Areaiiti and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 336

Areaiiti and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 336 (4 April 2025)
Applicant:Rayden Areaiiti
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2025/0313

Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date of Decision
& Reasons:4 April 2025
Decision:The Tribunal affirms the decision made by the delegate of the Respondent on 10 January 2025 to cancel the Applicant’s visa.

................[SGD].................
[Member Cosgrave]
Catchwords
MIGRATION – Class TY Subclass 444 Special Category visa cancellation – New Zealand citizen – failure to pass good character test – whether there is another reason to set aside the visa cancellation – convicted of Robbery with Actual Violence and Assault Occasioning Actual Bodily Harm – 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
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
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

Mr Areaiiti seeks review of the Minister’s (the Minister or the Respondent) delegate’s 10 January 2025 decision (the reviewable decision) to cancel his Class TY Subclass 444 Special Category visa (the Visa).[1]
[1] Exhibit R1: G2, 20.
The hearing was held in Brisbane on 25 and 26 March 2025. Mr Areaiiti represented himself. Ms Lewis of Clayton Utz represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (Cth) (the Act), the Tribunal was effectively required to make a decision by 7 April 2025.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
THE FACTS OF THE MATTER
Mr Areaiiti is twenty three and a New Zealand citizen who has resided in Australia since November 2010.[2]
[2] Exhibit R1: G10, 169.
On 22 March 2021 His Honour Judge Byrne of the Queensland District Court sentenced Mr Areaiiti to a suspended term of imprisonment of two years and six months after Mr Areaiiti pled guilty to one charge of Robbery with Actual Violence Armed.[3]
[3] Exhibit R1: G2, 38–40.
On 17 March 2023 Mr Areaiiti pled guilty to two charges of Robbery in company with personal violence, one charge of Assault occasioning bodily harm in company and one charge of Stealing (the Index Offences).[4]
[4] Exhibit R1: G2, 42.
On that day, His Honour Judge Farr of the Queensland District Court convicted Mr Areaiiti of the Index Offences. His Honour sentenced Mr Areaiiti to three years’ imprisonment for the first charge of Robbery in company with personal violence, twelve months’ imprisonment of the second charge of Robbery in company with personal violence, three months’ imprisonment for the charge of Assault occasioning bodily harm in company and six months’ imprisonment for the charge of Stealing. His Honour also found that the suspended sentence of two years and six months’ imprisonment imposed by His Honour Judge Byrne on 22 March 2021 had been breached and enlivened the whole of that sentence.[5]
[5] Exhibit R1: G2, 40–45.
On 15 May 2023 the Respondent cancelled the Visa under s 501(3A) as Mr Areaiiti failed the character test after s 501(6)(a) and s 501(7)(c) were applied (the cancellation decision).[6]
[6] Exhibit R1: G2, 85.
On 10 January 2025, after Mr Areaiiti made representations, the Respondent’s delegate made the reviewable decision.[7]
[7] Exhibit R1: G2, 20.
On 14 January 2025 Mr Areaiiti lodged an application with the Tribunal in relation to the reviewable decision.[8]
[8] Exhibit R1: G1, 1.
THE LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) and s 500 of the Act establish the Tribunal’s jurisdiction in this matter.
The Tribunal may revoke the original decision under s 501CA (4) if two conditions are met.[9]
[9] Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
First, the person concerned must have made representations in accordance with the invitation to make such representations about revocation of the cancellation, as specified in s 501CA(4)(a).[10]
[10] Pursuant to s 501CA(4)(a) of the Act.
Second, the Tribunal must be satisfied that either the person passes the character test as per s 501CA(4)(b)(i), or there exists another reason why the original decision should be revoked, as outlined in s 501CA(4)(b)(ii).[11]
[11] Pursuant to s 501CA(4)(b)(i) of the Act.
A decision under s 501CA(4) of the Act requires the Tribunal to conduct an assessment and evaluation of the factors both supporting and opposing the revocation of the cancellation.[12]
[12] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 [38].
The Tribunal is satisfied that Mr Areaiiti made the representations required by s 501CA(4).[13]
[13] Exhibit R1: G1,1.
THE TRIBUNAL’S TASK
The Visa was cancelled on the basis that Mr Areaiiti failed the character test once the delegate considered that 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).[14]
[14] Exhibit R1: G2, 34–37.
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).
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[15]
[15] Direction; [5.2].
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.
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.
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.
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.
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.[16] The weighing process is substantively left to the individual decision‑maker to undertake when exercising the relevant power under s 501 of the Act.[17]
[16] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[17] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE EVIDENCE
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 Areaiiti. The Tribunal identified written statements from Mr Areaiiti.[18]
[18] Exhibit R1: G2, 52–74.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When assessing this Primary Consideration 1, the Tribunal must 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 because 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 Areaiiti’s conduct to date.
Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision‑makers to consider two separate 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. This is commonly further divided between the likely nature of any future harm and its likelihood.
Paragraph 8.1.1: The nature and seriousness of Mr Areaiiti’s conduct to date
Paragraph 8.1.1(1) sets out a series of factors (in paragraphs (a) to (h)) that the Tribunal must assess in considering the nature and seriousness of Mr Areaiiti’s criminal offending or other conduct to date.
The Index Offences, as well as the balance of Mr Areaiiti’s offending, are described in the written evidence.[19]
[19] Exhibit R1: G2, 34–45.
The Tribunal understands from both Mr Areaiiti’s testimony and statements that he acknowledges his Index Offences and his other offending.
Summarising Ms Lewis’ contentions on the evidence about both limbs of Primary Consideration 1, as the Tribunal understands them:[20]
[20] Exhibit R2: [22]–[33].
(a)Mr Areaiiti has accumulated a significant criminal record including three counts of aggravated robbery, assault occasioning actual bodily harm in company, various dishonesty offences, weapons possession, drug offences, and breaches of bail.
(b)His first significant offence involved an armed robbery at a Pizza Hut in July 2020, where he, disguised with a t-shirt covering his face and armed with a hammer, demanded money from a store worker and obtained $175. Judge Byrne noted the lack of immediate remorse, evidenced by Mr Areaiiti’s aggressive behaviour toward police during his arrest.
(c)A more concerning series of offences occurred over one night in a subsequent incident, on 19 March 2022 involving two separate attacks against three victims. In the first attack, Mr Areaiiti and two accomplices assaulted two victims, putting one in a headlock, stealing wallets and phones, issuing death threats, and causing injuries including retrograde amnesia and loss of consciousness. The second attack that same night involved choking a victim, threatening to kill him, and making threats against his family. This offending caused significant psychological harm to at least one victim, as noted in a victim impact statement presented to the court.
(d)The Respondent contends that several factors elevate the seriousness of Mr Areaiiti’s conduct:
i.The violent nature of the offences, which the Direction specifically identifies as particularly serious regardless of the sentence imposed, as such crimes fundamentally violate community expectations of safety.
ii.The dishonesty offences which undermine social trust and have substantial impacts on individuals, businesses, and the broader economy.
iii.Drug-related offences which contribute to the corrosive effects of illicit drugs on the community, including secondary offending by users to support habits.
iv.Weapons possession offences, which present serious risks to community safety given the potential for catastrophic harm, reflecting Australia’s zero tolerance approach to weapons violations.
v.The commission of offences while on conditional liberty, including breaches of bail and offending while subject to a suspended sentence, which demonstrates contempt for lawful authority and a tendency to exploit second chances.
vi.The escalation in seriousness of offending over time, progressing from a single armed robbery to multiple violent attacks against multiple victims in one evening.
vii.The cumulative effect of repeated offending, which reflects a pattern of disregard for Mr Areaiiti’s responsibilities to the Australian community.
(e)The multiple sentences of imprisonment imposed, including four sentences of twelve months or greater, further indicate the objective gravity of Mr Areaiiti’s criminal conduct.
The Tribunal’s consideration: The nature and seriousness of Mr Areaiiti’s conduct
When assessing the nature and seriousness of Mr Areaiiti’s criminal offending or other conduct to date, the following elements of Paragraph 8.1.1(1) are relevant:
·Whether any of the enumerated criminal offending or other conduct to date that are viewed very seriously or seriously by the Australian government and the Australian community are enlivened by Mr Areaiiti’s offending history;[21]
·the sentences imposed for his criminal offending;[22]
·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 Areaiiti has been afforded procedural fairness;[23]
·the frequency of his offending and any trend of increasing seriousness;[24] and
·the cumulative effect of his repeated offending.[25]
[21] Direction: [8.1.1(1)(a) and (b)].
[22] Direction: [8.1.1(1)(c)].
[23] Direction: [8.1.1(1)(d)].
[24] Direction: [8.1.1(1)(e)].
[25] Direction: [8.1.1(1)(f)].
The Tribunal, after assessing the evidence and the parties’ claims and arguments, assesses that Mr Areaiiti’s Index Offence can be considered, by applying Paragraph 8.1.1(1)(a)(i), to be a violent crime. This assessment under Paragraph 8.1.1(1)(a) suggests that Mr Areaiiti’s Index Offences should be viewed as very serious.
Addressing Paragraph 8.1.1(1)(c), the Tribunal notes that, in his sentencing decision, Judge Farr described Mr Areaiiti’s Index Offences as serious.[26]
[26] Exhibit R1: G2, 43, line 45.
Addressing Paragraph 8.1.1(1)(d), the Tribunal agrees with the Respondent’s contention regarding the Index Offences’ physical impact on the victims.
