Collinson and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 206 (6 February 2025)
Applicant:	Ashley Liam Collinson
Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2024/9389
Tribunal:	General Member Cosgrave (second review)
Place:	Brisbane
Date of Decision:	6 February 2025
Date of Reasons:	7 March 2025
Decision:	The Tribunal sets aside the decision made by the delegate of the Respondent on 14 November 2024 to cancel the Applicant’s visa and substitutes a decision that the Applicant’s visa is not cancelled.
	 
 …………[Sgd].....................
General Member Cosgrave

Catchwords
MIGRATION – Class BB Subclass 155 Five Year Resident Return visa cancellation –- failure to pass good character test – whether there is another reason to set aside the visa cancellation – convicted of Use carriage service to access child pornography material and Use carriage service to offend – Ministerial Direction No. 110 

Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth) 
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)

Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)

Statement of Reasons
INTRODUCTION
1.	Mr Collinson seeks review of the Minister’s (the Minister or the Respondent) delegate’s 14 November 2024 decision to cancel his Class BB Subclass 155 Five Year Resident Return visa (the Visa).
2.	The hearing was held in Brisbane on 28 and 29 January 2025. Ms Graziotti of Estrin Saul Lawyers represented Mr Collinson. Mr Vines of counsel, instructed by Ms Rezae of Sparke Helmore Lawyers, represented the Respondent. 
3.	This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 6 February 2025. On 6 February 2025, the Tribunal met its 84-day statutory obligation by providing a short form decision in which it set aside the decision under review. The Tribunal now gives its reasons for its decision. 
4.	Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
THE FACTS OF THE MATTER
5.	Mr Collinson is a thirty-six-year-old United Kingdom citizen who has resided in Australia since March 2004. 
6.	On 12 July 2011 Mr Collinson pled guilty and was convicted of Use carriage service to access child pornography material and Use carriage service to offend (the Index Offences). His Honour Judge Stone of the Western Australian District Court sentenced Mr Collinson to concurrent suspended terms of twelve months’ imprisonment for the Index Offences. Mr Collinson was released immediately after entering into a recognizance release order that required him to be of good behaviour for eighteen months. The order was secured by Mr Collinson making a $5,000 payment and with the requirement that he comply with certain conditions, including treatment and counselling.
7.	On 29 October 2013 the Respondent granted Mr Collinson a Class BB Subclass 155 Five Year Resident Return visa.
8.	On 5 October 2017 the Western Australian Sex Offender Management System (SOMS) sent details of the index offences to the Australian Border Force.
9.	On 12 July 2019 Mr Collinson was deregistered from the National Child Offender System after the expiry of his Reportable Offender requirements.
10.	On 23 March 2020 Mr Collinson received a Notice of Intention to Consider Cancellation (NOICC) under s 501(2) of the Act. On 28 April 2020, his then representatives responded to the NOICC with a response that incorporated Dr Watts’ 14 April 2020 report.
11.	On 17 September 2020, Mr Collinson’s partner, Ms Nascimento, applied for a Partner (Class UK) (subclass 820)/(Class BS) (subclass 801) visa. On 21 September 2020 Mr Collinson submitted his sponsorship application in relation to Ms Nascimento’s application.
12.	On 6 May 2020 the Respondent granted Ms Nascimento a Partner (subclass 820) visa.
13.	On 30 June 2022 the Respondent granted Mr Collinson the Visa.
14.	On 24 April 2024 the Respondent sent Mr Collinson a second NOICC because the visa referred to in the 23 March 2020 NOICC had ceased and Mr Collinson had been granted the Visa.
15.	On 22 May 2024 and 11 June 2024 Mr Collinson made representations and provided responses to the second NOICC.
16.	On 14 November 2024 his Visa was cancelled under s 501(2) and s 501(6)(e) (the reviewable decision).
17.	On 15 November 2024 Mr Collinson lodged an application with the Tribunal for review of the delegate’s decision.
THE LEGAL FRAMEWORK
18.	Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and s 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
19.	Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)	representations have been made by the person in accordance with the invitation; and
(b)	the Respondent is satisfied that:
(i)	the person passes the character test; or
(ii)	there is another reason why the original decision should be revoked.
20.	The Tribunal is satisfied that Mr Collinson made the representations required by s 501CA(4). 
THE TRIBUNAL’S TASK 
21.	Mr Collinson’s Visa was cancelled on the basis that he had failed the character test once the delegate considered the character test, defined in s 501, as required under s 501CA(4)(b)(i). The Tribunal is satisfied, based on its own assessment of his criminal record, that he does not pass the character test articulated in s 501(6).
22.	Section 501CA(4) specifies the Tribunal’s task. When assessing and considering the factors weighing for and against whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to follow Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). 
23.	Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.
24.	Paragraph 6 of the Direction provides that, informed by the above principles, a 
decision‑maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. 
25.	The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
26.	Paragraph 8 of the Direction specifies the following primary considerations:
(1) 	the protection of the Australian community from criminal or other serious conduct.
(2) 	whether the conduct engaged in constituted family violence.
(3) 	the strength, nature and duration of ties to Australia.
(4) 	the best interests of minor children in Australia.
(5) 	the expectations of the Australian community.
27.	Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
(a)	the legal consequences of the decision.
(b)	the extent of impediments if removed.
(c)	the impact on Australian business interests.
28.	The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting. The weighing process is substantively left to the individual decision‑maker exercising the relevant power under s 501 of the Act.
THE EVIDENCE
29.	The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A.’ The Tribunal also heard testimony from Mr Collinson, his former spouse Ms Enderby, Dr Watts and Mr Collinson’s current partner, Ms Nascimento. 
THE PRIMARY CONSIDERATIONS 
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT 
30.	When considering this Primary Consideration 1, the Tribunal is directed to bear in mind that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal has considered the nature and seriousness of Mr Collinson’s conduct to date.
31.	Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision‑makers to consider two limbs of inquiry:
(a)	the nature and seriousness of the non-citizen’s conduct to date; and
(b)	the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.
Paragraph 8.1.1: The Nature and Seriousness of Mr Collinson’s Conduct to Date
32.	Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess in considering the nature and seriousness of Mr Collinson’s criminal offending or other conduct to date.
33.	The Index Offences are described in the written evidence. 
34.	Summarising Mr Vines’ contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:
(a)	Mr Collinson was found to have deliberately accessed child pornographic stories over a five-month period (June to November 2010) and also discussed fantasies involving children with a prostitute. These actions resulted in concurrent 12‑month imprisonment sentences for the Index Offences, as determined by His Honour Judge Stone in the Perth District Court.
(b)	The Respondent emphasises the gravity of child pornography offenses, which are considered especially serious by both the courts and legislature. Mr Collinson’s conduct is deemed particularly severe as it involved sustained viewing of child pornography at “the highest end of seriousness,” specifically stories depicting penetrative sexual activity between adults and children.
35.	Summarising Ms Graziotti’s contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:
(a)	Mr Collinson committed the first Index Offence between 9 June 2010 and 5 November 2010, and the second Index Offence in the period of 25 October to 1 November 2010. He has not engaged in any similar or otherwise illegal behaviour since then.
(b)	In July 2011, he was convicted and sentenced for the Index Offences after making partial admissions to police and entering guilty pleas at an early stage in proceedings. His Honour Judge Stone, who presided over the sentencing, determined that the community’s interests would be best served by imposing a suspended term of imprisonment rather than an immediate custodial sentence.
(c)	Dr Watts’ 2020 report observed that “It is noted that 10 years later, there is no evidence to indicate there has been any flow-on effects.” This assessment remains valid 14 years after the commission of the offenses, as there continues to be no evidence indicating any flow-on effects from Mr Collinson’s conduct.
(d)	The record indicates that the applicant did not serve any custodial sentence, was granted bail with which he fully complied, has no other convictions and there is no evidence suggesting that he has been a perpetrator of family violence. He successfully fulfilled the conditions of his suspended imprisonment order and complied with the SOMS requirements until these obligations were discharged in July 2019.
(e)	There is no evidence that Mr Collinson has caused a person to enter a forced marriage or committed offenses against government representatives or officials. 
(f)	He did not commit any offenses while in immigration detention and has never been incarcerated. 
(g)	With no further convictions on his record, there is no discernible trend of increasing seriousness, frequency of offending or cumulative effect of repeated offending to consider.
(h)	The evidence does not indicate that Mr Collinson has provided false or misleading information to the Respondent. 
(i)	He has never received a formal warning and has no criminal history in any other country. 
(j)	Notably, his convictions were properly declared both in his Resident Return Visa (RRV) applications and in his sponsorship form supporting Ms Nascimento’s Partner visa application.
(k)	While Mr Collinson acknowledges that the seriousness of his offending must weigh in favour of visa cancellation, he contends that this is essentially the only factor that does so, and that it is insufficient to outweigh other factors favouring setting aside the reviewable decision. 
(l)	Mr Collinson contends that, in light of his demonstrated remorse, absence of other criminal history, youth at the time of offending, objective risk assessments, extended period in the community without reoffending, current life circumstances, ties to Australia and the best interests of children, the consideration regarding the seriousness of his past offending is outweighed by these countervailing factors.
