Alapati and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1230
•30 July 2025
Alapati and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1230 (30 July 2025)
Applicant/s: Anthony Solofa James Alapati
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3512
Tribunal:General Member S Evans
Place:Sydney
Date:30 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa is revoked.
.............................[SGD]...........................................
General Member S Evans
Catchwords
MIGRATION – mandatory visa cancellation under s 501(3A) of the Migration Act 1958 – where applicant does not pass the character test – citizen of New Zealand – applicant has a substantial criminal record – whether the decision should be revoked under subsection 501CA(4) – consideration of Ministerial Direction 110 – applicant arrived as a child – drug addiction – best interests of children – ties to the community – reviewable decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases
FYBR v Minister for Home Affairs [2019] 272 FCR 454
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
Anthony Alapati (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Citizenship (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category visa (the visa), pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant was born in New Zealand and is a citizen of that country. He is currently 28 years-old and has resided in Australia since arriving in June 1998, age two. On 13 October 2023, the Applicant was convicted in the District Court of Queensland of offences for which he was sentenced to a term of imprisonment of four years suspended, after serving 14 months.
On 5 April 2024, the Applicant’s visa was mandatorily cancelled. On 24 April 2024, the Applicant sought to have the mandatory cancellation of his visa revoked. On 7 May 2025, a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa (the reviewable decision).[1]
[1] G2, 17.
For the reasons that follow, the reviewable decision will be set aside.
RELEVANT LAW AND MINISTERIAL DIRECTION
The character test is defined in s 501(6) of the Act. A person will not pass the character test if they have a substantial criminal record. The phrase ‘substantial criminal record’ is defined in s 501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(3A)(a)(i) of the Act provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a ‘substantial criminal record’, and is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA of the Act applies where the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. The Minister may revoke the original cancellation decision pursuant to s 501CA(4) of the Act. Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under s 499 of the Act, which apply to decision-makers in the exercise of power under s 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[2]
[2] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation
of a visa under section 501CA.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the 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. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
Subsection 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(i)that the Applicant passes the character test; or
(ii)that there is another reason why the original decision should be revoked.
In a written submission, the Applicant concedes he does not pass the character test.[3] As such, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
[3] G2, 95.
Evidence of the Applicant’s partner, Elna Nanai
Ms Nanai provided a statement and gave evidence at the hearing. She and the Applicant have known each other for 15 years and began their relationship approximately seven years ago. Their son was born in 2023.[4]
[4] HB,12-13.
Ms Nanai was not aware of the Applicant’s drug use prior to the index offending, but had noticed changes in his behaviour. Now that she is aware of the Applicant’s drug use and the full extent of his problems, she is confident she can help ensure he ‘stays on track’, focuses on his family and continues to distance himself from negative social influences. She fears that if the Applicant is removed to New Zealand, it would have a profound effect on both her and their son. She confirmed that the Applicant and his son developed a strong bond while the Applicant was on bail between February and October 2023.
Ms Nanai has albinism and relies on the Applicant’s assistance to perform some tasks, including driving her and their son to appointments. Adapting to living without the Applicant’s support has been very difficult for her.
Evidence of the Applicant’s sister-in-law, Raisa Nanai
Raisa Nanai is the Applicant’s sister-in-law and his nephew’s mother. The Applicant is his nephew’s godfather. She has provided an undated statement and gave evidence at the hearing. Raisa Nanai confirmed that the Applicant and her son have a close relationship, and her son frequently asks after the Applicant and when he will be coming home.[5]
[5] G2, 347.
The Applicant lived with Raisa Nanai and her son in 2021 and 2022. The Applicant and his nephew have maintained regular contact while he has been in prison and immigration detention. When his nephew’s father passed away, the Applicant stepped in and fulfilled the role of parent and gave her space to grieve. She said the Applicant made her son feel he still had someone to talk to and comforted him while she was upset.
