(b) the person does not satisfy the Minister that the person passes the character test."

1. Sections 501(6)(e) of the Act provide that a person does not pass the character test if

"a court in Australia or a foreign country has:

(i) convicted the person of one or more sexually based offences involving a child; or

(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction."

1. On 12 January 2018, the Applicant was convicted in the Melbourne Magistrates' Court of an indecent act with a child under 16, and associated offences.[2]
2. The Applicant neither disputes the fact of these convictions, nor that he fails to pass the character test.[3]
3. Having regard to the above, I reasonably suspect that the Applicant does not pass the character test on the ground set out in section 501(6)(e).
4. The issue before the Tribunal is therefore whether the discretion to cancel the Visa should be exercised.
5. The hearing was held on 2 February 2026. The Applicant was represented by Mr Bryn Overend instructed by Mr Dushan Nikolic of Carina Ford Immigration Lawyers, and the Respondent was represented by Ms Samantha Liddy of Sparke Helmore.
6. The Applicant gave evidence by Microsoft Teams from the Melbourne Immigration Detention Centre. He generally answered questions in a direct and responsive manner. The focus of the Respondent's questions was the Applicant's offending, leading to his convictions on 12 January 2018,[4] for various child related sexual offences. The Applicant accepted that his conduct was wrong but said that his non-compliance with his medication regime at the time had seriously impaired his judgement.
7. The Applicant called his sister, Ms NR. Her evidence was helpful in that it explained the various supports, both family and medical, that have operated to manage the Applicant's ongoing treatment for the last 9 or so years.
8. The Respondent did not require any other witnesses to be called by the Applicant.

1. The Applicant was born in the United Kingdom in 1973.[5] He is 52 years old. He is a citizen of the United Kingdom.
2. The Applicant first arrived here on 28 November 1974.[6] He came here with his parents and 2 sisters.[7] The Applicant was 1 year old at the time. The Applicant has remained in Australia ever since that time, aside from occasional trips overseas.[8]
3. The Applicant's parents separated in the mid-1980's, but he remains in contact with them.[9]
4. In about 1996, when he was 23, the Applicant was diagnosed with schizophrenia.[10] He was involuntarily admitted to Dandenong Hospital on 2 occasions for treatment.[11] The Applicant was given medication, but he did not like the side-effects.[12] These effects included weight gain and lethargy.
5. The Applicant worked as a glazier.[13]
6. In about 2005, the Applicant married Ms LD.[14]
7. In 2005, the Applicant's son, Mr LB, was born.[15]
8. In 2009, the Applicant's daughter, Child A, was born. She is now 16 years old.
9. On 27 July 2010, the Applicant was granted the Visa.[16]
10. The Applicant's marriage was troubled. It broke down in about 2010. The Applicant's children remained with their mother, although the Applicant continued to have ongoing contact with them.[17] The Applicant's former wife, Ms LD, has provided a statement of support for the Applicant.[18]
11. On 4 September 2015, the Applicant received a Traffic Infringement Notice for speeding. He was fined $80 and lost 2 demerit points.[19]
12. In 2016, the Applicant's sister, Ms NR, was the victim of a home invasion.[20] She developed PTSD. She was an important support for the Applicant and holds a power of attorney for him. At around the same time, the Applicant's mother was diagnosed with ovarian cancer.[21]
13. On 6 June 2016, the Applicant set his car on fire and made a false report to police that he was the victim of an arson attack.[22] A police brief states:

At the time of the incident, the accused was unemployed and his sole income was via Centrelink benefits which mean he was struggling to make ends meet. He had been the owner of a 2003 Holden Combo van white registration [redacted] for approximately 3 years and had been given this vehicle by an unknown friend. The van was close to being un-roadworthy and suffered from and suffered from a bad exhaust leak which the accused couldn't afford to fix.

The vehicle was insured through RACV for approximately $10,000.

On Sunday the 5th of June 2016 at 6:22 PM, the accused drove in his motor vehicle [redacted] to the Shell Service Station on Belgrave-Gembrook Road, Emerald and filled up a red 10 litre plastic jerry can with $5.01 of unleaded fuel (Exhibit 1 & 2).

On Monday the 6th of June 2016 approximately 6:20 AM, the accused drove his motor vehicle [redacted] to the Elephant Rock lookout located on Beaconsfield-Emerald Road, Emerald and parked there. He removed his bicycle from the rear of the vehicle, before dousing the entire vehicle in the petrol he had purchased the previous night and set the vehicle alight (Exhibit 3).

The accused threw the red jerry can into the bushes behind the Elephant Rock and started riding his bike towards his home address along Beaconsfield-Emerald Road. Along the way he threw the lighter he had used to ignite the vehicle into the bushes.

Approximately 6:50 AM, witness [redacted] was driving towards Emerald on Beaconsfield-Emerald Road when he observed the accused's vehicle engulfed in flames. [Redacted] contacted triple zero and continued driving approximately 1.5 kilometres up the road where he observed the accused riding his bike. [Redacted] asked he accused, "Everything alright mate?" t which the accused replied, "Just heading to Emerald".

The accused travelled via back roads to his home address, and once home he threw out his ripped & dirty jeans that he was wearing in the bin, and put his dirty shoes into the washing machine.

At 7:51 AM, the accused received a text message from his friend [redacted] asking him if his vehicle was at home because she had seen one very similar to his at the Elephant Rock. [Redacted] then sent the accused photo's of his vehicle on fire. The accused sent back "The front still looks ok" with a winking emoticon (Exhibit 4).

Approximately 9:00 AM, the accused attended the Emerald Police Station and reported his vehicle stolen & provided a statement detailing a fabricated story about his vehicle being stolen (Exhibit 5). Whilst the accused was at the Police Station he contacted RACV and lodged an insurance claim for the vehicle (Exhibit 6).

Senior Constable [redacted] and Detective Senior Constable [redacted] attended at the accused's home address where they observed a mountain bike, matching the description given by [redacted] and wet clothes hanging on the clothesline.

The accused was arrested whilst he was still present at the Emerald Police Station and a recorded interview was conducted. During the recorded interview, the accused made full admissions to setting the vehicle alight and agreed to accompany investigators to the crime scene and gave consent for investigators to search his home address (Exhibit 13).

BROOKS accompanied Police to the crime scene and pointed out the location of the red jerry can and attempted to point out the location of the lighter he used, but was unable to find it (Exhibited 7 & 8).

BROOKS then accompanied Police to his home address at [redacted] where they located the following items -

1. a pair of white Nike Runners (Exhibit 9)
2. a pair of ripped & wet dark blue jeans (Exhibit 10)
3. a black jumper (Exhibit 11)
4. a set of car keys (Exhibit 12)
5. One (1) apple iPhone (Exhibit 4)

BROOKS made full admissions to these items of clothing being worn by him during the incident."[23]

1. The Applicant says that at this time he was struggling with his medication and he eventually stopped taking it.[24] Without his family support and without his medication, the Applicant says that he struggled to manage:

"This was the start of a period in which my symptoms were not managed and I struggled to manage my basic life needs like rent and food. While I do not want to make excuses for my behaviour, without my medication and much family support, I made several errors of judgement which I regret very much.

