conduct that led to his conviction or demonstrate an understanding of the nature of his reporting obligations.
The applicant also minimised responsibility for his 2019 conviction. In his emails to the Department dated 15 July 2018 and 7 August 2018, and in his pleadings before the Ararat Magistrates Court, he maintained that the incident occurred by mistake. He said that while attending a dance, he had written his name and phone number on a piece of paper for a woman he met but did not give it to her. He later placed the paper, described as an old receipt, in his pocket. According to the applicant, he subsequently visited a Woolworths supermarket, where he believed he had been overcharged for an item. He said he approached a young customer service representative with the intention of giving her an old receipt showing her a charging error, but accidentally handed her the wrong piece of paper, which contained his phone number. He maintained that this was a misunderstanding and that he had no improper intent, insisting he had always considered himself innocent of the offence.[39]
In the same 7 August 2018 email, the applicant expressed a distrustful view of police and the criminal justice system, alleging that police had pressured him into pleading guilty, withheld exculpatory evidence, and 'played games with the system and the magistrate.' He claimed police refused to provide CCTV footage that would have proven his innocence and that they were deliberately concealing evidence from the court. He reiterated similar sentiments during his later conviction proceedings, describing himself as being unfairly targeted.[40] He expressed frustration at his reporting obligations and his circumstances, writing that he would 'be pleased' to be sent back to Uruguay because 'this is a lot worse than [being] in Uruguay' and that police would 'never stop threatening him' until he 'gave up and pled guilty.'[41] In further correspondence dated 14 November 2018, he continued to deny responsibility, asserting that the complainant was mistaken and that police were manipulating evidence to secure convictions.[42]
In his statutory declaration of 23 October 2024, the applicant stated that both failures to meet his reporting obligations 'were honest mistakes'. He asserted that he now understands why these reporting obligations are in place and would 'make sure that this never happens again.' He further stated, 'I take my reporting obligations very seriously...In the five years since the 2019 offence I have had no issues complying with my reporting requirements.'[43] This sentiment was echoed by Ms Jasmina Lukic in her letter of support dated 27 August 2024, in which she stated that the applicant is 'trying to forgive himself and move on and live a peaceful life, complying with the Requirements for the police, which I see that he does this vigilantly.' She further stated she had observed lasting change in his character and believes he no longer poses a risk of reoffending.[44] In his statutory declaration of 29 January 2025, the applicant again stated:

[72]