Evidence of the Applicant’s brother, Jordan Vaoa
Jordan Vaoa is the Applicant’s brother. He provided a statement dated 23 January 2025 and gave evidence at the hearing.[6] Mr Vaoa stated that as the eldest sibling, the Applicant had been a positive influence on his life. He said the Applicant stepped up and worked to support their family financially and took responsibility for managing the household when their mother was ill. In his statement, he says they Applicant is a loving parent and has changed for the better since being incarcerated and strengthening his faith.
[6] G2, 758-759.
Character references
Timothy Masoe has known the Applicant for 10 years. He has provided a statement dated 27 July 2024, in which he says that prior to becoming a father himself, the Applicant demonstrated a caring relationship with his eldest son. Mr Masoe writes that becoming a father had made the Applicant appreciate the importance of moving away from bad influences.[7]
[7] G3, 62.
Nathaniel Thompson has provided a statement dated 10 December 2024. He has known the Applicant for eight years and the Applicant helped him through a difficult period in his life. He says the armed robbery offence was completely out of character and acknowledges the role drugs played in his offending. He says that over the years they have discussed the childhood trauma they both experienced and he believes this may have contributed to the Applicant’s offending.[8]
[8] G2, 364-67.
The Applicant’s cousin, Pastor Blessing Une Passi, provided a statement dated 12 December 2024.[9] He has known the Applicant for most of his life. He says that his offending was deeply troubling and completely out of character. He speaks to the Applicant’s Christian faith and work at the church. He believes that the Applicant’s poor choices and difficult circumstances contributed to his offending behaviour. He is confident that with continued support the Applicant will be able to make a meaningful positive contribution and is prepared to help him do so.[10]
[9] G2, 781.
[10] G2, 368.
Cecilia Stevens is Executive Director of Community Sports Coaching and Mentoring and has provided a statement dated 5 February 2025.[11] Mrs Stevens has worked closely with the Applicant for five years during which she has witnessed his unwavering dedication to giving back to the community. She writes the Applicant provided volunteer services to young people in low socio-economic areas and to people that are homeless.
[11] G2, 782-783.
Mrs Stevens says the Applicant was raised in a strict Samoan household where he had adhered to strong cultural values. However, he struggled with undiagnosed ADHD which led to behavioural challenges, frequent suspensions and ultimately expulsion from school. At the time the Applicant was unable to understand the reasons for his impulsivity and lack of focus. She writes that the Applicant appreciates the damaging effects of his past actions and has taken significant steps to rehabilitate himself. These include enrolling in the opioid substitution treatment program (OST) to manage his substance use and dependency, attending weekly drug and alcohol counselling, participating in regular psychological sessions and engaging in drug and alcohol education courses.
Troy Johnson has provided a statement dated 16 February 2025 and gave evidence at the hearing.[12] He first met the Applicant when he was 13 years old, and Mr Johnson was his rugby coach. He observed the Applicant to be a good team player who was inclusive and well-balanced. Over the time he has come to know the Applicant’s family. Mr Johnson believes the Applicant struggled when he found out he was not his father’s biological son.
[12] G2, 371-372.
Christopher Roe filed a statement dated 21 February 2025 and gave evidence at the hearing.[13] He writes that he has known the Applicant for 6 years. He said the Applicant was part of the volunteer group that were involved in providing activities for younger people in the community. Mr Roe writes the Applicant showed great empathy towards children and many looked up to him. He understands the Applicant became involved with the wrong people and that led him to substance abuse. He said that his noticed the Applicant’s attitude and approach to life has changed since being incarcerated and rehabilitated.[14]
[13] G2, 786-787.
[14] G2, 373-385.
Reverend Oti Oti is senior pastor at Divine Ministries Church who has known the Applicant for 15 years. He writes that the Applicant is deeply remorseful for his actions and a much-loved member of the church and faith community.[15]
[15] HB7, 8.
Also in evidence are statements of support from individuals including Antonio Senio Samu, Pemita Salesa, Toetu Atonio, Faiupu Soon Alama, Luaiva Chadwick, James Semi and Taualoa Endemann.[16] They speak to the Applicant’s contribution to community, his personal challenges, friendship and devotion to family.
