The nature of Mr Z's offence is very serious for which he is being rightfully punished. He is remorseful. There is very limited to no evidence/material based on which the Minister would come to the conclusion that Mr Z will offend again or that he will be a risk to the Australian community. His removal from Australia will be devastating to his baby son, his parents and himself. I respectfully urge the Minister to favourably consider revoking his decision to cancel Mr Z's visa taking all the above into account pursuant to sect 501CA(4)(b)(ii) of the Migration Act at your earliest convenience".

1. On 2 September 2024, a delegate of the Minister proceeded to cancel the Applicant's visa under s.501CA of the Act. The delegate applied the relevant Ministerial Direction in force at the time of the decision, Direction 110.
2. With respect to the nature and seriousness of the Applicant's conduct, the delegate found the Applicant's offending to be very serious and that it had the potential to cause significant psychological and/or physical harm to members of the Australian community and this consideration was given significant weight against revocation.
3. With respect to risk to the Australian community the delegate found that the Applicant's conduct was very serious and using a young child to make child abuse material had the potential to cause significant psychological and physical harm to members of the Australian community. The delegate noted that "on balance, I consider there to be a low likelihood that Mr Z will reoffend. Nevertheless, I consider that should Mr Z engage in similar conduct again it may result in psychological and/or physical harm to members of the Australian community, including vulnerable children, and any degree of risk of such conduct is unacceptable. Accordingly, I have given this significant weight against revocation of the cancellation of Mr Z's visa".
4. With respect to family violence, the delegate noted the history of family violence between the Applicant and his ex-de-facto and found that it was serious family violence conduct and accordingly significant weight should be given against revocation of Mr Z's visa.
5. With respect to the strength, nature and duration of ties to Australia the delegate noted that the Applicant's parents were both permanent residents and that his son was an Australian citizen. The delegate also noted the time the Applicant had spent in Australia and determined that these considerations weighed somewhat in favour of revocation of the mandatory cancellation.
6. With respect to best interests of minor children the delegate made reference to the offending conduct which involved the Applicant's child. The delegate noted that the child had been removed by authorities in New South Wales and was in foster care. The delegate concluded that this consideration should be given some weight in favour of the decision to revoke the cancellation of the Applicant's visa.
7. With respect to the expectations of the Australian community the delegate determined that the Australian community's general expectations about noncitizens, as articulated in Direction 110 were applicable in the circumstances of this case and the delegate stated that significant weight against revocation of the cancellation of the Applicant's visa should be applied with respect to this consideration.
8. With respect to other considerations specified in Direction 110, the Applicant claimed in submissions to the Department that he would face the possibility of being detained again in China for a period of up to 5 years without trial for the offences he committed in Australia. The Applicant also referenced a report detailing the treatment of prisoners in the Chinese prison system. As to the basis of his belief that he would be detained by the Chinese authorities upon his return, the delegate noted that it was open to the Applicant to make an application for protection visa and for any prospective protection claims to be duly assessed. The delegate noted that if the Applicant did not lodge a protection visa that he would be removed under s.198 of the Act. The delegate also noted that if the Applicant made a protection visa application and was not granted a protection visa that he faced the prospect of an extended period of immigration detention. The delegate referenced the decision of the High Court of Australia relating to the lawfulness of indefinite detention which included a provision for the grant of the visa to affected persons who cannot be removed from Australia in the reasonably foreseeable future.
9. The delegate noted that the Applicant had no known health issues and was a young man. The delegate found that the Applicant did not have significant language barriers. The delegate noted that there was no evidence that had been provided with respect to the Applicant being able to renew his Chinese identity documents. The delegate noted that the Applicant owned a property in Australia which could generate an income to support the Applicant. The delegate noted that the Applicant would face emotional hardship as a result of the separation from his son and that having regard to these factors, determined that some weight should be given in favour of revocation.
10. The delegate concluded that "on balance, I find the factors that weighed against revocation of the cancellation decision outweigh the factors in favour of revocation".

APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS

1. The Applicant's representative's made submissions to the Department on behalf of the Applicant dated 30 June 2023 and 17 October 2023 with respect to revocation of the Applicant's visa having regard to the applicable Ministerial directive at the time, Ministerial Direction 99. A further submission was provided by Mr Bruce Bian of Sydney Law dated 26 January 2024.
2. The submission of 26 January 2024 notes that:

For the Minister not to revoke his decision to cancel my clients visa, the Minister must have a probative basis to make the assertion that there is in existence of the risk of Mr Zhao reoffending. The Minister must make enquiries or produce evidence which shows the likelihood of Mr Zhao re-offending and of resultant risk to the community. (Splendido) In Mr Zhao's favour, the sentencing judge stated Mr Zhao is unlikely to reoffend".

the nature of Mr Zhao's offence is very serious for which he has been rightfully punished. He is remorseful. There is very limited to no evidence/material based on which the Minister would come to the conclusion that Mr Zhao will offend again or that he will be a risk to the Australian community. His removal from Australia will be devastating to his baby son, his parents and himself."

1. The Applicant provided a submission to the Tribunal dated 20 November 2024.
2. In his submission, the Applicant claims that the evidence with respect to the risk of him reoffending is insufficient and is speculative and that there is not sufficient information or material which would give any basis to make a finding that the Applicant would reoffend or would be at risk to the community.
3. With respect to the offending the Applicant states that "on 8 July 2021 when my son [Redacted] was about one month old, the four photos showing me and my son were taken by Ms [Redacted]. The four photos were subsequently found to be Category Two child abuse material".
4. The Applicant stated that as a consequence he was charged with using a child under 14 years to make child abuse material and a further charge of possess child abuse material. With respect to these two charges the Applicant states that he pleaded guilty at the earliest opportunity and was accorded a 25% discount with respect to sentencing for his early plea that he made in the Local Court of New South Wales on 15 December 2022.
5. With respect to his sentencing by Judge Smith in the District Court of New South Wales, the Applicant notes that he was sentenced to a term of imprisonment of two years commencing 3 March 2023 and expiring on 2 March 2025 with a non-parole period of one year and three months. The Applicant stated that he initially lodged a severity appeal against the sentence in the District Court but due to financial constraints the appeal was withdrawn.
6. The Applicant claims that when he was in prison, he was a model prisoner and was released on parole on 2 June 2024 after serving his non-parole period of one year and three months.
7. The Applicant has asked the Tribunal in his statement to consider the circumstances in which the offending occurred. The Applicant stated that the offending occurred in a very short period being one to 2 minutes. This is confirmed by the date stamps on the four images in question. The Applicant stated that his child was fully clothed. The Applicant stated that the photographs were taken by his former partner and the mother of their child Ms Meng An and they were stored in her iPhone. The images were still images and not videos. The Applicant stated that his erect penis was only visible in two of the four images. The Applicant stated that the Crown was only to establish at his trial that his son, the victim of his offending made contact with his penis in one of the four images. The images were taken on 8 July 2021. They were not sent to the Applicant by his ex-partner until a later point in time, with respect to image one on 29 March 2022, and with respect to image three on 10 April 2022. The Applicant states that there is no evidence that he requested copies of the four images taken by his former partner and stored in her iPhone at any time.
8. The Applicant claims that the offending was unplanned and lacked sophistication. The Applicant states that there was no violence or threats of violence involved in the offending or with respect to his son, the victim being distressed or in pain from the incident. The Applicant stated that the images taken by his ex-partner were not intended for distribution beyond what he describes as "unsolicited distribution by the co-offender to me almost 8 months later". The Applicant states that the images were not taken for voyeuristic or sexual gratification purposes and the Applicant states that the weight of the evidence indicates that he has no sexual interest in minors. The Applicant claims that an explanation as to how the offending occurred is contained in paragraph 9 of the agreed facts produced by the Crown. The Applicant claims however that the Crown was not able to contradict the fact that the Applicant did not accept this explanation. The Applicant submits that the offending falls towards the lower end of objective seriousness for offences of this kind.
9. The Applicant stated that he had a solid upbringing in China and that his parents were hard-working. The Applicant gives a narrative with respect to his immigration history noting that he migrated to Sydney from China with his mother in February 2010 and completed his secondary schooling in Australia before he entered the workforce. The Applicant stated that he went on to live a life of good character until being involved in the commission of domestic violence offences against his ex-partner on 20 November 2020 and 1 March 2021 for which no convictions were recorded.
10. The Applicant notes that his mother described his former relationship with his ex-partner as being dysfunctional and tumultuous. The Applicant states that after his offending and his interaction with the criminal justice system that his father relocated to Sydney from China and the Applicant states that he has close and unwavering support from both of his parents in Australia and this is a relevant consideration with respect to prospects of his rehabilitation.
11. The Applicant notes that prior to being taken into custody he had obtained tertiary qualifications in conveyancing, had a solid work history and had been employed as a personal assistant to a director of a large mortgage provider before his incarceration. The Applicant described himself as an Australian taxpayer, a property owner, and claims that apart from the offending that led to his incarceration that he had led a responsible life in Australia.
12. The Applicant makes reference to the assessment conducted of him Dr Olav Nielssen on 13 February 2023 with a report with respect to this assessment made on 25 February 2023. The Applicant notes that Dr Nielssen found he and his ex-partner had not produced sexually explicit videos or images before and that the Applicant was only interested in pornography that depicted adult women of Asian heritage. Dr Nielssen, in his report noted that the Applicant did not have any sexual desire for his own biological child and that the Applicant accepted that he failed to live up to his parental responsibilities on the day of the incident.
13. The Applicant stated that he has had no contact with his infant son since his arrest on 10 April 2022 and that he is unlikely to have any contact with his infant son for the foreseeable future given that his son had been removed by child welfare authorities in New South Wales. The Applicant notes that Dr Nielssen, in his report, indicates the anxiety and great distress caused to him as a consequence of loss of contact with his son and with respect to being charged with the offending that led to his incarceration. The Applicant stated that Dr Nielssen concluded that there was no information before him to indicate that he has a disorder of abnormal sexual interest. The Applicant noted that apart from being assessed by Dr Nielssen he had also been receiving treatment from Ying Huang, a psychologist, since 10 June 2022, treatment that ended up being discontinued when he was incarcerated. The Applicant also notes that Dr Nielssen assessed him as having a low probability of further offending of a similar nature going forward and that the charges, conviction, and subsequent incarceration of the Applicant had acted as a very strong deterrent effect on the Applicant.
14. The Applicant claims that other factors relevant to reasons for revocation include the fact that he has no record of prior convictions, acceptance of responsibility for the offending, along with his education and work history and his strong familial support.
15. The Applicant claims the loss of contact with his infant son has acted as a very powerful deterrent with respect to ever reoffending in any capacity. The Applicant stated evidence of his remorse and insight into his offending is established in the report of Dr Nielssen and affidavits provided by his parents.
16. The Applicant makes reference to the sentencing remarks of his honour Judge Smith in the District Court of New South Wales who concluded that the Applicant was remorseful and was unlikely to reoffend. Judge Smith accepted that it was reasonably possible that the four images in question were produced at the request of his co-accused.
17. The Applicant notes that since he had been in detention, he dedicated himself to self -improvement by attending classes such as Bible studies. The Applicant claims to be a reformed individual who poses no threat to the Australian community. The Applicant further claims that he attended domestic violence courses whilst incarcerated.
18. The Applicant stated that he has been convicted of family violence namely an offence of common assault committed on 20 November 2020 and with respect to the contravention of an apprehended violence order. The Applicant describes this family violence offending as being an isolated incident and occurred within the context of a tumultuous relationship with his ex-partner. The Applicant reiterates that whilst he was incarcerated, he completed domestic violence sessions and was issued with a letter of attendance by Corrective Services New South Wales dated 29 March 2023.
19. The Applicant states that he has strong ties with Australia having lived in Australia since the age of 15 along with the fact that he has an Australian citizen son born on 11 June 2021 and that his parents are both Australian permanent residents.
20. The Applicant notes that after being released from his full-time custodial sentence in prison that he was transferred to the Villawood Detention Centre.
21. The Applicant claims that when he was in the centre an officer from the Department of Home Affairs spoke to him and advised him that the daily cost of his detention was expensive and would accumulate over time and that the Applicant would be liable for these costs in due course. The Applicant stated that the officer from Home Affairs hoped that the Applicant would agree to leave Australia and return to his home country, China, to reduce the burden upon Australia and that she assured the Applicant that his departure from Australia would not affect the outcome of the character cancellation decision whether he was onshore or offshore. The Applicant stated that as a consequence of this advice, he departed Australia to China on 24 August 2024. The Applicant stated that on 3 September 2024, he received a letter from the Department refusing to revoke his visa cancellation.
22. The Applicant stated that the best interests of his son were that the visa cancellation be revoked. The Applicant stated that he will do his level best to obtain custody and access of his child going forward. The Applicant claims that he believes there is a real possibility that he will be assessed by the relevant authorities in New South Wales as being suitable for restoration of parental responsibility. The Applicant stated that his parents have supported him with respect to obtaining insight around the negative impact of his conduct on his infant son. Once again, the Applicant stated that he was reliant on the report provided by Dr Nielssen and the sentencing comments of Judge Smith. The Applicant identified the many ways that he hopes that he will be able to be a father figure to his son throughout the balance of his son's childhood, his teenage years and into adult hood.
23. With respect to the expectations of the Australian community the Applicant accepts that his criminal offending would be viewed seriously by the Australian Government and the Australian community, however the Applicant claims that this is counterbalanced with respect to the insight that he has exhibited around his offending conduct, his contrition, and the reports of the unlikelihood of reoffending in the future.
24. The Applicant made reference to the fact that he has strong family ties in Australia namely his parents and his biological son, the Applicant stated that since he departed Australia to China that he has found it difficult to reintegrate into Chinese society given that he has not lived in that country since age 15, and that it had been challenging to find a job in China in order to support himself and that the current unemployment rate in China was high. The Applicant at the time of the statement indicated that with respect to his predicament in China that he had no residence, no assets, no family members to support him and no access to Medicare.
25. The Applicant provided a further submission to the Tribunal that is dated 9 January 2025. This statement has been duly considered. The statement appears to have been collated with the assistance of the Applicant's mother.
26. The Applicant states that the evidence with respect to his risk of reoffending is insufficient and nothing more than speculative. The Applicant stated that the sentencing judge in the District Court found that he was unlikely to reoffend. The Applicant posits that if the respondent is unable to prove that he will reoffend that it follows that he will not reoffend and will not pose a threat to Australian society.
27. In the submissions the Applicant states that he pled guilty to the offending behaviour that led to his imprisonment at the earliest opportunity and was accorded a full 25% discount for his early guilty plea. The Applicant stated that he was of good conduct during his period of imprisonment, and he was released on parole on 2 June 2024 after serving one year and three months in prison.
28. With respect to determining the objective seriousness of the offending the Applicant stated that the offending occurred over a short period of time being 1 to 2 minutes. The Applicant stated that his son was fully clothed at the time. The Applicant stated that the photographs were taken by his ex-partner and stored on her iPhone and that the images were still images not videos. The number of images taken were limited to four in total. The Applicant states that his erect penis was only visible in two of the four images. The Crown only established that the Applicant's son made contact with his penis in one of the four images, being image one. The Applicant states that there is no evidence that the images were sent to him on 8 July 2021 and indeed were forwarded to the Applicant via his social media application 'We-chat', image one on 29 March 2022, and image three on 10 April 2022. The Applicant stated that there is no evidence that he requested copies of any of the four images at any time. The Applicant claims that the facts are silent with respect to his erect penis and what led to his penis being exposed from the zipper/button area of his pyjama pants. The Applicant stated that the offending was unplanned and lacked sophistication. The Applicant stated that there was no violence or threats of violence used in the offending. The Applicant claims that his son was not distressed or in pain from the incident and that the images were not intended for distribution beyond what the Applicant describes as "unsolicited distribution by the co-offender to me almost 8 months later". The Applicant states that there were no financial benefits with respect to the images and no other people have seen the images and that the images were not taken for voyeuristic purposes or sexual gratification purposes. The Applicant stated that there is no evidence to support a finding that he has a sexual interest in minors. The Applicant submits that the offending falls towards the lower end of objective seriousness.
29. With respect to risk of harm to the Australian community the Applicant again notes that he was assessed by a psychiatrist Dr Olaf Nielssen on 13 February 2023 with a finding that he was only attracted to adult females and that there was no evidence that the Applicant and his co-offender had ever produced sexually explicit videos or images prior to the offending and that the Applicant's interest in pornography only extended to pornography depicting adult women of Asian heritage. The Applicant notes that he reported in his psychiatric session that he would not have any sexual desire for his own biological child and at the same time the Applicant noted that he failed to live up to his parental responsibilities to his child on the day of the incident. The Applicant stated that Dr Nielssen determined that there was no evidence before him to indicate that he had an abnormal sexual interest. The Applicant states that Dr Nielssen concluded that he had a 'low probability' of further offending of a similar nature and noted the impact of the charges and sentencing and term of imprisonment along with loss of contact with his son.
30. The Applicant states that he has solid support from his parents and noted that his father had relocated from China to Sydney. The Applicant notes that he has no record of prior convictions. The Applicant states that Judge Smith in his sentencing comments noted that he was remorseful and was unlikely to reoffend. The Applicant states that Judge Smith also accepted that it was reasonably probable that the images that were produced were done so at the request of the co-accused. Whilst not attempting to downplay the seriousness of the offending the Applicant states that the child abuse material offences were on the lower end of seriousness. The Applicant noted that with respect to 2 previous domestic violence offences no conviction was recorded with respect to those offences.
31. The Applicant states that the period of imprisonment that he served was not just to punish but also to give a criminal an opportunity to think about his crime, understand his wrongdoing and to improve his legal awareness, reform himself and become a good person.
32. The Applicant stated that during his period of incarceration he dedicated himself to self-improvement by attending a number of classes and attending Bible studies. The Applicant believes that the courses that he has attended have helped him to become a better person.
33. With respect to strength, nature and duration of ties to Australia the Applicant notes that he had been ordinarily resident in Australia from the age of 15 and had contributed positively to the Australian community through gainful employment. The Applicant notes that he had contributed to Australia through his employment the Applicant reiterated that he had strong support from his parents going forward. The Applicant stated that all of his family are in Australia namely his parents and his child. The Applicant stated that his ongoing removal from Australia will have an adverse impact on his parents as they are both Australian permanent residents and have both settled in Australia in their post-retirement.
34. The Applicant noted that his son was currently in the care of the state and that his parents have been given approved visits to his son on a regular basis. The Applicant states that he is the biological father of his son and that his son was in his care from the time of his birth on 11 June 2021 through to 10 April 2022. The Applicant acknowledged the existence of current orders restricting his contact with his son and notes that the existence of these orders does not mean that going forward he will not be able to play a positive parental role in the life of his child. The Applicant stated that he would be prepared to be assessed for the restoration of parental responsibility. The Applicant states that his absence from his son's early childhood will have a lasting impact on the well-being and development of his only child. The Applicant states that he had been approved to visit his son up to 6 times per year after 25 January 2025, when the final apprehended domestic violence order expires.
35. The Applicant stated that after he was released from prison that he went to the Villawood Detention Centre and that somebody from Home Affairs had talked to him about the cost that he would incur being kept in detention which ran at hundreds of dollars a day. The Applicant stated that he was assured by representatives and from immigration officials that if he was to leave Australia that it would not affect the result of the revocation of his visa cancellation. The Applicant stated that as a consequence of these assurances and due to the accumulating costs, that he would face from an extended period of detention, that he left Australia on 24 August 2024.
36. The Applicant acknowledged that the offence for which he had been convicted was serious. The Applicant stated that the four offending images would not have been produced at all if it was not at the behest of the co-offender his ex-partner. The Applicant stated that there is limited evidence and material on which the respondent would be able to conclude that the Applicant would not offend again or that he would be at risk to the Australian community going forward.

RESPONDENT'S STATEMENT OF FACTS, ISSUES AND CONTENTONS

1. The Tribunal received a statement of facts, issues and contentions (SFIC) dated 19 December 2024. The SFIC has been duly considered by the Tribunal.
2. The submission makes reference to the Applicant's immigration history in Australia noting that the Applicant first arrived in Australia at the age of 15. The submission also makes reference to the Applicant's offending history noting that on 3 April 2023, the Applicant was convicted of use child under 14 years to make child-abuse material for which he was sentenced to 2 years imprisonment.
3. The submission notes that on 2 June 2023 the Minister's Department notified the Applicant that his visa had been mandatorily cancelled under s 501(3A) of the Act. On 30 June 2023 the Applicant sought revocation and on 2 September 2024 a delegate of the Minister decided not to revoke the visa cancellation under s 501CA(4).
4. The submission notes that the issue for consideration by the Tribunal in the review is firstly whether the Applicant passes the character test and secondly whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act having regard to the consideration set out in Direction 110.
5. With respect to protection of the Australian community the submission makes reference to the nature and seriousness of the Applicant's conduct with respect to his offending noting that the Tribunal was confined to the consideration of one conviction in these proceedings and that is the conviction for use child under 14 years to make child-abuse material.
6. The submission makes reference to the Applicant's offending with respect to this conviction. The submission describes the Applicant's offending as "an appalling abuse of a sexual nature against his then four-week-old son". The submission notes that the Minister submits that the Applicant's offending involving sexual abusive behaviour against his infant son occurred in circumstances where the Applicant abused his position of trust and power as the child's father such that the Tribunal should also find that the offending comes within the parameters of family violence and should be viewed very seriously on that basis. The submission notes that the seriousness of the Applicant's offending is demonstrated by the fact that he was sentenced to 2 years imprisonment. The submission notes that "to the extent that the Applicant alleges that the photos were just for fun, and the prosecution could not prove why his penis was erect and exposed, the sentencing judge noted that the statements were plainly without merit. Further, the sentencing judge was satisfied beyond reasonable doubt that the Applicant's penis was erect and exposed, and that there was a sexual element to the images themselves".
7. With respect to the risk of harm to the Australian community the submission notes the Tribunal needed to consider the nature of the harm to individuals if the Applicant were to reoffend and the serious psychological harm which can be inflicted on victims of child sexual abuse and with respect to the potential proliferation of child-abuse material.
8. The submission notes that with respect to the likelihood of the Applicant reoffending the following factors should be considered. That the Applicant pleaded guilty to the offending and expressed remorse for his offending and that the sentencing judge accepted that the Applicant was remorseful and had failed to live up to his parental responsibilities. The submission notes however, that the Applicant has shown little insight or understanding of his offending maintaining the offending occurred only for "fun" and that his son was young and would not remember the offence committed. Further that the Applicant appeared to apportion most of the blame on his ex-partner rather than accepting his own culpability. The submission notes that the Tribunal should find "that the Applicant remains at a real risk of reoffending" and that any slight risk of reoffending is unacceptable. The submission concludes that with respect to this consideration the safety of the Australian community is the Australian governments highest priority and accordingly it should be given significant weight against revocation.
9. The submission states that the Applicant's offending came within the ambit of 'family violence' as it involved violent or threatening behaviour by a person who coerces or controls a member of the persons family and that it includes sexually abusive behaviour. The submission posits that this consideration should weigh heavily against revocation of the Applicant's visa.
10. With respect to the strength, nature and duration of ties to Australia the submission notes the following factors. The Applicant has been resident in Australia since he was 15 years old and has contributed to Australia through gainful employment and the payment of taxes. The submission notes that the Applicant's parents both reside in Australia and are Australian permanent residents and that the Applicant's son resides in Australia and is an Australian citizen. The submission notes that the Applicant's parents support him remaining in Australia. The submission concedes that with respect to this primary consideration it weighs in the Applicant's favour but the weight that should be attributed should be limited.
11. With respect to the best interests of minor children the submission notes that the Applicant's son is presently three years old and is an Australian citizen and that he resides in Australia under the care of the New South Wales Department of Communities and Justice and that there is an apprehended violence order in place that prevented the Applicant from having any contact with his son until January 2025. The submission notes that with respect to the nature of the offending along with the fact the Applicant has had limited contact with his son since his removal by the New South Wales authorities, that limited weight should be given to this factor in favour of revocation.
12. With respect to the expectations of the Australian community the submission notes that Direction 110 is premised on the fact that the Australian community expects that a non-citizen will obey Australian laws and not engage in serious conduct. The submission notes the Applicant's submission that the community would expect a person to be a given a second chance and a fair go. The submission notes however, that the Applicant did engage in serious conduct and did breach this community expectation. The submission notes that the nature and seriousness of the Applicants offending namely a sexual crime against a child and family violence should lead the Tribunal to find that this consideration weighs very heavily against the revocation of the Applicant's visa.
13. With respect to other considerations the submission notes that the Applicant is not a person to whom Australia owes protection obligations. The submission notes that the Applicant has asserted that he may be at risk of detention in China because of the crimes he has committed in Australia and states that this is risk is countered by the fact that the Applicant voluntarily returned to China and that as he is outside Australia, he does not engage Australia's protection obligations.
14. With respect to the extent of impediments if the Applicant is removed from Australia the submission notes that the Applicant speaks Mandarin, that he resided in China for the first 15 years of his life, that there is no evidence that the Applicant would be precluded from renewing his passport to enable him to access healthcare and welfare in China.
15. The submission acknowledges that the Applicant would face some emotional hardship as a consequence of being separated from his parents and his son and that with respect to the extent of impediments if removed that this consideration should be given weight in favour of revocation of the cancellation of his visa.

1. The Tribunal has had regard to a witness statement from the Applicant's mother, dated 24 March 2023. The Tribunal has considered this statement which indicates the following.
2. The statement indicates that the witness and the Applicant moved to Australia from China in 2010, and the Applicant completed the balance of his studies in Australia.
3. The witness stated that her son did well academically in primary school, however, his academic performance in secondary school was average. The witness stated that the Applicant is her only child.
4. The witness provided an assessment of the Applicant's relationship with his former partner and the mother of her grandchild. She described the relationship as not being harmonious and that there were constant quarrels over money. She stated that despite the disharmony that existed between the Applicant and his ex-partner they were both deeply committed to the care of their child.
5. The witness confirmed that the Applicant's son was now in the care of the state and that she had access to her grandson on a weekly basis.
6. With respect to her sons offending, she was aware of the serious nature of the offending relating to child abuse material because of depraved photos of the Applicant and his son. The witness stated that her son had expressed his sorrow and regret over the offending and always believed that the photographs were just a private joke between he and his ex-partner.
7. The witness stated that prior to his offending and incarceration her son had completed a conveyancing course at Macquarie University along with a Certificate IV in commercial cookery. She described her financial situation as being sound, and noted that her husband retired in 2022, and has relocated to Australia to reside with her.
8. The witness stated that her son who had been an atheist had engaged post offending with religious beliefs and prior to his departure to China had been visiting a local Buddhist temple on a regular basis. The witness stated that her son has advised her that in the event that he is able to parent his son in the future, that he will be well looked after and well-treated.
9. The Tribunal has had regard to a witness statement from the Applicant's father, dated 24 March 2023.
10. The witness stated that he was born in China and that he was educated to university level and had been successful in China. He advised that he was overjoyed to learn that the Applicant, his only son, had become a father to a son K in 2021. The witness described how his wife had contacted him to advise him of the Applicant's offending and how shocked he was by it. The witness arrived in Australia in October 2022 and spoke to the Applicant to ask him about his offending conduct. The witness stated that his son acknowledged that the offending was inappropriate and that he thought the photographs were harmless jokes between his son and his son's ex-partner. The witness stated that his son had repeatedly apologised for his offending and the witness advised that he had formed a view that his son had developed insight into the seriousness of his offending.
11. The witness stated that he and his wife are committed to the welfare of their grandson going forward and that they are financially able to give their grandson the best in life going forward.

1. The Tribunal conducted a review hearing on 6 and 7 May 2025. The Applicant attended the hearing via video conferencing facilities from Beijing. The Applicant and Tribunal was assisted by an accredited Mandarin interpreter. The Applicant's parents both gave evidence to the Tribunal from Beijing. The Applicant was unrepresented. The Minister was represented by Mr Matthew Burnham from Sparke Helmore who attended the Tribunal hearing.
2. At the outset of the hearing the Tribunal outlined the merits review process and referred to the issue in review. The Tribunal noted that the Applicant was unrepresented, however the Tribunal noted that two solicitors had provided submissions to the Department with respect to the cancellation and a request for revocation of the cancellation decision that had been duly considered. The Tribunal also noted that the Applicant and his parents had provided statements to the Tribunal which had been duly considered.
3. Mr Burnham questioned the Applicant and in doing so confirmed the Applicant's immigration history to Australia, his completion of high school studies in Australia, his post-high school study and work history. The Applicant confirmed that he commenced a relationship with the mother of his child K in 2021.
4. Mr Burnham made reference to the Applicant's offending of 8 July 2021, noting that the Applicant's son at the time of the offending was 27 days old having been born on 11 June 2021. Mr Burnham noted that the evidence indicated that on this day photographs were taken of the Applicant and his infant son in a series of various sexual positions and that the Applicant's penis was visible outside his pants. The Applicant refuted this and stated that his penis was outside in one of the photos. It was noted that four photos had been taken by the Applicant's ex-partner and the remaining photographs suggested that the baby's head or body was obstructing the Applicant's penis. The Applicant noted that the court had made a decision that he could not remember the specific details, he remembered the events happening, that he liked to sleep without clothes and that there was no sexual intention with respect to the photographs. The Applicant confirmed that he had clothing on in the photographs. The Applicant stated that on the afternoon in question he was taking care of K in the afternoon, and he had put his clothes on, and they were not on properly. Mr Burnham asked the Applicant whether this was why his erect penis was outside his pants. The Applicant stated that a previous court had made a decision with respect to this. Mr Burnham noted that the Applicant's evidence was that he had just woken up and his penis was outside his pants and the photos were taken by his ex-partner, the Applicant confirmed this. The Applicant again stated that a court had made a decision with respect to this.
5. Mr Burnham asked the Applicant what happened on the day in question in his own words. The Applicant stated that it had been a long time since the offending and that he could not remember. The Applicant stated that he could guarantee that there was no sexual intention involved. The Applicant stated this was evidenced in the psychiatrist's report. Mr Burnham noted that in one of the photos that the Applicant's child was holding his erect penis and asked the Applicant whether he agreed that this was child abuse. The Applicant stated that he agreed with this and that he had already received a penalty from the courts. Mr Burnham asked the Applicant whether he believed that somebody that engages in child abuse cannot be a good parent. The Applicant stated that the photograph indicated that his infant son touched his penis, and the Applicant could not recall how long this happened or why it happened. The Applicant stated that he believed that he was a good parent. The Applicant stated that he believed he had been a good father, that he bathed his son, fed him, and that he had made a mistake and received a penalty.
6. Mr Burnham again asked the Applicant whether he believed that somebody who abused a child could be a good parent. The Applicant stated that he had previously answered this question, that he did not abuse his child, that he made a mistake, and his child touched his private part and he had paid for his mistake.
7. Mr Burnham noted that the Applicant had lodged a severity appeal with respect to his prison sentence. Mr Burnham noted that the Applicant had not challenged the outcome of the conviction. The Applicant reiterated that he had made a mistake that his child did touch his penis, and that the child abuse offence was beyond what happened. The Applicant stated that with respect to the offending his representative advised him to plead guilty and then he could challenge the severity of what he had been convicted of. The Applicant described his offending as being a "mild situation" and not serious enough to have his visa cancelled.
8. The Applicant confirmed that four photographs had been taken and that they were not for commercial purposes. The Applicant stated that he did not save these photos on his phone and was not aware of the photos until they had been sent to him. The Applicant stated that the photos had not been stored in his digital devices. The Applicant stated that he made a mistake and that it was determined to be child abuse. The Applicant stated that he did not abuse his child and that there was no sexual intention involved and that the professional reports that he had submitted established that he would not make the same mistake again.
9. Mr Burnham asked the Applicant whether he believed he was guilty of the offence that he had been charged with. The Applicant conceded that he had made a mistake and that he was regretful, but that he did not abuse his child. Mr Burnham asked the Applicant how a person could make child abuse material if they did not abuse the child involved. The Applicant stated that he needed to reiterate that there were four photographs taken in around 1 to 2 minutes, that his child was fully clothed at the time, that the photos were taken by his ex-partner whom he described as the co-offender without his knowledge and shared on her device. The Applicant stated that they were photos not videos and in only two of the photos you could see his private parts. The Applicant noted that the prosecution determined that only one photo indicated that his child touched his private parts. The Applicant stated that in that photo you could not determine why his child touched his penis and for how long.
10. The Applicant stated that the photos were not forwarded to him by his ex-partner until 29 March 2022 on WeChat. The Applicant stated there was no evidence that he asked for those photos and no evidence had been adduced as to why the Applicant's private parts were exposed and why his pants unzipped. The Applicant stated that his pyjama pants were broken and that his pyjama pants were tendered to the police as an exhibit. The Applicant stated that there was no suggestion of violence or threats. The Applicant stated there was no evidence that his son suffered as a consequence of the incident. The Applicant reiterated that the photographs were given to him by his ex-partner nine months after they were taken without his knowledge. The Applicant stated that before that he was not aware of the existence of the photos. The Applicant stated there was no financial interest with respect to the photos or no interest by third parties. The Applicant stated that the photos were not taken for sexual gratification or satisfaction. The Applicant stated that the professional reports indicated that the Applicant had no sexual interest in a child. The Applicant stated that the District Court Judge and psychiatrist believed that his behaviour was mild with respect to similar offences.
11. The Applicant conceded that what he had engaged in with his infant son was harmful to his son and that he was regretful of his actions. When asked if he were to engage in this behaviour in the future whether it would be harmful to K the Applicant stated that he would not engage in this behaviour in the future. The Applicant stated that this was a 'what if' question and it would not happen again. The Applicant stated that he had made a mistake and been punished and that he was remorseful.
12. Discussion was had about the photographs that have been forwarded to the Applicant by his ex-partner containing emojis saying "play with big dick". The Applicant stated that these comments were made by the co-accused and that the photos sent to him by his former partner had not been reviewed by him. The Applicant stated that the photos were sent via WeChat and he had not clicked on the photos to open them.
13. Mr Burnham noted that the Applicant's former partner sent a follow-up message stating "want to play with Dad". Mr Burnham noted that the evidence indicated that the Applicant responded to this message saying "dad will be there soon" with two egg emojis. The Applicant stated that his son's nickname was 'egg-egg'. The Applicant confirmed that he sent this message and did not agree that the message was of a sexual nature. The Applicant stated that he did not believe that his ex-partner obtained sexual gratification from these messages.
14. Evidence was taken with respect to the offending and the Applicant's arrest on 9 April 2022. The Applicant gave evidence that he was interviewed by the police and was asked by Mr Burnham whether he remembered advising police that K had sucked his penis. The Applicant stated that he did not remember the interview and that he was interviewed without an interpreter. The Applicant stated that he did not understand the word 'penis'. The Applicant stated that his English was limited. The Applicant stated that prior to the photographs being taken on 8 July 2021 that he had not engaged in this type of conduct previously.
15. Mr Burnham noted that the Department of Community and Justice had removed K on 11 April 2022 because of their belief that K was as an immediate risk of physical and sexual harm. The Applicant stated that was the opinion of the Department and that this risk had been addressed in the psychiatrist's report and in the sentencing comments of the District Court judge. The Applicant confirmed that his son was still in foster care and that he had no contact with his son since he was removed from his care.
16. Reference was made to the Applicant's sentence of two years with a non-parole period of 15 months. The Applicant confirmed that he was released on parole on 2 June 2024 and transferred on that day to the Villawood Detention Centre. The Applicant advised that he requested removal from Australia on 13 June 2024 and that he took his then representatives advice with respect to being asked to be removed from Australia because he did not want to be a burden on the Australian government. Mr Burnham noted that the Applicant was removed on 24 August 2024 and had been residing in China for nine months. The Applicant advised that he was living in Beijing and that he was living with friends. He confirmed that his parents were currently visiting. He confirmed that his parents had provided him with financial support and that he had found work in the construction industry in China. The Applicant described his job as providing administrative support to a construction company.
17. The Applicant gave evidence about interaction that his parents had with K since he had been taken into foster care.
18. Mr Burnham noted that the Applicant had advised that whilst he was incarcerated that there was no opportunity for him to engage in sex-offenders course. The Applicant stated that he applied for a place in the sex-offenders course, but none was provided. The Applicant advised that since he had returned to China, he had not engaged in a course but had been looking for information online with respect to a course. The Applicant stated that there were significant Internet restrictions in China. The Applicant added that since his offending he had converted to Christianity and had a belief in God. The Applicant stated that he had engaged in Bible studies whilst incarcerated and had a number of certificates with respect to that study.
19. The Applicant stated that he believed that the judges sentencing comments, the psychiatrist's report, and the fact that he had engaged in Bible studies were indicative of the fact that he was at a low risk of reoffending.
20. The Applicant's parents gave evidence to the Tribunal with respect to their statements that were provided on 24 March 2023. The Tribunal found the Applicant's parents to be credible witnesses and to be concerned about the ongoing welfare of their son and their ongoing interaction with their grandchild K.
21. Mr Burnham made closing submissions. Mr Burnham advised that the Minister was reliant on the SFIC provided to the Tribunal.
22. Mr Burnham made reference to jurisprudence referenced in the SFIC which indicated that the Applicant's domestic violence offending, for which no conviction was recorded, was not able to be considered by the Tribunal. Mr Burnham noted that the only offending was able to be considered by the Tribunal was the Applicant's child abuse offending.
23. Mr Burnham noted that sexual crimes against children can be considered to be 'very serious', by reference to various paragraphs of Direction 110. Mr Burnham noted however, that it was invariably up to the Tribunal with respect to its assessment of the evidence and its findings with respect to the seriousness apportioned to the Applicant's offending. Mr Burnham stated that the Minister's position is that the Applicant's offending was 'very serious'.
24. Mr Burnham with respect to the hearing conducted on 6 May 2025 submitted that in the Minister's view the Applicant was not an impressive witness. Despite the Applicant's insistence in the written materials that he understood the seriousness of his actions he failed at hearing to display even the most rudimentary understanding of his conduct. Mr Burnham noted that the Applicant initially agreed that the conduct was child abuse but then walked away from that concession and stated that what he did to his own son was not 'child abuse'. Mr Burnham noted that the District Court ultimately convicted the Applicant of making child abuse material.
25. Mr Burnham submitted that the Applicant's evidence with respect to his offending behaviour was both evasive and minimising. For example, evidence with respect to the Applicant's penis being visible outside his pants in the photographs in question which was both vague and evasive. Mr Burnham refers to the Applicant's shifting answers, firstly that his penis was not visible in two of the photos and secondly that he did not remember the details because the offence occurred a long time ago. The Applicant then went into 'extraordinary detail uninterrupted during the course of the hearing highlighting at least 17 reasons why the offending was not serious'. The evidence indicated that the Applicant had not engaged in sex-offenders course to date. Mr Burnham submitted that the tenor of the Applicant's evidence was such that it was self-serving, and that the Tribunal should approach the Applicant's evidence about his risk of reoffending with caution.
26. With respect to Direction 110, protection of the Australian community, Mr Burnham noted that he had already touched on the nature and seriousness of the Applicant's conduct and once again noted that the Applicant in his written and oral evidence to the Tribunal had gone to significant lengths to explain that what he did to his son was not that serious. Mr Burnham stated that this assertion should be utterly rejected as the evidence indicated that the Applicant had engaged in sexual abuse of his son, which also came within the ambit of family violence because it involved coercion and was particularly egregious, because the Applicant's son was less than a month old at the time of the offending.
27. Mr Burnham stated that there was clearly a sexual component to the offending and that the messaging engaged in by the Applicant and his former partner was corroborative of this. Mr Burnham again submitted that the use of the Applicants one month old son to make child abuse material came within the ambit of very serious offending.
28. Mr Burnham stated that risk of harm requires contemplation of the Applicant engaging in further production of child abuse material in the future and by extension child abuse. Mr Burnham stated that the nature of that conduct is such that any risk of reoffending is unacceptable. Mr Burnham noted that the Applicant and his parents in their sworn testimony to the Tribunal at hearing insisted that there was no risk of reoffending in the future. Mr Burnham stated that the Tribunal should approach that evidence with caution. Mr Burnham noted that the evidence before the Tribunal provided by the Applicant repeatedly over the course of the hearing and in written submissions was that the psychiatrist who had provided a report and indeed the District Court had found that he was not at risk of reoffending. Mr Burnham stated that both the psychiatrist report and the District Court Judge found that there was a low risk of reoffending.
29. Mr Burnham submitted that with respect to a demonstrated lack of insight by the Applicant that there remains an appreciable risk of the Applicant reoffending and that any risk is unacceptable. Mr Burnham submitted that protection of the Australian community weighs heavily against revocation of the cancellation of the Applicant's visa. Reference was made to paragraph 7 (2) of Direction 110 which states that protection of the Australian community should be given greater weight than other considerations and that there was no reason to depart from that in the present matter.
30. With respect to family violence Mr Burnham stated that the Minister was reliant on the SFIC and submissions that have been made with reference to the Applicant's lack of insight with respect to his offending conduct.
31. With respect to the strength, nature and ties to Australia Mr Burnham noted that the Minister was reliant on the SFIC. He noted that the Applicant and his parents were all presently in China. The evidence indicated that the Applicant's parents wished to return to Australia following the hearing and should be treated as resident in Australia for the purposes of the review.
32. With respect to best interests of minor children Mr Burnham described this consideration is a difficult one. Mr Burnham noted that the fact that overshadows this consideration is that much of the Applicants and indeed his parent's submissions rest on the Applicant wanting to return to Australia and resume the relationship with K and that it would be in K's best interest for him to do so. Mr Burnham noted that Kay had been subject to child abuse by the Applicant. Because of that abuse the Applicant had no relationship with K since April 2022 a period now in excess of three years. Mr Burnham stated that there was a very real question around the positive role that the Applicant could play in K's life where he remains a risk of reoffending. Mr Burnham noted that the Department of communities and justice had removed K from the Applicant's care because they were of the view that Kay was at risk of sexual, physical and psychological harm if K return to his parents' care. Mr Burnham noted that the evidence before the Tribunal now indicated that Kay was in a permanent foster arrangement with his foster family and that the role that the Applicant would be able to play in his son's future life would be impeded by that arrangement. Mr Burnham submitted that accordingly any weight given to revocation with respect to this consideration should be very limited.
33. With respect to expectations of the Australian community Mr Burnham submitted that this consideration had an important role to play in this matter. Given the fact that the Applicant had engaged in sexual offending against his own son which also came within the ambit of an incident of family violence that the Australian community would expect that the Applicant's visa would be revoked and he not be allowed to return to Australia. Mr Burnham submitted that that would be the case even if the Tribunal found that the Applicant had no risk of reoffending. Mr Burnham noted that the inherent nature of certain criminal conduct such as family violence is so serious that even strong countervailing considerations can be insufficient to justify not cancelling the visa. Mr Burnham stated that this was a case where a non-citizen did pose a risk to the Australian community.
34. With respect to the legal consequences of the decision Mr Burnham stated that the Minister was reliant on the SFIC. In terms of the extent of any impediments that the Applicant would face, Mr Burnham noted that the Applicant is well-established in China, that he has obtained employment and continues to derive support from his parents. Mr Burnham suggested that any weight to be attributed to this should be inconsequential.
35. Mr Burnham submitted that the correct and preferable decision in the review was for the Tribunal to affirm the decision not to revoke the cancellation of the Applicant's visa.
36. The Applicant made closing submissions. At the outset the Applicant stated that he would like to admit the mistake that he made that caused harm to his child. The Applicant stated that he was remorseful and that he had received a penalty for his offending.
37. The Applicant stated that his matter was complicated. The Applicant stated that normally people who make child abuse material do so for their own gratification, but this was not the case with him. The Applicant stated that the photos were made by his co-offender, his ex-partner. They were sent to the Applicant eight months later and the Applicant stated that had she not sent the images to him he would not be aware of them. The Applicant submitted that based on this, that objectively speaking, the seriousness of his matter was limited. The Applicant noted that the District Court judge and the psychiatrist agreed that he had been remorseful and that he had a low risk of reoffending. The Applicant stated that he had no sexual interest in children. The Applicant stated that he was devastated by the outcome of his offending and that he had lost a connection with his son. The Applicant stated that he believed that he posed no risk to the Australian community. The Applicant stated that the psychiatrist believe that he posed a low risk to the Australian community but not no risk.
38. The Applicant stated again that he is very regretful with respect to his offending. The Applicant stated that he has tried to correct his behaviour. The Applicant stated that he believed in God and that in the future he would not engage in the same behaviours again. The Applicant stated that despite the fact that he had been charged and convicted of child abuse, that his abuse was 'mild' compared to other serious child offences to warrant visa cancellation.
39. With respect to reasons to revoke the cancellation of his visa the Applicant stated that he had no criminal record prior to the child abuse offence. The Applicant submitted that the Tribunal should consider the Applicant's age, the fact that he pled guilty at the first available opportunity and that he had good family support from his parents. The Applicant had a good work history. The Applicant stated that he wished to take apart in his child's life. The Applicant referred to the psychiatrist's report with respect to a low risk of reoffending in the future. The Applicant stated that he realises the seriousness of his conduct and will not repeat it in the future. The Applicant stated that he has lost a lot with his son being fostered and the loss of his visa. The Applicant stated that he looked after his son to the best of his ability, and this included bathing him, cutting his hair and reading literature with respect to how to care for babies. The Applicant stated that since his son was born that he had formed a bond with his son and that they laughed a lot together. The Applicant stated that he had engaged in Bible studies to address his past behaviour. The Applicant stated that he wanted to return to Australia and to contribute to the Australian community. Once again, the Applicant made reference to the psychiatrist and Judges comments that he was a low risk of reoffending.
40. The Applicant stated that he had strong ties in Australia. He had previous stable employment, that he paid taxation, that he owned a property in Burwood, and that his parents resided in Australia and provided support to him. The Applicant stated that before the offending he had lived a positive life in Australia. The Applicant stated that he was glad to find out from the Department of Communities and Justice that his son attended church and that he hoped his son found inner peace through God. The Applicant stated that his case manager from the Department of Communities and Justice, Ms Richardson had asked the Applicant about his prospective return to Australia so that she could organise some contact with K. The Applicant stated that for Chinese people family was a paramount consideration. The Applicant stated that at the moment there was no evidence of risk of reoffending or risk of harm to the Australian community. The Applicant stated that his actions had caused problems for his son and his parents. The Applicant stated that he hoped the Member could consider revoking the cancellation of his visa. The hearing concluded.

1. With respect to the Applicant's offending the Tribunal has made extensive reference to the Applicant's criminal history in Australia.

1. The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more. The Applicant in these circumstances does not pass the character test.
2. To revoke the mandatory cancellation of the Applicant's visa under s 501CA(4)(b) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 110, to revoke the cancellation.
3. Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.

PRIMARY CONSIDERATION 1: Protection of the Australian community from criminal or other serious conduct

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant was convicted of using a child under 14 years for the production of child abuse material and possess child abuse material. As has been described in detail in this decision record the offending involved the Applicant being photographed with an erection protruding from his pants and with his one-month-old baby son being positioned in close proximity to his for the photographs. In at least one of these photographs the infant is holding the penis. Further, the Applicant possessing these images on his mobile phone. The Tribunal finds on the basis of the evidence before it that the Applicant has been convicted of a very serious crime, namely a crime of a sexual nature against a child and that crimes of this nature regardless of the sentence imposed are viewed very seriously by the Australian community. The Tribunal gives significant weight to the nature of and seriousness of the offending with respect to the cancellation of the Applicant's visa.
4. The sentencing judge at G7 page 9 states that "to the extent that the offender said or submitted that there was no sexual component or similar to the offence, I reject it. I am satisfied beyond reasonable doubt on the basis of the facts, including the photographs and, in particular, the location and placement of the child in them, that his penis was erect and exposed to the point that there was a sexual element to that which occurred. In context, the objective seriousness of the offence is below the mid-range but not at the bottom of the range".
5. Judge Smith also found a G7 page 12 of his sentencing report that he accepted that the Applicant had reasonable prospects of rehabilitation and was unlikely to reoffend and had been largely persuaded in that respect by the report of Dr Nielssen. Judge Smith also noted that the Applicant because of his age, his plea of guilty, his work history and strong family support was, in his view, unlikely to commit further offences and particularly offences of the kind which were before the court.
6. Judge Smith notes at G7 page 12 that Dr Nielssen assessed the Applicant on 13 February 2023 as having a low probability of further offending.
7. The Tribunal has also had regard to summonsed material from the Department of Communities and Justice namely the sentencing report completed with respect of the Applicant for the purposes of his District Court matter.
8. The sentencing report was completed by Amanda Lawson a Community Corrections Officer with the Sutherland Community Corrections Office and is dated 29 March 2023.
9. The report notes with respect to the Applicant's sex offending that "pre-sentence consultation case notes authored by CSNSW Psychologist indicate Mr Zhao's potential dynamic risk factors may include hostility to women, impaired problem solving and sexual deviance".
10. The sentencing report notes that the Applicant had been seen by a psychologist on seven occasions since 7 June 2022 to address his offending behaviour and that the psychologist had advised Community Corrections that the Applicant had "minimised his offending and lacked insight into the impact of his offending on the victim".
11. The minimisation of the Applicant's offending and the lack of insight into the impact on the victim of his offending, his biological son, was, as discussed evidenced during the review hearing, where the Applicant stated categorically that he had not engaged in child abuse with respect to the victim and with respect to his varying and different accounts of the offending.
12. In terms of an assessment and recommendation the 29 March 2023 report by Ms Lawson notes that the Applicant had been assessed at Low/Medium risk of reoffending according to Level of Service Inventory-Revised (LSI-R). The report also indicated that he had been assessed as an above average risk of sexual reoffending according to Static 99, administered by the CSNSW Psychologist. The evidence indicates that Community Corrections overrode the overall risk of re-offending to T3/high pending the result of the Sex Offender Supervision Assessment.
13. The report noted that as a consequence of the Applicant being assessed at the T3/High risk of reoffending, that he would be subject to community supervision that would require the Applicant reporting to the Sutherland Community Corrections Office every week.
14. The Tribunal notes that the summonsed material indicates that the Applicant was also assessed by Jennifer Barton a psychologist on 15 March 2023. This assessment was completed after the Applicant had been assessed by Dr Nielssen on 13 February 2023. Ms Barton in testing the Applicant applied a number of risk assessment tools which included the Static 99R test which was a multi-faceted risk assessment which assists in identifying the Applicant's dynamic risk factors. Ms Barton's reported that the test results indicated a hostility to women as evidenced by a domestic violence offending (albeit with no conviction being recorded). The report also identified impaired problem-solving skills which was identified as another risk factor. An example of this was the Applicants compliance with his ex-partner in allowing her to take the 4 photographs of their child that led to the child abuse material charges. The report notes in this respect that "he said his partner had a temper and when she wanted to take the pictures he was 'obedient' for harmony". Ms Barton stated that sexual regulation factors and sexual deviance may be a risk factor, and this finding was made based on the Applicant's description of the offending behaviour being engaged in for fun "which may be a cognitive distortion related to deviance".
15. In her summary and recommendations Ms Barton concluded that "Mr Zhao has been assessed as being ABOVE AVEREAGE risk of sexual re-offending based on actuarial assessment. Potential dynamic risk factors have been identified as hostility to women, impaired problem solving and sexual deviance".
16. The Tribunal notes the differential outcomes reached by Ms Barton and Dr Nielssen with respect to risk factors, however, both opine that risk factors do exist for the Applicant going forward with Dr Nielssen concluding that they were 'low' and Ms Barton finding that they were 'above average' with respect to sexual re-offending.
17. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious. This includes crimes committed against vulnerable members of the community.
18. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant's offending.[1]