From a consideration of the evidence in terms of Paragraph 8.1.1(1)(e), the Tribunal finds that Mr Areaiiti offended frequently between 2020 and 2022. There is a transparent trend of increasing seriousness in terms of his offending.
Mr Areaiiti’s self-acknowledged recorded offending history enables the Tribunal to infer that his repeated offending has likely had a cumulative and negative effect on the Australian community, police and paramedics.
Paragraphs 8.1.1(1)(g), (h) and (i) are not enlivened when the Tribunal assesses the evidence before it.
The Tribunal’s finding: The nature and seriousness of Mr Areaiiti’s conduct
The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in Paragraph 8.1.1(1) of the Direction against the evidence and testimony before it.
With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Mr Areaiiti’s offending history, relevant evidence and the sentencing judges’ observations, the Tribunal finds that his offending should be characterised as very serious.
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
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.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Mr Areaiiti 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 has specifically considered the sentencing judges’ decisions.
Summarising Ms Lewis’ contentions as the Tribunal understands them:[27]
[27] Exhibit R2: [34]–[46].
(a)The assessment of future risk under Primary Consideration 1 involves evaluating both the potential consequences of Mr Areaiiti’s further offending and the likelihood of such consequences occurring. As noted in relevant jurisprudence, the acceptable level of risk is inversely related to both the likelihood of reoffending and the significance of potential harm. The Direction specifically introduces the concept of “unacceptable risk” - a threshold beyond which the community should not be required to tolerate risk regardless of other considerations.
(b)The Respondent submits that substantial harm would likely result to the Australian community should Mr Areaiiti continue to offend in a similar manner. This assessment encompasses physical, psychological, and financial harm based on the applicants established pattern of conduct. The Tribunal may consider not only the documented harm already caused by previous offending but may also assess potential future harm that might exceed historical patterns.
(c)The Respondent contends there exists a medium to high likelihood of reoffending based on several factors.
(d)Mr Areaiiti has previously acknowledged several contributing factors to his criminal behaviour. These include his self-assessed immaturity, association with negative peer influences, defiance of parental guidance despite his parents’ available support, and alcohol misuse following a relationship breakdown. These admissions provide context for understanding the drivers behind his criminal conduct.
(e)The evidence regarding Mr Areaiiti’s remorse presents a mixed picture. During sentencing in March 2023, Judge Farr explicitly questioned the genuineness of Mr Areaiiti’s claimed remorse. While Mr Areaiiti has expressed regret to the Respondent for hurting people and tarnishing his family name, and has pleaded guilty to all offences, Judge Farr noted that the guilty pleas may have been motivated by the strength of the prosecution case rather than genuine contrition.
(f)Regarding rehabilitation efforts, Mr Areaiiti claims to have changed during incarceration and expressed desire to become a better person. He reportedly engaged in counselling prior to his March 2021 sentencing and claims to have commenced a drug and alcohol program while in prison. However, no substantiating evidence of these rehabilitation efforts has been provided to the Tribunal.
(g)Mr Areaiiti has demonstrated some protective factors that might mitigate his re-offending risk. These include a “reasonable work history” as described by the sentencing judges, with employment in various sectors including retail, construction, and hospitality between 2021-2022. Mr Areaiiti has provided documentary evidence of qualifications in alcohol service, construction safety, and customer service recognition.
(h)Family support appears to be another potential protective factor, with both 2021 and 2023 sentencing remarks acknowledging his supportive family network. Mr Areaiiti has characterised his family as “loving, caring and really supportive” in helping him maintain a law-abiding lifestyle.
(i)The Respondent cautions against placing excessive weight on these protective factors for several reasons. Both the work history and family support predated Mr Areaiiti’s initial offending and subsequently failed to prevent his re-offending. Given his period of incarceration and the absence of contemporary evidence regarding family support, these protective elements may be less robust than previously assessed. The Tribunal should consider whether circumstances have changed during Mr Areaiiti’s incarceration period.
(j)The Respondent emphasises that Mr Areaiiti’s continued offending despite previous criminal justice system involvement suggests a high likelihood of recidivism. Particularly concerning is his history of offending while subject to conditional liberty, including bail violations and the commission of his most serious offences while serving a two-year and six-month suspended sentence imposed in March 2021. Judge Farr specifically noted that Mr Areaiiti had “thumbed his nose” at the previous court orders of Judge Byrne, demonstrating that his stated commitment to rehabilitation “was without foundation.”
(k)This pattern suggests Mr Areaiiti has neither learned from past judicial interventions nor respected the leniency previously extended to him. Additionally, without evidence of successful alcohol rehabilitation, this previously identified contributing factor to offending remains a concern that potentially elevates the risk to the Australian community should the Tribunal set the reviewable decision aside.

