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MIGRATION - mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa - substantial criminal offending - New Zealand national - failure to pass character test - offending involving child - whether another reason mandatory cancellation should be revoked - Ministerial Direction No. 110 applied - ties to Australia - best interest of minor child - impediments to removal - decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA

Meissner v R (1995) 130 ALR 547

Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003

Direction No. 110 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501

1. On 5 June 2024, a delegate of the Minister administering the Migration Act 1958 (Cth) (the Minister), cancelled Mr Senior's Class TY Subclass 444 Special Category (Temporary) Visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act).
2. On 15 June 2024 and 24 December 2024, Mr Senior provided an extensive response to the decision, requesting revocation of the decision to cancel his visa for other reasons.
3. On 5 May 2025, a delegate of the Minister made a decision not to revoke the cancellation of Mr Senior's visa. The delegate found that:

167. In considering the use of my discretion, I have given the highest priority to the safety of the Australian community and the need to protect its safety. > > 168. I have found that the best interests of Mr SENIOR's minor nieces, G and C, as a primary consideration, weighs strongly in favour of revocation of the cancellation of Mr SENIOR's visa. > > 169. I have also found that Mr SENIOR's ties to Australia, as a primary consideration, weigh substantially in favour of revocation, noting in particular that he has lived in Australia since he was a child and all his immediate family reside in Australia. > > 170. In addition, I have found that a number of other factors also weigh in favour of a decision to revoke. These include the impediments if Mr SENIOR is removed to his home country and the impact on Australian business interests. > > 171. However, I have also given significant weight to the very serious nature of the crimes committed, which involved multiple acts of sexual abuse against very young and vulnerable children, who at the time of the offending were in Mr SENIOR's primary care under Foster Care arrangements. I find that Mr SENIOR's offending illustrates extremely reckless and abhorrent conduct on his part that has had the potential to cause significant psychological harm to vulnerable members of the Australian community. Further, I consider the seriousness of the offending is increased through the cumulative effect of repeat offending. > > 172. I consider the harm of sexual crimes, particularly on young children, to be profound. The effects of such crimes can not only negatively affect their physical and mental development into adulthood, but also negatively impact their interpersonal relationships with family, future partners, friends and the wider community for the rest of their lives. > > 173. Furthermore, I have considered that non-citizens who have engaged in serious crimes of a sexual nature against children and family violence raise serious character concerns such that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well towards non-revocation of the visa cancellation. > > 174. Noting that Mr SENIOR has engaged in crimes of a sexual nature against children and family violence, I am also mindful of the principle stated in the Direction that the inherent nature of this kind of conduct is so serious that even strong countervailing considerations may be insufficient in some circumstances to make a positive decision. > > 175. I am cognisant that where significant harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable, even applying a higher tolerance of Mr SENIOR's criminal conduct than I otherwise would because he has lived in Australia from a young age. > > 176.On balance, I find that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel Mr SENIOR's Class TY Subclass 444 Special Category (Temporary) visa should be revoked. It follows that the condition under s501CA(4)(b)(ii) of the Act is not met.

4. On 5 June 2025, Mr Senior applied to the Administrative Review Tribunal (the Tribunal) under s 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his visa, stating:

In summary, the Applicant contends that there is another reason why the original visa cancellation decision should be revoked, as follows: > > a. Primary Consideration 1 (protection of the Australian community from criminal or other serious conduct) weighs, on balance, in favour of revoking the cancellation; > > b. Primary Consideration 2 (family violence) should have no or neutral weight; > > c. Primary Consideration 3 (the strength, nature and duration of ties to Australia) weighs very strongly in favour of revoking the cancellation, as the Applicant maintains very strong family and social ties with Australian citizens and non-citizens with the right to live in Australia permanently, and has lived in Australia for over 20 years between the ages of 14 and 35; > > d. Primary Consideration 4 (the best interests of the child) weighs, on balance, in favour of revoking the cancellation, as the best interests of several minor children would be affected by the non-revocation decision; > > e. We accept that Primary Consideration 5 (expectations of the Australian community) may weigh on balance in favour of not revoking the cancellation, however we submit that it does not weigh heavily in this direction, and are outweighed by the strength of Primary Considerations 1, 3 and 4 and the other considerations; > > f. The other consideration of the extent of impediments if removed to New Zealand weigh strongly in favour of revoking the visa cancellation; and > > g. The other consideration of the negative impact on Australian business interests weighs strongly in favour of revoking the visa cancellation. > > Taken as a whole, the combination of Primary Considerations 1, 3 and 4 and the other considerations weigh very strongly in favour of revoking the cancellation and on balance outweigh Primary Considerations 2, and 5.

5. At the hearing of his application on 14 and 15 July 2025, Mr Senior was represented by Ms Victoria Lenton, of Lenton Migration Law, and Ms Sarah Thomas instructed by Crishelle Lopez of HWL Ebsworth, appeared for the Minister. The Minister lodged a set of paginated G-Documents, and summons documents from the District Court of Queensland, Queensland Corrective Services, Queensland Police and the Department of Families, Seniors, Disability Services and Child Safety (Queensland). Mr Senior submitted numerous statements from family, psychiatric reports, a letter from his criminal lawyer and other documentation.

1. Mr Senior is a 36-year-old New Zealand citizen, who permanently migrated to Australia with his family on 21 January 2004 at the age of 14. Since his arrival in Australia Mr Senior departed twice for short holidays, one to New Zealand and one to the United Sates of America. Mr Senior identifies as an openly homosexual man.
2. Mr Senior completed his secondary education in Australia completing year 10, which included a lengthy component of work experience at David Fleay Sanctuary. Mr Senior reported struggling at school, with reading, writing, playing sport, and forming friends. Mr Senior in early primary school was diagnosed with dyslexia.
3. After completing his education Mr Senior stayed on as a volunteer at David Fleay Sanctuary, eventually being employed full time as a wildlife ranger. Unfortunately, this position ceased when the Sanctuary was placed in the management of the Queensland state government and Mr Senior and many of his colleagues were made redundant.
4. Mr Senior has a significant work history:

a. 2004 to 2008: Wildlife Ranger - David Fleay Wildlife Park;

b. 2008 to 2011: Baker's Assistant - Uncle Bob's Bakery;

c. 2011 to 2015: Hotel Manager - The Sportsman Hotel;

d. 2015 to 2022: Practice Manager - Green Cross Vet Clinic; and

e. 2022 to 2024: Shareholder/operator (family business).

1. Additionally, Mr Senior established his own possum catching and relocation business, worked as a farm hand on a friend's hobby farm and was a volunteer for Wildcare Australia for 7 years providing emergency animal rescue services.
2. In December 2020 Mr Senior applied to become a Foster and Kinship Carer with the Department of Child Safety through Anglicare. This involved background checks, medical examinations, vaccinations, maintaining personal diaries and growth diaries, and training courses through Anglicare relating to child behaviour. Mr Senior advised the training courses were done face-to-face in group sessions and provided tips on how to defuse situations when children have outbursts. On 7 July 2021, Mr Senior was approved as a Foster and Kinship Carer. Mr Senior provided short term crisis and respite care for children, such as afternoon visits, overnight stays and occasional stays for longer periods. The placements were arranged through Anglicare with subsequent visits organised between the child's primary carer and Mr Senior. Mr Senior had 5 boys all under the age of 8 placed in his care whilst he was an approved carer.
3. Between 21 and 23 March 2022 Mr Senior was charged with numerous offences that occurred between 18 August 2021 and 12 February 2022 relating to 3 boys in his care as an approved foster parent.
4. On 17 April 2024 Mr Senior was convicted of 6 counts of indecent treatment of a child under 16, under 12, under care and 2 counts of attempted indecent treatment of a child under 16, under care.
5. Mr Senior has significant medical issues including:

f. Adjustment Disorder with mixed anxiety and depressed mood.

1. Mandatory visa cancellation in circumstances of a substantial criminal record arises under s 501(3A) of the Act. This is one of a number of ways in which a person may fail the character test in s 501(6). A substantial criminal record is defined as including the situation where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
2. A mandatory cancellation decision may be revoked upon application where a person is found to pass the character test, or where there is another reason to revoke the decision (s 501CA(4)). A compulsory source of guidance has been issued in the form of Direction No. 110 (the Direction). I will refer to the factors identified in the Direction below, and also note that considerations are to be informed by the following principles:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

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

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

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

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

1. In his Statement of Facts, Issues, and Contentions dated 26 June 2025 (ASFIC), Mr Senior conceded that he did not pass the character test for the purposes of s 501CA(4)(b)(i) of the Act and he confirmed this at the hearing. The Tribunal is satisfied that Mr Senior does not satisfy the character test under s 501 on account of his substantial criminal record as defined under s 501(7) being sentenced to a term of imprisonment of 12 months or more.
2. Accordingly, the issue for consideration by the Tribunal is whether the cancellation of Mr Senior's visa should be revoked, taking into account the relevant considerations in the Direction. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.

1. The following table has been derived from a national criminal history check relating to Mr Senior, produced by the Australian Criminal Intelligence Commission on 25 June 2024:

INDECENT TREATMENT OF CHILDREN UNDER 16 CHILD UNDER 12 YEARS LINEAL DESCENDENT/GUARDIAN/CARER (2 CHGS BTN

INDECENT TREATMENT OF CHILD UNDER 16 (PROCURE TO COMMIT) CHILD UNDER 12 YEARS

INDECENT TREATMENT OF CHILD UNDER 16 (INDECENT FILM ETC) CHILD UNDER 12 YEARS

TREATMENT OF CHILD UNDER 16 (PROCURE TO COMMIT) CHILD UNDER 12 YEARS LINEAL

(2 CHGS BTN 12/08/2021 & 20/11/2021, 18/01/2022 & 24/01/2022)

1. Following a guilty plea, His Honour Justice Smith, imposed a term of 3 years' imprisonment, suspended (to be served concurrently) after serving 8 months with a 2 year probation period. In his sentencing remarks, his Honour described Mr Senior's offending, the background to the offending and the impact on the victim:

Now, you were there is a chance of deportation here. You were 32 at the time, you are 34. You have no criminal history. The facts are agreed. You are a foster and kinship carer for the Department of Child Safety through Anglicare, and you provide- ... in emergency care for children. Your application for that role was approved on the 7ᵗʰ of July 2021. You lived at your house alone, and children were left in your care for short periods. > > .... This involves count 1 and 2. He went to your home for... care. On a night during his third visit, he was lying on the floor of the lounge room using your iPad. He was in his underwear. You touched him on his penis on the inside of the clothing. Count 1. You did not say anything. That was not the first occasion. I am not punishing you for that. It puts in context count 1. On an unknown date you told him to touch your penis. You unzipped your pants. You said you would get him chocolate if he did it. He did not touch it. This is count 2. You touched his penis more than once whilst providing ... ... You would also lie on top of the covers while he laid beneath the covers. As I said, that is context evidence. On the 11ᵗʰ of November 2021, he was placed in the care of .. and... .. and he was walking around naked, and he told them that he used to do that when he was with you. He later provided a 93A statement to the police. > > ..... Counts 3 to 7 relate to him. He had been in the care of ... ...for about two years and then went to your house for about four days on the ... of .... Whilst he was in the lounge room you stood next to the couch, telling him to touch your penis three or four times. You told him to hold your penis by putting the hand out with the palm facing up, and complied. Count 3. On another occasion, he was in the lounge room, you had told him to touch your penis and he did so. Count 4. On another occasion he was playing PS4 in the lounge room and you instructed him to touch your penis and he did so. Count 5. You then asked him to pick a movie or touch your penis. He chose to watch a movie. Count 6. When he touched your penis, you would ask questions like, "Does it look like yours? Does it feel like yours?" You would smile at him, and he described your penis. You also told him that another boy,... touched your penis. Count 7 relates to you removing your penis and fiddling and playing with it. He described it. You also walked around the house naked with a bathrobe on and your penis exposed. Again, that is background evidence. He tried to conceal your behaviour. He later provided a 93A statement to police. > > Count 8 includes a ... year old. He was ... ... ... and you touched his penis and told him not to tell his aunties. Count 8. He did not like it. He felt scared. He provided a statement to the police. On the 20ᵗʰ of March 2022, police executed a search warrant and you declined an interview. You were granted bail. I have read the victim impact statements, exhibits 2 and 3. It has clearly had an effect on the complainants, even the ones I have not seen victim impact statements for. I infer that. There are vulnerable children here. They were very young. There was a breach of trust. It is serious. I clearly form the view you had an interest sexually in the children. There were three victims, ... .and ... There was some degree of manipulation. It was not isolated. It was skin on skin.

