Varley and Minister for Home Affairs (Migration) [2019] AATA 376 (1 March 2019)

4. The respondent concedes that the decision of the respondent made on 25 October 2017 is affected by jurisdictional error of the type identified in Coker v Minister for Immigration and Border Protection [2017] FCA 929 in that the respondent failed to consider the applicant's submission that the Western Australian Prisoners Review Board had granted the applicant parole on 16 February 2017.

5. The Court has not considered whether the respondent's decision was affected by jurisdictional error in that it impermissibly fettered the exercise of his (sic) discretion and/or inflexibly applied a policy or rule by the approach adopted in respect of the risk of reoffending prevailing over countervailing considerations.

1. A delegate of the Minister undertook this reconsideration, which included a consideration of submissions from the Applicant (Exhibit R1, pages 35-52). On 4 December 2018 the delegate decided to refuse to revoke the cancellation of the Applicant's Visa (Exhibit R1, pages 12-34). This is the Reviewable Decision that is currently before the Tribunal.
2. On 10 December 2018, the Applicant lodged an application in the Administrative Appeals Tribunal (Tribunal) to review the Reviewable Decision (Exhibit R1, pages 1-11).

1. The issues for determination by this Tribunal are:
   • (a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
   • (b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 79).

1. This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to mandatorily cancel a visa.
2. The Reviewable Decision of 4 December 2018 was sent to the Applicant under cover of a letter dated 6 December 2018 (Exhibit R1, pages 12-13). The Applicant signed to acknowledge receipt on 7 December 2018 (Exhibit R4). The Applicant lodged his application for review in the Tribunal on 10 December 2018 (G1, pages 1-8). The Applicant is in immigration detention, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.
3. The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.
4. Further, pursuant to s 500(6L) of the Migration Act, the Tribunal must comply with the

84 day timeframe for handing down a decision in this matter. This means that the decision must be handed down by Friday 1 March 2019. 5. The Direction no. 79 is applicable due to the date of this decision by the Tribunal. This is discussed in further detail below in the section headed, "Direction no. 79".

1. The hearing took place on Tuesday 19 February 2019. The Applicant appeared in person, accompanied by Serco Officers, and was self-represented. Following a request from the Applicant who did not want the Serco Officers to be present in the room, the Tribunal directed that the Serco Officers accompanying the Applicant wait outside the hearing room during the hearing proceedings. This was so as not to cause any prejudice to the Applicant in immigration detention, given the nature of the offending.
2. The Respondent was represented by Mr Gerrard, who appeared in person.
3. The Applicant gave oral evidence and was cross-examined. Both the Applicant and Mr Gerrard made oral submissions.
4. The Applicant presented to the Tribunal as intelligent and articulate. He was able to effectively and persuasively make submissions on his own behalf to the Tribunal.
5. The Applicant also called Mrs Susette Monk, the Chaplain at Karnet Prison to give evidence. Chaplain Monk gave evidence by telephone, and was cross-examined by Mr Gerrard.
6. The Tribunal admitted the following documents into evidence at the hearing:
   • (a) the Applicant's Statement of Facts, Issues and Contentions, dated 17 January 2019 with attachments labelled Annexure LJV-001 through to Annexure LJV-005 (Exhibit A1);
   • (b) the Applicant's Response, dated 13 February 2019, to the Respondent's Statement of Facts, Issues and Contentions (Exhibit A2);
   • (c) letter from Chaplain Monk dated 1 February 2019

(Exhibit A3); * (d) the s 501 documents (G documents) comprising 358 pages (Exhibit R1); * (e) Supplementary relevant documents numbered from SRD1 to SRD2 and numbered from pages 348 to 449 (Exhibit R2); * (f) the Respondent's Statement of Facts, Issues and Contentions, dated 8 February 2019 (Exhibit R3); and * (g) letter from the Department dated 6 December 2018 to the Applicant with signed acknowledgment of receipt of the Reviewable Decision on 7 December 2012 (Exhibit R4).

1. Section 501(3A) of the Migration Act provides that:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

• (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

• (ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. Section 501(6) of the Migration Act provides that:
   • (6) For the purposes of this section, a person does not pass the character test if:
     • (a) the person has a substantial criminal record (as defined by

(e) 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. A "substantial criminal record" is defined by s 501(7) of the Migration Act as follows:
   • (7) For the purposes of the character test, a person has a substantial criminal record if:
     • (a) the person has been sentenced to death; or
     • (b) the person has been sentenced to imprisonment for life; or
     • (c) the person has been sentenced to a term of imprisonment of

12 months or more; or * (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

1. Section 501CA of the Migration Act further provides:
   • (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
   • (2) For the purposes of this section, relevant information is information (other than nondisclosable information) that the Minister considers:
     • (a) would be the reason, or a part of the reason, for making the original decision; and
     • (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
   • (3) As soon as practicable after making the original decision, the Minister must:
     • (a) give the person, in the way that the Minister considers appropriate in the circumstances:
       • (i) a written notice that sets out the original decision; and
       • (ii) particulars of the relevant information; and
     • (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
   • (4) The Minister may revoke the original decision if:
     • (a) the person makes representations in accordance with the invitation; and
     • (b) the Minister is satisfied:
       • (i) that the person passes the character test (as defined by section 501); or
       • (ii) that there is another reason why the original decision should be revoked.

1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
   • (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
     • (a) the performance of those functions; or
     • (b) the exercise of those powers.
2. Further, s 499(2A) of the Migration Act states that "[a] person or body must comply with a direction under subsection (1)".
3. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. Direction no. 79 replaced the previous Direction no. 65. Consequently, as the Tribunal is handing down this decision on 1 March 2019, the Tribunal must apply Direction no. 79. The Tribunal proceedings were conducted on the basis that Direction no. 79 applied.
4. Paragraph 6.1 of Direction no. 79 sets out the "Objectives" of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
   • (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
5. Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
   • (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
   • (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
   • (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
6. Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
   • (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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
   • (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   • (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
   • (5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
   • (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
   • (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
7. Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
   • (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
     • (a) Protection of the Australian community from criminal or other serious conduct;
     • (b) The best interests of minor children in Australia;
     • (c) Expectations of the Australian community.
8. Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
   • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
     • (a) International non-refoulement obligations;
     • (b) Strength, nature and duration of ties;
     • (c) Impact on Australian business interests;
     • (d) Impact on victims;
     • (e) Extent of impediments if removed.
9. Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
   • (1) Informed by the principles in paragraph 6.3 above, a decision-maker:
     • (a) ...
     • (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.
10. Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
    • (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
    • (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
    • (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
    • (4) Primary considerations should generally be given greater weight than the other considerations.
    • (5) One or more primary considerations may outweigh other primary considerations.

1. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a "substantial criminal record" as defined by s 501(7) of the Migration Act.
2. A person has a substantial criminal record if they have been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c) of the Migration Act).
3. On 18 February 2016, the Applicant was convicted in the District Court of Western Australia of one count of "intent to expose a person believed to be under 16 years to indecent matter" (s 204B(2)(b)(ii) of the Criminal Code Act Compilation Act 1913 (WA)), for which he received a head sentence of 18 months imprisonment. He was also convicted of six counts of "intent to procure a person believed to be under 16 years for sexual activity" (s 204B(2)(b)(i) of the Criminal Code Act Compilation Act 1913 (WA)) for which he received terms of imprisonment of 14 months each to be served concurrently. The Applicant was sentenced to a further term of imprisonment of six months to be served cumulatively for one count of "intent to procure a person believed to be under 16 years for sexual activity" for which he was sentenced to a term of six months imprisonment to be served cumulatively. Consequently, the Applicant does not pass the character test under

s 501(6)(a) and s 501(7)(c) of the Migration Act. He also does not pass the character test under s 501(6)(e) because he was convicted of sexually based offences involving a child. 4. As the Applicant does not pass the character test, the Tribunal must now consider whether there was "another reason" why the Reviewable Decision should be revoked.

IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction no. 79)

1. Paragraph 13.1(1) of Direction no. 79 provides that:

When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community...

1. Paragraph 13.1(2) of Direction no. 79 then provides:

Decision-makers should also give consideration to:

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

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

Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction no. 79)

1. Paragraph 13.1.1(1) of Direction no. 79 further provides:
   • (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
     • (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
     • (b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
     • (c) The principle that 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, are serious;
     • (d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
     • (e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
     • (f) The cumulative effect of repeated offending;
     • (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
     • (h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, 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);
     • (i) Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
2. The Applicant's National Police Certificate (Exhibit R1, page 53), together with his Western Australia Police List (Exhibit R2, page 349) of Criminal Court Outcomes record that he has been convicted of the following offences:

Intent to procure a person believed to be under 16 years for sexual activity

Intent to procure a person believed to be under 16 years for sexual activity

[counts 3] imprisonment: 14 Months conc ea Charge

Intent to expose a person believed to be under 16 years to indecent matter

[counts 1] imprisonment: 18 Months conc - head sentence

Intent to procure a person believed to be under 16 years for sexual activity

[counts 1] imprisonment: 6 Months cumulative total term: 2 Years imp from 18.2.16

Intent to procure a person believed to be under 16 years for sexual activity

Intent to procure a person believed to be under 16 years for sexual activity

[offence date not recorded in the materials before the Tribunal]

1. The entirety of the Applicant's offending has been recorded in the above table, however, with respect to the application that is currently before it, the Tribunal has only had regard to the offences for which the Applicant was convicted on 18 February 2016. This is because it is those convictions that form the basis of the Visa cancellation. Additionally, no submissions were made by either party at or before the hearing about the "no drivers licence" [Redacted].
2. The facts of the Applicant's offending are set out in the Sentencing Remarks of Stevenson DCJ (Exhibit R1, page 56-66), and in the relevant Statements of Material Facts produced under summons from the Western Australia Police (Exhibit R2, pages 353-359).
3. In early December 2014, the Applicant placed an advertisement in the personal advertisements section of Craigslist (see Sentencing Remarks, Exhibit R1, page 58). The advertisement had the following heading:

Any young teens want to play today M(Rockingham)

Looking for a teen guy who's keen for a discrete meet up. First timers and curious welcome I'm fit guy in early 40s.

