DFML and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 6 (6 January 2025) 
Applicant/s:	DFML
Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2024/8449

Tribunal:	Senior Member Lyford
Place:	Perth
Date:	6 January 2025

Decision:	The Tribunal affirms the decision under review.

................[SGD].............
Senior Member Lyford

CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 36 year old citizen of Pakistan – extent of impediments if returned to Pakistan – Non-Revocation Decision is affirmed

LEGISLATION
Migration Act 1958 (Cth) s 15, s 36(2)(a), s 36(1C), s 499(2A), s 76E, s 501E, s 189, s 196, s 197C, s 198, s 499(1), s 501, s 501(1), s 501(2), s 501(3A), s 501(6)(e)(ii), s 501CA, s 501CA(5), s 501CA(4), s 501CA(4)(a), s 501CA(4)(b)(i), s 501CA(4)(b)(ii), s 501CA (3)(b), s 501CA(3)(a)(i), s 501CA(3)(a)(ii), s 501CA(3)(b)(i), s 501CA(3)(b)(ii), s 501E, s 501F, s 503, s 196, s 197C, s 198, s 36(1C), s 36(2)(a), s 499(1), s 499(2A), s 501, s 501(1), s 501(2), s 501(6)(e)(ii), s 501CA, s 501CA (3)(b), s 501CA(3)(a)(i), s 501CA(3)(a)(ii), s 501CA(3)(b)(i), s 501CA(3)(b)(ii), s 501CA(4), s 501CA(4)(a), s 501CA(5), s 501E, s 501E, s 76E, s 15, s 189, s 501(3A), s 501CA(4)(b)(i), s 501CA(4)(b)(ii), s 501F, s 503.
Misuse Of Drugs Act 1981 (WA) s 6(2) B.
Criminal Code Act Compilation Act 1913 (WA) s 220, s 321(4), s321(2)
Community Protection (Offender Reporting) Act 2004 (WA)
Migration Regulations 1994 (Cth) reg 2.25AD.
Classification (Publications, Films & Computer Games) Enforcement Act 1956 s 59(5).

CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Dick and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3785
Djalic v Minister for Immigration (2004) 139 FCR 292
Edwards and Minister for Home Affairs [2019] AATA 4260
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JYVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 3617
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
NZYQ v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] HCA 37
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
R v Jones (1999) 108 A Crime R 50
SGFZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4353
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No. 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3 , 4(1), 5 , 5.1(4) , 5.2 , 5.2 , 5.2(3) , 5.2(4),  6 , 7(2),  8 , 8(1) , 8.1 , 8.1.1(1)(a)(ii) , 8.1.1(1)(b)(ii) , 8.1.1(1)(c) ,  8.1.1(1)(f) , 8.1.2, 8.1.2(1) , 8.1.2(2)(b) , 8.3 , 8.3(1) , 8.3(2) , 8.4(4) , 8.4(4)(a),(h) , 8.5(1) , 8.5(2) , 8.5(2)(a),(f) , 8.5(2)(c) , 8.5(3),  9 , 9.1 , 9.2 , 9.2(1)(a) , 9.2(1)(a) , 9.2(1)(b ,  9.2(1)(b) 9.2(1)(c) , 9.2(1)(c)

Mohammad Saiful Islam, ‘Child Abuse and Recent Trends in Bangladesh: A Critical Analysis from Islamic and Bangladesh Laws’ (2015) 20(12) IOSR Journal of Humanities and Social Science 58 – 66 

Miftahur Ridho, ‘Islamic Perspective on Child Protection’ (2015) 19(2) Lentara 187 – 198.

