1. The Tribunal conducted a hearing of the Application on 6 and 7 August 2025. The Applicant was represented by Mr Greg Hughan of counsel. The Respondent was represented by Mr David Brown, a solicitor.
2. In conducting the review, the Tribunal had regard to:

(a) the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G7 and paginated from pages 1 to 147 (G Documents);

(b) a bundle of documents produced under summons tendered by the Respondent sequentially numbered TB1 to TB187 and paginated from pages 1 to 1022 (TB Documents);

(c) documents tendered by the Applicant and marked as exhibits and listed in Appendix A;

(d) a Statement of Facts, Issues, and Contentions produced by the Applicant with Attachments numbered 1 to 16 (ASFIC); and

(e) a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);

(f) a Reply Statement lodged by the Applicant (AReply):and

(g) the oral evidence of

1. the Applicant;
2. Natercia Gray;
3. Karen Wicks;
4. Jeremy Angerson;
5. Joseph Coelho;
6. Merryn Tierney;
7. Emma Otto;
8. Ashley Gray; and
9. Matthew Henderson.

1. Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:

(a) the Applicant passes the character test (as defined by section 501); or

(b) there is another reason why the cancellation should be revoked.

1. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a 'substantial criminal record', which is relevantly defined to include having been sentenced to a term of imprisonment of 12 months or more - s 501(7)(c).
2. On 16 December 2020, the Applicant was convicted in the County Court of Victoria of rape for which he was sentenced on 15 January 2021 to four years imprisonment.[8]
3. As a result, the Applicant has a 'substantial criminal record' as defined in s 501(7)(c). He therefore fails the character test under section 501(6)(a). The Applicant does not dispute that he fails the character test.[9]
4. Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant's Visa should be revoked. That reason:

... must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[10]

1. On 7 June 2024, the Minister issued Direction No. 110 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant's Visa should be revoked.
2. Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[11]
3. Paragraph 6 of Part 2 of Direction 110 provides that decision-makers must take into account the considerations identified in paragraphs 8 and 9 where relevant to the decision within the framework provided by the principles stated in paragraph 5.2.
4. Paragraph 8 of Part 2 sets out the five primary considerations:

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

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

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

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

1. Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:

1. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.

1. Paragraph 8.1(2) of Part 2 of Direction 110 requires decision-makers to give consideration to:

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

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

Nature and Seriousness of the Applicant's Conduct to Date

1. A complete statement of the Applicant's criminal record as reported by the Australian Criminal Intelligence Commission on 15 December 2023 was included in the G Documents.[12] It records that the Applicant has a single conviction for the offence of rape on 15 January 2021 for which he was sentenced to 4 years imprisonment.
2. The nature of the Applicant's offending was described in the sentencing remarks of Justice Fox of the County Court of Victoria on 15 January 2021. Her Honour recorded that the Applicant had been found guilty by majority jury verdict of one charge of rape committed on 3 October 2017. She described the offending as:

At the time of the offending you were working as a myotherapist in North Melbourne. The victim was a 19 year old client of yours, who had attended for a massage. This was her fifth appointment with you, having first seen you in May 2017.

The victim gave evidence about what occurred. She attended for her one hour massage appointment at approximately 7:30 PM. She undressed for the massage but left her underwear on. You used a towel to cover her throughout the massage. Toward the end of the massage, you told her you could go for an extra 10 minutes, even though the massage had already gone over time. She does not remember if she responded. You were massaging her hip area and suggested she remove her underwear, so you could get into the area better, and she said no. You continued massaging and asked a second time, and 'then the underwear got removed'. She said she did not reply and you pulled down her underwear and continued to massage her hip area, moving closer to her vaginal area. She was feeling uncomfortable at this point but did not say anything.

You then started rubbing the victim's vagina area, inside the vaginal lips. You asked her if she was okay with this and she did not reply. You then asked again 'are you okay with this, is this what you want', and she said no and sat up. You immediately stopped touching her vagina. According to her, your finger was inside the lips of her vagina for a few seconds and did not touch any other part of her vagina.

After the touching stopped, you kept asking whether she was sure that this is not what she wanted, and she said no. You told her you do not normally do this. You apologised and told her you had misread the situation. She then left your premises and called a friend. At 9:37 PM you sent her a text message, apologising for misunderstanding and promising that it would never happen again. You said you were embarrassed and sorry, and you would make it up to her. She did not reply.

You were interviewed by police on 12 October 2017. You gave an account which in a many ways [sic] was similar to that of the victim's. You said you thought there was a connection between you and her, but you had read the signs wrong. You said you started massaging close to her vagina, and because she did not say anything to you, you thought you were correct about the connection. You then put a finger inside her vagina and asked her if it was okay. You told police that she said yes, but you thought perhaps she was not that into it and so you asked again and she said no. You stopped and realised you had read the whole situation wrongly. You apologised and told her you had misread the situation. You agreed that at no point did the victim indicate, verbally or in actions, that she wanted anything other than a professional massage.

One point of factual difference between the victim's account and your record of interview is that in your record of interview you said you "got her to take her underwear off"; that is, you asked her to take them off and she complied.

You gave evidence on the trial which differed significantly from your record of interview. You listed a number of reasons as to why you thought the complainant was interested in you. On your account, you penetrated the victim's vagina with your finger and the penetration lasted some 3 minutes. On her account, you finger was only inside the lips of her vagina for a few seconds, although in cross-examination she agreed it may have been longer. I find consistent with the victim's evidence that the penetration did not go beyond the lips of her vagina, and it lasted perhaps 30 or 40 seconds.

If a jury had accepted your evidence, or if it had given rise to a reasonable doubt, you would have been acquitted. I reject the account you gave in your trial evidence.

However, a jury may have accepted your record of interview and still found you guilty of rape. In your record of interview, you yourself agree that whilst you believed the victim was consenting, you had misread the situation and you were wrong. In this way, you admitted that you held an unreasonable belief in consent.

The prosecution submitted on the plea that you should be sentenced on the basis that you believed the victim was consenting, but your belief was unreasonable. Your counsel also submitted you should be sentenced on this basis.

On the question of who removed the underwear, the prosecution submitted the court is not required to make a factual finding in relation to this part of the evidence. Your counsel submitted the court could not be satisfied beyond reasonable doubt that you removed the complainant's underwear. Your counsel submitted I should be satisfied on the balance of probabilities that the victim removed her underwear after being asked by you to do so. Alternatively, your counsel made the same submission as the prosecutor, namely that the court is not required to make a factual finding on this issue.