1. On 22 December 2014 at 9.13pm, a police officer, in the course of his employment, responded to the advertisement, using the persona of a 14 year old male named Jack Matthews. The police officer stated (Exhibit R1, page 59):

Hey dude, I was looking at Craigslist and saw your ad so thought I would send you an email to say hi. Hopefully you don't think I'm too young but my name's Jack Matthews and I'm 14 years old. You can email me back or add me on Skype if you want to chat. My Skype addy is jackmat00@outlook.com.

1. The Applicant sent the following response approximately 27 minutes later at 9.40pm (Exhibit R1, page 59):

Hi Jack, what area are you in? If you're free some time let me know and maybe we could meet somewhere.

1. Jack Matthews did not respond, and on 23 December 2014 at 5.20am the Applicant sent the following to him (Exhibit R1, page 59): "Hope to hear back from you soon".
2. Jack Matthews did not respond again, and so at 6.32pm on the same day, the Applicant "sent, via email, an image of himself holding his [erect] penis to the child persona" (Exhibit R2, page 354) with the message, "Here's my pic hope it's okay" (Exhibit R1, page 59).
3. Jack Matthews sent the following response at 8.17pm on the evening of 23 December 2014 (Exhibit R1, page 59): "Hi, I live in Duncraig. You should add me on Skype so we can chat."
4. The Sentencing Remarks further state (Exhibit R1, page 59):

From that point through to 28 January 2015 you engaged in communications with Jack Matthews on the internet using principally Skype to message each other. During the course of those communications it was made plain to you that Jack Matthews was a 14-year-old boy and sexually inexperienced and also sexually unaware of his own orientation.

During the course of those communications you gave a graphic description of various sexual activities, which can only be described as grooming the child, for the purpose of possible future sexual activity.

1. The Statements of Material Facts from the Western Australia Police record the content of the Applicant's statements to Jack Matthews. A relevant excerpt is as follows (Exhibit R2, page 354):

On 7 January 2015, the [Applicant] engaged with the child persona on "Skype".

During the course of the conversation the accused described various sex acts including fellatio.

The accused said: "you know about oral sex?....sucking and licking another guy's cock...2 guys can lie side by side and suck each other at the same time...that's pretty horny"...

On 14 January 2015, the [Applicant] engaged in a conversation with the child persona using "Skype".

During he (sic) conversation the [Applicant] asked the child persona how often he masturbated and said he "liked the idea of teaching you and giving you new experiences"[sic]

The [Applicant] described in detail the act of anal intercourse to the child persona. The accused said: " ...one guy will fuck the other in the bum...you have to get used to relaxing so someone can insert their cock"[sic] and later " you would probably build up to anal sex...guys might do stuff like fingering each others arse...gently inserting a finger"[sic].

1. As noted by the Sentencing Judge, on several occasions the Applicant suggested to Jack Matthews that they should meet. His Honour Stevenson DCJ stated (Exhibit R1, page 59): "...you were prepared to actually arrange a meeting with him having suggested a meeting on more than one occasion."
2. The following excerpt from a Statement of Material Facts from the Western Australia Police describes how the conversations culminated in an attempted meeting with Jack Matthews (Exhibit R2, page 356):

On 21 January 2015, the accused conversed online with the child persona using "Skype".

During the conversation the accused told the child persona "I would love to work up to sucking your cock...and if you wanted to try, you could suck me as well"[sic].

The accused also stated that he would show the child persona pornography in the event that they were able to meet each other. Over the course of the online engagements the accused had stated that he wanted to meet with the child persona and that he would book a hotel room in the city where they could meet.

On 30 January 2015, the accused was arrested in the Perth Central Business District at a meeting place he had arranged with the child persona.

The [Applicant] was conveyed to the offices of Sex Crime Division where he participated in an Electronic Record of Interview during which he admitted the offences in full.

Further enquiries established that the accused had booked a room at the [name omitted] Hotel in [name omitted] Street Perth, where he stated he intended taking the child persona...

1. The Applicant had booked a hotel room online (Exhibit R2, page 360). When Police searched the hotel room, they found condoms (Exhibit R1, page 60, Exhibit R2, page 361).
2. Prior to his trial, the Applicant was on bail for approximately 12 months (transcript, page 27). He pled not guilty to the offences, but on the commencement of day two of his trial after hearing the entirety of the prosecution's case against him, he pled guilty (Exhibit R1, page 61).
3. Paragraph 13.1.1(1)(a) of Direction no. 79 provides that sexual crimes are viewed very seriously. The Applicant's convictions on 18 February 2016 are sexual offences and are therefore very serious in nature. The Tribunal further finds that sexual crimes against children are particularly serious given the position of power and trust that adult persons have over children.
4. Paragraph 13.1.1(1)(b) of Direction no. 79 is not applicable because the Applicant's offences were not "crimes of a violent nature against women or children".
5. Paragraph 13.1.1(1)(c) of Direction no. 79 provides that crimes committed against vulnerable members of the community "such as the elderly and the disabled" are serious. The previous Direction no. 65 included "minors" in this category. However, reference to minors has now been deleted in Direction no. 79. This is perhaps due to oversight in the re-drafting process, as it is doubtful whether the Minister would have intended minors no longer to be regarded as vulnerable members of the community. This is especially so given the insertion of paragraph 13.1.1(b) of Direction no. 79 which refers to violent crimes against women and children, suggesting their vulnerability, the principle in paragraph 6.3(3) of Direction no. 79 and indeed, from an overall reading of Direction no. 79 (applying a purposive approach to interpretation). Additionally, if a literal approach to interpretation (which considers the "natural and ordinary" meaning of the words) is applied, it is a logical and obvious conclusion that children are "vulnerable members of the community". There is a substantial power imbalance between adults and children, with adults occupying a position of trust, authority, knowledge and often physical strength over children. Indeed, many laws, including the criminal law, operate to protect children who are generally accepted as requiring protection. Consequently, the Tribunal finds that children are vulnerable members of the community, and that as the Applicant's offences were child sexual offences, they should be viewed as serious.
6. Paragraph 6.3(3) of Direction no. 79 is also relevant in that examples of a "serious crime" include crimes of a sexual nature against women or children. It states that persons who commit these crimes should generally expect to forfeit the privilege of staying in Australia. This principle is applicable to the Applicant's situation as his offences are sexual offences involving a minor.
7. Applying paragraph 13.1.1(1)(d) of Direction no. 79, on 18 February 2016 the Applicant was sentenced to an effective term of imprisonment of two years in the District Court of Western Australia. This two year term was comprised of concurrent and cumulative terms of imprisonment. As noted above (at paragraph [42]), the Applicant was convicted of "intent to expose a person believed to be under 16 years to indecent matter" for which he received a head sentence of 18 months imprisonment. He was also convicted of six counts of "intent to procure a person believed to be under 16 years for sexual activity" for which he received terms of imprisonment of 14 months for each count to be served concurrently. The Applicant was also convicted of one additional count of "intent to procure a person believed to be under 16 years for sexual activity" for which he was sentenced to a term of six months imprisonment to be served cumulatively. The Sentencing Judge ordered that the Applicant would be eligible to be considered for release on parole after serving one year imprisonment (Exhibit R1, page 66). These sentences of imprisonment reflect the serious nature of the Applicant's offending.
8. Indeed, in his Sentencing Remarks, His Honour Stevenson DCJ noted the appropriateness of a term of imprisonment for the type of offending committed by the Applicant (Exhibit R1, page 64) in contravention of s 204B(2) of the Criminal Code, and referred to relevant case law including the judgment of Mazza J in R v Leask [2013] WASCA 243, at paragraph [89] regarding the serious nature of the Applicant's offending:

This court has repeatedly said that adult persons who make use of the Internet to locate and make contact with children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment and that as with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse. The court has also repeatedly said that in cases involving sexual offending against children the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender.

1. With respect to the sentencing of the Applicant, His Honour Stevenson DCJ referred to a term of imprisonment being appropriate, given the seriousness, degree and extent of the Applicant's offending (Exhibit R1, page 65-66):

I am positively satisfied that it is not appropriate to suspend or conditionally suspend any of the terms of imprisonment and you should be required to serve an immediate term of imprisonment by reason of the nature of the seriousness of the offending and the aggravating features of the offending.