Statement of Reasons

INTRODUCTION

1.	The Applicant has sought review of a decision of a delegate of the Respondent, dated 14 October 2024, not to revoke the cancellation of his Five Year Resident Return visa (Class BB) (Subclass 155) (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act).   
2.	For the reasons provided below, the Tribunal affirms that decision. 
BACKGROUND 
3.	The Applicant is a 36-year-old citizen of Pakistan who arrived in Australia on 19 December 2011 at the age of 23. On 4 July 2012, the Applicant was granted a protection visa.
4.	On 16 July 2018, the Applicant was convicted of two separate counts of possess a prohibited drug (cannabis) and fined $500 for each count.
5.	On 10 March 2023 the Applicant was sentenced to 10- months imprisonment for possessed child exploitation material.
6.	On 13 June 2023, the Applicant was fined $2,000 for possess or copy an indecent or obscene article.
7.	On 27 March 2023, the Applicant’s visa was cancelled. The Applicant was notified that his visa had been cancelled under s 501(3A) of the Migration Act on the basis that he was convicted of a sexually based offence involving a child and was 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 Territory.
8.	On 23 April 2023, the Applicant applied to the Department requesting that the Minister revoke the visa cancellation decision and provided further evidence and statements in support of his request.
9.	On 14 October 2024, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the visa cancellation decision (Non-Revocation Decision).
10.	On 14 October 2024, the Applicant was released from immigration detention and granted a Bridging Visa R (subclass 070) (BVR). This was because of the Department finding that there is no real prospect that it will be practical to remove the Applicant in the reasonably foreseeable future.
11.	On 23 October 2024, the Applicant applied to the Tribunal for merits review of the Non-Revocation Decision.
12.	On 7 November 2024, the Applicant was granted a further BVR.
ISSUES
13.	The issues to be decided by the Tribunal are whether:
(a)	the Applicant passes the “character test” in s 501(6) of the Migration Act; and, if not,
(b)	the Tribunal is satisfied that there is “another reason” why the visa cancellation decision should be revoked under s 501CA(4) of the Migration Act.
HEARING AND EVIDENCE
14.	The Applicant attended the hearing, in person, on 12 December 2024 and gave evidence with the assistance of a Pashto interpreter. 
15.	Mr Tim Watson-Munro, Consultant Psychologist, examined the Applicant on 26 and 30 July 2024 and provided a psychological assessment of and report on the Applicant, dated 5 August 2024. Mr Watson-Munro also gave evidence, by telephone, in the afternoon of the hearing in support of the Applicant. Mr Watson-Munro’s report and telephone evidence will be referred to, where relevant, in the reasons below. 
16.	At the hearing, the following documents were marked as exhibits:
(a)	G-Documents G1 - G27, comprised of pages 1 – 224, lodged by the Respondent on 7 November 2024 (Exhibit 1);
(b)	Further Supplementary G-Documents FSD1, comprised of pages 1 – 14, lodged by the Respondent on 4 December 2024 (Exhibit 2);
(c)	Tender Bundle TB1 - TB5, comprised of pages 1 – 164, lodged by the Respondent on 4 December 2024 (Exhibit 3);
(d)	Statutory Declaration of the Applicant, dated 26 November 2024 and lodged by the Applicant on 28 November 2024 (Exhibit 4);
(e)	Statutory Declaration of the Applicant, dated 9 December 2024 and lodged by the Applicant on 9 December 2024 (Exhibit 5);
(f)	Supplementary T-Documents ST1, comprised of pages 1 -11, lodged by the Respondent on 13 November 2024 (Exhibit 6);
(g)	Applicant's Statement of Facts, Issues and Contentions, dated 27 November 2024 and lodged by the Applicant on 28 November 2024 (Exhibit 7);
(h)	Serco Individual Case Plan, dated 21 June 2024 and lodged by the Applicant on 28 November 2024 (Exhibit 8);
(i)	GP Mental Health Care Plan, dated 27 November 2024 and lodged by the Applicant on 28 November 2024 (Exhibit 9);
(j)	Applicant's Submissions in Reply, dated 9 December 2024 and lodged by the Applicant on 9 December 2024 (Exhibit 10);
(k)	Respondent's Statement of Facts, Issues and Contentions, dated 13 November 2024 and lodged by the Respondent on 13 November 2024 (Exhibit 11); and
(l)	Respondent's Submissions in Reply, dated 4 December 2024 and lodged by the Respondent on 4 December 2024 (Exhibit 12).
17.	Where relevant, the above evidence will be referred to in the Tribunal’s reasons below.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory visa cancellation – character test
18.	Under s 501(3A) of the Migration Act, the Minister must cancel the 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:
…
(ii)	paragraph (6)(e) (sexually based offences involving a child); and
(b)	the person 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 Territory.
19.	The “character test” is set out in s 501(6) of the Migration Act and provides: 
(6)	For the purposes of this section, a person does not pass the character test if:
…
(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
the person has a substantial criminal record (as defined by 
subsection (7)); 
	(Original emphasis & emphasis added)
Power to revoke visa cancellation decision
20.	If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice of the decision setting out the original decision, particulars of the relevant information and invite the person to make representations to the Minister about revocation of the original decision. 
21.	Section 501CA(4) of the Migration Act provides that, the Minister may revoke the original decision if:
•	representations have been made by the applicant for review in accordance with an invitation to the applicant to make such representations about revocation of the cancellation; and
•	the Minister is satisfied that:
(i)	the person passes the “character test”; or
(ii)	there is “another reason” why the original decision should be revoked. 
22.	Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the “character test” under s 501CA(4)(b)(i) of the Migration Act and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) of the Migration Act if there is “another reason” why the original decision should be revoked.  
23.	A decision under s 501CA(4) of the Migration Act involves an assessment an evaluation of the factors for and against revoking the cancellation.
Direction No. 110
24.	As stated above, the Tribunal (standing in the shoes of the Respondent) is required to form a state of satisfaction as to whether there is “another reason” why the original decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.  
25.	On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No. 110). Direction No. 110 replaced the previous Direction No. 99.
26.	The purpose of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act. 
Objectives
27.	Paragraph 5.1 of Direction No. 110 sets out of the Migration Act. Specifically, paragraph 5.1(3) of Direction 110 provides:  
Under subsection 501(3A) of the [Migration] 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 full­time 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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the [Migration] Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Principles
28.	Paragraph 5.2 of Direction No. 110 sets out the “principles” which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA” and are expressed as follows: 
(1)	Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­ citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)	The safety of the Australian Community is the highest priority of the Australian Government. 
(3)	Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)	The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable [sic] risk of causing physical harm to the Australian community.
(5)	Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)	With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia  may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 
(7)	Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. 
(8)	The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.  
29.	Informed by the principles set out in paragraph 5.2 of Direction No. 110, the Tribunal must take into account the “primary considerations” listed in paragraph 8 of Direction No. 110, and the “other considerations” listed in paragraph 9 of Direction No. 110, where relevant to the decision.
Primary considerations – paragraph 8 of Direction No. 110
30.	In making a decision under s 501CA(4) of the Migration Act, the five “primary considerations” the Tribunal must take into account are: 
(i)	protection of the Australian community from criminal or other serious conduct:
(ii)	whether the conduct engaged in constituted family violence; 
(iii)	the strength, nature and duration of ties to Australia; 
(iv)	the best interests of minor children in Australia; and
(v)	expectations of the Australian community.
Other considerations – paragraph 9 of Direction No. 110
31.	The “other considerations” the Tribunal must take into account, as far as they are relevant, include (but are not limited to): 
(i)	legal consequences of the decision;
(ii)	extent of impediments if removed; and
(iii) 	impact on Australian business interests. 
Primary & other considerations – further guidance
32.	Further guidance as to how a decision-maker is to apply the considerations in 
Direction No. 110 can be found in paragraph 7, which provides:
(1)	In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)	The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)	One or more primary considerations may outweigh other primary considerations.
APPLICANT’S CONDUCT AND OFFENDING
33.	A summary of the Applicant’s offending is set out in the table below : 
Date of conviction	Offence	Sentence	
16.07.2018	Possess a Prohibited Drug (Cannabis) 	Fine $500	
16.07.2018	Possess a Prohibited Drug (Cannabis) 	Fine $500	
10.03.2023	Possessed child exploitation material 	Reportable offence
10 months imprisonment 	
13.06.2023	Possess or copy an indecent or obscene article	Fine $2,000	

34.	On 12 December 2019, the Applicant was arrested by Child Abuse Squad Detectives and ultimately charged with six offences, one offence being Indecently Deals with a Child Over 13 Under 16 and the other five offences being Sexually penetrated a child of or over 13 and under 16. 

35.	The charges related to a sexual encounter which occurred on 29 November 2019 with a male minor that the Applicant met on the online dating application “Grindr”.  At the time of the incident, the Applicant was 31 years of age and the alleged victim was 15 years old (i.e. a minor). However, in the texts the alleged victim sent the Applicant, prior to them meeting in person on 29 November 2019, the boy claimed to be 18 years old (i.e. an adult). Proof of these texts were provided to the police, at the time, by the Applicant.

36.	More specifically, according to the Statement of Material Facts of the Western Australia Police, dated 12 December 2019, on 29 November 2019, the Applicant and the alleged victim went into the cabin of a hotel the Applicant had booked, the alleged victim sat on the bed and the Applicant stood in front of him. The alleged victim removed the Applicant’s pants and underpants, placing them on the floor, and the alleged victim touched the Applicant’s exposed penis using his hand (Indecent Dealing). The Applicant then inserted his penis in the alleged victim’s mouth (Sexual Penetration). The Applicant then made the alleged victim lie face down on the bed. The Applicant inserted his penis into the alleged victim’s anus and had sexual intercourse with the alleged victim (Sexual Penetration). The Applicant then requested the alleged victim move into the shower in the bathroom of the cabin and made him bend over before inserting his penis inside the alleged victim’s anus, again having sexual intercourse with the alleged victim (Sexual Penetration). The Applicant then requested the alleged victim move back to the bedroom where he made the alleged victim again bend over, resting his chest on the bed. The Applicant again inserted his penis inside the alleged victim’s anus and had sexual intercourse with the alleged victim (Sexual Penetration). The Applicant advised the alleged victim that he was about to climax. The Applicant removed his penis from the alleged victim’s anus, the alleged victim got on his knees and the Applicant inserted his penis inside the alleged victim’s mouth and ejaculated (Sexual Penetration) 

37.	The Applicant pleaded not guilty to all six charges. The matter was tried before a jury, with Judge Gething presiding, on 29 and 30 August 2022. The Applicant was found not guilty and acquitted of all six charges on 30 August 2022. 

38.	When the Applicant was arrested on 12 December 2019, in relation to the above incident, his iPhone 8 plus was seized by the police and, following forensic examination of the Applicant’s iPhone, child exploitation material (images/videos) was found. The material found by the police on the Applicant’s seized iPhone comprised:

•	8 category 1 images of children. Two of the category 1 images were naked pictures of the Applicant’s son which were sent to the Applicant by his wife in Pakistan on What’s app. The other six category 1 images were naked pictures of the Applicant’s friend’s male child. The Applicant was living with this friend and his family at the time; 

•	A category 3 video, made by the Applicant on his iPhone, of the Applicant touching his friend’s male child’s genitals (non-penetrative sexual activity), whilst the child was sitting on his mother’s lap; 

•	A category 4 video, depicting children under the age of 16 engaged in penetrative sexual activity; and

•	A bestiality video, depicting a dog engaged in a sex act with a male, sent to him by a friend in Pakistan on Whats App. 