I do prefer the evidence of the complainant as to how her underwear was removed and I am satisfied beyond reasonable doubt that on the second occasion when you asked her if she wanted to remove her underwear, she did not say anything, and so you did remove her underwear and continued to massage her hip area. However, this finding does not mean that you did not hold an unreasonable but honest belief in consent.

An honest belief is one that is genuinely held. A belief may be irrational or unreasonable but still honest. If a person's belief is unreasonable, it can still be an honest belief, although the extent to which it is unreasonable impacts on an assessment of whether a person could honestly and genuinely have held such a belief. This is because the more reasonable a person's belief is, the more likely it is that they actually held that belief.

Based on the evidence, including having watched (not simply read) your record of interview, I am not satisfied that you were aware that the complainant was not consenting. Nor am I satisfied that you gave no thought as to whether the complainant was consenting. Accordingly, you are to be sentenced on the basis that although you had a belief in consent, that belief was not reasonable in the circumstances. This places your crime toward the lower end of moral culpability.

There are other features of your offending that are relevant to an assessment of the objective seriousness of the rape. As a professional, you had a therapeutic relationship with the victim, and there was a power imbalance in that relationship. The victim was alone with you, in the early evening, in her underwear on a massage table. She was in a vulnerable position and trusted you, as her therapist, to behave professionally. You breached her trust and took advantage of the power imbalance to commit the offence. This is a serious feature of your offending.

I accept the offending was an isolated event and was not planned. The penetration was brief and you asked the victim twice if she was okay and you stopped as soon as she said no. There were no threats of violence made or violence used against her. It was not a case where the victim was physically and/or verbally protesting and you were deliberately ignoring those protests. She was not exposed to a risk of disease or unwanted pregnancy.

You apologised immediately to the victim and made significant admissions to the police in your record of interview. You ran a trial and whilst you must not be punished for that, you are not entitled to the meaningful sentencing discount that you would have received if you had pleaded guilty to this offence[13].

1. Paragraph 8.1.1(1) of Part 2 of Direction 110 provides a description of what is considered 'very serious' and 'serious' conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes which are to be regarded as 'very serious' and include crimes of violence and particularly crimes of a violent and/or sexual nature against women regardless of the sentence imposed.
2. The Applicant was convicted for rape of a young female patient. It was a crime of a sexual nature against a woman and is accordingly to be regarded as very serious conduct for the purpose of Direction 110 irrespective of the sentence imposed. It is not appropriate for the Tribunal to have regard to the length of sentence in assessing its seriousness.[14]
3. In addition, paragraphs 8.1.1(1)(c)-(i) set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:

(a) (b)

(c) ...

(d) the impact of the Applicant's offending on victims and their family;

(e) the frequency of the Applicant's offending; and

(f) the cumulative effect of any repeated offending;

(g) ...

(h) whether the Applicant re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his immigration status.

1. The Applicant's offending was constituted by a single event. There is no evidence of any repetition of the conduct or of any increasing seriousness. The Applicant received no written warning nor was he otherwise made aware about the consequences of offending in terms of his immigration status.
2. As to the impact on victims, Justice Fox noted the effect of the Applicant's conduct on the victim in her sentencing remarks:

A victim impact statement was tendered on the plea. After your offending, the victim changed from being trusting and fun loving and became withdrawn and antisocial. She has experienced self-doubt, embarrassment and anger, as well as anxiety. She has seen a psychologist and trauma therapist, and her relationships have been impacted. She feels less safe in the world and has struggled to trust people and develop new relationships.[15]

1. Having regard to these matters the Tribunal is satisfied that the Applicant's offending was very serious.

The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct

1. Paragraph 8.1.2(2) of Part 2 of Direction 110 requires the decision-maker, in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, to have regard, cumulatively, to:

(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 available information and evidence on the risk of the applicant reoffending.

1. The victim impact statement referred to by Justice Fox in her sentencing remarks indicates that the Applicant's criminal conduct had a lasting effect on the victim causing her emotional and psychological harm. The crime of rape, like many crimes of a sexual nature, has the potential to result in such harm. The Victorian Court of Appeal has stated:

The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.[16]

1. If the Applicant's conduct is repeated, it threatens to inflict psychological, emotional and physical harm on members of the Australian community.

1. In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court of the Federal Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future 'must be based on a logical process of reasoning based on the known facts'.[17]
2. Accordingly, the Tribunal has approached the assessment of risk having regard to a series of factors_._

1. The High Court has determined that the concept of the nature of an offence requires a consideration of the circumstances of the offending, including its result and the state of mind which accompanied it.[18]
2. The circumstances of the offending were that the Applicant, in the course of administering a massage to a young female patient, briefly penetrated her vagina with his fingers believing her to have consented when that belief was not reasonable in the circumstances. The Applicant was not suffering from a psychiatric condition at the time of the offending[19]. It was an isolated and unplanned event, there was no violence nor threats of violence involved and the Applicant stopped as soon as the victim said she did not consent. Nevertheless, the Applicant was in a professional therapeutic relationship with the victim at the time and there was a power imbalance between them. The victim was vulnerable. The Applicant breached the victim's trust and took advantage of the power imbalance to commit the offence. The effect of the conduct was to cause significant emotional and psychological harm to the victim.
3. The crime of rape, irrespective of the circumstances, is a very serious offence involving the potential to cause significant psychological and physical harm to the victims. However, as the Applicant correctly contended, the offence of rape can be committed in many different forms and can apply to a range of behaviours of varying seriousness.
4. Her Honour Judge Fox identified aspects of the nature and seriousness of the Applicant's offending in her sentencing remarks. She stated:

As a professional, you had a therapeutic relationship with the victim, and there was a power imbalance in that relationship. The victim was alone with you, in the early evening, in her underwear on a massage table. She was in a vulnerable position and trusted you, as her therapist, to behave professionally. You breached her trust and took advantage of the power imbalance to commit the offence. This is a serious feature of your offending.

I accept the offending was an isolated event and was not planned. The penetration was brief and you asked the victim twice if she was okay and you stopped as soon as she said no. There were no threats of violence made or violence used against her. It was not a case where the victim was physically and/or verbally protesting and you were deliberately ignoring those protests. She was not exposed to a risk of disease or unwanted pregnancy.[20]

1. On the basis of Justice Fox's assessment, the Tribunal accepts that there are aspects of the Applicant's conduct which point to his moral culpability being toward the lower end of the scale of seriousness.