In June 2016, I set my car on fire. It was unroadworthy and I could not afford to fix it. I was only on Centrelink benefits at the time. When the police interviewed me, I fully cooperated and told them I had been hoping to make an insurance claim. This was not something I'd ever done before - I had never done anything like this in my life - and I realise that it was reckless and a dangerous thing to do. I was charged and convicted of attempting to obtain financial advantage by deception and making a false report to police."[25]

1. Between about August and October 2016, the Applicant committed offences involving a 15 year old girl.[26] The Applicant says that this was during the period that he was non-compliant with his medication.[27] The particulars of his offending are reported as follows:

The accused in this matter is a 43 year old male and was born on the [redacted date] 1973.

The complainant is a 15 year old female, and was born on the [redacted date] 2001. At the time of the offences the complainant was aged 14 and 15 years old.

The complainant and the accused first met at the [redacted location], shortly after they met at the [redacted location], the complainant began working at [redacted cafe] in [redacted suburb], Victoria. She began working there in approximately August 2016. The accused worked as a casual delivery driver at the same store.

After two months of working together the accused has started to give the complainant hugs at work and they have started to communicate on the internet using the 'Facebook Chat' application. The chats between the two ranged from general chat about what was going on at work and her school, to general discussions about sex and sex acts.

Approximately 2 months after the complainant began working at the Café, the accused and complainant were working together at the Café, the complainant told the accused she's; "'not very happy with things at home.". The accused replied; "you just need a hug". The complainant said she didn't want a hug, and the accused said, "let me kiss you on the cheek." That complainant said; "no I'm fine" because she did not want him to kiss her cheek. The accused again said; "I'll just kiss your cheek." The complainant did not know what to do so just let the accused kiss her on the cheek.

The accused leaned in to kiss the complainant on the cheek, but moved in further and attempted to kiss her on the mouth. The complainant moved away and the accused kissed her on the corner of the mouth.

This made the complainant feel uncomfortable and she did not like it.

About 1 month after the 1st incident, the complainant and accused were again at work together, the accused gave the complainant a hug, as he was hugging her, he placed his hands on the top of her bottom, grabbed her by the waist and leaned in and tried to kiss the complainant on the mouth.

The complainant pulled her head away, and the accused kissed her on the corner of the mouth.

This kiss was without the complainants authorization.

In approximately October 2016, the complainant and accused were at work, the accused was playing with the complainants hair throughout the shift and making suggestive comments to her.

As the complainant finished her shift and was leaving work, the accused gave her a hug. During the hug the accused placed his hands on the complainants lower back and the top of her bottom.

The accused then moved his hands up the complainant's back and pulled on her bra strap, on the outside of her clothing, he pulled the bra back and let it go and it slapped against the complainant's back.

This made the complainant uncomfortable and scared, the complainant did not know if the accused was trying to remove her bra, or what his intentions were.

On Wednesday the 2nd of November 2016, shortly after this incident, the complainant sent the accused the following message on Facebook:

"mark ... i really think i get this out.... i feel really uncomfortable sometimes around you to the point i want to get away because i feel like you're looking at me all the time.... the comments you make weird me out.... the way you touch me makes me edgy.... i play along with you because its fun but you can get to the point where I don't feel safe around you like you might rape me :( i really hate saying this but [redacted] has noticed this and this is why he isn't letting you in the kitchen.... i have nothing against you mark at all.... you're a fun guy..... but sometimes that fun guy fades away into a pervert and even a pedophile..... and i don't want that from you.... when i met you you were so nice..... can i please have that mark back? not the mark that tells me i have great breasts"

2) Groom Child Under 16 For Sexual Offence Procure Minor for Making/ Prod Child Porn Intnt Distrib Intimate Image of Anor Psn (4 Charges)

The accused and complainant have communicated with each other through the 'Facebook' Chat application. The accused and complainant discussed general things such as work and school. The conversations were also of a sexual nature, with the accused and complainant discussing, pornography, sex, and contraception.

The accused through the aforementioned chat has stated to the complainant that he wanted to have sex with her, and he wanted to do dirty things to her.

The accused told the complainant to perform oral sex on her boyfriends, friend, in front of her boyfriend. The accused then stated to the complainant that he likes to watch other men have sex with his partners in front of him. The accused has told the complainant to film herself having sex with her boyfriend and send it to him. The complainant refused.

The accused has then stated that he will film himself having sex and send it to the complainant.

On the 10th of October 2016, the complainant sent the accused a photograph of herself, the accused then forwarded the image to [redacted] and stated:

"Happy Belated Birthday, this is my 15yr old friend who just sent me this."

On the 14th of October 2016, the accused forwarded an image the complainant had sent him; he forwarded it to [redacted] and stated: "Just sent me this from school"

On the 16th of October 2016, the accused has engaged in sexualised conversation with the complainant via Facebook messenger, through this conversation the accused has told the complainant to attend school with no underwear on and bend over the table to the class could see. The complainant told the accused that she did this and sent him a photo of herself in her school dress.

On the 15th of October 2016, the accused engaged in "phone sex" with the complainant. Through the aforementioned conversation with accused sent the complainant 2 videos, the 1st a video of him urinating and the 2nd a video of him masturbating. The accused also sent the complainant a photograph of his penis. On the 16th of October 2016 he stated to [redacted]: "Had phone sex with her last night, mind blown!"

On the 16th of October 2016, the accused has sent the following messages to a friend, [redacted]:

• "She's letting me give her instructions, tomorrow she is "panty free" @ school!"
• "Pre our agreement, apparently her dress is so short anytime she bends over the whole world can see her bum"
• "I've been conversing with her this morning, she has removed her knickers has been instructed to flare out her dress and sit flat against the cold hard plastic on her school chair(legs open)"

The accused has asked the complainant to send him naked photographs of herself. The complainant has not done this, but has sent the accused approximately 8 photographs, in various sexual poses and in various clothing. The complainant did not send any naked photographs.

On the 17th of October 2016, the complainant sent the accused a photograph of herself in underwear. The accused forwarded the image to [redacted], via Facebook. This image was also located on the accused's mobile phone and computer.

On the 23rd of October 2016 the complainant has sent the accused a photograph of herself in her underwear and a low cut top, in a suggestive pose. The accused has then forwarded the image to [redacted], via Facebook.

On the 28th of October 2016 the complainant sent the accused 2 photographs of herself, the 1st in a low cut top in a suggestive pose and the 2nd with the front of her pants pulled down to nearly expose her vagina. The accused has then forwarded the image to [redacted], via Facebook. Images 6 & 7 were also located on the accused's computer.

On the 8th of December 2016 the complainant attended the Dandenong Multi Disciplinary Centre and a VARE statement was obtained from the complainant. The complainant provided her Facebook login details to Detective Senior Constable [redacted], DSC [redacted] downloaded the complainants Facebook chat with the accused.

On the 27th of December, 2016 a search warrant was executed at the accused's residential premises situated at [redacted address], where mobile phones and computer equipment were seized. DSC [redacted] arrested the accused was arrested in relation to the matter and conveyed him to the Emerald Police Station for interview.