It's difficult to understand in this day and age how an adult, who's had the advantage of a good upbringing, could engage in such activity. It is well known that the police investigate this type of offending. And it's frankly quite difficult to understand how anybody using the Internet could have committed these offences to the degree and the extent that they were committed by you.

1. With respect to the trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction no. 79), the offences were committed over a period of weeks from 22 December 2014 to 30 January 2015 when the Applicant was apprehended (Exhibit R1, page 60). The first offence, being one count of "intent to expose a person believed to be under 16 years to indecent matter" (which involved the Applicant sending a picture of himself holding his erect penis to the child persona) committed on 23 December 2014 was in itself very serious as a first offence. The Applicant then committed the further offences of "intent to procure a person believed to be under 16 years for sexual activity" with the final offence committed on 30 January 2015 when the Applicant attempted to meet the child in a public location for the purpose of taking him back to a hotel room "to engage in whatever sexual activity [the Applicant] judged him to be comfortable with" (Exhibit R1, page 60). Although the offending took place over a period of weeks, this attempt to meet is, in the Tribunal's opinion, an escalation in the Applicant's offending, and indicative of a trend of increasing seriousness.
2. With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction no. 79), the Tribunal will often consider whether offending over a period of time by an Applicant places a burden on the resources of police, corrective services, and the courts. Consequently, this paragraph of Direction no. 79 is not applicable to the Applicant because he has not repeatedly offended over a period of time, placing a burden on resources.
3. The Tribunal notes, however, that the Applicant was convicted of eight offences in total, as referred to in paragraph [63] above. The offences were committed over a period of weeks, and the Applicant was sentenced with respect to these offences on the same day, being 18 February 2016. This does not, however, mean that the Tribunal regards the Applicant's offending as arising from a one-off incident or event. The Applicant committed eight child sexual offences over a number of weeks, and only ceased offending because he was caught by police, which, in the Tribunal's opinion, is a further indication of the seriousness of the offending.
4. There is no evidence that the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(1)(g) of Direction no. 79), and so this paragraph is not applicable.
5. Paragraph 13.1.1(1)(h) of Direction no. 79 is also not applicable because the Applicant has not previously received any warning that further offending may affect his migration status.
6. Paragraph 13.1.1(1)(i) of Direction no. 79 is also not applicable because the Applicant has not committed any crime in immigration detention.
7. On balance, the Tribunal finds that the nature of the Applicant's offending is very serious and strongly weighs against the revocation of the cancellation of the Applicant's Visa. The Tribunal notes that the seriousness of the offending is also acknowledged by the Applicant (see, for example, Exhibit A1, paragraph [7]), and it is the consideration of risk that is in contention between the parties, which will now be considered by the Tribunal.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)

1. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
   • (1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
     • (a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
     • (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
2. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at paragraph [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a "rational and probative basis".
2. With respect to the nature of the harm that could result if the Applicant is to reoffend in a sexual manner, the Respondent, in Exhibit R3, paragraph [26], referred the Tribunal to pages 15 - 16 of the Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Preface and Executive Summary (Final Report), which documented some of these harms. The following excerpt, which appears under the heading, "How does sexual abuse affect children"? on page 16 describes some of the harms that can be experienced by victims of child sexual abuse, including mental and emotional harms, difficulties with trust and intimacy, substance misuse, and developmental difficulties:

The most common impact of child sexual abuse is on the survivor's mental health. The impacts include: depression, anxiety and post-traumatic stress disorder; other symptoms of mental distress such as nightmares and sleeping difficulties; and emotional issues such as feelings of shame, guilt and low self-esteem. Mental health issues were often described as occurring simultaneously, rather than as isolated problems or disorders.

After mental health, the impacts survivors most commonly told us about were on their relationships. These included difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Survivors also frequently told us of impacts on their education and economic circumstances.

Survivors often told us they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse. This in turn affected their physical and mental health, sometimes leading to criminal behaviour or relationship difficulties.

The diverse impacts of child sexual abuse are often interconnected in complex ways, and can be experienced as a cascade of effects over a lifetime.

Part of the explanation for the profound and broad-ranging effects of child sexual abuse lies in the detrimental impacts that interpersonal trauma can have on the biological, social and psychological development of a child. Child sexual abuse can result in profound trauma, affecting the chemistry, structure and function of the developing brain and potentially interrupting normal psychosocial development at every critical stage of the formative years.

1. Applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend in a sexual manner against a child is extremely serious. As noted in the Final Report, this type of offending can have a devastating impact on victims who may not only suffer physical harm, but also psychological harms which can continue well into adulthood.
2. The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

no. 79). 3. The Tribunal notes that at the time of sentencing, the Sentencing Judge did not have the benefit of a psychological report with respect to the Applicant's risk of reoffending (Exhibit R1, page 66). Nevertheless, the Sentencing Judge stated that, "...in my view, the risk of reoffending in the future is low" (Exhibit R1, page 66). 4. Additionally, the Applicant was assessed in prison as not requiring the Medium Intensity Sex Offending Program due to being a "low risk/need" (Exhibit R1, page 108), and was recommended to be at a minimum security rating. He was assessed as being eligible to participate in the Prisoner Employment Program and was also a Peer Support Worker, which is indicative of a position of trust in the prison (Exhibit R1, pages 107-109). As part of this peer support role, the Applicant gave evidence that he assisted other prisoners with their parole submissions (transcript, page 55). The Prison Chaplain, Mrs Susette Monk, also gave evidence that this role also involved helping new prisoners to settle into the prison (transcript, page 65) and assisting prisoners with any problems they may be having, for example, resolving disputes between prisoners (transcript, page 66). Chaplain Monk gave evidence that the Applicant was very good at this role and was very much in demand in assisting prisoners with their parole plans (transcript, pages 62 and 66). In the Tribunal's opinion, good prison behaviour is to the Applicant's credit, but good behaviour in a controlled prison environment is generally to be expected, and is not in and of itself evidence of rehabilitation. 5. Despite not being assessed as requiring formal treatment programs, the Applicant undertook voluntary programs in prison. He completed the Reach for Life program from 18 October to 6 December 2016 (Exhibit R1, page 125) which was facilitated by Chaplain Monk. This was a seven week program, which ran on one day per week for approximately 4 hours (transcript pages 64-65). It is based on principles of restorative justice and involves interaction with victims of crime (transcript, page 28). Chaplain Monk described the program as, "...the program itself is bringing in victims of crime unrelated to the offenders who join the group. Stories are exchanged and hopefully each learns from the other." The program involved both individual, and small group work (transcript, page 29). Chaplain Monk described the gains made by the Applicant in the program as follows (transcript, page 65):

He was willing to speak of his offence and his great regret about it, and he spoke of issues that he felt he could, or things he can put in place to help him, and the fact that he felt what he'd done was, looking at it, quite out of character for himself, and that a great deal of stress both before and after have occurred, and he listened to other people and helped them to find words that they wanted to use as well, and generally looked after our visitors, made sure that they were comfortable and capable of coping as well.

1. Chaplain Monk, when asked by the Applicant, expressed the opinion that the Applicant was "highly unlikely" to reoffend (transcript, page 63). However, the Tribunal notes that Chaplain Monk does not have any qualifications as a psychologist and the gains made by participants in the program were not recorded or measured in terms of the participant's risk of reoffending after the completion of the program (transcript, page 66).
2. The Applicant also completed a voluntary program called "Standing on Solid Ground" from 19 July to 22 September 2016 (Exhibit R1, page 124) during his time in prison. The Certificate of Completion dated 20 September 2016 (Exhibit R1, page 138) states that this is a 50 hour program about emotional intelligence with the topics covered including:

Self-esteem

Building Confidence

Awareness of Emotions

The Power of Positive Emotions

Managing Difficult Emotions

Observing Thoughts

Values

Change and Personal Growth

Ways of Communicating

Managing Stress

Goals

1. The Applicant also completed a two-day workshop called the "Gatekeeper Suicide Prevention Workshop" (Gatekeeper workshop) on 20 and 21 July 2016 (Exhibit R1, page 137).
2. In a written submission, the Applicant detailed his insights into his own personal circumstances and the impact of this type of offending on victims after completing each of these voluntary programs (Exhibit R1, page 123-125). For example, the Applicant described his insights after completing the Gatekeeper workshop, which were in part, as follows (Exhibit R1, page 124):

What stood out starkly for me, with respect to the impact of my own offending, whether sheer numbers of people who commit acts of self-harm and attempt suicide as a result of damaging mental and emotional distress. I was ashamed to think that my own criminal actions could have resulted in such potential trauma for a young person, who is still emotionally immature and vulnerable...

1. Further after completing the Standing on Solid Ground Program the Applicant described insights into his emotional management and self-esteem prior to his offending, and described being able to incorporate this into a "Relapse Prevention Strategy" (Exhibit R1, page 124, page 240-243). The Applicant gave evidence that he continues to adhere to this strategy, for example by undergoing counselling and having a mental health check with a counsellor whilst in immigration detention (transcript, page 58). At the Tribunal hearing the Senior Member asked the Applicant about the content of this strategy. The following exchange is relevant (transcript pages 25-27):

SENIOR MEMBER: You mentioned that - or I think you mentioned, and also the reasons for decision from the Prisoners Review Board mentioned that you've developed a relapse and recidivism prevention. I'm not sure if that was the exact terminology, but essentially that's what it was.