39.	The Applicant was convicted on 10 March 2023 for Possessed child exploitation material with a sentence of ten months (to be served concurrently). It was this conviction which resulted in the mandatory cancellation of the Applicant’s visa by the Minister on 27 March 2023.
40.	In her Honour’s sentencing remarks, the sentencing judge, Wallace DCJ of the District Court of Western Australia, described the Applicant’s offending as follows:
In summary, you were arrested in relation to a separate matter on 12 December 2019.
At that time, your iPhone 8 Plus was seized, and was then subject to forensic examination by police. The following child exploitation material was located on that device: in category 1, eight images which depicted children under the age of 13 years in indecent photographs, either naked or semi-naked; category 3, one video depicting a child under the age of 13 years engaged in non-penetrative sexual activity with adults; a category 4 video depicting children under the age of 16 years engaged in penetrative sexual activity.
….It also had a bestiality video on it, which is not the subject of this sentencing hearing, but I’m noting that because you handed over a device that had quite distressing and confronting on it to a very young, vulnerable child….:
(Emphasis added)
41.	The Applicant pleaded guilty to the category 4 bestiality video and, as a sentenced prisoner, received a $2,000 fine.. 
42.	The Applicant also has seven driving offences, including failure to stop, drive contrary to traffic lane arrow at intersection and speeding which occurred in the period November 2012 to April 2021. 
ISSUE 1 - DOES THE APPLICANT PASS THE “CHARACTER TEST”?
43.	As noted above, failure to pass the “character test” arises as a matter of law. Under s 501(6)(e)(i) of the Migration Act, a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child.
44.	The applicant does not pass the “character test” in s 501(6) of the Migration Act because, on 10 March 2023, he convicted and sentenced to 10 months imprisonment for Possessed child exploitation material by the District Court of Western Australia:
ISSUE 2 - IS THERE “ANOTHER REASON” WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
45.	Since, for the above reasons, the Tribunal is not satisfied that the Applicant passes the “character test” in s 506(1) of the Migration Act, the Tribunal must determine whether, having regard to the primary considerations and other considerations contained in paragraphs 8 and 9 of Direction No. 110, respectively, there is “another reason” why the visa cancellation decision should be revoked. That is, the statutory power to revoke will only be enlivened if there is “another reason” why the visa cancellation decision should be revoked. 
Primary considerations – paragraph 8 of Direction No. 110
(i)	Protection of the Australian Community
46.	The first primary consideration, in paragraph 8.1(1) of Direction No. 110, focuses on the protection of the Australian community. Direction No. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Entering or remaining in Australia is a privilege that Australia confers on non-citizens 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.
47.	Paragraph 8.1(2) of Direction No. 110 provides that decision-makers should also give consideration to:

(i)	the nature and seriousness of the non-citizen’s conduct to date; and 

(ii)	the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(i)	Nature and seriousness of the Applicant’s conduct 
48.	Paragraph 8.1.1(1) of Direction No. 110 provides:
(1)	In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, decision-makers must have regard to the following:
a)	without limiting the range of conduct that may be considered very serious, the types of crimes and conduct described below are viewed very seriously by the Australian Government and the Australian community:
		i.	violent and/or sexual crimes;
ii.	crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed.
b)	without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
….
ii.	crimes committed against vulnerable members of the community (such as the elderly and the disabled)…
c)	….the sentence imposed by the courts for a crime or crimes;
d)	the impact of offending on any victims of offending or other conduct and their family,….
e)	the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
f)	the cumulative effect of repeated offending;
(Emphasis added)
49.	For the following reasons, the nature and seriousness of the Applicant’s offending to date can, in the Tribunal’s view, only properly be characterised as “very serious”. 
50.	As set out above, paragraph 8.1.1(1)(a)(ii) of Direction No. 110 provides that crimes of a sexual nature against children, regardless of the sentence imposed, are viewed “very seriously” by the Australian Government and the Australian community. The Applicant’s offending was sexually based involving children (i.e. Possessed child exploitation material). Therefore, consistent with Direction No. 110, and regardless of the sentence imposed on the Applicant, the Tribunal finds the nature of the Applicant’s offending to be “very serious”.
51.	The “seriousness” of the Applicant’s offending is reflected in the sentencing judge’s remarks. The sentencing judge found that one of the factors that made the offending “serious” was the age of the victims involved, stating:

[In relation to the category 1 images]….it was very clear to me that if it was the same victim, as you say, the victim was particularly young at various stages when those photographs were taken….
….
It seemed to me that the approximate ages of that victim went down to about 12 months, 18 months, two years and perhaps four years, but it definitely wasn’t photographs of a victim just four, it was clearly at different times and different ages. So if it’s the same victim, they are photographs of that victim over a long period of time. So the age of the victim reflects on the seriousness of the offending, and that is the same in relation to the category 3 video.