1. The Applicant's behaviour in prison was generally considered satisfactory for the purpose of his parole suitability[21], but he was refused parole on 26 March 2024 on the basis that the Parole Board was unwilling to parole the Applicant to an immigration detention centre while his appeal against the revocation of his visa was being determined[22]. He was described as responds to direction well and causes nil issues to staff.[23]
2. The Respondent asserted that the Applicant had engaged in other serious conduct while in prison, pointing to an incident in March 2023 in which the Applicant assaulted another prisoner. The matter was dealt with as a disciplinary matter and the Applicant was punished by being denied visiting rights and spending 4 days in management.
3. The prison records relating to the incident[24] offer a limited explanation of what occurred. A prison officer reported that the Applicant and another prisoner emerged from a bathroom both bearing relatively minor facial injuries consistent with a fight. The Applicant admitted initiating the fight by slapping the other prisoner, but no further details of the altercation are recorded.
4. The Applicant gave evidence regarding this incident in his oral evidence. He stated that he was living in cottage accommodation with four other prisoners when a vacancy in the cottage became available and a young prisoner was offered a room in the cottage. Due to a disagreement between the prisoners in the cottage over the allocation of the room, the young prisoner was moved out. The Applicant claimed that he found alternative arrangements for the young prisoner, but that prisoner was disgruntled at having to move. The Applicant discovered that when moving out the young prisoner had urinated and smeared faeces on the floor of the cottage bathroom. The Applicant said he confronted the young prisoner and insisted that he clean up the mess he had created. The young prisoner swore at the Applicant and spat at him. In response the Applicant claimed that he slapped the young prisoner, although claiming it was 'more of a push'. The young prisoner then struck the Applicant several times and the Applicant defended himself by punching the young prisoner three times to the head but stopped when the young prisoner appeared dazed.
5. The Tribunal is not in a position to make specific findings in relation to this incident, but it is satisfied that the incident arose in circumstances peculiar to the prison environment and involved conduct which was not necessarily reflective of the behaviour which might be expected of either of those involved in the outside community.

1. The Applicant made the following statement in his undated witness statement:

I want to make very clear that I am no risk of re-offending and have a long history both prior to and since my conviction of living in the Australian community without any incidents. I remained in the community on bail between December 2017 and December 2020, without incident. During this period, I continued to work in my massage business and implemented additional arrangements to ensure that another practitioner, Mary Hedditch, was always present with me.

1. The Applicant did not produce any evidence to corroborate his claim to have implemented arrangements to have someone present when he was treating a patient after the rape incident. He did not call evidence from Mary Hedditch. In addition, Karen Wicks, the Applicant's friend and landlord gave evidence that she was treated by the Applicant in the period between the rape incident and his trial and there was no-one present except herself and the Applicant in the treatment room or elsewhere in the Applicant's premises.
2. While the Tribunal accepts that the Applicant did not offend during the three year period prior to his sentencing it is not satisfied on the evidence that the Applicant's claim to have taken special measures is substantiated and, as the Respondent correctly observed, the fact that the Applicant did not offend during that period is likely to have been influenced by the prospect of a pending criminal trial for rape.
3. The Applicant was assessed by Dr Sachin Jindal, a psychiatrist in September 2020. Dr Sindal opined that the Applicant was not suffering from a psychiatric condition at the time of the offending. He described the Applicant's mental state at the time of his assessment in a report dated 28 September 2020[25] as follows:

Mr John Gray experienced sexual abuse from his elder sister when he was 5 years of age, which made him more anxious than usual and affected him emotionally whenever the memory got triggered. He was able to maintain long term relationships and employment thereafter and denied any symptoms suggestive of post-traumatic stress in his adulthood. I did not detect presence of any obvious personality disorder either in the materials or during my interview. His alcohol use does not amount to abuse. He suffered from an Adjustment disorder due to consequences of the Oct 2017 incident wherein he was feeling like self-harming, and felt that he had let everybody down. With psychological help and his own endeavours, the adjustment disorder was in remission at the time of my interview[26]

1. The Applicant stated in his undated written statement:

After being charged, I undertook about 12 counselling sessions in 2018 but found it difficult to connect with the psychologist and I felt my progress in these sessions stalled. As a result, I stopped the sessions.

When I was incarcerated, I was assessed as being a low risk to the community of Australia, and as a result I was never required to complete courses or programs at Hopkin Correctional Centre. I did request access to some programs but was told due to my low risk rating I was not eligible.

I initiated my own learning to try to understand how I ended up in prison. As a result, over the past 4 years I have developed multiple practices to manage my depression and identify potential underlying causes that can be remedied through daily practice without medication. My own rehabilitation included positive daily habits and better choices, including healthy food, meditation, music, working in nature (gardening) and guitar[27].

1. The Respondent notes that the Applicant has not completed any rehabilitation programs for sexual offenders, although Correction Services records indicate that the Applicant has been assessed as a low risk of re-offending and as a result has not been required to engage in an offence specific intervention in prison.[28]

1. The Applicant made the following statement in his undated witness statement:

I confirm that on 15 January 2021, I was convicted of rape and sentenced to four years imprisonment. I have no other convictions. I accept that the offence of rape is a serious offence but note that the sentencing judge stated that my offence was at the lower end of this type of offence....

....It still shocks me now that I have hurt someone and I am embarrassed by some of the things the Department said about me in the decision.[29]

1. Justice Fox commented on the Applicant's remorsefulness at the time of sentencing as follows:

Understandably your Counsel did not make any submission regarding remorse. On the one hand, you apologised immediately to the victim and acknowledged that what had happened was your fault and you had misread the situation. You also made substantial admissions in your record of interview which assisted in your prosecution. On the other hand, you ran a trial and gave evidence that was disputed, in significant ways, by the victim. I found much of your evidence to be farfetched and unbelievable. Your evidence on the trial shows that you do not currently take responsibility for your offending, although your immediate apology and admissions must be taken into account in your favour.[30]

1. The Applicant was sentenced on the basis that although he had a belief in consent, that belief was not reasonable in the circumstances. In his written statement the Applicant commented:

I have read the sentencing remarks of Judge Fox and accept my conviction. While I believed that I had consent, I accept this was wrong and it was a terrible mistake that I made. One that I know I will not repeat.