MR VARLEY: Yes, correct, Member.

SENIOR MEMBER: Was the content of that what you've just described to me?

MR VARLEY: Using their terminology, relapse prevention strategy was the terminology that they preferred, so I will refer to it as that.

SENIOR MEMBER: Yes.

MR VARLEY: Yes, there were, and again that's in the submissions for your consideration. The fact is that were referred to there were more I suppose emotional factors which indirectly tied to what I've just explained to you. There are factors with respect of this being an Internet-based offence. There were factors of spending inordinate amounts of time on a computer, spending time in isolation. And so that was one of the considerations in a relapse prevention strategy. Taking on more than I could handle or finding some sort of - or ensuring that a balance was maintained at all times, which I was guilty of previously. I overwork myself. That factored into the relapse prevention strategy.

The idea with the relapse prevention strategy was - and this was remarked upon actually by the community justice people who vetted it prior to my approval for parole - the thing that they found to their satisfaction and approved of was not only was it a comprehensive strategy, but the way that I had structured it, I picked up a bad situation developing at what I would call an incipient stage, and that is before it develops into an extremely bad situation.

The relapse prevention strategy permitted me to look at things and say, "What am I going to do to break this? I'm starting to overwork. I'm starting to spend time in isolation. I'm taking things on board." The idea of the relapse prevention strategy was to break those things at an incipient stage before it developed into something worse.

The way that I would explain it is -if you will indulge me - is with a vehicle you have a set of warning lights and dials. In the event that - I will use the example of a radiator boiling. Most vehicles have a red warning light that comes on just before the motor is going to boil, just before the radiator is going to boil and overheat. If you had a gauge with temperature on it you could see a bad situation developing before the red light came on. The concept that I use with my relapse prevention strategy using that analogy was to pick up a bad situation developing as the temperature is starting to overheat, not when the red light comes on.

And this was the thing that was remarked on by the community justice people when they assessed me for parole, that over and above most relapse prevention strategies, mine picked things up as they were starting to occur, not when they had become a dire situation. So my relapse prevention strategy was acknowledged by the Parole Board and by the community justice people as being extremely comprehensive. I took the further steps of sharing that strategy, that document, with my partner [name omitted], and I shared it with my brother and my sister-in-law here in Perth.

Initially was to be released on parole to Western Australia, and that would mean that I remained at my brother's house. So I shared the relapse prevention strategy with him. I gave him a copy and I explained, "This is my intention going forward. For the sake of transparency this is what I plan to do. These are my shortcomings. This is what I plan to do to address them. And here is how I'm going to pick them up." So in essence that relapse prevention strategy was shared amongst my partner and my family network so that they became a part of it and held me to it.

1. It is encouraging that the Applicant was able to reflect on his offending, what he thought the causes of his offending were, and that he has attempted to develop such a strategy in response to his self-reported causes that contributed to his offending. These were described by the Applicant as feeling stressed and overwhelmed with his additional responsibilities at work, his relationship and family responsibilities (including caring for his elderly mother), and his work as an environmental activist in which he gave evidence that he and his partner were exposed to bullying on the Internet (transcript, page 23-24).
2. In saying this, the Tribunal does have concerns that there is a significant gap between these stressors in the Applicant's life, and the very specific nature of his offending in the form of child sexual offences. In his evidence at the Tribunal hearing, the Applicant provided the following explanation (transcript, pages 49-50):

MR GERRARD: I accept that you were under pressure at work. I'm finding it difficult to see a causal link between these pressures and what is a very specific and sustained period of offending?

MR VARLEY: I think the frustration on my part was not seeing a way forward because here was I between a rock and a hard place. I had my responsibilities to my family who were [sic] a fixed location in Perth. I had responsibilities or a desire to be with a partner. To be with my partner would mean I would have to make a choice. I would have to leave Perth and go to Tasmania. It wasn't an option for her to come to Perth with her own circumstances. So I was in a situation, I suppose, of feeling a sense of hopelessness with that, which led to the offending and that was, I suppose, exacerbated by everything else that was going on with - - -

MR GERRARD: Well that's the - I'll stop you there because that's the difficulty I'm having is trying to establish this link between the pressures you were under?

MR VARLEY: Yes.

MR GERRARD: And the sense of hopelessness you say?

MR VARLEY: Yes.

MR GERRARD: And what is a very specific event. This is not like using drugs or alcohol, or this is not reacting?

MR VARLEY: Sure.

MR GERRARD: This is a sustained course and to advertise to engage with a young teenager. I'm asking you to explain what that link is?

MR VARLEY: I'm not quite certain what you're getting at there with the link. Can you re-explain that or pose it a different way.

MR GERRARD: All right, well I would understand - - -

SENIOR MEMBER: Perhaps I might ask though. What do you think the link is between the family and work pressures that you've described and these quite specific offences involving a child. Because as Mr Gerrard has said, you know, some people when they're under these sorts of pressures they turn to drugs and alcohol, for example. You've turned to something sort of quite different and quite specific?

MR VARLEY: I suppose to answer that, the key to that is what I was talking about earlier in that the people that were responding to me, the words I used were harsh or brash and that was not what I needed in my life at the time. I needed something a lot more respectful, gentle. The harshness and the brashness I needed to be away from. I was receiving that from social media, the attacks on social media, so I suppose in answer to the question the connection here is, as I explained, I changed the wording of the ads or I specifically sought out two different groups of people. It was originally 19 to 23 year olds or 22 year olds, that became teens and over 55s. I was avoiding brashness in my life. I persisted with the conversation because there wasn't a brashness, there wasn't a harshness to that conversation. That is the best way I can explain the link between what was going on in my life and why I persisted.

1. In the Tribunal's opinion, whilst sometimes emotional stressors can be a contributing factor in sexual offending, there is no independent psychological evaluation of the likely causes of the Applicant's offending before the Tribunal. Although the Prisoners Review Board referred to the Applicant's relapse prevention plan being formulated with a psychologist (Exhibit R1, page 298-299), there is no evidence of any development or approval of such a plan with a psychologist before the Tribunal. Whilst the Applicant has endeavoured to reflect upon the causes of his offending, in the absence of an expert opinion, for example from a forensic psychologist, it is difficult to ascertain the soundness of the Applicant's relapse prevention strategy and its likely effectiveness in reducing his likelihood of reoffending. The Tribunal is also concerned about the nature of the offences which involved grooming a child over a number of weeks. There is no evidence of any psychological assessment of the Applicant in terms of whether he maintains an attraction to minor boys, whether the Applicant retains or has been rehabilitated from this deviancy, or whether it was a "one-off" proclivity that is unlikely to be repeated.
2. The Applicant described the following insights after completing the Reach For Life course (Exhibit R1, page 125):

The most powerful lesson that I took away can be best explained as:

'Each person we meet is real, and the consequences of our actions are very real'.

This is especially relevant in the case of my offending as the online situation, being highly impersonal and very easily accessible, means I was capable of causing great potential damaged others by overstepping appropriate boundaries of behaviour. By rationalising and not seeing the victim as real.

Being able to meet victims of crime face-to-face, and hearing of the devastating impacts that others actions have had on them, served to reinforce to me the importance of seeing another person as a real individual, and of always respecting their rights in any situation - in person or on-line.

(Emphasis in original.)

1. The Tribunal does, however, have some doubts about these gains in light of the evidence given by the Applicant at the Tribunal hearing where, in the Tribunal's opinion, he attempted to minimise his offending behaviour. The Applicant first tried to minimise why he placed an advertisement with respect to "teen guys" (transcript, pages 39-41):

MR VARLEY: Yes. I had actually placed two ads on the site. One initially was to meet people aged between, I think it was 19 to 22 or 23. The other ad was to meet people 55 years and over. The reason for that disparity was I had initially gone on the site and I'd found for most part people were aged in the, I suppose, age bracket of 30 to 40. The respondents were typically quite brash or rude. Some of them implied that drug taking was involved and I didn't agree with either of those.

So I'd actually placed the ad originally for people of the age group - I'll cut to the bottom line, I didn't like the harshness of the respondents so I placed an ad to meet younger people who weren't of that kind of character of the people that were responding and older people who equally weren't of that character. What I found was that people that were responding to the ad of 19 to 23 were typically older again. They ignored the age bracket that was being specified.

So I had initially put "I'm seeking teen guys" was how the wording changed. To overcome this problem of these people that were responding to the ad but being in the older age bracket that I was trying to avoid. Your question went to why did I place the ad that said "Young teen guys", is that what you said?

MR GERRARD: Yes. Why did you use the expression "Anything young teens wanna play today"?

MR VARLEY: Okay. The wording had been "Teen guys" however it was a source of frustration when I was receiving older enquiries, I actually changed the ad and put "Young teen". I'm not sure how long that ad stayed up. I actually looked at it and thought the better of it and thought that is misleading and I actually took the ad down but I'd received a - I guess I had received a response to that particular wording. There's no way of seeing this on the site of who the - the wording that the person's responding to.