The accused was interviewed by DSC [redacted] and DSC [redacted].

The accused's phone and computer was analysed by Digital Forensic Analyst, [redacted] of Victoria Police E-Crime

Detective Senior Constable [redacted] viewed the material extracted from the accused's phone and computer, and located 7 x photographs of the complainant on the accused's Huawei Mobile phone. The same 7 images that the accused sent to [redacted]. On the accused's computer 4 x photographs of the complainant were located. Being 4 of the same images that were located on the mobile phone.

In accordance with the search warrant provisions, the accused provided his Facebook login details to DSC [redacted]. DSC [redacted] accessed and downloaded the accused's Facebook Data, including images and chat.

The accused stated he met the complainant at the [redacted location], and later she started working at the '[redacted cafe]' he worked at as a driver.

The accused admitted the Facebook conversation was a 'little bit intimate'. The conversations were a little bit suggestive. The accused admitted; "she would send me photos of herself". However the accused stated, I made sure I wasn't crossing the line in my respect. She's a 15 year old girl sending me photos." The accused admitted the Conversation was of a 'sexual nature'.

The accused stated "I would give her instruction". And I Told her to 'remove her knickers'.

The accused admitted to sending the complainant photos of his genitals. This was in an attempt to make her feel better. The accused admitted that the complainant had sent him photographs, but she had always been clothed. And the accused was the only person who had sent naked photographs.

The accused asked the complainant to pull the front of her shorts down and send him a photo. had sent naked photographs. The accused asked the complainant to pull the front of her shorts down and send him a photo.

In relation to touching the complainants bottom, the accused denied all allegations, "I never touched her bum at all".

In relation to touching the complainant's bra, the accused stated, "Oh I guess it was an accident". The accused then stated; "just for a laugh, you just like pull on it, and it slaps back"."[28]

1. The particulars set out above were provided in correspondence from the Respondent to the Applicant dated 6 May 2021. The particulars appear to correspond to the details of the recorded convictions.[29] There is no dispute that the Applicant entered a guilty plea to all the charges of which he was convicted. No mental impairment defence was formally raised.
2. The question arises, however, as to the provenance of the particulars set out in the Respondent's correspondence, given that no formal record of the Magistrate's Court proceedings is before the Tribunal.
3. There was a dispute between the parties about the exact particulars of the Applicant's offending, to which he entered guilty pleas. The Respondent's letter setting out particulars of 6 May 2021 does not provide a source document. On the other hand, I have no evidentiary basis upon which to cast doubt the accuracy of that letter.
4. In the end, however, I do not think that a great deal turns on a forensic examination of the particulars of the offending. The charges to which the Applicant entered guilty pleas were very serious. Some carried a maximum penalty of 10 years imprisonment.
5. On 14 September 2016, the Applicant appeared in the Dandenong Magistrates Court charged with attempting to obtain financial advantage by deception and making a false report to police. No conviction was recorded, but the Applicant was placed on a 12-month Community Corrections Order.[30]
6. On 28 December 2016, police executed a search warrant on the Applicant's premises. He was arrested and interviewed.[31]
7. Between 23 May 2017 and 30 June 2017, the Applicant was treated for an acute relapse of his schizophrenia. He had been exhibiting "disorganisation, disinhibited and bizarre behaviour over the previous 12 months and possibly longer, apparently since ceasing long-term maintenance risperidone treatment, at some point in the preceding 2 years".[32] This was primarily due to non-compliance with his treatment regime.[33]
8. From 7 July 2017 until 4 May 2018, the Applicant was a patient at Chandler House Community Mental Health Centre, under the care of Dr Nuala Moran, a consultant psychiatrist.[34]
9. On 12 January 2018, the Applicant was convicted, on his pleas of guilty, of various offences including committing an indecent act with a child under 16. He was sentenced to a 24-month Community Protection Order.[35] He is, as a result, a registered sex offender. This entails certain reporting obligations. It also means that his contact with his daughter, Child A, must be supervised.
10. On 8 February 2018, the Applicant granted his sister, Ms NR, an enduring power of attorney.[36]
11. On 25 May 2018, the Applicant was referred to GP, Dr Nasir Bhuiyan, for continuing treatment with an injectable, long-acting, anti-psychotic. This has stabilised his condition. He has continued to regularly attend the practice ever since. He has been compliant with his treatment regime.[37]
12. On 15 June 2020, the Respondent gave the Applicant notice of intention to consider cancellation of the Visa under section 501(2) of the Act ("the 2020 notice").[38] For reasons that the Respondent could not explain, this was not pursued. The Applicant remained in the community.
13. On 4 July 2020, the Applicant's sister, Ms NR, prepared statements of support.[39]
14. On 19 May 2021, the Applicant's sister, Ms NR, prepared a further statement of support.[40]
15. Since February 2022, the Applicant has been employed as a truck driver.[41] He is a valued employee.[42] Prior to that time, he was on a disability support pension.[43]
16. On 23 February 2022, the Applicant's brother-in-law, Mr GR, prepared a Statutory Declaration of support.[44]
17. On 24 February 2022, the Applicant's nephew, Mr RR, prepared Statutory Declaration in support.[45]
18. On 17 March 2022, the Applicant completed a Statutory Declaration setting out his response to the 2020 notice. This states:

"1. I was born [redacted] 1973, in Rochford, Essex, in the United Kingdom. My father is [Mr CB] and my mother is [Ms NF]. Dad is a U.K citizen and mum is an Irish citizen. Both are still alive, and dad is about 75 years old. Mum is about 81 years old. They are both permanent residents of Australia. They have been separated since the mid-eighties.

2. I have two sisters, [Ms NR] and [Ms LL]. Both are married. I am very close to [Ms NR], her husband [Mr GR], their son [Mr RR], who is 23 years old, and daughter [IR]. [Ms NR] lives with her family and our mum. [Ms NR] is now my power of attorney, as I recognise that I need support with administrative and financial decision making.

3. I arrived in Australia on or around 26 November 1974, at the age of one. Aside from a brief trip back to the UK in the mid-eighties, for under a year, Australia has always been my home.

4. I went to high school in Australia, and I went to [redacted school] in [redacted suburb]. I was offered an apprenticeship when I was about 16 and left school to take up that opportunity. I was offered a flat glass apprenticeship to become a glazier. I completed my qualification and completed an apprenticeship around 1994 when I was about 21 years old. I was still living with mum and my two sisters at that time. I have since returned as a cabler and have worked for Telstra and Foxtel on and off as well over the years. I knew in my young adult life that there was an issue with my health, but I did not understand what was going on.

5. In 1996, I was diagnosed with schizophrenia, when I was about twenty-three years old. I was involuntarily placed into hospital where I was diagnosed. This was challenging for me and my family as I was prescribed medication which I had to ingest regularly. They were tablets I put on my tongue and they absorbed into my body. They never agreed with me and I did not like the side effects, but I persisted with them as best I could.

6. I was about 28 when I first volunteered with the CFA and I did that for about three years. With the support of my family, I was able to become a voluntary firefighter at CFA, which I really enjoyed.

7. In about 2005, [Ms LD] and I married, and subsequently had two beautiful children. She is Australian and we met through my brother in law's birthday party. I was single at the time and a couple of weeks later we started dating. We quickly had a son, [LB], born 2005, and then a daughter a few years later, [Child A], born 2009. They are now sixteen and twelve respectively and reside with their mum. In the end, [Ms LD] and I were not a good match, but I did not want to admit to myself that I had made a mistake and we probably both stayed in the relationship too long for the sake of the children. I have to say as well that I was struggling with my medication regime. I put on a lot of weight as a result of the medication I was on at the time. It made me very sleepy as well. After we realised we could not repair the relationship, our marriage unfortunately broke up in around 2010 and we are now divorced.

8. After our separation, [Ms LD] ultimately gained custody of the children. We were fairly amicable though and I would go and visit the children at her place. I was moving around fairly frequently, before eventually buying a house in [redacted suburb], near [redacted suburb], with the support of my family. These years were fairly steady and I was able to work and see my children as often as I could.

9. Things fell apart for me and my family in 2016. In 2016, my sister, [Ms NR], who has always been a wonderful support for me, had a very tough time. She suffered an awful home invasion at her property at [redacted address] in January 2016 and developed PTSD. She was living there with her husband, son and daughter. Our mum, [Ms NF], was diagnosed with terminal Ovarian cancer around that time.

10. Without their full support and as a result of all of the stress, I struggled with my medication regime and ended up coming off my medication. I took myself off it completely. This was the start of a period in which my symptoms were not managed and I struggled to manage my basic life needs like rent and food. While I do not want to make excuses for my behaviour, without my medication and much family support, I made several serious errors of judgement which I regret very much.

11 . In June 2016, I set my car on fire. It was unroadworthy and I could not afford to fix it. When the police interviewed me, I fully cooperated and told them I had been hoping to make an insurance claim. This was not something I'd ever done before - I had never done anything like this in my life - and I realise that it was reckless and a dangerous thing to do. I was charged and convicted of attempting to obtain financial advantage by deception and making a false report to police.

12. My other offending related to a teenage girl I was working with at a pizza shop. I do not make any excuses for my behaviour during this period. I understand that she was a minor and that my actions were wrong and illegal. I understand that I caused her pain. I can only ask the Australian government to look at my entire life and recognise that my behaviour during this period is not reflective of who I am. I love my family - my parents, my sisters and my children. I try every day to be a good son, a good brother and a good dad. My family are very close and tightly knit. We support and look after each other. Since I have been linked in with [redacted] Medical Centre I have not lapsed in my medication. It is my responsibility to attend and I take it very seriously.

13. I have done my best to prove to my family that this was not who I am and that they can trust me not to reoffend or to go off my medication again because I know that when I take my medication, I am most able to make good and sound decisions. I also appreciate that I have limits in what I can look after and, even with my medication, I struggle occasionally with administrative or financial decision-making. I recognise this and, as I said, have appointed my sister [Ms NR] as my power of attorney to help me so that I can stay on track with all my decisions.

14. I now live at [redacted address]. I live by myself and my medication is now much better and more stable. I attend [redacted] Medical Centre once a month and I have an injection. I have been on that medication for at least four years without any issues, I think it is closer to five now.

15. My sister [Ms NR] helps to arrange contact between me and my children and I see them at [Ms NR]'s place. We contact each other weekly by phone at the very least. The nature of my convictions and registered sex offender status means that the supervised contact is necessary. My relationship with my children is great. When they come to [Ms NR]'s we have a Sunday roast. We talk about their lives and what they are doing. I ask my daughter about her artwork. My son has been playing soccer since he was two. He's into sport and soccer and we talk about those all the time. [LB] and I both shaved our heads for my dad a few years ago when dad bad leukaemia.

16. My ex-wife lives in [redacted suburb]. Child A and [LB] go to [redacted school]. I am proud of them and all of their achievements and 1 cannot bear the thought of being in England instead of Australia, with no possibility of watching them grow up. [LB] is 16 now and Caitlin is now 12 years old. I have not told them about this visa cancellation process yet as I am hoping I can spare them the pain and anxiety of worrying about it, if the Department decides not to cancel my visa and give me another chance. I hate the idea of them growing up without being able to see me and would miss them terribly.

17. As for my own mum and dad, my mum lives in [redacted address] on the same property as [Ms NR] but in her own dwelling. Dad lives in a rental in [redacted suburb]. I have dinner with my mum nearly every single night. l am very close to [Mr RR] and [IR] as well. We play music and talk about the week. Mum has sadly been quite unwell with cancer for a few years now. Around the time I was unwell, she was diagnosed and I am so sorry that I was distracted by my own issues at the time, as I was not managing my symptoms.

18. If I had to go to the UK, I would struggle very much to be separated from my sister. My children would never be allowed to see me. I do not think that my ex-wife would facilitate travel so that I could see the kids in a supervised capacity with her. They would not be able to see me until they were adults.

19. My mum's in her eighties. I would not be able to come back to Australia to see her if my visa is cancelled and I am removed from Australia and this is a very sad proposition for me. She doesn't know about the sex-related offending on my record, only the car. I cannot bring myself to tell her about my second set of offending because l am deeply ashamed, and regret what I did. And, I do not want her to blame herself, because my behaviour does not reflect how I was raised or how she treated me. If I go back to the UK, I will miss the last years of her life, and she will be devastated. I cannot imagine mining her last years in this way especially as she has been ill and battling cancer. I ask that the Australian government please take into account the awful impact that my visa cancellation would have on her. She is slowing down a lot and feeling very tired and battling her own health issues.

20. I do not know anyone in the UK. My family are all retired and gone back to Ireland. They are in BlackRock, and around Cork in Ireland. We have lost four family members this year. They are all in different places in Ireland. I do not feel that any of those family members would be able to step into [Ms NR]'s shoes and provide a significant level of support to me. I fell out with some of those extended family members years ago. In any event, no one would be able to step into [Ms NR]'s shoes. She is my power of attorney and helps me with a lot of financial, administrative and practical things. I have until recently been on the disability support pension and [Ms NR] helps me to avoid overspending or going into debt. She is also my emotional rock and I cannot imagine being without her. About three weeks ago, I secured a full-time job in [redacted suburb] where I now work as a truck driver. This is a great step for me and I am keen to do well in the role.

21. If I have to go back to England, it would be very daunting for me to find a rental property, a psychiatrist, a GP, etc. It has taken me years since my diagnosis to be able to reliably manage my illness in Australia but with the support of my family and doctors I feel like I have finally achieved stability. I cannot even begin to think of making those connections again and how I would start or where I would go to get started. The UK is very expensive and I do not know if my family could support me financially if l had to live there - they have already gone to great efforts to set me up in a house right near them but I do not think they could fund my rent in the UK and all of my expenses. I work when I can in glazing or cabling but it is not always easy for me to work on a fulltime basis, especially in this difficult economy and with a criminal record. I do not know if I would have any pension entitlement in the UK or how I would even go about trying to access those over there on my own.

22. I am grateful every day that I did not have to go to prison to serve a sentence of imprisonment and l feel very fortunate that I was able to remain in the community. I have done my best to make a positive contribution to my children's lives and my family 's lives since my offending and to prove to everyone that it did not mean I was a different person - that it was instead a period where I struggled and made a lot of errors in judgement and very poor decisions. I recognise that I need to manage my medication properly because when I am taking regular medication, I have sound judgement, I make sensible decisions and I think things through before I do them.

23. I rely very heavily on my family here to help me with support and they have been amazing, helping me to buy a house to live in nearby, having me around to spend time with them all the time (subject to COVID-19 restrictions over the last eighteen months, but generally we spent a lot of time with each other). l think back on my period of offending as being not in my right mind, and a period when my life fell apart. In my right mind, I would not have offended in this way. My morals and beliefs do not align with what I did. I know what a privilege it is to live in this country and this absolutely is the best country in the world.

24. I ask that the Australian government take all of the above into account and request that my visa not be cancelled - I ask for one more chance to prove myself to the Australian public and community that I can make a positive contribution. I want to stay here to be a part of my children's lives and to support them as they grow older, and to spend time with my sisters and my mum, who I love so much."[46]

1. On 18 March 2022, the Applicant's sister, Ms NR, prepared another statement of support.[47]
2. On 25 March 2022, solicitors acting on the Applicant's behalf made submissions to the Respondent in response to the notice to consider cancellation under section 501(2).[48]
3. On 12 July 2024, the Applicant's sister, Ms NR, prepared another statement of support.[49]
4. On 3 January 2025, the Applicant acknowledged receipt of notices under the Sex Offenders Registration Act 2004 (VIC).[50]
5. On 16 April 2025, the Respondent issued another notice of intention to cancel the Visa under section 501(2) of the Act ("the 2025 notice"). This superseded the 2020 notice.[51]
6. In the interval between the 2020 notice and the 2025 notice, the relevant Ministerial Direction had also changed. It is now Direction 110 that is relevant to this application.
7. On 5 June 2025, the Applicant made a further Statutory Declaration in response to the 2025 notice. This states:

"1. I write this statement in response to the Department's notice of intention to consider cancellation of my Class BB Subclass 155 Five Year Resident Return Visa.

2. I continue to rely on my previous statutory declaration of 17 March 2022 and write this statement to provide an update on my present situation.

3. I have continued to comply with my medication to treat my schizophrenia. I attend the Emerald Medical Centre once a month to receive an Ability injection and do so without prompting or assistance from anyone else. I have now been receiving this medication for approximately eight years, without fail, and no longer display schizophrenic symptoms.

4. I am presently employed full time as a truck driver and have been in this same position for the last three years. I begin work at 5am each day and it is something I really enjoy. I receive very positive feedback from my employers, who appreciate how I go above and beyond what is required of me. I am keen to continue this role into the future.

5. I am still living in the same home which is located close to my sister, [Ms NR]. This allows me to spend quality time with her family and my children, which is something that I truly appreciate. My son [LB] has recently turned 18, and our relationship continues to grow. We have really bonded recently. We go to the gym and watch movies together every week. I feel like I am an important part of his life, and it is nice to make up for lost time with [LB].

6. I continue to see my daughter [Child A], and these meetings are supervised by [Ms NR]. I also speak with her over the phone. Each month, my children and [Ms NR]'s family all gather at [Ms NR]'s house for a Sunday roast. We also spend time together as a family for special events such as holidays and birthdays. Due to my ongoing employment, I can provide more for my children and support my ex-wife [Ms LD] to care for them. I recently took great pride in helping [LB] purchase his first car.

7. Fortunately, my mother is doing really well in her battle with cancer. She is in remission and has completed her treatment. My father is also in remission following a fight with Leukemia. We recently told him about this cancellation process and he is desperate for me to stay in Australia. We have not yet told my mother about these circumstances, as we are concerned that this could negatively impact her health. However, l know that she would be similarly devastated if I could not remain with her and the rest of my family.

8. Since my previous statement, any connections that I had with family overseas have further diminished. I have no contact with any family members or anyone else overseas. There are no family remembers remaining in the UK and I do not know anyone there. Six of my mother's siblings in Ireland have passed away in the last three. years. Our remaining family members are not a tight unit, and there would be nowhere that I could turn up and ask to stay. If I was forced to return to the UK, I would be left alone without any supports.

9. Now that I have been stably medicated and employed for many years, without any incident, the Department can be reassured that I do not pose any risk to the community. I am a normal Australian, who just wants to continue to contribute positively to the lives of my family and others. I have reached this point through the support of those around me, and now can repay some of that support by looking after those I care about."[52]

1. On 5 June 2025, the Applicant's father, Mr CB, prepared a Statutory Declaration of support.[53]
2. On 5 June 2025, the Applicant's son, Mr LB, prepared a Statutory Declaration of support.[54]
3. On 6 June 2025, the Applicant's sister, Ms NR, prepared a Statutory Declaration of support.[55]
4. On 10 June 2025, the Applicant's solicitors made submissions in response to the 2025 notice.[56]
5. Various other friends have also provided letters of support.[57]
6. If the Applicant were to be released into the community, he would return to work and essentially continue as he has done, living in the community, supported by his family and his medical advisers. He would continue with his current medication, which he says he can tolerate well. This controls his mental illness.
7. A copy of his record of convictions is annexed hereto and marked "B".
8. The Applicant has a history of minor traffic infringements and loss of demerit points between 1992 and 2017.[58] His license was suspended between 13 April 2001 and 12 July 2001.[59]

1. As set out above, the Tribunal is satisfied that the Applicant does not pass the character test. This is not disputed by the Applicant.
2. The issue before the Tribunal is therefore whether the discretion to cancel the Visa under section 501(2) should be exercised.

Should the discretion to cancel Visa under s501(2) should be exercised?

1. In considering whether the discretion to cancel Visa under section 501(2) should be exercised, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("the Direction") has application.[60]
2. For the purposes of deciding whether to refuse or cancel a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker's application of the considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

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

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

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

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

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However**, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age**.

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

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

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

1. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

1. Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
2. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

(1) protection of the Australian community from criminal or other serious conduct; > > (2) whether the conduct engaged in constituted family violence; > > (3) the strength, nature and duration of ties to Australia: > > (4) the best interests of minor children in Australia; and > > (5) expectations of the Australian community.

3. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests

4. I note the importance of the Other Considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[61]

"...Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."[62]

1. The Applicant's criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.

Primary Consideration 1 - Protection of The Australian Community

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction 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.

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

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant's offending is of a sexual nature, involving a minor. It is very serious.
4. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

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

5. The Applicant does not pass the character test, as set out above.
6. His other offending is of little relative significance.
7. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant's offending.
8. The Applicant was not sentenced to a term of imprisonment. He was sentenced to a Community Corrections Order.[63]
9. I note that the maximum penalty for at least some of the offences of which the Applicant was convicted is 10 years imprisonment.[64] This was accepted by the Respondent.
10. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
11. There is no direct evidence before the Tribunal of the impact of the Applicant's offending on his victim.
12. The Tribunal does, however, have a copy of a statement provided by the victim to police. This indicates that the Applicant made her feel uncomfortable.[65]
13. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
14. There is no discernible trend of increasing seriousness.
15. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant's repeated offending.
16. There is no evidence to support any finding as to the cumulative effect of the Applicant's conduct. He has not been imprisoned.
17. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
18. There is no evidence of this behaviour.
19. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status ( noting that the absence of a warning should not be considered to be in the non-citizen's favour).
20. There is no evidence of this.
21. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
22. This is not relevant.
23. I do not consider factors (c) to (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant's offending or circumstances. Sub-paragraphs (a) and (b) of paragraph 8.1.1(1) of the Direction, weigh in favour of exercising the discretion to cancel the Visa.

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

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

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; > > b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > > (i) information and evidence on the risk of the non-citizen re-offending; and > > > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and > > > > 1. where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Nature of harm should the Applicant engage in further criminal or other serious conduct

1. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community's tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
2. The Respondent argued in final submissions, that this was one of those cases where, "the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable".
3. I accept that the Applicant's offending is very serious. It is however, at the minor end of the possible spectrum of sexual offending involving minors. The mere fact that his offending is "very serious", does not necessarily engage a finding that zero risk is mandatory.
4. This is reflected in the sentence of the court.
5. The Applicant's conduct, nevertheless, is such that there must be a low tolerance of it being repeated.

Likelihood of engaging in further criminal or other serious conduct

1. The Applicant offended in a closed period, during which I am satisfied that he was non-compliant with his former treatment regime for his diagnosed condition of schizophrenia.
2. The Applicant has since then been living in the community for some 9 years. He has not reoffended.
3. That opportunity to demonstrate his capacity to not reoffend was, in part at least, made possible by the Respondent's unexplained failure to persevere with the 2020 notice.
4. The Applicant has been compliant with his current medication regime, at least since May 2018,[66] if not since his offending.[67]
5. The Applicant has the active support of his sister, Ms NR, who has since 2020 become a mental health councillor, and other family members.[68]
6. I am satisfied that if the Applicant remains compliant with his current medication, as he has done for the last several years, he presents a minimal risk of reoffending.
7. I am also satisfied that as long as his current medication, family and medical supports remain in place, he will remain compliant. There is no reason to assume that this will change in the foreseeable future.
8. I accept that there is some risk that the status quo may change, but I have no reasonable grounds, based upon the evidence before the Tribunal, to make any such prediction.

1. Primary Consideration 1 weighs in favour of exercising the discretion to cancel the Visa.

1. Paragraph 8.3 of the Direction provides:
2. (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
3. (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
   1. 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
   2. 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.
4. The Applicant has been in Australia since he was an infant. He is now aged 52. He has for all practical purposes spent his entire life here.
5. The Applicant's formative years were spent in Australia.
6. The Applicant's immediate family members live in Australia.
7. The Applicant's son, Mr LB, has provided a statement in support of the Applicant dated 5 June 2025. In this he says:

"1. I write this statement as a plea to please keep my Dad, Mark Brooks, here in Australia.

2. My Dad doesn't know any other country, as he has lived In Australia since he was 1 year old. He has no one in England and all his family and friends live in Australia. He works hard as a Truck driver, gets up at 4:30 each morning. Dad is so happy driving trucks and even did an advertisement for Trucks recently which made me laugh.

3. Mum and Dad separated when I was quite young and our visits with Dad were always at my Auntie [Ms NR]'s house. I enjoyed hanging out with him and he always made me laugh. We had fun times with the family, but in turning 18 I, at long last, have the freedom to spend time with Dad whenever I want.

4. It's the first time in my life that I can remember just being with my Dad. We go to the gym together during the week. Have dinner out or at his place and go to the movies regularly. My Dad means the world to me and he is my best friend and my dad. He is funny, he is kind, always offers me direction and advice and my Dad is the most generous man and always there to help me should I need a hand or help with money.

5. It would deeply affect me if Dad was to leave Australia. I want my Dad here to grow up with him, to have him guiding me throughout my life to make up for the times over the years which were never enough. I wouldn't know what to do without him.

PLEASE KEEP MY DAD IN HIS HOME, AUSTRALIA"[69]

1. The Applicant's sister, Ms NR, has provided several statements in support of the Applicant as set out above. In her most recent statement, dated 6 June 2025 she says:

"1. I write this statement in response to the Department's notice of intention to consider cancellation of my brother Mark Brooks' Class BB Subclass 155 Five Year Resident Return visa.

2. I continue to rely on my previous statutory declaration and statements, and write this statement to provide an update on the present situation of Mark and my family.

3. My dear brother finds himself in this situation through horrific circumstances that were beyond his control, this being a crucial part that I feel must be emphasised. It is important, therefore, for me to explain at length why Mark is in this situation and to give you full insight into the circumstances. This is only fair to my brother and all he has suffered .

4. Mark was put on incompetent medication in 1996 when he was first hospitalized and diagnosed with Schizophrenia. Although Mark's condition was kept somewhat at bay, the medication failed to manage a part of the disease which is an important component in giving him insight into becoming unwell. Mark's disease, when untreated, inhibits his ability to recognise when his psychiatric health is deteriorating. As a result of this issue, our family was needed to ensure he complied with his medication at that time.

5. In 2016, after a horrific home invasion, I became quite unwell and was diagnosed with Post Traumatic Stress Disorder. My fight began. A couple of months later, life struck our family with yet another horrific traumatic event. My mum, [Ms NF], became very unwell and diagnosed with Ovarian Cancer and her fight began. We were a happy, loving, supportive family that were managing Mark's disease, although the medication was inadequate. My children were still at school then and the impact this had on us, trying to navigate life whilst two people in our immediate family were fighting for their lives, saw gaps in our daily lives.

6. Unfortunately and heartbreakingly, my dear brother Mark bore the brunt of the gaps and in June 2016 took himself off his medication. I have attached the proof of this from The Medical Clinic from where Mark was regularly dispatched his medication scripts. His last script was issued in May 2016 - 2 months after my diagnosis of PTSD and the same month my mum was admitted to hospital after becoming ill.

7. Mark's deterioration and flare up of the disease saw him lose his job, lose his house, lose his relationship and eventually descend into full relapse. Mark was committed to the CAT Psychiatry at Chandler house, Angliss Hospital and it was only then that his Psychiatrist told me what had occurred with his criminal offending. Mark had gone through the entire case not only very poorly represented, but in an absolute offence to one's human rights, not having any member of his ''willing" Psychiatry team called in to defend him.

8. The case was closed and I was told by a lawyer that if I was to reopen it, it would likely cost me in excess of $100,000. I was still fighting my battles with PTSD and Mum was fighting hers and I did not have $100,000 to reopen the case. It is the worst form of injustice and unfairness to my brother Mark, who had absolutely no one to support him at his court case - not one family member, not one friend and not one of his medical team.

9. I explain this because so much evidence, that Mark rightfully should have had in court, was never submitted. They knew only half of the story and it was a horrendous injustice. Mark's type of Schizophrenia, when it was unmanaged, at times reverted him back to childlike behaviour in his responses, impairing his judgment and jumbling his thoughts. Since he has been on his medication, I have not seen any of these behaviours.

10. Fortunately, by 2017, when Mark had fully relapsed into the disease, 21 years of progress in medicine saw Mark administered with a medication that completely managed his disease in its entirety. I have watched Mark return to the brother I had before he was lost to a horrendous disease in 1996. I have my loving, generous and good-hearted brother back. I don't say that lightly, that is who Mark is. Mark has and does help anyone in a heartbeat. He is selfless, he is kind and Mark deserves to stay with his family, in his home, Australia. Mark is an Australian and has lived here all his life. Moving him to a country where he knows no one and has no support, 12000 miles away from his family, would be devastating to us all.

11. Mark is now able to fully function. He has complete insight into his disease and manages it completely without any prompting from any of us. He is present, healthy and finally able to live life like the next person. Mark is a well respected community member of upper Beaconsfield, always there to lend a hand and he is known for this. He is a highly respected employee who is loyal, committed and very hard working for the company since 21 February 2022.

12. Almost 30 years were stolen from my brother by a cruel disease, but he has rebuilt his life and relationships with friends, family and children, especially his son [Mr LB]. They are, without a doubt, absolute best friends. I ask you to please consider their relationship. [Mr LB] has for the first time been able to build a relationship with his dad now that he is 18, without restrictive access and under the control of Mark's ex-wife, [Ms LD]. [Mr LB] has his freedom to build this relationship with his dad for the first time in his life. This is crucial to [Mr LB]'s wellbeing, as well as Mark's.

13. My heart broke when I heard [Mr LB] say at the end of his support letter "I don't know what I'd do without my Dad". This is real. This is someone's only dad. Can you imagine [MR LB], at 18 years of age, finally allowed to build a relationship with his dad, and then have that taken away from him. Please give them this time together. Please give my parents this time with their only son. Please give me and my family the rest of my life with my brother here.

14. In the end I want to reiterate that we are a responsible family and ensure Mark's condition is fully managed by this new medication. Mark now has full awareness of his condition and manages it with the correct medication. We have put all steps in place, in case horrific family strife should ever happen like this again. I have now finally completed my education in the mental health sector and have knowledge I never had back then to ensure every part of Mark's disease is managed. I am Mark's guardian, my husband is Mark's guardian and my children are Mark's guardians in the sense that we all look out for him, look after him and he can come to us for anything he needs. A loving devoted commitment for someone we love and deserves to stay in his home. He has suffered enough from all that happened when he became ill.

15. In ending, giving you the raw facts and talking from my emotional self without fluffy facades, I ask you to please lean on your compassion for our family and what led to where we are today."[70]

1. The Applicant's father, Mr CB, has provided a statement in support of the Applicant dated 5 June 2025. In this he says:

"1. I write this statement in support of my son, Mark Brooks, keeping his Class BB Subclass 155 Five Year Resident Return visa .

2. It is only recently that I have learnt that Immigration is reviewing Mark's visa due to an incident that occurred when he became ill. My daughter, [Ms NR], and Mark decided not to tell me this earlier, to avoid causing stress to me due to my fight with Leukemia which is now in remission. Mark's Mum, [Ms NF] has not been told due to the impact it will have on her health.

3. Our family immigrated to Australia in 1974 where my wife, [Ms NF] and myself brought up our three children. We worked hard like all immigrants to ensure my family had the best of education and comforts around us. Sadly, [Ms NF] and I separated 35 years ago. We purchased houses alongside one another so we could continue to parent as a team and so our decision to no longer live together would cause as little Impact to our children as possible. We are a responsible and, loving family and continue to this day to parent and now grandparent as a team.

4. My son is a good person who is loved dearly. We are a close family and spend most Sundays together at my daughter [Ms NR]'s house for our traditional Sunday roast. Mark was dealt a cruel and horrid disease in this life , hospitalised and diagnosed in 1996 when he was in his early 20 's. Mark struggled with the schizoprenia taking hold and the initial tablets to keep him out of psychosis. Sadly, the year 2016 was an exceptionally horrendous year for our family. My daughter experienced severe trauma after a home invasion and Mark's mother, [Ms NF], was diagnosed with ovarian cancer. During this time, Mark took himself off his medication without our knowledge.

5 . Abilify injections are the best thing that have ever happened to Mark. They keep Mark's chemical levels balanced. He has come full circle and now holds a full time job which he thoroughly enjoys. Even though he was given disability support, he never wanted to rely on the government. Mark is a hard working man and is able to fully function in society once again.

6 . The relationship between Mark and I became rocky when he became ill, initially. They say they take it out on their closest, which was heartbreaking to navigate but I finally have my son back and our relationship is the best it has been since his diagnosis . This has been the greatest blessing in my life.

7. I would like to share with, you one of the proudest moments I am able to experience each year: watching my son Mark with my grandson [Mr RR] standing at every ANZAC Day and paying their respects to the people that fought for this country. Mark has stood proud at the memorials for the last decade wearing the medals of my father, who fought for four years in World War I. The Australian and British troops standing arm in arm to fight for our countries. Mark is a proud Australian. He only knows Australia. This is Mark's home. This is his country. This is my family 's country and our home and this is where my grandchildren, Mark's children, live.

8. I am 77 years of age. We have lived in this country since 1974. This is our home. This is Mark's home and he knows no other. I beg of you with all l am to please allow my son, Mark Brooks to remain with his family in this country; the home that he has lived in for 51 years of his 52 years of life.

9. I am old now and may not have 20 years left in front of me but Mark's future now is of great concern to me after hearing of this. Mark ls absolutely adored by all of us and my daughter, [Ms NR] and her husband [Mr GR] along with their grown children watch out for Mark every single day. They are all so close and this gives me reassurance that one day when I'm not around my family will always support my son, Mark. [Ms NR] loves her brother with her whole heart. I know the devastating effect it would have on [Ms NR] and Mark's mum, [Ms NF], as well as our entire family, if Mark is taken out of this country. The disruption and impact to our entire family would be enormous.

10. I beg of you to please have compassion for Mark and all he has been through. He is a good man that suffered but he finally has his life back. He has worked hard in this country, paid taxes in this country, built lifelong friendships, he stands arm in arm with Australian friends, he sang the national anthem of this country at every school assembly. He has worked as a volunteer firefighter, just as I did, and is a valued community member of [redacted suburb]. He is the first to lend a hand when someone needs it. Mark is a good person with a good heart.

11. His children are here and they need their dad. His family are here and will always watch out for Mark. Mark has no family or friends in the UK. He knows no one there. I fear what would become of my son with nobody to help him, nowhere to live, and no one to care for, love and support him. This would be incredibly frightening for both him and us. I beg of you to please not cancel his visa."[71]

1. The Applicant's mother, Ms NF, has provided a statement in support of the Applicant.[72]
2. There are other letters of support as set out above, including from his former wife,[73] and his nephew, Mr RR.[74]
3. The cancellation of the Visa would also affect the Applicant's daughter, Child A. This is discussed in detail in the context of Primary Consideration 4. I refer to that discussion.
4. The Applicant has been employed for most of his adult life, except for the period during which his mental health deteriorated, rendering him incapable of working.
5. I am satisfied that the Applicant has extensive, deep ties to his immediate family members.
6. I am satisfied that if the Applicant were to be removed from Australia, this would have a serious adverse impact on them.

