Federal Court. Minister found that child pornography offences for which Applicant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? When deciding under s 501CA(4) whether to revoke the mandatory cancellation of a visa, was Minister required to consider that Applicant also held at the same time another visa that would be cancelled by operation of s 501F(3)?
The Applicant held both a Class BF transitional (permanent) visa and absorbed person visa, at the same time. The Minister cancelled the Class BF visa under s 501(3A) of the Migration Act 1958 (Cth). The effect of that cancellation under s 501F(3) was a decision was also taken to have been made to cancel his absorbed person visa.
In refusing under s 501CA(4) to revoke the mandatory cancellation of the Applicant's visa, the Minister found as follows (emphasis added):
46. The circumstances of his offending are described in the Sentencing Remarks as follows. On 15 April 2014, [the Applicant's] car was stopped by the police when a Samsung mobile and an iPhone were found in his car, which contained child exploitation material. The police subsequently searched [the Applicant's] home and located a digital camera, a laptop, USB drives and a computer, two SD cards, two iPhones and a recordable hard drive. A total of more than 900 images of child exploitation material of various categories were found as detailed below...
47. In term of seriousness of the offending, I concur with the Judge that the offences of possessing child exploitation material are 'very serious' in nature. I am cognisant that the offence involves vulnerable victims because real children are abused in the taking of those images, to cater for a market created by viewers. I am mindful that [the Applicant's] child pornography offences are sexual offences against vulnerable members of the community. I hold the view that such offending is very serious in nature and is repugnant to the Australian community.
90. Overall, I find that there is a risk, albeit a low risk, that Mr CRAIG will reoffend. Taking into account the nature of his conviction being sexual offences against children, I find that further offending by Mr CRAIG in a similar manner could result in psychological and/or physical harm to vulnerable member or members of the Australian community.
96. … significant weight to the very serious nature of the crimes committed by [the Applicant], that of Possess child pornography (basic offence and aggravated offence), which are of a sexual nature and involved vulnerable members of the community being minor children.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: On judicial review, the Applicant argued that: there was "no evidence that the child pornography he possessed involved children who were then part of the Australian community"; there was therefore no evidence to support the Minister's finding that the Applicant posed a risk to members of the Australian community. Did the Minister, at , "make a finding that was specific as to the identity (in terms of locality) of the children who were the subject of the pornographic images the applicant possessed"?
Question 2: In Dunn v Minister for Immigration and Border Protection  FCA 489, the Minister had found that "Mr Dunn, had been convicted of child pornography offences for which he received several custodial sentences. In considering whether to revoke the cancellation decision that had been made, the Minister reasoned that if Mr Dunn reoffended in a similar manner, it “could result in further exploitation or cause psychological and/or other harm to young persons within the Australian community”. Indeed, the Minister found that if that risk eventuated, “great harm could flow to a member or members of the Australian community”". The FCA held in Dunn that "there was no evidence before the Minister that Australian children would be used to make pornographic images and that, consequently, the Minister was not entitled to conclude, as he had, that there was a risk of harm to the Australian community". Should a similar conclusion be drawn here, as there was an absence of any finding that the child pornography materials for which the Applicant was convicted involved any members of the Australian community?
Question 3: Can it be said that, "in order to reach the conclusion, rationally, that the applicant’s possible reoffending could involve harm to vulnerable members of the Australian community, the Minister needed to have before him evidence that the images possessed by the applicant, for which he was convicted, were of children in the Australian community or that, if he were to reoffend in a similar fashion, the images necessarily would be of children in the Australian community"?
Question 4: In Nystrom, the HCA held that, "when a person holds both a transitional (permanent) visa and an absorbed person visa, the decision-maker is not required to take into account the nature of the absorbed person visa when cancelling a transitional (permanent) visa under s 501(2)". Nystrom was applied in Candemir in the context of a visa cancellation under s 501BA. Should Nystrom and Candemir be applied to decisions required to be made under s 501CA(4)?
Question 5: In addition to considering the strength, nature, and duration of the Applicant’s ties to Australia, was the Minister also required to consider that, by also holding an absorbed person visa, the Applicant was a member of the Australian community and the impacts on the community by reason of such membership if the cancellation was not revoked? In other words, was the Minister required to engage in double counting of the Applicant's membership of the Australian community?
The FCA answered those questions as follows:
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