The Tribunal’s consideration: The nature and seriousness of Mr Collinson’s conduct
36.	When assessing the nature and seriousness of Mr Collinson’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
•	the enumerated criminal offending or other conduct to date that are viewed very seriously by the Australian government and the Australian community;
•	the sentences imposed for his criminal offending;
•	the impact of his offending or other conduct on any of its victims and their family, where information in this regard is available and where Mr Collinson has been afforded procedural fairness;
•	the frequency of his offending and the trend of increasing seriousness; and
•	the cumulative effect of his repeated offending.
37.	The Tribunal, after assessing the evidence and the parties’ claims and arguments, considers that Mr Collinson’s Index Offences can be considered under Paragraph 8.1.1(1)(a)(i) to be sexual crimes and crimes of a sexual nature under Paragraph 8.1.1(1)(a)(ii). This suggests that Mr Collinson’s Index Offences should be viewed as very serious after applying Paragraphs 8.1.1(1)(a)(i) and (ii). 
38.	Regarding the sentence imposed on Mr Collinson, the sentencing judge stated that:
I am required to impose a sentence commensurate with the seriousness of the offence. In sentencing you, I take account of the nature and gravity of your offending as well as the statutory maximum penalty in relation to it, the circumstances of the commission of the offences, and the mitigating factors. A court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any one of the less severe options available.
A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community otherwise requires it. I must have regard to the purposes of imposing punishment; to punish you and to deter both you and others from committing offences in the future.
In assessing the facts and the extent of your culpability in this offending, I bear in mind and I accept that your actions concerning the prostitute were fantasy. However, your conduct involved fantasies about sex with children and you accessed material that concerned stories about sex with children over a five‑month period, and your conversation with the prostitute was over several days.
I bear in mind that some of the material you accessed constituted child pornography at the highest end of seriousness, and that is the penetrative sexual activity between adults and children. There were some 12 stories about there. Some of the stories describe child abduction and rape, whilst others include sexual penetration of babies, and there was also a story that involved a child and bestiality.
I accept the Commonwealth’s submissions that the presentence report and the pre-sentence psychological report indicate that you lacked insight and minimised your offending behaviour by stating that you were pleading guilty because of the financial costs associated with a not guilty plea, attributing blame to the complainant, denying that you intentionally accessed child pornography, and denied having a sexual interest in children.
…
I accept that no actual children were used in the production of the child pornography stories is a relevant matter in the assessment of the objective seriousness of these offences.
…
In all the circumstances, after having revisited all relevant factors, it seems to me that both your interests and the interests of the community generally are best served if I sentence you to 12 months’ imprisonment suspended from today’s date and for you to be released forthwith on entering into a recognizance release order to be of good behaviour for 18 months, and upon your giving security by recognizance in the sum of $5,000. The recognizance release order will also be subject to the condition that you will be subject to the supervision of a probation officer appointed in accordance with the order.
Now this may require you to undergo assessments and treatments by a medical practitioner, psychiatrist, psychologist or social worker and also undergo treatment in relation to your apparent sexual interest in children. In imposing this sentence I have had particular regard to the prospect of rehabilitation, taken together with the personal deterrents provided by the threat of activation of the suspended sentence.
39.	Considering the above solely in terms of Paragraph 8.1.1(1)(c), the Tribunal considers that this paragraph supports a finding that Mr Collinson’s offending was viewed instead as serious rather than ‘very serious’ as Paragraphs 8.1.1(1)(a)(i) and (ii) would indicate. The Tribunal notes the substantial mitigating factors cited by the sentencing judge which led to the imprisonment’s immediate suspension. Considered in terms of Paragraph 8.1.1(1), the sentencing judge’s reasoning significantly tempers Paragraph 8.1.1(1)(a)(i) and (ii)’s combined indicative categorisation of the offending being ‘very serious.’
40.	The sentencing decision assists in considering the impact of Mr Collinson’s offending under Paragraph 8.1.1(1)(d). Addressing the first Index Offence, Mr Collinson accessed child pornography fiction. Addressing the second later Index Offence, Mr Collinson did not and does not have a niece despite telling the sex worker he was talking to that he did have a niece. The sentencing comments express the point that the sex worker may not have been offended. The sentencing judge observes:
I accept that no actual children were used in the production of the child pornography stories is a relevant matter in the assessment of the objective seriousness of these offences. However, as the Commonwealth has submitted in their submissions, there remains a high level of criminality in written works of child pornography, given that the production of fictitious works describes acts of depravity involving children have flow-on effects, including the promotion of the child pornography industry and stimulating the tendencies of individuals.
41.	The Tribunal considers that there was no specific victim of Mr Collinson’s Index Offences, but rather a group of potential victims and that this group of potential victims is so large as to diffuse the possible impact of Mr Collinson’s offending.
42.	From a consideration of the evidence in terms of Paragraph 8.1.1(1)(e), the Tribunal finds that there is no frequency to Mr Collinson’s offending, nor is there any discernible trend of increasing seriousness as the Index Offences are of equal seriousness.
43.	Addressing Paragraph 8.1.1(1)(f), Mr Collinson’s offending was not repeated so there is no cumulative effect.
44.	Paragraphs 8.1.1(1)(g) and (h) are not enlivened on the evidence before the Tribunal.
The Tribunal’s finding: The nature and seriousness of Mr Collinson’s conduct.
45.	The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in Paragraph 8.1.1(1) of the Direction. 
46.	With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Mr Collinson’s offending, the Tribunal finds that it should be characterised as serious. 
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
47.	Summarising the relevant portion of Paragraph 8.1.2 of the Direction:
(a)	In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)	When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.	How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.	How likely it is that the non-citizen will commit another crime, looking at:
•	Evidence of how likely they are to re-offend.
•	Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)	The objective is to carefully weigh the seriousness of the possible harm if the non-citizen re-offends, the likelihood of their re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
48.	In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Mr Collinson to engage in further criminal or other serious conduct, the Tribunal has considered the evidence, testimony and the parties’ submissions in relation to Paragraph 8.1.2. The Tribunal in particular has considered the sentencing judge’s decision.
49.	Summarising Mr Vines’ contentions on this point as the Tribunal understands them:
(a)	The Respondent argues that there is inherent harm in accessing child exploitation material.
(b)	The Respondent acknowledges the established legal principle that possession of child pornography material, even in the form of stories or drawings, is not a victimless crime. 
(c)	The Respondent further contends that there is a potential for harm associated with the risk of Mr Collinson’s conduct escalating beyond the possession of the fictitious child exploitation material to actions in the real world involving real children.
50.	Summarising Ms Graziotti’s contentions on this point as the Tribunal understands them:
(a)	Regarding the nature of potential harm, there is no evidence indicating that any person in the Australian community was harmed by Mr Collinson’s conduct or was at risk of harm. However, it is acknowledged that should Mr Collinson re-offend in a similar manner to the original offenses, it could potentially result in psychological damage to members of the Australian community.
51.	The evidentiary details of Mr Collinson’s Index Offences supports the Tribunal inferring that there may be indeterminate psychological harm to unidentified members of the Australian community if Mr Collinson re-offended in a similar fashion to his Index Offences in the future.
52.	Without further evidence supporting the Respondent’s claims of the offending escalating at the time of the Index Offences and the potential for future harm to real children because of this escalation, the Tribunal does not consider it can accept the Respondent’s suggestions that (a) Mr Collinson’s offending behaviour was escalating at the time of the Index Offences and that (b) because of this, there is the potential for harm associated with the risk of Mr Collinson’s conduct escalating.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Collinson to engage in further criminal or other serious conduct
53.	If Mr Collinson is permitted to remain in Australia, the Tribunal finds that any future repetitions of criminal or serious conduct of the type that Mr Collinson has previously engaged in could result in indeterminate psychological harm to members of the Australian community.
The Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
54.	Assessing the likelihood or risk of Mr Collinson engaging in further criminal or serious conduct, the Tribunal has evaluated and considered his testimony, the other witnesses’ testimony and observations and the relevant evidence as directed by Paragraph 8.1.2(2) of the Direction, taking into account the information before the Tribunal on Mr Collinson’s risk of offending and the evidence of what rehabilitation he has achieved. Mr Collinson is not currently in the Australian community. 
55.	The Tribunal draws the following from the evidence and testimony before it:
(a)	Mr Collinson was never in prison so there are no formal risk assessments, nor did he have an opportunity to undertake formal rehabilitation in prison. 
(b)	He did however undertake counselling as part of his sentencing conditions. He has lived in the community since offending, effectively undertaking informal rehabilitation by growing up, maturing in the community and entering meaningful personal relationships. 
(c)	The first of these, with Ms Endersby, existed prior to his offending and continued afterwards, including the birth of their son, Child A. The second is his relationship with Ms Nascimento. Both women are aware of his Index Offences. Neither evinced any concerns about the likelihood of Mr Collinson re-offending. It is fair to observe that neither are disinterested witnesses, but their testimony was not qualified by cross-examination on this point. 
(d)	The report of Dr Watts, especially the following paragraphs:
22. It was noted on page 25 of the Transcript that the Judge stated, “I accept that no actual children were used in the production of the pornographic material” and essentially that the offences did not involve actual children in any way.