1. In his oral evidence the Applicant expressed his remorse stating that he is extremely apologetic, he understands that he was in the wrong, he wishes he could take his actions back, is sorry for the victim and wishes that her life will flourish, and that she will be okay. He did not attribute any responsibility for what happened to the victim and concluded his oral evidence with the statement that:

1. Each of the witnesses called by the Applicant confirmed that they were certain the Applicant was genuinely remorseful.
2. The Respondent asserted that the Applicant has not displayed genuine remorse or insight, nor has he taken responsibility for his offending. Despite having initially made substantial admissions to police and apologising to the victim, at trial he gave evidence that was significantly disputed by the victim and put forward a different account, based on 'farfetched and unbelievable' evidence. The Applicant accepted in his oral evidence that he had not given enough thought to the effect on the victim of contesting the charges at trial.
3. The Respondent referred to the evidence of Merryn Tierney, the Applicant's close friend, who gave evidence that the Applicant explained his conduct to her shortly after the incident as a response to the victim's provocative and suggestive behaviour. Ms Tierney insisted that the Applicant was not seeking to engage in victim blaming and that he is genuinely remorseful. The police record of interview notes that the Applicant stated that the victim did not do anything to warrant his actions.[31]
4. The Respondent also referred to reports prepared for Corrections Victoria on 19 March 2024 and 15 March 2023 which found that the Applicant '[e]ngages in denial/minimisation' and the notes of a mental health nurse as recently as 4 October 2024 recording that the Applicant refuted [the] claims [and] believes he was a victim of the justice system[32].
5. In his oral evidence the Applicant sought to explain the statements he had made to Corrections Victoria officers by claiming he was influenced by the prevailing atmosphere in prison where all of the inmates claim they have been treated unjustly. He said he was influenced by this atmosphere at the time but now, having moved into immigration detention away from the criminal influences, he fully accepts his guilt and deeply regrets his offending and the impact on his victim.
6. The Respondent's assertion that the Applicant has not displayed genuine remorse or insight nor taken full responsibility for his actions is an overstatement of the Applicant's position.
7. The Applicant's position is not a denial of responsibility entirely or a claim that he did no wrong. He has never asserted that the Applicant consented to him touching her vagina. Justice Fox noted in her sentencing remarks that the Applicant told police at the interview that:

..at no point did the victim indicate, verbally or in actions, that she wanted anything other than a professional massage.

1. The Applicant did not deny that he did not have the Applicant's consent to touch her vagina. His assertion was that he thought at the time he had her consent and that this was a reasonable belief. The court accepted that he thought he had the victim's consent but found that his belief was not reasonable. He has shown that he accepts that he acted without actual consent and has expressed remorse for having done so.
2. The Tribunal is satisfied that at the time of the offending the Applicant at least respected or recognised the need for consent. The sentencing remarks of Justice Fox state that he twice asked the victim 'are you okay with this, is this what you want' and he 'immediately stopped touching her vagina when she sat up and said 'no' and he apologised and told her he had misread the situation'.[33] Justice Fox acknowledged in her sentencing remarks that in addition to apologising immediately to the victim, the Applicant made significant admissions to the police in his record of interview.
3. While the Applicant's expressions of remorse have not been consistent over time, the Tribunal is satisfied on the basis of his oral evidence and the corroborating statements of other witnesses that he now accepts full responsibility for his actions and is genuinely remorseful.

1. The Applicant has claimed in his undated written statement that he has the means to establish himself in the community if released so that he can live a pro-social life. He stated:

If I am released, initially I will live with my brother, Ash, until I am able to find my feet. Once settled, I will find my own place, near Tash [Natercia] and the girls who live in Sunshine. This is important so that we can spend more time together, and I can help Tash more but without disrupting ET & KA's school, sports and social routines.

I have funds available to me to help get on my feet, because Tash bought my share of the family home in Sunshine. She now owns it outright. She paid me about $180,000 for my share, the balance of which will be available to help me once I am released.

I am in touch with a company from Hopkins, Reboot, who can assist me when I am released. My business mentor (Keran Wicks) has a carpenter ready to start my apprenticeship when I am released. My brother is also a foreman in construction and has multiple contacts to help me get started.

1. The Applicant identified a wide group of friends and associates in the community who will provide him with social support[34]. He called evidence from his ex-wife, former work associates, family members and his friends, some of whom had been clients in his myotherapy practice[35]. His brother Ashley confirmed that he would provide the Applicant with accommodation upon release. Ms Wicks confirmed that home renovation is a part of her business, for which she employs carpenters and is prepared to engage the Applicant as an adult apprentice to learn the trade. The Applicant's ex-wife confirmed that she would engage co-operatively with the Applicant to share responsibility for raising their two daughters once he is released.
2. The Applicant also provided a further eighteen written statements from members of the community expressing their support for him[36].

1. The Applicant has been the subject of assessments by several professionals as to his risk of re-offending.
   1. Justice Fox said in her sentencing remarks:

I accept that the offending is very out of character, and I accept the risk assessment of the psychiatrist that you are low risk of reoffending, and low risk for future sexual violence and committing serious harm. I do not regard specific deterrence as a significant sentencing factor in your case. I find you have very good prospects of rehabilitation, although your future is now very uncertain and will be greatly impacted by this conviction.[37]

1. Psychiatric report of Dr Sachin Jindal dated 28 September 2020

A risk assessment for sexual violence was done using the RSVP as outlined in paragraphs 25 and 26. He scored partial presence of 3 out of 22 factors namely problems with stress and coping, problems resulting from child abuse, and problems in intimate relationships. He demonstrated awareness of the effects of these factors on him in the transcript of the phone conversation he had with the complainant after the incident, and in my interview. He has shown motivation to work on these by having psychological therapy since the incident, and displayed willingness to take further help on these in my interview. Based on these, he has a low risk for future sexual violence and committing serious harm. Risk ratings are a general indication based on presence of various factors, and do not imply a full certainty of future risk[38]

1. Documents provided by the Victorian Department of Justice and Community Safety include the following assessments:
   1. On 11 February 2021 the Applicant was assessed by reference to the Static-99 Coding Form to assess his risk of sexual and violent recidivism.[39] The assessment concluded that he was in the low risk category. It was recorded that the proportion of offenders in the low risk category who committed a further sexual offence was 7% within 15 years. The percentage of offenders who committed a further violent offence was 18% in the same period.
   2. On 15 March 2023 and 19 March 2024 he was assessed by reference to the Level of Service, Risk, Responsivity[40] test for the purposes of consideration of his parole release. Again, he was assessed as a low risk, despite the assessor being of the view that he engaged in denial/minimisation[41].

1. Although the Applicant's offending was confined to a single incident, it carries a significant level of moral culpability due to his breach of trust and preparedness to take advantage of a vulnerable young women in circumstances of a power imbalance. These matters reflect adversely on the Applicant's character. However, Justice Fox accepted that the Applicant's offending was very out of character[42] and that his moral culpability was at the lower end of seriousness. Witnesses called by the Applicant all stated that his offending was out of character.
2. The Applicant has expressed genuine remorse for his offending, although for some time he clung to the view that it was reasonable for him to assume that the victim had consented to his actions contrary to the findings of the Court. The Tribunal is satisfied that the Applicant now fully accepts the verdict and the wrongfulness of his conduct and is remorseful for it. The Tribunal also accepts that he has been chastened by his imprisonment and the cancellation of his Visa, and that these experiences are likely to act as a deterrent to any further offending.
3. The Tribunal also acknowledges that there was a situational element to the offending in that it occurred in the context of a professional myotherapy session. In assessing the risk of re-offending, it is relevant that the Applicant continued his practise without incident for some 3 years following the incident and before he was convicted. However, the Tribunal gives this limited weight as the Applicant's statement that he had Ms Heddich present when treating patients during this period is uncorroborated and contradicted by the evidence of Ms Wicks. In addition, as the Respondent noted, the Applicant was facing a criminal trial and possible deportation during this period and therefore had a strong incentive not to further offend. The Tribunal does, however, give weight to the Applicant's statement of intention to not resume practice as a myotherapist, if released into the community.
4. In assessing the risk of reoffending, it is relevant that the Applicant has otherwise lived a lawful and pro-social life. The evidence indicates that he has support in the community and the means to resume his previous lifestyle. The Tribunal notes the disciplinary steps taken against the Applicant while in prison but gives it little weight in the overall assessment of risk. First, the Applicant's conduct appears to be relatively minor and was addressed by the prison authorities under a disciplinary process rather than a criminal prosecution. Secondly, the incident arose in the context of a prison environment and not in the outside community. Thirdly, the nature of the Applicant's misconduct was not reflective of his prior offending.
5. The Applicant's offending was not associated with issues of substance abuse or any significant psychological disorder that would require substantial psychological intervention and rehabilitation. The Tribunal accepts that the Applicant has taken some steps to address his offending and that he has reflected on his conduct. The evidence does not disclose any enhanced risk factor arising from the fact that he has not undertaken specific sexual offending treatment.
6. The Tribunal also notes the consistent professional assessments and the opinion of the sentencing judge that the Applicant is a low risk of re-offending in the manner of his prior conviction. While the Tribunal is not bound to accept these assessments and is instead required to make its own assessment, they carry substantial weight.
7. Having regard to all of these considerations, the Tribunal assesses the risk of the Applicant re-offending in the manner of his prior offence as very low. This risk must be balanced against the seriousness of the Applicant's criminal offending and the serious harm that would result if it were repeated. The protection of the Australian community is a primary consideration under Direction 110 and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. It is a consideration weighing substantially in favour of not revoking the cancellation of the Applicant's Visa.

The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.

1. There is no evidence that this is a relevant consideration in the Applicant's case.

The Strength, Nature and Duration of Ties to Australia

1. Paragraph 8.3 of Part 2 of Direction 110 requires that decision-makers:

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

(2) ... must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

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

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

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

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

1. The Applicant is 47 years old. He arrived in Australia aged 18 and has lived here for almost 30 years. He committed his only offence more than 21 years after migrating to Australia.
2. He gave evidence that he first came to Australia to pursue a career in dance and the performing arts. He studied dance styles, acting, modelling and singing at the Brent Street School of Performing Arts in Sydney, and after completing his training, he began teaching and performing. He was a cheer leader for several national sporting teams, performed in four different musical shows and taught at a number of dance schools in New South Wales. In 2006 he moved to Melbourne and worked on the very successful Disney production of the stage show Lion King.
3. Mr Angerson gave evidence of the Applicant's involvement with the Victorian Arabic community in conducting a project involving youth performing arts to address rising racial tensions in the community, as well as his later involvement in major community events such as the Moomba Festival[43].
4. Due to the physical demands of dancing, the Applicant left the entertainment industry and re-qualified as a myotherapist. He started his own myotherapy business in 2015 and conducted it until his incarceration in December 2020. A number of witnesses attested to the benefits they had received from the Applicant's treatment.
5. For the purposes of paragraph 8.3(1), the Applicant's immediate family in Australia are his two daughters and his brother Ashley and sister-in-law Rebecca and their children. The Applicant's mother lived in Australia for many years before passing away in 2023.
6. The Applicant's brother gave evidence that the Applicant has supported him throughout his life, and it would be distressing for him and his family if the Applicant were removed to New Zealand.
7. The Applicant's ex-wife gave evidence that it would create substantial financial and practical difficulties for her if the Applicant were not to remain in Australia, and that it would have long-term adverse consequences for their two daughters.
8. The Applicant demonstrated that he has extended ties in the Australian community. In his undated written statement, the Applicant stated:

I have created bonds with many clients, friends and their extended families in every industry and city of mine that now they feel more like family[44].

He identified a network of some 50 people he has formed relationships with over the years he has been in Australia[45]. He provided 12 statutory declarations from friends and associates, including former patients of his myotherapy practice, supporting his revocation application. Eight people gave evidence in support of the Applicant at the hearing.

1. He gave evidence that he was a regular blood donor before he was incarcerated and provided a screen shot showing him donating blood in June 2017[46].
2. He also claimed to have an historical family connection to Australia, stating:

While I was in Hopkins Correctional Centre, my mother decided to research our family tree as she never knew the English side of our family. She found that we had relatives who migrated from England to Echuca, Victoria in the 1800's a year after the great flood. Family from my great grandfather's side have lived in Echuca ever since. Mum visited them and found a photo of her and her dad on their wall. If I am released, I would love to visit them and track the rest of the family that mum never met[47]..

1. The Tribunal is satisfied that the Applicant has strong and enduring ties to the Australian community. He has lived in Australia all of his adult life and has made a positive contribution to the community as a father, a teacher and entertainer, as a therapist and as a business owner. He identifies strongly with Australia and has widespread support from members of the community. Having regard to these matters, the Tribunal attributes substantial weight to the strength, nature and duration of the Applicant's ties to Australia in favour of revocation. This is a primary consideration under Direction 110.