The reason that I put "Any young teen guys want to play today?", I was looking to meet a teen guy. I had reworded the ad out of frustration that older people were responding to it and it was driving a point that "No, I'm not looking for people of that age bracket."

SENIOR MEMBER: Which people were being abuse (sic), did you say?

MR VARLEY: Well, I found - not so much abusive but quite rough in terms of character is probably a better way of putting it. They weren't being - abusing me.

SENIOR MEMBER: Yes.

MR VARLEY: It was just their demeanour, I suppose, by way of an explanation.

SENIOR MEMBER: Which people were these? Like, the 19 to 23 or the over 50?

MR VARLEY: No, the typical respondents here - I'm giving a rough age bracket but they would be 30 to 40 year olds that were typically responding to these ads and this is why I say when I put in the submission that this wasn't a website which was frequented by minors, the people that were responding were in the general age bracket of 30 to 40 and a fair proportion of them were quite brash, rude or abrupt with their approach. I wouldn't characterise it as abusive.

1. There is no evidence before the Tribunal of these other two advertisements, nor of any of the "brash" responses allegedly received by the Applicant. In the Tribunal's opinion, the explanation given by the Applicant with respect to why he placed an advertisement for "teen guys" in order to filter "brash" comments from older persons responding to his advertisements is an attempt to put forward an alternative view that he had not intended to contact minors. The Tribunal does not accept this version of events as a credible explanation for placing an advertisement for "teen guys" who are "first timers and curious" and who "want to play". Additionally, the Applicant's explanation was not referenced in the remarks of the Sentencing Judge, and appears to be revisionism by the Applicant for the benefit of the Tribunal hearing.
2. The Applicant further stated at the Tribunal hearing that whilst he accepted responsibility for his offending, he believed that the 14 year old persona was actually a 20 year old male (or as suggested by Mr Gerrard a 22 year old male) with whom he had previously had contact with via the Craigslist web site. The following exchange is relevant (transcript, pages 41-43):

MR GERRARD: All right, let's look at context. Jack Matthews responded and said he was 14 and that "Hopefully you don't think I'm too young"?

MR VARLEY: Yes.

MR GERRARD: And you said in your evidence today that you didn't think he was?

MR VARLEY: Correct.

MR GERRARD: Well, that seems to have only arisen in your statement of facts, issues and contentions. I'm not seeing that said anywhere else?

MR VARLEY: Where it was first raised, when I was questioned by detectives, they handed me the transcript of the original email from Jack Matthews and the question that was put to me was "Did you see he said he was 14?", I said "Yes, I saw he said he was 14. I didn't think he was 14".

MR GERRARD: Well, the notes of the police interview said that you were asked how old he was and you said 14 or 15? Are you saying that's not a correct reflection?

MR VARLEY: I do recall being asked "Did I see that he said he was 14?"

MR GERRARD: And there are lengthy communications with Jack Matthews and there is nothing in that to suggest that you had any suspicion that he "wasn't" 14?

MR VARLEY: No, and I accept that, and this is where I am in the wrong, I communicated with that persona as if they were that person.

MR GERRARD: You in fact asked him about school and his school friends?

MR VARLEY: Correct, yes.

MR GERRARD: That's not squaring an idea that he was a 22 year old, is it?

MR VARLEY: To answer your question no, it's not. But the reason that I did that was I understand that some people can articulate themselves behind or using a persona and in that sense I continued to communicate with the person "on the basis" of that persona. What I had thought was to be the case was, and I believe this is in the submission to you, I had received an email a few days prior from a person who was a 20 year old university student. He had a similar name to Jack Matthews, it was either a "Jason" or a "Joshua" but he had used a full name. He'd use his name and his surname. We had a communication. He was very shy and he terminated communication with me.

When Jack Matthews emailed me I saw similarities between the communication from Jack Matthews and the communication that I'd received from this university student some days before. Using the full name, a first name a surname, was unusual and I'd received a number of enquiries to the ads, no one else had used a full name and given a surname so rightly or wrongly I had picked up on that and presumed that this was to be the same person.

When he used a false persona it kind of, to me, smacked of a person just like this Joshua or whoever his name was that contact me, it seemed that he was more comfortable to articulate things behind a persona and I persisted with it. It doesn't minimise what I did but that's my mindset at the time.

1. Further, the following exchange with the Applicant during cross-examination is relevant. Again, the Applicant's evidence to the Tribunal was that he believed that Jack Matthews was a 20 year old university student (transcript, pages 43-44):

MR GERRARD: So even when Jack Matthews asked if you'd ever done this with anyone his age and you said "Yes, I had a friend who was a couple of years older than you".

MR VARLEY: Yes, I don't know whether that was actually a truth or whether that was just part of the story that I went along with.

MR GERRARD: And didn't you say something similar to the police?

MR VARLEY: Yes and I told them I believe that - when they said "Did...", this other person, what age, I think I said to them that the person was 18 - or 17 or 18 years old.

MR GERRARD: Not 16.

MR VARLEY: I don't recall it being 16.

MR GERRARD: So notwithstanding the fact that you advertised for young teens and notwithstanding the fact that Jack Matthews said he was 14?

MR VARLEY: Yes.

MR GERRARD: Repeatedly talked about his age and being in school and that you engaged with him on that basis, indeed asking him questions about his school; your evidence to the tribunal is that you thought he wasn't a 14 year old?

MR VARLEY: I've tendered that on the basis of explaining the broader situation. I appreciate that the tribunal can accept or reject that.

SENIOR MEMBER: Sorry, I don't think you answered the question. Did you want to ask the question again, Mr Gerrard?

MR GERRARD: Yes. Thank you, Senior Member. You advertised for a young teen?

MR VARLEY: Yes.

MR GERRARD: You engaged with the Jack Matthews character as a young teen.

MR VARLEY: Yes.

MR GERRARD: But you are now telling the tribunal that you thought he wasn't a young teen?

MR VARLEY: In the back of my mind there was a belief that he wasn't a young teen and that's what I'm saying to the tribunal now.

MR GERRARD: And that's not what the court found though, is it?

MR VARLEY: Correct.

MR GERRARD: In fact there's never any mention in the sentencing remarks that you had a belief that he wasn't?

MR VARLEY: No, and I take responsibility for that.

MR GERRARD: Why did you plead not guilty originally?

MR VARLEY: I pleaded not guilty, I explained the situation to a lawyer as I've explained to you, he listed (sic) to that and he said to me "I think you should plead not guilty on that basis". I said to him ---

MR GERRARD: What was that basis?

MR VARLEY: With the explanation that I've just given you with the background as to how it occurred, that in the back of mind I didn't think this was a 14 year old, that I thought initially that it was this person that had contacted me some days before, being a 20 year old uni student, I continued with the communication "knowing" that that 20 year old uni student was a shy person and that perhaps he'd used a persona and he was continuing to use a persona to articulate perhaps or to explore his sexuality, if you want to put it that way, and I persisted with a conversation.

The lawyer said to me "On that basis, you should plead not guilty". I said to him, "I am guilty of something though. I have done something wrong" and he asked me "What is it that you think you are guilty of?" and I said, "Well, in persisting with this conversation with a persona who had said repeatedly that he's 14, I'm guilty of recklessly endangering a minor".

MR GERRARD: Mr Varley, that strikes me as revisionism. The sentencing remarks say that you had changed your plea after hearing the evidence of the detectives, that you were caught red-handed ---

MR VARLEY: Yes.

MR GERRARD: and your position was almost indefensible?

MR VARLEY: Yes.

MR GERRARD: Is it not the case that you changed your plea because you knew you were going to be found guilty?

MR VARLEY: Yes, I changed my plea because given the information that I had given, yes you're absolutely correct. I would be found guilty. My lawyer had contacted me and said, "I can continue and I can put your case forward...", which hadn't been presented at that time, "It's going to cost you more money" so there was a question of more funds arising at that point. He said, "Or you can change your plea to guilty and simply accept it because if we persist, you may be given a far harsher sentence".

MR GERRARD: So it's not the case that it was because you had thought that you were guilty of some sort of recklessness. You, an intelligent man, Mr Varley, you understand what intent to procure a person believed to be under 16?

MR VARLEY: Yes, I do.

MR GERRARD: You know what it means, don't you?

MR VARLEY: Absolutely I do, yes.

MR GERRARD: And you knew when you pleaded guilty to those, that you were accepting the facts of that?

MR VARLEY: Yes.

MR GERRARD: And you knew that those facts were that you "believed" this person to be 14?

MR VARLEY: I had to accept that, yes, and that is why is before you know. That is what I have been charged with, that is what I have been found guilty of.

MR GERRARD: And this tribunal is bound by those convictions but moreover, you've made those admissions. You've made that plea.

MR VARLEY: Correct, yes.

MR GERRARD: And what I'm concerned about, or what the respondent is concerned about, is that now that you're saying at this point that you believe the person to actually be 22 notwithstanding the plea and notwithstanding the nature of those contexts.

MR VARLEY: Yes.

MR GERRARD: That doesn't indicate a fulsome acceptance of your responsibility and your culpability. We're not hearing that you were engaged in inappropriate conversations with a 14 year old and you "knew" that, what we are hearing is that you "thought" they were 22.

MR VARLEY: Yes, I accept that but what I hope you are also hearing is that I am taking responsibility that I did persist with a conversation with a person who was saying they were 14 and I am guilty of that, that is a wrongdoing.

1. In the following exchange with Mr Gerrard under cross-examination, the Applicant again sought to minimise his offending by stating that he did not think he was arranging to meet a 14 year old boy. Also, police found condoms in the hotel room, which was noted by the Sentencing Judge (Exhibit R1, page 60), however the Applicant denied deliberately bringing them to the hotel room. The following exchange is relevant (transcript, page 47-48):

MR GERRARD: And this was no mere curiosity or idle fantasy on your part, was it? You made arrangements to meet him?

MR VARLEY: Yes, I did.

MR GERRARD: You booked a hotel room.

MR VARLEY: Yes, I did.

MR GERRARD: You purchased condoms which were in the hotel room?

MR VARLEY: Well, those actually were not purchased specifically for that.

MR GERRARD: You brought them then.

MR VARLEY: They were in a bag which I had had in my wardrobe for some time. I pulled the bag out actually not knowing that they were there.

MR GERRARD: And you did not deny that you would have had sex with this person if you had met them?

MR VARLEY: I was in truth not expecting a 14 year old lad to appear.

MR GERRARD: But you've told the police that you would have had sex with this person had they arrived?

MR VARLEY: Yes, but that is in the context that in the back of mind this is not a 14 year old boy.

MR GERRARD: Would you have asked?

MR VARLEY: Yes, if it's going to be quite a difference between an underage person and an older teen, yes.

MR GERRARD: Well, you say that but you apparently weren't discriminating on the basis of the correspondence you'd had?

MR VARLEY: Sorry, I ---

MR GERRARD: You'd engaged with him on the basis that he was a 14 year old boy?

MR VARLEY: Yes, I had but I had engaged with him on the basis that he was speaking from behind a persona and I acted on a presumption that this is an extremely shy person who is perhaps more comfortable in presenting behind a persona, getting to know somebody, and then meeting them.

1. The Tribunal does not accept the Applicant's explanation that he thought he was corresponding with a person who was 20 to 22 years of age pretending to be a 14 year old boy due to shyness. This explanation was not given to the District Court by the Applicant prior to his sentencing, and it appears to be a new version of events put forward for the benefit of the Tribunal in order to minimise the Applicant's offending. The explanation does not accord with the wording of the advertisement in which the Applicant advertised for "young teens" who were sexually inexperienced ("first timers"), nor with the content of the Applicant's recorded conversations with Jack Matthews in which there were repeated references to Jack Matthews being 14 years of age and being at school.
2. The Applicant's minimising of his offending behaviour also raises some doubts in the mind of the Tribunal as to any gains that he may have made in the voluntary programs he undertook in prison, particularly the Reach for Life Program, which was the last (and therefore most recent) program the Applicant undertook whilst in prison. The following exchange with Chaplain Monk, who was a facilitator of the Reach for Life Program when the Applicant completed it, is relevant (transcript, page 66-67):

MR GERRARD: You mentioned that Mr Varley was willing to speak of his offence and had faced up to what had happened?

CHAPLAIN MONK: Yes.

MR GERRARD: Did he talk to you or has he spoken to you about his offence or his offences?

CHAPLAIN MONK: Yes. Yes.

MR GERRARD: What is your understanding of those offences?

CHAPLAIN MONK: That he very foolishly attempted to make contact with a young person on line. He didn't listen to what he'd really heard thinking that the person was older, yes, but it doesn't matter, as he agreed himself, it doesn't matter. He shouldn't have been on line trying to contact anyone in that - in that manner. I believe there's nothing further been located on his computers at the time, and I know he's - he had stated he was most ashamed at what had actually happened.

MR GERRARD: So his participation in this course was based on the fact that he assumed it was not a 14 year old boy?

CHAPLAIN MONK: Well, he commented that, he was told it was 14, but he thought he'd been earlier - been older, and he should have realised and listened to what he was told and not gone on with the conversation that he held.

1. This exchange indicates that, at the time of this program, and after completing the Gatekeeper Workshop and the Standing on Solid Ground Program, the Applicant was seeking to minimise his offending by claiming that he thought that he was corresponding with an older person. This does cause the Tribunal to doubt the insights that the Applicant expressed after completing these programs and any gains that he may have made as a result of completing them.
2. The Tribunal notes the Applicant's evidence that he undertook voluntary, one on one counselling sessions in prison (transcript, page 29), and that he continued with counselling whilst in immigration detention (transcript, page 79). He also sought to voluntarily comply with the requirements of his parole order, and also with his Sex Offenders Management Squad (SOMS) reporting requirements and conditions whilst being in immigration detention, despite there being no requirement for him to do so (see, for example, transcript, page 78-79; Exhibit R1, pages 313-314). The Applicant contended that this is behaviour not consistent with a person who is at risk of reoffending. Continuing to attend counselling is to the Applicant's credit. So too is voluntarily complying with these reporting requirements. However, compliance with these reporting requirements within the controlled environment of a detention centre is not in and of itself evidence of rehabilitation. Additionally, such an environment is different from the community in which the Applicant's rehabilitation is untested.
3. The Tribunal further notes that should the Applicant be released into the Australian community, he will be subject to SOMS reporting requirements and conditions which may act as a protective factor. At the Tribunal hearing the Applicant also noted that if he reoffended, he would again face Visa cancellation which would be a further deterrent to his reoffending (Transcript, page 52).
4. The Tribunal also notes the Applicant's submission with respect to his being granted parole by the Western Australian Prisoners Review Board (PRB). The Applicant has submitted that he, "was subject to minimum parole conditions" (Exhibit A1, paragraph [23]).
5. The Applicant also referred to (transcript, page 78-79):

...the actions of the Parole Board and their satisfaction with my acceptability for return to the community is found at two points.

Firstly, I was granted parole at first application at the earliest date. No further treatments were prescribed at that point. The additional professional indicator was then found in further interaction with that parole board and that specifically related to the permission to return to an address other than the pre vetted residential address that formed part of the original parole order.

1. The Tribunal notes the Applicant's submissions with respect to his being granted parole by the PRB (Exhibit R1, page 293). In these submissions the Applicant stated that he was originally granted parole from 16 February 2017 which was his earliest eligibility date, and was issued with a parole order to that effect. He stated that he then elected to defer his release on parole in the hope of settling his immigration status.
2. The Tribunal further notes that on 19 April 2017 the PRB granted parole to the Applicant, with a release date of 3 May 2017 (Exhibit R1, page 298). The reasons for parole were stated to include the following (Exhibit R1, page 298):

The Board decided that your release would not present an unacceptable risk to the safety of the community due to;

1. Participation in voluntary programmes demonstrates a motivation and willingness to address offending behaviour. You have been assessed in prison as having no intensive treatment programme needs.
2. A commitment to attend psychological counselling to address your offending behaviour.
3. A minimal court history.
4. The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
5. The Board notes that your Visa has been cancelled however, considers that you have a viable parole plan which includes confirmed suitable accommodation and family support.
6. The conditions of parole will further reduce the risk to the safety of the community.
7. The PRB imposed a number of conditions, in addition to the standard statutory obligations and requirements, as follows (Exhibit R1, page 298-299):

1. To abide by Australian National Child Offender Register requirements.

2. To have no unsupervised contact with children under 16 years of age.

3. To attend psychological counselling as directed.

4. To attend programmes as directed.

5. Not to change address without the prior approval of the Community Corrections Officer.

6. To provide your Community Corrections Officer with a copy of the relapse prevention plan formulated by you with your psychologist whilst in prison.