23. It is evident that the Court had the benefit of two psychological assessments, one by Ms Paige and another by Ms Barbuzza. The Court did not appear to put a lot of weight on Ms Paige’s report but quoted Ms Barbuzza at length (pages 25 and 26 of the Sentencing Remarks). The Judge agrees with the comments by the Psychologist, which included:
(a) there was nothing to suggest that he would have carried out the offence and does not have access to children, hence it appears to be sexual fantasy. The fantasies were noted to be a concern, but there was no history of deviant acting out behaviour;
(b) his primary interest was in adult women;
(c) Mr Collinson lacks many of the factors commonly associated with sex offending; and
(d) other than this current offending, Mr Collinson appeared to be an overall law-abiding citizen with a positive work history and a supportive social network.
24. In conducting my independent evaluation, I similarly come to the same conclusions that Mr Collinson does not show any deviant sexual behaviour towards real children, does not show normal risk factors, and has normal heterosexual adult sexual interests.
25. I further note that these charges were 10 years ago and that there has been no further offending. The Court at the time of sentencing indicated that he was noted to be remorseful, and that he was seen at that time as not being a high risk reoffender. Although it was noted that the charges were serious, he pleaded guilty early, demonstrated remorse, and engaged in psychological counselling.
26. Mr Collinson further explained that the offences took place in the context of him being a young adult in a workplace environment which was both negative in its nature and quite sexualised. He indicated, at the time, he was suffering from anxiety. He further added that he did not understand that written stories were actually illegal (as an experienced Psychologist, this is not uncommon that people associate child pornography as being pictures or videos of real children as opposed to just the written word, which in law is defined as pornography).
… 
33. In summary, Mr Collinson committed some fantasy-related offences as a young adult. This involved downloading some stories which involved child pornography and a telephone discussion with a prostitute, who reported the discussion to the police. At no time did the matters involve real children, although the content was serious and illegal. Mr Collinson indicated that he was remorseful, has undertaken therapy, there is no evidence of repeat offending of any nature (sexual or otherwise), and that he has been a hardworking member of society. Mr Collinson was assessed by two psychologists at the time and they assessed him to be low risk. I am an experienced forensic psychologist and I did not find any evidence of risk and results of my assessment are similar to the psychologists who assessed him at the time, and that is he is of low risk.
(e)	In testimony, Dr Watts, having reviewed his notes, opined that Mr Collinson took responsibility for the second Index Offence. He stated that Mr Collinson was ‘shocked’ in relation to the first Index Offence and that Dr Watts would describe him as ‘ignorant’ rather than downplaying the offence. Dr Watts further stated that Mr Collinson had demonstrated insight and awareness of his offending when Dr Watts assessed him in 2020. He described Mr Collinson as ‘not hugely psychologically insightful’ but also that he did not minimise his offending in their discussion.
(f)	As noted by Dr Watts, the sentencing judge agreed with Ms Barbuzza’s comments in her 2011 pre-sentence report. The sentencing judge found that:
The psychological report that was prepared by Ms Barbuzza at page 7 states:
‘Although Mr Collinson denied a link between his two types of offences, his behaviour suggests a pattern not inconsistent with a sexual deviant interest in children, particularly as he seems to have accessed this material via the internet and by communicating with a prostitute. 
There was nothing to suggest that he would have carried this out, and he does not have access to children or a two-year-old niece, hence this appears to have been a sexual fantasy. Having such fantasies is of concern, despite the lack of evidence to suggest a history of sexually deviant behaviour. This should be explored further within treatment following sentencing when he is likely to be more open about his behaviour.
Notwithstanding the above concerns there was also evidence to suggest that his primary sexual interest is in adult women, as indicated by his reported interest in adult pornography and satisfaction from sexual relationships.
Furthermore, Mr Collinson lacks many of the factors commonly associated with sexual offending. Given the above, it is recommended that Mr Collinson engages in treatment to address the above issues, preferably individual counselling that can be tailored to his needs. This could provide a more detailed assessment of his sexual interest in children and further treatment recommendations could emerge from this.
Other than this current offending Mr Collinson appears to be an overall law‑abiding citizen with a positive work history and supportive social network.’
I agree with those remarks by that psychologist and I particularly endorse her recommendation that you receive individual counselling for your treatment needs.
(g)	Dr Watts testified directly on the issue of sexual deviancy, noting that a majority of the adult population have what would be considered to be deviant sexual thoughts but that a far smaller percentage act on these thoughts. The Tribunal also notes that sentencing judge’s phrasing of ‘not inconsistent’ does not go so far as to establish that Mr Collinson necessarily had such thoughts. 
(h)	There is a likely unintended risk assessment implicit in the Respondent’s actions regarding Mr Collinson over the past eleven years. The Respondent granted Mr Collinson visas in 2013 and 2022. The Western Australian Sexual Offender Management System notified the Australian Border Force in 2017 about Mr Collinson’s offending. The Respondent does not appear to have acted for several years after the NOICC was issued in March 2020 and Mr Collinson had responded to that NOICC in April 2020. Even after Mr Collinson notified the Respondent of his offending when sponsoring Ms Nascimento’s visa application in September 2020, his sponsorship was approved. These proceedings arise from a second NOICC issued in April 2024. At the least, this series of events and the span of time they cover suggests a lesser concern on the Respondent’s part about the risk of Mr Collinson re-offending.
(i)	This also raises the decision of His Honour Justice Colvin in Brown v Minister of Home Affairs, as upheld by the High Court in Minister for Immigration and Border Protection v Makasa, regarding the conditions under which a decision under s 501(2) is spent. However, for the purposes of this decision, the Tribunal does not consider that it need assess this aspect.
56.	Summarising Mr Vines’ arguments on this element as the Tribunal understands them:
(a)	Regarding recidivism, Mr Collinson attributes his offending to psychological factors including anxiety, depression, financial pressure, work difficulties, and peer pressure. While he claims to have sought psychological treatment, the Respondent maintains that the risk of re-offending remains unacceptable. This assessment is supported by Ms Barbuzza’s 2011 identification of a pattern “not inconsistent with a sexual deviant interest in children” and the sustained nature of Mr Collinson’s engagement with exploitative material over five months in the first Index Offence.
(b)	Although the Respondent acknowledges that the offenses occurred over thirteen years ago with no subsequent offending, demonstrating a low risk of recidivism, it maintains that any risk of similar conduct in the future is unacceptable due to the serious nature of potential harm to individuals. Consequently, the Respondent contends that Primary Consideration 1 weighs heavily in favour of affirming the reviewable decision.
57.	Summarising Ms Graziotti’s arguments on this element as the Tribunal understands them:
(a)	There are several significant factors that suggest Mr Collinson is a negligible risk:
i.	Mr Collinson has not engaged in any similar conduct for more than fourteen years, demonstrating law-abiding behaviour over a sustained period.
ii.	Mr Collinson’s current life circumstances differ substantially from those that existed at the time of the Index Offences, and he has been effectively tested in the community without incident.
iii.	When assessed cumulatively, while the potential harm is serious, the likelihood of Mr Collinson engaging in further criminal conduct is deemed negligible, with insufficient evidence to support a finding that he poses an unacceptable risk to the Australian community.
(b)	The Respondent’s argument characterising the risk as “unacceptable” is unreasonable given several specific circumstances:
i.	The Respondent granted Mr Collinson an RRV in 2013 and 2022. 
ii.	The Australian Border Force was notified of Mr Collinson's offenses in 2017, yet no immediate steps were taken to remove him from the Australian community. 
iii.	A NOICC was issued in March 2020, but the Respondent made no decision for almost five years, suggesting that Mr Collinson was not considered to pose an “unacceptable risk.” 
iv.	Mr Collinson provided a statutory declaration regarding his offending behaviour to the Department in relation to Ms Nascimento’s UK‑820 application, which was subsequently approved. 
v.	Mr Collinson was authorised to remain in the Australian community through multiple governmental actions, including the granting of visas and choosing not to act on available information regarding his past offenses.
(c)	Regarding Mr Collinson’s time in the Australian community, he resided there from March 2004 to November 2024, with the offenses occurring between June and November 2010. Following the offenses, he lived in the community for 14 years, including five and a half years without any reporting requirements or supervision. The Tribunal is cautioned that failure to consider this period as evidence of rehabilitation may constitute jurisdictional error.
(d)	Notably, Mr Collinson was never incarcerated, as the sentencing judge did not consider him to pose such a risk that bail should be denied, or that immediate imprisonment was warranted. Instead, Mr Collinson completed counselling, abided by court-imposed conditions, maintained transparency with family members regarding his offenses and consistently expressed remorse for his offending.
(e)	Mr Collinson’s remorse is evidenced by the sentencing judge’s remarks, which noted his cooperation with the police, his early guilty plea, his demonstration of remorse and his acceptance of responsibility. Family members have attested to his continuing expressions of remorse, and his then-partner Ms Endersby, despite being upset upon learning of the offenses, remained and remains supportive of him, believing his Index Offences represented a lapse in judgment rather than an enduring character flaw.
(f)	As a father for nine years and with another child expected, Mr Collinson reports feeling profound disgust when reflecting on his past behaviour. He has maintained a prosocial lifestyle since the offenses, with no indication in his current circumstances that he poses more than a negligible risk of reoffending.