Mr Senior's representative outlined in detail Mr Senior's guilty plea in relation to his criminal charges had been on the basis of a Meissner Plea, contending this is a plea of convenience established in the case of Meissner v R (1995) 130 ALR 547. The High Court of Australia confirmed at paragraph 19 that persons may plead guilty in circumstances where they believe they are innocent:

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence (25). But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

Mr Senior's representative contended The High Court in the Meissner decision confirmed that the court will act on such guilty pleas, provided that the Applicant meets the criteria below:

A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if the Court does act on such a plea, even if the person entering it is not indeed guilty of the offence.

Mr Senior's representative submitted the fact that Mr Senior plead guilty to the charges on the basis of a Meissner Plea, which is confirmed by the Applicant's criminal solicitor Jonathan Law in an email dated 13 June 2024, where he stated:

Shawn had pleaded guilty to charges as per Statement of Facts and as per the outcome detailed in the Verdict Judgment Record. Shawn has provided instructions to plead guilty to the charges notwithstanding his firm belief that he was not guilty of the charges. Two barristers were instructed in relation to this matter, and both barristers were of the opinion that had Shawn taken the matter to a trial, he was more likely than not, going to be convicted and found guilty of the charges. Had that been the case, he was looking at a lengthier custodial sentence as he would have forced the Crown Prosecutor to call child witnesses to give evidence against him. > > Shawn's specific instructions to plead guilty to the charge(s) was not because he believed he was guilty of the charge(s) but because he did not want to cause additional stress on the children, and it would likely reduce his custodial sentence further. This is what we refer to as a Meissner Plea. Perros' report goes into detail of Shawn's medical history, which could provide some explanation as to why "normal" behaviour to Shawn may appear abnormal behaviour to others. Shawn specifically mentions that he did not believe removing the underwear of a child and inspecting the child's genitalia regions for parasites after the child complained of itchiness was anything wrong. He believed any reasonable parent or guardian in his situation may have done the same instead of taking the child to the doctor straight away. There are other examples that he has provided on the other charges as well. He admits that the events or incidents had happened but that he thought he was doing the right thing at the time. The effect of the Meissner Plea in Shawn's situation was that we were not able to make any submissions to the Court about his guilt, remorse or contrition (because in essence, he did not believe he had done anything wrong). The plea of guilty was entered on a commercial basis or convenience rather than any admission of guilt on his part.

Mr Senior's representative submitted that Mr Senior in his personal statement provided a detailed description regarding his motivations in entering a Meissner Plea in this case:

I plead guilty even though I was innocent of the charges because I did not want to cause additional stress on the children. My lawyer told me that the criminal case is very traumatic on children and would require them to sit on the stand and be cross-examined harshly. This goes against why I fostered the children in the first place, so I plead guilty to make sure they wouldn't be further traumatised. > > In the sentencing transcript at 5-12 on page 1-2, the judge said that my guilty plea was not an early plea, but that my guilty plea was to be encouraged as it spared the children from being cross-examined and showed that I was cooperating with the administration of justice. > > I did not give an early guilty plea as I was not guilty of the charges, and my criminal lawyer wanted to get evidence before we finalised the plea (psychiatrist report, sentencing report, wait for the test report about whether the children could cope with court). Gathering the evidence took quite a bit of time. > > My criminal lawyer and the barristers advised me that I was likely going to be convicted and found guilty if we went to trial and fought the charges. They said that there were many factors going against me in the case, such as me being gay and single, the nature of the charges and the fact that all of the evidence in the case was hearsay. They said that there was a very low chance that we could fight the charges and be successful. They told me that I was likely going to get a very long prison sentence if we fought the charges, likely 5-10 years, and that the trial would be traumatising to the children, as they would be called to give evidence. This was one of the biggest factors for me - I didn't want to put the kids through the rigamarole of the court system where they would be berated by my defence council. They would have suffered a lot of trauma sitting in the witness box and being asked the same question in a lot of different ways from the lawyers, and giving answers and not being made to feel like they were listened to. They already mistrust "the system" and it would have made them even more fearful of authority. It is the duty of foster carers to protect children. > > My criminal lawyer advised that I should make a "Meissner Plea". This meant that I pleaded guilty to the charges as they were written in the Statement of Facts and Verdict and Judgment Record, but that it was clear that I maintained my innocent. There was no trial, so the children were spared from having to be called as witnesses. As there was no trial, I was not allowed to give evidence as to my innocence, remorse or other circumstances. My criminal lawyer said that a Meissner Plea is similar to an early guilty plea for a lesser sentence and that this is how pleading works in criminal cases. > > I would have gone to trial if I knew I was going to jail and that I was going to be deported."

The Respondent's representative also addressed Mr Senior's claims that he relied on a technical legal plea known as the 'Meissner Plea' which has the effect that a person may plead guilty to avoid 'worry, inconvenience or expense': Meissner v R (1995) 130 ALR 547 at [19]. Noting Mr Senior had claimed he entered into this plea as he 'did not want to cause additional stress on the children' or cause them to be 'further traumatised'. 6. The Respondent's representative submitted a Meissner Plea is a plea of convenience that may be entered into for pragmatic reasons. In Meissner v R [1995] HCA 41; (1995) 184 CLR 132 Dawson J observed that:

The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.

7. The Respondent's representative submitted although Mr Senior states that he plead guilty to spare his victims from having to give evidence, it should be noted Mr Senior's criminal solicitor, Jonathan Law, had informed Mr Senior if he had taken the matter to trial, he was likely to be convicted, sentenced to a lengthier custodial sentence and would call the child victims to give evidence. Additionally, the sentencing remarks of Judge Smith described the Applicant's plea as 'timely' rather than 'early'.
8. The Respondent's representative submitted Mr Senior also told Psychologist Rebecca Geddes that he denied the offending occurred and 'only pled guilty on the advice of his lawyer' and 'was preoccupied with the belief he was convicted on the advice of his lawyer to plead guilty'. The Respondent's representative contended this was at odds with Mr Senior's claim to have plead guilty to spare his victims from the trauma of a hearing.
9. The Respondent's representative contended the reasons for Mr Senior's pleading guilty were not a relevant consideration for the Tribunal. Submitting a Meissner Plea, for whatever reason it is made, constitutes an admission of the elements of the offence, whereby Mr Senior accepted the facts set out in the Statement of Facts, and plead guilty accordingly.

Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

1. The Direction requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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 (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege, given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.
2. This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen's conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).

The nature and seriousness of the conduct (paragraph 8.1.1)

1. Mr Senior did not contest he had committed serious crimes and accepted that he failed the character test.

1. Mr Senior's representative conceded that that his criminal convictions fell within the scope of 'very serious' conduct under Ministerial Direction No. 110, given that the offending involves crimes of a sexual nature against children.
2. Mr Senior's representative submitted there was no dispute as to the fact of the convictions to which Mr Senior had plead guilty. Nevertheless, Mr Senior's representative submitted there were unusual circumstances in this case, given that Mr Senior in fact fully denies that he has ever touched or acted indecently in any form towards the 3 foster children in his care. The guilty plea in this matter was in the form of a 'Meissner Plea' and was entered for the following reasons as Mr Senior:
   • was concerned about causing additional stress on the relevant children as a result of having to give evidence at a contested criminal hearing; and
   • received legal advice from counsel that if he were to plead not guilty, he would be likely to receive a lengthier custodial sentence.
3. Mr Senior's representative submitted that Mr Senior:
   • consistently maintained his stance of innocence, which is consistent with his Meissner Plea;
   • as he entered a Meissner Plea he was unable to refute the claims made in the Statement of Facts, or make submissions as to his innocence or mitigating factors;
   • provided a version of events which are consistent with his own past descriptions; and
   • clearly and precisely distinguishes his version of events and the Statement of Facts.
4. Mr Senior's representative submitted it was relevant for the purposes of the Tribunal in weighing of this factor to consider the Sentencing Judges imposed a sentence at the lower end of what is available for the offences. In this case, the maximum penalty for such offences which can be imprisonment is 20 years as listed below, whilst Mr Senior was sentenced to 3 years' imprisonment for all charges:
5. Mr Senior's representative submitted prior to his convictions in 2024, he had no criminal history.

1. The Respondent's representative contended that the nature and seriousness of the Mr Senior's conduct weighs heavily in favour of exercising the discretion to affirm the decision to refuse revocation of the cancellation decision. Particularly as Mr Senior's offending is viewed 'very seriously' by the Australian Government and the Australian community, as it involved a sexual crime, and a crime of a sexual nature against a child.
2. The Respondent's representative submitted Mr Senior's offending occurred in the context of his role as a Foster and Kinship Carer for the Department of Child Safety through his agency Anglicare.
3. The Respondent's representative submitted Mr Senior plead guilty to the charges as set out in the Statement of Facts dated 2 April 2024, summarised as follows:

(a) Counts 1 and 2 relate to MS who was 8 years old at the time > > > (i) Count 1: Mr Senior touched MS on his penis by putting his hand inside the opening of the pouch at the front of MS's underwear. > > > > (ii) Count 2: Mr Senior told MS that he would get to watch movies and get chocolate if he touched his penis. MS did not comply. > > > > (iii) Mr Senior touched MS on the penis more than once while he provided care, and he told MS not to tell anyone. At bedtime, Mr Senior would lie on top of the covers as MS lay underneath the covers. > > (b) Counts 3 - 7 related to MC who was 9 years old at the time > > > (iv) Counts 3 - 5: Mr Senior told MC to hold Mr Senior's penis, MC compiled as he did not want to get in trouble. > > > > (v) Count 6: Mr Senior asked MC whether he wanted to touch Mr Senior's penis or watch a movie. MC chose to watch a movie. > > > > (vi) Count 7: Mr Senior touched his own penis in front of MC and asked if MC played with his own penis in the same way. > > > > (vii) When only in a dressing gown, Mr Senior would lay on MC's bed whilst the child was in bed. MC in his interview stated Mr Senior walked around the house in only his dressing gown with his penis hanging out and that Mr Senior told MC at the start of his visit that whatever happened in his house, stayed in his house. > > (c) Count 8 relates to L who was 6 years old at the time > > > (viii) Count 8: Mr Senior pulled down L's pants and underwear and touched L's penis and told L not to tell his aunties.

4. The Respondent's representative contended Mr Senior's victims had already been displaced from their homes, already experienced significant trauma and were extremely vulnerable when they were placed under his care. The Respondent's representative submitted that Mr Senior's actions, towards these vulnerable children, to whom he owed a duty of care, was very likely to have a profound and long-term effect on each of the children and contended Mr Senior's conduct was very serious as it was perpetrated against 3 vulnerable children in his care.
5. The Respondent's representative contended the Tribunal should find Mr Senior's behaviour very serious as it had a significant impact on his victims; the length of Mr Senior's sentence whilst not insignificant was not critical as his offence would be considered serious regardless of the sentence handed down; his Honour Judge Smith's sentencing remarks demonstrated the serious nature of his offending; and was frequent and cumulative.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

1. This part of the primary consideration requires the Tribunal to have regard to the Government's view that 'the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases' (8.1.2(1)).

1. Mr Senior's representative submitted the evidence clearly indicates Mr Senior is a low risk of recidivism. Mr Senior's representative submitted the 2 forensic psychological assessments of Mr Senior in August 2023 and December 2024, both found that he has a low risk of recidivism. Mr Senior's representative drew the Tribunal's attention to the report from Mr Peter Peros, Forensic Psychologist and Clinical Neuropsychologist dated 7 August 2023 and the report from Dr James Freeman, Forensic Psychologist, dated 17 December 2024. Noting both reports utilised the Sexual Offender Risk Appraisal Guide (SORAG) and Hare Psychopathy Checklist (PCL-R) assessment tools.
2. Mr Senior's representative submitted Mr Peros' report of 7 August 2023 provided the following assessment in relation to risk of recidivism by Mr Senior:

The total score of 3 falls within average limits, and very low on the psychopathy spectrum. > > Mr Senior does not display features of clinically significant antisocial behaviour or a deviant lifestyle and scores well below prison inmates with extensive criminal histories. > > Mr Senior does not display frank psychopathy. His score falls well below scores typically obtained by prison inmates with extensive criminal histories. > > Item 6. At interview Mr Senior displayed limited insight into the impact his wardrobe malfunctions and inappropriate questioning a child about his sexual knowledge might have had on the child's emotional health. This is likely associated with autistic spectrum disorder, but coded regardless as it is present. > > Item 8 (Empathy). At interview, Mr Senior found it difficult to describe how a child might process his behaviour associated with the subject offending. This is likely associated with expressive language difficulties associated with dyslexia and characteristics autistic spectrum disorder, but coded 1 out of 2 as it is present. > > Item 14 (lmpulsivity). This gets coded because Mr Senior attributed his wardrobe malfunctions to rushing or inattention. This is potentially the more serious of Mr Senior's inappropriate behaviours in front of children in his care as it allowed a child to view Mr Senior's private parts. Mr Senior strenuously asserted that this behaviour was not intentional. On that basis I coded this 1 out of 2. However, in the context of a 34-year-old man who is gay and caring for male children, this inappropriate behaviour attracts forensic attention, and a recommendation from the writer that this be addressed in therapy with the treating clinical psychologist. > > Mr Senior is unlikely to pose more that a low risk to the general public. His disability makes him suited to highly structured work under supervision or with other adults present.