1. These parole conditions were discussed by the Tribunal with the Applicant at the hearing. The Senior Member was formerly a Deputy Chairperson and Community Member of the Prisoners' Review Board, and is therefore able to make the following observations about parole from a position of direct knowledge. It was put to the Applicant by the Senior Member that she had seen many parole orders and the conditions imposed on the Applicant were essentially the full range of conditions that the PRB would impose for this type of sexual offending. Although the Applicant submitted that, "the interview that formed part of my parole submission I was nominated or I was advised at that point that there were no requirements for treatment programs", the Applicant is referring to the interview that he had with the Community Corrections Officer in prison. This Officer prepares a report with certain recommendations which goes to the PRB prior to their making a decision with respect to a prisoner's parole. In fact, when the PRB made the parole order with respect to the Applicant, they expressly imposed standard conditions with respect to the Applicant completing programs and counselling as directed by the Community Corrections Officer (see transcript, page 55-57), as quoted above at paragraph [103]. Hence, the Applicant's submissions that the PRB did not require him to undertake any further treatment contradicts the express terms of the parole order.
2. The Applicant also made submissions regarding the amendment to his parole order on 24 November 2017 (Exhibit R1, page 280) which he stated demonstrated "the degree of confidence the WA Prisoner's (sic) Review Board had in my return to the community" (Exhibit A1, paragraph [26]). The Applicant further submitted that, "the latitude that the WA Prisoner Review Board afforded me is unprecedented, and as such it stands is a clear testament to the level of confidence that they had in me with respect to my return to the community". In the same submission he referred to the PRB's "clear and evident enduring approval of my re-entry to the community" (Exhibit R1, page 294). This warrants a consideration of the parole order amendment that was actually made with respect to the Applicant.
3. The reasons for parole, and the additional condition added by the Board which forms the basis for the Applicant's submission, were stated to include the following (Exhibit R1, page 280):
   1. The Board is informed that since your Parole Order was issued you have been held in immigration custody and you are now voluntarily returning to your country of origin from where you intend to continue to pursue the revocation of cancellation of your Visa.
   2. When the Board agreed your Parole Order on 19 April 2017, it was satisfied that you provided a suitable parole plan for release in Australia. In view of this that Parole Order remains valid and the Board determines to amend the Parole Order to include: "To immediately advise the Prisoners Review Board in writing, details of your intended date of return (or release) and an Australian address, if you were required to leave Australia under the migration act and you subsequently returned to Australia before your sentence expiry date (or you challenge your removal and are successful in their revocation of the cancellation of your Visa)."
4. The Tribunal observes that this amendment to the Applicant's parole order was made on the basis of the Applicant advising the PRB that he would voluntarily return to the United Kingdom from where he would pursue the revocation of the cancellation of his Visa. The actual conditions imposed are those in the previous parole order of 19 April 2017, together with an additional condition which requires the Applicant to advise the address where he intends to reside if he were to return to Australia. In the Applicant's written submissions, he stated, "Had any concern of risk have existed, the WA Prisoner Review Board would have elected to reassess my suitability to return to the community and almost certainly specify that I return to reside at the pre-approved residential address only." (Exhibit R1, page 294, paragraph [6]). Contrary to the Applicant's submissions, this is a standard condition imposed by the PRB in circumstances where a prisoner is voluntarily deported. The process is that as soon as the PRB is advised of the date of intended return and proposed address, an accommodation assessment would be undertaken by the relevant Department to determine the suitability of the proposed accommodation. If the accommodation was found not suitable, it would be referred to the PRB for reconsideration. Consequently, the condition is not a relaxation of any of the conditions of parole imposed by the PRB on 19 April 2017, and the Tribunal observes that the terms and conditions of the parole order of 19 April 2017 were still in place. The Tribunal is of the opinion that the Applicant's parole orders are fairly standard for a person of the Applicant's background and type of offending. They are not exceptional or out of the ordinary. The parole order amendment of 24 November 2017 is also in standard terms and does not amount to the PRB providing the Applicant with "latitude" that is "unprecedented", or "enduring approval".
5. In summary, the Applicant's statements about the PRB's confidence in his rehabilitation are unsupported by the express terms of the parole order of 19 April 2017 and its amendment on 24 November 2017. The Tribunal does note, however, that in considering whether a prisoner should be released on parole and subject to a period of parole supervision in the community, the PRB "must regard the safety of the community as the paramount consideration" (Sentence Administration Act 2003 (WA), s 5B). This is reflected in the reasons for decision of the PRB which state: "The Board decided that your release would not present an unacceptable risk to the safety of the community" (Exhibit R1, page 298). If the PRB regards a prisoner as being an unacceptable risk to the safety of the community, the PRB will deny release on parole. The assessment of risk is for the period from the date they are released on parole until the expiry of the maximum sentence. In the Applicant's case, his parole period was a period of approximately nine and a half months. This is a period of supervision during which the person on parole will be supervised by, and report regularly to a community corrections officer, who will monitor his or her compliance with the parole conditions imposed by the PRB. The Tribunal observes that the PRB's decision to release the Applicant to parole would have been made after an assessment of his risk to the safety of the community and the extent to which monitoring and supervision to ensure compliance with the conditions of parole would reduce this risk. However, this does not mean that the PRB formed the view that the Applicant was not a risk to the safety of the community, or that he was fully rehabilitated and would not reoffend in the future. It simply means that the PRB was of the view that with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community. The Tribunal takes into account the granting of parole to the Applicant by the PRB and the PRB's assessment that he did not pose an unacceptable risk to the safety of the community for a period of parole supervision and monitoring on specified terms. The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant's likelihood of reoffending, based on the merits of the Applicant's application before the Tribunal and the submissions and evidence before the Tribunal.
6. The Applicant has submitted that he is a "person of enduring moral character" and that he will not reoffend (see, for example, transcript, pages 81 and 83). The Applicant has argued that "cannot be logically or reasonably concluded" that there is any risk of him reoffending (transcript, page 81). He submitted that (transcript, page 78):

The consideration that I was a low risk of re-offending was made at the time of sentencing. The sentencing judge's comments were made before further professional evaluation, before further rehabilitation and before the salutary effects of a prison sentence, custodial sentence and a sentence of Immigration detention.

1. The Tribunal notes that the child sexual offences were the Applicant's first criminal offences as an adult. To the Applicant's credit, he has: undertaken voluntary programs and counselling in prison and immigration detention; assisted other prisoners through his voluntary work as a peer support worker; developed a recidivism prevention plan; and was granted parole by the PRB. He has served a term of imprisonment, and has spent time in immigration detention (both of which may have had a salutary effect). Additionally, according to the Applicant, he has had unsupervised access to the Internet whilst in immigration detention without incident (transcript, page 19).
2. The Applicant has the support of his brother who states that he is aware of his offending (Statutory Declaration of the Applicant's brother dated 8 January 2019 at Exhibit A1, Annexure LJV-002; and letter of support dated 17 June 2016 in Exhibit R1, page 83). The Applicant also gave evidence that if released into the community he would reside with his partner. The Tribunal has before it a letter of support from the Applicant's partner dated 17 June 2016 (Exhibit R1, page 81-82), but nothing more recently dated. The Applicant gave evidence that he is still in a relationship with his partner. He did not call his partner or brother to give evidence at the Tribunal hearing and so the Tribunal is unsure what they understand the Applicant's offending to be, although they both make general acknowledgments that they are aware of his offending. Their support may be a protective factor for the Applicant if he is released into the Australian community.
3. However, based on the evidence before it, the Tribunal finds that there is a likelihood that the Applicant may reoffend, although the evidence before the Tribunal suggests that the likelihood of reoffending is low to very low. The Tribunal is concerned that the Applicant tried to minimise his offending behaviour at the Tribunal hearing, for example, through his explanation about changing the wording of the advertisement to avoid brash older persons, by claiming that he thought he was communicating with a 20 year old university student who was pretending to be a 14 year old minor, and by claiming he brought a bag to the hotel room which happened to have condoms in it. The Tribunal does not accept these explanations as credible, and to accept them would require the Tribunal to go behind the findings of, and the convictions imposed by, the District Court. The evidence of Chaplain Monk indicates that the Applicant had completed his final voluntary prison program, Reach for Life, whilst maintaining that he thought he was communicating with an older person. This suggests that the insights made by the Applicant in these voluntary programs were not as extensive as the Applicant submitted, and in any event, any gains made by the Applicant in these programs were not measured by any formal psychological assessment. The Tribunal finds that the lack of insight displayed by the Applicant in his attempts to minimise his offending raises concerns about his rehabilitation and the future likelihood of him reoffending if he were released into the Australian community. Also, given the absence of any formal psychological assessment, it is difficult to ascertain the Applicant's likelihood of reoffending with any certainty.
4. Further, the principle set out in paragraph 6.3(4) of Direction no. 79 is relevant:

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

1. Based on the above discussion, the Tribunal finds that there is a low likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community. With regard to paragraph 6.3(4) of Direction no. 79, the Tribunal finds that the circumstances of the Applicant's convictions (which are child sexual offences) and the serious nature of the harm that can result to victims of this type of offending, mean that even a low or very low likelihood of reoffending in the future is unacceptable. On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant's Visa.

Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction no. 79)

1. The Applicant does not have any children, and there was no evidence before the Tribunal of any step-children or other minor children whose interests are relevant to consider. Consequently, this primary consideration is not applicable

Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction no. 79)

1. Paragraph 13.3(1) of Direction no. 79 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. Paragraph 6.3(2) of Direction no. 79 sets out the following principle:

The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

1. The relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 at [135]- [138] as follows:

135. In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:

[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[66]).

136. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

137. The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348 states as follows:

[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.

[65] ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement.

138. Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 applied the reasoning of the Federal Court in YNQY. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY.

1. Member Burford further explained, at [139]-[141]:

139. The Tribunal notes that both Direction no. 65 and the relevant authorities make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (Direction no. 65, Cl 8(3)). While the Direction states a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.

140. The Federal Court's decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government's views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying Uelese, 13.3(1) directs that the Tribunal should have due regard to the Government's views in this respect.

141. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.

1. In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:

The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.