(g)	Objective expert evidence further supports this assessment. The sentencing judge concurred with Ms Barbuzza’s finding that while Mr Collinson’s fantasies were concerning, there was “nothing to suggest that he would have carried this out.” Similarly, Dr Watts concluded in 2020 that Mr Collinson presented a low risk, consistent with earlier psychological assessments. In the four and a half years since Dr Watts’ report, Mr Collinson has maintained employment, fulfilled family responsibilities, and refrained from any behaviour similar to the original offenses.
(h)	Mr Collinson’s ongoing commitment to lawful behaviour is further reinforced by his awareness of the consequences of reoffending, including the potential for visa cancellation without natural justice considerations and permanent exclusion from Australia, which would permanently affect his family relationships. This awareness serves as a significant deterrent to any future offending.
58.	In addressing this element of Primary Consideration 1, the Tribunal notes that the legislative threshold is whether there is ‘a’ risk. 
59.	The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn. 
60.	The Tribunal’s task is to determine the realistic level of risk posed by Mr Collinson as at the time of its decision, with the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’, to the extent that it could be considered an unacceptable risk.
61.	When considering whether Mr Collinson poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal must consider all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’.  In undertaking this task, the Tribunal acknowledges that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. Senior Member Taylor observed a qualification to this in Dharma and Minister for Home Affairs, in that the degree of risk that may be acceptable to the community is ‘inversely related’ to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending. 
62.	Paragraph 8.1.2(1) uses the phrase ‘unacceptable risk’, that is, a risk that the community should not be required to tolerate or accept, regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection, Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, when determining what an ‘unacceptable risk’ is, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
63.	The decision of Minister for Immigration and Ethnic Affairs v Baker provides an evaluative approach for the Tribunal to apply in assessing Mr Collinson’s conduct, finding that Paragraph 8.1.2(b)’s reference to criminal or other serious conduct is:
…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material. (Emphasis added.)
64.	In Guo, Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court clarified the extent to which past events are a guide to potential future events:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. (Emphasis added.)
65.	Her Honour Justice Mortimer (as she then was) explored the concept of risk in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], where Her Honour noted:
That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.
66.	Applying Sabharwal’s reasoning to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Mr Collinson engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo, guided by Murphy and Baker’s consideration of what Mr Collinson’s past criminal conduct and other serious conduct reveals about his character. 
67.	As observed in GTPT, the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence’ in assessing whether there is a risk. Additionally, the more time that passes without Mr Collinson re‑offending, irrespective of formal rehabilitation, is evidence that his risk has reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’
68.	The Tribunal’s consideration of the risk or likelihood of Mr Collinson engaging in further criminal or serious conduct will assess the factors that: 
(a)	facilitate the risk; or, 
(b)	conversely, hinder or retard the risk. 
69.	Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
The factors that facilitate the risk of re-offending
70.	The evidence and testimony in this matter, especially Dr Watts’ 2020 report and the sentencing judge’s decision, lead the Tribunal to infer and find that Mr Collinson’s relative immaturity, his work milieu and his anxiety at the time of the Index Offences contributed as factors that facilitated his offending then.
71.	These factors have all changed for the better since his offending. In 2020 (and in his testimony), Dr Watts repeated Ms Barbuzza’s opinion that Mr Collinson lacks many of the factors commonly associated with sex offending and opined that Mr Collinson ‘does not show any deviant sexual behaviour towards real children, does not show normal risk factors and has normal heterosexual adult sexual interests.’
The factors that hinder or reduce the risk of re-offending – Rehabilitation and remorse 
72.	Mr Collinson’s remorse is sustained and well-evidenced, corroborated by Ms Endersby and Ms Nascimento and was evident in Mr Collinson’s testimony. 
73.	Since offending, Mr Collinson has matured, has prosocial relationships with women, appears to have an excellent work ethic and a good career in a positive environment where he is valued and sought after and is a parent. He completed his rehabilitation and has been removed from the sex offender register. He has spent fourteen years in the community without offending since the Index Offences.
The Tribunal’s risk analysis and consideration
74.	The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Collinson’s offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending. 
75.	In doing so, it has applied the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. 
76.	In making its finding on the likelihood of Mr Collinson re-offending, it has then considered what the combination of his offending, his displays of remorse and what he has achieved in his life since offending say about his character, as well as assessing whether the consequences of his offending in future are likely to be unacceptable to the Australian community.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
77.	The Tribunal finds that a risk to the Australian community should Mr Collinson commit further offences or engage in other serious conduct exists. The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers this risk to be either a negligible or effectively non-material risk, once Mr Collinson’s risk management factors, his time in the community without offending, his remorse and his rehabilitation efforts are considered and evaluated against the factors that contributed to his offending. The former significantly outweigh the latter.
Conclusion: Primary consideration 1: Protection of the Australian community 
78.	The Tribunal finds that Mr Collinson’s offending is serious, that the consequences of any such future offending may involve indeterminate psychological harm to members of the Australian community and that this likelihood of his future re-offending is negligible or effectively non-material.
79.	The Tribunal further finds that in its totality, this consideration weighs only moderately in favour of affirming the reviewable decision.
Primary consideration 2: Family violence committed by the non‑citizen
80.	There is no evidence, including any convictions, before the Tribunal that Mr Collinson has committed or been convicted of an offence involving family violence.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen 
81.	This consideration carries neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA 
82.	This Primary Consideration directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Collinson’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. 
83.	The Tribunal must also consider the strength, nature and duration of any other ties that Mr Collinson has to the Australian community, having regard to:
(c)	how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i)	less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii)	more weight should be given to time the Applicant has spent contributing positively to the Australian community
(d)	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. 
84.	The evidence before the Tribunal in relation to this Primary Consideration includes witness testimony, Mr Collinson’s statements, statutory declarations from Ms Endersby, her mother, Mr Collinson’s mother and Ms Nascimento, a statement by Ms Endersby and family photographs.
85.	Summarising Mr Vines’ contentions on this Primary Consideration as the Tribunal understands them:
(a)	Mr Collinson has resided in Australia for approximately twenty years, having arrived when he was fifteen. While this constitutes a significant period, Mr Collinson spent a material portion of his formative years in the United Kingdom, and the Index Offences were committed six years after his entry into Australia. During his time in Australia, Mr Collinson has made positive contributions to the community through his employment and part‑time carpentry business, as specified in Paragraph 8.3(2)(a)(ii) of the Direction.
(b)	In terms of family connections, Mr Collinson has several immediate family members in Australia, including his mother and brother, both of whom are Australian citizens. According to Mr Collinson’s statements, his mother suffers from multiple health conditions including rheumatoid arthritis, plantar fasciitis, and bursitis, and depends on him for support. Mr Collinson also claims to provide emotional support to his younger brother, who experiences depression, and financial support to both his mother and brother.
(c)	Mr Collinson’s biological father and stepfather both reside in the United Kingdom. However, Mr Collinson has indicated that he has minimal contact with them, stating that he communicates with his biological father and stepfather only occasionally and is not close to either, having last seen his biological father when he was fifteen.
(d)	The family members likely to be most significantly affected by a visa cancellation decision include the applicant’s son and former partner, Ms Endersby, an Australian citizen who relies on Mr Collinson for emotional and financial support. Mr Collinson maintains joint financial commitments with Ms Endersby, including a mortgage, car loan and other expenses. Additionally, Mr Collinson shares joint custody of their son and actively participates in his upbringing. Their son has been diagnosed with attention deficit hyperactivity disorder (ADHD). Both Ms Endersby and her mother have provided statements supporting Mr Collinson.
(e)	Mr Collinson is currently in a relationship with Ms Nascimento, a Brazilian citizen residing in Australia on a Partner visa for which Mr Collinson served as sponsor. Their relationship began in 2018, and Ms Nascimento, who has lived in Australia since March 2017, is pregnant with their unborn child, due in May 2025. Mr Collinson’s Statement of Facts Issues and Contentions acknowledges that the visa cancellation would significantly impact Ms Nascimento’s ability to visit and remain in Australia.
(f)	Based on these considerations, the Respondent concedes that this factor weighs in favour of setting the reviewable decision aside.
86.	Summarising Ms Graziotti’s contentions on this consideration as the Tribunal understands them:
(a)	Mr Collinson arrived in Australia at fifteen and has since demonstrated his capacity to comply with Australian laws and contribute positively to society through his roles as a partner, father, son, co-parent, employee, business owner, taxpayer and friend. At the time of the Tribunal’s decision, Mr Collinson will be thirty-six, having spent most of his adult life in Australia.
(b)	Throughout his residency in Australia, Mr Collinson has maintained consistent employment, progressing from an apprentice to a qualified carpenter. For the past twelve or more years, he has worked full time as a scheduler/estimator for a building company while simultaneously operating his own carpentry business on weekends and performing contract scheduling for other builders after hours. These positive contributions, coupled with the significant impact that affirming the reviewable decision would have on his family in Australia, weigh in favour of setting the reviewable decision aside and preserving his RRV.