CONSIDERATION
[16] G2, 373-374.
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1 of Direction 110 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’
Nature and seriousness of the Applicant’s conduct to date
The Applicant’s offending is set out in a National Criminal History Check (NCHC) dated 18 March 2024.
Index offending
On 13 October 2023, the Applicant was convicted of attempted robbery – use/threaten violence armed/pretends to be armed or in company whilst armed with actual violence and sentenced to a term of imprisonment of four years (to be suspended after serving 14 months). He was also convicted of stealing, possessing dangerous drugs and unlawfully possess a relevant substance or thing for which he received a total of 10 months imprisonment.
In sentencing the Applicant and his co-accused in the District Court of Queensland, Judge Rosengren detailed the Applicant’s offending and the impact on the victims.
HER HONOUR:
…In short, one of the complainants was the manager of a fish and chip store at [suburb and name] and the other complainant was working there. On the evening of the 17th of December 2022, they were both working with two others. The store had closed at 8 pm, but the side door was still open.
One of the other workers was counting the cash in the register while another worker had taken the rubbish out. The worker was mopping the floor while the manager was completing his checklist, the two of you entered through the side door. You walked to the back where the manager was standing. You both had hoods covering your heads, although your faces were not covered. Mr Alapati, you were also wearing a bum bag over your shoulder. When it was pointed out to you the obvious and that is that the store was closed, you both pushed the manager backwards and demanded to know where the safe was. When he told you that there was not one, Mr Alapati, you pulled a gun out from your bum bag and you held it to your side.
One of you asked the manager whether he was Japanese and when he said no, one of you punched him to the face causing his glasses to fly off to the floor. Mr Alapati, you noticed a security camera which you ripped off and threw on the ground. When the worker tried to run from the store, [co-offender], you told her to stop and you pointed with your hand and told her to go back to the corner. You then punched the manager to the face, causing him to stumble back onto a bench. You then motioned for the worker to move further back into the store before continuing to demand money from the manager.
Mr Alapati, you then punched the manager with your left fist while the gun was in your hand. He fell backwards into some milk crates, and it is then, [Co-offender] that you picked up one of the milk crates hitting the manager to the back of his head. Mr Alapati, you spoke to him again before punching him to the face again, and, [Co-offender], you then punched him to the face another two times and also to his body causing him to stumble onto some nearby trolleys.
One of the workers eventually went outside and called the police. Mr Alapati, you then asked the worker if she was Japanese, but she did not speak English. As you were walking out, you grabbed the iPhone off the counter and [Co-offender], you were ripping supplies off the shelves and you were throwing furniture around the store. The manager ended up with swelling and bruising to his face and a laceration to the back of his head, which was glued. About 10 minutes after the offending you were pulled up in a vehicle you were travelling in. It was then that you were searched, Mr Alapati, and the police found an MDMA tablet, a glass vial containing 14.461 grams of GBL in a syringe. These are the subject of the summary charges. And the gun was located and found to be a gel blaster.
The maximum penalty for count 1 is 14 years’ imprisonment, which shows how seriously the community through Parliament regards such offending. The sentence that is imposed upon both of you must punish you in ways that is just in the circumstances. It must be proportionate to your offending and deter you and others from committing this sort of offence and make it clear that the community acting through the Courts absolutely denounces this sort of conduct. Given that the offence involved the use of violence that resulted in physical harm, the principle that imprisonment is a last resort does not apply.
I have read the victim impact statement … The poor lady. She talks of the fact that your offending meant that she could not keep working at the fish and chip shop. This meant that she had a period out of work. She can no longer work at night. She does not feel secure. She finds it difficult to go anywhere alone and sometimes she has nightmares and she feels severely anxious.