In her submission to the Department, Ms Moller contented that the applicant has, since 2019, demonstrated a willingness and determination to change his behaviour. It was further submitted that he now actively ensures full compliance with his reporting obligations and understands the consequences of his actions.[46]
At the hearing, when questioned further about the 2019 conviction, the applicant maintained his account that the incident had been a misunderstanding. He said he had travelled to Ararat to visit a friend and attend the dance. At the event, he met a woman and wrote his name and phone number on a piece of paper but did not give it to her because she was a member of the band. He placed the paper, which he described as a receipt, in his pocket and later went to a supermarket, where he believed he had previously been incorrectly charged. He said he approached a cashier he knew in order to explain the issue and handed her the paper, saying 'have a look,' before leaving the store. The applicant maintained that he was unaware his name and phone number were written on the paper and insisted that this was a misunderstanding, asserting that he had no improper intent and had always considered himself innocent of the offence.
The applicant's evidence, in my view, demonstrates his continuing difficulty in accepting responsibility for his conduct and his limited understanding of his reporting obligations. His repeated assertions that both offences arose from mistakes, coupled with his allegations of police misconduct and systemic unfairness, reflect the pattern of externalising blame rather than acknowledging personal accountability.
In relation to evidence of rehabilitation achieved by the time of the decision, in his 2017 personal circumstances form, the applicant stated that he had completed two sex offender programs following his 1994 conviction but could not recall their names.[47] In his 2024 personal circumstances form, he described the first as a general program for sex offenders and the second as more in-depth, focusing on exploring the reasons behind offending behaviour and encouraging participants to 'dig into our minds.'[48]
In his statutory declaration dated 23 October 2024, the applicant stated that after being found guilty in 1994, he attended two courses for sexual offenders. Although he could no longer recall their names, he remembered that the programs focused on helping participants understand the perspectives of victims. He said he learned that children's friendliness is a natural part of their behaviour and does not indicate attraction, and that if an adult exposes himself to a child and the child looks, this should not be misinterpreted as interest. The course also addressed the consequences and trauma experienced by victims, outlining the many ways such conduct can cause harm. He explained that the first course was more general, while the second was more intensive and explored the underlying causes of offending behaviour. He found the second course, particularly valuable because it encouraged deeper reflection. After completing the required number of weeks, he was unable to continue the second course due to financial constraints.[49]
At the hearing, the applicant reiterated that he had undertaken two sex offender rehabilitation courses following his 1994 conviction. He completed one but was unable to complete the second course due to financial constraints. He said the course he completed had been helpful, he had received constructive feedback during the program and was encouraged by positive comments from facilitators. However, he acknowledged that he has not undertaken any other courses since then and has not engaged with any other specialist treatment or counselling to address his own childhood experiences and the underlying causes of his sexual behaviour.
As noted above, the applicant also stated at the hearing that he did not know and could not say what effect his offending had on the victim. This evidence appears to be at odds with his statutory declaration of 23 October 2024, in which he stated that courses he had attended had addressed the consequences and trauma experienced by victims, outlining the many ways such conduct can cause harm. The applicant's inability to identify or articulate the impact of his conduct suggests that any learning from the courses he had attended many years ago was either superficial or not consistently retained.
I have considered the applicant's evidence regarding his reengagement with the Jehovah's Witnesses and involvement with a dance group. In his statutory declaration of 23 October 2024, the applicant stated that in 2019 he was travelling with plans to go to Queensland when the COVID-19 pandemic began. Unable to cross the border from NSW, he remained there for about two and a half years, during which he reflected deeply on his faith. After returning to Victoria, he approached the elders of the Jehovah's Witness congregation to request permission to rejoin the community. They agreed, subject to certain conditions, including that he does not socialise with others before or after services.[50]
In an email to the Tribunal dated 26 September 2025, the applicant stated, 'some years ago,' he started thinking seriously about his past behaviour and the problems he has created for others due to his 'immorality behaving (sic).' He said he has since made changes in his life, beginning with his return to the Jehovah's Witnesses. He described himself as serious about learning from the faith and said it has taught him values 'like putting others in first place and there are (sic) more happiness to giving than receiving.'[51]
At the hearing the applicant stated that his involvement with the Jehovah's Witness community had provided further support and guidance. He said he begun thinking about returning to the Jehovah's Witnesses because he believed that studying the Bible seriously would benefit him. He said the congregation gave him a list of groups he was required to attend. It was put to the applicant that he had said earlier in the hearing that he began questioning his behaviour and considering a return to the Jehovah's Witness faith around 2008 following his conviction at that time but that in his statutory declaration he indicated that this happened following the COVID-19 pandemic. He explained that he approached the Jehovah's Witnesses in 2008, but also did so again after returning to Victoria from NSW following the COVID-19 pandemic. He maintained that both accounts were correct, as he had travelled extensively around Australia, including to Queensland, before eventually returning to Victoria. Upon his return, he again contacted the Jehovah's Witness congregation to ask if he could be accepted back, and approval was granted, as members who stop attending are required to seek permission before resuming participation.
I found the applicant's account of his involvement with the Jehovah's Witnesses confused and lacking coherence. His statutory declaration made no mention of any re engagement with the congregation in 2008, and I did not find his explanations for the inconsistencies persuasive. Nevertheless, I am prepared to accept that his involvement with the congregation has increased in recent years, subject to the conditions imposed by the Jehovah's Witness elders on his attendance. While the applicant presented his return to the faith as a positive step towards stability and moral improvement, the inconsistencies in his account reduce the reliability of his evidence regarding the depth and continuity of his religious commitment, and the extent to which it may mitigate his risk of reoffending.
In his 26 September 2025 email, the applicant also referred to positive influences from a dance group he has attended three times a week for about five years. He said the members are of a similar age and have 'a very happy life,' and that they have observed how he behaves 'in normal situations, without preparing himself on different situations.' He stated that only Ms Jasmina Lukic knows the details of his offending, but some others know he has 'problems with the Australian law' without knowing the details. He said the character references from his friends reflect 'the ways that I been behaving true (sic) that time [and] it's not fake.'[52] At the hearing, he said that those who provided character references for him know him as he is now and see him as a person who has changed, although not all are aware of his past offending. He stated that he will not reoffend, explaining that his confidence in this is grounded in his current moral principles and values he now lives by.
This evidence, which I accept, largely reflects social contact rather than structured intervention or rehabilitation. On his own account, most members of the group are unaware of his offending history, limiting the relevance of their observations. His assertion that he has changed and will not reoffend rests on self-assessment and carry little weight in assessing the likelihood of reoffending.
In her submission to the Department, Ms Moller, while acknowledging the seriousness of his past offending, contended that the likelihood of reoffending is low. She submitted that the applicant understands the consequences of his actions and he has shown a change in his behaviour since the 2019 offence, actively ensuring compliance with his reporting requirements. Ms Moller stated that in sentencing the applicant for his 1994, 1998, 2008, and 2014 convictions, the courts determined that it was appropriate for him to remain in the community. Reference was made to s 5(1) of the Sentencing Act 1991 (Vic), which identifies community protection as one of the purposes of sentencing. It was argued that, although custodial sentences were available for each offence, the courts' decisions to impose non-custodial outcomes support an inference that the applicant's ongoing reporting obligations were considered sufficient to protect the community. These reporting requirements, which will remain in place for the duration of the applicant's life should he continue to reside in Australia, were submitted to provide an enduring safeguard against any future risk to the community.[53]
In the RSFIC, the Minister submitted that although most of the applicant's convictions resulted in community-based rather than custodial sentences, this must be weighed against his continued offending despite previously receiving suspended sentences. The Minister argued that the nature of past penalties should not be conflated with an assessment of future risk. Reference was made to the delegate's observations regarding the factors contributing to the applicant's conduct, including the absence of any evidence that he has undertaken psychological treatment to address his childhood sexual abuse or its potential impact on his behaviour.[54] The Minister further submitted that the applicant's expressions of remorse, particularly in his statutory declarations and submissions concerning the Woolworths' incident, should be considered in light of inconsistencies between those statements, the transcript of the proceedings before Ararat Magistrates Court and his earlier correspondence with the Department, and may not reflect genuine contrition. The Minister acknowledged that it has been 17 years since the applicant last committed a sexual offence and that his two most recent convictions relate solely to failures to comply with reporting obligations, the most recent occurring six years ago. The Minister accepted that the applicant's lifelong reporting obligations serve as a protective factor but noted that he has twice breached these obligations.[55]
In oral submissions, the Minister submitted that the applicant does not fully appreciate the harm caused by his offending. It was argued that the applicant's own evidence demonstrated that, at least at the time of his earlier offending, he had little understanding of the impact of his actions on his victims. It was submitted that, given the applicant's own experience of sexual abuse as a child, he should have had a heightened awareness of the harm such conduct causes. It was further submitted that the applicant's explanations for his offending, namely that it resulted from 'stupidity' or 'idiocy,' were inadequate and should be rejected. The Minister characterised the offending as opportunistic and argued that a more plausible inference was that the applicant has a sexual attraction to children and that his offending is of a paedophilic nature. The applicant's refusal to acknowledge this, it was argued, undermines the credibility of any claimed rehabilitation. The Minister also referred to the applicant's evidence at the hearing that he was convicted in Uruguay when he was 25 years old for living with a 17-year-old girl. He was sentenced to two years' imprisonment but was released after two months when he married the girl. According to the applicant, he was then given a certificate saying that the conviction was quashed and was of no significance. The Minister acknowledged that there are no further details available and that reliance was not being placed upon any convictions in Uruguay or the applicant's failure to disclose any such convictions. Rather, it was contended that the applicant's evidence shows a propensity for sexual activity with a minor person.
The Minister submitted that, although the applicant has participated in two treatment programs, in the absence of genuine acknowledgment of the nature of his offending, limited weight should be given to these efforts. It was submitted that the applicant's minimisation of his conduct, including his characterisations of the 1998, 2008 and 2019 incidents, and his failure to undertake psychological counselling were said to undermine any claim of rehabilitation. Although he has complied with reporting obligations since 2019, the Minister submitted that this alone is insufficient to mitigate the ongoing risk he poses.