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

19. The Applicant was convicted to a term of imprisonment for two years for the offence of using a child under the age of 14 years for the production of child abuse material, an offence against s 91G(1)(a) of the Crimes Act. This clearly reflects the objective seriousness of the Applicant's offending.
20. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
21. Judge Smith noted in his sentencing comments that the victim of the offending, the Applicant's child K, was 27 days old at the time of the offending and was fully clothed. He concluded based on the victims age that he would not have been impacted by the offending behaviour.
22. As a consequence of the Applicant's offending, his son was removed from the care of the Applicant and his ex-partner and placed into the protection of the State. The evidence adduced at the review hearing is that a final decision has been made by the Department of Communities and Justice in New South Wales that the placement of K with his foster family has now been made permanent.
23. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
24. The Applicant has only been convicted of the one offence of production of child abuse material. The Tribunal finds on the basis of the evidence before it that the Applicant has been convicted of a very serious crime, namely a crime of a sexual nature against a child and that crimes of this nature regardless of the sentence imposed are viewed very seriously by the Australian community. The Tribunal has accordingly given significant weight to the seriousness of the offending.
25. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant's repeated offending.
26. There is only the one incident of offending grounding a conviction and hence the Tribunal gives limited weight to this consideration in the absence of a pattern of repeat offending.
27. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
28. There is no evidence that the Applicant has provided false or misleading information to the Department.
29. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen's favour.
30. There is no evidence that the Applicant has offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status.
31. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
32. There is no evidence that the Applicant has committed an offence, or other serious conduct, in another country.
33. As has been noted the offending that grounded the cancellation of the Applicant's visa, which involved offending of a sexual nature against a child, comes within the ambit of very serious offending. The Applicant's offending behaviour was committed against a vulnerable member of the community, an infant who happened to his biological son, who was only 27 days old at the time of the offending behaviour. The Direction is clear that offending of this nature regardless of the sentence imposed is viewed very seriously by the Australian government and the Australian community and hence significant weight is given to this consideration with respect to the cancellation of the Applicant's visa.
34. The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against the revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
2. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
3. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > > (i) information and evidence on the risk of the non-citizen re-offending; and > > > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). > > (c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

4. The Applicant has submitted that there is no risk that he would re-offend again in the future.
5. Dr Nielssen, psychiatrist, in his report of February 2023, opined that the Applicant's risk of re-offending in the future was "low".
6. Ms Barton, psychologist, in her report of March 2023, opined that the risk of the Applicant engaging in sexual re-offending was 'above average'.
7. The Applicant has cited a number of reasons which in his view would mitigate his risk of re-offending. The Applicant makes reference to the District Court Judge's findings that the risk of reoffending based on the evidence of Dr Nielssen is 'low' a fact that was accepted by Judge Smith.
8. The Applicant further states that he had only been convicted of the one offence and that prior to this offending he had no criminal antecedents. The Applicant advised that he had a solid work history in Australia, that he owned a property in Burwood, and that prior to the offending behaviour he had been a good and supportive father to his infant son K. The Applicant also pointed to the fact that he had supportive parents who had provided both emotional and financial support to him over the course of his life and particularly since the offending behaviour. The Applicant stated that prior to the offending he had a stable job in Australia and had paid taxation.
9. The Applicant conceded that he had not engaged in a sex offenders program advising that one was not made available to him whilst he was in prison. There was no evidence before the Tribunal that the Applicant, since being released from prison, has managed to engage in a sex-offenders program.
10. The respondent's position is that there is a risk of the Applicant engaging in the further production of child abuse material and by extension child abuse and that the nature of this conduct is such that any risk of reoffending is unacceptable. The respondent's contention is that despite the Applicant and his parents giving evidence that there was 'no risk' of reoffending in the future, that this assessment should be approached cautiously by the Tribunal. The respondent also submitted that with respect to the Applicant's ongoing lack of insight in terms of his offending behaviour that there remains an appreciable risk of the Applicant reoffending in the future. Reference was also made to the assessment of Dr Nielssen who opined that there was a low risk of re-offending and the respondent's position is that any risk of a repeat of this offending behaviour is too great a risk.
11. There is no evidence with respect to the Applicant engaging in a specific rehabilitation program to address his past offending behaviour. The Applicant's evidence is that he was not able to access such a program whilst in prison or for the short period of time he was in immigration detention. There is no evidence that the Applicant has engaged in such a course in the 9 months that he has been residing in China.
12. The evidence before the Tribunal indicates that the risk of the Applicant engaging in reoffending sits somewhere between low to above average, given the differential views of risk expressed by Ms Barton and Dr Nielssen, both of whom were not called to be cross-examined with respect to their respective reports by the parties at review.
13. The Tribunal finds overall, that with respect to the protection of the Australian community that the Applicants offending is very serious, and the harm to the Australian community should it be repeated is very serious. The Tribunal finds that the professional evidence before it is indicative of a risk of reoffending and the Tribunal is not able to be satisfied on the basis of the evidence before it that the likelihood of the Applicant reoffending in the future is negligible or indeed remote. The Tribunal finds that the professional assessments of risk traverse a range from low to above average and with respect to the Applicant's offending the Tribunal finds that any risk with respect to further offending is an unacceptable risk.
14. The sub-paragraphs of paragraph 8.1.2 of the Direction, in their totality, weigh heavily against the revocation of the cancellation of the Applicant's visa.

1. Primary Consideration 1 weighs heavily against the revocation of the cancellation of the Applicant's visa, although the Tribunal notes that this consideration alone is not of itself determinative.

1. "Family violence" is defined in paragraph 4(1) of the Direction to mean violent, threatening, or other behaviour that coerces or controls a member of the person's family or causes that family member to be fearful.
2. Paragraph 8.2(1) of the Direction informs the Tribunal of the Government's serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
3. Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen's conduct and whether there is a trend of increasing seriousness.
4. The respondent has submitted that the Applicants offending behaviour comes within the ambit of family violence. The respondent's SFIC notes that "family violence is defined under the Direction as violence, 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 (paragraph 4(1)). Family violence is defined to include, amongst other things, sexually abusive behaviour. The respondent contends that the Applicants offending falls under this consideration as it involved sexually abusive behaviour towards his son-a member of the Applicant's family. While 'coerce' is not defined in the Direction, it relevantly means to "force or compel, as to do something", in this case, compelling his son to engage in the production of child abuse material."
5. The respondent submits that this consideration should be given weight by the Tribunal due to the fact, that the Applicant's son K was removed from the Applicant's custody by the Department of Communities and Justice as K was deemed to be at risk of sexual harm due to family violence. The respondent notes that the Applicant had attended some domestic violence courses whilst in prison but there was no evidence that the Applicant had engaged in a sexual-offenders course or courses that directly relate to the sexual offending with respect to family members and consequently this primary consideration weighed heavily against revocation.
6. The Applicant in his statement provided to the Tribunal dated 20 November 2024 claims that the only incident relating to family violence was an offence of common assault committed on 20 November 2020 against his former partner for which no conviction was recorded and with respect to contravention of an apprehended violence order. As has been discussed in the decision this offending is not in play in this decision, due to the fact that no conviction was recorded with respect to this offending. The Applicant confirms that he attended domestic violence sessions whilst in prison.
7. The Direction is clear that family violence includes coercive or controlling behaviour towards a member of a family unit and examples that may constitute family violence includes sexually abusive behaviour.
8. The Tribunal finds on the basis of the evidence before it, that the Applicant was clearly complicit in the offending behaviour that was engaged in by him and his former partner, and hence the conviction for production of child abuse material. The conduct involved compelling and controlling behaviour perpetrated against an infant that engaged his son in the production of child abuse material.
9. The Tribunal accordingly gives this consideration some weight in favour of affirming the decision not to revoke the cancellation of the Applicant's visa.
10. Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
11. The evidence before the Tribunal indicates that the Applicant has engaged in a number of domestic violence courses whilst in prison, however, as has been discussed the Applicant has not engaged in a sexual-offenders course. In the absence of the Applicant completing such a course, the Tribunal is unable to find that the criminogenic factors that led to the Applicant's offending behaviour have been adequately addressed.
12. Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. There is no evidence that the Applicant has been the subject of a formal warning in this respect.
13. Considering the sub-paragraphs in their totality, they weigh against the revocation of the cancellation of the Applicant's visa.

1. Primary Consideration 2 weighs against the revocation of the cancellation of the Applicant's visa.

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

1. The Tribunal must consider any impact of its decision on the Applicant's immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2. Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
3. Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
4. The Applicant was born in China in 1994 and lived in Australia from 2010 until he returned to China in 2024. The evidence indicates that the Applicant contributed positively to the Australian community through his study and work history. The Tribunal finds that the part of his life that the Applicant was resident in Australia was spent contributing to the Australian community in a positive way.
5. Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
6. The Applicant has one Australian citizen child resident in Australia, his son K, who due to the Applicant's offending behaviour was removed from the Applicant's care and control by the Department of Communities and Justice in NSW. The evidence indicates that K's removal from his parents has recently become permanent with a directive that he should stay in foster care, with his paternal grandparents being given some visitation rights.
7. The evidence indicates that the Applicant lived in Australia on a continuous basis from 2010 until 2024. This was predominantly with his mother, an Australian permanent resident, as his father, also an Australian permanent resident, remained in China until 2022 where he had work commitments and only relocated to Australia in 2022 after his son's offending.
8. The evidence indicates that the Applicant as an only child, has a close relationship with his Australian permanent resident parents and the evidence is clear that in the event the Applicant remains in China that there will be an emotional toll on his immediate family unit.

1. Primary Consideration 3 is given some weight in favour of the revocation of cancellation of the Applicant's visa.

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

1. Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
2. Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
3. The Applicant's son K is now 3 years old. The evidence indicates that K was removed from the Applicant and his ex-partner's care after the offending behaviour by the Department of Communities and Justice NSW. K was placed in foster care and evidence was adduced at review that the foster care arrangement for K has been made a permanent one. The evidence indicates that the Applicant's parents have been given access to K and see him on a monthly basis and during Chinese cultural events such as Chinese New Year. The Applicant was precluded from seeing his son due to the imposition of an apprehended violence order (AVO) which has now expired in January 2025.
4. The evidence indicates that due to his offending behaviour and his subsequent incarceration the Applicant has not had any interaction with his son since K was a year old. The evidence is that the Applicant's ongoing role in his son's life is severely curtailed by his son's placement into a permanent foster care arrangement and due to the Applicant's election to be removed from Australia to China.
5. The Applicant claims that despite the engagement in the offending behaviour when K was only 27 days old that he had been a good father and that he fed, bathed and cared for his son.
6. The Tribunal notes that the circumstances that led to the removal of K from the Applicant and his former partner's care were circumstances of his own making and circumstances which involved sexual conduct against his son.
7. Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact).
8. Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
9. The Tribunal gives less weight to this consideration on the basis that there has been no contact between the Applicant and his son since his son was removed in April 2022 and placed into foster care. As a consequence, the Applicant has not been able to play a parental role in his son's life since he was 10 months old.
10. The Applicant's son is currently 3 (soon to be 4) and there is lengthy period of time before he reaches adulthood.
11. The evidence indicates that the Applicant's son was born on 11 June 2011 and was in the care and control of the Applicant up until the he was removed into the care of the Department of Communities and Justice on 11 April 2022 when he was 10 months old.
12. The evidence indicates that the Applicant's son has not been in his parents care since his removal on 11 April 2022 a period in excess of 3 years.
13. There is evidence before the Tribunal indicating that care arrangements imposed by the Department of Communities and Justice in NSW have resulted in K being permanently placed into foster care.
14. On the basis of the removal of the Applicant's son from his care and the fact that the foster arrangement is now a permanent one the Applicant will have limited opportunity to play a positive parental role in the future.
15. The Applicant's parents have been given access to their grandson and will continue to have that access going forward. The Applicant gave evidence that he hoped that in the event that the cancellation was revoked, and he was to return to the Australian community, that he could re-establish some contact with his son.
16. The Tribunal finds that the Applicant's son is likely to grow up without the care of his biological parents. The relevant authorities in NSW have deemed this to be in the best interests of the Applicant's son and for this to remain to be the case, making his foster arrangements a permanent one.
17. Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
18. There is evidence before the Tribunal that the Applicant's son not having been directly negatively impacted by the Applicant's conduct as he was only 27 days old at the time of the offending.
19. Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways.
20. The evidence before the Tribunal indicates that the Applicant's son, now 3 (soon to turn 4), has had no interaction with his father since he was a.
21. The Tribunal notes that in affirming the cancellation of the Applicant's visa the Applicant's son will grow up without physical contact with his biological father. Once again, the Tribunal notes that the organisation vested with the oversight of the welfare of children in New South Wales the Department of Communities and Justice have deemed it to be in the Applicant's son's best interests that he be kept in a permanent foster arrangement. As noted, the Applicant's parents have an active role in their grandson's life and are given access to him particularly during key events in the Chinese calendar, such as Chinese New Year. The Tribunal finds that this is indicative of important and culturally appropriate contact that should go someway to ameliorating the lack of contact of the Applicant's son with him during his formative years.
22. Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
23. The Department of Communities and Justice NSW through the appointment of a permanent foster carer has fulfilled a parental role for K and this suggests that the Applicant's former partner and mother of his child does not play a parental role with their son.
24. Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
25. The Applicant's son is an infant aged 3.
26. Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
27. The Applicant's son has been the subject of the Applicant and his ex-partners abusive conduct which exposed him to sexual abuse and having regard to the very serious nature of this offending behaviour the Tribunal finds that any risk whatsoever of further harm is too great.
28. Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
29. As discussed, there is no evidence that during the incident of July 2021, the Applicant's son who was 27 days old at the time experienced physical trauma.
30. The evidence as discussed indicates that the Applicants son was removed from the Applicant's care on 11 April 2022, and this extended to removal from the care of his mother (a co-offender) in the criminal conduct. The Tribunal finds that the Department of Communities and Justice have in their assessment deemed that it be in the Applicant son's best interests for him to be placed in permanent foster care. They have also allowed K to have access to his paternal grandparents and it is clear that they play an important familial and cultural role with respect to K, that are not able to be served by K's parents. The Tribunal also finds that no-one can replace biological parents, however if a child is in an environment where they are subjected to any risk then their best interests are clearly served by them being removed from that environment.
31. Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of the minor child in Australia affected by this decision should be given some weight in favour of the revocation of cancellation of the Applicant's visa.

1. Primary Consideration 4 is given some weight in favour of the revocation of cancellation of the Applicant's visa.

PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct that commenced in June 2021 and continued until June 2023 at which time he was incarcerated.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or > > (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; > > (d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or > > (e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or > > (f) worker exploitation.

3. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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

5. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.
6. Paragraph 8.5(4) contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
7. In assessing the weight attributable to Primary Consideration 5, the Tribunal places significant weight on the fact that the Applicant has committed an act of a sexual crime against a vulnerable child, an act that brings his offending within the ambit of family violence.
8. This Applicant's criminal conduct in Australia raises serious concerns with respect to the Applicant's character. Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community, particularly given the community's abhorrence for any form of sexual crimes involving a vulnerable child or with respect to family violence, weigh very heavily against the revocation of the cancellation of the Applicant's visa.

1. On balance, Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant's visa

1. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.

1. There is no evidence before the Tribunal of any non-refoulement obligations arising in this matter and during the time that the Applicant was resident in Australia, he has never attempted to seek to engage Australia's protection obligations. The Applicant voluntarily sought to be removed from Australia to China. The Applicant has contended that he would be at risk of detention in China as a consequence of the offending he committed in Australia. The evidence indicates that this has clearly not come to fruition as the Applicant has been back in China for 9 months and is living freely in that country with friends and has managed to find employment in the construction sector. Accordingly, the Tribunal does not consider this consideration to be relevant in the circumstances of this case.

1. The Applicant is 30 years old and has worked in a range of occupations in Australia and has acquired English language skills and work experience. The Applicant has managed to find employment in China since he returned there 9 months ago.
2. The evidence is such that the Applicant would not suffer any language or cultural barriers in China as he was born in that country in 1994 and continuously resided there until 2010. The Applicant has claimed that his Mandarin language skills were not well developed. The Applicant requested that the whole of the review hearing be conducted through a Mandarin interpreter and over a day and a half of hearing there was no issue raised by the Applicant or the interpreter with respect to the Applicant's fluency in Mandarin.
3. The Tribunal is satisfied that the Applicant has obtained employment in China. The Applicant is residing with friends in China indicative of a social network in China and the Applicant owns a property in Burwood NSW Australia which will provide him with an additional source of income going forward.
4. Given these factors the Tribunal gives limited weight to the extent of impediments upon the Applicant if he is removed. The Applicant has successfully re-established himself in China and has accommodation and employment and indeed an Australian income source, namely his property in Burwood Sydney which could form an additional income stream for the Applicant.

1. This consideration is not relevant as there is no evidence of impact on Australian business interests.

1. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant's visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
2. Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
3. In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:

(a) Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant's visa, although this consideration is not of itself determinative. > > (b) Primary Consideration 2 weighs against the revocation of the cancellation of the Applicant's visa. > > (c) Primary Consideration 3 is given some weight in favour of the revocation of cancellation of the Applicant's visa. > > (d) Primary Consideration 4 is given some weight in favour of the revocation of cancellation of the Applicant's visa. > > (e) Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant's visa. > > (f) To the extent that they are relevant, the Other Considerations are given moderate weight in favour of the revocation of the cancellation of the Applicant's visa.

4. Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the Primary Considerations 2, 3, 4, and 5. Furthermore, the Tribunal places greater weight on the Primary Considerations than the Other Considerations.
5. The Tribunal is guided by the principles contained in the Direction. These include paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the Australian community. The Tribunal is satisfied that the safety of the community is best served without the Applicant being a part of it.
6. Accordingly, the Tribunal is not satisfied that the cancellation of the Applicant's visa should be revoked. The correct and preferable decision of the Tribunal is to affirm the Reviewable Decision not to revoke the cancellation of the Applicant's Subclass 155 resident Return visa.

1. The Tribunal affirms the Reviewable Decision not to revoke the cancellation of the Applicant's Subclass 155 Resident Return visa.

[1] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].