Issues of parity arise. As between you, there is some disparity in terms of your culpability. Mr Alapati, you, of course, were holding the gun. Otherwise, your offending is indistinguishable. Mr Alapati, you ripped the security camera off. You punched the manager multiple times to his face, took the iPhone as you were leaving and that, of course, has never been found. [Co-offender], you were directing the worker where to stand. You were demanding money. You also punched the manager to the face multiple times and you hit him over the back of the head with a milk crate. As you were leaving, you were ripping supplies off the shelves and throwing furniture around the shop.
…
I have taken into account that each of you have pleaded guilty early; however, of course, it cannot be overlooked that it is in the context of a strong Crown case. Your offending was actually captured on footage which is part of exhibit 5. Having said that, you have saved the complainants the experience of having to give evidence and you have also saved the State time, resource and the expense of preparing for trial and I accept that you are both remorseful.
Mr Alapati, you were 26 at the time; you are 27 now. You have a criminal history. This is your first appearance in the District Court and your most recent entry prior to this offending was on the 27th of June 2017, so about five and a-half years earlier. So your history is dated in that sense. While it does involve some drug related offending, there is no previous offence of armed robbery or other offending of violence.
I see, as I have said, almost all of your extended family have moved to Australia. You only have the one aunty living in New Zealand and it has been years since you have had contact with her. You had a good upbringing. So many defendants before this Court do not have the benefit of that and that is why it must be so heartbreaking for your family. You finished year 12. You had a job working in warehousing. You have obtained a certificate III in warehousing, a security certificate and forklift and truck driver’s licences. You have worked as a general maintenance mechanic. And very tragically, in 2022, you were introduced to ice by a friend. You were working long hours in construction as a labourer and you also did part-time work at a barber shop. I am told that you were drug affected at the time of this offending and you wanted to get money quickly.
After you were released from jail on bail, you immediately returned to full-time work as a maintenance mechanic with your old company and in the past few months, you have been truck driving. I am told you have remained drug free while you have been out on bail. Your counsel refers to the fact that there has been two breaches of bail and driving without a licence charge that are yet to be dealt with, so you have not entered a plea in relation to those. So they cannot be taken into account in any technical sense.
In his evidence, the Applicant accepted responsibility for the index offending. He could not recall some specific details of the incident, which he said was because he was under the influence of multiple different illicit drugs at the time of the offence.
Other conduct
In July 2017, the Applicant was fined for failure to appear in accordance with undertaking and on 9 February 2024 he was convicted without punishment of breach bail condition.
On 5 November 2024, the Applicant reportedly struck another detainee in immigration detention. The details are recorded in a Behaviour Management Plan (BMP) prepared by Serco officers. It is recorded that the victim had spat on a photograph of the Applicant’s children and the Applicant had expressed remorse for his actions. The BMP notes the behaviour was ‘out of character’ as the Applicant had ‘not been the subject of any violent or anti-social incidents since [his] arrival’ at the detention centre.[17] At the hearing, the Applicant acknowledged the incident and confirmed the account in the BMP was accurate.
[17] RB, 1-7.
The Applicant provided false information to the Government by failing to decare his previous criminal history on an incoming passenger card dated 4 September 2019 when he returned to Australia from New Zealand. At that time, he had recorded a conviction for failure to appear in accordance with undertaking in July 2017. At the hearing the Applicant explained that he did not deliberately provide false information and did not understand the difference between a conviction and an offence with no conviction recorded. I note that the NCHC confirms in 2017 the Applicant had charges related to drug possession which were not recorded as convictions. However, failure to appear, for which he was issued a $400 fine, was recorded as a conviction. In the circumstances, I accept he may have been unsure if he was required to declare the offending and afford his failure to do so limited weight.
In a written submission made on behalf of the Applicant, it is submitted that the index offences do not meet the criteria as very serious or serious given the ‘aberrant nature’ of the index offence. Having regard to the sentencing remarks, I am satisfied that the Applicant’s index offending was a violent crime that is viewed very seriously by the Direction. I also take into consideration the Applicant’s conduct in detention and that his offending history, while limited, demonstrates a trend of increasing seriousness.