[74]

The applicant's evidence, taken as a whole, does not demonstrate that he has developed genuine insight into the nature and consequences of his offending. Across his accounts of multiple offences, he has continued to minimise his behaviour, externalise blame, and deny key facts established in the record. His explanations, referring to childhood abuse, marital difficulties, or sexual frustration, do not establish a causal connection to his offending or provide any persuasive context for understanding its motivations. Rather, they reflect a continuing lack of appreciation of the seriousness of his conduct and its impact on victims.
While I accept that he has participated in two rehabilitative programs following his 1994 conviction, I am not satisfied that this participation reflects genuine rehabilitation. The programs were undertaken nearly 30 years ago, and there is no evidence of any recent or specialist treatment addressing his sexual behaviour or its underlying causes. Nor is there evidence of sustained therapeutic engagement or professional support directed at reducing his risk reoffending since then.
I accept that the applicant's last sexual offence occurred 17 years ago. However, in this case the mitigating effect of elapsed time is diminished by the applicant's breaches of his reporting obligations in 2014 and 2019, demonstrating ongoing disregard for regulatory requirements. I find the applicant's expressions of remorse are inconsistent with both the evidence and his prior statements. Although his more recent statements express a commitment to compliance and his record since 2019 indicates no further offences or breaches of his reporting obligations, his longstanding minimisation of the seriousness of his offences and his failure to provide clear, consistent explanations for previous non-compliance raise doubts about the depth and durability of his insight as a factor in reducing risk to the Australian community.
I accept that the applicant may now be motivated to comply with his reporting obligations, but his historical pattern of deflection and rationalisation suggests that this motivation is externally driven and fragile. I further accept that his lifelong reporting obligations provide a measure of external safeguard. However, I am not satisfied that these measures alone are sufficient to eliminate the residual risk of future non-compliance or reoffending should his circumstances change or external oversight lessen.
I have found that the applicant's offending was very serious. I have also found that even a relatively low risk of further offending would give rise to the prospect of unacceptable harm. While there are factors that may serve to mitigate the applicant's risk of reoffending, I am not satisfied that these substantially diminish the risk posed to the community. Considering that the applicant's offending was very serious and that any further criminal conduct would result in serious and significant harm to both individuals and the Australian community, I find that any risk that the applicant's conduct may be repeated is unacceptable. Overall, I give the primary consideration of protection of the Australian community against criminal and other serious conduct in Australia significant weight in favour of exercising the discretion to cancel the visa.