Best Interests of Minor Children affected by the Decision

1. Paragraph 8.4(1) of Part 2 of Direction 110 requires that decision-makers must make a determination about whether refusal under section 501 or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
2. In considering the best interests of the child, paragraph 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

3. The Applicant has identified two minor children whose best interests arise for consideration under paragraph 8.4 of the Direction. His daughters ET (born July 2014) and KA (born October 2018). The evidence does not indicate that their individual circumstances warrant separate consideration.
4. The Applicant explained in his undated written statement that he had married the children's mother Natercia (Tash) in 2008 and said that:

We formally divorced in April 2024. While we are no longer married, we maintain a strong and stable family, focused on our daughters.

During my time in prison I spoke to my daughters daily to maintain contact with them and assist with their education and mental health. I would also have 30-minute zoom calls with them every fortnight.

Since coming into Immigration Detention in September 2024, I have had access to a telephone and speak to my daughters every night. Tash and our girls also visit me each fortnight in detention.

Tash and I have agreed that, if I am released, we will share care for our daughters. We will do this gradually, at a pace that is comfortable for the girls. Initially the girls will spend weekends with me, then move onto longer stays before eventually the girls move to having equal time with me and Tash.[48]

1. In her statutory declaration dated 9 July 2025[49] and in her oral evidence, Natercia confirmed that she has maintained a relationship with the Applicant while he has been in prison, and that the Applicant has an extremely close relationship with his two daughters and was involved in their daily care before being taken into custody. She stated that the Applicant's absence has had a big impact on both girls. She said:

The biggest impact had been on ET as she had a stronger bond being the age of 6 when John was incarcerated. She has had moments where she has been very emotional and reclusive. She has fallen behind in school dramatically. I am on the waiting list for her to be assessed for autism, however the GP advised because of the history of her father, it may be that she requires counselling. She has anxiety and has picked up the habit of picking the skin on her fingers until it bleeds and causes infections. KA is now 6 years of age and is asking many questions why her father can't be around like other fathers present at school and within our family friends. It makes her angry that she can only see her father in visitations at the Immigration Centre.[50]

1. Natercia stated that the Applicant's incarceration has caused her financial strain and extreme stress, but aside from this her 'main concern is managing the emotional needs of our daughters if they were to be separated permanently from their father'.[51] She stated that:

...the impact that even a short time had on KA and ET is very concerning, and I truly believe that the long-term consequences of them being separated from John outweighs other considerations.[52].

1. Justice Fox confirmed the Applicant's involvement with his family in her sentencing remarks:

You assisted greatly with your daughters' care and provided approximately two thirds of the family income. Without you, your wife will be unable to pay the bills and the mortgage. There is a restraining order over your home because of what you did. You are acutely aware that as a result of your crime, your family has been left in a difficult financial position. I accept that the subjective impact on you of knowing that you have put your wife and children in this position, as well as being separated from them whilst in custody, is also something that will make your time in custody much more burdensome.[53]

1. The Tribunal is satisfied that if the Applicant were removed to New Zealand, it would result in the permanent separation of the Applicant from his daughters. The Applicant is now divorced from the children's mother, and she indicated in her oral evidence that she intends to remain in Australia where she has her father and mother and secure employment. Although communication could be maintained by electronic means and through occasional visits, this is likely to be attended by a continuation, if not exacerbation, of the emotional effects on the children resulting from the Applicant's incarceration. The Tribunal readily accepts that the emotional development of both daughters requires that they have direct physical contact with their father as they grow and develop. It is in their best interests for the cancellation of the Applicant's Visa to be revoked.
2. The Respondent acknowledges that non-revocation would not be in the best interests of the Applicant's daughters but contends that the weight to be given to this consideration is moderated by the Applicant's reduced involvement in their lives during his incarceration, during which time the children have been parented by the Applicant's ex-wife. Nevertheless, the Respondent accepts that this consideration should be given very significant weight in favour of revocation.[54]
3. The Tribunal does not accept the Respondent's submission regarding the reduction in weighting because of the Applicant's incarceration. The fact that the Applicant's absence to date has had a negative effect on the children's development increases rather than decreases the importance for the children of resuming direct contact with their father.
4. In his oral evidence, the Applicant's brother Ashley Gray asserted that it was in the best interests of his own children, aged 6, 4 and 1, that the Applicant remain in Australia so that they can have contact with their only uncle as they grow up. The Applicant's brother confirmed that the two younger children were born since the Applicant entered custody and that the Applicant had only met the oldest child once or twice when he was very young. The Tribunal accepts that notwithstanding the Applicant's limited contact with the children, it is in their best interests for the Applicant to remain in Australia so that they have the opportunity in the future to develop a relationship with their uncle.
5. Accordingly, the Tribunal is satisfied that the best interests of the relevant minor children is a consideration which strongly favours revoking the cancellation of the Applicant's Visa. It is a primary consideration under Direction 110.

1. Paragraph 8.5 of Part 2 of Direction 110 provides:

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

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

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

c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

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

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

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

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

1. The majority of the Full Court of the Federal Court has explained that paragraph 11.3 of the former Direction 65, which mirrors the wording of paragraphs 8.5(1) and (2) of Direction 110:

... should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[55]

1. The Applicant has engaged in serious criminal conduct, including conduct specifically referred to in paragraph 8.5(2), namely crimes of a sexual nature against women.
2. The deemed expectation of the Australian community as expressed in paragraph 8.5 of Part 2 of Direction 110 is that a non-citizen who engages in such conduct should not be allowed to remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: paragraph 8.5(3). The Tribunal is satisfied that the expectation of the Australian community is that the cancellation of the Applicant's Visa should not be revoked.
3. The expectation of the Australian community is a primary consideration under Direction 110 in favour of not revoking the cancellation of the Applicant's Visa. Whether or not it is appropriate to act in accordance with that expectation is a matter to be determined having regard also to each of the other considerations. In weighing the expectation of the Australian community against other considerations the Tribunal may consider all of the circumstances of the Applicant's case.

OTHER CONSIDERATIONS - PARAGRAPH 9 OF PART 2 OF DIRECTION 110

1. Paragraph 9.1(1) requires decision-makers to be:

... mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

1. In this case the Applicant does not claim that his circumstances enliven Australia's non-refoulement obligations and the circumstances do not suggest such a claim.
2. On the current facts, the immediate consequence of a decision not to revoke the cancellation of the Visa is that the Applicant will be liable for removal from Australia to New Zealand as soon as reasonably practicable, and pending removal, will remain in immigration detention under section 198 of the Act. The Tribunal also notes that once removed the Applicant will be subject to indefinite exclusion from Australia.[56]
3. The consequences of removal for the Applicant are matters which form the subject of other considerations under Direction 110. However, incarceration in an immigration facility is a detrimental consequence in itself, and the Applicant's forced removal from Australia is likely to exact a significant emotional toll on him.
4. These matters are considerations which favour revocation, but they are an expected consequence of the application of the law and warrant only moderate weight.