3. Mr Senior's representative submitted Dr Freeman's report of 17 December 2024 also assessed Mr Senior as having a low risk of reoffending.

Similar to Mr. Peros' assessment, Mr. Senior's SORAG score of -5 indicates he can be considered in the "low-risk" category (e.g., low risk range is from -17 to +2, medium from 3 to 19), due to: (a) lack of past non-violent criminal history, (b) no prior conditional release breaches, (c) no evidence of a personality disorder, (d) no evidence of psychopathy, (e) no evidence of alcohol problems, (f) no evidence of parental neglect, etc. > > The risk of re-offending can be considered in the low- risk category. Firstly, utilisation of the current actuarial tools (e.g., PCL-R, SORAG, & SVR-20) indicate Mr. Senior can be considered in thel/ow-risk category for sexual recidivism, which is consistent with the assessment of Mr. Peros. Secondly, he does not present with psychopathic tendencies that have been closely linked with sexual recidivism, along with sexual deviancy and criminal versatility e.g., committing person, drug and property offences. Thirdly, it is noteworthy that sexual recidivism is one of the least likely committed crimes, compared to drug and property re-offences. Fourthly, there are a number of protective factors including: accommodation stability, employment opportunities, lack of substance abuse or violence-based treatment needs, insight into mental health treatment needs, etc. > > Finally, it should be noted that calculations regarding the likelihood of sexual recidivism are not heavily influenced by acceptance of guilt. That is, contemporary actuarial scales do not incorporate "acceptance of guilt" as a core factor in risk assessment algorithms, as a continued stance of innocence has not been found to be associated with an increased risk of recidivism. Furthermore, it is not uncommon for convicted sex offenders to exhibit various levels of minimisation likely due to feelings of shame and guilt. This appears particularly relevant for the current case as Mr. Senior presents as an individual who has primarily engaged in pro-social behaviours in the community, and appears particularly deterred from re-offending. In regard to the latter, research has demonstrated that the application of legal sanctions can create a specific deterrent effect among certain individuals in regards to reducing the risk of recidivism. This appears relevant for the current case as he presents as an individual with such typology and he dislikes the personal deprivations associated with a custodial environment and reports a strong intent to avoid return to custody. Additionally and regardless of his continued stance of innocence, engagement in psychological consultations (with Mr. Pershouse) has likely had a further salutary effect upon the risk of recidivism and his lengthy probation requirement will provide additional opportunities for assessment through Corrective Services to determine if: latent sexual treatment needs are evident and (b) provide referral (where necessary). > > At the time of assessment, Mr. Senior was domiciled at the Walston Correctional Centre in the residential section. He reported consistently abiding by the conditions of a custodial environment (e.g., no breaches/incidents) and remained in contact with a number of family members e.g., parents, sister, etc. Mr. Senior continued to engage in one-on-one treatment with a correctional psychologist. > > Mr. Senior's goals are pro-social and focus on: (a) being released from custody and abiding by the conditions of a community-order, (b) residing with his parents at Browns Plains, (c) initially working in his parents' convenience/take-away store while engaging in a TAFE course to obtain year 12 equivalency, (d) exploring veterinary nursing educational opportunities, (e) returning to engage in psychological consultations with Mr. Owen Pershouse and (f) avoiding future unsupervised contact with children.

4. Mr Senior's representative contended that Mr Senior has also put in place a substantive risk mitigation plan and has a firm commitment to his obligations to comply with sex offender registration requirements. He also has significant family support which will serve as a strong protective factor in this case. He has provided the following statement in relation to the likelihood of re­ offending in the future:

I don't think there is any chance of me reoffending. I'm not going to put myself in any situation again that could even potentially lead to me reoffending. I understand that I must be hypervigilant and ensure that I am never alone with a child again. I must always be supervised, no matter what the circumstances are. > > I have probation for 5 years, which requires reporting, monitoring from the Queensland Parole Board, ACER and the police. The judge stated that I must do any medical, psychiatric and or psychological treatment that I am directed to do. I haven't been told to do anything at this stage but I will be seeing my psychologist for treatment regularly. > > My family are aware of my criminal convictions and my mental health circumstances. They will support me and ensure that I do not reoffend. > > I will have gainful employment in the family business, which will help keep me busy and ensure I have a way to support myself and contribute.

5. Mr Senior's representative submitted Mr Senior's low risk of reoffending was also supported by the documents received under summons from the Queensland Corrective Services (QCS) which makes it clear Mr Senior had zero breaches, incidents or contraventions during his time in prison.
6. Mr Senior's representative submitted the QCS Summons documents demonstrate the extremely negative impact incarceration has on the Applicant. In the QCS Offender Case File notes for 19 April 2024, it is noted how poorly Mr Senior coped while in prison, stating:

Prisoner was admitted into Brisbane Correctional Centre on 19/04/2024, for his first custodial episode with QCS. Prisoner was assessed to be coping poorly since entering custody and presents with high distress, in the context of his admission into the centre. Prisoner reported a previous suicide attempt approximately 5 years ago via overdose, due to social stressors. Prisoner stated 'part of me is happy to be alive' in response to his unsuccessful suicide attempt. Prisoner further cited current ideation approximately 3 days ago, and reported his plans were limited to initiating an allergic reaction from fire ant bites. Prisoner cited belief that if he sustained multiple fire ant bites, he may be able to enter a state of anaphylaxis, resulting in death. When asked why prisoner was yet to act on his plan, he stated he 'can't pinpoint what prevents me from actually doing it'. Prisoner attributed current ideation to the absence of support around him whilst in custody. > > Prisoner reported minimal confidence to cope in custody and stated, 'if I don't care enough, I'll just end it all'. Prisoner presented as highly anxious and nervous for his accommodation in the centre, stating he is 'desperate to get out of here'. Prisoner presents as globally hopeless and helpless, citing an inability to reach out for help and incapability of identifying short or long-term goals. Prisoner's recent suicide ideation and limited confidence to cope present as a risk for S/NSSI behaviour in custody and should be managed on observations.

7. Mr Senior's representative submitted that QCS also affirmed the conclusion made by both Forensic Psychologists, that Mr Senior has a low risk of re-offending. The Sentence Management - Decision Making Record dated 3 May 24 stated:

You have been assessed as having a Risk of Reoffending Prison Version (RoR- PV) score of 4 which indicates you fall into the category of prisoners who pose a low risk of further general offending. I note this score does not identify your risk of sexual re­offending. > > I note that you present with no criminal history prior to your current sentenced offences. Your response to community supervision cannot be assessed as you have not been subject to community-based supervision in Queensland. > > Furthermore, you are subject to a child protection order with reporting obligations.

8. Mr Senior's representative submitted despite Mr Senior's protestation of innocence of the charges, he has demonstrated remorse and insight into his offending. Mr Senior's representative submitted Dr Freeman also confirms Mr Senior had demonstrates insight into the inappropriateness of his behaviour in the circumstances, noting:

Importantly, he remains remorseful/regretful for his behaviour. Additionally, and while he maintains a stance of innocence in regard to sexual deviation, he candidly accepts that his behaviour with the complainants was inappropriate and he should have engaged in alternative behaviours. Thus, he has sufficient level of insight and recognises he failed to identify (and mitigate) high-risk situations.

9. Additionally, Mr Senior's representative submitted Mr Senior's statement also demonstrated his insight into his inappropriate behaviour around the children in his care, stating:

I maintain that I didn't sexually abuse the children. I acknowledge that there was one instance of me touching a child, as I have described above. > > However, I am very sorry for what I have put the children through, and the impact it has had on them and my family. > > I don't blame the children at all. That's one of the reasons I didn't go to trial. I didn't agree with what they were saying, but I didn't want to put the kids on the witness stand, have my lawyers berate them to get the truth out of them. > > I have learnt that the way I proceeded to act was not the right way. I have learnt that I need to set clear boundaries instead of doing the actions I took. I should have got someone else to do it. I should have not taken immediate action because I thought it might be urgent, or because I was stressed. I didn't realise that something that didn't seem like a big deal to me is in fact a big deal to others. At the time, it didn't seem like a big boundary. The kind of person I was thought it was okay to check a child's pants to see if they're wet, or to inspect a child's genitals when they've been heavily scratching themselves. I understand that the appropriate course of action was to just tell the child to go and check themselves separately, or to take them to a doctor and have them check. > > I am actively pursuing an autism diagnosis. My psychologist, Owen Pershouse, has said he is happy to take me on in immigration detention to get properly assessed for autism and to learn how to manage my condition. > > While in prison, I saw a psychologist for a one-on-on reoffending prevention program. This started about 2 or 3 months before I was released in December 2024. The purpose of the program was to work on behaviours and to put strategies in place to ensure that I don't reoffend if I am released to the community.

10. Mr Senior's representative submitted despite Mr Senior's protestation of innocence of the charges he has pro-actively sought out numerous strategies to ensure his risk mitigation plan for returning to the Australian community. In particular he will live with his parents, return to work in the family business, will not be alone with children ever, will abide by the obligations of his parole, will abide by the requirements of being on the child sex offender register and will continue to undertake psychological counselling.
11. Mr Senior's representative submitted Dr Freeman had assessed that Mr Senior had been able to appropriately articulate an effective relapse prevention plan that would mitigate any high-risk situations in the community in the future, noting in his report:

In summary, it is the writer's Structure Professional Judgement (STP14) that Mr. Senior presents as a primarily pro-social individual. In the absence of any explicit criminogenic ideation, his: (a) prognosis for the future can be considered relatively positive and (b) risk of recidivism can be considered in the low-category. In regard to managing such risk, Mr. Senior was able to articulate a Relapse Prevention Plan that effectively would mitigate high-risk situations. Importantly, this includes: > > Abiding by the conditions of a reportable sex offender (in Queensland); > > Ensuring he has no further unsupervised contact with children. In regard to this, he articulated a strong motivation to avoid future events of non-supervision. Apart from sporadic contact with his nieces/nephews, Mr. Senior could not identify situations/circumstances where he would be presented with regular contact opportunities; > > Receiving the assistance/advice of family members to help him navigate future foreseeable (or unforeseeable) risks; and > > Continuing to engage in psychological treatment with Mr. Pershouse to develop a better understanding into his possible social communication/interaction deficits to ensure he avoids future high-risk situations

12. Further, Mr Senior's representative submitted Dr Freeman had been an extremely helpful, open, frank and transparent witness before the Tribunal. Submitting Dr Freeman's evidence reinforced that despite the fact the nature of Mr Senior's crime is very serious, and he does not admit guilt, that Dr Freeman assessed him as having a very low risk of reoffending. Dr Freeman gave evidence that while it may appear to be an abhorrent or wrong position; it nevertheless is not a key factor in predicting the risk of reoffending in child sex offence cases.
13. Mr Senior's representative submitted Dr Freeman's evidence reinforce his written report, which directly addressed the issue that Mr Senior denied guilt, finding this did not impact the likelihood of him reoffending. Dr Freeman evidence identified the three key factors supported in the research that predict reoffending in child sex offences as sexual deviancy, psychopathy and criminal versatility. At the time of his initial report, Dr Freeman found that none of those key factors presented in Mr Senior and thus came to the conclusion that he was a low risk of reoffending.
14. Mr Senior's representative submitted the Tribunal needed to proceed with caution in respect of the additional material put to Dr Freeman during the hearing in respect of Mr Senior's 4 Google searches, identified in the Queensland Police documentation.
15. Mr Senior's representative submitted that whilst Mr Senior had confirmed these searches during the hearing they had nevertheless not formed part of the agreed Statement of Facts to which Mr Senior had plead guilty and he had not been convicted of accessing Child Exploitation Material. Mr Senior's representative accepted the searches were very distasteful and don't reflect well on Mr Senior but there was no evidence before the Tribunal Mr Senior had accessed Child Exploitation Material.
16. Mr Senior's representative submitted given that Dr Freeman didn't have the opportunity to probe Mr Senior's google search history, it would be unreasonable in all the facts of this case for the Tribunal to find there was substantive evidence of sexual deviancy relating to minors in this case beyond the existence of the convictions and the agreed Statement of Facts.
17. Mr Senior's representative contended that whilst accepting that the nature of the offending conduct is 'very serious' under Ministerial Direction No. 110, that nevertheless lower weight should be placed on this consideration, for the following reasons:
    • Mr Senior's sentences were at the lower end of what was available for his offending;
    • Mr Senior maintains his innocence of the criminal conduct through the Meissner Plea, and he nonetheless has demonstrated appropriate consideration of the impact of a contested criminal trial on the complainant children, and has demonstrated insight into his own behaviour that has led to this situation;
    • Mr Senior's conduct and behaviour in prison and immigration detention has been appropriate and compliant in the circumstances, while at the same time demonstrates the very strong negative impact prison and immigration detention have had on him (which act as significant deterrent factors for future negative or risky behaviour);
    • Mr Senior has been assessed as having a low risk of reoffending by 2 forensic and clinical psychologists, as well as the Queensland Corrective Services;
    • Mr Senior has made genuine efforts towards rehabilitative change and to address his mental health and Autism Spectrum Disorder (ASD);
    • Mr Senior has put in place a substantive risk-mitigation plan to ensure that he is able to avoid any high-risk situations on release into the Australian community;
    • Mr Senior has extremely strong family support within the community in Australia which provides excellent protective factors in the future.
18. Therefore, they contented the Tribunal on balance should find Primary Consideration 1 weighs in favour of not revoking the visa cancellation decision, but submitted it cannot be said to weigh heavily in that direction, and does not outweigh the factors that are in favour of revoking the visa cancellation

1. The Respondent's representative highlighted that the Direction holds that tolerance for future offending reduces with its seriousness, and therefore contended that very heavy weight against revocation should be placed on this primary consideration. As Mr Senior's offending was obviously very serious, the Australian community's tolerance of risk of future harm should be regarded as low.
2. The Respondent's representative contended given the very serious nature of the offending, it is likely that, if repeated, there is a risk of very serious harm, physically and psychologically, to members of the Australian community.
3. The Respondent's representative submitted; his Honour Judge Smith's sentencing remarks indicated the victim impact statements demonstrate the effect that Mr Senior's offending had on the 3 children. The Respondent's representative submitted in L's statement to police, when recalling the incident of abuse, L stated that he 'didn't like it' and 'felt scared, and worried'.
4. The Respondent's representative contended the evidence clearly indicated if Mr Senior were to repeat the offending on any child, there would be significant and devastating effects on the child's relationships with carers, friends, family, and future partners.
5. The Respondent's representative submitted that whilst Mr Senior has advised that he intends to continue with psychological counselling following his release from immigration detention there was no evidence he had undertaken any programs to address his offending particularly as he continues to maintain his innocence.
6. The Respondent's representative submitted Mr Senior has claimed that
   • He is not sexually attracted to children, however noted that he 'accepted that [he] lacked insight into [his] offending'.
   • Due to his undiagnosed ASD, it wasn't clear to him that his actions were inappropriate.
   • The incidents with the children were misunderstandings. For example, he and L had gone for a bushwalk, he noticed that L had been scratching his groin area and pulled down L's pants and underwear and touched Luca's penis to check if there were any ticks or rashes following the walk.
7. The Respondent's representative submitted the more difficult issue before the Tribunal was the question of the likelihood of Mr Senior reoffending, particularly in light of the fact he maintains he is innocent and took the Meissner Plea on that basis. The Respondent's representative submitted Mr Senior's evidence again attempted to explain how these allegations arose by way of a misunderstanding in relation to actions he took in relation to 2 out of the 3 children. The Respondent's representative submitted Mr Senior's evidence shows that he understands now he may have crossed boundaries, but that he thought he was acting in the children's best interests was not plausible.
8. The Respondent's representative noting the similarities in the children's evidence, the fact that they are unknown to each other, and the fact that their carers are unknown to each other, submitted Mr Senior's evidence regarding how 3 children came to make similar allegations falls far short of any sort of acceptable explanation and his evidence that there was some sort of collusion by carers, child services or police should be rejected. The Respondent's representative contended that the children's evidence does not refer to the incidents that Mr Senior describes nor is it consistent with the accepted Statement of Facts.
9. The Respondent contented Mr Senior has not held himself wholly accountable for his offences and this suggests a possibility of reoffending, intentionally, or as a result of overstepping boundaries in the future.
10. The Respondent's representative submitted Mr Senior had provided 2 psychologist pre-sentence reports, the first from Mr Peros who stated in his pre-sentence report dated 7 August 2023:

(a) At interview, Mr Senior displayed limited insight into the impact his wardrobe malfunctions and inappropriate questioning [of] a child about his sexual knowledge might have had on the child's emotional health. This is likely associated with ASD;

(b) Mr Senior displayed limited insight into his offending and denied that any of it was sexual. Inappropriate sexual questions and exposure of private parts to young boys in his care has occurred regrettably, and needs to be addressed now while there is a chance of rehabilitation; and

(c) Mr Senior was placed in the 'low risk category' with a score of -1 on the Sex Offender Risk Appraisal Guide. However, it is noted that a score of -1 is at the high end of the low-risk scale (-17 to 2). Mr Peros describes the Applicant as falling 'just outside' the medium risk score range of 3 to 19.

The second report from Dr Freeman's pre-sentence report dated 7 August 2023 states:

(a) Mr Senior appears to have Persistent Depressive Disorder. Consistent with Mr. Peros' assessment, the Applicant may have a comorbid ASD that has produced some subtle deficits in social communication and social interaction across multiple contexts. He generally presents as a relatively high functioning individual (e.g., independent living skills, provision of care for others, can maintain employment, budget, etc.), and thus, if impairments in social interaction are evident, they are most likely to manifest in a subtle way; and

(b) completed the Hare Psychopathy Check List (PCL-R) which is a popular measure of psychopathy, and research has indicated that it is a reasonably accurate predictor of sexual recidivism. Mr Senior's overall score did not classify as suffering from psychopathy. However, in relation to Factor 1 of the PCL-R scale, he continued to deny culpability for the offences and thus received a score of 2 out of 2.

1. The Respondent's representative submitted material from Queensland Corrective Services indicate that Mr Senior was seeing Ms Geddes (Forensic and Health Psychologist), who noted that Mr Senior had poor insight and defensiveness regarding the offences. Ms Geddes noted that:

(a) Mr Senior's description of the offending 'Completely contradicted official documents. Attempts to explore this perspective were met with defensiveness, and resistance.' and

(b) 'I facilitated discussion around the search words found on [h]is computer, and the degree to which these may suggest a sexual interest in children. Mr Senior denied same and provided an excuse for having used sexually harmful search words related to young boys.

1. The Respondent's representative submitted that whilst Ms Geddes suggests that Mr Senior could engage in treatment from a 'deniers-based perspective' she had also noted the search terms found when police made enquiries were 'commonly linked to CEM [Child Endangerment Material] searches.'
2. The Respondent's representative submitted the evidence that Mr Senior does not plan to be around children was a protective factor to prevent him from reoffending but was not a guarantee he won't be engaged in offending in the future. The Respondent's representative contended Dr Freeman's evidence had been that avoidance of children when unsupervised may be a protective factor in the case for similar types of offending that require actual access to children but could not be a protective factor for all types of offending, including accessing Child Endangerment Material. The Respondent's representative submitted they did not say Mr Senior had accessed such material in the past.
3. The Respondent's representative submitted Dr Freeman's evidence had relied on various assessments tools which were a blunt instrument that can't precisely assess whether or not a person will reoffend. Furthermore, Dr Freeman's assessment of Mr Senior's risk of reoffending was based on the presumption that 3 factors sexual deviancy, psychopathy and criminal versatility were not present and he had utilised this as a strong indication of a possible likelihood of Mr Senior's low risk of reoffending.
4. However, Dr Freeman's assessment was made on the basis of the material he had, but also acknowledged that that question of sexual deviancy was something that he may have to revisit in light of the additional information he had been presented with knowledge of Mr Senior's Google search history. The Respondent's representative submitted that this was not to say Dr Freeman would have necessarily found that Mr Senior displayed sexual deviancy but this new information was a red flag that required further investigation.
5. Therefore, the Respondent's representative contended on the basis of the evidence currently available, Mr Senior's offending is of a very serious nature, and he has not demonstrated a sufficient insight into his offending, or addressed his offending, such that the Tribunal should be satisfied that the risk of Mr Senior reoffending is an acceptable risk.
6. The Respondent's representative contended that the protection of the Australian community should weigh very strongly against the revocation of the cancellation decision.

1. The Tribunal found Mr Senior's offending blatantly serious, resulting in devastating impacts on vulnerable children who were entrusted into his care. The Tribunal considered Mr Senior's offending as very serious in accordance with the Direction 110 as it was a sexual crime against children and involved acts of family violence.
2. The Tribunal found Mr Senior's offending very serious particularly as his victims were vulnerable young children placed in his care to meet their safety and protection needs, as outlined in his approval letter from the Queensland Department of Children, Youth and Multicultural Affairs dated 7 July 2021, advising him:

As a carer you will be undertaking an important role in both meeting the daily care needs of children and young people placed with you and in partnering with the Department of Children, Youth Justice and Multicultural Affairs (Child Safety) and foster care services to meet the safety and protective needs of these children and young people.

The Tribunal placed no weight on Mr Senior's evidence he had entered a Meissner Plea, in respect of his convictions. Whilst the Tribunal does not dispute Mr Senior's evidence that he plead guilty to the charges but maintained his innocence, it does not mitigate the fact Mr Senior was convicted by the Court on the basis of the agreed Statement of Facts to which he plead guilty. The overwhelming authority clearly articulates the Tribunal cannot 'go behind' the conviction which has resulted in the cancellation of Mr Senior's visa. The Tribunal doing so, noting the full court's finding, would be an error of law. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (21 November 2019) the Honours Justices Mckerracher, Derrington and Colvin concluded:

In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked. > > The statement by the Tribunal in the present instance that it could not examine the facts upon which the conviction was based, must be understood in a context where the Tribunal was invited to make factual findings that were contrary to those made by the sentencing judge in passing the sentence that enlivened the statutory power to be exercised by the Tribunal on review. It did not mean that it could ignore those facts. It meant that the Tribunal could not scrutinise or go behind those findings when reaching a decision as to whether it was satisfied that there was 'another reason' to revoke the decision under s 501(3A) to cancel the appellant's visa. The Tribunal was correct in that view.

The full court has made clear the Tribunal is bound by the findings of the conviction and Mr Senior cannot advance a factual position that undermines the relevant convictions. This does not preclude Mr Senior from advancing arguments about his character or risk of recidivism nor does it preclude the Tribunal from making a determination of the same as clearly articulated by Honourable Justice Branson in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45]:

41 First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT). > > 42 Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT). > > 43 Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which: > > (a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and > > (b) limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469). > > As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing. > > 44 Fourthly, although a decision maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592). > > 45 Fifthly, the above limitations on the matters to which a decision maker under s 200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

The Tribunal was however concerned by Mr Senior's lack of insight into his offending and his inability to accept that he had in fact inappropriately dealt with vulnerable children. The Tribunal found Mr Senior's statement and his evidence to the Tribunal did not demonstrate he had gained insight into his inappropriate behaviour around the children in his care.

I maintain that I didn't sexually abuse the children. I acknowledge that there was one instance of me touching a child, as I have described above. > > However, I am very sorry for what I have put the children through, and the impact it has had on them and my family. > > I don't blame the children at all. That's one of the reasons I didn't go to trial. I didn't agree with what they were saying, but I didn't want to put the kids on the witness stand have my lawyers berate them to get the truth out of them. > > I have learnt that the way I proceeded to act was not the right way. I have learnt that I need to set clear boundaries instead of doing the actions I took. I should have got someone else to do it. I should have not taken immediate action because I thought it might be urgent, or because I was stressed. I didn't realise that something that didn't seem like a big deal to me is in fact a big deal to others. At the time, it didn't seem like a big boundary. The kind of person I was thought it was okay to check a child's pants to see if they're wet, or to inspect a child's genitals when they've been heavily scratching themselves. I understand that the appropriate course of action was to just tell the child to go and check themselves separately, or to take them to a doctor and have them check.

The Tribunal found Mr Senior's evidence at the hearing concurred with Ms Geddes assessment, that any attempt to match the victims' interviews with his account of events was meet with defensiveness:

Mr Senior denied the offending and was preoccupied with the belief he was convicted on the advice of his lawyer to plead guilty. He said the offence/s related to him putting his hand on the crutch of a young boy to demonstrate the child had 'wet' his pants. This completely contradicted official documents. Attempts to explore this perspective were met with defensiveness, and resistance.