1. Although Le, YNQY and Afu concerned Direction no. 65, they are equally applicable to Direction no. 79. This is because there was no change to the wording of the paragraph concerning the expectations of the Australian community in Part A, B or C when Direction no. 65 was updated to become Direction no. 79, which commenced on 28 February 2019.
2. Although the expectations of the Australian community will often weigh against an Applicant, as explained by Member Burford, the Tribunal can in the exercise of its discretion decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations.
3. Applying the comments of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and Bromwich J in Afu, the Tribunal finds that the Applicant has committed child sexual offences which are serious offences and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant's Visa. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the offences committed by the Applicant and the unacceptable risk of harm to minor children if he were to reoffend.
4. The Tribunal has balanced these considerations against the other considerations, which are discussed below, including the strength, nature and duration of the Applicant's ties to Australia and the hardship the Applicant would face if he was returned to the United Kingdom, which weigh in the Applicant's favour.
5. Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant's Visa should not be revoked. The Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant's Visa.

1. Paragraph 14 of Direction no. 79:
   • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
     • (a) International non-refoulement obligations;
     • (b) Strength, nature and duration of ties;
     • (c) Impact on Australian business interests;
     • (d) Impact on victims;
     • (e) Extent of impediments if removed.

1. It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.

1. Paragraph 14.2(1) of Direction no. 79 provides:

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

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

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

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

(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non­ revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:

(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

1. Additionally, paragraph 6.3(7) of the principles section of Direction no. 79 states, in part:

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused

1. As noted above, the Applicant is now 58 years of age, having arrived in Australia in 1964 when he was 3 years of age. Essentially, he has spent almost his entire life in Australia, including his schooling and formative years, and is now approaching retirement age.
2. The offences which are the subject of this application were committed between December 2014 and January 2015, and so at the time of the offending, the Applicant had lived in Australia for approximately 50 years. Up until this offending, the Applicant has positively contributed to the community. For example, the Applicant obtained a professional flight crew licence and flight instructor rating after completing year 12 in 1977, and obtained considerable experience working in the aviation industry since 1983, including as a flight instructor, consultant, and educator (Exhibit R1, page 129). He is highly skilled in the aviation industry, and has contributed scientific knowledge to the industry to implement bird strike mitigation measures (Exhibit R1, pages 129-130, 309, 311). The Applicant is also a passionate environmentalist, having undertaken voluntary work in the area of marine and environmental conservation over two decades (Exhibit R1, page 252). His environmental work has involved the protection of endangered and threatened species of fauna (Exhibit R1, page 126). He has also undertaken voluntary work in maritime conservation including in the area of whale stranding and improving rescue techniques, shark attack mitigation and control measures, and monitoring of bottlenose dolphins in the Perth Swan River. Additionally, the Applicant has submitted that he has been an invited guest speaker and public speaker at environmental conventions, including speaking at public meetings and giving press interviews (Exhibit R1, page 128). The Applicant has also written two books regarding the culling of dolphins in Japan that are sold internationally (Exhibit R1, pages 252, 257-262, 302).
3. Other examples of positive contributions to the community submitted by the Applicant included assisting an elderly man in 1979 who had collapsed from a serious medical condition and a young man on the beach who had attempted suicide (Exhibit R1, pages 253-4; Exhibit A1, paragraph [44]).
4. The Applicant's partner, brother, and sister in law reside in Australia and are Australian citizens (Exhibit R1, page 133-134). He has no family in the United Kingdom. The Applicant and his brother are part-time carers for their 97 year old mother who is also an Australian citizen (Exhibit R1, page 136) who is suffering from health issues including injuries from a serious fall on 28 December 2018 (Exhibit A1, paragraphs [48]-[50]; Annexure LJV-002; and see also Exhibit R1, page 267). Should the Applicant be removed from Australia, he is unlikely to see his mother again because she is too frail to travel, and his removal is likely to have a negative impact on her. The Applicant also submitted that his partner would be unable to leave Australia to join him if he were returned to the United Kingdom due to her own family commitments in Australia (Exhibit A1, paragraph [47]), and his removal from Australia may cause emotional hardship to his partner (Exhibit R1, page 81-82).
5. The Tribunal finds that the Applicant's links to the Australian community are very strong. The Australian community is likely to have a higher level of tolerance for the Applicant to remain in Australia, given that he has lived in Australia from a very young age. He has spent his adult years, up until the time of his offending, making positive contributions to the community (including his employment and environmental and conservation work), has strong family ties in Australia, and his removal from Australia may have a negative impact on his elderly mother in particular. The Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant's Visa.

1. It is also not relevant to consider whether a decision not to revoke the cancellation of the Applicant's Visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79). The Applicant is not involved in the delivery of any major projects, or the delivery of an important service in Australia. Although he is involved in maritime and environmental conservation activities, such work is of a social, political and voluntary nature and would not fall within this "business interests" other consideration. The Tribunal has, however, considered the Applicant's environmental advocacy work under the other consideration of strength, nature and duration of ties.

1. This other consideration of the impact of a decision not to revoke the mandatory cancellation of the Applicant's Visa on victims or the family members of victims is also not relevant. This is because the Applicant was communicating with a police officer who adopted a fictitious persona, and consequently there was no actual child victim of the Applicant's offending (paragraph 14.4(1) of Direction no. 79).

1. Paragraph 14.5(1) of Direction no. 79 provides:
   • (1) 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 substantial language or cultural barriers; and
     • (c) Any social, medical and/or economic support available to them in that country.
2. The Applicant is a 58 year old man who is likely to face social and emotional difficulties if he is returned to the United Kingdom. As noted above, the Applicant's evidence to the Tribunal was that he has no family in the United Kingdom and his de facto partner, brother, sister-in-law and elderly mother, who are his social supports for him, reside in Australia. The Applicant also gave evidence, as was also noted above, that his de facto partner was unlikely to join him if he were to return to the United Kingdom. This lack of family and other social supports are likely to be impediments to the Applicant in adjusting to life in the United Kingdom.
3. There is no evidence before the Tribunal that the Applicant suffers from any physical or mental health issues.
4. The United Kingdom shares a common heritage, and has a similar culture to Australia, and so the Applicant would not face any language or cultural barriers if he were to return to the United Kingdom.
5. The Applicant has specialist skills and substantial experience in the aviation industry which may assist him to find employment if he is returned to the United Kingdom, although his age may possibly be an impediment to finding employment. He is apparently well respected for his books and advocacy work in the area of marine conservation and environmentalism which may also assist him to find employment. The Applicant gave evidence that he has the sum of $100,000 in superannuation, and that he owns a property in Australia with his partner which is mortgaged. The Applicant may be able to draw upon some of these financial resources to assist him to adjust if he were to be returned to the United Kingdom. The Tribunal notes that there is no independent evidence before it of the Applicant's financial resources, other than the evidence of the Applicant.
6. The Applicant submitted that if he were to return to the United Kingdom, he would not receive the same healthcare and aged pension benefits that he would if he were permitted to remain in Australia and he would not be able to maintain the same standard of living in the United Kingdom (see Exhibit A1, paragraph [56]; transcript page 53). The Applicant gave evidence at the Tribunal hearing that he cannot qualify for a full pension in the United Kingdom because he has not fulfilled the eligibility requirement of having worked there for 35 years. The Applicant further submitted that to qualify for a partial pension he would has to have worked for 10 years in the United Kingdom, meaning that he would have to be in full-time employment until the age of 69 to qualify. He referred to an extract from a United Kingdom government website regarding pension eligibility in support of this submission (Exhibit A1, Annexure LJV-003). However, if the Applicant were to remain in Australia, he submitted that he would be eligible for a pension and would move into semi-retirement upon his return to the community (transcript, page 53).
7. [Redacted.]
8. [Redacted.]
9. The Respondent has also noted that there are organisations such as Prisoners Abroad who are able to provide limited assistance and support with resettlement in the United Kingdom (Exhibit R3, paragraph [34]). The Applicant is aware of this organisation and agreed that he would contact them if he were to be removed to the United Kingdom (transcript, page 54). The Tribunal notes that this organisation may be able to provide some assistance to the Applicant in transitioning to living in the United Kingdom, however this assistance is likely to be limited.
10. On balance, the Tribunal finds that the Applicant is likely to experience some difficulty in re-establishing himself in the United Kingdom and in maintaining the same standard of living as he has in Australia. The Applicant does however have some financial resources available to him, together with substantial skills and experience in the aviation industry, as well as in marine and environmental conservation, which are likely to assist him in finding employment. The Tribunal accepts that he may face social and emotional difficulties because he has no family in the United Kingdom. If he is returned he is likely never to see his elderly mother again, and he may be separated from his partner if she is unable to relocate with him.
11. In summary, the Tribunal finds that Applicant would suffer some emotional and financial hardship if he were returned to the United Kingdom, which weighs in favour of the revocation of the decision to cancel his Visa.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
3. In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 79), and the expectations of the Australian community (paragraph 13.3 of Direction no. 79) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant's Visa (that is, affirming the Reviewable Decision).
4. The other considerations of the Applicant's strength, nature and duration of ties to Australia, and the extent of impediments if returned to the United Kingdom weigh in favour of the Applicant.
5. However, the Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations that are in favour of the revocation of the decision to cancel the Applicant's Visa, namely strength, nature and duration of ties, and the extent of the impediments if removed.
6. In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant's Visa. The correct and preferable decision is to affirm the Reviewable Decision.

1. The Reviewable Decision, being the decision of a delegate of the Respondent dated

4 December 2018 not to revoke the mandatory cancellation of the Applicant's Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 155 (one hundred and fifty - five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

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