….The category 4 video: that depicted an older boy being abused…He looked about 12 or 13 years old when I looked at the video, and, again, his age reflects on his vulnerability and the severity of that offending.
….
….the videos….reflect on the severity of this offending. Category 3 is one of the higher categories, and that is a video of indecent dealing of the child. Category 4 was particularly distressing to watch. As I said before, that’s a young boy being anally penetrated, during which he was clearly distressed and screaming out in pain.
So the depravity of that, the humiliation and pain in particular suffered by that victim reflects on the seriousness of the offending…
52.	The victim in the category 1 images/photographs and category 3 video was known to the Applicant. It was the child of one of his friends. The sentencing judge found that, along with the age of the victim, this was an aggravating factor, stating:
The child was approximately four years old at the time. This child is known to you. The video depicted him naked. The video depicted him naked. His genitals were being touched, you say, when you were videoing him, and that was done in the presence of his mother because he was sitting on his mother’s lap at the time. 
An aggravating factor…is that in relation to the majority of this child exploitation material it involves a friend of yours child, and a young child, and that evidence is, to my mind, a breach of trust of that relationship and potentially evidences grooming of that child and potentially a grooming of the child’s family in order for [the Applicant] to have access to the child and secondly, to be able to offend against the child quite brazenly….
53.	The sentencing judge found that another factor reflecting on the “seriousness” of the Applicant’s offending is how long the child exploitation material was in the Applicant’s possession, stating:
…the longer somebody possesses child exploitation material, the more serious the offending is seen by the courts. If I accept your admission that the eight images [i.e. the Category 1 images] are all of the same victim, then it appears to me that you have possessed that material for quite some time because that victim is clearly of different ages during the course of taking those photographs. 
54.	Further, the Applicant admitted that the child victim (i.e. the Applicant’s friend’s minor son) had himself had taken some of the photos that were on his phone. From this admission, the sentencing judge expressed concerns that the Applicant was firstly, “encouraging [the victim] to create effectively what is child exploitation material of himself, which is aggravating, but also potentially poses a risk of him being exposed to the other material on [the Applicant’s] phone.” This other material found on the seized phone was a category 4 video of underage boys engaged in penetrative sex and a bestiality video.
55.	The sentencing judge formed the view that the category 4 video was sent to the Applicant because the sender knew he “had an interest in that kind of material” and that it was “inexplicable otherwise” given the way the Applicant had retained it. According to the sentencing judge, this also reflects on the “severity” of the Applicant’s offending and that he was “in contact with other like-minded people in order to obtain this kind of material”: 
56.	The sentencing judge also found that the Applicant’s creation, possession, and retention of that material over time was because of the Applicant’s interest and “for sexual gratification.”
57.	The Tribunal has previously held that “the demand for such [child exploitation] material and the possession and consumption thereof cannot be separated from the violence and depredations involved in its creation.” According to the sentencing judge, the fact the Applicant created most of the material, further aggravated his offending. 
58.	As set out above, paragraph 8.1.1(1)(b)(ii) of Direction 110 provides that crimes against vulnerable members of the community (such as the elderly and the disabled) are considered by the Australian Government and the Australian community to be “serious”. Children, like the elderly or disabled, represent vulnerable members of the Australian community. The applicant’s offending (Possession of child exploitation material) involved young children. In the frequently cited passage in the case of R v Jones (1999) 108 A Crime R 50, the Court emphasised that the possession of child exploitation material is not a victimless crime:
The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in sexual activities depicted and to recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.
These offences aren’t victimless crimes. Those who are prepared to access child abuse material fuel the demand for it and they encourage the corruption and exploitation of children and all the misery that that entails, as well as the long-lasting effects on those children.
59.	In relation to the Applicant’s offending, the sentencing judge similarly remarked:
….these are not victimless crimes. The generation and existence of demand for possession of child exploitation material stimulates the supply side to the incalculable harm to the children involved. The stark reality is that children are abused, they’re violated, they’re humiliated and degraded in order to supply the market.
60.	It is noteworthy that the Applicant has been sentenced to a term of imprisonment for a crime under s 220 of the Criminal Code Act Compilation Act 1931 (WA) by the District Court of Western Australia. Sentences involving terms of imprisonment are the “last resort” in a sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this should be objectively viewed as a reflection of the “seriousness” of the offences involved. The sentencing judge found that a term of imprisonment was needed “for personal and general deterrence” and appropriate because of the seriousness of the offending. Further, the sentencing judge did not accept that the Applicant’s sentence should be suspended because the “offending was serious” and there was a “significant need for personal deterrence” because the Applicant was found not to be genuinely remorseful and had not displayed “appropriate victim empathy.” The Tribunal notes that the Full Federal Court held in Djalic v Minister for Immigration (2004) 139 FCR 292 at [75] that deterrence of criminal conduct is a matter concerned with protection of the Australian community: see also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [29].
61.	In relation to the Applicant’s driving offences, paragraph 8.1.1 of Direction 110 does not limit the range of offences that may be considered “serious”. The Applicant’s driving offences should be considered “serious” given that he has been convicted of seven driving offences including failure to stop, drive contrary to traffic line arrows at intersection and speeding, over a number of years (i.e. November 2012 to April 2021): Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]- [45] and QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51].
62.	As set out above, paragraph 8.1.1(1)(e) of Direction No. 110 provides that in considering the nature and seriousness of a non-citizen’s conduct to date the Tribunal must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness. As described above, the Applicant’s Possessed child exploitation material offending is not a one-off. It was done over time, collected in different ways and the Applicant retained the relevant material for long periods of time. The Applicant’s offending more generally has increased in severity from Possesses a prohibited drug (cannabis)” to Possessed child exploitation material which resulted in him receiving a 10 month sentence from the District Court of Western Australia for Possessed child exploitation material. The sentencing judge noted that the Applicant did not come before the court “with no prior criminal conviction” or “as somebody of prior good character.” The child exploitation material by itself reveals the frequency of the Applicant’s offending and his repeated offending over time. The Applicant had taken photographs of the same victim (his friend’s minor son) at different times and different ages. Further, following his conviction in March 2023 for Possessed child exploitation material, the Applicant was convicted on 13 June 2023 for Possessed or copy an indecent or obscene article. The video depicted bestiality, namely a dog engaged in sexual acts with a male. The Applicant pleaded guilty and, as a sentenced prisoner, was fined $2,000. 
63.	As set out above, paragraph 8.1.1(1)(f) of Direction No. 110 provides that in considering the nature and seriousness of a non-citizen’s conduct to date the Tribunal must have regard to the cumulative effect of repeated offending. The Tribunal considers the cumulative effect of the Applicant’s offending on the wider community is “very serious” given the content of the child exploitation images and videos he possessed. 
64.	For the above reasons, the Tribunal’s considers that the nature and “seriousness” of the of Applicant’s offending to date can only be properly categorised as “very serious” and weighs heavily against revoking the visa cancellation decision. 
(ii)	Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct 
65.	Paragraph 8.1.2 of Direction No. 110 states, in part:
(1)	In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)	In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)	the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)	the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. 	information and evidence on the risk of the non­citizen re-offending; and
ii. 	evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
	(Emphasis added)
66.	There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment. 
Nature of the harm to individuals or the Australian community
67.	As contended by the Respondent, further offending, involving the possession of child exploitation material, causes significant physical and/or psychological harm to vulnerable members of the Australian community, namely minors. Such harm is compounded because that material is “a permanent record of the depicted children’s abuse, and harm to the children is exacerbated by its circulation”. The extreme seriousness of the nature of the harm is readily apparent and, as identified by the sentencing judge, exacerbated by the Applicant’s production of the material himself and where it potentially evidences the grooming of a young child. 
Likelihood of the non-citizen engaging in further criminal or serious conduct
68.	As set out above, paragraph 8.1.2(1) of Direction No. 110 provides that some conduct and the harm that would be caused, if it were to be repeated, is so “serious” that “any risk” that it may be repeated may be unacceptable. The Tribunal considers that the Applicant’s conduct constitutes conduct which falls squarely within paragraph 8.1.2(1) of Direction No. 110.
69.	As for the risk of reoffending, and the factors set out in paragraph 8.1.2(2)(b) of Direction No. 110, for the following reasons, the Tribunal considers that there remains a significant likelihood (which is real and unacceptable) of the Applicant reoffending which weighs against the revocation of the cancellation of his visa.
Sentencing judge’s findings on risk of reoffending
70.	The Applicant was found by the sentencing judge to have “very limited understanding or insight in relation to the gravity and seriousness of this offending.” Although the Applicant identified the child victim and the family involved which, was a mitigating factor in his sentencing. The pre-sentencing report said that the Applicant was unable to acknowledge the severity of his offending and the potential impact for the child victim or their family, Instead, the Applicant focussed on the negative impact it had on him. 
71.	The sentencing judge viewed the Applicant’s statement to his psychologist (at the time) to be “very self-serving” and made it clear that the applicant “continued to minimise his offending”, apportioning blame to others and failing to take accountability. The sentencing judge even considered that the Applicant had held back on very relevant information to obtain a more favourable report.
72.	Imprisonment was found to be required by the sentencing judge where there was “a need for personal deterrence” and the Applicant maintains that his manufacture of the offending material was “a cultural misunderstanding” and appears to attempt to minimise his behaviour because he was not aware of the laws in Australia surrounding minor children. There is limited insight into the effect of his behaviour by the Applicant. 