[84]

The applicant arrived in Australia in 1985 when he was approximately 32 years old. He has lived in Australia for about 39 years and is now 71 years old. He had resided in Australia for about nine years before his first court appearance in March 1994.
The applicant is divorced and has three adult children in Australia, all of whom are Australian citizens: Martin, aged 39; Viviana, aged 35; and Leandro, aged 28.[56]
In a phone call with the Department on 8 August 2017, the applicant stated that he maintains intermittent contact with his eldest child, Martin, who works as a factory manager. He visits Martin occasionally and keeps in touch by phone. His contact with his second child, Viviana, has been limited; he last saw her about two years ago when she stayed with him briefly before returning to her mother's home. He said Viviana has since been unable to maintain contact due to her mother's objections. The applicant last saw his youngest child, Leandro, when he was 15 years old. He previously had regular weekend contact until his ex-wife ended the arrangement, citing intervention by Human Services. He said he was unable to afford supervised visits and ultimately lost contact when Leandro indicated that maintaining the relationship caused conflict with his mother.[57] In an email to the Department dated 9 August 2017, the applicant stated he did not know if any of his children would miss him if he returned to Uruguay.[58]
In his statutory declaration of 23 October 2024, the applicant said that, following the breakdown of his relationship in 1994, he did not obtain custody of the children. Martin works at a factory and previously taught a dance class, which the applicant occasionally attended, and they now speak roughly every two months. His daughter was estranged from him for many years but recently initiated contact when they met at a shopping centre, where she spoke with him and asked him to buy her a top. He expressed hope to continue rebuilding their relationship. The applicant said his youngest son has experienced significant difficulties, including drug use. Although the applicant obtained his phone number in an attempt to reconnect, Leandro did not return his call. The applicant stated that his main goal in life is to repair his relationships with his children before he dies and that this wish underpins his desire to remain in Australia.[59]
At the hearing, the applicant stated that he has no contact with his youngest son, explaining that he was never permitted to see or maintain contact with him because supervised visits were required and he could not afford to pay for them. Regarding his daughter, he said they have spoken only three times, the most recent being about a year ago when they encountered each other in a shopping centre. She followed him, told him that she and others missed him, and helped him choose some clothes. He said he was so happy to see her that he forgot to ask for her phone number. In relation to Martin, the applicant said they had met several times in the past. Martin teaches dance, and the applicant had attended some of his classes. They had shared drinks and meals together, but communication since then has been limited. The applicant said he last went to Martin's workplace about six months ago but was unable to see him or make contact. He said Martin has his phone number but has not called him. When asked how his children would be affected if his visa were cancelled, the applicant said his youngest son was already 'lost' to him. He had tried to reach out to all his children over the years but was unable to maintain contact due to broken phones and lack of current numbers. He expressed uncertainty about how his children currently view him.
In his statutory declaration of 23 October 2024, the applicant stated that he worked full time in Australia from 1986 until his retirement in 2016. He said he paid taxes, contributed to his superannuation, and supported his family, and that he could not imagine living anywhere other than Australia.[60] The applicant worked for approximately 14 years at Australian Aluminium Finishing in Dandenong before retiring due to chronic pain. He also worked for Toyota in Dandenong, Nissan in Clayton and as a cleaner.[61] In his 2017 personal circumstances form, he described helping his neighbour Yvonne with household repairs as an example of his community contribution.[62] In his 2024 personal circumstances form he reported that he is heavily involved in a Rock 'n' Roll dance community, met with the group regularly, and helped organise fund raising and community events.[63]
In submissions to the Department, Ms Moller said the applicant has lived in Australia longer than in Uruguay, is reliant on social support from the Rock 'n' Roll dance community, attends dances frequently, helps organise events, and often raises money for charities and community causes. She said letters from friends, including Mr Adrian Spadaro and Ms Jasmina Lukic, support these claims.[64] The applicant has also attended some English classes at TAFE and completed an advanced commercial cleaning course.[65]
In his letter of support, Mr Spadaro confirmed that the applicant has been a student in his dance class since 2009. He described the applicant as polite, courteous and an advanced dancer.[66] The applicant also provided letters of support from Mr Neville Luke, a former coworker at the Australian Aluminium Finishing, who had known him for 12 years and described him as honest and likable,[67] and from Ms Yvonne Sullivan, a former neighbour of seven years, who described him as helpful and credit to the community.[68] None of the letters, however, refer to the applicant's offending, and it is unclear from the contents whether the authors are aware of his criminal history.
In an email dated 16 October 2017, Ms Lukic said she had met the applicant in November 2010 and that they had been in a relationship for about three years before remaining close friends. She described him as hard-working, respectable, peaceful, and caring, and as a calm, gentle partner who never argued or raised his voice. She said he was an exceptional and loving father who often spoke proudly of his children, and that if he were removed from Australia, it would have a devastating effect on her.[69]
In a later letter dated 27 August 2024, Ms Lukic confirmed that she had known the applicant for over 10 years and that they met through Rock 'n' Roll dancing. She said their friendship developed over shared interests, including camping and fishing trips, and that she always felt safe with him. She said the applicant eventually disclosed his offending to her, which she found deeply upsetting and led to a temporary break in their friendship. She said they later resumed contact, continued to camp and dance together, and she remained his friend because she had observed lasting change in his character. She said he appears depressed about his past conduct, misses his family, and is trying to repair relationships with his children. She described him as reliable, generous, and trustworthy, stating that he holds keys to her home and has never betrayed her trust. She said she relies on him for support and would be devastated if she lost him.[70]
In his statutory declaration of 23 October 2024, the applicant said he had resumed attending Jehovah's Witness services with elders' permission and considered this important to his values. He also said he was in a developing relationship with a woman named Beverly from the dance group, that they spoke daily, met weekly, and danced together each weekend, and that Beverly knows about his offending.[71] No supporting statement or correspondence from Beverly was provided.
At the hearing, the applicant stated that his friends from the dance community are his main social network. He said they gathered three times a week to socialise and dance. He confirmed that other than Ms Lukic he had not told his friends about his offending and the reasons for providing character references. The applicant did not make any references to Beverly at the hearing. He also stated that he is currently permitted to attend Jehovah's Witness services in Australia, but he must leave immediately after and is not spoken to by other members.

[86]

I accept that the applicant has resided in Australia for nearly four decades and worked continuously from 1986 until his retirement in 2016. I accept that he has developed a modest genuine social network, particularly through the Rock 'n' Roll dance community and his attendance at Jehovah's Witness services. I also accept that he has had some involvement in organising community events and charitable fundraising. I accept and have taken into account these positive contributions. However, I note that his offending began approximately nine years after his arrival and continued, albeit intermittently, until six years ago.
I accept that the applicant has three adult children in Australia who are Australian citizens. I'm not satisfied, however, that his relationships with them are close or ongoing. The evidence indicates no contact with his youngest son, only limited past contact with his daughter, and largely intermittent and superficial contact with his eldest son, which now appears to have discontinued. I'm not satisfied that any of his children are dependent on him or that his removal would have a material impact on their day-to-day lives. I accept, however, that his removal from Australia would likely prevent him from re-establishing or developing any meaningful relationship with them in the future, and I find that they would be impacted by the potential loss of this opportunity for reconciliation.
I accept that the applicant has developed several friendships in Australia, including a longstanding and genuine friendship with Ms Lukic, who has provided statements showing awareness of his offending and describing emotional reliance on him. I accept that she would likely be affected by his removal. I also accept that his other friends would be impacted by the decision to cancel his visa. However, I note that the applicant's friends who have provided character references appear unaware of his offending. While it is not possible to determine how their knowledge of his conduct might affect their willingness to continue the friendship or offer support, that uncertainty reduces the weight that can be placed on the emotional impact on them or on the support they have expressed. With regard to his claimed relationship with a woman named Beverly, he made no mention of her when asked at the hearing about his relationships or support in Australia, and no supporting statement or correspondence from her was provided. I'm not satisfied that this claimed relationship carries any significant weight.
Taking these matters together, I find that the primary consideration in paragraph 8.3 of the Direction weighs against exercising the discretion to cancel the visa, but only to a moderate degree.