(c)	The Direction requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia. The applicant’s immediate family consists of:
i.	His partner, Ms Nascimento (holding a UK-820 visa sponsored by Mr Collinson)
ii.	His mother (an Australian citizen)
iii.	His brother (an Australian citizen) and his fiancée
iv.	His former partner and the mother of his child, Ms Endersby (an Australian citizen)
v.	His son (an Australian citizen)
vi.	His former mother-in-law (an Australian citizen)
(d)	Additionally, his and Ms Nascimento’s unborn daughter, due in May 2025, if born in Australia, may be eligible for Australian citizenship. 
(e)	Apart from Ms Nascimento, who lacks a permanent visa solely due to not having received a decision on her BS-801 application, all of Mr Collinson’s family members are Australian citizens residing permanently in Australia. His relationships with his father and stepfather in the United Kingdom are limited to occasional phone calls.
(f)	Ms Nascimento has demonstrated commitment to a future with Mr Collinson despite his offending and the risk that he may be removed from Australia. If he were unable to return to Australia, she would experience significant hardship, having lived in Australia for the past seven and a half years. Currently nineteen weeks pregnant, her entire support network is in Australia, where she has established her life. She has returned to Brazil only once since her arrival in Australia, and Mr Collinson was unable to accompany her at the time due to uncertainty regarding the Notice of Intention to Consider Cancellation.
(g)	Ms Nascimento has no family or social connections in the United Kingdom and has never visited the country. She remains uncertain about what long‑term visa options might allow her to remain in the United Kingdom. Since Mr Collinson was taken into immigration detention in November 2024, Ms Nascimento has experienced significant emotional, financial and practical distress. Her general practitioner has expressed concern regarding the impact of her current circumstances on her physical and mental health, as well as the potential risk to her unborn daughter.
(h)	Affirming the reviewable decision would also have serious implications for Ms Nascimento’s own ability to visit and remain in Australia. Her BS‑801 application cannot be approved if her sponsor no longer holds a permanent visa. Consequently, if the reviewable decision is affirmed, she will face the choice of withdrawing her BS-801 application or receiving a refusal decision. Should Ms Nascimento receive a refusal on her BS-801 application while offshore, she would not be eligible to lodge an application for review with the Tribunal unless granted another visa to re-enter Australia within twenty-eight days of the refusal decision. Furthermore, her UK-820 visa will cease the day her BS-801 visa is refused, effectively preventing her from re-entering Australia to visit Mr Collinson’s son or any other family members or her friends.
(i)	Ms Nascimento has been a significant part of Mr Collinson’s son’s life since December 2019. She will suffer enormous distress if unable to continue her important role in his life and will be devastated if his son cannot fulfill his “big brother” role to his soon-to-be-born sister. She has already found it incredibly difficult to attend prenatal appointments without Mr Collinson. 
(j)	Mr Collinson’s son accompanied Ms Nascimento to her scan on 16 December 2024, and continues to be extremely excited about his sister’s birth. He is very disappointed and upset that his father is “away for work” and that Ms Nascimento has joined him but is looking forward to their return.
(k)	Despite separating in 2018, Mr Collinson has maintained a close relationship with Ms Endersby, and they have amicably and successfully co-parented their son together for the past six years. Ms Endersby would be detrimentally affected if Mr Collinson were unable to re-enter or remain in Australia. Mr Collinson and Ms Endersby have a private agreement regarding financial support for their son. Mr Collinson’s income in Australia has steadily increased with experience and industry contacts, enabling him to contribute to his son’s expenses without disagreement between the parties. They are concerned that the applicant’s financial position will drastically deteriorate upon removal (already significantly depleted through lost income during detention, legal fees and removal costs), affecting both his son and Ms Endersby. Ms Endersby uses the financial support she receives from Mr Collinson to cover costs for their son and contribute to her mortgage.
(l)	Ms Endersby has been on anti-depressant medication for over ten years and ADHD medication for approximately eighteen months. She fears losing Mr Collinson and Ms Nascimento’s physical presence in Australia, given the substantial support she derives from their company and co-parenting of their son. Her husband works on a fly-in, fly-out basis and is in Perth for only one week out of every three, while Ms Endersby’s mortgage remains solely in her name. Having never had to raise their son alone, the prospect of coping for the next nine years until he turns eighteen is overwhelming. She cannot contemplate the distress that both she and their son would experience in having to tell him that his father is never returning home.
(m)	Ms Endersby would also face increased pressure to assist Mr Collinson’s mother with her practical and emotional needs in Mr Collinson’s absence, while already caring for her own elderly parents and her child. Ms Endersby and their son cannot relocate to the United Kingdom as their lives are established in Australia, and due to their son’s ADHD and sensory processing issues, such a drastic change would be beyond his capacity to manage. This factor weighs heavily against affirming the reviewable decision.
(n)	Mr Collinson’s mother receives a Disability Support Pension for conditions including anxiety, depression, cervical and lumbar spondylosis, multiple sclerosis, rheumatoid arthritis, chronic pain, scoliosis and facet joint degeneration. Multiple sclerosis, a chronic neurological disease with no cure, can result in a range of symptoms including loss of motor function, sensation, vision changes and cognitive impairment. She relies on Mr Collinson for practical assistance with daily tasks such as grocery shopping, laundry, home maintenance, transportation and emotional support.
(o)	Due to her medical conditions and chronic pain, Mr Collinson’s mother cannot sit for extended periods, including on an airplane. With the most direct flight to the United Kingdom from Perth requiring at least seventeen hours of sitting, she is unable to travel to the United Kingdom. Any suggestion that Mr Collinson could meet his mother in a third country would require speculation regarding his ability to obtain a visa for that country and should be disregarded. Furthermore, even the closest international destination from Perth (Indonesia) requires at least three hours of sitting on a flight.
(p)	Mr Collinson’s mother has already suffered from the loss of her son’s practical support during his four weeks in detention. She reports feeling ‘stressed and panicked’ about losing this support and how she will cope, stating that his permanent removal from Australia would be ‘devastating and frightening.’ She indicates that Mr Collinson’s detention has severely impacted her mental and physical health, leading to suicidal thoughts. The applicant’s brother is unable to meet their mother’s care needs due to his job’s travel demands and his fiancée’s own care requirements (she has epilepsy).
(q)	Mr Collinson’s mother’s conditions will not improve, and her mental health has deteriorated since his detention and removal. Affirming the reviewable decision will detrimentally affect her physical and mental health, and it is unlikely she will ever see her son again. This factor weighs heavily against cancelling the applicant’s visa.
(r)	Mr Collinson’s brother, nine years his junior, witnessed family violence during their parents’ separation and looked to Mr Collinson for guidance and support throughout his childhood and adolescence. Diagnosed with anxiety and depression as a teenager, he relies on Mr Collinson as a strong part of his support network. There are significant concerns for his mental health should Mr Collinson be unable to return to Australia. The family has already been impacted by the uncertainty caused by the NOICC issued almost five years ago and is deeply concerned about how each member will cope if Mr Collinson is permanently barred from returning to Australia. This factor weighs in favour of setting the reviewable decision aside.
(s)	Setting the reviewable decision aside is undeniably in Mr Collinson’s son’s best interests. His son will be directly impacted by the Tribunal’s decision and by the flow‑on effects that affirming the reviewable decision would have on his mother, father, grandmother, stepmother, uncle and unborn sibling.
(t)	In conclusion, the support network Mr Collinson and Ms Nascimento have in Australia is not available to them in any other country. His immediate family members reside in Australia and are committed to providing him with all necessary support for his ongoing rehabilitation and prosocial lifestyle. The couple has built their life in Australia and was anticipating the birth of their first child together, surrounded by family, friends and other loved ones. The negative impact that Mr Collinson’s removal and ongoing prohibition from returning to Australia would have on his Australian family members (particularly his son, Ms Endersby, and Mr Collinson’s mother) constitutes a reason why the Tribunal should set the reviewable decision aside. 
(u)	This consideration weighs heavily in favour of setting the reviewable decision aside to the extent that it outweighs all other considerations supporting cancellation.
87.	The Tribunal now considers these contentions and evidence through the lens of each subparagraph in Paragraph 8.3.
Paragraph 8.3(1)
88.	Mr Collinson’s immediate family are in Australia. The Tribunal considers that Mr Collinson’s former spouse, former mother-in-law, mother, brother and son are all Australian citizens, permanent residents or have the right to remain in Australia indefinitely. 
89.	Based on the evidence and testimony, a decision to affirm the reviewable decision will be highly likely to have adverse emotional, psychological and financial impacts on each of these members of Mr Collinson’s immediate family. Each will also lose the benefit of Mr Collinson’s supporting presence and proximate availability to assist them when needed.
Paragraph 8.3(2)(a)
90.	Mr Collinson arrived in Australia at fifteen and has resided here since then. His Index Offences occurred some six years later. The Tribunal consequently considers and finds that Mr Collinson did not begin offending soon after arriving in Australia.
91.	Mr Collinson’s uncontested evidence and testimony demonstrate that he has made sustained and significant positive contributions to the Australian community over the course of his working career in the housing industry. 
Paragraph 8.3(2)(b)
92.	The family links identified above also make out the strength and duration of Mr Collinson’s links to Australia under this paragraph.
The Tribunal’s Consideration
93.	The Tribunal considers that a decision leading to Mr Collinson’s removal will likely have multiple substantial and persistent adverse long-term impacts on each member of his immediate family. 
94.	Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside. 
95.	In terms of weight, the impact of affirming the reviewable decision on his immediate family and his friends as well as his positive contributions to the Australian community give this finding very strong and substantive weight.
Conclusion: Primary consideration 3: The strength, nature and duration of ties to Australia
96.	The Tribunal gives this consideration very strong and substantive weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
97.	Paragraph 8.4(1) of the Direction necessitates an assessment to determine if the non‑revocation of Mr Collinson’s Visa under s 501CA aligns with the best interest of any minor children in Australia who would be impacted by the decision.
98.	Under this consideration, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of a child affected by such a decision. This only applies if the child is under eighteen years old when the decision to set aside or affirm is made.
99.	This paragraph is enlivened by Mr Collinson’s nine‑year‑old son, Child A (born in 2015). 
100.	When deciding what is in the child’s best interests, the Tribunal must consider how close the child is to the non-citizen, the non-citizen’s role as a parent, the impact of the non‑citizen’s past and future behaviour on the child, how separation would affect the child and whether the child has been hurt or abused by the non-citizen. The Tribunal should also consider the child’s own views, depending on their age and maturity, if available.
101.	The evidence before the Tribunal in relation to this Primary Consideration includes witness testimony, Mr Collinson’s statements, statutory declarations from Ms Endersby, her mother, Mr Collinson’s mother and Ms Nascimento, a statement by Ms Endersby and family photographs.
102.	There is no direct evidence from Child A as to their views.
103.	Summarising Ms Graziotti’s contentions on this consideration as the Tribunal understands them:
(a)	In the present case, it is asserted that cancelling Mr Collinson’s visa is not in his son’s best interests, a position that was acknowledged in the reviewable decision, where significant weight was attributed to this factor.
(b)	Child A is currently nine years old and is an Australian citizen by birth. He has resided in Australia for the entirety of his life. Prior to Mr Collinson’s detention on 14 November 2024, Child A had never experienced an extended separation from his father, who would visit him multiple times each week.
(c)	Following his birth, Child A required hospitalisation for four months due to prematurity. Because of his premature birth, he experienced frequent illness during his early years, with respiratory issues necessitating multiple hospital admissions. Mr Collinson’s mother was substantially involved in Child A’s care and in supporting the parents, enabling Ms Endersby to maintain employment during this challenging period.
(d)	In addition to ADHD, Child A experiences sensory processing difficulties. These conditions require strict consistency in his daily routine to prevent ‘meltdowns,’ and he is susceptible to heightened anxiety when confronted with significant changes to his life circumstances.
(e)	Child A has expressed distress regarding his father being ‘away for work’ and Ms Nascimento’s impending departure to join Mr Collinson. He anticipates his father and Ms Nascimento returning home soon. Mr Collinson and Ms Endersby jointly decided against allowing their son to visit Mr Collinson in immigration detention to avoid causing further distress.
(f)	Should Mr Collinson be permitted to return to Australia, he would continue to fulfill a positive parental role for his son. Conversely, if his visa cancellation is maintained, Mr Collinson would be unable to continue supporting his son—financially, emotionally, practically or otherwise—or to maintain a meaningful relationship with him, as he would be prohibited from visiting Australia even for brief periods.
(g)	There is no evidence indicating that Child A has ever suffered abuse or experienced any physical or emotional trauma arising from Mr Collinson’s conduct, apart from the effects of their current separation.
(h)	It is reasonable to conclude that if Mr Collinson were unable to return to Australia, his son would remain in Australia with Ms Endersby. Their contact would, for all practical purposes, be extremely limited. Given the substantial travel expenses associated with travel between Perth and the United Kingdom, face‑to‑face meetings would be insufficient and too infrequent to maintain a meaningful father‑son relationship until Child A reached the age of eighteen.
(i)	Child A has demonstrated greater excitement than his parents anticipated regarding the prospect of becoming a big brother. He has accompanied Ms Nascimento to her most recent pregnancy scan and communicates with his unborn sister through Ms Nascimento’s abdomen. Mr Collinson, Ms Endersby, Mr Collinson’s mother and Ms Nascimento are all profoundly distressed by the possibility that the son may be prevented from developing a relationship with his sibling.
(j)	It is manifestly in Child A’s best interests that the reviewable decision be set aside, thereby enabling Mr Collinson to continue fulfilling his parental role and maintaining a meaningful relationship with his child. The son’s quality of life would be significantly enhanced by his father’s ability to re-enter Australia.
(k)	Setting aside the decision would also enable Child A to maintain his relationship with Ms Nascimento and establish a relationship with his soon-to-be-born sister.
(l)	In evaluating this factor, the Tribunal should be mindful of Australia’s obligations under the Convention on the Rights of the Child.
(m)	This consideration weighs heavily in favour of not cancelling Mr Collinson’s visa and is presented as outweighing all other considerations in the decision-making process.
104.	Summarising Mr Vines’ contentions as the Tribunal understands them:
(a)	The Respondent acknowledges that it would serve Child A’s best interests for the applicant’s visa not to be cancelled.
(b)	However, the Respondent presents a countervailing argument, contending that in the event of Mr Collinson’s permanent removal to the United Kingdom, there is no evidence to suggest that he would be unable to maintain contact with Child A through electronic and other means of communication, as specified in paragraph 8.4(4)(d).
105.	There is no direct evidence from Child A as to their views.
The Tribunal’s consideration
106.	In addressing this paragraph, the Tribunal should consider the best interests of each identified child to the extent that their interests may differ.
107.	Acknowledging the evidence and testimony before it in addition to the Respondent’s contentions, the Tribunal makes the following points in its assessment of this consideration relative to paragraph 8.4(4) of the Direction. 
108.	The relationship between Mr Collinson and Child A, prior to Mr Collinson entering detention and then departing for the United Kingdom, is parental, has existed since Child A’s birth and involves substantial and continuing meaningful contact.
109.	Qualified to an extent on the outcome of these proceedings, Mr Collinson is likely to continue to play a parental role over the next nine years before Child A turns eighteen.
110.	There is no evidence before the Tribunal indicating that Mr Collinson’s prior conduct has had a negative effect on Child A, nor that Child A was exposed to Mr Collinson’s Index Offences as he was born some four to five years later.
111.	The evidence and testimony support the Tribunal finding that Child A will suffer significantly – both emotionally and psychologically – if he and his father are physically separated because of Mr Collinson being returned to the United Kingdom.
112.	The evidence supports a finding that Ms Endersby and Mr Collinson share parental duties, supported by Ms Nascimento. 
113.	There is nothing here to suggest that Paragraphs 8.4(4)(g) or (h) are enlivened.
114.	Based on the evidence and resulting claims evaluated above, the Tribunal considers that this Primary Consideration supports setting the reviewable decision aside and that it weighs very heavily and substantively in this regard.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
115.	This consideration supports setting the reviewable decision aside. It carries a very heavy and substantive weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
116.	Paragraph 8.5(1) of the Direction provides: 
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
117.	In addition to the above, Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa. 
118.	Paragraph 8.5(2) also provides 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 because of conduct, in Australia or elsewhere, of the following kinds:
(a)	acts of family violence;
(b)	causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)	commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)	commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)	involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)	worker exploitation.
119.	Paragraph 8.5(3) provides that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision‑makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
120.	Clause 8.5(4) of the Direction aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR).
121.	Acknowledging the diversity of reasoning in FYBR, the Court’s plurality held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.
122.	The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation of a visa, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine.’ 
123.	The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’
124.	Observing the norm contained in Paragraph 8.5, the Tribunal has also considered the guidance informed by the principles set out in Paragraphs 5.2(1) to (8) of the Direction. In summary these are:
(a)	The Australian government’s highest priority is the Australian community’s safety.
(b)	Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(c)	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.
(d)	The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)	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.
(f)	In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally 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.
(g)	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.
(h)	Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.
125.	Subparagraph 5.2(4) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, s 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay,’ as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas. 
The Tribunal’s consideration
126.	Mr Collinson’s Visa was a Class BB Subclass 155 Five Year Resident Return visa until it was cancelled. This Visa cannot be classified as a limited stay visa. This implies that Subparagraph 5.2(5)’s low tolerance does not apply.
127.	Arriving in Australia at fifteen, Mr Collinson has resided here for approximately twenty‑one years. This enlivens Paragraph 5.2(6)’s higher tolerance.
128.	The Tribunal has found Mr Collinson’s offending conduct to be serious. He committed crimes of a sexual nature. These two findings temper the higher tolerances acknowledged above.
129.	The Tribunal is satisfied that Mr Collinson has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the tolerances assessed above.
130.	Mr Vines contends that this Primary Consideration weighs for affirming the reviewable decision due to the Index Offences’ serious nature.
131.	Ms Graziotti contends:
(a)	Except for the offences committed in 2010 and some traffic infringements, Mr Collinson has demonstrated consistent compliance with Australian laws throughout his period of residence in Australia. It is significant to note that he has never been incarcerated or removed from the Australian community except as a direct consequence of the reviewable decision.