1. Paragraph 9.2(1) of Part 2 requires that:

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

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

1. any social, medical and/or economic support available to them in that country.

1. The Applicant has expressed his concern that he would face significant impediments if returned to New Zealand. He stated:

If I were deported to New Zealand, it would be very difficult for me to start again. I have no support system in New Zealand, with no family members living there that I speak to (I am estranged from my sister completely). There are limited career options and starting my business again from scratch is not an option there with no help, no connections and no finances from which to grow a business.

1. The Tribunal is satisfied that the Applicant would not face any substantial language or cultural barriers in establishing himself in New Zealand.
2. As a citizen of New Zealand, the Applicant would have access to the social, medical and financial support available to other citizens in that country, which is accepted as comparable to the support available in Australia.[57]
3. The Applicant is 47 years old and the evidence suggests that he is in good physical health. He stated in his undated witness statement that:

While in detention, I have become a lot healthier and today. I weighed in at 88Kg having arrived into detention weighing 105kg. I have achieved this through health diet and fitness[58]

1. The Tribunal accepts that paragraph 9.2(1) requires a consideration of all aspects of the Applicant's physical wellbeing, including '... the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury'.[59] In this respect the Tribunal notes that the Applicant has implied some psychological vulnerability in relation to a return to New Zealand. He stated:

New Zealand was a traumatic place for me. I was sexually abused by my sister, which is why I have no relationship with her. I was also physically abused by my father.

1. The Applicant acknowledged that he had managed to forgive his father and they shared a positive relationship before his father died[60]. He also acknowledged that he has developed a more robust mental health since being incarcerated, at which time he said his 'mental health was in a bad way'. He stated:

My time away in prison and detention has brought to light areas in myself that needed nurturing. I have adapted by being resourceful, patient, forgiving and organised to be a better person than before.[61].

1. To the extent that a return to New Zealand may lead to some mental health issues, it is noted that New Zealand has a similar health care system to that in Australia, and there is no evidence indicating that the Applicant would be unable to access appropriate mental health services in New Zealand.
2. The Applicant has transferrable skills. He is a trained myotherapist. He has worked extensively in the entertainment industry in Australia and as a dance teacher. He has expressed an intention to become involved in the construction industry,he has some work experience and has completed some certificate courses while in prison[62]. In addition, he is not without some financial means. He stated in his undated written statement that:

I have funds available to me to help get on my feet, because Tash bought my share of the family home in Sunshine. She now owns it outright. She paid me about $180,000 for my share, the balance of which will be available to help me once I am released[63].

1. The Tribunal also notes the support likely to be available to the Applicant as a returning prisoner to New Zealand in accessing benefits and employment and finding suitable short-term accommodation under the Returning Offenders (Management and Information) Act 2015 (New Zealand) ('ROMI Act').[64]
2. The Tribunal accepts that a lack of support from family and friends would create some initial difficulties for the Applicant in establishing himself in New Zealand but such difficulties are likely to be temporary and he would be able to establish himself and maintain basic living standards consistent with what is generally available to other citizens of New Zealand. These initial difficulties warrant the Tribunal giving this consideration moderate weight in favour of revocation.

1. Paragraph 9.3(1) of Part 2 of Direction 110 requires:

Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. There is no evidence that the removal of the Applicant from Australia would have any significant impact on Australian business interests or would compromise the delivery of a major project or important service in Australia.
2. Accordingly, the Tribunal gives this consideration no weight.

1. The considerations specifically referred to in paragraph 9 are not exclusive. The Tribunal is not limited in considering other relevant matters and has a broad discretion to do so.[65].
2. The Applicant has not raised any other specific consideration, and the Tribunal is satisfied that all of the matters relevant to the Applicant's application have been considered in the context of the considerations specified in Direction 110.

1. In Gaspar v Minister for Immigration and Border Protection,[66] North ACJ elaborated on how to approach the exercise of the discretion under section 501CA(4)(b)(ii) of the Act:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.

1. Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations 'appropriate weight'.[67] Paragraph 7 of Part 2 of Direction 110 provides guidance on how relevant considerations are to be assessed. It states that primary considerations should generally be given greater weight than the other considerations, but one or more primary considerations may outweigh other primary considerations.
2. There are two primary considerations weighing in favour of not revoking the cancellation of the Applicant's Visa.
3. The protection of the Australian community is a primary consideration under Direction 110 and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. The nature of the Applicant's past conduct was very serious and resulted in significant emotional and psychological harm for the victim. The Tribunal is required to give priority to protecting the Australian community from such harm. In assessing the weight to be given to this consideration it is important to note that the Applicant represents a low risk of re-offending. Because of the low risk the Tribunal gives this consideration less weight in the overall assessment than other primary considerations.
4. Secondly, the deemed expectation of the Australian community as expressed in paragraph 8.5 of Part 2 of Direction 110 is that the Applicant should not be allowed to remain in Australia. because he has engaged in serious criminal conduct, being a crime of a sexual nature against a woman.
5. In assessing the weight to be given to this consideration, it is relevant to consider the nature and seriousness of the Applicant's past offending,[68] the Applicant's personal circumstances and the likelihood that he will re-offend if he is able to remain in Australia.[69]
6. The Applicant has lived in Australia for 29 years; his entire adult life. He is not an habitual criminal or a repeat offender. His offending was a single offence and he has otherwise lived a pro-social life. The single count of rape for which he was convicted is a very serious offence but there were some moderating factors related to its seriousness which were recognised by the criminal court. The Applicant's principal moral culpability relates to his abuse of the trust relationship between a myotherapist and patient. He has shown that he recognises the wrongfulness of his conduct and he has accepted his guilt. He has expressed remorse for the victim. He worked as a myotherapist for 3 years while awaiting trial without further incident and has indicated that he is not intending to continue to practice as a myotherapist if he remains in Australia. The weight of professional opinion is that he is a low risk of re-offending and he has shown that many Australian people support him staying in Australia.
7. Having regard to these considerations, the Tribunal is satisfied that the deemed expectation of the Australian community as expressed in paragraph 8.5 of Part 2 of Direction 110 should not be determinative of the Applicant's revocation application. It is an important consideration but one warranting moderate weight in the overall assessment.
8. There are significant considerations which favour a decision to revoke the cancellation of the Applicant's visa. Of these, two are primary considerations.
9. First, the Applicant is a long-standing resident who has strong and enduring ties to the Australian community. He has lived in Australia all of his adult life and has made a positive contribution to the community as a father, a teacher and entertainer, as a therapist and as a business owner. He identifies strongly with Australia and has widespread support from members of the community. The strength, nature and duration of the Applicant's ties to Australia warrants substantial weight in favour of revocation.
10. Secondly, the Applicant is the father of two minor children; his daughters ET and AK. If the Applicant were removed to New Zealand, it would result in the permanent separation of the Applicant from his daughters. The Applicant is now divorced from the children's mother and she has indicated that she intends to remain in Australia. Although communication could be maintained by electronic means and through occasional visits, this is likely to be attended by a continuation, if not exacerbation, of the emotional effects on the children resulting from the Applicant's incarceration. The emotional development of both daughters is likely to be adversely affected if they are denied direct physical contact with their father as they grow and develop. It is in their best interests for the cancellation of the Applicant's Visa to be revoked. It is also in the interests of the Applicant's brother's children to have the opportunity to develop a relationship with him as they grow up. This consideration warrants significant weight.
11. There are other considerations which favour revocation, such as the legal consequences of removal. The enforced removal of the Applicant to New Zealand is a legal consequence of the cancellation of the Applicant's Visa. It will involve some continuation of the Applicant's detention pending removal and will cause him some initial difficulties in establishing his life in New Zealand. These considerations are not trivial matters and warrant some consideration, but they are not primary considerations under Direction 110 and the appropriate weight to be accorded to them is substantially less than for the primary considerations.
12. In reaching a decision in this matter the Tribunal is required to do more than simply conduct a calculation of the net weight of the competing considerations. It is ultimately a task of an evaluative nature.[70] Deputy President Boyle described this in Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs as a requirement that the Tribunal 'give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked'.[71]
13. In weighing up the considerations for and against revocation the Tribunal is conscious of its responsibility to protect the Australian community from the risk of harm. That duty is expressed to be its highest priority. As an extension of this responsibility, the Tribunal is required to accept that the community expects it to remove persons from Australia who commit serious crimes. This is reflected in Principles 5.2(1)-(4) of Direction 110. However, Direction 110 does not mandate those considerations as the only matters required to be considered. Direction 110 requires the Tribunal to also consider the nature and extent of the Applicant's involvement with the Australian community and to look at the implications of his removal for his family and especially his minor children. The Direction clearly contemplates cases in which those matters might outweigh the community safety concerns. The Tribunal is satisfied that this is one such case.
14. Although the Applicant's crime was very serious, the Tribunal is not satisfied that the nature of his conduct or the harm that would be caused if it were repeated meets the threshold of seriousness contemplated by Principles 5.2(7) and (8), that is that they be so serious that even strong countervailing considerations are not sufficient to warrant revocation. The Applicant committed a single crime. The criminal court recognised that his offending conduct was at the lower end of moral culpability, and while the harm inflicted was serious, there were mitigating factors including the absence of physical violence.
15. As for Principles 5.2 (5) and (6), the Applicant is not a person who has only participated in or contributed to the Australian community for a short period of time. His contribution to the community has been extensive and he has lived in Australia for 29 years; his entire adult life. Under Principles 5.2 (5)-(6) he is entitled to be afforded a higher level of tolerance for his criminal offending.

1. There is no doubt the Applicant has committed a serious crime which in other circumstances would justify his removal from the country. However, here the evidence establishes that there is a low risk that he will re-offend in the future, and so the Tribunal can be satisfied that there is some scope in the weighing up of competing considerations for other factors to be given some greater relative weight. The Applicant has committed one crime. He has otherwise been a good member of the community. Many Australian citizens have come forward to confirm that this is the case. He has two young daughters who would likely suffer for the rest of their childhoods from the absence of their father if he were deported. In cases involving a greater community threat than in this case that suffering might be justified. In this case it is not. On balance, the Tribunal is satisfied that the factors favouring revocation outweigh those against it.
2. Accordingly, the Tribunal is satisfied that there is another reason why the discretion under section 501CA(4)(b)(ii) of the Act should be exercised to revoke the cancellation of the Applicant's Visa. The correct and preferable decision is to set aside the Reviewable Decision and in substitution revoke the cancellation of the Applicant's Visa.

Pursuant to section 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision of the delegate of the Respondent of 30 April 2025 and in substitution revokes the cancellation of the Applicant's Special Category (Class TY) (Subclass 444) visa under section 501CA(4) of the Migration Act 1958 (Cth).

Dushan Nikolic and Rayan Hazim of Carina Ford Immigration Lawyers

David Brown of the Australian Government Solicitor

Statutory Declaration of John-Douglas Norman Jacob Gray

Bundle of certificates and qualifications of the Applicant (14 pages)

Bundle of photos of the Applicant with family and at community events (24 pages)

Statutory Declaration of Natercia Patricia Azevedo Gray

Citizenship Certificate of Natercia Patricia Azevedo Gray

[10] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, [64] per Colvin J.

[11] See Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583, [17].

[14] Minister for Home Affairs v Stower [2020] FCA 407 at [45]- [54]; Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667, [111].

[16] DPP v Mokhtari [2020] VSCA 161, [41].

[17] [2022] FCAFC 70; (2022) 293 FCR 634 [74], citing the High Court's decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-5.

[18] The Queen v Keenan [2009] HCA 1, [132].

[35] Exhibits A,4, 6,7, 8, 9, 10,11, and 29.

[55] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75]-[76]; see also Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; (2023) 297 FCR 662 at [31]-[35].

[56] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]- [14] per Feutrill J.

[57] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [44] and [68]-[69]; and Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301 at [101].

[59] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].

[64] SZSS and Minister for Home Affairs (Migration) [2018] AATA 4079 at [240], and ZTGP and Minister for Home Affairs (Migration) [2018] AATA 3518 at [148]-[149].

[65] See _Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair_s (Migration) [2022] AATA 1967 at [223].

[66] [2016] FCA 1166 at [38].

[67] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

[68] JWKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 21.

[69] KCCD and Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5145, LMCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4967 and QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4431.

[70] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35].

[71] [2023] AATA 4184 at [122];