[89]

Paragraph 8.5(1) of the Direction provides that 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) of the Direction directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through certain conduct including relevantly, 'commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature...' (subparagraph 8.5(2)(c) Direction 110).
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) provides that decision-makers must apply the Government's stated expectations and are not to conduct an independent assessment of those expectations in light of the individual's circumstances.
In her submissions to the Department, Ms Moller contended that the extent and degree of weight to be given to the deemed expectations of the Australian community should be 'significantly moderated' on account of other deemed expectations including: 'the expectation of the Australian community, expressed through Australia's commitment to the international treaties enshrining its non-refoulement obligations, that Australia will protect those who are fleeing persecution' and 'the expectation of the Australian community, expressed through the sentence imposed upon the Applicant by the criminal sentencing court (recalling that one role of a criminal sentencing court is, through the imposition of a just punishment, to express the community's censure of an offender's conduct).'[72]
Citing FYBR v Minister for Home Affairs,[73] Ms Moller stated that each case should be considered in light of its individual circumstances. It was submitted that in the current case the relevant circumstances are the applicant's length of residency in Australia and connection to the community, his family ties, his demonstrated rehabilitation, the completion of his sentence, the limited risk he poses to the community, and the fact that he has experienced traumatic abuse as a child in Uruguay.
The Minister submitted that the applicant has failed to meet the expectations of the Australian community to obey its laws. Furthermore, the applicant raises serious character concerns through his conduct involving sexual crimes against a child. Given the severity of the applicant's offending and the fact that he has been sentenced to a term of imprisonment, the Australian community would expect that the applicant should not remain in Australia. The Minister submitted that this primary consideration weighs significantly in favour of cancelling the visa.[74]
The expectations of the Australian community in paragraph 8.5 of the Direction are stated in a normative matter. The consideration concerns the expectations of the Australian community as a whole. In applying it, the Tribunal is to rely on the Government's stated views, rather than independently assessing the community's expectations in the particular case. Given that the community expectations are not expressed in relation to any particular case, I reject Ms Moller's submissions in this regard.
Referring to paragraph 8.5 of Direction No. 99, Horan J in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs[75] noted that the Direction does not 'require decision-makers to moderate the expectations of the Australian community in light of the specific circumstances of the non-citizen.' [76] His Honour stated:

[95]

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.
While this consideration in the Direction refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a visa refusal or cancellation under s 501 or related provisions, including unlawful status, the likelihood of being detained and/or removed, and refusal or cancellation of other visas.
If the applicant's visa is not cancelled, he will retain the visa and would be released back into the Australian community. If the visa is cancelled, the applicant becomes an unlawful non-citizen. As a result, he would be liable to removal from Australia as soon as reasonably practicable under s 198, and in the meantime, detention under s 189 of the Act. Section 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a non-citizen. In such circumstances, the applicant would face significant restrictions on applying for another visa. Under s 501E of the Act, an application for a visa other than a protection visa cannot be made from within the migration zone, unless it is for a Bridging Visa R (Class WR) in limited circumstances.
Furthermore, certain visas are subject to special return criteria (SRCs). SRC 5001(c) is of particular relevance as it provides for permanent exclusion if the visa applicant previously had a visa cancelled under section 501. There is no provision for a visa applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion. However, SRC 5001 will no longer apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under s 501.
The applicant has never held or applied for a Protection visa and is not presently the subject to a protection finding. He is, therefore, not barred under s 48A of the Act from applying for a protection visa. Should he do so, he would have the opportunity to present further evidence in support of his claims, which would be assessed under the protection visa procedures provided for in the Act. I note that the Tribunal does not have power in these proceedings to make a protection finding in respect of the applicant. Should the applicant lodge a valid protection visa application, he would not be liable to be removed to Uruguay while that application is under consideration.
In her submission to the Department, Ms Moller stated that, if returned to Uruguay, the applicant would face 'extreme poverty and hardship and struggle to access accommodation, income, and healthcare. He will be completely destitute, unable to even afford housing, and additionally, he will be isolated from his central supports - namely his friends and family in Australia. He would be returned to a place where he has experienced significant trauma and in which he has limited prospects and social connections.'[81] It was submitted that there is a 'real and substantial risk' that the applicant would suffer significant harm within the meaning of s 36(2)(aa) of the Act in the reasonably foreseeable future in Uruguay and that Australia's international non-refoulment obligations must be considered.[82]
In an email to the Tribunal dated 26 September 2025, the applicant stated 'I'm not worrying about my future out of Australia, I'm terrified, literally I'm urinating in my pants... This time is probably the last time where I am going to sleep warm in a bed. I know that, nobody wants kill me in Uruguay, that's because no [one] will care about me, it's a reality and never before I been so afraid of it (sic).'[83]
At the hearing, the applicant said he was concerned about returning to Uruguay. He explained that he would not be able to access his superannuation or pension in Uruguay. He would also face significant health problems and would be unable to care for himself. When asked whether he feared any specific harm or risk to his safety in Uruguay, he said he did not believe he would be attacked, as nobody there knew him, but that he would be homeless and without support. He added that he left Uruguay as a young man, and it was already difficult to find employment then, which he believed would be even harder now.
Paragraph 9.1.2 of the Direction makes it clear that non-citizens who are not the subject of a protection finding may nonetheless raise claims that potentially engage Australia's non-refoulement obligations in the context of a visa cancellation or revocation process under ss 501 or 501CA of the Act, and such claims must be considered. However, where the non-citizen is eligible to apply for a protection visa, it is not necessary at that stage to determine those issues in the same detail as would occur in a protection visa application. The protection visa process is specifically designed for assessing such claims, and the decision-maker may proceed on the basis that, if an application is lodged, any protection claims will be assessed as required by section 36A of the Act before any character or security concerns are considered.
In Plaintiff M1/2021 and Minister for Home Affairs,[84] the High Court stated that in cancellation decisions where the applicant remained free to apply for protection visa under the Migration Act:

[105]

In his statutory declaration of 23 October 2024, the applicant stated that he suffers from depression and takes sleeping pills. In a letter dated 21 October 2024, Dr Oakar Tun reported that the applicant has adjustment disorder/depression, which have caused sleeping issues and anxiety. Dr Tun noted that he planned to refer the applicant to a psychologist if symptoms persisted. He further recorded that the applicant has high cholesterol, hypertension, and atrial fibrillation, which he is taking medication for. Dr Tun opined that the applicant requires ongoing treatment and regular follow up to optimise his physical and mental wellbeing. He expressed uncertainty about whether the applicant could receive 'world standard treatment that he is having in Australia' if he returned to Uruguay and noted that this may adversely affect his health.[91]
In her submission to the Department, Ms Moller stated that the applicant's health will continue to deteriorate with age. She noted that his work history is limited to physical industries such as car manufacturing, that he has little education, and that he has no family or support network in Uruguay. Given his poor health, she submitted that he is unable to continue physical work and would therefore rely entirely on state assistance. Citing the Social Security Administration, Office of Retirement and Disability Policy publication 'Social Security Programs Throughout the World: The Americas, 2019 - Uruguay,' Ms Moller noted that eligibility for an old age pension in Uruguay requires 30 years of contribution to the pension system. She said that if the applicant were assessed as a person over 70 with a disability preventing work, he 'may receive the non-contributory pensions for older people and the disabled, available for people who are 70 and over and unable to work.' As of 2020, this amounted to UYU $12,117 (AUD$423.13) per month. Ms Moller argued that even if the applicant were eligible, this amount would be insufficient to meet rent and basic living costs such as food, utilities and medical expenses. Referring to Dr Tun's opinion, she submitted that the applicant requires continuing medical care, and that without stable housing or adequate income, it would be unlikely that he could maintain regular access to medical assistance or follow up care. She contended that the applicants removal to Uruguay would 'lead to almost certain inability to subsist, to the point where his life would be at risk.' Ms Moller further argued that he would be isolated from his central supports in Australia, with minimal prospects or social connections, and that the absence of adequate treatment and support would place him at risk of rapid physical and mental decline.[92]
In the RSFIC, the Minister accepted that the applicant is 71 years old and suffers from severe and degenerative spinal conditions, high blood pressure, and high cholesterol. It was also accepted that he has adjustment disorder or depression, a heart condition, and hypertension, and that he may not be able to receive the same standard of treatment in Uruguay as he currently receives in Australia. The Minister submitted that the applicant is unlikely to experience cultural or linguistic barriers upon return, as he migrated from Uruguay at the age of 31. However, it was acknowledged that his advanced age and the length of time he has spent in Australia may make readjustment to life in Uruguay difficult. The Minister accepted that the applicant would likely experience significant practical, financial, and emotional hardship on return, and submitted that the Tribunal should give significant weight against cancellation of the visa on the basis of this consideration.[93]
At the hearing, the applicant said he had sold his caravan and other possessions because he believed he would be deported immediately after his visa was cancelled. He explained that he gave the proceeds from the sale to his former partner, Ms Lukic, partly to repay money he owed her. He said Ms Lukic told him she did not need the money, and she would return it to him in the future, and that she had offered to provide him with additional financial assistance if required, although she did not specify whether this offer extended to circumstances in which he might be returned to Uruguay.
When asked about possible support from the Jehovah's Witness community in Uruguay, the applicant said he would not receive any, as he had been expelled from the congregation. He said that while he is currently permitted to attend services in Australia, he must leave immediately after and is not spoken to by other members, and any further acceptance would depend on his continued attendance and conduct over time. He said he would not expect financial or housing assistance from the Jehovah's Witness organisation. He said any resources he had would go towards assisting his brother in Uruguay, explaining that his disabled brother had sold their family home and he had given his share of the proceeds to his brother. He said his brother might allow him to stay at his rental property for up to two weeks, but he otherwise had no permanent accommodation or reliable source of support in Uruguay. While his evidence initially suggested that his brother is in Uruguay, when asked for clarification he said his brother is in Argentina.
When questioned about government or social support, the applicant said he is not entitled to superannuation pension, the age pension is not sufficient to live on and that he is uncertain whether he would qualify for any form of assistance. He said his brother told him he might be able to receive a small amount, but that it would not be enough to meet living costs. He said he has not investigated disability or medical pensions, noting that his parents had been seriously ill in Uruguay but had never received a pension.
The applicant described several health conditions, including chronic back pain, high blood pressure, high cholesterol, irregular heartbeat, and depression. He said his back pain fluctuates, that he takes medication as required, and that his doctor encourages him to remain active through dancing. He said he also takes blood thinners, medication for skin condition, pain medication, and anti-inflammatory medication. He acknowledged that he experiences depression but does not take medication for it, explaining that his doctor had warned of side effects such as drowsiness that could prevent him from driving. He said that if he required treatment in Uruguay, he would need to join a medical scheme and pay regular fees, which he could not afford. He said that if returned to Uruguay, he would have no similar opportunities to work because there were many handymen there and little work available. The applicant also stated that he has experienced spells of dizziness in the detention centre, with one requiring medical attention, but he did not know the cause of the dizziness.
In closing submissions, the Minister contended that the applicant may be eligible for a disability pension in Uruguay, depending on his personal circumstances. It was submitted that he may also have access to some funds through Ms Lukic, could obtain occasional income from handyman work, and may receive limited assistance from his younger brother and the Jehovah's Witness community. The Minister argued that there is nothing to suggest the applicant would be treated differently from other Uruguayan citizens if returned. While acknowledging that the applicant is 71 years old and has several health conditions, the Minister submitted that these impediments are not insurmountable. The applicant would be able to access medical treatment in Uruguay, albeit not the same standard as in Australia, through the country's public health system. The Minister further noted that there are no anticipated cultural or language barriers to the applicants reintegration.