Overall, the Applicant’s conduct to date is considered very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[18]
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[18] Direction 110, paragraph 8.1.2.
Further acts of armed robbery or drug related offending by the Applicant would have the potential to cause physical, psychological and financial harm to members of the Australian community and place a burden on the criminal justice system.
The Applicant submits that he is a low and not unacceptable risk to the Australian community.[19] He is ashamed and deeply sorry for the harm he has caused to the victims of his offending, and his conduct was contrary to his character, morals and values he was raised with. The Respondent contends that the Applicant’s offending is so serious that any material risk of reoffending is unacceptable.
[19] G2, 111.
The Applicant’s evidence is that when he committed the index offences, he was struggling with difficult personal circumstances including the effects of his escalating drug use, depression and anxiety. He was experiencing drug induced psychosis, had recently lost his job and was trying to help his heavily pregnant partner. Both his parents were facing health challenges, and as the eldest child he felt obliged to ‘step up’ and the overall circumstances severely impaired his judgement.
Regarding the 9 February 2024 conviction for breach of bail, the Applicant did not receive further punishment. By way of explanation, he said his partner does not drive so went to the shop to buy pain relief for their child. He does not dispute it was a poor decision.
Psychologist Dr Emily Kwok prepared a psychological report on the Applicant dated 25 February 2025. In preparing the report, Dr Kwok interviewed the Applicant in immigration detention and had him complete psychometric testing. Dr Kwok gave evidence at the hearing.[20]
[20] G2, 375-385
Dr Kwok reports that the Applicant described frequently getting into trouble at school and being suspended. He said that he lost focus, was easily distracted and his grades were poor in all subjects except for sport and physical education. He was expelled from school at the start of year 11 when he was age 16.
The Applicant commenced paid employment after leaving school. He has been employed at various meat processing plants and as a barber. While he was on probation he was a truck driver until he injured his hand. In prison he worked as a welder.
In the evidence there are multiple references to the Applicant having depression, anxiety and ADHD and of having experienced drug induced psychosis. However, there is no medical evidence to support the Applicant having a mental health condition or disorder and I accept the Respondent’s submission that the Applicant has not been formally diagnosed with a mental health disorder. Nonetheless, based on the evidence, I accept the Applicant’s escalating use of illicit substances led him to experience psychological symptoms of depression and anxiety.
The Applicant reported that as his drug use increased in the period leading up to the robbery, he was constantly on edge and expecting the worst. He became isolated and when he socialised it was with criminal acquaintances. It was the Applicant’s idea to rob the store, which he says was a spontaneous, rather than premeditated offence. He had used methamphetamine (ice) and GHB on the day of the offence, and he and his co-offender were severely under the influence of drugs during the robbery.
The Applicant’s drug use commenced when he began using marijuana when he was 18 years old. At age 20 he was introduced to ‘party drugs’ including ecstasy and cocaine which he initially used recreationally. A few years later he began using ice, which he quickly became addicted to. His addiction worsened after he lost his job, and his use escalated during the pandemic.
Regarding his drug use, Dr Kwok reports the Applicant told her he stopped using ice after the armed robbery offence. He admitted to receiving Suboxone strips from other inmates when he first arrived in prison, but claims to have stopped using all types of drugs soon after. At the hearing, the Applicant confirmed his continued sobriety and acknowledged that his offending was strongly linked to his use of illicit drugs.
Dr Kwok reports the Applicant recognised the relationship between his drug use and criminal activity, as well as the negative impact of antisocial peers. He has also expressed remorse for his offending. She said that when he was asked why he believes he would not reoffend, the Applicant responded that he had reflected on his actions while in prison and detention, he is older and he no longer uses drugs. He cited the responsibility of having a young child to care for, no longer having contact with anti-social peers and connection to church as protective factors. He says is a lot happier now than when he went prison, and has become focused on his family. Dr Kwok is satisfied the Applicant is not currently using illicit drugs.