The evidence, including the sentencing decision, of Mr Areaiiti’s Index Offences supports the Tribunal inferring that there may likely be physical harm to members of the Australian community if Mr Areaiiti re-offended in a similar fashion to his Index Offences in the future.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Areaiiti to engage in further criminal or other serious conduct
If Mr Areaiiti is permitted to remain in Australia, the Tribunal finds that any future repetitions of criminal or serious conduct of the type that Mr Areaiiti has previously engaged in could result in significant and serious physical 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
Assessing the likelihood or risk of Mr Areaiiti engaging in further criminal or serious conduct, the Tribunal has evaluated and considered his testimony and the relevant evidence before it as directed by Paragraph 8.1.2(2) of the Direction, in terms of Mr Areaiiti’s risk of offending and the evidence of what rehabilitation he has achieved. Mr Areaiiti is in immigration detention and is not currently in the Australian community.
The Tribunal’s primary task under Paragraph 8.1.2(2) is to determine the realistic level of risk posed by an individual as at the time of the Tribunal’s decision. This assessment requires consideration of both the likelihood of re-offending and the potential severity of harm that could result. The threshold assessment is whether there exists “more than a minimal or trivial likelihood of risk”[28] that the community should not be required to tolerate.[29]
[28] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (Murphy) [37].
[29] Direction; [8.1.2(1)].
When evaluating risk, the Tribunal must consider all available information and evidence, including any rehabilitation achieved.[30] Past conduct is considered significant not merely for the resulting convictions but for what it reveals about the individual’s character.[31] However, as Guo[32] sets out, past events are not a certain guide to future behaviour, and their predictive value depends on various factors including their regularity and the conditions under which they occurred.
[30] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (GJJF); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (Roberts); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]– [52]; Roberts, (n 53) [27].
[31] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194.
[32] Minister For Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 574-575 (Guo).
Time spent in the community without re-offending is considered important evidence of reduced risk.[33] The longer an individual refrains from offending, regardless of formal rehabilitation programs, the more this suggests their risk of re-offending has diminished to what might be considered “remote” rather than “real.”
[33] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246, [67], [94].
The assessment also acknowledges that the Australian community may necessarily be expected to accept some degree of risk associated with non-citizens holding visas. However, as noted in Dharma and Minister for Home Affairs,[34] the acceptable level of risk is inversely related to both the likelihood of re-offending and the potential severity of harm from such offending.
[34] Dharma and Minister for Home Affairs [2018] AATA 2757, [26].
The Tribunal’s consideration of the risk or likelihood of Mr Areaiiti engaging in further criminal or serious conduct will evaluate the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
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
The evidence and testimony in this matter lead the Tribunal to infer and then find that Mr Areaiiti’s relative immaturity and his peer network are significant factors in his offending.
The factors that hinder or reduce the risk of re-offending – rehabilitation and remorse
Several features present here as risk management factors that hinder or reduce the risk of offending. Mr Areaiiti’s remorse was evident from the sentencing decisions and his testimony but the extent of his remorse should be qualified, in the Tribunal’s view, by Judge Farr’s observations. Mr Areaiiti’s formal rehabilitation efforts appear more nascent than realised.
The extent to which his family act as a collective protective factor is tempered by the fact of Mr Areaiiti offending and re-offending while enjoying the close familial relationship about which he gave evidence and testimony.
The Tribunal notes Mr Areaiiti’s claims that he has left his anti-social peer network behind him but observes that there was no supporting evidence or testimony to corroborate these claims apart from the fact of Mr Areaiiti’s incarceration and detention.
The Tribunal’s risk analysis and consideration
The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Areaiiti’s offending, his history of remorse, his rehabilitation efforts and the protective factors that manage or mitigate his risk of offending.
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. Apart from Mr Areaiiti’s testimony regarding ceasing contact with his former peer network and his description of his efforts to start formal rehabilitation, the Tribunal has little else before it to temper its evaluation of his frequent offending history characterised by violence beyond the constraints imposed by his incarceration and detention.
In making its finding on the likelihood of Mr Areaiiti re-offending, the Tribunal has then considered what the combination of the significant factors in his offending, the evidence of his remorse and the protective factors say about his character, as well as assessing whether the risk of 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
Weighing the factors identified above, the Tribunal finds that a risk to the Australian community, should Mr Areaiiti commit further offences or engage in other serious conduct, exists. The Tribunal, after further evaluating and weighing the factors described above in terms of what either may facilitate or hinder his re-offending, considers this risk to be significant, once Mr Areaiiti’s protective factors and his rehabilitation efforts are considered and evaluated against the factors that contributed to his offending. The latter outweigh the former, making it likely that the risk involved is unacceptable to the Australian community.