73.	Despite the Applicant attributing his behaviour to a “cultural misunderstanding” (which he repeated in his oral evidence at hearing), the pre-sentencing report referred to by the sentencing judge advises that his family were not aware of this offence because “they could be subject to negative repercussions if [the Applicant’s] community in [his] home town found out”. Further, the Applicant did not tell his friend that he had taken images/photographs of their child. The Applicant only identified the family involved in relation to the child victim once he met with Adult Community Corrections.  
Applicant’s evidence on risk of reoffending
74.	The Applicant provides two statutory declarations in support of his application, one dated 26 November 2024 (First Statutory Declaration) and another dated 9 December 2024 (Second Statutory Declaration).  
75.	In the First Statutory Declaration, the Applicant states the following regarding his offending and rehabilitation and understanding of his crimes:
40.	To provide context surrounding these images and videos, two of the photos were of my own child, which were sent to me by my wife. The remaining six photos were of the youngest child of [my friend].
41.	.….I regret taking these photos and videos of his youngest child, but I was not aware at the time that his was a serious crime.
42.	I was not familiar with Australian laws regarding minors and child exploitation materials until I was charged. 
43.	I am deeply ashamed that I kept these materials on my phone and regret not deleting them immediately.
44.	One of the videos found on my phone was sent to me by a friend in Pakistan. The video was not for sexual purposes, but rather to show how injustice occurs in Pakistan particularly in that part of Pakistan where child exploitation is rampant. I watched the video once and forgot to delete is from my communications on WhatsApp.
….
47.	I completely understand the severity and consequences of my actions. I make no excuse for my actions and have taken onboard the sentencing remarks of Wallace DCJ in my case.
48.	Paedophilia is a sin in Islam, and I am completely against the crime. However, I understand the sheer lack of cultural sensitivity I have displayed.
49.	I accept the courts decision as well as the time in prison has shown me that I was making a lot of excuses for my behaviour before and not in line with Australian values.
50.	In prison, I attempted to speak to the administrators regarding a rehabilitation program but was informed that no such programs existed for me at this time.
….
52.	I now have the goal of being rehabilitated and being a productive member of society so I may continue to support my Wife and Son in Pakistan as I have been doing so before.
76.	In the Second Statutory Declaration, the Applicant states the following regarding his offending and rehabilitation and understanding of his crimes
Bestiality video
11.	I received another video of bestiality on what’s app from Pakistan. I did not delete the video, and I feel ashamed for having that video on my phone. I never forwarded this video to anyone or stored in the phone for any sexual gratification purpose. Nonetheless, I accept that possessing such material is unlawful and it has reflected very severely on my character. I truly and sincerely apologise to the tribunal and Australian community for having such shameful material on my phone.
12.	I have removed the contact of the person who sent me two videos containing category 4 video as well as bestiality video. I have learned my lesson that I will not engage with any person sharing child exploitation material or bestiality material and will never keep any such material if ever someone shared with me for any reason.
13.	The conviction has had a profound effect on my mental health as well as my understanding. I want to assure the tribunal that I will not engage ever in such conduct again.
Apology for Possession of Child Exploitation Material
14.	I am truly honest in saying that I never realised that having pictures of naked children including my own child on my phone is a crime. I had no intent to harm or sexually exploit any child including the child of my friend…. with whom I have lived for many years. I have never exploited any child in my life…. I am also ashamed of keeping the video of a boy having intercourse with another boy that was sent to me by a friend from Pakistan via Whats app. I never downloaded that video in my phone or forwarded it to anyone else.
15.	After going through the sentence and spending time in prison I have reflected on my actions, and I take full responsibility of those actions. My intention is not relevant as long as I am in possession of such harmful material on my phone. I understand the gravity and sensitivity of the offence and I am sincerely and truly sorry for that.
16.	…. While I was in prison, I asked for help, but I was advised that because of the short term of my prison I am not eligible for the service. In my time in detentions Younga Hill Detention Centre I requested again but was not provided with any access to psychologist or psychiatrist.
17.	On 28 November 2024, I contacted Clear Health Psychology in Perth and requested to make an appointment…
18.	I am ready and committed to seek help and in coming days I will be attending the session with a professional. I have booked an appointment with Dr Ian Clayton Smith of Clear Health Psychology on 14 December 2024 at 2.30pm. Annexed hereto and marked “B” is the booking confirmation.
19.	I once again unconditionally apologise to have in my possession harmful material, and I am truly sorry for that.
77.	The Applicant’s oral evidence at the hearing regarding his offending and rehabilitation was in substantially similar terms to the evidence contained in the First Statutory Declaration and Second Statutory Declaration, extracted above.
78.	In cross-examination, when asked why he touched the genitals of his friend’s minor son, in the category 3 video made by the Applicant, he responded “for a bit of fun”. What the Tribunal infers from this is that, even at the time of hearing, the Applicant continued to fail to comprehend the “seriousness” of his offending and demonstrate a lack genuine remorse or empathy for his child victim.
79.	Overall, the Applicant’s evidence before the Tribunal continues to demonstrate a lack of insight into the gravity of his offending. For example, in the First Statutory Declaration (extracted above), the Applicant uses the excuse for receiving the bestiality video from a friend on WhatsApp (which he failed to delete upon receiving) as “….to show how injustice occurs in Pakistan”.
80.	In the First Statutory Declaration , the Applicant stated that “Paedophilia is a sin in Islam, and I am completely against the crime” and that he “was not familiar with Australian laws.” Islamic law unequivocally prohibits child exploitation in all its forms, considering it a grave sin and violation of human dignity. The Quran and Hadith provide a comprehensive framework for protecting children’s rights and condemn any form of abuse or exploitation. Islamic teachings categorically forbid child abuse, exploitation and any actions that harm children physically, emotionally, or psychologically. The Quran emphasises the importance of protecting vulnerable members of society, including children, from oppression and cruelty. As a Muslim and a follower of Islam, it is difficult to accept that the Applicant did not know that possessing child exploitation material was a sin under Islamic law and conduct he is forbidden from engaging in in Australia or anywhere in the world.
81.	The evidence before the Tribunal also shows that the Applicant has taken minimal steps to address and resolve the underlying issues which led to his offending conduct. The sentencing judge commented that the Applicant had provided minimal evidence that he was ready to “make significant behavioural changes to address [the] offending behaviour, given [the] denial of any sexual motive”. Prior to the Applicant’s sentencing, he saw a psychologist four times. The Applicant provided assurance that he had learnt his lesson and apologised. It was acknowledged that there appeared to be some remorse by the sentencing judge. However, there was not clinically valid or reliable assessment of the Applicant’s risk of recidivism provided to the sentencing judge. Since those sentencing remarks, there is minimal evidence as to how the Applicant has addressed the underlying issues leading to the offending conduct. 
82.	The SERCO Individual Case Plan, dated 21 July 2024, refers to the Applicant currently receiving medication for his mental health and of him having attended Torture and Trauma counselling. However, there is no evidence that this engagement was to address the underlying issues which led to his offending conduct. 
83.	On 27 November 2024, the Applicant was provided with GP Mental Health Care Plan referral by Dr Tajinderpal Singh, for a for a past history of depression and anxiety because of the pending Tribunal hearing. However, there is no mention in this referral of the need to address the underlying issues leading to Applicant’s offending conduct.
84.	In the First Statutory Declaration the Applicant states that he “now has the goal of being rehabilitated” and, in the Second Statutory Declaration, he states that he is “ready and committed” to seek help. However, it was not until 28 November 2024, about two weeks before the hearing before the Tribunal (on 12 December 2024), that the Applicant made his first attempt to make an appointment with a psychologist (since his visits to a psychologist prior to his sentencing).
85.	The Applicant points to the fact that he is a “reportable offender” and required to report to the police from time to time. As submitted by the Respondent, any deterrence offered by such a requirement is tempered by the Applicant’s lack of engagement in addressing the underlying issues which led to the offending conduct which resulted in his sentencing and visa cancellation.
Consultant psychologist’s evidence on risk of reoffending
86.	The Applicant was examined by Mr Watson-Munro, Clinical Psychologist, on 26 and 30 July 2024. Mr Watson-Munro subsequently provided a psychological assessment and report on the Applicant on 5 August 2024 (CP Report). The CP Report is relied on by the Applicant in support of the contention that the visa cancellation decision should be revoked as the risk of him re-offending is “Moderate to Low”. 
87.	In the CP Report, Mr Watson-Munro concluded:
Taking all factors into account, including the support he has in the community, his expressions of remorse, an absence of illicit drug use, his motivation for treatment and a desire to re-enter the Australian workforce, I believe that with continuing support and supervision, the risk of him reoffending in this manner will continue on a positive trajectory from Moderate to Low.
(Emphasis added)
88.	In the CP Report, Mr Watson-Munro states the following in relation to the Applicant:
4.	He used his time in prison and immigration detention to reflect upon his circumstances. [The Applicant] has had limited treatment in the past. I note that he saw a psychologist in the lead up to his sentencing hearing and that he has motivation for continuing treatment in the Australian community if he is permitted to remain here.
5.	…..it is clear however that he would benefit from ongoing work with an experienced mental health practitioner to resolve the underlying issues which led to his offending conduct …. 
(Emphasis added)
89.	As stated above, there is no evidence before the Tribunal that the Applicant has yet engaged with an experienced mental health practitioner to resolve the underlying issues which led to his offending conduct, only that he has a confirmed appointment to see a psychologist on Saturday 14 December 2024 (two days after the hearing on 12 December 2024). That is, since the Applicant has not yet commenced receiving the ongoing “support and supervision” of a psychologist, of the kind expressed by Mr Watson-Munro as being necessary to address the underlying issues which led to his offending conduct, it is difficult to conclude that, as assessed by Mr Watson-Munro, the Applicant’s risk of reoffending can be “trending towards low”.
90.	In the CP Report, Mr Watson-Munro states:
3.	….Beyond the current matters there is no prior history of sexual offending or paraphilic behaviour….