(b)	Based on this established pattern of law-abiding behaviour over an extended period, it is contended that there does not exist an unacceptable risk that he will engage in serious conduct that would breach the expectations of the Australian community if he is permitted to remain in Australia.
132.	The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.
133.	Having regard to the evidence and context of Mr Collinson’s Index Offences, the Tribunal also concludes, after evaluating the tolerances Mr Collinson’s circumstances invoke, that this Primary Consideration weighs only slightly in favour of affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
134.	This consideration carries a slight weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
135.	The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.
OTHER CONSIDERATION (a): LEGAL CONSEQUENCES OF THE DECISION 
136.	Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable. 
137.	A non-citizen whose visa has been cancelled under s 501 of the Act is barred, while in the migration zone, from applying for any visa other than a Protection visa or a Bridging R visa.
138.	Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to a person outside Australia whose visa has been cancelled under s 501. 
139.	Mr Collinson has not contended that he engages Australia’s protection obligations, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to him.
140.	It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia.
141.	Mr Collinson’s Visa was not a protection visa, and he is not barred from applying for a protection visa.
The Tribunal’s consideration
142.	The logical consequential operation of the Direction and the Act in regard to this consideration is that where the revocation of an applicant’s visa is affirmed, the applicant is liable to be removed from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act. 
143.	 There are no claims of protection or of non-refoulement in this matter.
144.	When the Tribunal considers whether to affirm a decision to cancel a visa under s 501CA(4) of the Act, it must consider the legal consequences of that decision as stated in Paragraph 9.1 of the Direction. In this matter, this includes assessing the implications of Mr Collinson being removed from Australia as soon as reasonably practicable, such as the possibility of further detention and being precluded from returning to Australia.
145.	In NBMZ v Minister for Immigration and Border Protection, the Full Federal Court held that while the Respondent has broad discretion under the Act, the decision must still follow the legal framework set by the law. The Respondent – and the Tribunal – must consider the legal consequences referred to in the preceding paragraph when making their respective decisions.
146.	The Tribunal must approach this consideration in a logical and rational way, based on a correct understanding of the law, as the High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs.
147.	The Full Federal Court in Taulahi v Minister for Immigration and Border Protection stated that the Tribunal’s obligation is to take into account ‘the direct and immediate statutorily prescribed consequences of the decision in contemplation.’ In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision. 
148.	These consequences are that Mr Collinson would – except for the fact that he has voluntarily left – be liable to be removed from Australia as soon as reasonably practicable and would be excluded from returning to Australia. However, the Tribunal has the discretion to decide how much weight these consequences should carry in its decision-making process.
149.	Mr Vines contends that: 
(a)	The Respondent contends that an approach similar to that of the Federal Court in Rano would be appropriate in this case. Specifically, the legal consequence of visa cancellation—exclusion from travel to, entry into, and remaining in Australia—can form part of the implicit or explicit assumptions and backdrop against which the Tribunal evaluates all relevant considerations in exercising its power under s 501(2).
(b)	Nevertheless, the Respondent submits that even if the Tribunal directly addresses this aspect of the Direction, the legal consequences for Mr Collinson if his visa is cancelled do not outweigh the risk to the Australian community should he remain. The Respondent argues that this risk, deemed unacceptable to the Australian community, is mitigated through Mr Collinson’s removal from that community as a legal consequence of visa cancellation.
150.	Ms Graziotti contends:
(a)	These legal consequences are particularly severe for Mr Collinson. He has never been incarcerated and has not re-offended for more than fourteen years. His significant family relationships are exclusively with Australian citizens residing in Australia, and his pregnant partner’s visa status is contingent upon him maintaining permanent residency. Having not visited the United Kingdom since he was fifteen, his permanent exclusion from Australia would prevent him from:
i.	Actively participating in his son’s life
ii.	Assisting his mother with her current and future medical conditions as she ages
iii.	Maintaining relationships with his brother, sister-in-law and the mother of his child
iv.	Enabling his unborn child to grow up in Australia with familial support and a relationship with their sibling.
(b)	His exclusion would deprive the Australian community of his specialised skills at a time when there is a critical need for skilled trade workers amid an ongoing housing crisis.
(c)	Based on these considerations, this Other Consideration should weigh heavily in favour of setting the reviewable decision aside.
151.	The Tribunal has considered the evidence and testimony before it and the contentions above in assessing the legal consequences arising from either affirming or setting aside the reviewable decision.
The Tribunal’s finding
152.	The Tribunal finds that in these circumstances the legal consequences raised by this Other Consideration support setting the reviewable decision aside. 
153.	This consideration carries a moderate weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (b): EXTENT OF IMPEDIMENTS IF REMOVED 
154.	Paragraph 9.2(1) of the Direction provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(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.
155.	There is evidence and testimony before the Tribunal to show that Mr Collinson has few, if any, contacts in the United Kingdom. He appears to have transferrable skills and qualifications that would be recognised in the United Kingdom.
156.	Summarising Mr Vines’ contentions as the Tribunal apprehends them:
(a)	Mr Collinson was removed from Australia on 18 December 2024 and is currently residing in the United Kingdom.
(b)	The Respondent contends that there is no evidence to suggest that Mr Collinson would be unable to re-establish himself in the United Kingdom. Supporting this position, the Respondent observes that Mr Collinson is in his mid‑thirties, has not declared any health issues or difficulties with securing employment and is unlikely to face significant cultural barriers in establishing himself in the United Kingdom.
(c)	Based on these factors, the Respondent argues that this consideration does not outweigh the factors favouring affirming the reviewable decision.
157.	Summarising Ms Graziotti’s contentions as the Tribunal apprehends them:
(a)	Mr Collinson acknowledges that he is unlikely to encounter significant cultural or language barriers in the United Kingdom, given that he resided there until he was fifteen. However, several substantive impediments to his re‑establishment in the United Kingdom can be identified.
(b)	Firstly, his entire family resides in Australia, and his partner does not possess a long-term visa for the United Kingdom. Consequently, he would experience financial, practical, emotional and psychological distress if he were unable to return to Australia.
(c)	While he would have access to the same support services available to other citizens of the United Kingdom, it is significant to note that he has a history of anxiety and depression. This pre-existing mental health condition would be exacerbated by indefinite separation from his Australian citizen child. Furthermore, his partner lacks a residence visa for the United Kingdom and is due to give birth in less than six months’ time, introducing additional complexities and stressors to their situation.
(d)	He does not have family members in the United Kingdom who would or could realistically provide him with social or financial support. Similarly, Ms Nascimento has no established contacts in the United Kingdom, further limiting their support network.
(e)	Mr Collinson would face significant emotional hardship due to ongoing separation from his family. Importantly, this hardship would not diminish with the passage of time but would instead be exacerbated as his son progresses through adolescence, Ms Nascimento gives birth to their child and the applicant’s mother’s medical condition deteriorates.
(f)	Based on these considerations regarding the impediments the applicant would face if removed to the United Kingdom, this factor weighs in favour of setting the reviewable decision aside.
The Tribunal’s consideration
158.	This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Collinson, if removed from Australia to the United Kingdom, will face in establishing himself and maintaining basic living standards, taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
159.	The phrase ‘(in the context of what is generally available to other citizens of that country)’ in Paragraph 9.2(1) is of significance because it establishes the benchmark by which impediments may be measured for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
160.	Mr Collinson is thirty-six.
161.	Mr Collinson appears to be in good physical health. 
162.	In assessing Mr Collinson’s mental health in terms of his anxiety and depression claims, the Tribunal has regard to the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs, and particularly paragraphs [12]–[14]. The Tribunal considers, based in part on its analysis of his risk of reoffending assessed under Primary Consideration 1 above and its assessment of Primary Considerations 3 and 4, that Mr Collinson likely faces a higher risk of anxiety and depression due to separation from his immediate family and loss of employment while caring for a pregnant partner in the United Kingdom than in Australia. He likely has similar options in the United Kingdom compared to those in Australia for treatment for any anxiety or depression but would lack the family support that he has available to him in Australia. 
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers 
163.	The Tribunal considers that Mr Collinson, based on his oral testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to the United Kingdom. 
164.	The Tribunal, applying the same reasoning, also considers that Mr Collinson is unlikely to face significant cultural issues. 
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
165.	The Tribunal considers that, based on the evidence, Mr Collinson would have access to the same medical, social and economic support as that available to other citizens of the United Kingdom.
166.	Mr Collinson does not appear to have any close personal social networks available to him in the United Kingdom. If this is correct, then it may create a short-term aggravation in Mr Collinson establishing himself.
167.	A complicating factor is Ms Nascimento’s presence. While her position is not for consideration under Paragraph 9.2, it is likely that her pregnancy will have an impact on Mr Collinson.
The Tribunal’s finding
168.	The Tribunal has considered above the extent of any impediments that Mr Collinson, if removed from Australia to the United Kingdom, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
169.	Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely that Mr Collinson would face emotional, psychological, practical and financial hardships if he were returned to the United Kingdom, as well as risks to his mental health in terms of likely being at an increased risk of anxiety and depression. He is likely to face short-term difficulties in establishing social, medical and economic support. He is unlikely to face any language or cultural barriers.
170.	These hardships and risks are tempered by his work history and his work qualifications.
171.	After assessing its totality, the Tribunal finds that this Other Consideration carries moderate weight in favour of setting aside the reviewable decision. 
OTHER CONSIDERATION (c): IMPACT ON AUSTRALIAN BUSINESS INTERESTS 
172.	There is evidence and testimony before the Tribunal enlivening this consideration.
173.	Mr Collinson’s testimony, which was not contested, showed that in addition to his employment with Jubilee Home Builders (formerly Ventura Homes), Mr Collinson’s personal estimating, scheduling and carpentry business assists four to five other residential builders with scheduling and carpentry services. Mr Collinson testified that he was receiving texts, calls and emails from his personal clients while in the United Kingdom asking for his services. He also testified that there is a shortage of schedulers and estimators in Perth.
174.	Summarising Ms Graziotti’s contentions as the Tribunal apprehends them:
(a)	Australia is currently experiencing an increasingly severe housing crisis, evidenced by Western Australia's vacancy rates averaging merely 1.36% in November 2024. During this period, leading construction industry bodies urged the Australian government to increase skilled migration to address the critical shortage of tradespeople.
(b)	According to reporting by The Guardian in November 2024, Master Builders, the nation's peak building and construction industry association, has projected that a minimum of 500,000 workers must enter the construction industry by 2029 merely to meet current construction demands. This projection does not account for the government's ambitious target of constructing 1.2 million new homes under the national housing accord, the transition to net zero emissions, or other strategic objectives.
(c)	In March 2024, BuildSkills Australia identified a need for 90,000 new tradespeople by the end of 2024. However, Australian Bureau of Statistics data indicates that the industry is significantly underperforming this target, having hired just over half the required number. An April survey of Master Builders members revealed that 85% reported difficulties in finding suitably qualified workers, with 66% identifying worker recruitment as the industry's most significant challenge.
(d)	In response to these challenges, on November 13, 2024, the Cook Labor Government announced a plan to invest in "supercharging training" for Western Australia's local building and construction workforce and to offer financial incentives to attract qualified building and construction workers to Western Australia. By November 24, 2024, this incentive program was expanded to include skilled workers from New Zealand. Premier Roger Cook stated that from January 2025, skilled building and construction workers from throughout Australia and New Zealand interested in working in Western Australia in occupations such as bricklaying, cabinetmaking, carpentry, electrical work, and plumbing would be eligible to apply for two $5,000 payments to facilitate their relocation.
(e)	On December 23, 2024, Housing Minister John Carey confirmed the government's acute awareness of the housing market challenges across the country and their impact on many Western Australians.
(f)	Mr Collinson, who has operated his own carpentry business since 2016, was engaged for several carpentry jobs at the time of his detention and would regularly have supplies delivered to his residence. His partner, Ms Nascimento, has had to arrange for the return of some of these supplies to enable others to complete the contracted work.
(g)	At the time the reviewable decision was made, Mr Collinson was employed full time by Jubilee Home Builders. His employer continues to maintain a position for him and would benefit from his ongoing presence in Australia.
(h)	Given Mr Collinson’s skills in a critically needed trade sector during a housing crisis, this factor weighs in favour of setting the reviewable decision aside.
175.	Summarising Mr Vines’ contentions as the Tribunal apprehends them:
(a)	Mr Collinson has stated that he has been employed as a scheduler/estimator for a building company for the past twelve years and has additionally operated his own carpentry business since 2016.
(b)	Regarding Mr Collinson’s employment, the Respondent contends that the loss of Mr Collinson’s services as an employee would ordinarily only merit significant weight where such loss would substantially compromise the delivery of a major project or an important service in Australia. 
(c)	While acknowledging the assertions presented anecdotally by Mr Collinson in his Statement of Facts Issues and Contentions regarding the housing and construction sector, the Respondent argues that even if the Tribunal were to accept that the building industry constitutes an important service as contemplated by Paragraph 9.3, the loss of Mr Collinson’s service to his employer could be remediated through the engagement of another employee without significant compromise to the overall delivery of services within the housing or construction industry.
(d)	With respect to Mr Collinson’s carpentry business, the Respondent acknowledges that Mr Collinson’s removal from Australia has impacted this enterprise and that the business will cease operations if Mr Collinson’s visa remains cancelled. However, the Respondent contends that consideration should be given to the relative scale of Mr Collinson’s business, which is operated part time and is confined to small works.
(e)	For these reasons, the Respondent submits that any weight attributed to this consideration in favour of Mr Collinson’s contentions should be minimal.
176.	The Tribunal has assessed the evidence, testimony and contentions above for this Other Consideration in terms of the framework of principles to be drawn from recent case law.
177.	In terms of the impact on Australian business interests, it is likely, based on the evidence and testimony, that Mr Collinson’s removal from Australia has and will continue to have a direct negative impact on Jubilee Home Builders’ operations and the other builders who are his personal clients.
178.	For employment links, such as that between Mr Collinson and Jubilee, weight should generally only be given where his removal would significantly compromise the delivery of a major project. It appears unlikely that Jubilee Home Builders is engaged on a major project, although the Tribunal acknowledges the housing stock shortage which adds some weight to this relationship.
179.	Mr Collinson owns his own business and there is evidence before the Tribunal as to its existence, its turnover, its taxation payments and its work. Removing Mr Collinson from Australia closes this business and ends its support of several builders. Based on Mr Collinson’s uncontested testimony, it is unlikely that his skills can be rapidly substituted or replaced by these Perth builders. The Tribunal infers that the consequences arising from the closure of his personal business involve a significant and substantial negative impact on Australian businesses, being the builders his business supported.
The Tribunal’s finding
180.	The Tribunal finds that this Other Consideration carries significant weight in favour of setting the reviewable decision aside.
THE TRIBUNAL’S FINDINGS
181.	The statutory framework poses two issues for the Tribunal to address:
(a)	character test: whether there is a reasonable suspicion that Mr Collinson does not pass the character test in terms of s 501(6)(b), and whether Mr Collinson satisfies the Tribunal that he passes the character test, and, if not,
(b)	exercise of discretion: whether there is another reason the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.
182.	The Tribunal found above that it was satisfied that Mr Collinson did not pass the character test. 
183.	In determining whether there is ‘another reason’ to set aside the reviewable decision, the Tribunal has applied the Direction to this matter’s specific circumstances. 
184.	Addressing Primary Consideration 1, the Tribunal found that Mr Collinson’s offending is serious, that the consequences of any such future offending may involve indeterminate psychological harm to members of the Australian community and that the likelihood of his future re-offending is negligible or effectively non-material. The Tribunal further finds that Primary Consideration 1 in its totality weighs only moderately in favour of affirming the reviewable decision.
185.	Primary Consideration 2 carries neutral weight.
186.	The Tribunal found that Primary Consideration 3 carries very strong and substantive weight towards setting the reviewable decision aside.
187.	The Tribunal found that Primary Consideration 4 supports setting aside the reviewable decision. It carries a very heavy and substantive weight.
188.	The Tribunal found that Primary Consideration 5 carries a slight weight in favour of affirming the reviewable decision.
189.	The Tribunal found that the legal consequences of the decision regarding Mr Collinson’s Visa carries a moderate weight in favour of setting the reviewable decision aside.
190.	The Tribunal found that the extent of impediments Mr Collinson would face if he were removed to the United Kingdom carries a moderate weight in favour of setting the reviewable decision aside. 
191.	The Tribunal found that the impact on Australian business interests carries significant weight in favour of setting the reviewable decision aside. 
ADDITIONAL CONSIDERATIONS 
192.	The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction). 
193.	There are no additional considerations before the Tribunal in this matter.
CONCLUSION 
194.	The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations. 
195.	The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].
196.	In applying this process, the Tribunal has regard to the Direction and specifically Paragraph 7(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. (Emphasis added.)
197.	The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
198.	The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision. 
199.	Two further authorities offering guidance are His Honour Justice Dowsett’s decision in Aksu v MIMA at [10]–[13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and His Honour Justice Sackville’s decision in Lu v Minister for Immigration & Multicultural & Indigenous Affairs at [54].
200.	The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion:
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion. (Emphasis added.)
201.	Taken together, these points above support the argument that the Tribunal retains a discretion to determine in a specific matter whether ‘greater weight’ should be given to Primary Consideration 1. The Tribunal considers that, in this matter, it should exercise this discretion to find that Primary Consideration 1 should not be accorded this greater weight.
202.	Having conducted and considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations and the Other Considerations in this matter leads this Tribunal to find that it is satisfied that there is another reason to set aside the reviewable decision. 
DECISION
203.	Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent and substitutes a decision that Mr Collinson’s visa is not cancelled.

I certify that the preceding two hundred and three paragraphs (203) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave	
..............[SGD]..............
Associate
Dated: 7 March 2024
Date(s) of hearing:	28 & 29 January 2025	
Solicitors for the Applicant:	Ms Graziotti of Estrin Saul Lawyers. 	
Counsel for the Respondent:	Mr Vines of counsel, instructed by Ms Rezae of Sparke Helmore Lawyers.