Conclusion: Primary consideration 1: Protection of the Australian community
The Tribunal finds that Mr Areaiiti’s offending is very serious, that the consequences of any such future offending may involve physical harm to members of the Australian community and that the likelihood of his future re-offending when assessed is significant.
The Tribunal further finds that in its totality, this consideration weighs substantially and dispositively in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON‑CITIZEN
There is no evidence before the Tribunal that enlivens this Primary Consideration.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen
This Primary Consideration carries neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This Primary Consideration directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Areaiiti’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.
The Tribunal must also consider the strength, nature and duration of any other ties that Mr Areaiiti has to the Australian community, having regard to the guidance and indicia set out in Paragraph 8.3(2) of the Direction.
Summarising Mr Areaiiti’s contentions and testimony on this Primary Consideration as the Tribunal understands them:[35]
(a)His immediate family in Australia consists of his grandfather, father, stepmother, four sisters, his brother, a cousin, a brother-in-law, three aunts, three uncles, two nephews and a niece.
(b)He has enjoyed good relationships with his father and sisters, especially his younger sister, M. He has had a historically contentious relationship with his stepmother but now has a harmonious one.
(c)In cross-examination he conceded that his family had not provided support letters but testified that members of his immediate family had visited him in prison and in immigration detention.
[35] Exhibit R1: G2, 52-74.
Summarising Ms Lewis’ contentions on this consideration as the Tribunal understands them:[36]
(a)Mr Areaiiti has asserted the existence of family support in his submissions to the Respondent but has not provided corroborating evidence in the form of statements from family members. In his representations, he mentioned previously assisting his stepmother with her work at a café, suggesting some level of family relationship and integration.
(b)His work history has been documented in earlier sections of the submission. However, there is no evidence that he currently holds employment or has secured employment prospects should the Tribunal set the reviewable decision aside. This absence of current employment arrangements is understandable given his period of incarceration.
(c)The Respondent acknowledges that Mr Areaiiti likely established community connections through his educational experiences and previous employment. Nevertheless, the Respondent submits that these community ties have likely deteriorated during his imprisonment, which commenced in March 2022. His extended absence from the community suggests that his recent community connections are probably limited in nature.
(d)Based on the available evidence, the Respondent concedes that Primary Consideration 3, which addresses family and community ties, should be afforded moderate weight in Mr Areaiiti’s favour. However, the Respondent contends that this Primary Consideration’s weight is outweighed by the countervailing factors outlined in Primary Considerations 1 and 5.
[36] Exhibit R2: [49]–[55].
The Tribunal now considers these contentions and evidence through the lens of each subparagraph in Paragraph 8.3.
Paragraph 8.3(1)
Mr Areaiiti’s immediate family, apart from his biological mother, are in Australia. It is unclear on the evidence before the Tribunal whether they are Australian citizens, permanent residents or persons having the right to remain in Australia indefinitely. For the Direction’s purposes, the Tribunal will treat them as meeting this criterion in the absence of evidence to the contrary.
Based on the evidence and testimony, a decision to affirm the reviewable decision will likely have adverse emotional and psychological impacts on each of these members of Mr Areaiiti’s immediate family. This is amplified by the relatively closeknit nature of Mr Areaiiti’s family, based on Mr Areaiiti’s uncontested testimony.
Paragraph 8.3(2)(a)
Mr Areaiiti arrived in Australia as a nine year old and has resided here since then. His Index Offences occurred some twelve years later.[37] Acknowledging this material period of time, the Tribunal consequently considers and finds that Mr Areaiiti did not begin offending soon after arriving in Australia. This carries weight in his favour.
[37] Exhibit R1: G2, 34–37.
Mr Areaiiti’s evidence and testimony demonstrate that he has made some positive employment contributions to the Australian community.
Paragraph 8.3(2)(b)
The family links identified above also make out the strength and duration of Mr Areaiiti’s links and ties to Australia as specified under this paragraph.
The Tribunal’s consideration
The Tribunal considers that a decision leading to Mr Areaiiti’s removal will likely have adverse emotional and psychological impacts on each member of his immediate family.
Based on its consideration and findings under this Primary Consideration, the Tribunal finds that on balance it favours setting the reviewable decision aside.
In terms of weight, the likely impact of affirming the reviewable decision on his immediate family give this finding a strong weight.
Conclusion: Primary consideration 3: The strength, nature and duration of ties to Australia
The Tribunal gives this consideration a strong weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction requires the Tribunal to determine if affirming the reviewable decision aligns with the best interest of any minor children in Australia who would be impacted by that decision.
To make this determination, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of each child affected by such a decision. This Primary Consideration is only enlivened if the child is under eighteen years old when the decision to set aside or affirm is made.
This paragraph is enlivened by Mr Areaiiti’s younger sister, M (born in 2007), two nephews (fifteen and twelve) and a niece (fourteen).[38]
[38] Exhibit R1: G2, 65.
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.
The evidence before the Tribunal in relation to this Primary Consideration consists of Mr Areaiiti’s testimony and statements.
There is no direct evidence from any of the minor children as to their views.
Summarising Mr Areaiiti’s contentions as the Tribunal understands them:[39]
(a)He spent a great deal of time with M watching movies before he entered prison and detention.
(b)He used to play games and practice passing a football with his two nephews at weekend family gatherings before he entered prison and detention.
(c)His sister who is the mother of his nephews and niece is a good parent and has a partner.
[39] Exhibit R1: G2, 52–74 and testimony.
Summarising Ms Lewis’ contentions on this consideration as the Tribunal understands them:[40]
(a)Mr Areaiiti has described having a good relationship with his nephews and niece, stating that he sees them “almost every week” and characterising his family as close with frequent visits among family members. Regarding the potential impact of his removal on these minor family members, he has indicated simply that “they would miss me.” Notably, he made no specific submissions concerning the impact his removal might have on his sister M.
(b)While the evidence suggests that Mr Areaiiti maintains a reasonably close relationship with his nephews and niece, the Respondent submits that this bond does not appear to exceed the ordinary relationship typically existing between an uncle and his nephews or nieces. The Respondent further contends that Mr Areaiiti’s minor family members could potentially be negatively affected by any future alcohol abuse or criminal behaviour on his part should he remain in Australia.
(c)The Respondent acknowledges that Mr Areaiiti’s nephews and niece would likely experience some emotional impact if he were removed from Australia. However, several mitigating factors are noted. He is not the primary caregiver for these children, and they would retain the ability to maintain contact with him through telephone and other remote communication methods following his removal.
(d)Based on these considerations, the Respondent submits that the adverse impact on minor family members should be afforded only limited weight in Mr Areaiiti’s favour. Furthermore, the Respondent contends that Primary Consideration 4, which addresses the minor children’s best interests, is outweighed by the more substantial factors outlined in Primary Considerations 1 and 5, which address the protection of the Australian community and the expectations of the Australian community, respectively.
[40] Exhibit A1: [56–[59].
The Tribunal’s consideration
When evaluating this Primary Consideration, the Tribunal should consider the best interests of each identified child to the extent that their interests may differ.
Acknowledging Mr Areaiiti’s evidence and testimony 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:
(a)In relation to his sister M, Mr Areaiiti plays a non-parental role. M is 18 and has her father and stepmother here in Australia. There is no evidence before the Tribunal as to the impact of Mr Areaiiti’s offending on her, or the likely effect of any separation if Mr Areaiiti is removed to New Zealand. There is no evidence before the Tribunal enlivening Paragraphs 8.4(4)(g) and (h).
(b)In relation to his nephews and niece, Mr Areaiiti plays a non-parental role. At most, there is a period of six years before the youngest nephew is eighteen. They have their mother and her partner in the parental roles. There is no evidence before the Tribunal as to the impact of Mr Areaiiti’s offending on them, the likely effect of any separation if Mr Areaiiti is removed to New Zealand. There is no evidence before the Tribunal enlivening Paragraphs 8.4(4)(g) and (h).
After assessing the evidence and resulting claims evaluated above, the Tribunal considers that this Primary Consideration supports setting the reviewable decision aside but that it weighs only slightly in this regard.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration supports setting the reviewable decision aside. It carries a moderate weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
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.
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.
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 kinds enumerated in that paragraph. This matter does not enliven these.

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.
Paragraph 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). FYBR establishes that this Primary Consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[41]
[41] FYBRv Minister of Home Affairs (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
FYBR’s reasoning further 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.’[42]
[42] Ibid at 473 [75]– [76] (Charlesworth J).
Observing Paragraph 8.5’s norm, the Tribunal has also considered the guidance offered by the principles set out in paragraphs 5.2(1) to (8) of the Direction.
Paragraph 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
Mr Areaiiti’s Visa was a Class TY Subclass 444 Special Category visa until it was cancelled. This Visa is not classified as a limited stay visa under the Migration Regulations.[43] This implies that paragraph 5.2(5)’s low tolerance does not apply in this matter.
[43] Clause 155.211, Migration Regulations 1994 (Cth).
Arriving in Australia as a nine year old in 2010, Mr Areaiiti has resided here for over fourteen years. This enlivens Paragraph 5.2(6)’s higher tolerance.
The Tribunal has found Mr Areaiiti’s offending conduct to be very serious. He committed violent crimes These findings temper and qualify the higher tolerances acknowledged above.
The Tribunal is satisfied that Mr Areaiiti 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.
Summarising Ms Lewis’ contentions as the Tribunal apprehends them:[44]
(a)The Respondent submits that the Australian community’s expectations, as prescribed in the Direction, would favour affirming the reviewable decision. This assessment is based on the community’s anticipated response to several aspects of Mr Areaiiti’s conduct and criminal history.