91.	In making this statement, Mr Watson-Munro was clearly unaware at the time of examining the Applicant (on two occasions) and subsequently preparing the CP Report of the charges brought against the Applicant on 12 December 2019 for Indecently Deals with a Child over 13 Under 16 (one count) and Sexually penetrated a child of or over 13 an under 16 (five counts) in relation to  the incident that occurred on 29 November 2019 but for which the Applicant was ultimately acquitted of at a jury trial on 30 August 2022: see [34] – [37] above.  The failure by Mr Watson-Munro to mention these charges in the CP Report, and his comment that the Applicant had “no prior history of sexual offending” in the CP Report, is suggested that the Applicant did not disclose the charges to Mr Watson-Munro, either deliberately or otherwise, during Mr Watson-Munro’s examinations of the Applicant in July 2024 which the Tribunal considers undermines Mr Watson- Munro’s conclusion that the Applicant’s risk of offending is trending from “moderate to low” and of the reliability of the CP Report more generally. 
92.	Mr Watson-Munro gave oral evidence at the Hearing by telephone. Mr Watson-Munro was asked questions, in the examination in chief, about various aspects of the CP Report and then cross-examined by counsel for the Respondent. Mr Watson-Munro’s oral evidence was in substantially similar terms to what he wrote in the CP Report. Mr Watson-Munro said that his risk assessment of the Applicant was based on “static and dynamic factors”, such as the Applicant’s support in the community, his willingness for treatment (to engage with a psychologist), the insight he has gained into his offending since being sentenced, the fact that his exposure to detention and incarceration has matured him and his lack of substance (i.e. cannabis) use. 
93.	According to Mr Watson-Munro, at the time of the offending the Applicant’s risk of reoffending was “moderate” but he was now on a positive trajectory in terms of reducing his risk of reoffending and that, with the appropriate ongoing treatment and support, the Applicant’s risk of reoffending was “trending towards low”. As stated above, the Tribunal finds it difficult to accept that the Applicant’s risk of reoffending is “trending towards low” when he has not yet commenced receiving the ongoing “support and supervision” of a psychologist, of the kind expressed by Mr Watson-Munro as being necessary to address the underlying issues which led to his offending conduct. As stated above, in cross-examination, when asked why he touched the genitals of his friend’s minor son, in the category 3 video made by the Applicant, he responded “for a bit of fun”. As stated above, the Tribunal infers from this is that, even at the time of hearing, the Applicant has not gained proper insight into the gravity of his offending to date and he continues to demonstrate a lack genuine remorse or empathy for his child victim. As stated in paragraph 8.1.2(1) of Direction No. 110, “Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable [to the Australian community]”. The Applicant’s case is such a case.
Evidence of the Applicant’s friend and father of child victim 
94.	The Applicant’s friend and father of the child in the category 1 images and category 3 video provided a Statutory Declaration in support of the Applicant, dated May 2023, wherein he states that he has “no objections to the photographs” and explains the Applicant’s conduct as the Applicant being “not aware of Australian laws” and that none of his children have raised any concerns about the Applicant’s behaviour and are “happy to be around him”. The Applicant’s friend was not called as a witness at the hearing before the Tribunal so that his evidence could be tested in cross-examination. The Applicant’s friend’s remarks demonstrate a complete lack of understanding of the seriousness of the Applicant’s offending conduct and reflect the sentencing judges remark about the Applicant’s “potential grooming of the child’s family”.  The Tribunal places limited weight on the Statutory Declaration provided by the Applicant’s friend in support of this application.
Protective factors & character references 
95.	The Applicant provided several character references in support of his application. The Tribunal considers that any protective factors the Applicant now relies on such as friends, community engagement or employment should not be seen to be a factor mitigating further risk of reoffending. They did not deter the Applicant previously. The Tribunal places limited weight on the Applicant’s character references as his support network did not prevent him from committing the offending conduct in the past, they evidence limited knowledge of the “nature and seriousness” of his offending and there is no compelling evidence to suggest that the same support would be any more effective in the future. Further, none of the Applicant’s character referees were called as witnesses so that there evidence could be tested under cross-examination.
BVR conditions 
96.	The Applicant is currently the holder of a BVR the conditions of which include a curfew (Condition 8620) and a monitoring device (Condition 8621). The Tribunal considers that the protection of the Australian community is best served by the Applicant remaining in the community, but subject to the conditions imposed by the BVR. The conditions imposed under the BVR are more onerous than any imposed under a standard visa, such as a Five Year Resident Return visa (Class BB)(Subclass 155) like the one held by the Applicant prior to it being cancelled by the Minister.
Conclusion - Protection of the Australian community
97.	For the above reasons, having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the first primary consideration, “Protection of the Australian community” (in paragraph 8.1 of Direction No. 110) weighs heavily against revocation of the visa cancellation decision.
(ii)	Family violence committed by the non-citizen
98.	Paragraph 8.2 of Direction No. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
99.	There is no evidence that the Applicant has engaged in family violence, such that this second “primary consideration” weighs neutrally as regards whether the visa cancellation decision should be revoked (i.e. whether the Non-Revocation Decision should be affirmed). 
(iii)	The strength, nature and duration of ties to Australia 
100.	Paragraph 8.3 of Direction No. 110 provides that:
(1)	Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. 
(2)	Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: 
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.
101.	The Applicant does not have immediate family in Australia. His family are in Pakistan. Therefore, the consideration paragraph 8.3(1) of Direction No. 110, set out above, does not apply in this case.
102.	As set out above, paragraph 8.3(2) of Direction No. 110 directs the Tribunal to consider the strength, nature and duration of the Applicant’s other ties to the Australian community. 
103.	The Applicant moved to Australia when he was 23 years old and has resided in Australia for more than 12 years. He has been employed in Australia since 2012 and submits that he is involved in community organisations. However, there is minimal supporting evidence of his community involvement.
104.	As stated above, the Applicant provided a Statutory Declaration from his friend, the child victim’s father, in support of his application. The Statutory Declaration explains that the Applicant has become a close family member and is a good and caring member of the community. Concerningly, the Statutory Declaration states that the Applicant’s friend has “no objections” to the category 1 photographs taken of his son, no comment is made about the category 3 video of his son or the distressing category 4 video. In such circumstances, the Tribunal affords the evidence in the Statutory Declaration of the Applicant’s friend minimal weight. Especially in circumstances where, as stated above, the Applicant’s friend was not called as a witness so his evidence could not be tested under cross-examination.
105.	In his letter of support, the chairperson of Bazm-e-Ahlebait reports that the Applicant is an active member of the community and participates in religious, social and cultural events throughout the year. The president of the Ahlulbayt community states, in his letter of support, that the Applicant has been actively volunteering for them since 2016. The letter of support, signed by nineteen community members, states that they consider then Applicant has been a “valuable member” of their community “consistently demonstrating integrity and a strong moral compass” and they consider him to be a “person of good character” and will continue to be law-abiding. Given the lack of detail in those statements as to the strength, nature and duration of their ties with the Applicant, the Tribunal affords the evidence in these letters little weight, especially in circumstances where the friends were not called as witnesses and had their evidence tested under cross-examination.
106.	The Applicant states that the community would lose a hard-working volunteer. He submits that he has volunteered at different Shia organisations and refers to letters in support from friends and community members. However, as stated above, given the lack of detail in those statements as to the strength, nature and duration of their ties with the Applicant and the corroboration of the Applicant’s “volunteer activities”, the Tribunal considers that the statements should be given minimal weight, especially if their evidence has not been tested under cross-examination.
107.	The Applicant also points to his time living with his friend (the father of the child victim) and his family, from 2012 to 2021, during which time he assisted their paralysed daughter (who has since passed). However, during that period, the relevant offending occurred which diminishes the weight that should be afforded to this.
108.	Further, the Applicant is currently the holder of a BVR, whatever decision is made, the Applicant will remain in and engage with the community and be able to continue to develop and enjoy these relationships. 
109.	For the above reasons, the Tribunal considers that the third “primary consideration” carries limited weight in favour of revocation of the visa cancellation decision but should not outweigh the other primary considerations weighing heavily against revocation.
(iv)	Best interests of minor children in Australia affected by the decision 
110.	Paragraph 8.4 of Direction No. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Migration Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. 
111.	Paragraph 8.4(4) of Direction No. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant, as follows:
a)	the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
b)	the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
c)	the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)	the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)	whether there are other persons who already fulfil a parental role in relation to the child; 
f)	any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)	evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
h)	evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
112.	The Applicant has not identified any minor children in Australia who would be impacted by the decision. 
113.	The Applicant accepts that the victim some of his offending is the minor child of his friend. The Applicant’s friend states in his Statutory Declaration in support of the Applicant that the applicant has become a close family member and his wife and children have built a strong bond with the Applicant. The Tribunal understands that one of the Applicant’s friend’s children is now 8 years old and that child was the victim of the Applicant’s offending. There is no evidence before the Tribunal about the Applicant’s relationship with this child or how he will be impacted by the Tribunal’s decision. Accordingly, the Tribunal considers that no weight should be placed on any relationship the Applicant may have with this child. The Applicant’s relationship with the child is not biological, and the child’s father and mother fulfil the parental role. It is unclear as to the existing relationship the Applicant has with the child. The Applicant’s criminal history may have a negative impact on the child and, he is unlikely to play a positive role in the child’s life. However, this is entirely speculative as the views of the child are unknown. 
114.	In any event, it is unclear as to what, if any, relationship the Applicant would be able to have with a child in circumstances where he is a “reportable offender” under the Community Protection (Offender Reporting) Act 2004 (WA). 