I accept that the Applicant displayed insight into the impact of his behaviours on the victims and taken responsibility for his violent behaviours. He has been enrolled in the OST program for almost a year and attended weekly individual drug and alcohol counselling and participating in SMART recovery in detention.
Regarding the risk of further offending, Dr Kwok notes that the Applicant’s criminal offending occurred during the period drug abuse. He was heavily intoxicated when he committed the armed robbery. In addition to substance abuse, Dr Kwok identifies the Applicant’s antisocial peers, lack of personal responsibility and consequential thinking, antisocial attitudes, and poor coping skills as contributing to his criminal behaviours.
Dr Kwok reports the psychometric testing found the Applicant is at ‘a somewhat lower risk to engage in aggressive misconduct compared with most people in correctional settings and he is not in particular risk for general misconduct in the community’. She said that psychometric testing revealed the Applicant had endorsed more antisocial traits, behaviours, and attitudes than the general population, but his anger is within the typical range for community adults.
Dr Kwok recommends the Applicant continues to engage with a psychologist if he is permitted to return to the community. She recommends the Applicant build coping strategies to prevent him from relapsing into drug use when he is stressed, and work with a psychologist on interpersonal relationships including addressing any presence of dominance and control in his current relationship. She says any lingering antisocial beliefs and attitudes will also need to be modified.
The Applicant gave evidence that he has come to understand he did not process difficult emotions and has benefited from treatment and therapy. He appreciates that he still has considerable work to do. The Applicant says he proactively sought help having enrolled in programs and courses to address his mental health challenges and to improve his decision-making skills. He says is a changed person and committed to his rehabilitation. Dr Kwok acknowledges that imprisonment and detention provided the Applicant with opportunities to reflect on the consequences of his behaviours. She accepts his claim that should he be permitted to return to the community he is willing to change his lifestyle and focus on his family and parental responsibilities.
The Applicant has taken positive steps towards rehabilitation since being removed from the community. He has provided evidence of having been offered continued counselling by drug ARM and expressed a desire to continue to receive psychological support through Dr Kowk. He has completed rehabilitation courses including Introduction to Drug and Alcohol Awareness, the Breaking Habits Group, Anger Management Techniques, Understanding Drug and Alcohol Abuse, Depression Management, Anxiety Therapy 101, Anger Management and Conflict Resolution and Stress Management.
Dr Kwok identifies protective factors that will reduce the likelihood the Applicant will reoffend. These including the relationship he has with his fiancée, caring responsibilities for his son, and accommodation with her family. He is also willing to return to work and claims to have an offer of employment.
Dr Kwok’s assessment that the Applicant is a low risk of reoffending provided he maintains treatment and significant lifestyle changes. The evidence supports the Applicant being committed to continuing appropriate treatment. While there are very positive indications, particularly in terms of his substance use and social influences, they are yet to be tested in the community.
In summary, I am of the view that the Applicant is a low risk of reoffending. I make this finding based on Dr Kwok’s report, the Applicant’s insight into the causes of his offending, and his considerable progress in addressing the factors that Dr Kwok has stated will ensure he remains at low risk of further offending. I am also mindful that this is the first time the Applicant has been imprisoned or faced the prospect of losing the privilege to reside in Australia, and it is apparent he has been chastened by the experience.
Conclusion
The Applicant’s offending is very serious and weighs significantly against the revocation of the cancellation of his visa. The Applicant has identified protective factors which will mitigate the risk of reoffending, notably his close relationships in Australia and a family and social circle committed to ensuring he has the support he requires and facilitate his reintegration and ongoing rehabilitation.
I accept that the Applicant’s remorse is genuine, as is his desire and intention to stay sober should he return to the community. Relative to his period of intense drug abuse, he has accrued a substantial period of sobriety. His offending, the experience of being imprisoned, having his visa cancelled and of being sober for an extended period has caused the Applicant to reflect on his conduct and what he needs to do to be a better person and not repeat his mistakes.
The protection of the Australian community weighs heavily against the Applicant and is afforded significant weight.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(2) provides that this consideration is relevant where a non-citizen has been convicted of an offence involving family violence or there in information or evidence from independent and authoritative sources indicating the non-citizen is or has been involved in the perpetration of family violence.
There is no evidence to indicate this primary consideration is relevant. As such, it is afforded neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has identified close family members in Australia including his mother, father, sister, brother, partner, grandfather, grandmother, four aunties, father-in-law and mother-in-law. His evidence is that his removal from Australia would be devastating for his family.
Both the Applicant’s parents have serious health issues; his mother requires regular dialysis, and his father is frequently hospitalised due to lung failure. As the eldest sibling, he feels responsible for ensuring their well-being and providing practical care. The Applicant says being incarcerated served to strengthen the bond he shares with his siblings and his family continue to look to him for guidance.
The Applicant’s partner has albinism and is significantly vision impaired. Prior to his imprisonment, he was her primary carer and provided practical assistance including transport. The Applicant also assisted with caring for his grandfather when his cousins were unable to do so.
The Applicant says the non-revocation of the cancellation of his visa would leave his siblings, parents, partner, son and extended family facing immense emotional and financial difficulties and he fears that some may become depressed.
Members of the Applicant’s family have provided statements in which they outline the support he has provided them. The Applicant’s partner, brother and sister-in-law gave evidence at the hearing that they would be deeply affected should he be returned to New Zealand. I accept their evidence as outlined above.
The Applicant has provided evidence of having contributed positively to the Australian community through paid employment, volunteering and participation in sport.
The Applicant first arrived in Australia from New Zealand in 1988 when he was two years old.[21] I place considerable weight on the fact that he arrived as a young child and has resided in Australia for approximately 26 years.
[21] G2, 397.
For these reasons, this primary consideration weights strongly in favour of revocation and is afforded significant weight.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[22] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[23]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[22] Direction 110, para 8.4.
[23] Ibid.
The Applicant has identified two minor children who would be affected by the cancellation decision - his two year old son, and his seven year old nephew.
The Applicant fears that if he is deported, his son would grow up without a father and appropriate guidance. He believes this would be devastating to his son, who may potentially turn to substance abuse because due to his absence.
The Applicant said that his son was showing signs of being stressed by his father’s absence. When his son visits him in prison or detention, he cries hysterically for him to come home with him. The Applicant expressed concern that should he be deported, his son may feel like he has been abandoned. Although not formally diagnosed, the Applicant said there are indications that his son may be autistic.
The Applicant is godfather to his nephew. The child lost his father to suicide when he was one year old, and he developed a close bond with the Applicant. The Applicant claims his nephew is showing signs of having been traumatised by his absence. I accept the Applicant has acted as a father figure for his nephew as this was confirmed by the child’s mother. Raisa Nanai gave evidence her son often asks when the Applicant will be coming home and why he is not with them as much as he used to be.
The Applicant has been physically absent for a significant part of his son’s life throughout which his partner has fulfilled the primary parental role. Similarly, the Applicant’s nephew has been cared for by his mother since the Applicant went to prison.
The sum of the evidence supports the Applicant having developed a bond with both minor children, and of having potential to play a substantial parental role in their lives. I consider that not revoking the cancellation to the Applicant’s visa would have a substantial negative effect on both children, and their interests weigh strongly in favour of revoking the cancellation of the visa.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:[24]
(1) 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.
[24] Ibid, paragraph 8.5.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.[25]
[25] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] (Charlsworth J).
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 in the Direction, without independently assessing the community's expectations in the particular case.
The Applicant has failed to meet the Australian community’s expectation that visa holders obey its laws. I accept the Respondent’s contention that the nature of the Applicant’s offending – particularly the crimes involving the use of violence and a weapon – is such that the Australian community would expect the Applicant’s visa to remain cancelled.
The Respondent acknowledges that the Direction provides that the community may afford a higher level of tolerance to criminal or other serious conduct by non-citizens who have lived in Australia from a very young age. The Applicant has resided in Australia from a very young age and has been ordinarily resident in Australia since the age of twenty-two months.
Having regard to the Direction and the Applicant’s offending, this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that the legal consequences of a decision to cancel the Applicant’s visa are that the Applicant will be liable to removal from Australia pursuant to section 198 of the Act, and in the meantime, subject to detention under section 189 of the Act. However, those legal consequences flow naturally from the intended operation of the Act.
The legal consequence of the decision is that the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).[26]
[26] See Rano v Minister for Home Affairs, Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]-[14] (Feutrill J).
The Applicant has not made any claims relevant to this consideration and submitted that this consideration is appropriately afforded neutral weight, as has the Respondent.
Having regard to the intended legal consequences of the cancellation of the Applicant’s visa, this consideration is afforded neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1) 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.
At 28 years old, the Applicant is a young man in overall good health. In a report by psychologist Greg Hutcheon provided March 2025, it is noted that the Applicant’s DSM-V diagnosis comprised a previous history of ‘substance use disorder (in remission), probable ADHD in childhood and childhood trauma’.[27] The Applicant has claimed to suffer from other mental health conditions, but it does not appear he has been diagnosed with depression, anxiety or ADHD. In any event, the extent of any treatment he is receiving is currently limited to psychological counselling participation in the OST.
[27] G2, 385-390.
The Applicant has expressed fears that returning to New Zealand would jeopardise his rehabilitation. Should the Applicant choose to continue treatment in New Zealand, he would have access to the same level of medical, social welfare and economic support as what is generally available to other citizens in New Zealand.
The evidence supports the Applicant’s claim not to have access to family or other support networks in New Zealand, and his partner has told him she will remain in Australia should he be deported. Without his family or an existing support network, the Applicant fears the impact on his mental health.
I acknowledge that in sentencing the Applicant, Judge Rosengren observed he would be expected to face hardship due to the anticipated cancellation of his visa:
…There is no dispute that the head sentence ought to be greater than 12 months. You, therefore, face deportation at the conclusion of your period of imprisonment unless you are able to get a revocation of the Minister’s decision cancelling your visa. You could then be held in immigration detention for an unknown period pending the outcome of any such application. The fact that you have both been living here since your young ages and your extensive family support here means that deportation will be a hardship for you. This does not mean that the sentence should be lessened for the purpose of defeating, avoiding or circumventing the operation of the provisions of the Migration Act, but I do consider it to be a relevant factor to be considered in mitigation here. It will make your time in custody for both of you more onerous and it may well deprive you of the opportunity to permanently reside in Australia.[28]
[28] G2, 42.
The Applicant would not face any cultural or language barriers in New Zealand, and has transferrable skills and experience that would help him obtain paid employment. Nonetheless, he would be expected to face practical, financial and emotional hardship upon his return to New Zealand.
For these reasons, this consideration is afforded moderate weight in favour of revocation of the cancellation decision.
CONCLUSION
The primary considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revoking the mandatory cancellation of the Applicant’s visa. The protection of the Australian community is afforded significant weight, marginally mitigated by the Applicant being at low risk of reoffending. The expectations of the Australian community are afforded less weight on account of the Applicant having lived in Australia from a very young age.
The evidence supports the Applicant having contributed to the community and his removal would be expected to have a significant impact on his family members and friends. As such, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation. The impediments the Applicant would face in New Zealand weigh moderately in favour of the Applicant. It is in the best interests of the Applicant’s son and nephew that he remain in Australia. For the reasons I have outlined, the primary consideration of the best interest of minor children is afforded significant weight in favour of revocation.
On balance, the correct and preferable decision is to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal sets aside the decision under review and in substitution decides that the mandatory cancellation of the Applicant’s visa is revoked.
Date of hearing: 17 and 18 July 2025 Solicitors for the Applicant:
Self-represented
Solicitors for the Respondent: Ms Hanna Anderson, Clayton Utz
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