Marsh and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 386 | Case summary

Marsh and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 386 | Case summary | Zoe

[77]

I reject Mr Marsh's contentions that I may view his offending as being other than a crime of a sexual nature against children, or that the circumstances in which the crime was committed and detected amount to entrapment, or quasi-entrapment, that in any way reduces the inherent seriousness of the offending.
In circumstances where the statute creating the offence expressly establishes that it does not matter for the purpose of the offence that the victim is a fictitious person represented to the accused person as a real person, I consider that I would be in error to accept a submission that the fact that Mr Marsh sent the image and video to a police officer and not a real child reduces the seriousness of the offence or re-characterises the offence as something other than an offence of a sexual nature against a child. I view that aspect of the offence as amounting to an essential fact on which the conviction was based that I may not impugn, in that it is a key component in establishing the offence that it does not matter that the victim was a fictitious person. The instruction of the Federal Court and Full Federal Court in HZCP binds me in this regard.
Furthermore, even if it was open for me to take into account the fact that the recipient of Mr Marsh's indecent electronic transmissions was a police officer and not a real child as a circumstance of the offence potentially going to the seriousness, I would not in fact view that feature of the circumstances as a matter as a feature that reduces the seriousness of the offending. While it is true that there was not in fact a child victim of Mr Marsh's conduct it is perfectly clear why Parliament has established offences of this nature in terms that expressly permit such offences to be policed through the method used in relation to Mr Marsh, given the nature of the potential harm to children who are the victims of sexual offending of this kind, and the anonymity introduced by electronic communications. It is clear that Parliament has identified a clear need to deter persons from using electronic communications to transmit indecent matters to children, and authorised from the outset in establishing the offence the form of policing that detected Mr Marsh's conduct. This, in my view, simply reflects the gravity of the conduct and potential harm the offence seeks to guard against. I do not view the fact that the transmission of indecent matter by Mr Marsh was received by a police officer rather than a real child is relevantly exculpatory, mitigatory or reduces the seriousness or nature of the conduct as a sexual offence against a child.
I note the evidence in the material before me suggesting Mr Marsh had an inclination towards impulsive behaviour and had symptoms of depression and anxiety at the time of the offending. I have considered whether an inclination towards impulsiveness, or committing an offence of this nature in the context of depression and anxiety reduces the culpability of Mr Marsh and the seriousness of the conduct. While I accept the conduct is not repetitive or calculated to any degree, I nonetheless consider the conduct remains very serious even though it was committed by a perpetrator with an inclination towards impulsivity. I consider that Mr Marsh's depression and anxiety at the time is a context and not an explanation for the offending. I am not satisfied that these features reduce the inherent seriousness of the conduct.
I view Mr Marsh's offending as very serious.
Turning to the other relevant matters in considering the nature and seriousness of Mr Marsh's offending, clause 8.1.1(c) provides for an exception for crimes of a sexual nature against children in taking into account the sentence imposed by the court, and I am therefore directed not to do so. In any event, I note that the court remarked that the seriousness of the offending was such that the only appropriate disposition was a sentence of imprisonment, being positively satisfied that the offence was too serious for the sentence to be suspended in any capacity.[26] I further note the court observed:

[79]

The nature of the offending did not involve the offending impacting on a specific victim. While that does not re-characterise the offending or reduce its seriousness, it is the case that there has been no impact on the offending on an identifiable victim to be taken into account for the purposes of cl. 8.1.1.(d) of the Direction.
This is the only significant matter on Mr Marsh's criminal antecedent reports, there is therefore no trend of increasing seriousness, and nor is the seriousness of the offending increased through the cumulative effect of repeat offending. I take that into account.
I am to take into account whether there is evidence that Mr Marsh has provided false or misleading information the Department, including by not disclosing prior criminal offending. Mr Marsh failed to disclose the minor criminal matters appearing on his United Kingdom criminal antecedent report by answering in the negative the question on his incoming passenger declarations 'do you have any criminal convictions'.[28] This matter is not addressed in the Respondent's statement of facts issues and contentions and were not raised with Mr Marsh during the hearing. Mrs KM did however respond on Mr Marsh's behalf to an invitation from the Department to comment on that information. The response was that Mr Marsh did not know he needed to disclose those convictions because he considered them to be 'spent'.[29]
While it would appear that the statements Mr Marsh made on his incoming passenger cards were false, and in that regard do not reflect well on Mr Marsh at the time the declarations were falsely made, given the low-level nature of the convictions imposed, as demonstrated by the penalties imposed, I do not consider this feature of the evidence impacts on my overall assessment of the nature and seriousness of Mr Marsh's offending and other conduct.
There is no evidence Mr Marsh has previously been warned or otherwise been made aware, in writing, about the consequences of further offending on his migration status, and nor was the offence committed outside Australia requiring an assessment as to whether it is also criminal in Australia.

[85]

I have taken into account the observations of the sentencing judge as to the likelihood of Mr Marsh engaging in further criminal conduct of a similar nature. The sentencing judge was prepared to treat the offending as being out of character, found there were factors suggesting Mr Marsh was capable of rehabilitating himself and that his risk of reoffending is low.[34]
In arriving at this view, the sentencing judge had the benefit of a psychological report of Mr Steve Jobson, a forensic psychologist, dated 3 July 2024. Neither the report nor Mr Jobson was made available to the Tribunal. In the course of the hearing I observed that summonses had issued to the District Court of Western Australia and had been returned, but was informed that the report was not in the material provided by the court in response to the summons. Counsel on behalf of Mr Marsh submitted that they had attempted to obtain the report from Mr Jobson directly but had been told it could not be released to Mr Marsh. I am not aware of any objection having been made to the Tribunal's summons, and am not aware of a request for a summon to issue against Mr Jobson having been received by the Tribunal.
In relation to the summons to the District Court, I do not know the circumstances in which such relevant material may not have been retained by the court or considered to fall outside the scope of the summons.
In this matter, both parties are represented by counsel, and in terms of the gathering of potentially relevant evidence I am essentially reliant on them to put relevant evidence before me. No requests were made of me to take further action to attempt to obtain what appears to be a relevant and recent expert opinion.
According to the sentencing judge, Mr Jobson diagnosed symptoms consistent with depression and anxiety, and characteristics suggesting Mr Marsh had a subtype of attention deficit hyperactivity disorder. It is not clear whether Mr Jobson was describing symptoms of depression and anxiety at the time of the offending or symptoms that have arisen as an adjustment to his then and current predicament, or both.
The sentencing judge attributed Mr Jobson to note that Mr Marsh's work in a FIFO capacity had gradually but significantly increased his anxiety and emotional distress, resulting in feelings of loneliness and social isolation, potentially also having impact on Mr Marsh's personal and intimate relationships. Mr Jobson is attributed to have remarked that Mr Marsh had used alcohol as a coping mechanism, and his workplace injury had resulted in further distress and feelings of inadequacy. I interpret the remarks attributed to Mr Jobson to therefore corroborate the submission made on behalf of Mr Marsh that he had depression and anxiety at the time of the offending.
Mr Jobson is attributed to have observed that Mr Marsh had used adult pornography during periods of working away, and turned to chat sites as an outlet as they offered a form of escape. The sentencing judge identified an inconsistency between Mr Jobson's report mentioning Mr Marsh was significantly inebriated at the time of the offending, and Mr Marsh's answers during a police interview to the effect that he was not. Mr Jobson is reported to have observed that people with ADHD, which Mr Jobson considered Mr Marsh to have, experienced difficulty with impulsivity and maintaining attention, leading to impulsivity and risky behaviours.
Mr Jobson considered Mr Marsh was a low risk of reoffending, noting him having maintained a strong pro-social and productive lifestyle, and finding no evidence of sexual attraction to children or adolescents. How that conclusion was reached, including the nature of any applicable psychometric testing or collateral history was not explained.
I do not know the extent to which Mr Jobson's opinions were tested given the nature of sentencing in criminal matters, and certainly there is no indication that any further explanation or elaboration was requested in relation to the statement that there was 'no evidence of a specific sexual attraction to children or adolescents' despite the sentencing Judge's other observations concerning Mr Marsh's persistent attempts to introduce an element of sexualisation in the communication and the ultimate transmission that constituted the offence. I therefore have some reservations in accepting the statement attributed to Mr Jobson that 'there is no evidence of a specific sexual attraction to children or adolescence' particularly given the court was actually dealing with conduct that must be understood to constitute at least some evidence to that effect. I am conscious I have no evidence to the contrary.
Nonetheless, I recognise that the sentencing judge considered there to be a low risk of reoffending and this observation carries weight.
Other information available to me addressing the risk of reoffending are the two reports of Mr Wayne Macintosh. Despite Mr Macintosh being required for cross-examination by the Respondent, he was not produced by Mr Marsh. Counsel explained on behalf of Mr Marsh that a number of attempts had been made to arrange for Mr Marsh to be available to give evidence but he was not available, and the potential consequences of this were well understood. No procedural requests were made of me arising out of this situation. No requests to summons Mr Marsh was received.
There are two reports from Mr Macintosh, one dated 30 July 2024,[35] and the other dated both 30 July 2024 and 18 March 2025. Both reports are in substance the same, indeed the report of 18 March 2025 is essentially a copy of the report of 30 July 2024 which counsel for Mr Marsh told me had been done at his request. The reports document that Mr Macintosh had been consulted by Mr Marsh on 12 occasions between December 2022 and June 2024.
Mr Macintosh documented that Mr Marsh had said that he felt entrapped into the situation and recorded that Mr Marsh had said he didn't believe the girl was 13 years old (the persona was 14 years old), and was over 18. Mr Macintosh documented that Mr Marsh had said he had difficulty empathising or considering the impact on the other party because he now knows the girl was actually a police officer. Mr Macintosh documented that Mr Marsh had said that he felt he didn't deserve a prison sentence.
Mr Macintosh documented that Mr Marsh had denied he had an attraction to children and had never searched for child pornography.
Mr Macintosh confirmed that Mr Marsh had attended psychotherapy, but noted it appeared that his conduct had been an isolated incident and that it was adversely impacted by Mr Marsh's depressed mood and sense of boredom and isolation, and disconnection from family. Mr Macintosh observed there was no suggestion that Mr Marsh had ongoing deviant intent, noting the support of family, full time employment and the personal and financial loss that the experience had come with.
As I explained to Mr Marsh's counsel, there were a number of matters I would have raised with Mr Macintosh had he been available to give evidence. First, I would have enquired whether he considered himself qualified to express opinions addressing criminogenic factors and the likelihood of reoffending, given he is not a forensic psychologist but rather a counselling psychologist. In this regard, I note that the sentencing judge was also aware that Mr Marsh had been undertaking counselling but this counselling had been focussed on immediate and practical issues rather than addressing more deeply rooted issues that may underpin the offending.
Second, I would have enquired whether, and to what extent, he had relied on information other than that given to him by Mr Marsh, noting that obtaining a collateral history before expressing an opinion as to criminogenic factors and the likelihood of recidivism might be considered by some to be important. In this regard, Mr Macintosh's remarks regarding Mr Marsh's belief that the recipient of the indecent transmission was 18 was not something accepted by the jury. Likewise, Mr Macintosh's remarks that there is no suggestion of ongoing deviant intent does not engage with aspects of the offending identified by the sentencing judge pertaining to the multiple occasions where Mr Marsh was informed that the person he was chatting to was a 14 year old girl, and his persistent efforts to introduce an element of sexualisation into the communication. My concern is that Mr Macintosh has expressed recommendations and opinions based on information given by Mr Marsh that are amenable to contradiction once the circumstances of the offending are known, and he has not been able to take that information into account either by consulting Mr Marsh since his sentence was handed down, reviewing the sentencing remarks or indeed by attending the Tribunal for cross examination.
Ultimately, I consider that the expert opinion evidence before me identifying criminogenic factors and assessing the likelihood of re-offending does not, in my assessment, reach a standard that allows me to be confident to accept the opinions offered. While I am not confident to positively accept the expert opinions that the risk of reoffending is low given the reservations I have identified, I am conscious that this does not mean that there is evidence before me to support a finding that the risk is higher.
I place limited weight on the opinions of Mr Jobson and Mr MacIntosh in circumstances where I have identified real questions requiring justification and elaboration from these experts, but I have been unable to explore them. In relation to Mr MacIntosh, I do however emphasise that I recognise that he appears to have been engaged for a therapeutic purpose, not a forensic purpose, consistent with his professional expertise.
In relation to evidence of rehabilitation achieved by the time of this decision, I have not identified any evidence of any specific rehabilitative programs undertaken. I note again that both parties are represented in these proceedings, yet I have no information before me from the Western Australian Department of Corrections. I note and take into account that Mr Marsh received counselling from Mr McIntosh as referred to above, but Mr McIntosh's report does not suggest this counselling was directed towards being rehabilitative of the offending behaviour per se.
In relation to the likelihood of reoffending, Mr Marsh submits that I should find that it is more likely than not that he will not reoffend.[36] This submission is based on the fact that this is Mr Marsh's only offence, he has expressed remorse for his offending, he has undertaken psychological counselling, the sentencing judge had remarked that Mr Jobson had found no evidence of a specific sexual attraction to children or adolescents, Mr McIntosh had found that there is no suggestion he has ongoing deviant intent and no obvious behaviours or evidence to suggest that there is a risk of reoffending, that he has support from his family and friends, and the court accepted the offending was out of character. Mr Marsh also submits that the punitive measures he has already faced render it highly unlikely that he would engage in such behaviour again.
The Respondent notes that there is evidence that the Applicant's mental health issues and alcohol misuse contributed to his offending, but also observed that Mr Marsh is no longer taking any medication for his mental health and has not recently had any counselling or treatment. The respondent draws attention to the remarks attributed to Mr Marsh regarding difficulty empathising given he knows the victim was a police officer, and that I should find that the expressed remorse is more a remorse about the consequences of the offending for himself. The respondent submits there is no evidence of Mr Marsh having participated in any rehabilitative courses while in prison.
Both parties submit that I should find the risk of the applicant reoffending, in the sense of likelihood, is low. I am prepared to make that finding, but not with a high degree of confidence given the limitations I have identified with the expert opinion evidence before me, and the absence of evidence of Mr Marsh participating in any rehabilitative courses. I accept the offending is a single instance, and in that sense appears to be out of character. I accept the submission of Mr Marsh that it is more likely than not that he will not engage in criminal or other serious conduct.
Overall as to the protection of the Australian community, I consider that Mr Marsh's offending is very serious, the harm to the Australian community should it be repeated is very serious and the likelihood that it would be repeated is low, and that it is more likely than not that he will not reoffend. I am not satisfied the likelihood is nil or so remote as to be trivial.

[94]

Mrs KM provided written statements to the Department,[37] and gave oral evidence to the Tribunal.
Mrs KM is an Australian citizen.[38] She explains that she and Mr Marsh met in 1999 in Holland where they were working for the same company. They married in 2001 and lived for a time in Sheffield in the United Kingdom and had their first child. They then moved to Australia where Mrs KM's family would support them, mentioning that Mr Marsh's family in the United Kingdom were not supportive.
Mrs KM explains that she and Mr Marsh set up their life in Busselton and made many close friends. She mentions that Mr Marsh had physical and mental issues in the lead up to the offending. Mrs KM states she loves Mr Marsh and will struggle without him.
In her oral evidence, Mrs KM confirmed that she could access a British passport and could live and work in the United Kingdom if she wished. However, she said she does not intend to join Mr Marsh in the United Kingdom as her work and children are in Australia. She considers she would be likely to visit him. Mrs KM confirmed that she and the children supported Mr Marsh and wanted him to be able to return to Australia.
In his evidence, Mr Marsh expressed concern that Mrs KM would lose the home in which they had resided because his income had been needed to meet the payments, and this topic was also raised with Mrs KM. In his further evidence, Mr Marsh explained that he had operated a business which had foundered during the global financial crisis and he had gone bankrupt. His mother-in-law had secured a mortgage for his and Mrs KM's family home as he was unable to do so, and the payments he and Mrs KM had referred to in evidence as 'rent' were in fact the mortgage payments paid to his mother-in-law. Mr Marsh said that his mother-in-law owned the home, but in her will it has been left to him and Mrs KM.
In her evidence, Mrs KM had explained that she paid $600 per week to her mother in rent and earned about $1300 per week from her full-time work as a nurse. She had also taken in a boarder who pays $200 per week. Her daughter Ms K had recently returned to live in the three-bedroom home with her and the boarder. In her evidence, Ms K had said she contributes to household food and would contribute more when she obtains employment.
In his evidence, Mr Marsh predicted that if the decision was to refuse to revoke the visa cancellation, he and Mrs KM would divorce. Mrs KM was less emphatic in her evidence, but ultimately considered that would be likely if they could not be together.
I find that the impact on Mrs KM of a decision not to revoke the decision to cancel the visa will be significantly adverse. I consider such a decision will introduce financial difficulty for Mrs KM in Australia, although I do not accept it will be such that her accommodation is at risk, having regard to her own income, the financial evidence she gave and the nature of the arrangement with her mother's ownership of the house. I accept that the impact such a decision would be aversive emotionally on Mrs KM, and is likely to result in divorce from Mr Marsh.

[95]

Ms K provided a written statement to the Court,[39] and Mr Marsh provided a series of letters his daughter had sent to him.[40] Ms K provided a further statement to the Department.[41] In her statement to the court, Ms K said she and her father have been close and are still very close, and she had never felt awkward or uncomfortable in his presence. She explained her father had been supportive during her university degree, and the criminal case had put a lot of pressure on her family.
In her statement to the Department, Ms K identified distress at the prospect of her father not being present at any wedding and not being able to see any grandchildren growing up.
In her oral evidence to the tribunal, Ms K elaborated on her statement by explaining that a consequence of her father's absence had been that she had withdrawn from her secondary teaching degree. She said she was unable to remain in Perth to continue her studies without the financial support her father had offered. In elaborating on this, Ms K said she had lived with her grandmother and paid rent and had been both working, receiving social security support and studying, but felt she needed to return to Busselton to be with her mother and was unable to study her course there. She considers she may return to her course at a later time.
In both Mr Marsh's evidence and Ms K's evidence it was recognised that Ms K would be able to acquire a British passport and live and work in the United Kingdom. Mr Marsh said his daughter had the travel bug, and he anticipated she may wish to spend some time with him in the United Kingdom. In her evidence, Ms K agreed that she may travel to the United Kingdom to visit her father.
I accept that Ms K will be adversely impacted by a decision to refuse to revoke the visa cancellation. I accept that she was reliant to a degree on financial support from her father for her study, and the circumstances of his incarceration necessitated her return from Perth to Busselton and has rendered continuing her study more difficult than it would otherwise have been. I do not accept that Ms K's continued study turns on whether or not her father's visa remains cancelled however. Nonetheless, I accept that emotionally and practically, a decision to refuse to revoke the visa cancellation will impact upon Ms K adversely.

[96]

Mr L provided a statement to the court,[42] and to the Department.[43] Mr Marsh was born in the United Kingdom but migrated to Australia as an infant and acquired Australian citizenship on 27 August 2016.[44]
In his statement, Mr L recounts his close bond with his father during his childhood, describing his father as one of his best mates. Mr L also describes the impact on his mother and his sister of his father's absence. He said he did not take up a FIFO job opportunity due to his father's absence and his need to remain close to his mother. He told the Tribunal that he works locally as a concreter.
In his oral evidence, Mr L confirmed he was a dual citizen but had not travelled to the United Kingdom since arriving in Australia as an infant. He said he would visit his father in the United Kingdom, but explained he was trying to set himself up in Australia with his fiancé. He would travel when he had the finances to do so.
I accept Mr L will be adversely impacted by a decision to refuse to revoke the visa cancellation. The nature of the adverse impact is primarily emotional as I accept he and his father are close.
Overall, I consider the impact of the decision of Mr Marsh's immediate family members in Australia will be significantly adverse, with some limited amelioration available through the capacity of his immediate family members to travel to the United Kingdom and visit him. I accept there is some financial adversity, particularly for Mrs KM and Ms K. I accept all members of Mr Marsh's immediate family will be adversely impacted emotionally by his absence. I place significant weight on this consideration as part of the overall evaluative task with which I am engaged.
I must also consider the strength, nature and duration of other ties Mr Marsh has to the Australian community. In doing so I must have regard to how long Mr Marsh has resided in Australia, including whether he arrived as a young child, with more or less weight being given depending on whether the non-citizen began offending soon after arriving in Australia and where the non-citizen has spent time contributing positively to the community, and the strength nature and duration of any family or social links with Australian citizens, permanent residents or people with an indefinite right to remain in Australia.
Mr Marsh migrated to Australia as an adult. He resided in Australia for a significant period of time and raised his family prior to his offending. He contributed positively to Australia through his work and operating his business. I take all these matters into account, demonstrating and confirming that Mr Marsh has strong ties to the Australian community.
I also accept Mr Marsh's evidence that during the period receiving workers compensation, he volunteered at St Vincent de Paul helping sort donations. I also accept that in his local community, he was involved in sporting activities, playing soccer himself and coaching his son's soccer team, and also assisted establishing the local rugby team for school children. I also take these matters into account and consider they demonstrate considerable social links with the Australian community.
I received and considered evidence from a range of other witnesses. Generally speaking, this evidence has demonstrated both Mr Marsh's social links and corroborated the adverse impact a decision not to revoke the cancellation of his visa will have on his immediate family:
- Ms BR: Ms BR provided statements explaining that she is Ms K's best friend and had never felt uncomfortable around Mr Marsh.[45] She said that Mr Marsh always treated her like a member of the family and she always felt safe and welcomed. Ms BR says that not having Mr Marsh in the country will cause stress on his children as the family is very close. Ms BR was called for cross examination.
- Ms NP: Ms NP provided statements.[46] In her statements, she explains she is a family friend, believes Mr Marsh is hardworking, has shown remorse for his conduct and that she has seen first hand the impact of his absence on the family. In her oral evidence she emphasised that she had found Mr Marsh to be very welcoming, outgoing and approachable.
- Ms GB: Ms GB provided a statement stating Mr Marsh has been a supportive family man and good husband.[47] She states he has expressed remorse, and his deportation would have a detrimental effect on his family. Ms GB was called for cross examination but she did not take the Tribunal's phone calls.
- Mr PB: Mr PB provided a statement to the court in advance of Mr Marsh's sentencing.[48] He states he was a school friend of Mr Marsh and they keep in touch. He considers Mr Marsh's offending is out of character.
- Mr TC: Mr TC provided a statement to the court in advance of Mr Marsh's sentencing.[49] He has been a friend of Mr Marsh for approximately 6 years, meeting him on a mine site and becoming friends when they realised they had mutual friends in the UK. Mr TC speaks positively of Mr Marsh's character. He did not give oral evidence in the hearing.
- Ms NB: Ms NB has provided a statement.[50] She is Mr Marsh's mother in law. She expresses support for Mr Marsh in her statement. She was unavailable to give oral evidence to the Tribunal.
- Mr AG: Mr AG provided a statement.[51] He was Mr Marsh's neighbour from March 2013. He describes Mr Marsh's family relationships as excellent. He did not give oral evidence to the Tribunal.
- Mr MS: Mr MS has provided a statement.[52] He has known Mr Marsh for 12 years through Mr Marsh's wife working in his shop. He has observed Mr Marsh to be a loving father and husband, and mentions Mr Marsh's ties to the community through sport. He believes Mr Marsh has nothing to go back to in the UK, and says he does not see why deporting Mr Marsh would be any advantage to Australia as Mr Marsh has informed him that the underlying factors that caused his offence have been addressed. Mr MS did not give oral evidence to the Tribunal.
I consider that the strength, nature and duration of Mr Marsh's ties to Australia are very substantial. In particular, considering the adverse impact of a decision to refuse to revoke the visa cancellation on Mr Marsh's immediate family, I consider this primary consideration weighs strongly in favour of revoking the decision to cancel the visa. The weight of this consideration is further reinforced by recognising that Mr Marsh has established substantial social and family links in Australia, and has contributed positively to the Australian community through his work and involvement in local sport.

[99]

The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction No 110 notes that 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 particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious'.
Paragraph 8.5(3) of Direction No 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the 'norm' expressed in para 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached.
I have found that Mr Marsh's conduct is viewed very seriously under the Direction, and it falls within the conduct identified in paragraphs 8.5(2)(c) of the Direction as an offence of a sexual nature committed against children.
I find that the Australian community would expect that Mr Marsh's visa would remain cancelled on the basis of the expressed norms provided for in the Direction. I consider that the expectation of the Australian community weighs heavily against revocation in the context of the overall evaluative determination I am undertaking.

[102]

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[54]
While this consideration in Direction No 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
- Unlawful status;
- The likelihood of becoming subject to detention and/or removal;[55]
- Refusal of other visa applications and cancellation of other visas;[56]
- A prohibition on applying for other visas;[57] and
- Periods of exclusion and special return criteria may apply.[58]
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[59] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198 of the Act.
Mr Marsh however has already elected to depart Australia and is now in the United Kingdom. The legal consequences of a decision to (affirm the decision) to refuse to revoke the cancellation of his visa will not therefore include unlawful status in Australia, mandatory immigration detention or being subject to a removal process.
Similarly, as Mr Marsh is not in Australia, he cannot engage any non-refoulement obligations. He has not, in any event, made any such claims.
The legal consequences of a decision not to revoke the visa cancellation do however, for all practical purposes, involve permanent exclusion from Australia. In this regard certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for 'permanent' exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.
At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, I mention the decision of Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003.
I understand that Rano has been appealed by the Respondent, but at the time of my decision it relevantly binds me. In that matter, the Court concluded that the applicant's indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa...and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.
As the practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account.

[105]

Again, it must be observed that Mr Marsh is not amenable to removal from Australia as he has taken that matter into his own hands and departed already.
As submitted by the Respondent, as Mr Marsh has returned to the United Kingdom, the relevance of this consideration is questionable. The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked, and I consider it appropriate to consider the evidence available to me addressing any impediments Mr Marsh faces in establishing himself and maintaining basic living standards in the United Kingdom, notwithstanding that those circumstances will not now arise as a result of a future act of removal.
Mr Marsh is 57 years old. He is generally of good health to my knowledge, although I have taken into account that he was identified to have mental health conditions and had previously received counselling and psychotherapy in that regard. I am also aware that at the time of his offending, Mr Marsh had experienced a workplace injury involving his groin, which he elaborated upon at the hearing. I note that by the time of his sentencing, he had returned to work. I understand from Mr Marsh's evidence that the condition he described has not fully resolved, and may not fully resolve, but as he had been able to return to work I consider any functional incapacity arising from that condition has essentially resolved. Mr Marsh told the Tribunal that he no longer takes any medication for his mental health.
Although Mr Marsh said in his evidence that he has been unable to see a doctor in the United Kingdom because many doctors have closed lists, I consider his capacity to access health care, including mental health care, is consistent with that generally available to other citizens of the United Kingdom in the United Kingdom. I have no basis to consider that if Mr Marsh requires health care in the United Kingdom he will not be able to access it. Furthermore, I proceed by taking on notice that the nature and quality of the public health system in the United Kingdom is comparable and similar to that available in Australia.
Mr Marsh described his current living arrangements as living in a share house in Sheffield. He indicated he intended to look for work in transport in the coming week, explaining that he would be prepared to move anywhere work was available in the United Kingdom, noting that salaries may be higher closer to London. Mr Marsh said he had enquired about public housing in Sheffield, but been told he did not yet have sufficient connection to the local area to be eligible. He is currently making ends meet using a charitable grant, but I note he spoke about his capacity to secure employment in the near future with confidence.
As for social support, Mr Marsh would be entitled to social security from the United Kingdom (if he needs it) consistently with that generally available to other citizens of the United Kingdom in the United Kingdom.
In relation to family support however, Mr Marsh described circumstances where he is estranged from his parents and adult children in the United Kingdom. I accept from Mr Marsh's description of the circumstances and nature of the estrangement that it is substantial, but it is unnecessary to relate the details. He has not seen his family in the United Kingdom them but he understands his parents, for example, are aware he has returned. In these circumstances, I consider Mr Marsh is likely to be socially isolated and potentially struggling to adjust to his new circumstances without family or social support.
In relation to the impediments Mr Marsh is currently facing therefore, I accept that being isolated from his family in Australia is no doubt distressing and requires adjustment, and that amounts to an impediment. I give some weight to this consideration in favour of revoking the visa cancellation. However, in terms of Mr Marsh maintaining basic living standards, and accessing such medical and economic support he may require, I do not consider he faces any impediment.

Marsh and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 386 (17 April 2025)

At a glance

Court

Decision date

Source

Judgment (126 paragraphs)

Marsh and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 386 (17 April 2025)