115.	Further, as stated above, if the Tribunal affirms the decision, the Applicant will remain in the community on a BVR. The BVR has several conditions to protect minors in the community: 8622 – must not perform work with minors and 8623 – must not approach school or childcare centre.
116.	For the above reasons, this fourth “primary consideration” is weighed neutrally in relation to whether the visa cancellation decision should be revoked.
(v) 	Expectations of the Australian Community
117.	Paragraph 8.5(1) of Direction No. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a “norm”, expects the government would not allow them to enter or remain in Australia. 
118.	Paragraph 8.5(2) of Direction No. 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. 
119.	Paragraph 8.5(2) of Direction No. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paragraphs 8.5(2)(a) – (f) of Direction No. 110. Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered “very seriously” or “serious”.  
120.	Paragraph 8.5(3) of Direction No. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, paragraph 8.5(3) arguably further qualifies the “norm” expressed in paragraph 8.5(1), which refers to the “unacceptable risk”’ of conduct being engaged in. This makes it clear that a “measurable risk” of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending. 
121.	This primary consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. 
122.	However, it remains for the Tribunal to determine the appropriate weight to be given to this primary consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
123.	In weighing this consideration, the Tribunal is also guided by the principles in paragraph 5.2 of Direction No. 110 which states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community. 
124.	In observing the “norm” stipulated in paragraph 8.5(1) of Direction No. 110, the Australian community would expect that the Applicant should not hold a Five Year Resident Return visa (Class BB) (Subclass 155) because of the crimes he has committed, the repetition of which would have potentially serious consequences, both physical and psychological, on members of the Australian community.
125.	The Applicant arrived in Australia on 19 December 2011 as a 23-year-old adult (G24 at p 192) and has lived here for more than 12 years. The Applicant’s first criminal conviction was in 2018, within seven years of his arrival in Australia. The Applicant did not spend his formative years in Australia. That is, the Applicant has not lived in the Australian community from a very young age or for most of his life. Consequently, no higher level of tolerance should be afforded to him.
126.	Overall, the Tribunal considers that this fifth “primary consideration” weighs heavily against revocation of the visa cancellation decision. As submitted by the Respondent, this weight is not diminished by the Applicant remaining in the Australian community on a BVR.
Other considerations – paragraph 9 of Direction No. 110
127.	Paragraph 9 of Direction No. 110 states: 
(1)	In making a decision under section 501(1), 501(2) or 501CA (4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)	legal consequences of the decision;
b)	extent of impediments if removed;
d)	impact on Australian business interests 
(i)	Legal consequences of the decision 
128.	The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens. 
129.	While this consideration in Direction No. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
(a)	Unlawful status; 
(b)	The likelihood of becoming subject to detention and/or removal;
(c)	Refusal of other visa applications and cancellation of other visas;
(d)	A prohibition on applying for other visas; and 
(e)	Periods of exclusion and special return criteria may apply.
130.	If a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation. Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable. However, that is not the case here. The Applicant has a protection finding in relation to Pakistan. The delegate was satisfied that the Applicant satisfied the criterion in s 36(2)(a) of the Migration Act with respect to Pakistan and satisfied s 36(1C) of the Migration Act. It is accepted that the Applicant is an individual in respect of whom Australia has non-refoulement obligations. 
131.	In this case, it was found that there is no real prospect that it will be practical to remove the applicant in the reasonably foreseeable future. Therefore, the Applicant was released from immigration detention and granted a BVR on 14 October 2024.  
132.	If the Tribunal affirms the delegate’s decision not to revoke the cancellation of the visa, the Applicant will remain the holder of a BVR, and would remain in the community subject to a range of conditions attached to the BVR. Some of the conditions attached to the BVR include:
(a)	the holder must wear a monitoring device at all times (Condition 8621 – Monitoring device); and
(b)	 if the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person (Condition 8622 – Must not perform work with minors); and 
(c)	if the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre (Condition 8625 – Notify changes in personal details); and 
(d)	 if the if the holder has been convicted of an offence involving a minor or any other vulnerable person, the holder must notify the Minister of any change in an online profile used by the holder or a under name of the holder (Condition 8626 – Notify of change in online names and profiles).
133.	If the Tribunal was to set aside the delegate’s decision, and substitutes a decision revoking the visa cancellation decision, the BVR would cease to be in effect and the Applicant would once again hold a Five Year Resident Return visa (Class BB)(Subclass 155) with minimal conditions. 
134.	Other legal consequences associated with a decision by the Tribunal not to revoke the visa cancellation decision (i.e. of affirming the Non-Revocation Decision) are a restriction on the Applicant making further visa applications/sponsorship (for his wife and child in Pakistan) and the inability for him to apply for Australian citizenship. These are intended consequences of the cancellation of a visa under s 501 of the Migration Act.
135.	Whilst the Tribunal acknowledges that the range of conditions imposed on the Applicant under the BVR are relevant to the legal consequences of the Tribunal’s decision in that those conditions are more onerous than those that would be imposed on him under a standard visa. The Tribunal nevertheless attaches limited weight in favour of the revocation of the visa cancellation decision, to this “other consideration”, in circumstances where the Applicant can make representations to the Minister as to why his BVR should not be subject to certain conditions. 
136.	Further, in the circumstances of this case, irrespective of the Tribunal’s decision, the Applicant is not in immigration detention. There is no prospect of his ongoing or extended detention (as there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future on account of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37). 
(ii)	Extent of impediments if removed 
137.	Paragraph 9.2 of Direction No. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraph 9.2(1)(a) to (c) of Direction No. 110 are:
(a)	The Applicant’s age and health;
(b)	Whether there are substantial language or cultural barriers; and
(c)	Any social, medical and/or economic support available to the Applicant in their country.
138.	The theoretical prospect that the Applicant would be removed to Pakistan is not a matter that could give rise to another reason to revoke the visa cancellation.  
139.	The Applicant in not presently liable to be removed from Australia, and s 197C (3) of the Migration Act prevents his removal to Pakistan. A necessary condition required to grant a BVR is that “there is no real prospect of removal of the non-citizen becoming practicable in the foreseeable future”: Given that the Applicant will not be removed from Australia to Pakistan in the foreseeable future and that, as a lawful non-citizen (i.e. the holder of a BVR), is not liable to be removed, the Tribunal considers that this “other consideration” weighs neutrally in relation to whether the visa cancellation decision should be revoked.
(iii)	Impact on Australian business interests
140.	Paragraph 9.3 of Direction No. 110 states: 
(1)	Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
141.	There is no evidence of, and the Applicant makes no submissions concerning, the impact on Australian business interests of the Applicant is removed or regarding any major project or important service that will be compromised by a decision not to revoke the cancellation decision. Accordingly, this “other consideration” does not weigh in favour of, or against, revocation and, rather weighs neutrally in relation to whether the visa cancellation decision should be revoked.
CONCLUSION 
142.	The Applicant does not pass the character test under s 501(6) of the Migration Act because he was convicted of one or more sexually based offences involving children: s 501(6)(e)(i) of the Migration Act.
143.	Therefore, the central issue before the Tribunal is whether there is “another reason” to revoke the cancellation of the applicant’s visa. In that regard, and in reference to each of the primary and other considerations in Direction No. 110, the Tribunal finds that the following weights should be attributed to each of the following considerations:
•	First “primary consideration”: “Protection of the Australian community from criminal or other serious conduct” (paragraph 8.1 of Direction No. 110) – this primary consideration weighs heavily against revocation of the visa cancellation decision;
•	Second “primary consideration”: “Whether conduct engaged in constituted family violence” (paragraph 8.2 of Direction No. 110) – this primary consideration weighs neutrally as regards whether the visa cancellation decision should be revoked;
•	Third “primary consideration”: “The strength, nature and duration of ties to Australia” (paragraph 8.3 of Direction No. 110) – limited weight in favour of revocation of the visa cancellation decision is placed on this primary consideration;
•	Fourth “primary consideration”: “The best interests of minor children” (paragraph 8.4 of Direction No. 110) – neutral weight is placed on this other consideration in relation to whether the visa cancellation decision should be revoked;
•	Fifth “primary consideration”: “Expectations of the Australian community” (paragraph 8.5 of Direction No. 110) – this primary consideration weighs heavily against revocation of the visa cancellation decision;
•	First “other consideration”: “Legal consequences of the decision” (paragraph 9(1)(a) of Direction No. 110) – limited weight in favour of revocation of the visa cancellation decision is placed on this other consideration;
•	Second “other consideration”: “Extent of impediments if removed” (paragraph 9(1(b) of Direction No. 110) – neutral weight is placed on this other consideration in relation to whether the visa cancellation decision should be revoked; and 
•	Third “other consideration”: “Impact on Australian business interests” (paragraph 9(1)(c) of Direction No. 110) - neutral weight is placed on this other consideration in relation to whether the visa cancellation decision should be revoked.
144.	For the above reasons, the Tribunal considers that the “primary considerations” of the “Protection of the Australia community” (in paragraph 8.1 of Direction No. 110) and the “Expectations of the Australian community” (in paragraph 8.5 of Direction No. 110) weigh heavily against revocation of the visa cancellation decision and outweigh the other “primary consideration” and “other considerations” that, to a limited degree, favour revocation, as set out above. The risk of repeated offending by the Applicant is unacceptable and the protection and expectations of the Australian community weigh heavily, and determinatively, against revocation.
145.	In reaching this conclusion, the Tribunal is mindful of the “Principles” in paragraph 5.2 of Direction No. 110 (referred to above at [28]) and paragraph 7(2) of Direction No. 110 which states that the “primary considerations” should generally be given greater weight than the “other considerations” and, further, that the “primary consideration” in paragraph 8.1 of Direction No. 110 (Protection of the Australian community) is generally to be given greater weight than the other “primary considerations” and that “primary considerations” should generally be given greater weight than the “other considerations”. 
DECISION
146.	For the above reasons, the Tribunal affirms the Non-Revocation Decision (i.e. the Minister’s decision, dated 14 October 2024, not to revoke the visa cancellation decision).  