(b)The community’s expectations would be significantly influenced by Mr Areaiiti’s extensive pattern of offending, which occurred on numerous occasions and encompassed both dishonesty offences and violent criminal conduct. The seriousness of these offences is objectively demonstrated by the resulting sentences of imprisonment imposed by the courts. Additionally, the community would be concerned by his drug-related offences and weapons violations, which present specific risks to community safety.
(c)Based on this analysis, the Respondent contends that Primary Consideration 5, which addresses the expectations of the Australian community, weighs in favour of affirming the reviewable decision. This Primary Consideration reinforces the earlier arguments made under Primary Consideration 1 regarding the protection of the Australian community from criminal or other serious conduct.
[44] Exhibit R2: [60]–[62].
The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.
Having regard to the evidence and context of Mr Areaiiti’s Index Offences, the Tribunal also concludes, after evaluating the tolerances Mr Areaiiti’s circumstances invoke and the extent to which they are tempered or qualified as noted above, that this Primary Consideration weighs substantially in favour of affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries substantial weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three paragraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
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.
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.[45]
[45] Section 501E of the Act.
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.
Mr Areaiiti 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 his situation.
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.
The Visa was not a protection visa, and Mr Areaiiti is not barred from applying for a protection visa.
The Tribunal’s consideration
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.[46]
[46] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 at [209].
There are no claims of protection or of non-refoulement in this matter.
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 Areaiiti being removed from Australia as soon as reasonably practicable, such as the possibility of further detention and being precluded from returning to Australia.
In NBMZ v Minister for Immigration and Border Protection,[47] 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.
[47] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [8], [9] and [153].
The High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs that the Tribunal must approach this consideration in a logical and rational way, based on a correct understanding of the law.[48]
[48] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 [25].
The Full Federal Court in Taulahi v Minister for Immigration and Border Protection[49] stated that the Tribunal’s obligation is to consider ‘the direct and immediate statutorily prescribed consequences of the decision in contemplation.’[50] In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision.
[49] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 (Taulahi). See also Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003.
[50] Taulahi, [84].
These statutory consequences are that Mr Areaiiti would 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.[51]
[51] See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [33] and [38].
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
The Tribunal finds that in the circumstances of this matter the legal consequences raised by this Other Consideration carry neutral weight.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
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.
The evidence and testimony before the Tribunal shows that Mr Areaiiti’s biological mother lives in New Zealand. According to Mr Areaiiti, she cares for six of his sister’s children and is an alcoholic. Mr Areaiiti also claimed that she had Mongrel Mob gang connections but qualified and then drew away from his claim in subsequent cross-examination. There is evidence to show that Mr Areaiiti has a history of employment and has vocational qualifications.
Summarising Ms Lewis’s contentions as the Tribunal apprehends them:[52]
(a)The Direction requires consideration of potential impediments the non-citizen may face if removed to their home country, specifically regarding their ability to establish themselves and maintain basic living standards.
(b)This assessment must be made in the context of what is generally available to other citizens of that country, establishing a comparative standard for evaluating claims of hardship.
(c)Mr Areaiiti is twenty three and has provided no evidence indicating any diagnosed health conditions. His youth suggests an inherent capacity to adapt to new circumstances and establish himself in a new environment.
(d)The evidence does not suggest that Mr Areaiiti would encounter significant linguistic or cultural barriers upon return to New Zealand. Both Australia and New Zealand are predominantly English-speaking countries with similar cultural foundations. Mr Areaiiti spent approximately half of his childhood in New Zealand and likely possesses sufficient familiarity with New Zealand’s language and cultural context.
(e)Regarding social, medical, and economic support, Mr Areaiiti would have access to health services, treatment options, and welfare assistance equivalent to those available to other New Zealand citizens. The Respondent contends that Mr Areaiiti’s demonstrated work history would provide a foundation for securing employment upon a return to New Zealand.
(f)Mr Areaiiti has indicated that he has family members overseas, likely in New Zealand or the Cook Islands. However, he expresses concern that he has “no support only gang affiliations which I want to stay away from” and that his “birth mother’s family are gang members” in New Zealand. Despite these claims, no specific evidence has been presented demonstrating barriers to establishing alternative social support networks in New Zealand.
(g)The Respondent acknowledges that Mr Areaiiti would likely experience emotional and sentimental difficulties if removed from Australia. These challenges are not minimised or dismissed. However, the Direction primarily directs decision-makers to consider more tangible impediments rather than emotional hardships, which are common among most individuals subject to visa cancellations. Consequently, while these emotional difficulties are recognised, they warrant limited weight within the Direction’s framework.
(h)In summary, the Respondent acknowledges that this consideration may weigh slightly in Mr Areaiiti’s favour but contends that the Tribunal should afford it limited weight. Furthermore, the Respondent submits that any advantages under this consideration are outweighed by the more significant concerns outlined in Primary Considerations 1 and 5, which address the protection of the Australian community and the Australian community’s expectations respectively.
[52] Exhibit R2: [64]–[71].
The Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Areaiiti, if removed from Australia to New Zealand, 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).
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 standard against which impediments may be measured for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Areaiiti is twenty three and appears to be in good physical health.
The Tribunal considers that Mr Areaiiti likely faces the risk of emotional pain and anxiety due to the consequential physical separation from his immediate family and the loss of his accompanying supporting and protective factors they constitute if he is removed to New Zealand. The Tribunal considers this to be an impediment but not one that is major nor insurmountable.
Paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Areaiiti, based on his testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to New Zealand.
The Tribunal, applying the same reasoning, also considers that Mr Areaiiti is unlikely to face significant cultural issues.
Paragraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Areaiiti would have access to the same medical, social and economic support as that available to other citizens of New Zealand.
The Tribunal accepts that Mr Areaiiti would struggle initially to settle in New Zealand but does not accept his claims that there is nothing there for him. He is young, appears healthy, has an employment history and vocational qualifications and is single. The Tribunal considers that these factors will facilitate him overcoming his initial struggles in resettling in New Zealand in addition to the availability of the social, medical and economic supports available generally to New Zealand citizens.
The Tribunal’s finding
The Tribunal has considered above the extent of any impediments that Mr Areaiiti, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
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 Areaiiti would face some health, emotional, psychological, practical and financial hardships if he were returned to New Zealand, as well as likely being at an increased risk of anxiety and depression. He is likely to face short-term difficulties in arranging or establishing social, medical and economic supports. He is unlikely to face any language or cultural barriers. He has the capability and capacity to overcome these issues.
After assessing its totality, the Tribunal finds that this Other Consideration carries a small weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence and testimony before the Tribunal enlivening this consideration.
The Tribunal’s finding
The Tribunal finds that this Other Consideration carries neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction).[53]
[53] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
THE TRIBUNAL’S FINDINGS
The statutory framework poses two issues for the Tribunal to address:
(a)character test: whether there is a reasonable suspicion that Mr Areaiiti does not pass the character test in terms of s 501(6)(b), and whether Mr Areaiiti satisfies the Tribunal that he passes the character test,[54] 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.
[54] Section 501(2) of the Act.
The Tribunal found above that it was satisfied that Mr Areaiiti did not pass the character test.
The Tribunal has applied the Direction to this matter’s specific circumstances in determining whether there is ‘another reason’ to set aside the reviewable decision.
Addressing Primary Consideration 1, the Tribunal found that Mr Areaiiti’s offending is very serious, that the consequences of any such future offending may involve physical harm to members of the Australian community and that the likelihood of his future re-offending when assessed is significant. Primary Consideration 1 weighs substantially and dispositively in favour of affirming the reviewable decision.
Primary Consideration 2 has neutral weight.
The Tribunal gives Primary Consideration 3 a strong weight towards setting the reviewable decision aside.
Primary Consideration 4 supports setting the reviewable decision aside. It carries a moderate weight.
The Tribunal found that Primary Consideration 5 carries substantial weight in favour of affirming the reviewable decision.
The Tribunal found that the legal consequences of the decision regarding Mr Areaiiti’s Visa carry neutral weight.
The Tribunal found that the extent of impediments Mr Areaiiti would face if he were removed to New Zealand carries a small weight in favour of setting the reviewable decision aside.
The Tribunal found that the impact on Australian business interests carries neutral weight.
CONCLUSION
The Tribunal has set out above its findings and the weights attributable to them against the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has evaluated 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].[55]
[55] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
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.)

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.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[56] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[57]
[56] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[57] Ibid at [37]– [39].
Two further authorities offering guidance are His Honour Justice Dowsett’s decision in Aksu v MIMA[58] 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[59] at [54].
[58] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[59] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion.
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 be accorded this greater weight.
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 Primary Considerations 1 and 5 outweigh Primary Considerations 3 and 4 and Other Consideration (b) in this matter. Consequently, the Tribunal finds that there is not another reason to set the reviewable decision aside.
DECISION
Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave

..............[SGD]..............
Associate
Dated: 4 April 2025

Date(s) of hearing: 25 & 26 March 2025

The Applicant: Mr Areaiiti represented himself.

Counsel for the Respondent: Ms Lewis of Clayton Utz.

Date(s) of hearing:	25 & 26 March 2025
The Applicant:	Mr Areaiiti represented himself.
Counsel for the Respondent:	Ms Lewis of Clayton Utz.