Arends and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1044

Arends and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1044 (7 July 2025)
Applicant/s:  Richard Bernard Arends
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3274

Tribunal:Senior Member A Suthers
Place:Perth
Date of decision: 7 July 2025
Date of written reasons: 18 July 2025

Decision:The decision of the delegate of the Respondent dated 10 April 2025 not to revoke the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa under s 501CA(4) Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is revoked under
s 501CA(4) of the Act.

Statement made on 18 July 2025 at 9:38am
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – Applicant is a 47 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision set aside and cancellation of the visa is revoked
LEGISLATION
Migration Act 1958 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FHHM v Minister for Immigration [2022] FCAFC 19
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 412 ALR 502
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
SECONDARY MATERIALS
Minister for Immigration and Citizenship, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
The decision in this matter was made on 7 July 2025 and provided to the parties with a note that written reasons would be provided within a reasonable time. These are those written reasons.
THE APPLICATION AND VISA CANCELLATION HISTORY

The Applicant seeks review of a decision of a delegate of the Respondent Minister (‘the Minister’) dated 10 April 2025, not to revoke the cancellation of his Special Category (Class TY) (subclass 444) visa (‘Visa’) under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). Unless otherwise stated, all references to legislative provisions in this statement of reasons are to provisions of the Act.
On 6 August 2024, the Visa was mandatorily cancelled under s 501(3A) because the Applicant had a ‘substantial criminal record’ on the basis of him having been sentenced to a term of imprisonment of 12 months or more.[1] (‘the Cancellation Decision’).
[1] The Act, ss 501(6)(a), 501(7)(c).
On 23 August 2024, the Applicant made representations to have the Cancellation Decision revoked under s 501CA.[2]
[2] HB1, pp 73-86.
On 10 April 2025, a delegate of the Minister decided that the power under s 501CA(4) to revoke the Cancellation Decision under s 501(3A) was not enlivened (‘the Non-Revocation Decision’).[3] Notice of that decision was received by the Applicant on 14 April 2025.[4]
[3] HB1, p 22.
[4] HB1, p 141.
The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision made to cancel a visa under s 501(3A), where the application for review is lodged within nine days after the decision is notified.[5] In this case, the application for review was lodged on 17 April 2025, which is within nine days after the decision was notified. The Tribunal has jurisdiction to hear and determine the application.
[5] The Act, s 500(6B).
I heard the matter on 26 June 2025 in the Tribunal’s Perth Registry. The Applicant appeared in-person and was represented by Ms Angel, solicitor, of Estrin Saul Lawyers. The Minister was represented by Ms Scott of counsel with the Australian Government Solicitor.
The Applicant properly, and correctly, conceded that cancellation of his Visa was mandatory under s 501(6) because he failed the character test set out in that provision. I am satisfied of that fact.
The remaining issue to be determined was whether I could be satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.[6]
[6] The Act, s 501CA(4).
For the following reasons, I have decided to set aside the decision under review and substitute it with a decision that the cancellation of the Visa is revoked under s 501CA(4) of the Act.
THE EVIDENCE AND MY PRIMARY FINDINGS
The Applicant gave evidence and answered questions by the Minister. The following lay witnesses were called by the Applicant, and appeared by video or telephone:
(a)Ms Rachael Third, the Applicant’s former partner and the mother of his two children;
(b)Mr Cooper, a friend and former employee of the Applicant.
(c)Mr Moore, a friend of the Applicant;
Dr Sheridan, a psychologist with clinical endorsement, had prepared a report and was called as an expert witness by the Applicant. She appeared by video.
In deciding the application, I have also considered:
(a)a Hearing Bundle labelled HB1-HB7, comprised of pages 1-586 filed with the Tribunal on 20 June 2025 (Exhibit HB1), which includes the parties’ written submissions as set out in their respective Statements of Facts, Issues and Contentions (‘SOFIC(s)’); and
(b)their oral closing submissions.
I will refer to the evidence and submissions, to the extent necessary to expose my reasoning, below.
Applicant’s personal circumstances, offending history, and the evidence regarding a risk of recidivism
The following is taken largely from the SOFICs submitted by the parties,[7] together with the evidence relied upon by the Applicant. Whilst the Applicant and some of his lay witnesses gave oral evidence and were questioned by the Minister, none were seriously challenged as to their evidence. Unless otherwise stated, I have accepted their evidence on the basis that I have found no reason to doubt its authenticity. Dr Sheridan was also questioned on her report, but not seriously challenged as to her findings and opinions. I accept her evidence and that her opinions are genuinely held and soundly based.
[7] HB1, pp 149-168, 386-395.
The Applicant is a 47-year-old citizen of New Zealand who first arrived in Australia at the age of 19. He last entered Australia on 25 January 2020 and was granted the Visa at that time.
Between 1997 and his incarceration on 28 March 2024, the Applicant worked as a helicopter pilot and engineer, grazier, and farmer, mostly in Australia. He did, though, make regular and extended trips back to New Zealand to live and work.
In particular, in 1999 the Applicant’s brother died by suicide, and the Applicant returned to New Zealand to be with his family.
In 2003, the Applicant returned to Australia. As his work in northern Australia was seasonal, during the wet season he would return to New Zealand for extended periods to work.
Cumulatively, the Applicant spent six of the last 27 years in New Zealand, and the balance of his time residing in Australia.[8]
[8] HB1, pp 107-8.
From 2005 until 2017, the Applicant worked as a mustering pilot in Western Australia and the Northern Territory. He became chief pilot for his employer, and subsequently qualified to train mustering pilots and acted as a mentor. He then had his own helicopter mustering and engineering business, and an earthmoving business. Each of those businesses provided employment in regional or remote Western Australia.
The Applicant also, utilising his own time and resources:
extracted two local people by air in 2009 when road access was cut off by flood waters and loaned them a car to get to an appointment;
(b)provided aid via helicopter rescue to people stranded by flood waters in the 2010 Carnarvon floods, and also during local bushfire events by providing aerial support to ground crews in case they became trapped by fire and needed rescuing, and by operating ground equipment; and
(c)provided assistance by searching the coastline and surrounding areas around Carnarvon by helicopter in the search for Cleo Smith. He declined payment from locals or to accept monies from a ‘Go fund me’ page set up to compensate volunteers involved in the search. His business was awarded a certificate of appreciation by the Commissioner for Western Australian Police, for his efforts in this regard.
The Applicant also volunteered his time helping police search for lost and stolen property, and donated time and money to local rodeos, gymkhanas and motor vehicle events.
He describes meeting a local Indigenous man, Peter Salmon, who he understood to be the last person who could speak the Thiinma language. He arranged for and brought together an Indigenous group so that Mr Salmon could teach the group the language.
In or around 2017, the Applicant commenced a relationship with Ms Third.
Ms Third is also a New Zealand citizen, but she has resided in Australia since 2014.
From 2017 until his arrest in 2022, the Applicant managed, a cattle farming enterprise (‘station’) located in Carnarvon, Western Australia. He and Ms Third had purchased the property in mid-2017.
On 16 October 2018 the Applicant and Ms Third welcomed their first child, ‘Miss M’. From birth until the Applicant’s incarceration, Miss M has resided in Australia with her mother and father.
On 12 May 2021, the Applicant and Ms Third welcomed their second child, ‘Miss I’. Along with her older sister, Miss I has lived her entire life in Australia.
On 25 March 2021, the Applicant was arrested and charged with offences, with Ms Third as a co-offender, to which I will return.
Later, in 2022, the Applicant and Ms Third sold the Station and purchased a mango plantation in Carnarvon, Western Australia. Before the Applicant’s incarceration, it generally employed one full-time and 12 seasonal workers.
The Applicant was on bail for an extended period between his arrest and his incarceration and did not reoffend in that period.
He describes his relationship with Ms Third deteriorating about a year after he was charged. They separated under the same roof, but had subsequently, and if possible, wish to continue to, cohabit to coparent the children in the future.
The Applicant is an involved father, spending significant time taking his children camping, fishing, and horse-riding. He describes Miss M spending most of her days with him at the plantation after Miss I’s birth, due to Ms Third experiencing post-natal depression.
Over the past 14 months, whilst the Applicant has been incarcerated, Ms Third has managed the plantation and continued to raise Miss M and Miss I without direct assistance from the Applicant.
The Applicant has five adult cousins, as well as an uncle and aunt, in Australia. All of them have a right to live here indefinitely. His other surviving family, including his parents, live in New Zealand.
Criminal offending and other relevant conduct
The Applicant has been convicted of six offences in Australia, and three offences in New Zealand.[9] He failed to notify his New Zealand offences on his incoming passenger card. His full criminal history is contained in Annexure A to these reasons. I have considered it in its entirety, but the Minister accepts, and I am satisfied, that it is the offending for which the Applicant was convicted in 2024 that is primarily relevant in this decision. For that reason, I will not recount the nature and circumstances of the other offending.
[9] HB1, pp 36-8.
The Cancellation Offence, dated 28 March 2024, involved the planned and coordinated theft of cattle belonging to the Buurabalayji Thalanyji Aboriginal Corporation (‘BTAC’). The applicant removed the BTAC identification tags from the cattle and replaced them with tags from his own station.[10] The Respondent submits, and I accept, that the seriousness of this offending conduct is reflected in the sentence imposed by the Court, being a term of two years and six months.
[10] HB1, pp 44.
The Applicant was also sentenced to a six-month cumulative term of imprisonment for Possession of stolen or unlawfully obtained property, bringing his total effective sentence to three years imprisonment. This offence involved the possession and use of a stolen bulldozer owned by Rio Tinto, valued at $20,000.[11]
[11] HB1, p 46.
The sentencing Judge referred to the stealing offence as ‘serious’ based on a number of factors, including:
(a)that the offending was ‘clearly planned and premeditated in nature’ and ‘it had a level of sophistication to it’. The sentencing Judge accepted that it could not be described as an ‘isolated lapse of judgment or a one-off offending example’;
(b)there was a significant degree of persistence in the commission of the offending, given that it took place over a considerable number of months, and was only brought to a conclusion by the involvement of law enforcement;
(c)the large number of cattle stolen, namely 161 head of cattle, with an approximate value of $150,000. The sentencing Judge observed that ‘[i]n my view, you did participate, primarily, in this offending for financial reward. Partly, perhaps, some of your motivation was some feelings of retribution, or a need to equalise the ledger, as such, given that you had lost 40 cattle yourself. But, nevertheless, ultimately, the motivation was financial reward. That is, a level of greed’;
(d)the Applicant knowingly caused detriment to the victim and nevertheless offended against the victim ‘in a persistent and ongoing manner’. The Applicant was aware his offending would cause additional financial harm to the victim;
Further, the sentencing Judge observed that ‘it is well documented that the theft of livestock is a matter of grave concern in country areas, given the obvious fact that cattle cannot be restrained or constantly supervised’, and that ‘[i]t is a type of offending that is extremely difficult to investigate and to prosecute, given the very nature of the industry itself’.[12]
[12] HB1, p 41.
On 26 April 2024, the Applicant was convicted of Attempted Gains Benefit by Fraud and sentenced to four months concurrent imprisonment. This offence involved the Applicant contacting his insurance company and reporting that he had hit a kangaroo with his vehicle, resulting in damage.[13] The claim was found to be false through lawfully intercepted information.
[13] HB1, p 493.
No adverse incidents have been reported against the Applicant during his time in prison. On the contrary, he is said to interact well with others, to follow rules and regimes, and to be showing consistently appropriate behaviour. He works at the prison and is reportedly punctual and respectful.[14]
[14] HB1, p 87.
The Applicant has lost over 30 kilograms in weight whilst incarcerated, which he attributes to anxiety.
In prison, the Applicant has also recently commenced a self-funded program to address his prior abuse of alcohol, through an organisation called Whitehaven.
The Applicant addressed the circumstances surrounding his more serious offending, and its sequalae, in a statement in evidence:[15]
[15] HB1, p 171.
In mid-2017 my partner [Ms Third] and I purchased [the] Station near Carnarvon, Western Australia. In or around 2017, there was another incident on my property where some people had permission to shoot donkeys but they were told not to shoot any horses.
Unfortunately, one of my neighbours told them that they could shoot horses and they shot my horses on the property. I was devastated as they were our pets. They were charged by the police but nothing eventuated.
Then in 2019 I was running approximately 300 cattle. There had been a drought so I started to sell lots of my cattle. The neighbouring property had a contracted musterer working for them and I knew him. As a courtesy, one day he told me that while mustering he put 40 of my cattle in a mustering paddock and that he would return them to me later once he had finished. I don't know exactly what happened but he then got sacked and I thought someone else had taken over. The cattle though were never returned to me and a couple of months later I was told that they had run out of water and had died. I was devastated.
I started to get frustrated by how things were going and I started to make really poor choices. I didn't really think things through. During 2020 my friend Joshua ABBOTT (Josh) was employed as the station manager at a station 85km from ours. We had a conversation about how we could get the money back that we had lost and I guess at some point came up with a plan.
Throughout 2020 I arranged for cattle which did not belong to us, to be tagged as if they did.
Some of the cattle were already on my property as they had come through the fences because they ran out of food and water on the neighbouring property. I also got the ones that Josh organised to be bordering our property. We then went on to sell the cattle and profited from their sales. I accept the facts as outlined by the sentencing judge on 28 March 2024.
On 25 March 2021 I was arrested at [the] Station and was charged. While the police were at the station, I took them to the bulldozer which was on my property. My mate found it abandoned and dropped it off a few years before. l don't think the police would have ever found it because it was 40km from the homestead, but l wanted to come clean and own up to my wrongdoings. The last I heard it is still there. It was never moved or reclaimed by Rio Tinto.
…
On 28 March 2024 I was sentenced to 2 years and 6 months imprisonment for Stealing and 6 months imprisonment for Possession of stolen or unlawfully obtained property. These were to be served cumulatively. I was also ordered to pay $100,000 to the victim and the proceeds of the sales were also returned to them … If I stay in Australia though I want to be able to repay this and put this chapter of my life behind me. [Ms Third confirms the fine has subsequently been paid].[16]
While I accept at the time l was sentenced the judge found that I wasn't remorseful, I do feel remorse for my actions. I am very remorseful for the people who owned the station because I stole from them and they didn't deserve that. The resentment I felt for what had happened to my cattle was misdirected and I know that I should not have taken the law into my own hands. I wasn't thinking clearly and made a bad choice. Ultimately the people who paid the price for my offending, the owners, my girls, the community, they did nothing wrong. It has been a very difficult lesson to learn, but I know that taking matters into my own hands will never achieve anything, so I will never do it again.
Ultimately being in jail has been a massive wake up call and the punishment is something that I never want to experience again.
I accept full responsibility for my actions. I know that I am responsible for what happened and what continues to happen to my family. I'm very sorry for the pain that I caused everyone. The stress of this whole situation has caused me to lose a significant amount of weight.
…
On 26 April 2024 I was convicted of (Att) Gains benefit by fraud and sentenced to 4 months imprisonment to be served concurrently. I hit a kangaroo with my ute and made an insurance claim. Unfortunately the ute wasn't fixed properly and I tried to claim that I hit another kangaroo but hadn’t. As my phone calls were still being monitored, when I discussed it on the phone the police heard. I pleaded guilty.
[16] HB1, p 178.

The Applicant also describes his concerns if he is deported to New Zealand:[17]
[17] HB1, pp 174-6, 178.
If I can't stay in Australia, my business will likely fail because I can't run it from overseas and [Ms Third] can't manage it alone. The business has been struggling already while I've been in prison. It is a family business and I have always been the primary person running it. We would lose money trying to run it from overseas so it would have to be shut down if I cannot stay in Australia. This could lead to job losses in the local community. I even had to sell my helicopter to pay for a farm manager to help with last years' harvest. We've run out of money so the manager has dropped down to working 2 days a week instead of full time. Someone else has taken over my helicopter mustering work, but I'd get it back if I were released.
When I first went to prison I lost 30kg from the stress. I got my appetite back a bit thinking that there might be light at the end of the tunnel. I wouldn't kill myself because I've seen the effect on people and I wouldn't do that to the girls, but my mental health wouldn't be good if were forced to move to New Zealand without my family. The psychologist told me that she thinks I have depression and ADHD. I told her that this makes sense based on how I am feeling. I haven't been thriving mentally since being in jail. I've never had depression before or anxiety but being away from my family has had a huge effect on me. Leaving Australia would mean starting over completely. I miss my girls terribly while being in prison. My parents are in New Zealand, but they're getting older and it would be very hard to find work and rebuild my life there.[18]
[18] HB1, p 178.
Being away from the girls and being in here has been the biggest bloody wake up. I don't ever want to reoffend. My anxiety has gone through the roof. I've never had it before and I never understood what it meant until now. I don't want to come back here again. I don't think I will even get a parking ticket when I get out. [Ms Third] has done a good job and is surviving because we are hoping that I'll be home later this year. I don't think she can sustain this by herself if I can’t come home and I'm really worried about it.
…
Having my freedom taken away from me for the first time and being away from my girls has been earthshattering. I've never been locked up in a cage before. I went to boarding school so I can mingle enough to get by, but I never want to be away from the girls again. Being in prison has been a break to look at what is really important in life. My only priority now is it to be at home with my family.
In prison I have been working in the stores. I take the orders for each unit and box them up and then restack the shelves once the orders come in from the outside. l'm also studying in here. I have my airframe licence but there was an engine part that I hadn’t completed so I have been completing that. I have two exams left to do which I want to do once I get out. The prison guards have been great getting the books and the study material in to allow me to do this. This has allowed me to focus on life post-prison and has allowed me to look at what I was doing before.
I used to drink too much but I haven't drunk alcohol while I've been in prison and I don't want to go back to drinking when I get out. Before it was every day after work, but being in prison has shown that I don’t need it. I've come to appreciate the small things and learned how to sit with my thoughts and deal with emotions in a positive way. It will also be a condition of my parole for the 18 months after I'm released that I don’t drink. I will still be under supervision and I will be working at my mango plantation and being there for my family. I also plan on doing casual work at the aircraft engineering company in town… This is an even greater motivation to make sure that I don’t drink and instead process my emotions and thoughts. I now know that drinking was a way to supress my anxiety, and I don't want to do that anymore.
After my meeting with Dr Sheridan I understand more about what I need to do to address my mental health and thinking. Once released into the community I plan to continue to engage with Whitehaven. I also want to engage in further counselling to address the trauma from what happened with my brother and to continue to challenge the way of thinking, and my ADHD. I will have a concrete plan so that if I ever felt my mental health slipping I would know exactly what to do. [Ms Third] has said she will support me in ensuring that I continue to address my mental health and ways of thinking.
I've learnt from this very difficult lesson and there is no chance of me reoffending. I've built a home here in Australia and I love my local community in Carnarvon. I wouldn't ever jeopardise my future in Australia with my children ever again. I never ever want to go back to prison or lose my freedom.
…
[Miss M] knows that I'm in prison but she's not old enough to understand so we are waiting until she's a bit older to explain everything. [Miss M] was five years old when I first went to prison. I can tell that she's been really impacted by my absence, it was particularly stressful for her when they left Perth without me. [Miss M] couldn't understand why she had to pack up her things and leave me behind. She keeps asking me how many days are left until I come home. [Ms Third] told me that [Miss M] has been displaying some weird behaviour at school not long after I left. The teacher said she was licking random objects and the window at school. She is booked in to see a counsellor soon.
Now that I'm in prison, I speak to [Miss M] over the phone regularly. It's easier to call during school holidays so we will speak to each other every day, but when school is in session, we call every other day so it isn't too disruptive to their homework. We speak via video link at least once a week and on the weekends both on Saturdays and Sundays to catch up on what she's been up to throughout the week. [Miss M] is quite a chatterbox so she will tell me anything and everything, mostly about school and life at home. She has a list of things she wants to do with me when I get out of prison, such as building a chicken coop, a vegetable garden and going fishing. She complains that since I've been away, fishing on the wharf isn't as fun compared to when I would take her fishing on the boat.
[Miss M] will visit me at prison at least once a month on the weekends, and during school holidays, she will stay for a few days with her mum and sister so they can visit me four times in one week.
It's difficult for them to visit me in person more regularly as the prison is 5-6 hours from Carnarvon. When she visits me, we talk and I have been teaching her how to play chess. We also do colouring in together. She is always so excited to see and talk to me and will often fight with her younger sister with talking on the phone.
If I were unable to stay in Australia, [Miss M] would be extremely devastated and heartbroken.
Together with her younger sister, they have been counting down the days until they can see me again. I know the idea of being reunited with me is motivating them. [Miss M] would be very confused and won't be able to understand why I can't spend time with her and her sister for a long time. I don't want to think about how sad they would be. I was an active father-figure in her life before prison and even now, I provide her with guidance, support and companionship. I taught her valuable life skills and was always there to console her if she was upset about something. [Miss M] would lose this support if I were unable to be with her physically in Australia.
I also share a close relationship with my younger daughter, [Miss I]. She was only two years old when I was incarcerated so she doesn't really understand what is going on but knows that I am in prison. I spent every day with [Miss I] before going to prison except for when I was away for work. We had a good relationship and she relied on me equally, if not more than [Miss M] as she was practically a baby.
I helped to raise her and assisted her with daily tasks such as getting ready in the morning, feeding her, changing her nappies, looking after her during the day and tucking her into bed at night. As [Ms Third] and I slept in separate rooms, [Miss I] would come to my room when she was having nightmares or having difficulty sleeping at night. I provided her with lots of practical help and was similarly, an active father in her life before prison.
I speak with her on the phone as much as I do with [Miss M]. [Miss I] is a bit more aloof on the phone compared to [Miss M], she gets easily distracted and will fight with her sister over who gets to talk to me. She is however, getting better at sharing and talking as she gets older. She will also come visit me in person with [Miss M] and we also do colouring and drawing pictures together. [Miss I] always asks me when I’m coming home and counts how many sleeps are left until we can see each other again. They tell me how much they miss me and always look forward to when we can speak on the phone or visit me in person again.
[Miss I] has similarly been showing odd behaviour at school, being disruptive during class or in the bus. [Ms Third] has booked her in to see a counsellor also. She sometimes forgets that I’m in prison and does not fully comprehend what is going on. She just knows that I am away for now but I will be coming home soon. [Miss I] is really looking forward to this .
[Miss I] will be distraught if I cannot stay in Australia with my family. She will have a harder time understanding why I can't be with them as she is much younger than [Miss M]. I will be unable to give her practical and emotional support if I am removed from Australia. I'm also really worried about how they will react and cope if the expectation that I will be coming home later this year isn't met. I’m concerned about their behaviour in school will worsen and how this will affect [Ms Third].
Hearing that my daughters are struggling is heartbreaking. It is hard to hear that they are suffering because of me. Hearing that they need to see counsellors because of everything they’re going through ruins my day. I've let them down and I'm going to spend the rest of my life making it up to them. I will never reoffend because I would never do this to them again.
In continuing with his course with Whitehaven to deal with his prior alcohol abuse, the Applicant has worked through what triggers, emotional levels, and state of mind can affect his mental state.
He has reflected on his conduct, considered the advice of Dr Sheridan, and intends to continue in counselling on his release. He now realises that living closer to a town has had a positive effect on him
In questioning by the Minister, the Applicant acknowledged that controlling his alcohol use may be challenging on his release, noting that the environment that he lives in is ‘a pretty social environment as far as alcohol goes’. He realises that he will need additional support and intends to seek it.
The Applicant is in good health and has the skills and experience to obtain work in New Zealand but says it would take ‘a while’ to re-establish himself in work.
Ms Third will not relocate to New Zealand if the Applicant is deported. Nor does it appear that it is within her contemplation that their daughters might live with the Applicant in New Zealand in that event. Ms Third addressed her concerns if the Applicant is deported in two statements in evidence:[19]
[19] HB1, pp 98, 210-7.
Our two children, [Miss M] and [Miss I] have been raised on a remote cattle station, five hours drive from Carnarvon. In 2022, our family moved to a plantation closer to town. Both of our children have thrived at the local school and have made a lot of very close friends.
[Miss M] and [Miss I] have family in New Zealand, but their home and all of their friends, and their support network, are here in Australia.
[Miss M] has visited New Zealand twice, for a very brief holiday, and [Miss I] has never left Australia.
Because Australia is the only home the girls have ever known, I would be reluctant to move the girls out of the country. Although they are not being forced to leave, I feel It would be detrimental to them to be separated from their father if he was denied the right to stay in Australia.
[The Applicant] and I have both agreed that Australia is the country which we feel is best to raise our two children in. For this reason. I am currently In the process of applying for citizenship for myself and the girls.
…
Before [the Applicant] went to prison, he saw the girls almost every day. He would often go away for work for a few days to a week at a time, but he was mostly home. Even when he was working, the girls understood this and would run outside and wait for the helicopter when he returned home. [Miss M] helped him pack and get his stuff ready for work. Both [Miss M] and [Miss I] spent a significant time with [the Applicant] doing all sorts of outdoor activities such as riding on the helicopter, driving around the farm on the ute, camping and fishing. They enjoyed lots of one-on-one time with their father.
I can see that [the Applicant’s] absence and imprisonment has affected the girls. They’ve had a bit of odd behaviour at school and are booked in to see a counsellor, hopefully soon. For example, [Miss M] has been licking the window at school and [Miss I] was being naughty on the bus. I'm not sure if they are doing some things to get attention as I haven't been able to give it to them due to my busy schedule.
[Miss I] in particular will cry and call for her dad when she's having a nightmare or gets in trouble. It's almost as if she sometimes forgets that he’s gone. On one occasion, we were at the grocery shop and I told her that she couldn't have some sweets. [Miss I] then hid it in her pocket and when I scolded her later and told her that it was stealing, she told me that she didn't mind because that meant she would be able to see her dad in prison. I made it clear to her that stealing is wrong and that it will not bring her dad home, but she is only 4 so it is hard. She is just so desperate for her dad to be home.
[Miss I] is quite a full-on child, super energetic and active. She needs that second parent who can give her lots of time and attention, so that she's always occupied with something.
[Miss M] on the other hand, has taken on the role of second parent at the age of 6. She has developed a mature attitude, maybe to counter how full-on [Miss I] is. [Miss M] always reassures and tries to console [Miss I] when she is upset or having a tantrum. I'm concerned that [Miss M] is growing up too fast and that it’s taking a toll on her, always putting [Miss I]’s needs before her own. [Miss M] is a child and I know that she is doing this to help me, but it is heartbreaking because she shouldn't have to.
This isn't fair on her and it is heartbreaking to watch her cope like this.
If [the Applicant] were removed from Australia and the girls stayed here with me, they would be very distressed and miss him immensely. I don’t think they would be able to comprehend why he can’t live with them and why it seems like he’s being punished further after prison. There is the expectation that [the Applicant] will be coming home after prison, so much so that [Miss M] has worked out the maths that by the time she turns seven, her dad will be home to celebrate with her. I am extremely worried about this expectation and how they won't be able to process it completely if it’s not met.
We are surviving but it’s not always a healthy environment for our children. There's work that needs to be done and although I always make an effort to prioritise them, most times they have to accommodate to my schedule (at work for example). I don’t want my children to look back when they’re older and see all these holes in their lives because their dad was absent. I also don’t want them to have a distant relationship with [the Applicant]. We’ve discussed the possibility of the children visiting [the Applicant] in New Zealand during school breaks but it would be extremely expensive. [The Applicant] was unable to fathom how practical this would be in the long term, already heartbroken at the thought of being physically apart from his children.
They’re pretty resilient at the moment but only because they are holding onto the hope that their dad will return later this year. I am worried about their wellbeing and development if I were to raise them on my own.
…
I relied significantly on [the Applicant] before he went to prison for emotional and practical support. Even though we had different ideas at parenting, he was very good at backing me up and getting the girls to respect my decision. We shared the parental responsibilities equally, it was extremely valuable having him as a back-up so that I didn't have to drag the girls with me everywhere, as I am forced to do now. It worries me that for both of our children, because of my busy schedule, they are missing out on things. There is a gap I cannot fill as a single parent.
I have always wanted to go back to part-time or full-time work but it is not viable at the moment, as I am caring for the girls by myself and the plantation.
We are temporarily surviving without [the Applicant] but it has been difficult. I am rundown, tired and my mental wellbeing is declining having to work and care for our children by myself. I was encouraged by friends to see a counsellor but I just don't have the time. The children are my priority and I cannot put myself first. Even though we have friends in Carnarvon, it’s hard to find someone to look after the children. They have their own families to care for and are not always in the position to help me.
If [the Applicant] were to be deported, it would have a devastating effect on our family. If the girls and I were to stay in Australia without [the Applicant], I wouldn't be able to work as I cannot do full-time and look after the children. I don’t know what I would do because as a New Zealand citizen I’m not entitled to much financial support from the government. I want to work, I’ve always had one or two jobs and considered myself a career person before having children. I think it would impact my mental health and self-esteem significantly if I wasn’t employed.
Our business would likely be forced to shut down without [the Applicant] physically here in Australia, as I cannot run it by myself. It would be nearly impossible managing all the tasks while raising two young children. It is not a safe environment especially during picking season with lots of trucks and things happening on the plantation.
My relationship with [the Applicant] would likely become fractured being far apart from each other. I relied on him for practical help and a hard part of me would probably resent him if he cannot be here physically to help me with the girls. [The Applicant] is a hands-on dad, always protective and things might be lost in translation or taken out of context if we discuss the girls’ care is managed over the phone. This would cause us both lots of stress and may affect how we raise the girls.
I have been trying to shelter [the Applicant] from some of [Miss M] and [Miss I]’s struggles as it won’t benefit either him or the children. There are times where they cry or have bad dreams and I will keep this to myself. It does take a toll on me, but I am trying my best to be strong for our family.
In oral evidence Ms Third said that if the Applicant is deported, he would likely only see their children in the summer school holidays, which would ‘leave a big hole in their lives’. Without the other income the Applicant’s employment from mustering provided, she only has the income from the plantation. That comes in the picking season, which goes for about two months, but the money has to be made to last all year.
It has not been viable for Ms Third to seek outside employment due to her caring responsibilities for the children, together with the cost of childcare.

She has friends in the community but many of them live on pastoral properties or plantations, where both parents work full time, and that limits her social supports.
She expects that the plantation would need to be sold if the Applicant is deported, giving several cogent reasons for that assertion.
If the Applicant is not deported, she expects to get full time work so the Applicant can focus on the children, and she will help to support keeping the business going.
She describes that, in the Applicant’s absence, the children are grinding their teeth at night, which she attributes to stress and anxiety. She has also observed what she considers to be a notable regression in the children’s toilet training.
If the Applicant is deported, Ms Third conceded that she would do her best to travel with the children to see him and to keep up his relationship with them.
Ms Third has not yet taken steps to obtain Australian citizenship for herself or the children, citing the other pressures on her time as a primary cause for that. However, it remains her intent to apply.
Billie Symonds is the children’s kindergarten teacher, and provides a corroborating statement in respect of the effect being separated from the Applicant has had on the children, stating, relevantly:[20]
[I] have taught both [Miss M] and [Miss I]. When I taught [Miss M] her father [the Applicant] was still at home with them for part of the year. [The Applicant] was a very hands on father during this time and was always picking her up and dropping her off at school, which she would love and look forward to. [Miss I] was never far behind him as she would also be with her dad a lot of the time, and you could tell they had a beautiful father and daughter bond. The girls love their father and when he was sentenced and sent to jail I observed a big change in their behaviour and have seen the emotional toll it has had on them both.
[Miss M] who was once an eager learner and full of life became very withdrawn and struggles staying on task when dad was sent to jail, she would constantly talk about her dad and express to me how much she was missing him. [Miss I] the youngest who I teach now is really struggling not having a father figure at home and needs her dad to help with the big emotions she is dealing with. The girls have already been through so much stress that the uncertainty surrounding their father’s potential removal from their life is causing feelings of fear, sadness, and anxiety. Both girls have been referred to see the school counsellor by their teachers to help them deal with this, as the absence of their father will lead to emotional trauma, affecting their concentration, school performance, and overall mental health. Furthermore, the loss of one of their primary caregivers and source of support will result in instability at home, making it difficult for them to focus on their education and personal growth. I believe by allowing their father to come back home and stay in Australia with his family will help the girls to heal and allow them to have a happy, stable life which they all deserve.
[20] HB1, p 209.
The Applicant’s other ties to the community, and community support
The Applicant provided signed statements from more than 25 other witnesses in support of his position. I do not consider it necessary to detail the content of those statements individually.
The overwhelming theme of that evidence, which I accept as it is unchallenged and not inherently improbable, is that various members of the Australian community, most of whom are Australian citizens, are supportive of him remaining in Australia despite many of them claiming to know the nature of his crimes.
It is notable that many, but not all, of those witnesses are involved in the cattle industry, and so would be particularly aware of the relevance of the concerns the sentencing judge noted about the nature of the theft of cattle engaged in by the Applicant.
Central themes in that evidence include the witnesses having first-hand knowledge or experience of:
(a)the Applicant’s close bond with his daughters, and the witnesses’ concern for them if they are separated;
(b)the Applicant’s selfless willingness to help others, often at considerable unrecompensed expense;
(c)their belief that his serious offending was out of character, and would not be repeated; and
(d)their belief that the Applicant should be allowed to remain in Australia.
Some of the witnesses also expressed that:
(a)they would provide practical assistance to the Applicant on his release, with employment or use of their own property for him to re-establish himself if required; and
(b)they would feel a personal sense of loss if the Applicant was deported.
Two of those witnesses gave oral evidence, being Mr Cooper and Mr Moore.
Mr Cooper had worked for the Applicant over a period of about five years, and they had developed a lasting friendship. He is a helicopter pilot but had stopped flying after witnessing the death of his then employer in a helicopter accident. He described the Applicant’s patience and care in allowing him to gradually develop his confidence to commence flying again, which made a ‘huge impact’ on Mr Cooper. Working on the station, Mr Cooper was able to witness first-hand the extent of the Applicant’s role in caring for Miss M and Miss I. He said that if they were mustering and finished a bit early, others would ‘hang around, have a beer’, but the Applicant would always go home to ‘see his girls’.
When asked by the Minister about his knowledge of the Applicant’s offending, Mr Cooper acknowledged that ‘he broke the law and involved cattle theft, but I don't know the insurance ins and outs of every angle of it’. Notwithstanding that, Mr Cooper has observed the Applicant’s remorse for his offending conduct.
Mr Moore is a long-time friend of the Applicant and describes him as a deeply committed father who would do anything for his daughters. He described the Applicant talking about his children ‘all the time and it's clear how much he loves and misses them’.
Expert Evidence in Respect of the Applicant’s rehabilitation and risk of further offending.
Dr Lorraine Sheridan, psychologist, provided a report dated 27 May 2025 with access to the relevant documentation and having interviewed the Applicant for approximately 90 minutes She also conducted a subsequent interview with the Applicant’s sister.[21] Dr Sheridan is registered to practice as a psychologist in Australia, with a forensic endorsement. She has worked as a Chartered Forensic Psychologist and Psychologist Practitioner in the United Kingdom, qualifying in 2004. She is an adjunct Associate Professor of psychology at Curtin University and has conducted assessments and provided approximately 300 expert witness reports for the Justice System.
[21] HB1, pp 186-195.
Dr Sheridan’s expertise in making such assessments was not challenged and I accept that she is appropriately qualified and experienced to provide a report.
Dr Sheridan reported and opined, relevantly, that:
(a)the Applicant was drinking up to 12 cans of beer each night at the time of his offending, which he now realises was a strategy he used to reduce feelings of social anxiety;
(b)during the assessment, the Applicant demonstrated ‘reasonable’ insight into his offending behaviour, acknowledging the seriousness of his actions and expressing remorse;
(c)the Applicant appears to have increased his level of insight into the offending since his sentencing. He stated that he now recognises his thinking was distorted and that he cannot justify his actions based on perceived wrongs done to him and that he had developed the ‘delusional idea’ he was targeting corporations rather than individuals. The Applicant acknowledged that his perspective at the time was influenced by living in a ‘bubble’ where such justifications were normalised among his peers but also that his actions, and the choices he made, were his own.
(d)the Applicant presents with previously undiagnosed symptoms consistent with Attention Deficit Hyperactivity Disorder (‘ADHD’). The core symptoms of ADHD would significantly impact his cognitive processes on a day-to-day basis, particularly in relation to impulse control, decision-making, planning, and emotional regulation. These impairments likely contributed to his offending behaviour, particularly his tendency to act on perceived injustices without fully considering the consequences or exploring alternative solutions; and
(e)a large body of research indicates that appropriate treatment, with the most beneficial approach combining both medication and psychological intervention, can significantly reduce the risk of criminal behaviour in individuals with ADHD.
Dr Sheridan expressed the view that the Applicant:
… presents a low-moderate risk of reoffending without appropriate interventions. However, with targeted treatment addressing his ADHD symptoms, alcohol use, and cognitive distortions, this risk could be significantly reduced to a low level (noting that with risk assessment there is not a “no risk” category, only low risk or greater levels). Mr Arends does not appear to have an entrenched criminal lifestyle or antisocial value system. His offending appears situational and influenced by untreated neurodevelopmental issues and maladaptive cognitive patterns. The psychological factors that contributed to his offending (untreated ADHD, problematic alcohol use, rigid thinking about justice) are all amenable to treatment and do not represent fixed antisocial traits.
Should the Applicant be permitted to remain in Australia, engaging in Alcohol treatment and psychological intervention in the form of trauma-informed therapy to address unresolved grief regarding his brother's death would reduce his risk of reoffending and promote rehabilitation.
If the Applicant is … removed from Australia to New Zealand, the impact on his daughters would likely be significant and detrimental, and include:
- Disruption of attachment bonds during critical developmental stages;
- Psychological impacts including potential depression, anxiety, and behavioural problems;
- Practical challenges maintaining meaningful contact despite technology, due to time, distance, and cost barriers; and
- Long-term implications including potential poor academic performance and difficulties with relationships.
Dr Sheridan concluded that:
Mr Arends presents as an individual with symptoms consistent of a severe experience of ADHD whose offending was influenced by this untreated condition, problematic alcohol use, and maladaptive cognitive patterns. His offending appears contextual rather than reflecting entrenched antisocial values.
Despite his present situation, several positive indicators regarding Mr Arends' character were observed. He demonstrates substantial work ethic and entrepreneurial ability, having run multiple businesses. He expresses what appears to be genuine remorse (albeit, it has taken a while for him to reach this point), acknowledging his actions were wrong and taking responsibility. He shows strong family connections and parental involvement with his two young children.
Mr Arends has begun to develop some insight into his behaviour during his time in prison. He stated that being in jail has helped him "take a new perspective" and he recognises his need to "stop and collect his thoughts" rather than acting impulsively. He has been forced to stop drinking alcohol, and had time to reflect on his behaviour patterns. This suggests genuine behavioural change rather than simply saying what he believes authorities want to hear.
I am of the opinion that, with appropriate treatment, Mr Arends has good prospects for rehabilitation and could maintain a law-abiding lifestyle in Australia while continuing his important role in his daughters' lives. The appropriate treatment of his ADHD, anxiety, depression, and alcohol use issues would significantly reduce his risk of reoffending. He would also benefit from developing alternative coping strategies to manage his impulsivity and emotional responses, particularly in situations where he perceives injustice.
In oral evidence, Dr Sheridan said that she found the Applicant to be clearly highly engaged and genuinely enthusiastic about the sessions that he is completing with Whitehaven, and that completion of the course would cause a significant shift in the Applicant’s risk of recidivism ‘further into the lower category’ and further strengthens the protective factors that she observed.
In questioning by the Minister, Dr Sheridan agreed that in the past the Applicant appeared to go through a process whereby he thought his offending was entirely justified, however, by the time of her interview, he ‘did seem to hold a genuine idea that he’d done something really wrong and really stupid’.
However, Dr Sheridan acknowledged that, in her opinion, the Applicant needs to maintain engagement with supportive services to protect himself from relapse into old patterns of behaviour.
On learning that the Applicant had not yet completed the Whitehaven course, Dr Sheridan said that in her assessment the risk of recidivism was currently ‘at the low end of moderate to low, really closer to low’. If the Applicant completes the course, it will move to low risk, on a five-point scale from very low to low, moderate, high, and very high risk.
I accept Dr Sheridan’s uncontradicted evidence given in questioning.
LEGAL FRAMEWORK
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was explained by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection:[22]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[22] (2018) 162 ALD 13, [64] (Colvin J).
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (albeit in the context of Ministerial Directions preceding Direction no. 110).[23]The Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[24] While the Court was considering Direction No 90, I am satisfied that its observations apply equally to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[25]
[23] See, for example Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 (‘Suleiman’), Minister for Home Affairs v HSKJ (2018) 266 FCR 591.
[24] [2023] FCAFC 138 (‘CRNL’).
[25] CRNL, [35].
The Migration Act
Under s 501(3A), the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A), the person must be 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.
It is not in dispute, and I have found that those conditions were met here.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[26] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is ‘another reason’ why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is another reason why the cancellation decision should be revoked.[27]
[26] The Act, s 501CA(3).
[27] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction no. 110
The Minister, and therefore the Tribunal on review, is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law.[28] By the operation of s 499(2A), in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to
[28] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456, [119] (Halley J).
s 499(1).
On 7 June 2024, the Minister made Direction no. 110 under s 499, which commenced operation on 21 June 2024. That is the Direction that must be applied.[29]
[29] Direction no. 110 paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
[30] Direction no. 110 para 5.1(4).
[31] Direction no. 110 para 6.
ss 501 or 501CA.[30] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[31] However, the Direction does not authorise or require the Tribunal to ignore other relevant evidence or factors that may lead the Tribunal to a state of satisfaction that there is another reason to revoke the cancellation decision.
Whilst the primary and other considerations in Direction no. 110 are mandatory considerations they are ‘not an exhaustive universe’ of considerations.’[32] Put another way, while Ministerial directions may serve a purpose of consistency of decision-making, the Minister cannot, by such a direction, dictate what must be the outcome before the Tribunal undertaking its review on the merits of a particular decision.[33] Similarly, there is no presumption that, because a person fails the character test, it means that they must not be allowed a visa.[34]
[32] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, [45].
[33] Kumarv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 412 ALR 502, [26] (‘Kumar’).
[34] Kumar [41].
Paragraph 5.2 of Direction no. 110 contains several principles that must inform my application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision. Those principles are:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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 measureable [sic] risk of causing physical harm to the Australian community.
5Australia 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.
6With 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.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen'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.
8The 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.

Informed by the principles set out in paragraph 5.2 of Direction no. 110, I must take into account the primary considerations and the other listed considerations, where they are relevant, having regard to the specific circumstances of the case. I must also consider the Applicant’s other clearly articulated submissions based on established facts that may properly bear on my decision.
The primary considerations are set out in paragraph 8 of the Direction. They are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
The ‘other considerations’ that I must properly consider, insofar as they are relevant to the matter, include (but are not limited to):[35]
(a)       legal consequences of the decision;
(b)       the extent of impediments if removed; and
(c)       the impact on Australian business interests.
[35] Direction no. 110 para 9.
Further guidance as to how I am to apply the considerations in
Direction no. 110 can be found in paragraph 7, which provides:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The 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.
3One or more primary considerations may outweigh other primary considerations.
However, as regards paragraph 7(2), in FHHM v Minister for Immigration,[36] the Full Federal Court considered its precursor in Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ, with Derrington J in agreement, referred with approval to remarks made by Colvin J in Suleiman,[37] and stated at [34] that
…particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one or more of the primary considerations...
[36] [2022] FCAFC 19.
[37] Suleiman, [23].
It is not sufficient for the Tribunal to weigh each of the considerations in Direction no. 110 separately and then aggregate each of the individual assessments by some form of tabulation or calculation. The Tribunal must undertake a process of weighing and balancing, by which it evaluates the different relevant considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion required by s 501CA(4) of the Act.[38]
[38] CRNL, [28], [34]-[35], [37]-[38].
The discretion conferred by s 501CA(4) is to be exercised subject to the Act and to the self-evident Australian community protective purpose of the discretion. However, by virtue of the section conferring a discretion, it necessarily follows that Parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa to a person who does not pass the character test.[39] Punishment of the Applicant for the conduct or offences relevant to the decision plays no part in the Tribunal’s evaluation. That is a role that is ‘exclusively judicial in nature’.[40] However, the process by which the Applicant’s visa was cancelled, and whereby that cancellation may not be revoked, is not itself punitive in nature.
CONSIDERATION
[39] Kumar, [41].
[40] Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [27] (Brennan, Deane and Dawson JJ).
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), directs my attention to the protection of the Australian community. It requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
I must 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.[41]
[41] Direction no. 110 para 8(1).
Paragraph 8.1(2) then provides that I must also consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
I dealt with the Applicant’s most significant offending conduct above and have taken into account the undisputed nature of his less significant offending conduct as reflected in Annexure A.
Direction no. 110 requires me to take into account a range of factors, including certain conduct which is specifically categorised in paragraph 8.1.1(1), and thereby deemed to be regarded by Australia’s Government and community as ‘very serious’ or ‘serious’.
The Applicant’s criminal conduct is not specifically categorised in Direction no. 110 as being viewed by Australia’s Government and community in a particular manner. Irrespective of that, I must be independently satisfied as to how the Applicant’s specific conduct, in context, should be categorised.
The parties agree, and I am satisfied, that the Applicant’s offending must be regarded as serious.
However, the Applicant submits that I should find that the seriousness of his conduct should be considered to fall in the lower range of being properly so described, because it is not specifically described and categorised in Direction no. 110. He submits that the Government has worked very hard to specify very specific types of offending in the direction which are consistently considered very serious and serious. Because stealing and receiving stolen goods are not specifically listed in the direction, in the manner of, say, sexual offences, violent offences, or offences against vulnerable people, it must mean that it is not intended to be considered at the higher end of serious.
I reject that submission and agree with the Minister that the text of Direction no. 110 itself points to a different conclusion. In the preamble to each of paragraphs 8.1.1(1)(a) and 8.1.1(1)(b), where specific conduct described as being considered very serious or serious is set out, the direction records that the listed conduct in each respect is to be considered ‘without limiting the range of conduct that may be considered…’ very serious or serious.
I also note that that the different, state based, criminal justice systems in Australia, and the consequent variation in the way offending conduct is described, would make attempting to describe every type of offending that may need to be considered an unwieldy objective, likely to lead to more disputation than certainty.
In any event, whilst I need to consider the deemed views of the Australian Government and community, I must assess for myself the level of seriousness that should be attributed to the Applicant’s conduct.
In that regard, the conduct was not isolated or contained to a short period.
The conduct that constituted the offences for which the Applicant was sentenced in 2024 was also such that it led to a significant sentence of incarceration of the Applicant, after the sentencing judge was apprised of the Applicant’s personal circumstances and notwithstanding that incarceration is a penalty of last resort.
Furthermore, the overall assessment of the seriousness of that conduct is not ameliorated by the Applicant’s conduct that led to his other convictions, despite the far less severe sentences he received. The conduct he engaged in in New Zealand, that led to his convictions there, would also be considered to be criminal conduct, and, in each case, an offence if committed in Australia.
Whilst the offending may not be properly described as frequent, it was of increasing seriousness. The offending in respect of the dishonesty offences also had a financial impact on the victims and the offending conduct in respect of the falsified insurance claim is of the nature that would contribute to higher insurance being paid by other Australians. The cumulative effect of repeated offending is such that it puts additional strain on the publicly funded criminal justice system and, in this case, a burden on the correctional system.
I accept that the Applicant’s evidence that his failure to declare his offending in New Zealand was an oversight and that he did not intend to mislead immigration officials. There is no evidence that he continued offending after being warned, or otherwise becoming aware, of the consequences of further offending on his visa status.
I am satisfied that conduct should be viewed as falling in the moderate to high range of seriousness.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I must then consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:
1In 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.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
There is no statutory constraint on the way that I assess that risk other than that there must be a rational and probative basis for my assessment.[42] I am not bound by the expert opinion I have referred to above.
[42] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).
Nature of the harm
I am required to have regard to paragraph 8.1.2(1) and have done so.
In respect of the risk of further harm, I agree with the Minister that the harm caused if the Applicant were to re-engage in similar conduct of concern is significant and would likely involve financial and psychological harm to members of the Australian community. I reject the Applicant’s submission that the nature of his offending conduct is such that it could not be said to cause psychological harm. In respect of the dishonest conduct, standing behind each corporation are individuals who constitute its shareholders. The smaller the corporation, such as the BTAC, the more likely losses caused to the corporation will have a potential psychological impact on its shareholders and Directorship.
I accept the Minister’s submission that the Applicant’s conduct has caused individuals financial harm, and that impact should not be underestimated.
Offending conduct in the nature of drink driving and careless driving, which are major contributors to road accidents, also have a clear potential to cause psychological harm to individuals.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In respect of paragraph 8.1.2(2)(b), the Applicant submits that he poses a very low risk of reoffending or engaging in other serious conduct. He cites the impact of his imprisonment on him, his good work history, and the loss of his ability to be with his family his offending has caused. He also relies upon his expressed remorse. Whilst acknowledging that remorse may have had a late onset, he points to his lack of appreciation of the difficulties in his mindset, which only started to change once he began receiving cognitive therapy through Whitehaven. He also relies on the assessment of Dr Sheridan.
The Applicant submits that the risk of re-offending is such as to lead to this primary criterion not weighing heavily in favour of cancellation of his visa.
The Minister submits, and I accept that the Applicant’s ability to refrain from resuming alcohol abuse in the community is untested.
The Minister also points to Dr Sheridan’s evidence that the risk is presently assessed as low to moderate and will move to low risk only on completion of the Whitehaven course. The Minister also notes that Dr Sheridan opined that the Applicant will only move to a very low risk category if he undertakes the ongoing therapeutic interventions she has recommended.
The Minister accepts Dr Sheridan’s assessment and submits that while the Applicant is now aware of and has gained insight into his offending, he nevertheless has further to go in his rehabilitation and the Tribunal should be cautious when considering whether the Applicant will complete the recommended interventions, despite his genuine intent to take them up.
The Minister also submits that the Applicant was guarded in his responses in evidence about his wrongdoing, and that it took some prompting or questioning to elicit why he was remorseful or what his remorse was for.
However, I formed the view that the Applicant was, rather, a man of few words and that constraints of leading evidence in chief contributed to the fact that he gave more fulsome answers when questioned by the Minister.
I am satisfied that the Applicant does feel informed and genuine remorse for his conduct which has had a rehabilitative effect on him. I also take into account the nearly 3 years he spent in the community on parole without offending, with only apparently minor reporting conditions potentially contributing to that outcome.
I am satisfied that the Applicant will complete the Whitehaven course, given his enthusiasm for it to date and where it is provided in the prison and during his incarceration, meaning he has little reason not to do so. He had already completed 5 of the 14 weekly sessions by 16 June 2025.[43]
[43] HB1, p 585.
I have far less confidence that he will keep up with further therapeutic interventions after his release, given his remote location and the other pressures of daily life.
I assess that there is a low risk of the Applicant reoffending.
Overall, the Minister submits that the risk of the Applicant engaging in similar conduct is real, and at a level which, while not unacceptable, is a matter that should weigh heavily against him and, for that reason, the protection of the Australian community should weigh significantly against revocation of the Cancellation Decision.
Considering all of the relevant issues together, I assess this primary consideration as weighing very heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Under paragraph 8.2 of Direction no. 110 I must have regard to family violence perpetrated by the Applicant when deciding whether to revoke the Cancellation Decision.
The parties agree, and I am satisfied, that there is no evidence that the Applicant has engaged in family violence. This Primary Consideration has neutral weight, in that it has no effect on the determination of the ultimate question of whether there is another reason to revoke the Cancellation Decision.
The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction no. 110 provides that:
1Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As New Zealand citizens, Ms Third, Miss M and Miss I all have an indefinite right to reside in Australia, whether they take up citizenship here or not. The Minister accepts that Ms Third should be considered to be a member of the Applicant’s immediate family, despite their estrangement. I note that the term ‘immediate family’ is not defined in Direction no. 110. Whilst I harbour some doubt as to whether Ms Third still meets that description, I will accept the Minister’s position.
I am satisfied that Ms Third and the children will not move to New Zealand if the Applicant is deported. I also accept the likelihood that the plantation would have to be sold at a time when its profitability has been compromised by the Applicant’s extended absence, and that there would be potentially significant financial consequences for Ms Third, and thereby the children, if that occurs. Whilst I assess the Applicant as someone who will continue to contribute appropriately, in a financial sense, to the children if he is deported, he will undoubtedly face a more restricted ability to do so if he needs to deal with the sale of the plantation and re-establish himself in New Zealand. I accept that this, together with the difficulties caused by the Applicant’s removal, and inability to regularly have physical contact with the children, will likely have a negative effect on Ms Third’s ongoing relationship and co-parenting with the Applicant. Given that it would also leave Ms Third with an ongoing lack of practical parenting support, it would also compromise Ms Third’s own wellbeing. This could only have further negative consequences for the children.
I also take into account the children’s location in remote Western Australia, and the added impediments that would cause to regular physical contact with the Applicant in New Zealand, in comparison to a child living near an international airport on Australia’s East Coast.
I accept Dr Sheridan’s evidence that the Applicant’s removal from Australia may have significant and detrimental impacts on the children, including:
disruption of attachment bonds during critical developmental stages;
(b)psychological impacts including potential depression, anxiety, and behavioural problems;
(c)practical challenges maintaining meaningful contact despite technology, due to time, distance, and cost barriers; and
(d)long-term implications including potential poor academic performance and difficulties with relationships.

The Applicant has been resident in Australia for most of the last 27 years and has an extensive network of close and enduring social links and ties to Australia, as evidenced by the letters of support from his many friends. Those of his friends who are not Australian citizens appear to all have an indefinite right to reside in Australia. If I am wrong in that, it would not materially affect my view as the overwhelming number of witnesses in support of the Applicant are citizens of Australia.[44] I am satisfied that the Applicant’s removal from Australia would have negative consequences for those relationships and ties.
[44] HB1, G17-G19; G22; G27; G30-G31.
I have taken into account that the Applicant did not start offending soon after arriving in Australia and the extended time he has spent contributing positively through his work, entrepreneurship, volunteering, and as a connected member of a small and remote community.
The Applicant submits that the best interests of his two children should outweigh everything else necessarily in the Tribunal’s consideration because ‘ultimately, they're the two people that stand to be the most impacted by this’ decision.
He notes that there are 12 and 14 years, respectively, before they reach adulthood, which is a lot of their childhood for them to have to live without their father physically present in their lives.
The Minister concedes that the Applicant’s family rely on him for emotional, practical and financial support. The Minister accepts that there will be adverse impacts on the Applicant’s immediate family if the Visa were to remain cancelled. While the Minister accepts this consideration weighs in favour of revoking the cancellation of the visa, he contends that it does not outweigh the countervailing considerations.
Overall, I find that this primary consideration weighs very heavily in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
I have identified Miss M and Miss I as the children affected by the decision and have identified, above, the impacts that the Applicant being deported will have on them. In my view, there is no material difference in the way they will be individually affected.
Both parties accept, and I am satisfied, that this consideration must be given weight in favour of revoking the Cancellation Decision.
However, the Applicant submits that this primary consideration should weigh so heavily in favour of revocation of the Cancellation Decision that it outweighs all other considerations weighing against it. The Minister, on the other hand, submits that it should not do so.
Some of the factors I have considered in that regard were dealt with in respect of the last primary consideration, and do not need to be repeated. However, it is necessary to give them separate weight in considering this primary consideration.[45]
[45] See the analogous reasoning in Siale v Minister for Immigration and Citizenship [2025] FCA 608.
I am satisfied that the Applicant’s relationship with the children is strong and enduring.
I have considered the indirect detriment that the Applicant’s conduct has caused the children, through his unavailability to them, and the emotional trauma his incarceration has caused them. However, I am satisfied there is a low risk that will be repeated.
I am satisfied the that the Applicant will play a positive parental role for the children in the future, although Ms Third is also playing a positive parental role.
The views of the children, so far as they can be ascertained, appear to be clearly in favour of them having close contact with, and support from, the Applicant. I give this weight to that extent, despite their young ages.
Having regard to Dr Sheridan’s evidence, and noting the young ages of the children, I am satisfied that the use of technology to maintain contact between the Applicant and the children is insufficient to significantly ameliorate the detriment caused by their physical separation.
I am satisfied that there is no evidence that the children have been, or are at risk of family violence, abuse, or neglect at the hands of the Applicant.
I am satisfied that the decision not to revoke the Cancellation Decision is not in the best interests of the children.
Overall, I give this primary consideration very heavy weight in favour of revocation of the Cancellation Decision.
Expectations of the Australian Community
The fifth primary consideration requires me to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
It also notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in paragraph 8.1.1 as conduct which is considered ‘very seriously’ or as ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Whilst there is a deemed expectation in favour of the Visa remaining cancelled, I must, nonetheless, consider what weight to give to that expectation in the Applicant’s particular circumstances.[46]
[46] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [100], [108]-[109].
The Minister contends that this primary consideration weighs significantly against revocation but accepts that it remains for the Tribunal to determine the appropriate weight ultimately to be given to it. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant says it should be given minimal weight against revocation because of his ties to Australia, low risk of reoffending, and the best interests of his two daughters.
The Applicant has engaged in conduct in breach of community expectations. However, I agree with the Minister’s concession that the risk of him doing so in the future is not at a level properly described as unacceptable.
In weighing this consideration, I am also guided by the principles in paragraph 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
I am satisfied, given the seriousness of the relevant conduct, that this consideration weighs heavily against revoking the Cancellation Decision.
Other considerations
Paragraph 9 of Direction no. 110 states:
1In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
I must consider the legal consequences of the Cancellation Decision on the Applicant, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[47] However, the non-refoulement issue is not engaged here.
[47] Direction No. 110 paragraph 9.1.
There are a range of legal consequences of a decision not to revoke the Cancellation Decision, which include:
(a)the likelihood of him remaining in detention pending his removal to New Zealand;[48]
(b)refusal of any other visa applications he has made and cancellation of other visas he may hold;[49]
(c)a prohibition on the Applicant applying for other visas;[50] and
(d)periods of exclusion and special return criteria may apply.[51]
[48] The Act ss 189, 196, 198.
[49] The Act s 501F.
[50] The Act, s 501E.
[51] The Act, s 503, special return criteria (SRC) 5001.
Generally, if the Applicant’s visa remains cancelled, he remains an unlawful non-citizen.[52] Under s 189, the Applicant must remain detained after his incarceration ends and be removed as soon as reasonably practicable under s 198.[53] On that basis, his ongoing detention should be short-lived if the Cancellation Decision is not revoked, and this does not weigh heavily in favour of revocation.
[52] The Act, s 15.
[53] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313, [112]-[122] followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful.
The legal consequences I have described follow as a matter of statutory construction, and it may be said that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen. However,
Parliament must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in the person’s visa being restored. In that event, the adverse consequences described above will not befall them.[54]
[54] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.
Further. I note that it is the ‘practical realities’ in ‘human terms’ of the legal consequences that are important, rather than the legal consequences in the abstract.[55] I proceed on that basis.
[55] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003, [5] (Feutrill J), cited in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192, [60].
I accept that the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501.
However, that does not mean that they affect all applicants equally.
Notwithstanding that, the Applicant submits that, because he does not seek to engage Australia’s protection obligations, this factor is neutral. The Minister agrees.
Taking those submissions into account, I will not give this consideration any weight in favour of, or against, revoking the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a)-(c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraphs 9.2(1)(a)-(c) are:
The Applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the Applicant in their country.
The Minister submits that the Applicant is 47 years old and in apparently good health. The Minister contends that the Applicant will be able to establish himself and maintain basic living standards, noting he is relatively young, well qualified, entrepreneurial and healthy, and there are no substantial language or cultural barriers. The Minister refers to the Applicant’s remaining family support and the sufficient standards of New Zealand’s social services and health care system, as well as his history of regular work trips to New Zealand in the past.
While accepting that the Applicant may face some impediments in permanently returning to New Zealand, the Minister submits that they are not insurmountable, and that the Tribunal should give this factor only minor weight in favour of revocation.
The Applicant does not submit to the contrary, except to point out the need to ensure that he receives appropriate treatment for his ADHD and that his wellbeing would be best served by being with his children.
I will attribute this consideration with minor weight in favour of revocation of the Cancellation Decision in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 requires the Tribunal to consider this issue, where relevant.
The Applicant submits that over the last two decades he has established several successful businesses in Australia, employing Australians and providing services to the Australian community and that, overall, through these businesses, he has demonstrated that he has contributed positively to the Australian community and economy. The impact on the community if the plantation were to close is a factor weighing in favour of revocation.
The Minister accepts that there should be low weight attributed to this consideration, given the Applicant’s part of an industry in a small rural town and that, while there is no significant evidence in relation to what the impact would be if it was to shut down, it is a matter that the Tribunal should consider and take into account and not simply discount it on the basis that it is not a large or major interest or enterprise.
I assess this consideration as adding modest weight in favour of revoking the cancellation of the Visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
I have then weighed and balanced the relevant considerations in this matter as part of a single evaluation, to determine their relative significance and decide whether I am ultimately satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
I have considered that paragraph 7(2) of the Direction states that the primary consideration in paragraph 8.1 (protection of the Australian community) is ‘generally to be given greater weight than other primary considerations’, and that, otherwise, the relevant ‘primary considerations should generally be given greater weight than the [relevant] other considerations’. This is consistent with the principle at paragraph 5.2(2), that ‘the safety of the Australian community is the highest priority of the Australian government’. However, this does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[56] I have found no reason not to follow those qualified directions in this matter.
[56] Suleiman.
It was necessary, for transparency and due to the need to set this statement of reasons out sequentially to make it more accessible, to deal with each of the mandatory and other listed and otherwise relevant considerations in turn. However, I have considered whether there is another reason why the Cancellation Decision should be revoked in a holistic manner, having regard to all of the relevant considerations (viewed in the manner that paragraph 7 of the Direction says the listed relevant considerations are to be taken into account and weighed, and noting the import of paragraph 5.2).
On that basis, there is no advantage in repeating the mandatory and other considerations and describing the weight and effect I am satisfied they should each be given in my assessment.
Having weighed the considerations in favour of the revocation of the Cancellation Decision and the considerations against revocation in that manner, I am satisfied that the considerations weighing against revocation, being the primary considerations of the protection of the Australian community and the expectations of the Australian community are outweighed by the considerations in favour of revocation, being the primary consideration of the strength, nature and duration of the Applicant’s ties to Australia and the impact on minor children, and the other considerations of the extent of impediments if the Applicant is removed and the impact on Australian business interests.
In summary, having regard to all of the mandatory and otherwise permissible considerations, I am satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct and preferable decision is to set aside the decision under review and substitute a decision that the Cancellation Decision is revoked under s 501CA(4) of the Act.
DECISION
The decision of the delegate of the Respondent dated 10 April 2025 not to revoke the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa under

s 501CA(4) Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is revoked under s 501CA(4) of the Act.

I certify that the preceding 196 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers

.................[SGD].....................................................
Associate
Dated: 18 July 2025

Date of hearing: 26 June 2025

Solicitor for the Applicant: Ms Jasmin Angel, Estrin Saul Lawyers

Solicitor for the Respondent: Ms Madisen Scott, Australian Government Solicitor
ANNEXURE A – APPLICANT’S CRIMINAL HISTORY

Date of conviction Court Date of offence Offence Result

26 April 2024 Carnarvon Magistrates Court 10 November 2020 (Att) Gains benefit by fraud Imprisonment: 4 months (concurrent)

28 March 2024 Perth District Court of Western Australia 1 January 2020 Stealing Imprisonment: 2 years 6 months (cumulative)

28 March 2024 Perth District Court of Western Australia 1 January 2017 Possession of stolen or unlawfully obtained property Imprisonment: 6 months (cumulative)

19 September 2022 Carnarvon Magistrates Court 22 February 2021 Permit unlicensed person to possess firearm/ ammunition Fine: $500; Forfeiture order

15 June 2006 Carnarvon Magistrates Court 27 May 2006 Fail to report accident forthwith Fine: $200

15 June 2006 Carnarvon Magistrates Court 27 May 2006 Careless driving Fine: $300; NZ MDL BU

21 May 2004 Masterton DC (New Zealand) 8 May 2004 Wilful damage Reparation: $45; community work: 60 hours

16 October 1995 Waipukurau DC (New Zealand) 27 August 1995 Operated a vehicle carelessly Convicted and discharged

16 October 1995 Waipukurau DC (New Zealand) 27 August 1995 Drove with excess blood alcohol content blood/breath = 84 Disqualification from driving: 6 months

Date of hearing:	26 June 2025
Solicitor for the Applicant:	Ms Jasmin Angel, Estrin Saul Lawyers
Solicitor for the Respondent:	Ms Madisen Scott, Australian Government Solicitor

Date of conviction	Court	Date of offence	Offence	Result
26 April 2024	Carnarvon Magistrates Court	10 November 2020	(Att) Gains benefit by fraud	Imprisonment: 4 months (concurrent)
28 March 2024	Perth District Court of Western Australia	1 January 2020	Stealing	Imprisonment: 2 years 6 months (cumulative)
28 March 2024	Perth District Court of Western Australia	1 January 2017	Possession of stolen or unlawfully obtained property	Imprisonment: 6 months (cumulative)
19 September 2022	Carnarvon Magistrates Court	22 February 2021	Permit unlicensed person to possess firearm/ ammunition	Fine: $500; Forfeiture order
15 June 2006	Carnarvon Magistrates Court	27 May 2006	Fail to report accident forthwith	Fine: $200
15 June 2006	Carnarvon Magistrates Court	27 May 2006	Careless driving	Fine: $300; NZ MDL BU
21 May 2004	Masterton DC (New Zealand)	8 May 2004	Wilful damage	Reparation: $45; community work: 60 hours
16 October 1995	Waipukurau DC (New Zealand)	27 August 1995	Operated a vehicle carelessly	Convicted and discharged
16 October 1995	Waipukurau DC (New Zealand)	27 August 1995	Drove with excess blood alcohol content blood/breath = 84	Disqualification from driving: 6 months