[111]

I have found that the applicant does not pass the character test under s 501 of the Act. In considering whether the visa should be cancelled, I have had regard to the specific circumstances relating to the applicant. I have also had regard to the considerations referred to in the Direction.
The Direction provides that the protection of the Australian community is the Government's highest priority. Paragraph 7(2) expressly states that primary consideration 1, protection of the Australian community, is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations. However, the Direction does not prescribe a mechanical hierarchy and the evaluative exercise of weighing up the factors in the Direction is not subject of some ritualistic formula.[96] It requires that appropriate weight ultimately be given to both primary and other considerations.
I have found that the applicant's offending was very serious and that any risk of further offending, even if relatively low, would give rise to an unacceptable risk of harm to the Australian community. I therefore find that primary consideration 1, protection of the Australian community, weighs significantly in favour of exercising the discretion to cancel the visa. I have found there is no evidence that the applicant has engaged in family violence, and I give primary consideration 2 neutral weight. Primary consideration 3, the strength, nature and duration of the applicants tie to Australia, weighs moderately in favour of exercising the discretion not to cancel the visa. Primary consideration 4, the best interests of minor children, attracts neutral weight, as there are no minor children in Australia affected by the decision. I find that primary consideration 5, the expectations of the Australian community, weighs significantly in favour of exercising the discretion to cancel the visa.
Among the other considerations, I find that the legal consequences of cancellation weigh moderately against exercising the discretion to cancel the visa, and that the extent of impediments the applicant would face if remove to Uruguay should be given significant weight against exercising that discretion. There is no evidence that the cancellation of the visa would have any impact on Australian business interests, and I have given this consideration neutral weight.
Having regard to all the primary and other considerations, I find that the protection of the Australian community and the expectations of the Australian community weigh more heavily than the considerations favouring the exercise of the discretion not to cancel the visa. Taken together, those factors outweigh the strength, nature and duration of the applicant's ties to Australia, the legal consequences of the decision to cancel his visa and the considerable impediments he would face if removed. I have therefore decided that the discretion to cancel the visa should be exercised.

At a glance

Court

Decision date

Source

Judgment (121 paragraphs)

Parties

Cases Cited (8)

Carnevia Silva and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2360 (5 November 2025)