1. Primary Consideration 3 weighs strongly against exercising the discretion to cancel the Visa.

Primary Consideration 4: The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

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 a parental relationship with Child A. She is 16 years old.
4. Although the Applicant has not been the primary caregiver for Child A since about 2010, he has continued to remain in contact. The Applicant says:

"8. After our separation, [Ms LD] ultimately gained custody of the children. We were fairly amicable though and I would go and visit the children at her place. I was moving around fairly frequently, before eventually buying a house in [redacted suburb], near [redacted suburb], with the support of my family. These years were fairly steady and I was able to work and see my children as often as I could.

15. My sister [Ms NR] helps to arrange contact between me and my children and I see them at [Ms NR]'s place. We contact each other weekly by phone at the very least. The nature of my convictions and registered sex offender status means that the supervised contact is necessary. My relationship with my children is great. When they come to [Ms NR]'s place we have a Sunday roast. We talk about their lives and what they are doing. I ask my daughter about her artwork. My son has been playing soccer since he was two. He's into sport and soccer and we talk about those all the time. [Mr LB] and I both shaved our heads for my dad a few years ago when dad bad leukaemia.

16. My ex-wife lives in [redacted suburb]. [Child A] and [Mr LB] go to [redacted school]. I am proud of them and all of their achievements and I cannot bear the thought of being in England instead of Australia, with no possibility of watching them grow up. [Mr LB] is 16 now and [Child A] is now 12 years old. I have not told them about this visa cancellation process yet as I am hoping I can spare them the pain and anxiety of worrying about it, if the Department decides not to cancel my visa and give me another chance. I hate the idea of them growing up without being able to see me and would miss them terribly."[75]

1. Child A will turn 18 within 2 years.
2. The Applicant cannot have unsupervised contact with Child A, due to him being on the sex offender register.
3. I accept that it would be possible to maintain electronic communication from the UK, but this would be a poor substitute for the Applicant being here.
4. I am satisfied that it would be moderately in Child A's best interests for the Applicant to remain in Australia.
5. The Applicant does not claim that any other child's interests are involved.[76]

1. Having regard to all of the above, Primary Consideration 4 weighs moderately against exercising the discretion to cancel the Visa.

Primary Consideration 5 - The Expectations of The Australian Community

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

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

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

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

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

(f) worker exploitation.

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

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

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.[77]

1. Paragraph 8.5 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis - Allocation of Weight to Primary Consideration 5

1. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:

(a) the Applicant's criminal record as set out in Annexure B; > > (b) the other matters set out above; > > (c) the gravity of sexual offending against a minor; > > (d) the fact that I am satisfied that the Applicant presents a minor risk of reoffending.

1. Primary Consideration 5 weighs in favour of exercising the discretion to cancel the Visa.
2. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

1. There is no protection finding in this case and no pending application.
2. I accept that if the Applicant is not successful in these proceedings, he/she will be liable for detention and removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
3. This Other Consideration (a) is neutral.

1. Paragraph 9.2 of the Direction directs a decision-maker to take into account 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:

(a) the non-citizen's age and health; > > (b) whether there are any substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to that non-citizen in that country.

2. The Applicant is, to all intents and practical purposes, an Australian. He knows no other life than life in Australia.
3. He has no friends, relatives or connections in the UK.
4. The Applicant's mental health is potentially fragile. He relies on ongoing treatment and the support of his family, especially his sister, to maintain his mental equilibrium.
5. If the Applicant were to be removed from Australia and all his supports, especially his family, I am satisfied that there is a real possibility that he could become non-compliant with his medication regime, regress and become seriously mentally ill. This could be potentially very serious for him.
6. There are not any major cultural or language barriers, but it would take some time for the Applicant to adjust to life in a new country, even if his mental health were to be maintained.
7. The Applicant would have the same social, medical and/or economic support available to him as any other UK citizen.
8. The medical services in the UK are similar to those in Australia.
9. The Applicant has work experience, for instance truck driving, that would be readily transferrable to the UK.
10. This Other Consideration (b) weighs against exercising the discretion to cancel the Visa.

1. There was no evidence on this topic. This Other Consideration (c) is neutral.

1. It is necessary to weigh up all the primary and other considerations. In doing so I have had regard to all the evidence before the Tribunal. I refer also to the detailed history and discussion set out above.
2. Primary Consideration 1 weighs in favour of exercising the discretion to cancel the Visa.
3. Primary Consideration 2 is neutral.
4. Primary Consideration 3 weighs strongly against exercising the discretion to cancel the Visa.
5. Primary Consideration 4 weighs moderately against exercising the discretion to cancel the Visa.
6. Primary Consideration 5 weighs in favour of exercising the discretion to cancel the Visa.
7. Other Consideration (a) is neutral.
8. Other Consideration (b) weighs against exercising the discretion to cancel the Visa.
9. Other Consideration (c) is neutral.
10. I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
11. The Applicant has extensive, indeed life-long ties to Australia. This weighs very heavily in his favour.
12. All his immediate family, including his 2 children, live here. He has virtually zero connection to the UK.
13. I am satisfied that the Applicant's offending, although very serious, was primarily an expression of his untreated mental illness, rather than any underlying predisposition to engage in criminal behaviour.
14. I am satisfied that so long as the Applicant continues to engage with appropriate medical support, and has the support of his family, the prospect of him reoffending is minimal.
15. I note the Applicant's progress in managing his mental health over the past 9 years. He was granted this opportunity to prove himself, at least in part, by the Respondent's unexplained failure to pursue the 2020 notice.
16. There is no evidence to suggest that he will not successfully continue to manage his mental health for the foreseeable future.
17. Having regard to these findings, I am satisfied that the Primary Consideration of the protection of the Australian community carries less weight in this case than might have been the case, if the Applicant had not demonstrated almost a decade of compliance with an appropriate medical treatment regime.
18. As long as the Applicant continues with his treatment, he presents a very minor risk of reoffending.
19. In this context, his lifelong connections to our community, significantly outweigh that minor risk.
20. I am satisfied that the proper application of the Direction weighs against exercising the discretion to cancel the Visa.

1. The decision under review is set aside and substituted with a decision that the cancellation of the Visa is revoked.

I certify that the preceding one hundred and eighty five (185) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

.........................[SGND].........................

Preliminary Brief regarding Applicant's incident on 5 June 2016

Applicant's Ties to Australia (Aide-Memoire) in response to pre-hearing Direction 10

[23] Exhibit 2: Preliminary Brief regarding Applicant's Incident on 5 June 2016.

[60] On 21 June 2024, the former applicable direction, Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.

[61] [2018] FCA 594.

[75] HB 201-204 at [8], [15] and [16].

[76] See Exhibit 4: Applicant's Ties to Australia (Aide-Memoire) in response to pre-hearing Direction 10.

[77] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.