1. In considering whether to exercise the discretion in section 501(2) to cancel a person's visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 110- Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA ("the Direction") applies. The Direction provides guidance for decision-makers in determining, relevantly, whether to refuse to grant an Applicant a visa.
2. The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. The principles that are found in paragraph 5.2 of the Direction are as follows:

(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 noncitizen poses a measurable risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

3. Paragraph 8 of the Direction sets out five primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. Paragraph 9 of the Direction sets out three other considerations:

(a) legal consequences of the decision; > > (b) extent of impediments if removed; and > > (c) impact on Australian business interests.

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

When considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

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

The nature and seriousness of the Applicant's conduct to date

1. When considering the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides that decision-makers must have regard to the following:

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i) violent and/or sexual crimes;

(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

(d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

(e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

(f) the cumulative effect of repeated offending;

(g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

(i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. There is no doubt that the Applicant's offence is considered very serious under the Direction. Even if it had not been, I find that the offence is objectively very serious. The sentencing judge made the following comments relevant to the seriousness of the offending:

'The maximum penalty for the offence in question is 15 years. Whilst there are many cases of this type which are considered by the Courts, the fact is that the period of time over which the offence took place, the nature of the requests, the fact that he was persistent, he intended as he said in his evidence to have sexual relations, that the person who was said to be involved was only 14, indicates that it is an offence of some severity. General principles were provided to me by the Commonwealth which were relevant of course in determining the extent of criminality. On the other hand counsel for the offender indicated that it was considered it was a low level of criminality. In my view it is below mid-range but not at the lowest range of criminality.

The evidence before the Court indicates that this was although not a higher end of criminality nevertheless a serious offence and there is only one count in the Crown bundle.

The decisions of the higher courts in relation to these matters would indicate that as is necessary the Courts have to properly acknowledge the serious nature of the type of offending involved and not only the serious nature of the offending involved but if this was a real person the significant effect that it would have on such a person.'

1. The nature of the Applicant's offending was described in the sentencing remarks as follows:

The offender engaged in online communications with an assumed online identity who posed as a 14 year old female. He engaged in this communication with intention to procure the young person for sexual activities. The offender gave evidence about this matter and was cross-examined about it and I accept the evidence that was elicited in cross-examination on these issues.

The communication was through a social network, this was an adult dating website that allowed users to enter the site without registration. The user selected their name, sex and location, questions had to be answered and on 17 April 2017 a police officer operating as an online identity received a message from the offender who asked how old she was, the officer stated 14 and the offender said "I'm looking for a girl who can give me BJ and $50 for 15 minutes which she clarified to mean "Well keep adding $50 for every 15 minutes". He then sent a picture of his penis to the undercover officer. He then said "You can meet me, 15 minutes, suck cock, rubber on top". The offender asked the officer to continue the conversation on another online forum, the officer stated that she had Skype and provided an email address, a friend request was sent to the email address using Skype, user names were used. The communication returned to the topic of oral sex and the offender told the officer "Think as of you're eating an ice block", he told her he would use a flavoured condom. The offender also raised the possibility of his performing oral sex on the AOI and the AOI watching him masturbate over Skype video call.

On 18 April the officer initiated contact with the offender by Skype, he asked her if she had had sex, whether she wanted to watch porn and whether she was sexually aroused from that and asked if she wanted to have oral sex. On 26 April the offender contacted the officer who replied several hours later, a chat commenced. The offender asked her to watch him masturbate, he suggested that they should engage in a video chat to build trust. He called the AOI using Skype's video chat function. The officer could see the offender but the offender could not see the officer. He said again that he wished to meet, he said "I'm not going to fuck you because you're just 14, you can suck my cock". The offender indicated that he wished to perform oral sex on her, that he would like to be friends and he liked friendly girls and suggested that he would digitally penetrate her to increase pleasure.

The officer then suggested that she trusted him but again said that she was 14. The offender then said that he would masturbate over Skype and said "I will pour oil on top and do it, it will be sexy and seducing". He then asked for a picture of the officer and the officer sent him a picture of a 14 year old girl. He then asked for a picture of the naked breasts of the person but the officer said that she did not have such a photograph. The same day a Skype chat function was initiated and the offender masturbated, transmitting video of the act to the officer. During the web camera video stream the New South Wales Police captured the offender's IP address registered to the offender.

On 27 April there was further contact and a general conversation was under taken about what had happened during the day. On 1 May the offender again contacted the officer and informed her that he had been watching pornographic movies and masturbating. He asked when they would meet and asked if he could hear the AOI's voice. The offender made a video call to the AOI and transmitted footage of him masturbating to her.

On 15 May the offender sent an off line message and several hours later the AOI replied asking about how they would arrange a meeting. The offender stated that they should meet first and talk about it and the AOI requested and it was arranged that they meet at North Parramatta McDonalds. The offender requested a sexy pic of the person and the AOI provided the offender with a phone number. He then requested the picture of her in a bikini and it was sent and he sent two shirtless photographs of himself. They discussed meeting at her home and the offender said "Do you mind if I fuck you on that day in your home with a C on top" by which he meant condom. The AOI requested the offender's mobile phone to ensure that they would communicate before meeting.

On 16 May the offender contacted the AOI by Skype and told her he could not attend the meeting because he had to work. On 17 May there was a further contact, the offender contacted the AOI by Skype and said "If you have a carrot you can play with your puss", he also sent the AOI a link to a pornographic video depicting an adult woman inserting vegetable into her vagina. The AOI and the offender arranged to meet on Monday, the offender offered to buy the AOI a present. The AOI said that she liked the West Tigers NRL team, the offender offered to buy her a jersey. The offender discussed having sex with the AOI again and sent her an image of a sexual position he would like to try. On 18 May the AOI contacted the offender by Skype and the offender confirmed he was going to meet her on the Monday to perform oral sex and suggested he would like to reciprocate the favour if possible.

On 21 May police attended the North Parramatta McDonalds, they saw the offender and arrested him. He confirmed he was there to meet a 14 year old girl and said "I wasn't going to do anything, I was coming to meet her and then go to work". When the police searched the car they found a box of condoms which came with a set of sex toys. At the time of his arrest he informed police that he wanted to go home and that it was not illegal to talk to 14 year old people. The offender is a 38 year old Indian national. Prior to his arrest he resided with his wife and three year old daughter. He has no previous convictions.

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

In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen re-offending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. As outlined above, the nature of the Applicant's offences involved the Applicant engaging in online communications with an assumed online identity who posed as a 14 year old female with intention to procure the young person for sexual activities. If this sort of offending were repeated, it could mean that children in the Australian community could be groomed and taken advantage of sexually including being sexually assaulted by the Applicant. This could potentially cause physical and mental harm to children in the community.
2. A report dated 19 June 2024 by clinical psychologist Sam Borenstein into the Applicant concluded that the Applicant presented a very low risk of re-offending or a "minimal risk of reoffending or ever coming to the attention of the police and the courts again".
3. Mr Borenstein gave evidence at the hearing by video. During his evidence at the hearing, Mr Borenstein confirmed his findings in the report regarding the Applicant's risk of re-offending and elaborated by saying that the risk was minimal, very low and negligible. He said that the risk presented by the Applicant was almost equal to a person with no criminal history and was the lowest possible assessment that the Applicant could be given.
4. I have considered all of the material before the Tribunal potentially relevant to the risk of the Applicant re-offending. Most of that material was before Mr Borenstein.
5. I accept the expert evidence of Mr Borenstein that the Applicant has a minimal or very low risk of reoffending.
6. I note that the circumstances of the Applicant were that he was arrested for his offence in May 2018 but was then released on bail on 30 August 2018 and has been in the community since then. That is, for almost 7 years.
7. On 4 September 2019, the Applicant was convicted in Parramatta District Court of 'use carriage service to procure person under 16yo by person 18yo+'. He was sentenced to 2 years and 3 months imprisonment but remained in the community.
8. On 17 March 2022, the Applicant applied for Australian citizenship. In his application he disclosed his conviction and sentence of imprisonment.
9. On 6 December 2022, the Applicant was granted a Five Year Resident Return (Subclass 155) visa (resident return visa). That was a permanent visa.
10. On the same day the area of the Department involved in the grant of the resident return visa referred the Applicant to the character area of the Department stating:

'Please see s501 cancellation referral for the client above who were convicted of child sex offences in Australia and sentenced to more than 12 months imprisonment.

We have finalised their RRV application today as Applicant is onshore and met criteria of 5 years grant.'

1. The resident return visa was granted to the Applicant by the delegate under section 65 of the Act despite the Department knowing the Applicant's offending and his sentence of imprisonment and that section 65(1)(a)(iii) requires consideration of possible section 501 cancellation.
2. On 15 May 2024, the Department sent the Applicant a 'Notice of intention to consider cancellation under s501(2) of the Migration Act 1958' and the visa was cancelled on 4 November 2024.
3. The Applicant was not notified of cancellation decision until 16 January 2025 and has never been taken into immigration detention despite the Department knowing his address and the mandatory detention requirement in section 189 of the Act.
4. In summary, despite the Department knowing of the Applicant's conviction and sentence of imprisonment since at least March 2022, the Department granted the Applicant a permanent visa in December 2022 and then did not send a NOICC to the Applicant until May 2024, over 2 years later. Despite cancelling the Applicant's visa in November 2024, the Applicant was not notified of cancellation until January 2025 and has never been taken into detention.
5. In those circumstances it appears difficult to me to understand the submission by the Minister that the Applicant represents a risk to the Australian community as the Department has allowed the Applicant to remain in the community since 2018 and knew since at least early 2022 of the Applicant's offence and sentence of imprisonment. While the Department's view on the Applicant's risk of reoffending may be relevant to my assessment of the protection of the Australian community, I have decided to place no weight on this history and instead come to my conclusion on the risk of the Applicant re-offending based on Mr Borenstein's expert opinion.
6. I have found that the Applicant's offending was very serious and that the Applicant has a very low or minimal risk of re-offending.
7. I find that the primary consideration of the Protection of the Australian community weighs in favour of visa cancellation but have only given low weight to this primary consideration given the very low or minimal risk that the conduct will be repeated.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

1. This consideration is not relevant in this matter.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

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

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

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Applicant arrived in Australia at the age of 31 years and has lived in Australia for 13 years.
2. The Applicant's wife and their two minor children are Australian citizens. The Applicant also has strong ties to the community through his employment, business endeavours and friendships and owns two properties in Australia. The Tribunal accepts that if the cancellation decision was affirmed and the Applicant is removed from Australia, the Applicant's wife and children are likely to experience severe financial, practical and emotional hardships.
3. The Tribunal also accepts that the Applicant has close connections with Australia including as evidenced by the many letters of support from friends and colleagues in Australia.
4. The Tribunal places heavy weight on this consideration.

PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. This primary consideration requires a decision-maker to make a determination about whether visa cancellation, refusal or non-revocation is or is not in the best interests of each child under 18 affected by the decision.
2. In considering the best interests of a child, the following factors must be considered where relevant:

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The relevant children in this case are each of the Applicant's two Australian children. His 10-year-old daughter and his 2-year-old son.

Application of factors appearing at paragraph 8.4(4) of the Direction to the seven relevant minor children

1. Sub-paragraph (a): The Applicant plays a parental role in relation to both of his children. The Tribunal is satisfied that the Applicant is very close with both of his children and would play an important parental role in their lives if he were allowed to remain in Australia.
2. Sub-paragraph (b): whether the Applicant will play a positive role in the future, very much depends upon whether the Applicant reoffends and the Tribunal has found that there is a very low or minimal chance that he will re offend. As such, the Tribunal considers that the Applicant will play a positive parental role at least until the children turn 18.
3. Sub-paragraph (c): there is limited direct evidence of the impact, if any, of the Applicant's conduct on each of his two children.
4. Sub-paragraph (d): given the close nature of the parental relationship between the Applicant and each of the children, separation from the children will is likely to adversely affect each of the children. This will be especially so if the Applicant is removed to India as this will prevent any in-person contact between the Applicant and the children unless the children were able to visit him in India. The Applicant and his children will be able to maintain contact through electronic means, but that, of course, is no substitute for real in-person contact.
5. Sub-paragraph (e): The Applicant and his wife both have parental roles for each of the children. If the decision is affirmed it is likely that the children's mother will have sole parental control over the two children.
6. **Sub-paragraph (f):**The Tribunal does not have the express views of the children before it but the Tribunal accepts that both children who are very close to their father would want their father to remain in Australia with them. The Tribunal considers that this conclusion is supported by the undated letter by the applicant's daughter to the Applicant.
7. Sub-paragraphs (g) and (h): these paragraphs do not apply directly.

1. The Tribunal finds that the cancellation of the Applicant's visa is not in either child's best interests. That is, each of the children's best interests is currently served by setting aside the cancellation of the Applicant's visa so that each child may remain with their father in Australia.
2. The Tribunal places heavy weight on this primary consideration in the Applicant's favour.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, 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 conduct, in Australia or elsewhere, of the following kind:

b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c) 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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community

(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

1. Most relevantly in the current case, the Applicant breached the statement of Australian community expectations set out in 8.5(1) of the Direction when he failed to obey Australian laws. By engaging in a serious crime in breach of this expectation, paragraph 8.5(1) expresses the Australian community expectation, as a norm, that Government not allow the Applicant to remain in Australia.
2. The Tribunal notes that the wording of the Direction does not appear to allow for any subjective evaluation by the Tribunal of what the expectations of the Australian community are. Rather, the Government has provided a statement of policy in relation to community expectations which decision-makers must comply with and consider as a primary consideration.
3. The weight to be given to this primary consideration is of course a matter for the Tribunal, and I place weight on this consideration primarily by considering the nature and seriousness of the Applicant's offending which informs severity of the breach of the community expectation to obey the law: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 per curium at [53] to [64]. I will of course consider the relative weight of all considerations at the conclusion of my decision-making process.

1. I find that this consideration weighs in favour of affirming the cancellation of the Applicant's visa and give this consideration moderate weight.

Other Consideration (a): Legal consequences of the decision

1. It may well be, that this other consideration is only strictly relevant where there is a protection finding in an Applicant's favour or when there is an issue as to whether international non-refoulement obligations are owed in respect of an Applicant. No such issues arise in this case and in that sense, it is not relevant.
2. However, I have also considered the legal consequences of affirming the cancellation decision on the Applicant and his family. If the decision is affirmed, it will result in the Applicant remaining an unlawful non-citizen and being taken into immigration detention until he is removed from Australia.
3. The Applicant's removal from Australia having had his visa cancelled under section 501, will almost inevitably mean that he will never be able to return to Australia (because of the operation of special return criterion 5001 in Schedule 5 to the Migration Regulations 1994). I have considered these legal consequences of affirming the cancellation decision. I have also considered the practical consequences for the Applicant, his family and others of affirming the decision. I consider that the fact that the Applicant will, in all likelihood, be removed from Australia, never to return to Australia and that he could be detained for some time in immigration detention before removal, weigh in the Applicant's favour and I give this consideration moderate weight.

Other Consideration (b): Extent of impediments if removed

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country

1. The Applicant is 45 years of age. He does not suffer from a mental disorder or illness. The Applicant has been gainfully employed or run a business as an IT consultant. His work experience in Australia would assist the Applicant in gaining employment in India.
2. There is no evidence that the Applicant would not be able to access any government medical or economic support available to other Indian citizens.
3. As the Applicant was born in India and lived there until he was 31 years old. The Tribunal finds that there would be no significant language or cultural barriers to the Applicant re-establishing himself in India. The Applicant has family members in India including his parents.
4. The Tribunal acknowledges that it would be difficult for the Applicant to re-establish himself in India and weighs this consideration moderately in his favour.

Other Consideration (c): Impact on Australian business interests

1. The parties submit that this consideration is not relevant and the Tribunal agrees.

Conclusion: should the discretion to cancel the Applicant's visa be exercised?

1. The Tribunal has found that the primary consideration of the protection of the Australian community weighs in favour of visa cancellation and has placed a low weight on this consideration. The Tribunal has found that while the Applicant's offence was very serious and that there could be harm to members of the Australian community if it were repeated, there is only a very low or minimal risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs moderately in favour of visa cancellation.
2. The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs against visa cancellation and has attributed heavy weight to this consideration. The Tribunal has also found that the consideration of best interests of minor children weighs heavily against visa cancellation.
3. The Tribunal has found that the consideration of legal consequences for the Applicant (and hardship to the Applicant) of cancelling the Applicant's visa and impediments if removed each weigh against visa cancellation and attributes moderate weight to each.
4. After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 5.2 of the Direction, I have decided that the considerations of strength, nature and duration of ties of the Applicant to Australia, the best interests of minor children in Australia, the legal consequences of decision under section 501 and the extent of impediments if removed outweigh the considerations for affirming the cancellation decision.
5. While the Applicant does not pass the character test in this case and the discretion to cancel the visa was therefore enlivened, the Tribunal considers that the preferable decision is that the discretion to cancel the Applicant's visa not be exercised.

1. The Tribunal sets aside the reviewable decision and makes a decision in substitution not to cancel the Applicant's visa under section 501(2) of the Migration Act 1958 on the basis of the conduct which lead to his conviction of 4 September 2019.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision

Instructed by Mr Nilesh Nandan (My Visa Lawyers)

Between Vengata Subramanian Radhakrishnan (Applicant)

And Minister for Immigration and Multicultural Affairs (Respondent)

EXHIBIT REGISTER

And Minister for Immigrations and Multicultural Affairs

Before General Member Eteuati

Appearance details

For the Applicant: Dr J Donnelly of counsel instructed by Mr Nilesh Nandan (My Visa Lawyers)

For the Respondent: Ms Qi Qi Ren (HWL Ebsworth Lawyers)