The Tribunal found the evidence demonstrated Mr Senior's offending was very serious and weighed strongly against revocation of the determination. 8. The Tribunal does not dispute that Mr Senior has significant protective factors to assist with his risk of reoffending. This includes his obvious very close and supportive family, stable accommodation and employment if allowed to remain in Australia, the obligations of his 2-year probation period and the requirements of being placed on the sex offenders register. The evidence before the Tribunal clearly indicates that Mr Senior abided willingly with all these conditions and committed no additional offences when on bail awaiting trial for a period of 2 years. 9. The Tribunal also considered the evidence of Mr Peros, Dr Freeman and the sentencing remarks of His Honours indicated Mr Senior was a low risk or reoffending:

Now, there is an issue about your denials concerning sexual arousal by children. I clearly infer you were sexually attracted to them, despite submissions or contentions to the contrary. I do accept there is a lack of insight, but you do suffer from ASD, it seems, and no doubt that impacts on that. You are aroused by males, though, and you believe your offending is a result of being sexually abused as a child. > > You come from a good family, it seems. You have had dyslexia. You were teased at school. There were certainly traits of ASD. You have had a reasonable work history, and I am impressed, actually. You have done a lot of work with wildlife, looking after animals and so forth. You have worked as a bar man. You came out at 20 years of age. You have had trouble forming and maintaining relationships and friendships. There has been some dmg use, but that seems to have stopped. A number of tests were administered and I have had regard to those, and it is considered particularly in light of the counselling. There is a low risk of reoffending. There is a learning disability. There are some concerns about what is said in paragraph 110, concerning insight, but as I noted earlier, 124 puts in context that, as Mr Minnery has submitted. There is a history of depression, and your conditions impact on your mental state. > > Because of the low criminal history and the low - no historical risk factors, the low score on psychopathy, there is a low risk of reoffending. Mr Peros, probably going outside his area of expertise, supports a non-custodial penalty in this case. So Mr Minnery submits, as he has to, to keep you out of jail, that there are exceptional circumstances relying on the intensive treatment, the plea of guilty, the two years on bail, absence of previous convictions, the low risk of reoffending, and submits that I could keep you out jail today. > > He relies on the extensive supports you have in Court: your parents, the job at the cafe, your background, the dyslexia, the loss of job. Alternatively, he submits if I am not persuaded as to exceptional circumstances, then it should be as low as I can go, really, is, effectively, the submission. I had regard, of course, to the Crown's reply. Now, those cases relied on by the Prosecution have assisted me in reaching my decision. Of course, each case depends on its own facts, and it is for the sentencing Judge to do the best that he or she can on the given facts of the case. > > Ultimately, it is just too serious, this case, to accept exceptional circumstances apply. They were vulnerable, young children. There was a significant breach of trust. As I say, there were three victims. There was a degree of manipulation, and I would not be doing my duty, I do not think, not to impose a custodial sentence. I do intend to reduce it, though, in light of all of the matters placed before me.

10. The Tribunal was however not convicted that Mr Senior presented as a minimal risk of reoffending; the Tribunal found the evidence indicated that the risk facts identified by Ms Geddes were still a consideration that had not been adequately address by Mr Senior.

• Sexual interest in children inferred from offending. > > • ASD. > > • Limited social support and rewarding adult relationships > > • Defensiveness, poor insight, and difficulties with stress and coping.

11. Additionally, Dr Freeman's evidence to the Tribunal gave rise to a concern that Mr Senior maybe a risk of recidivism if allowed to remain in Australia:

F: So after going and doing the research, there's evidence to indicate that denial or different levels of minimisation are not directly related... are not the best predictors of recidivism. > > Whilst a layperson might think that denial is particularly abhorrent or inappropriate, there's much better predictors of sexual recidivism. > > And those three predictors are sexual deviancy where you have a paraphilic disorder. > > Two is psychopathy, which is really a broad brushed psychological condition of lots of different things. > > But it's callousness, it's impulsiveness. > > And the third factor which predicts sexual recidivism is criminal versatility, committing different sorts of crimes, property, person, drug based offences. > > So they're the three main predictors and that's the meta analysis which... scientists have conducted overseas. > > They found that denial or minimisation in regards to sexual offending is not a predictor of reoffending, compared to those three factors which I just mentioned. It does have on some level an effect, understandably. > > You want somebody to recognise the seriousness of their behaviour, show remorse, regret, culpability and empathy, which can obviously influence relapse prevention plans and somebody's ability to avoid high risk situations in the future. > > But in summary, somebody's level of acceptance of guilt is not highly correlated with risk of recidivism.

12. The Tribunal did not consider on the evidence Mr Senior had recognised the seriousness of his behaviour, show remorse, regret, culpability and empathy. This coupled with Dr Freeman's qualification of his assessment of Mr Senior's risk of reoffending in light of the information about his Google search led the Tribunal to have genuine concerns about Mr Senior's risk of reoffending:

M: So having heard everything you've heard today, looked at the information that you weren't aware of before, do you still say, Mr Senior, is a low risk of recidivism? > > F: Very difficult for me to give a conclusive answer to help you today, given that I don't know about the extent of these searches, these online searches. > > That's not something that he told me and that is certainly a red flag because searching for Child Exploitation material is indicative of some level of attraction to children sexually and I'm without that information. > > I thought on the balance of probability he could be considered in the lowest category. > > But now there's these outstanding questions about the length of time that he has engaged in that behaviour, whether it was a one-off whether he masturbated to the images, why he kept the, whether he kept images, etcetera, etcetera. > > I've got all these unknown questions and now which I would seek answers to and it's very, it's just, it's impossible for me to answer that question without knowing more about his Internet usage. > > M: But so if we circle back then to the notion that if Mr Senior is not around children unsupervised, then you'd say that therefore his ability to act out anything is mitigated against that, and everybody knows that. > > F: If he does not have unsupervised contact with children, if he achieves his stated goals as number two, and three, he does not have underlying sexual deviancy or sexual attraction to children, I think his prognosis for the future can be considered positive. > > So those first two things that I mentioned will remain. > > The third, which is just I'm just unsure of today is the extent of his sexual attraction to children.

13. The Tribunal accepted on the evidence Mr Senior had many pro-social factors available to him in the community which would assist him to not reoffend. The evidence before the Tribunal was of a loving and caring family, willing to assist him wherever possible, and had employment and housing. Additionally, the Tribunal accepted Mr Senior had engaged in rehabilitant programs including counselling to address his conviction for child sex offences - whilst still proclaiming his innocence; undertaken appropriate treatment for his complex mental health issues and would continue to engage with treatment if allowed to remain in Australia.
14. Whilst the Tribunal accepted Mr Senior has around him a very supportive family, work, housing and community these factors were present when he offended and did not prevent him from committing serious offences. Additionally, Mr Senior's continual defensiveness to the conviction, and his failure to develop insight into his offending was of significant concern. All these factors raise a prospect whilst he may be a low risk to the Australian community this did not give rise to a finding he was of no risk of reoffending in the future. Further the Direction clearly identifies that some conduct and harm are so serious that any risk they may be repeated was unacceptable. The Tribunal considered Mr Senior's offending would be considered to fall under this consideration.
15. The Tribunal considered the nature and seriousness of Mr Senior's offences, weighs heavily against revoking the mandatory cancellation of the visa. Mr Senior's offences are such that this factor must weigh against him.

Primary Consideration 2: Family violence committed by the non-citizen

1. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.

1. Mr Senior's representative accepted that Mr Senior's criminal offending involved sexual abuse of foster children in his care, within the definition of family violence under Ministerial Direction No 110.
2. However, Mr Senior's representative whilst accepting that the Tribunal Member was likely to find that this primary consideration weighs against revocation of the visa cancellation, submitted that it did not weigh heavily in that direction, and should not outweigh the factors that are in favour of revoking Mr Senior's visa cancellation

1. The Respondent's representative contended Mr Senior's offending involves family violence as defined by Direction 110.

'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful'. Examples include an assault, a sexual assault or other sexually abusive behaviour or unlawfully depriving the family member of his or her liberty. A member of a person's family, for the purposes of the definition of family violence, includes 'a person who has, or has had, an intimate personal relationship with the relevant person'.

2. The Respondent's representative submitted that the Family Violence, committed against vulnerable children in Mr Senior's care, was of a very serious nature and should weigh very heavily against revocation of the cancellation decision. In assessing the seriousness of Mr Senior's offending, the Respondent submitted that the Tribunal should find:

(a) the cumulative effect of Mr Senior's offending was very serious, involving 3 different children over a 4 month period, while in the position of a foster carer; and

(b) Mr Senior has not accepted responsibility or demonstrated an understanding of the impact of his behaviour on his victims.

1. The Tribunal finds Mr Senior has committed acts of family violence as defined in the direction.
2. The Tribunal finds Mr Senior's actions were committed against 3 vulnerable children who had been placed in his care. The Tribunal relied upon Mr Senior's evidence where he described he was providing emergency/respite care in a parental capacity to 3 very young boys, who had already experience significant trauma in their short lifetimes.
3. The Tribunal found the evidence demonstrated Mr Senior had caused untold harm, fear and lifelong damage to 3 children who had been placed in his protection representing a complete breach of trust. The Tribunal noted his Honour's sentencing remarks:

They were vulnerable, young children. There was a significant breach of trust. As I say, there were three victims. There was a degree of manipulation, and I would not be doing my duty, I do not think, not to impose a custodial sentence.

4. The Tribunal found the evidence demonstrated Mr Senior had a complete lack of insight into the harm he had inflicted on these 3 young boys. His protestation that he did not understand the boundaries needed around children, had not been provided with enough training to deal with the responsibility of being a parent and genuinely believed he was acting as any parent would, was self-serving and concerning. The Tribunal was troubled that any adult who did not appreciate they could not touch a small boy's penis was incomprehensible.
5. The Tribunal also considered Mr Senior's attempts to shift blame for his convictions as deeply concerning and demonstrated Mr Senior had not accepted responsibility for his family violence related conduct, understood the impact of his behaviour on his victims and that whilst he had engaged with counselling had not actually engaged with efforts to address the factors that contributed to his behaviour.

R: So, so my question is, do you want to comment on the point that I would like to make, which is that the interview responses of these three boys who don't know each other have certain similarities and are very different to your version of what in fact happened? > > S: What they have said in their transcript is what they've said in their transcript. > > S: I believe they have been schooled or educated or sort of coached and sort of some of these... the answers that would give them. > > R: And who do you think schooled them? > > S: I have a number of theories, but I can't prove it.

6. As the Tribunal has found Mr Senior committed acts of family violence as defined in the Direction, it follows it must find this Primary Consideration weighs heavily in favour of affirming the Reviewable Decision.

Primary Consideration 3: The strength, nature and duration of ties to Australia

1. There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen's immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)).
2. The Tribunal must also give consideration to a non-citizen's ties to the community more broadly, having regard to the length of residence in Australia, whether they arrived as a child and the strength, nature and duration of ties to any family or friends who are Australian citizens (8.2(a) & (b)).

1. Mr Senior's representative submitted that the strength and nature of Mr Senior's ties to the Australian community are such that this consideration weighs very strongly in favour of revoking the visa cancellation in this case. The evidence demonstrates Mr Senior:

(ix) entered Australia as a non-citizen with the right to reside indefinitely in Australia in 2004 at the age of 14 on 21 January 2004, including his formative years, and has lived in Australia permanently for a total period of 20 years from the ages of 14 to 35, equating to over 57% of his life so far; > > (x) was not convicted until 2024, a period of 20 years after his arrival; > > (xi) has been gainfully employed since leaving school at year 10, and has therefore contributed positively to the Australian economy for a significant amount of time; > > (xii) maintains extremely close, strong and durable ties with his family members, particularly his 10 immediate family members, and friends in Australia, all of whom are Australian citizens, and non-citizens with the right to reside in Australia permanently/indefinitely; and > > (xiii) If removed from Australia, his parents will also relocate to New Zealand to accompany him. This will have a seriously negative affect on both Mr and Mrs Senior, their daughter and grandchildren as well as other extended family. Additionally, his parents have serious medical conditions that make relocation to New Zealand, where they have not resided for over 20 years, and do not have a significant support network in, utterly untenable.

2. Mr Senior's representative submitted the following evidence supporting their contentions summarised above. They submitted Mr Senior:

• Is extremely close to his parents Diane and Murray Senior. As evidenced by each family member's personal statement and evidence before the Tribunal, and that Mr and Mrs Senior have been in constant contact with him throughout his period of incarceration and now immigration detention. While he was detained at the Brisbane Immigration Detention Centre, his family members visited him in person on a highly regular basis. With the move to Melbourne Immigration Detention Centre, this has put significant strain on his mental health.
  • Is particularly dependent on his parents for emotional support in relation to his significant mental health difficulties, which have been especially exacerbated by his time in prison and immigration detention, and the continuing uncertainty of his status in Australia.
  • Has highlighted the importance of in person contact with his family for the purpose of maintaining his mental health in his personal statement, stating:

My parents and my sister are the ones that I turn to whenever I have a problem. I rely on them emotionally and to help me when my depression and anxiety are bad. My mum and dad can tell when there's something wrong with me immediately, even without me telling them. When I'm in front of them, they can pick up when I'm not in the right headspace or if there's something bothering me that I have spoken up about. They will coax it out of me and talk me through it. During the times when I have attempted or considered suicide, my mum has talked me down.

• Mother confirmed in her statutory declaration the unusually close relationship between the family, and her son's high level of emotional support needs, as follows:

Shawn moved back in with us after he was accused and charged. We saw him every day. > > When he took the guilty plea arrangement, and lost his job, he went and worked in the family cafe with his dad. So, they worked and came home to the house together every night. We would always sit and discuss the day when I got home from my job. This was for about 2 years while the criminal processes progressed. I would also call into the shop on the way to work for a coffee in the mornings. > > Before this all happened, I would sometimes call in at Shawn's work on the way home for a coffee as I drove past it every day. We would also talk on the phone once or twice a day, every day, just to catch up and say hi. I would also see Shawn every weekend. This was because his father had back surgery (due to a work-related incident while he was working for Qld Health). He would come over to help with the acreage property maintenance, help maintain our Show Dogs and anything else we required around the house. > > Shawn was often around over the weekends just to catch up or attend family activities or functions. He would come with us to theme parks or just local parks with our grandchildren, (his nieces and nephew), also family dinners or card nights. He just loved being round his family. > > Shawn and I both had an interest in Brisbane history and its Paranormal Tours. We would often go on these night tours together for a bit of fun and quality time together. Just Mum and Son time. > > After his dad's back injury, things financially were tough. Shawn was always there for me both doing physical chores and financially taking the pressure off. He took over our power account and paid for our car to stop a repossession. These were exceedingly challenging times for me and his dad. Shawn was just always there for me. No questions asked. > > When his dad had recovered enough after his surgery Shawn paid for him and himself to go on a trip to America to help his dad mentally and physically recover from the ordeal. They had high quality, one on one time. Their bond through all this is unbreakable. > > We have always had a strong mother son relationship because Shawn had sickness issues when he was young. That bond has just got stronger and stronger as he has gotten older and grown into a great son and just a great person. I am so proud of him. > > Shawn never wants or expects anything in return. He just wants everyone to be happy and enjoy what they have. > > When Shawn was incarcerated, he called me at least once every day (unless the unit was locked down). I waited for these calls and missed them if they do not occur. His father and I visited him twice a week without fail, which was the maximum allowable for visitors. These visits and calls are what keep us positive and keep us going through the day-to-day stresses. We have email access to him and use this occasionally to send paperwork and photos. We also deposit funds into his prison account. > > Now that he is immigration detention, we are able to call him as much as we want, and to do video chats. This is a relief as we will be able to check in on him and monitor his mental health, and make sure that he is safe.

• The impact on his parents in this case is substantial and should be given significant weight in the balancing of the considerations in this case, as his parents will relocate to New Zealand in support of their son, should the decision be not to revoke the visa cancellation. Noting Mrs Senior's personal statement:

Shawn being incarcerated, and now being put in immigration detention, has had a traumatic effect on our whole family, but we have been holding on. To know Shawn would be removed from Australia would be another horrendous blow to us all. As his mother, how do I deal with this? I would need to go with him as there is no support for him in New Zealand. His father would therefore come as well. > > We would be leaving our other son and daughter here in Australia. We are their support and assistance unit and go-to help line (i.e., Emergency drop off or pick up of grandkids, sick or holiday care, dance drop off, babysitting). This would mean we would also be leaving our grandkids here. I have a remarkably close relationship with my youngest granddaughter. She will be devastated if we leave. > > We would be leaving our close family unit here. We have family get togethers regularly. Travel back and forth from Australia and New Zealand would be nearly impossible, financially, and as we get older, physically. The stress just contemplating this outcome is terrifying. > > Our family have settled here in Australia, and have strong ties to the community here. We will all become Australian citizens soon. I personally have a very strong ties to local dog clubs, including Dogs Queensland (Breeders Prefix Kyxen Elkhounds), and Beaudesert Kennel Club. Murray and I have worked for many years as part of the public health system. > > All our belongings would need to be disposed of as we could not afford to transport everything back to New Zealand. Our animals would all need to be rehomed or worse. This would be the end of our, and our daughter's and granddaughter's, dog show hobby and multiple club affiliations. What a heartbreaking situation this would be. I do not know how we would recover as a family. The guilt I would carry for this decision. The guilt Shawn would carry for me having to make that decision. The anger the rest of the family would feel due to my decision. The impact would be, without a word of a lie, absolutely devasting on all accounts.

• Both his parents have significant medical conditions, which make this relocation even more onerous. Most notable Mr Senior's father's severe spinal injuries sustained during the course of his employment at Princess Alexandra Hospital in 2018 and 2019, which have left him unable to continue working. Noting Mr Murray Senior's personal statement

I have several medical conditions, the most serious of which are clinical depression, diabetes and severe spinal injuries I sustained in the course of my employment as Operational Support at the Princess Alexandra Hospital between 2018 and 2019. I have listed all of my conditions below. > > Spinal injuries and chronic lower back pain: I sustained injuries between 2018 and 2019. I did multiple CT scans, MRls and x-rays of my spine which showed that I had severe damage to my spine in multiple areas. Because of my injuries, I have chronic pain in my lower back which radiates to my legs. I had back surgery in June 2019 to decompress the affected discs. Due to my injuries and surgery, I have a permanent disability and 14% permanent diminished capacity. > > Clinical depression: Both my wife and I have been diagnosed with clinical depression around August 2024 after seeking treatment from our psychologist, Owen Pershouse. I take an antidepressant (fluoxetine) to manage this condition. > > Diabetes (type 2): I take Metformin and Ozempic to manage this condition. > > Severe sleep apnoea (obstructive) > > High cholesterol: I take Crestor (rosuvastatin) to manage this condition. > > I also have the two following heath conditions but they are not serious: > > I was born with a horseshoe kidney, which is a congenital condition where I have one large kidney instead of two smaller kidneys; and > > Von Willebrand Disease: this is a bleeding disorder where the blood doesn't clot properly. I take aspirin as it is a blood thinner.

• M also outlined her numerous medical issues in her statutory declaration:

I have several medical conditions, the most serious of which are my clinical depression, PTSD, anxiety and panic attacks. > > I have listed my medical conditions below. > > Clinical depression: My husband Murray and I have both been diagnosed with clinical depression around August 2024 after seeking treatment from our psychologist, Owen Pershouse. I take an antidepressant (fluoxetine) to manage this condition. > > PTSD: My psychologist Owen Pershouse diagnosed me with PTSD around August 2024. > > Anxiety and panic attacks: I take Diazepam when needed to manage this condition. > > Asthma: I have an inhaler to manage this condition. > > Stroke: I had a stroke in November 2021. This was related to the stress I experienced while my husband was doing his own WorkCover claim for compensation. > > My mental health conditions are quite serious and are related to the bullying and harassment I faced in at my place of employment (Princess Alexandra Hospital). I was consistently pressured and harassed by co-workers and my stress levels were extremely high. I was having anxiety and panic attacks and I was hospitalised. I couldn't work due to these conditions, so I was put on medical leave. I have an ongoing worker' compensation claim with my employer. On the form it lists that I have a "functional neuro disorder". Since then, I have sought psychological treatment and been diagnosed with clinical depression, PTSD, and anxiety and panic attacks.

• His sister's evidence before the Tribunal also speaks of a significant bond between the siblings and the devastating impact it would have on her and her family if his visa was revoked.
• H close ties and positive integration into the Australian community are clearly demonstrated by the large number of letters of support provided by friends and family in Australia, all of whom are Australian citizens, permanent residents, or people with the right to reside in Australia permanently. All the letters demonstrate persuasive and cogent evidence as to his strong and durable ties with the Australian community, Australian citizens and permanent residents.
• Has also otherwise been a highly positive contributor to Australian society in general throughout his time here. Having been gainfully employed since leaving high school in grade 10, has been a taxpayer in Australia since he began working, and has an extensive history of wildlife work, including on an employed and voluntary basis

1. Mr Senior's representative contended the Tribunal should give considerable weight to this factor in favour of revocation.

1. The Respondent's representative accepted all Mr Senior's immediate family including his Mother, Father, sister, and brother all reside in Australia. Additional they accepted Mr Senior's Mother, Father, sister, four nieces and nephew are Australian citizens, and his brother holds a Subclass 444 visa with ongoing rights to remain in Australia.
2. The Respondent's representative submitted that these family members have established their lives in Australia having developed strong familial and community connections. As such the Tribunal was required to consider the impact that the non-revocation of Mr Senior's visa would have on his immediate family members.
3. The Respondent's representative submitted Mr Senior's parents have expressed an intention to accompany him to New Zealand if he is removed, emphasising he has no support there and suffers from mental health vulnerabilities. The Respondent's representative submitted Mr Senior's Mother's statement makes clear that her departure would be involuntary and based solely on her role as a primary support figure for her son.
4. The Respondent's representative accepts there was no dispute Mr Senior has ties to Australia, and in particular to his parents and sister, and a decision to not revoke the cancellation of Mr Senior's visa would have a significant impact on them.
5. The Respondent's representative submitted Mr Senior's evidence had been he did not have a close relationship with his brother nor had his brother provided any evidence to the Tribunal as such there would be no impact of this decision on Mr Senior's brother.
6. While The Respondent's representative accepted this consideration weighs in favour of the revocation, it submitted that these factors do not outweigh the other considerations that weigh very heavily against the revocation of the visa cancellation, including the Protection of the Australian Community, the Family Violence consideration and the Expectations of the Australian Community.

1. The Tribunal notes there was no dispute that Mr Senior had significant ties to Australia nor that he spent his formative years in Australia. Additionally, all his immediate family residing in Australia, and he has a significant past employment history and extensive volunteer engagement in the wildlife sector. What was in dispute was the weight and determinative factor to be placed on Primary Consideration 3.
2. The evidence before the Tribunal was of an extremely close family who all play a significant part in each other's lives, living with each other or in very close proximity. The Tribunal accepts Mr Senior is particularly dependent on his parents for emotional support in relation to his significant mental health difficulties. The Tribunal also accepts Mr Senior's parents play a significant role in their daughter's life and is of enormous support to her and her family.
3. The Tribunal accepts that if Mr Senior's was forced to return to New Zealand it would have a devastating impact on his immediate family members. The Tribunal also accepts in this case that his removal would also result in his parents' relocation, and this would also have a deleterious impact on their other children's and grandchildren's lives.
4. The Tribunal finds that this Primary Consideration weighs slightly in favour of revocation.

Best interests of minor children in Australia affected by the decision

1. The Tribunal must determine whether or not a decision not to revoke the visa cancellation is in the best interests of a child affected by the decision (8.4(1)). The interests of children should be considered individually, and a range of specific factors are identified as relevant (8.4(3)-(4)).

1. Mr Senior's representative contended that the Tribunal should attribute significant weight to this factor in favour of revocation, submitting that Mr Senior:
   • Has strong and ongoing relationships with several minor children in Australia whose best interests are affected by the visa cancellation decision, all of whom are Australian citizens: his young nieces by his sister; and his niece and nephew by his brother.
   • Has a close and loving relationship with his nieces and whilst he does not play any form of parental role in their lives, it is still clearly a negative outcome for the children to permanently be separated from a loving uncle.
2. Mr Senior's representative contended that of greater significance, in terms of the best interests of the children, is the fact that a decision not to revoke the visa cancellation will result in the above children's grandparents, Diane and Murray Senior also relocating to New Zealand. Mr Senior's representative submitted the grandparent - grandchild relationship is self-evidently a crucial one for children's development and emotional support and would be a significant loss to the affected children in this case. Mrs Senior's personal statement notes:

We would be leaving our other son and daughter here in Australia. We are their support and assistance unit and go-to help line (i.e., Emergency drop off or pick up of grandkids, sick or holiday care, dance drop off, babysitting). This would mean we would also be leaving our grandkids here. I have a remarkably close relationship with my youngest granddaughter. She will be devastated if we leave.

And Mr Murray Senior's personal statement provided further details about the impact on their grandchildren and their daughter, if they had to leave Australia:

Diane and I would definitely bear the brunt of the impact, but Aleisha, her husband and their children would also be impacted. We are the key support for them and they likely would not move to New Zealand. Aleisha would try to stay here as she feels like she needs to give her kids the best opportunity, but I know that she would seriously consider moving to New Zealand if Diane, Shawn and I leave Australia. As it is now, Aleisha relies on us grandparents to help her with raising her kids. We live 3 minutes away, so if there's any dramas with picking up the kids, or if they're sick, we will accommodate having them here instead of Aleisha and Michael having to take time off work. We're the on-call babysitters if they need a break, if they're having martials. We're their support, and our very close relationship with Aleisha and the grandchildren would suffer if we had to leave Australia.

1. Mr Senior's representative contended the Tribunal should give considerable weight to this factor in favour of revocation.

1. The Respondent's representative submitted Mr Senior does not have any minor children in Australia. However, they accepted he has a close relationship with his sister's daughters aged 8 years old and 4 years old who are both Australian citizens.
2. The Respondent's representative submitted Mr Senior's sister's evidence had been she doesn't have any concerns about him being around her children, however acknowledged that he will need to be supervised at all times if there are any children around him.
3. The Respondent's representative submitted Mr Senior has minimal contact with his brother's children and there is no evidence from their parents as to their best interests.
4. The Respondent's representative submitted Mr Senior does not play a parental role in the lives of his nieces and nephew, and it has been acknowledged that he will require supervision to be around them.
5. The Respondent's representative conceded that the cancellation of Mr Senior's visa would have an adverse impact on his nieces and their ability to maintain their relationship with him, however he would be able to maintain a supervised relationship with them by telephone and FaceTime as they have for the period of time he was in custody and in immigration detention.
6. The Respondent's representative submitted the broader impact and effects of the cancellation of Mr Senior's visa would be the decision of Mr Senior's parents' decision to relocate to New Zealand, and conceded this would obviously have an adverse impact on the minor children, as they would be losing not only their uncle but also their grandparents who they are very close to and reliant upon. And in that regard, the Respondent accepted that it would be in the best interests of the minor children, particularly Mr Senior's sister's children, that the visa cancellation be revoked.
7. However, the Respondent's representative submitted the weight to be given to this consideration viewed through that lens of Mr Senior offending should be minimal.

1. The Tribunal finds Mr Senior has a very close relationship with his young nieces and that his sisters want him to continue to play a significant part in their lives, albeit in a supervised capacity at all times.
2. The Tribunal did not consider Mr Senior had a relationship of any significance with his brother's children but nevertheless accept this determination would have some impact on them as they would be denied the ability to develop a bond with their uncle.
3. The Tribunal also accepted the minor children (most particularly Mr Senior's nieces by his sister) would be greatly impacted by the loss of their grandparents in their lives if Mr Senior's visa remained cancelled.
4. Therefore, the Tribunal finds it would be in the best interest of all Mr Senior's nieces and nephews if he could remain as a presence in their lives. However, the Tribunal does not consider this a determinative factor as Mr Senior does not fulfill a parental role in their lives.
5. Obviously as time proceeds each of those minor children will be negatively impacted without the added love and care of their uncle and more significantly their grandparents. The Tribunal also considers the evidence demonstrated the devastating impact the loss of Mr Senior and his parents from the family unit would cause, and the significant stress and harm to the children's parents which consequently will impact the minor children.
6. The Tribunal finds that this Primary Consideration weighs slightly in favour of revocation.

Primary Consideration 5: Expectations of the Australian community

1. This consideration expresses that where a non-citizen has breached the expectation that they obey the law, or engage in serious conduct in breach of the expectation, that they not be allowed to remain in Australia (8.5(1)). The Direction also provides that non-revocation may be appropriate due to the particular nature of character concerns that arise, including from acts of family violence, and commission of crimes against government representatives or officials, regardless of whether there is a measurable risk of physical harm to the Australian community (8.5(2)-(3)). The Tribunal is not to conduct an independent assessment of what might constitute community expectations in a particular case (8.5(4)).
2. The Direction highlights specific categories of identified offences: 8.5(2)(a) - acts of family violence; 8.5(2)(c) - commission of serious crimes against, inter alia, women and children, and serious crimes of a violent or sexual nature; 8.5(2)(d) - commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.

1. Mr Senior's representative accepted that the Tribunal would likely find that this Primary Consideration weighs against Mr Senior, but nevertheless submitted that this Primary Consideration should not be considered to be determinative of the overall case in this instance. That whilst it may weigh against Mr Senior, we submitted it should not weigh heavily against revocation in all the circumstances.
2. Mr Senior's representative submitted Section 5.2 of the Direction provides a list of the principles providing "the framework within which decision-makers should approach their task of deciding ... whether to revoke a mandatory cancellation". Noting the following 2 principles included in this framework:

"(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 will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years."

1. Mr Senior's representative submitted in light of these factors the Tribunal should consider that Mr Senior has lived in Australia since he was 14 years old, for a period of over 20 years representing over 57% of his lifetime.
2. Mr Senior's representative submitted, consistent with the principles set out above, the Australian community would afford a higher level of tolerance of criminal conduct in Mr Senior's case, and therefore Primary Consideration 5 should carry limited weight towards affirming the visa cancellation decision.

1. The Respondent's representative contended the Direction clearly outlines this is a deemed expectation of the Australian community and it is not for the Tribunal to determine for itself what the community's expectations are in a particular case. The question for the Tribunal is what weight to give these expectations.
2. The Respondent's representative contended that the Tribunal should give significant weight to this consideration in favour of a determination that there is not another reason for revoking the visa cancellation. The Respondent's representative submitted the Tribunal should take into account that Mr Senior has committed very serious offending, against a child and of a sexual nature.
3. The Respondent's representative contended this factor weighs heavily against revocation, noting the direction determined this was so regardless of whether Mr Senior posed a measurable risk of causing physical harm to the Australian community.

1. The Tribunal notes that this consideration is a normative statement of the expectation of the Australian community that non-citizens who are not law abiding should not expect to hold a visa. And that the direction clearly articulates that acts of family violence, serious violence against women and minor children are identified as raising the kinds of character concerns that enliven the consideration, regardless of whether there is a measurable future risk of harm.
2. When considering this factor, the Tribunal notes the matter of LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107 where the Member observed:

In considering the harm and potential risk to the Australian community if the Applicant were to reoffend in the future, the Tribunal is mindful of the nature and seriousness of his offending and the vulnerability of his victim. However, this is mitigated by his remorse, guilty plea, sincere efforts at rehabilitation and assessment as being at low risk of reoffending. > > When balancing the seriousness of the offence and the risk of reoffending, the Tribunal has decided that medium weight in favour of non-revocation is to be given to this Primary Consideration.

1. As Mortimer J said in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [127], the visa cancellation and refusal powers conferred by s 501 of the Act involves the evaluation of "competing and conflicting interests as between an individual who may be excluded from Australia and the interests of the Australian community". The relative weight to be ascribed to each consideration bearing on the exercise of the discretion is a question in respect of which reasonable minds may differ. The Direction generally requires the decision-maker to give relatively more weight to some considerations than to others so as to achieve like results in like cases, so far as that may be done without imposing impermissible fetters on the discretion conferred on the decision-maker. The expectations of the Australian community is one such consideration.

4. Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
5. I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.
6. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
7. The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12. The word "generally" contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
8. In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.

9. To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations: non-citizens will obey Australian laws when in Australia; it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere; in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
10. Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive." This limited expression of "community expectations" by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.
11. It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is "appropriate" in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
12. The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of "what would the community expect in this case?" It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
13. The Tribunal considered that a finding proportionate to the nature and circumstances of Mr Senior's offending which has resulted in serious harm to the community and lifelong trauma to vulnerable members of our community needed to be determined.
14. The Tribunal found given the very serious nature of the Mr Senior's convictions being indecent treatment of children as a guardian, that the Australian community would expect his visa to remain cancelled simply because of the nature of the offences. The Tribunal accepts that the Australian community would expect Mr Senior's visa to remain cancelled simply because of the nature of the offence.
15. Accordingly, the Tribunal finds this Primary Consideration weighs strongly in favour of affirming the Reviewable Decision. Whilst the Tribunal agrees with Mr Senior's representative that whilst this consideration is significant, it should not be determinative in every case but was not persuaded when informed of all the circumstances the Australian community would afford a higher level of tolerance of criminal conduct in Mr Senior's case.
16. The Tribunal having found Mr Senior's offending to be very serious and considers he presents a low but perceivable risk of reoffending determines a finding proportionate to the nature and circumstances of his offending is that this consideration weighs heavily against revocation.

1. In making a decision under ss 501(1), 501(2) or 501CA(4) of the Act, the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
   • Legal consequences of the decision;
   • Extent of impediments if removed; and
   • Impact on Australian business interests.

1. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable pursuant to s 198 of the Act, noting that s 197C(1) provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

1. Mr Senior's representative made no contention in respect of this consideration.

1. The Respondent's representative submitted Mr Senior made no submissions in relation to this consideration.
2. The Respondent's representative submitted as Mr Senior does not have a protection finding, if his visa remains cancelled, he would face a period of detention and removal from Australia. Further Mr Senior would not be able to meet the criteria for a visa that would enable him to return to Australia as a result of the Special Return Criteria in Schedule 5 of the Migration Regulations 1994 (Cth).
3. The Respondent's representative submitted these are the intended consequences of a visa cancellation and as Mr Senior has made no claims on consideration it should therefore be given neutral weight.

1. The Tribunal finds that there are no non-refoulement obligations that need to be observed in this situation. Neither Mr Senior nor the Respondent sought to pursue this argument noting that international non-refoulement obligations do not arise in this situation as Mr Senior was not being removed to a country where he faced the prospect of being subjected to cruel or unusual punishment.
2. The Tribunal finds the legal consequence of Mr Senior's visa cancellation would be his removal and inability to return to Australia, the Tribunal noting his Honour Judge Feutrill's recent decision in Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003:

Relevantly, the legal consequence of the Minister's decision is that the applicant will be removed from Australia and cannot satisfy the special return criteria in cl 5001 of Sch 5 of the Regulations. In substance, that means that the applicant is ineligible for most classes of visa that would otherwise relate to him. That is not a matter of speculation. It is not necessary to wait for an application for a visa to be made to know that he cannot be granted a visa in any of the applicable classes. Therefore, the practical reality in human terms that flows from the legal consequences of the Minister's decision is that the applicant will be removed from Australia and, thereafter, will be precluded from travelling to, entering and (or) remaining in Australia unless he is able to bring himself within the criteria of a visa class to which the special return criteria does not apply. In much the same way that a legal consequence may be characterised as 'indefinite detention', the legal consequence here may be characterised as removal and 'indefinite exclusion' from Australia. Moreover, in my view, not only is that a legal consequence it is manifestly a purpose of the applicable statutory framework and scheme that includes s 501(3). > > It is evident that a purpose of specifying that the special return criteria be satisfied for the various visa classes in Sch 2 is that persons who have had their visas cancelled under s 501(3) cannot satisfy the visa criteria and, therefore, cannot be granted visas in those classes and lawfully travel to, enter and (or) remain in Australia. It would plainly defeat a purpose of s 501(3) of the Act if persons who have had their visas cancelled on the grounds of national interest could, upon removal from Australia, immediately be granted a visa and return to Australia because all other criteria for the grant of that visa are satisfied. > > It follows that the applicant's indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa under s 501(3) of the Act. Accordingly, that was a consideration the Minister was bound to take into account.

3. Overall, based on the other considerations, the Tribunal finds that this other consideration weighs neutral in favour of revocation.

1. The Tribunal must consider the extent of impediments a non-citizen may face if removed to their country of origin, in 'establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country' (9.2(1)). Specific factors to take into account are their age, health, any 'substantial language or cultural barriers', and any social, medical or economic help available.

1. Mr Senior's representative submitted Mr Senior is a citizen of New Zealand who permanently migrated to Australia at the age of 14 with his extended family and contended he would struggle with finances and accommodation if forced to return to New Zealand as he would have no support or connections there. Mr Senior's representative referred the Tribunal to Mr Senior's personal statement:

If I don't get my visa back, I will be deported to New Zealand. > > I don't know what I'll do. I don't know exactly how the deportation process works - whether I get given accommodation or am just left to fend for myself. Will I go from the detention centre to Auckland Airport, and then what? I don't have a way to personally support myself financially over there or accommodation lined up. I don't understand how quickly this would happen. > > There is nothing over there for me in New Zealand anymore. All of my family and my life is here in Australia. I've had more of a life here than in New Zealand. I've worked and paid taxes here, and I tried to contribute to society by doing foster care.

2. Mr Senior's representative submitted Dr James Freeman, in his expert report, confirmed that Mr Senior would face a number of substantial hurdles if removed to New Zealand, specifically in relation to an exacerbation of his mental health particularly given he would be separated from extensive family support in Australia:

In regards to the cancellation of his visa, Mr. Senior presented as highly stressed about the possibility. More specifically and consistent with him not residing in the country since adolescence, he could not identify: (a) a place of residence e.g., "I'll live on the streets", (b) work opportunities or (c) familial support e.g., "I only have grandparents in a nursing home." Taken together, he will likely face a range of hurdles/hardships if he is required to relocate to New Zealand, which will also exacerbate his depressive symptomatology.

3. Mr Senior's representative submitted Mr Senior's parents have confirmed they would also be required to depart Australia to accompany their son should he be permanently removed to New Zealand. Mr Senior's representative referred the Tribunal to Mr Senior's father Mr Murray Senior's personal statement which outlined the devastating impact this would have on their entire extended family:

If Shawn doesn't get his visa back and is deported to New Zealand, Diane and I will go back with him. Diane will go back in the first instance, as I would need to wind down the business here and get things organised. I imagine that the deportation could happen very suddenly, so Diane will need to travel immediately to make sure Shawn has someone to support him immediately. We don't want there to be a gap between Shawn being deported and us arriving in New Zealand, due to Shawn's mental health and suicide history. > > While I remain in Australia, I would need to wind down and sell the business, break our long-term lease, rehome or euthanise our dogs and cats, and sell all of our belongings. It's pretty daunting. Financially, I don't know if we would have enough to set ourselves up without struggling. We have been relying on the business revenue and Diane's QSuper payments to get by. Diane's QSuper payments will only continue until October 2025. I know that I would never get a job in New Zealand due to my back surgery and my age, and this was the part of the reason why I set up [the family business] in the first place. I hope that I would be able to access some kind of disability support pension. Diane would have to find work as she is more physically able than me, but again, she is likely not employable due to her age and mental health issues. Shawn would need to find work, but I don't know how that would go with him having a criminal record. > > I don't know if we could set up a new business in New Zealand. I don't believe it would be financially viable to start the same kind of hospitality business in New Zealand. It would be very tough and not profitable for the amount of work we would have to put in to establish ourselves, so I wouldn't be happy to get back into a food business in New Zealand at my age. > > To be honest, Diane and I haven't tried to think about these details because it's terrifying to us. This future looks disastrous, and it could become our reality at the drop of a hat. Some days I feel like I'm not strong enough to deal with this. > > Diane and I would definitely bear the brunt of the impact, but Aleisha, her husband and their children would also be impacted. We are the key support for them and they likely would not move to New Zealand. Aleisha would try to stay here as she feels like she needs to give her kids the best opportunity, but I know that she would seriously consider moving to New Zealand if Diane, Shawn and I leave Australia. As it is now, Aleisha relies on us grandparents to help her with raising her kids. We live 3 minutes away, so if there's any dramas with picking up the kids, or if they're sick, we will accommodate having them here instead of Aleisha and Michael having to take time off work. We're the on-call babysitters if they need a break, if they're having maritals. We're their support, and our very close relationship with Aleisha and the grandchildren would suffer if we had to leave Australia. > > As I have described through my statement, our family is everything to us and our children. We are very much a close-knit family, and Shawn's deportation would truly rip our family apart, both physically and emotionally.

4. Mr Senior's representative submitted the evidence clearly demonstrated there were substantial social, medical and economic impediments to removing Mr Senior to New Zealand. Mr Senior's representative submitted the oral evidence before the Tribunal reinforced Mr Senior's very complex psychiatric and neurological medical conditions, their interaction with each other and his overall lower levels of resilience. Submitting Mr Senior's ability to adjust to life in New Zealand if his visa was not restored, particularly after his extremely difficult time adjusting to prison and detention, was going to be extremely difficult and would cause significant exacerbation of his already existing persistent depressive disorder. Mr Senior's representative contended that this other consideration weighs heavily in favour of revocation in this case.

1. The Respondent's representative accepts Mr Senior may face some difficulties in re-establishing himself in New Zealand, however this factor would only present as a short-term hardship and would not preclude resettlement.
2. The Respondent's representative submitted Mr Senior is 36-year-old male, with an extensive work history and there is no evidence to suggest that he will experience any cultural or language barriers upon return to New Zealand. As such they contented Mr Senior was likely to find employment given his range of skills. Furthermore, he had some family in New Zealand, including his maternal grandparents, an aunt and cousins.
3. The Respondent's representative accepts Mr Senior is currently diagnosed with anxiety, depression and autism spectrum disorder, however submitted he would be readily able to access psychological and counselling services of a good standard in New Zealand. Additionally, Mr Senior's parents have indicated they would accompany him in order to provide him with support.
4. The Respondent's representative submitted that this consideration does not weigh in favour of revocation.

1. The Tribunal concludes that Mr Senior would have no practical difficulties in re-assimilating if returned to New Zealand as his age could not be considered a factor, his living standards in New Zealand would be similar to Australia and he would not have any language or cultural barriers. However, the Tribunal did concur with Mr Senior's representative that he would face significant difficulty in finding employment and housing if forced to return particularly as he has lived the whole of his adult life in Australia and had little to no support network in New Zealand.
2. The Tribunal accepts that Mr Senior would be at a disadvantage finding work as he would be placed on the child sex offenders register in New Zealand.
3. The Tribunal also accepts that Mr Senior would face financial and emotional hardship if he were to have his visa revoked as the evidence was inconclusive on whether he would have access to support networks, ongoing psychological support for his complex mental health issues or the ability to deal with this stressful situation because of his ASD.
4. The Tribunal was impressed by the genuine love and affection shown by Mr Senior's family during the Tribunal process and accepted the evidence of Mr Senior's parents that they would uproot their entire lives to return to New Zealand to support their son if his visa remained cancelled. The Tribunal accepted that this would be on a permanent basis as Mrs Senior in particularly held genuine concerns for her son's ongoing safety if she was not around to closely monitor him so he did not fall into a suicidal state. The Tribunal based this on the evidence which demonstrated Mr Senior is suffering from complex psychiatric and neurological conditions and that he presents with very low levels of resilience.
5. The Tribunal also accepted the removal of Mr Senior, and his parents, would also cause significant issues to Mr Senior's sister and her family back in Australia.
6. The Tribunal found that Mr Senior would take a considerable time to adjust to life in New Zealand and this would greatly impact himself and his extended family.
7. Overall, given that the prospects for employment, housing and financial support, the Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.

Impact on Australian business interests (paragraph 9.3)

1. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.
2. Mr Senior's representative submitted the evidence clearly demonstrated that the family business would be negatively impacted if Mr Senior were removed to New Zealand. Mr Senior's representative referred the Tribunal to Mr Senior's father Mr Murray Senior's personal statement which described how the family business, an industrial cafe, was established, and how the family is reliant on the business to cover their living expenses:

I have been running the family business since 2021. It is an industrial cafe. We sell coffee, burgers, takeaway sandwiches and meals, and provide catering services. The business is keeping us going financially. After 2 and a half years of operation, we are starting to do okay financially. It was paying a wage for Shawn when he worked here. Now, I run my vehicle out of it, and it pays for all of our expenses. > > Aleisha and I started it off. When Shawn took the plea arrangement and lost his job he joined me and Aleisha found another job. We ran it together. Now it is Diane and I running it - Diane is able to help out as she is on sick leave from her job.

3. Mr Senior's representative submitted a copy of the company's ASIC company extract and ABN registration extract, which shows the business was established on 13 May 2022, with Mr Murray Senior as company director and secretary, and he and his 3 children are the shareholders.
4. Mr Senior's representative submitted Mr Murray Senior's statutory declaration which confirmed that the family business would need to shut down if Mr Senior was removed to New Zealand:

It is clear to me that if Shawn is deported, I will need to shut down the family business. There's just no other way to keep it going, as Shawn and I were the main workers in the business. > > If both Shawn and Diane are in New Zealand, then there's no way for me to continue running it. I will need to sell it or close it down. I also don't want to be separated from my wife just to continue operating a business.

5. Mr Senior's representative contended that this consideration weighs heavily in favour of revocation.
6. The Respondent's representative accepts Mr Senior father
   • owns and runs an industrial café
   • the business has been operating since 2021
   • Mr Senior has been working in the business since 2022
   • has indicated he would shut the business down to relocate to New Zealand with his son, if his visa was cancelled
   • business will be affected by Mr Senior's visa cancellation
7. However, the Respondent's representative contended that Mr Senior's father's business is not involved in the 'delivery of an important service in Australia' and that Mr Senior's visa cancellation will not 'significantly compromise the delivery of a major project', as required by paragraph 9.3 of Direction 110.
8. The Respondent's representative contended that to the extent that any weight is given to this consideration in favour of the revocation of the visa cancellation, the weight should be very limited.
9. The Tribunal accepts that Mr Senior has been instrumental in assisting his father run a successful business which has been providing an income to the Senior family. The Tribunal also accepts the business may have to close if Mr Senior's visa is cancelled and his parents relocate to New Zealand with him.
10. However, the closure of their family business will obviously comprise people's employment and services delivery to customers, but it will not significantly compromise the delivery of a major project or important service in Australia, as envisaged by this consideration in Direction 110. The Tribunal therefore does not consider that there will be any significant impact on Australian business interests if Mr Senior's visa remains cancelled or is restored.
11. The Tribunal finds that this Other Consideration is therefore not engaged.

1. Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; [2016] 241 FCR 461, 'the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501'.
2. As the Tribunal has found Mr Senior does not pass the character test, it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of his visa should be revoked.
3. Mr Senior's Representative whilst accepting that he does not pass the character test, contends that the Tribunal having heard all the evidence should set aside the decision under review and substitute a decision to revoke cancellation of his visa. In summarisation they contended:
   • Mr Senior accepts that Primary Consideration 1 (protection of the Australian community from criminal or other serious conduct) and Primary Consideration 2 (family violence) weigh on balance in favour of not revoking the cancellation, however it does not weigh heavily in this direction, and that it does not weigh greater than the other primary considerations or other considerations, given all the unusual circumstances of this case;
   • Primary Consideration 3 (the strength, nature and duration of ties to Australia) weighs very strongly in favour of revoking the cancellation, as Mr Senior maintains very strong family and social ties with Australian citizens and people who have the right to reside in Australia on a permanent basis, and has lived in Australia for over 20 years between the ages of 14 and 35;
   • Primary Consideration 4 (the best interests of the child) weighs, on balance, in favour of revoking the cancellation, as the best interests of several minor children would be affected by the non-revocation decision;
   • Mr Senior accepts that Primary Consideration 5 (expectations of the Australian community) may weigh on balance in favour of not revoking the cancellation, however we submit that it does not weigh heavily in this direction, and is outweighed by the strength of Primary Considerations 3, 4 and the other considerations;
   • The other consideration of the extent of impediments if removed to New Zealand weighs strongly in favour of revoking the visa cancellation, as there are substantial economic, social and medical barriers to his removal; and
   • The other consideration of the negative impact on Australian business interests weighs strongly in favour or revoking the visa cancellation.
4. Mr Senior's Representative contended that taken as a whole, the combination of Primary Considerations 3 and 4 and the other considerations weigh very strongly in favour of revoking the cancellation and on balance outweigh Primary Considerations 1, 2, and 5.
5. The Respondent's representative contended there was not "another reason" why the cancellation decision should be revoked, and that the Tribunal having heard all the evidence should affirm the determination. Particularly as the primary considerations of the protection of the Australian community and the expectations of the Australian community weigh heavily against Mr Senior. The Respondent's representative contented the Tribunal was required to affirm the determination as the direction clearly articulates these considerations outweigh the cumulative weight that should be given to the remaining primary considerations and other considerations.
6. Of the Primary Considerations the Tribunal found:
   • Whilst Mr Senior has been found to be a low risk of general reoffending, his offending was of such a nature that it must be considered serious. The Tribunal therefore considered that protection of the Australian community weighs heavily in favour of not exercising discretion to revoke the cancellation of his visa;
   • The evidence before the Tribunal demonstrated Mr Senior had been convicted of family violence and found that this consideration weighs in favour of not exercising discretion to revoke the cancellation of his visa;
   • The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh strongly in favour of discretion being exercised to revoke the cancellation of his visa. Mr Senior has lived in Australia for many years, his extended family all reside here, his nieces would be adversely impacted and his parents' decision to return with him would also place a considerable burden on them and the extended family; and
   • The Australian community would expect someone who had committed sexual offences against minors and family violence not to be granted a visa, and found this factor weighs in favour of not exercising discretion to revoke the cancellation of his visa
7. Of the other considerations, the Tribunal determined:
   • That the extent of impediments if removed, was engaged, and weighed in favour of discretion being exercised to revoke the cancellation of his visa, finding Mr Senior's health issues and lack of support networks in New Zealand were of considerable impediment to his return; and
   • The Tribunal considered all the other factors were neutral.
8. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of Mr Senior's visa should be revoked. That is because the three relevant primary considerations favouring non revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations. As a general principle, the Direction establishes that on this basis his visa should be cancelled.

I certify that the preceding 197(one hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of General Member A. E. Burke

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