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Lyford	
....................[Sgd]....................................................
Associate
Dated: 06 January 2025 

Date of hearing:	12 December 2024	
Applicant’s Representative:	Stephen John of ASM Migration Services Pty Ltd 
	
Respondent’s Representative:	Jake Kyranis, Special Counsel of Sparke Helmore

		

Annexure A – Table of the Applicant’s Offending HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 11 October 2021 and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 15 November 2022.

	Conviction Date	Court	Offence	Offence Date(s)	Court Result	
1.		1 October 2021	Midland Magistrates Court	Cultivate a Prohibited Plant	30 March 2021	$300 fine; order for destruction	
2.		1 October 2021	Midland Magistrates Court	Possess a Prohibited Drug
(Cannabis)	30 March 2021	$300 fine; order for destruction	
3.		1 October 2021	Midland Magistrates Court	Possess a prohibited drug (MDMA)	30 March 2021	$300 fine; order for destruction	
4.		1 October 2021	Midland Magistrates Court	Possess a prohibited drug
(Methylamphetamine)	30 March 2021	$300 fine; order for destruction	
5.		1 October 2021	Midland Magistrates Court	Possessed a Prohibited Drug
(Cocaine)	30 March 2021	$300 fine; order for destruction	
6.		1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction	
7.		1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction	
8.		1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction