Ashley and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 875 (20 June 2025)
Applicant:George Joseph Ashley
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/2914
Tribunal:General Member D Cosgrave
Place:Brisbane
Date of Decision: 20 June 2025
Date of Reasons: 1 July 2025
Decision:Applying s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 11 February 2025 and substitutes it with a decision to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
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................[Sgd]...........................
General Member D Cosgrave
Catchwords
MIGRATION – Class TY Subclass 444 Special Category (Temporary) – s 501(2) cancellation of visa – s 501(2) implied temporal limitation – failure to pass good character test – convicted of indecent treatment of child under 16 – family violence – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Queensland Criminal Code 1899 (Qld)
Cases
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION
Mr Ashley seeks review of the Minister’s (the Minister or the Respondent[1]) delegate’s 11 February 2025 decision under s 501(2) of the Migration Act 1958 (Cth) (the Act) to cancel his Class TY Subclass 444 Special Category (Temporary) (the Visa).[2]
[1] Unless the context says otherwise, passages quoted in bold font have been emphasised by the Tribunal.
[2] Exhibit R1: G5, 30.
The hearing was held in Brisbane on 4 and 5 June 2025. Dr Donnelly of counsel represented Mr Ashley. Mr Sypott of counsel, instructed by Ms Tattersall of Minter Ellison Lawyers, represented the Respondent.
This was an expedited matter. On 20 June 2025 the Tribunal met its obligation[3] by providing a short form decision.[4] The Tribunal now gives its reasons for its decision.
[3] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[4] Per Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
THE BACKGROUND FACTS
Mr Ashley is a fifty-two-year-old[5] New Zealand citizen. He first came to Australia when five, left for New Zealand when he was thirteen, then returned to Australia when he was twenty-two to reside here.[6]
[5] Exhibit R1: G6, 50.
[6] Exhibit R1: G23, 161; G24, 161; G18, 145.
On 23 April 2004 His Honour Senior Judge Trafford-Walker of the District Court of Queensland convicted Mr Ashley of seven charges of indecent treatment of children under 16 (the Index Offences).[7] His Honour sentenced Mr Ashley to a term of two years, suspended for two years after serving eight months’ imprisonment, compared to a maximum possible sentence of fourteen years.[8]
[7] Exhibit R1: G7, 57.
[8] Exhibit R1: G7, 57 and s 210(2), Criminal Code Act 1899 (Qld). See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Mr Ashley has also been convicted of other criminal offences in Australia between 2000 and 2017 and criminal and traffic offences in New Zealand between 1990 (when he was an adult) and 1993 (together, the Offending Record) which are considered below.
On 11 February 2025 a delegate of the Respondent exercised s 501(2) of the Act to cancel Mr Ashley’s Visa (the reviewable decision).[9] It appears Mr Ashley received the decision on or after 14 February 2025.[10]
[9] Exhibit R1: G4, 34.
[10] Exhibit R1: G3, 20.
On 1 April 2025 Mr Ashley applied to the Tribunal for a review of the reviewable decision.[11]
[11] Exhibit R1: G2, 5.
THE LEGAL FRAMEWORK
The Tribunal has jurisdiction here because of Section 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act.
The Respondent may cancel a visa under s 501(2)(b) of the Act if they reasonably suspect that the visa holder does not pass “the character test” and the visa holder does not satisfy the Minister that they pass the character test.
Under s 501(6) of the Act a visa holder does not pass the character test if one of the grounds in that subsection is met. The relevant ground here is s 501(6)(a), read with s 501(7)(c) - where the visa holder has a substantial criminal record, which they have if they received a sentence of imprisonment of twelve months or more.
When deciding whether to exercise the discretion in s 501(2), s 499(2A) of the Act requires the decision-maker – here, the Tribunal - to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[12]
[12] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
THE TRIBUNAL’S TASK
In the reviewable decision, the Respondent’s delegate applied s 501(2) and cancelled Mr Ashley’s Visa on the basis that they reasonably suspected that he failed the character test and that Mr Ashley had not satisfied them that he passed the character test.[13]
[13] Migration Act 1958 (Cth) ss 501(2), (6) and (7).
The Tribunal’s task is to assess whether Mr Ashley passes the character test and if he does not, to address whether s 501(2)’s discretion to cancel his Visa should be exercised.
The Tribunal can choose how to conduct its procedures. It can be informal and less technical as long as it fairly considers the matters at hand. [14] Section 52 of the ART Act states that the Tribunal does not have to follow strict evidence rules. Instead, it can decide how to gather information in a way it finds suitable.
[14] Administrative Review Tribunal Act 2024 (Cth), ss 49–50.
Paragraph[15] 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[16]
[15] The Direction’s paragraphs will be capitalised as ‘Paragraphs’ in these reasons.
[16] Direction; [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other Considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. Primary Consideration 1 is generally to be given greater weight than other primary considerations.Paragraph 8 identifies the Primary Considerations and Paragraph 9(1) sets out a non-exhaustive list of Other Considerations.
The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equal or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting.[17] The individual and cumulative weighing process is a matter for the individual decision‑maker exercising the relevant power under the Act.[18]
[17] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57]; Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, 587 [23] (Mortimer J, as her Honour then was).
THE EVIDENCE
The Tribunal received written and oral evidence during the hearing. The exhibit register and the evidence are attached and marked ‘Annexure A’.
Both parties’ Statements of Facts, Issues and Contentions (SFICs)[19] and their replies are included within Annexure A. The Tribunal has considered these SFICs and replies.
[19] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.
The Tribunal heard testimony from Mr Ashley, Ms Rebecca Messer, Mr George Ashley Jr, and Mr Payton Ashley.
Mr Ashley relied on letters of support from Ms Renee Ashley[20], Ms Dakota Ashley[21], Mr George Ashley Jr,[22] Mr Payton Ashley[23], Ms Cheyenne Ashley[24], Ms Seline Ashley[25], Mr Ian Hobbs[26], Ms Linda Hobbs[27] and Ms Janene Hobbs[28].
[20] Exhibit R1: G26.
[21] Exhibit R1: G27.
[22] Exhibit R1: G28.
[23] Exhibit R1: G30.
[24] Exhibit R1: G31.
[25] Exhibit R1: G32.
[26] Exhibit R1: G34.
[27] Exhibit R1: G33.
[28] Exhibit R1: G35.
SECTION 501(2)
The parties raised a precursor issue about whether s 501(2) has an implied temporal limitation.
Dr Donnelly argues that s 501(2) is subject to an implied temporal limitation requiring the Respondent to exercise the cancellation power within a reasonable time after the circumstances giving rise to character concerns become known. This argument draws on His Honour Justice Horan's reasoning in XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553 (XMBQ), where His Honour found that s 501BA of the Act contains an implied temporal limitation requiring exercise “within a reasonable time” after the original decision.
He contends that s 501(2) should be subject to the same implied limitation by analogy, as both provisions are discretionary powers that permit the Respondent to revisit a non-citizen's visa status on character grounds. The legislative purpose of each power is to address the state of affairs created by an earlier administrative act, and the statutory scheme’s coherence depends on the Respondent’s response being temporally connected to that antecedent act.
Dr Donnelly argues that in this case, the delegate's 11 February 2025 decision to cancel Mr Ashley’s visa based on convictions recorded on 23 April 2004 - more than twenty-one years earlier - constitutes an unreasonable delay that severs the causal link between the original circumstances and the proposed cancellation. He submits that this extreme, unexplained delay undermines the Act’s aims of prompt and effective migration control, prejudices Mr Ashley’s settled expectations after decades of lawful residence and renders the exercise of s 501(2) legally unreasonable.
Mr Sypott distinguishes XMBQ from this case. He contends that while Justice Horan found that s 501BA is subject to an implied temporal limitation, this reasoning does not apply to s 501(2). The difference is that unlike s 501(2), s 501BA(2) is not a freestanding visa cancellation power. It arises only after an “original decision” by a delegate or the Tribunal to revoke a mandatory cancellation and is exercised in response to such a decision. The Act expressly provides for that original decision.
In contrast, s 501(2) is not enlivened upon the happening of a specific decision or event or conferred to address the consequences of such an event. While it is premised on someone holding a visa, that is not the basis upon which it is engaged and exercised, nor was it conferred to respond to visa grants. The exercise of s 501(2) is not premised on receiving a sentence of imprisonment or the Respondent becoming aware of that fact—it simply arises when the Respondent reasonably suspects a person does not pass the character test and the person cannot satisfy the Minister otherwise.
Mr Sypott further contends that even if s 501(2) was subject to an implied temporal limitation, any delay would be irrelevant to the Tribunal's task in this case. It is not the Tribunal's role to determine jurisdictional error but rather a court's supervisory function. Dr Donnelly provides no explanation of how alleged delay relates to the character test. The Tribunal's jurisdiction is properly invoked, and any temporal limitation would run from the date that occurred. Any delay in decision-making is not probative of the risk posed by Mr Ashley, as the passage of time since the offending took place may be relevant to recidivism risk, but mere delay in decision-making is irrelevant.
Having considered these contentions, the Tribunal finds that the exercise or activation of s 501(2) can be distinguished from that of s 501BA. Section 501(2) is a freestanding visa cancellation power unlike s 501BA. The period between 2004 and 2025 in this case is a relevant factor to consider in terms of assessing the risk of re-offending but it does not limit s 501(2)’s operation.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1, the Direction provides that the Tribunal should observe that the Australian Government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence.
The Tribunal has considered the nature and seriousness of Mr Ashley’s conduct to date and the pertinent evidence, as well as evaluating the relevant portions of each party’s submissions.
Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to look at two areas of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.
Paragraph 8.1.1: The Nature and Seriousness of Mr Ashley’s Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, when relevant, in considering the nature and seriousness of Mr Ashley’s criminal offending or other conduct to date.
Summarising Mr Sypott’s’ contentions on both limbs of Primary Consideration 1 as the Tribunal understands them:[29]
[29] Exhibit R2: [24] – [25].
(a)As Mr Ashley was convicted on 23 April 2004 of indecent treatment of children under 16 and sentenced to two years imprisonment, he has a substantial criminal record under s 501(6)(a) and 501(7)(c) of the Act.
(b)Paragraph 8.1.1 sets out factors that decision-makers must consider regarding the nature and seriousness of criminal offending or other conduct. The Respondent argues that Mr Ashley’s offending is very serious and that his conduct's nature is so serious that even strong countervailing considerations cannot justify revoking the mandatory visa cancellation under Paragraph 5.2(7).
(c)Several factors support this position. First, the conviction for indecent treatment of children under 16 must be viewed very seriously under Paragraphs 8.1.1(1)(a)(i) and (ii), regardless of the sentence imposed by the court under Paragraph 8.1.1(1)(c). Second, Mr Ashley has engaged in acts of family violence, which must also be viewed very seriously under Paragraph 8.1.1(1)(a)(ii), to the extent such conduct is accepted.
(d)While Mr Ashley’s offending does not appear frequent, there is a trend of increasing seriousness when his Australian criminal history is viewed alongside his New Zealand criminal history, as noted in Paragraphs 8.1.1(1)(e) and (f).
(e)Mr Ashley provided false and misleading information to the Department by failing to disclose his New Zealand offending on his incoming passenger card, contrary to Paragraph 8.1.1(1)(g). Mr Ashley explains this failure as a misunderstanding, suggesting he did not consider disclosure necessary since he served no jail sentence, and attributes the misleading information to nervousness and alcohol consumed on the plane. The Respondent contends Mr Ashley has failed to provide an adequate explanation for this non-disclosure.
The Nature of the Harm
(f)In assessing whether Mr Ashley represents an unacceptable risk of harm to the Australian community, decision-makers must cumulatively consider the nature of the potential harm should the non-citizen engage in further criminal conduct, and the likelihood of such conduct occurring. This likelihood assessment must consider information on reoffending risk and evidence of rehabilitation achieved by the decision time, giving weight to time spent in the community since the most recent offence.
(g)The Respondent contends that the nature of Mr Ashley's offences and the harm that would result if they are repeated are so serious that any risk of repetition is unacceptable under Paragraph 8.1.2(1). Further offending of this kind would likely cause significant physical and psychological harm to Australian community members, along with broader financial and other consequences to justice and health systems. Studies demonstrate that short and long-term outcomes associated with child sexual abuse cover a diverse range of serious consequences.
(h)The Respondent emphasises that physical or psychological harm from sexual offending against children can be serious and long-term due to children's inherent vulnerability and undeveloped emotional maturity, which makes them susceptible to abuse and exploitation by adults. The nature of harm caused to children or their family members is potentially devastating.
(i)Mr Ashley contends he presents no reoffending risk, citing only one offence in the past twenty years. He claims remorse for the Australian offences, which the sentencing judge accepted. However, the Respondent notes his remorse appears limited to the effects on his family and personal circumstances rather than broader understanding of his conduct's impact.
(j)The Respondent submits that the Tribunal cannot have confidence in Mr Ashley's rehabilitation for several reasons. First, his expressions of remorse and insight are inconsistent, as he previously justified the offending by describing it as a drunken “threesome” where he claimed ignorance of the victim's age. Second, the cause of his offending remains unclear and appears to relate to deviant sexual desires, given he told police he knew his actions were wrong at the time. Third, there is no evidence of rehabilitation efforts, and when combined with additional charges faced in 2021, allegations made in July 2022, and his continued access to minors through his children, this suggests ongoing reoffending risk.
(k)The Respondent argues the Tribunal cannot safely conclude from limited evidence that Mr Ashley has developed genuine insight or engaged in psychological assessment or counselling to reduce reoffending risk. Therefore, protection of the Australian community weighs heavily against revocation, noting this consideration should generally receive greater weight than other factors. The Respondent contends that potential harm from future similar offending is so serious that even strong countervailing considerations cannot justify revoking the cancellation.
Summarising Dr Donnelly’s contentions on both limbs of Primary Consideration 1 as the Tribunal understands them:[30]
(a)Mr Ashley was convicted on 23 April 2004 of sexual offences involving children, committed when he was thirty years old. He received a two year prison sentence but served only eight months before the remainder was suspended, indicating that the sentencing judge viewed lengthy custody as unnecessary given his early guilty plea and his rehabilitation prospects. The offending occurred during a single night of poor judgment while babysitting with his teenage partner, involved no violence or ongoing predation, and Mr Ashley cooperated fully with police and showed immediate remorse.
(b)No further sexual offences have occurred in the twenty three years since the incident. His later criminal record consists only of minor property and regulatory matters in 2000 and 2017, resolved by fines. His earlier New Zealand offences from 1989-1993 involved youthful conduct resulting in community penalties, which he mistakenly failed to declare on immigration forms due to confusion about disclosure requirements.
(c)Mr Ashley has demonstrated sustained rehabilitation over two decades. He has maintained stable employment, built strong family relationships as a father of five children, and received compelling character references from his family members describing him as devoted, hardworking, and remorseful. His ex-wife called him “the rock” of the family, and his children view him as a positive role model.
(d)His personal history includes a troubled upbringing involving abuse and neglect, which contributed to his early vulnerability. However, his current circumstances—including family responsibilities, community ties, and twenty three years without reoffending—constitute strong protective factors against future misconduct. The strong family support network and his active parenting role provide both motivation and deterrent against any future offending.
(e)While acknowledging that the historical offending was serious, Dr Donnelly argues that the risk to the community is now negligible given Mr Ashley’s demonstrated rehabilitation, long-term lawful behaviour, and stabilising family influences. The submission concludes that this primary consideration weighs only marginally against Mr Ashley.
[30] Exhibit A1: [13] – [32].
The nature and seriousness of Mr Ashley’s conduct: The Tribunal’s consideration
When assessing the nature and seriousness of Mr Ashley’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·Whether Mr Ashley’s criminal offending and conduct to date belong within the types of crimes or conduct viewed very seriously by the Australian government and the Australian community;[31]
·Whether Mr Ashley’s criminal offending and conduct to date belong within the types of crimes or conduct viewed seriously by the Australian government and the Australian community;[32]
·the sentences imposed for his criminal offending;[33]
·the frequency of his offending and the trend of increasing seriousness;[34]
·the cumulative effect of his repeated offending;[35]
·whether he provided false or misleading information to the Respondent’s department;[36] and
·where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.[37]
[31] Direction; [8.1.1(1)(a)].
[32] Direction; [8.1.1(1)(b)].
[33] Direction; [8.1.1(1)(c)].
[34] Direction; [8.1.1(1)(e)].
[35] Direction; [8.1.1(1)(f)].
[36] Direction [8.1.1(1)(g)].
[37] Direction; [8.1.1(1)(i)].
In view of the evidence and the parties’ submissions, the Tribunal does not consider that Paragraphs 8.1.1(1)(d) and (h) are enlivened.
The nature and seriousness of Mr Ashley’s conduct: The Tribunal’s findings.
Having regard for the framework principles at Paragraph 5.2 and the relevant and applicable aspects of Paragraph 8.1.1 referred to above, the Tribunal finds that after reviewing the evidence:
(a)Acknowledging the submissions and concessions of Dr Donnelly and Mr Sypott, the Tribunal categorises Mr Ashley’s Index Offences as very serious under Paragraph 8.1.1.
(b)Mr Ashley’s offences involving photos of underage children, which led to his 2000 conviction, should be considered as serious under Paragraphs 8.1.1(1)(a)(ii) and Paragraphs 8.1.1(1)(b)(ii).
(c)Mr Ashley’s offence involving possession of a collapsible baton which led to a separate 2000 conviction should not be considered serious based on his uncontested oral evidence.
(d)Mr Ashley’s offence of unauthorised dealing with shop goods which led to his 2017 conviction should not be considered serious on the basis of his uncontested oral evidence.
(e)Imprisonment is the most severe punishment available. His two-year sentence for the Index Offences, suspended for two years after serving eight months’ imprisonment, tempers the crime’s seriousness as the maximum penalty is fourteen years and imprisonment must be imposed unless exceptional circumstances exist.[38]
(f)Mr Ashley has a history of acts that fits within the Direction’s definition of family violence. There is some evidence of his 2004 conduct[39], the fact that his wife applied and received a private domestic violence order (DVO) in 2007 and what the Tribunal will refer to as the 2018 coffee table incident which resulted in Mr Ashley receiving a five year DVO.[40] The evidence regarding the 2018 coffee table incident is contested. There are no subsequent records of family violence conduct beyond 2018.
(g)A jury found Mr Ashley not guilty of certain allegations in 2021. Subsequent police intelligence reports appear never to have been raised with Mr Ashley before these proceedings. The Tribunal places no weight on either of these.
(h)His misrepresentations on his passenger card are concerning but are militated against by his then age, his consumption of alcohol and his understanding of how his New Zealand offending would be classified under Australian law.
(i)His New Zealand offending does not constitute serious offending under the Direction.[41]
[38] Criminal Code Act 1899 (Qld): s 210(1)(a) & (c); Exhibit R1: G10.
[39] Exhibit R3: S2, 57-59 although it is an open question whether the evidence meets the standard prescribed by [8.2(2)(a) and (b).
[40] Exhibit R3: S1, 44.
[41] Exhibit R1: G13.
Assessing the above in totality, the Tribunal finds that Mr Ashley’s offending and other conduct should be viewed overall as very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were Mr Ashley to engage in further criminal or other serious conduct: The Tribunal’s Consideration
This matter engages Paragraphs 8.1.2(1) and (2).
Acknowledging its findings above, the Tribunal must assess whether, if Mr Ashley were to engage in further criminal or serious conduct similar to his Index Offences and his Offending Record.
The nature of the harm to individuals or the Australian community were Mr Ashley to engage in further criminal or other serious conduct: The Tribunal’s finding
The evidence before the Tribunal dealing with Mr Ashley’s Index Offence and his Offending Record supports the Tribunal inferring and finding that if Mr Ashley re-offended in a similar fashion to his Index Offence or his other convictions in the future the possible consequences would include very serious harm to members of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct: The Tribunal’s consideration
Assessing the likelihood or risk of Mr Ashley engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the testimony of Mr Ashley, Ms Messer and Mr Payton Ashley in particular, as well as the documentary evidence before it.
The Tribunal starts the evaluation by asking if there is ‘a’ risk.[42]
[42] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] – [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
Both superior courts and the Tribunal have extensively considered the issues surrounding the assessment of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn.[43]
[43] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
This assessment requires a ‘future‑focused assessment’[44] of the risk an applicant poses should they reoffend, taking into consideration the nature of any harm and its probability. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[45] the High Court held that past actions are legitimate but qualified predictors of future behaviour. The majority observed that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’.[46] The majority also observed there are several factors in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[47]
[44] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211, [90] (Kerr J); see also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).
[45] (1997) 191 CLR 559, 574 (‘Guo’).
[46] Ibid 574-5.
[47] Guo, 575.
The Tribunal must determine the realistic level of risk posed by Mr Ashley as at the time of its decision,[48] with the question being “how serious the risk [is], or whether the risk should be “tolerated”’[49], to the extent that it could be considered an unacceptable risk.[50]
[48] Direction; [8.1.2(2)(b)(ii)].
[49] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[50] Direction; [8.1.2(1)].
When assessing whether Mr Ashley poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal should consider all ‘available information and evidence’ pertaining to his re-offending risk, and the ‘rehabilitation achieved’. [51] In undertaking this task, the Tribunal understands that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. The degree of risk that may be acceptable to the community is “inversely related” to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.[52]
[51] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]– [52]; Roberts, (n 53) [27].
[52] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26], per Senior Member Taylor.
The Tribunal’s consideration of the risk or likelihood of Mr Ashley engaging in further criminal or serious conduct will involve assessing the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Adopting this approach enables the Tribunal to assess the risk and then address Her Honour Justice Mortimer’[53]s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
[53] As Her Honour then was.
The factors that facilitate the risk of re-offending.
It is unclear, beyond acknowledging the consumption of alcohol[54], what drove Mr Ashley to commit the Index Offences. Mr Ashley’s uncontested evidence is that he no longer has issues with alcohol consumption.
The factors that hinder or reduce the risk of re-offending – Rehabilitation, remorse and other factors
[54] Testimony, 4 June.
The Tribunal considers that Mr Ashley has demonstrated[55] and continues to demonstrate considerable insight, behavioural changes and remorse regarding his Index Offences and his Offending Record[56].
[55] Exhibit R1: G7, G8.
[56] Testimony, 4 June.
There are two examples in the evidence of this. The first is his testimony regarding his voluntary decision to remove himself from the family home amidst what appears to have been a toxic relationship with his wife in an effort to reduce the tensions and turmoil in the household that were affecting his children.
The second is his 2017 conviction. The Tribunal must accept the conviction. That said, Mr Ashley’s testimony was that he clearly paid for the drinks he bought and the money he withdrew and then, when confronted by the police some five days later, chose to plead guilty to avoid a court appearance. The Tribunal is struck by his resigned law-abiding approach to this situation, his immediate and almost reflexive guilty plea and the fact that it was the service station worker, rather than Mr Ashley, who three times failed to successfully enter the cash withdrawal correctly and who appears to have failed to charge Mr Ashley for the fuel. Mr Ashley accepted his position and did not contest it. This is not the behaviour of a recidivist.
His uncontested testimony is that he has reduced his alcohol consumption to a shot of tequila every fortnight and an alcoholic drink at birthday parties.
Twenty-three years have elapsed since the Index Offences. Mr Ashley seems not to have taken part in any organised sexual offending rehabilitation programs for the reasons mentioned elsewhere in these reasons. His testimony eloquently showed his remorse, insight and resulting behavioural changes, as well as the evidence surrounding his involvement in large-scale youth taekwondo and cheerleading events without issue or concern being raised.
Even without formal sexual offending rehabilitation, this extended period of twenty-three years without significant offending is a substantial and near-dispositive risk management factor in its own right in view of Guo, especially when considered with the crimogenic fact that male offending declines with age.
Mr Ashley testified that he was not offered enrolment in formal rehabilitation courses while in jail and surmised that it was because he was only in jail for eight months.[57] He made it clear that he would have taken these courses if they had been offered to him.
[57] Testimony, 4 June and Exhibit R3; S2, 98.
The evidence shows that he was a low risk prisoner in jail with his one positive drug test later being clarified and justified as the consequence of prescribed medication.[58]
[58] Exhibit R3: S2.
From the testimony, Mr Ashley’s children and Ms Messer are his immediate family. They collectively are dynamic risk management or protective factors and also constitute the focus or lens that Mr Ashley applies to how he lives his life.
Considered together, the elapsed time, the lack of offending, Mr Ashley’s age and his focus on his family provide an extensive set of static and dynamic risk factors that appear to have successfully hindered and prevented any serious offending since the Index Offences.
The Tribunal’s Risk Analysis and Consideration
The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Ashley’s offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
It has applied Guo, noting that how past events help predict the future depends on:
(c)how likely those events happened,
(d)how often they occurred,
(e)the conditions surrounding them, and
(f)the chance that new events could change the usual pattern.
When assessing if Mr Ashley might re-offend, the Tribunal looked at several factors. It considered his Index Offences, the time between the Index Offences and this hearing and his behaviour during that time. It also considered his extensive expressions and demonstrations of remorse and insight starting from almost immediately after the Index Offences, and his subsequent behavioural changes over the period in question. It also assessed how unacceptable the consequences of his future actions could be for the Australian community.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: The Tribunal’s finding
The Tribunal finds that a risk exists to the Australian community should Mr Ashley commit further offences or engage in other serious conduct.
The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers this re-offending risk to be negligible.
The consequences if Mr Ashley were to re-offend in the same manner as the Index Offence are substantial, and the Australian community’s tolerance for such re-offending is likely negligible. The Tribunal finds that the combination of the negligible risk, Mr Ashley’s protective factors and his awareness of the consequences of any future re-offending overall generate a level of risk that is tolerable.
Conclusion: Primary Consideration 1: Protection of the Australian community
The Tribunal finds that Mr Ashley’ offending is very serious, that the consequences of any such future offending that repeated the Index Offence and related convictions could result in very serious harm to members of the Australian community and that the likelihood of his future reoffending is negligible.
The Tribunal finds that, in its totality, this consideration weighs moderately but not dispositively in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2 emphasises the Government’s serious concern about allowing non-citizens who commit family violence to enter or remain in Australia. It is enlivened by this matter’s facts.
The High Court has held that paragraph 8.2 of a previous but comparable Ministerial Direction[59] ‘involves a field of operation separate’ to the other primary considerations.[60]
[59] Direction 90.
[60] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] (‘Ismail’).
Decision-makers must consider several key factors in the Direction when assessing how serious the family violence is: [61]
(a)how often the violence occurred and whether it worsened over time;
(b)the frequency, trend and cumulative impact of repeated violent acts;
(c)what rehabilitation the person has achieved since their last violent act (including whether they take responsibility, understand how their behaviour affected victims and witnesses like children, and have worked to address underlying causes); and
(d)whether they re-offended after being formally warned by courts, police or other authorities about the consequences of further violence, including potential immigration consequences.
[61] Direction; [8.2(3)]
The Tribunal’s consideration: Family violence committed by the non-citizen
Mr Ashley conceded that he had committed family violence as the Direction defines it.[62]
[62] Direction: [4(1)].
The parties differ on the weight they ascribe to this consideration.
As the Tribunal understands them, the substance of Dr Donnelly’s contention on this Consideration are:[63]
(a)The only evidence suggesting family violence is a 25 June 2018 DVO in favour of Mr Ashley's ex-wife, Ms Hobbs, resulting from the 2018 coffee table incident. The order required Mr Ashley to maintain good behaviour and refrain from domestic violence. It ran for its full five-year term until 24 June 2023, with no breaches alleged and no subsequent orders sought. No other evidence of violence, threats, or intimidation exists in police, medical, or other records.
(b)In regard to the 2018 coffee table incident, Mr Ashley states he returned home from work to find his wife yelling at their sons. When he did not respond, she threw coffee at him, and he knocked over a coffee table while trying to avoid the splash. Police were called by a neighbour, and Mr Ashley accepted the DVO without contesting his wife's version to avoid conflict and maintain access to his children.
(c)The 2018 coffee table incident constitutes an isolated domestic dispute of minimal severity, characterised by the absence of physical assault, repetitive conduct, or behavioural escalation. The evidence demonstrates that this single occurrence, which took place approximately seven years ago, was appropriately managed through limited civil intervention measures and has not recurred during the intervening period.
[63] Exhibit A1: [33] – [39].
Summarising Mr Sypott’s contentions as the Tribunal understands them: [64]
(a)The Direction defines ‘family violence’ as violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful.
(b)This primary consideration applies where there is information or evidence from independent and authoritative sources indicating the non-citizen has perpetrated family violence and has been afforded procedural fairness. The Respondent contends there is evidence available to the Tribunal that Mr Ashley has engaged in repeated conduct constituting family violence.
(c)The Tribunal (differently constituted) has consistently described family violence as abhorrent, calling it “a corrosive blight on the Australian community” that is “plainly abhorrent” and “warps and destroys the healthy bonds that should exist between partners and within families.”
(d)The available evidence demonstrates a pattern of concerning behaviour. In 2004, prison records expressed concern about Mr Ashley's treatment of his partner by phone, noting he “swears and tells her what to do”, was “very aggressive on phone,” and “very argumentative and foul mouthed when making phone calls.”[65] In 2007, Ms Hobbs applied for and was granted a private domestic violence order against Mr Ashley.[66] On 25 June 2018, a five year DVO was made protecting Ms Hobbs.
(e)There is inconsistent evidence regarding the basis for the 2018 DVO and whether Ms Hobbs was a victim or aggressor. Mr Ashley suggests police issued the order upon seeing house damage and he did not dispute his wife's version of events. However, police records indicate that during an argument about daily matters, after coffee splashed on Mr Ashley’s leg, he turned around, began yelling at Ms Hobbs, and flipped over the coffee table, causing spillage and breakage. Police arrived and both parties provided the same version of events. Police observed wet floors and damage that Mr Ashley had cleaned up. When questioned, he admitted his behaviour was unacceptable and acknowledged having regular verbal arguments with Ms Hobbs.
(f)Since Mr Ashley was served with the protection order application and had the opportunity to dispute both the underlying facts and the application itself, the Tribunal should accept the facts set out in the police records over his more recent evidence.
(g)The Respondent argues this primary consideration should weigh heavily in favour of cancelling Mr Ashley’s visa.
[64] Exhibit R2: [33] – [40]
[65] Exhibit R3: S2, 57-59.
[66] Exhibit R3: S1, 44.
Mr Ashley, Mr Ashley Jr and Mr Payton Ashley testified about the 2018 coffee table incident. Payton’s account appears the most consistent and objective of the three witnesses (all of which differ in some respects from the police account[67]).
[67] Exhibit R3: S1, 44.
Payton’s account suggests that Ms Hobbs may have flipped the coffee table towards Mr Ashley causing the coffee cup on it to fly towards Mr Ashley and deposit its contents on him.
Mr Sypott raised concerns about the nature of Payton’s evidence on the basis of Payton’s Attention Deficit Hyperactivity Disorder (ADHD) diagnosis. The Tribunal acknowledges these concerns but notes the research that supports the counter-argument that people with ADHD can also display hyperfocus which may enhance their recall of details.[68] The Tribunal considers and finds that of the four accounts of the coffee table incident (the police report, Mr Ashley’s testimony, Mr Ashley Jr’s testimony and Payton’s testimony), Payton’s is internally consistent, aligned with the established facts of the incident and demonstrated, even after cross-examination, that Payton was well-placed to observe what happened.
[68] See and >
The Tribunal finds that, in its totality, the testimony and evidence of the 2018 coffee table incident is qualified and contested but tends to support Dr Donnelly’s contentions.
The Tribunal finds that the 2004 prison evidence of Mr Ashley’s verbal conduct towards Ms Hobbs constitutes information from an independent and authoritative source[69], but that prior to this hearing Mr Ashley had not been afforded procedural fairness in terms of formally learning of and addressing this information. There is no evidence of this verbal conduct’s impact on Ms Hobbs.
[69] Direction: [8.2(2)(b)].
The Tribunal finds in relation to the 2007 DVO that its existence goes to support arguments regarding the frequency of Mr Ashley’s family violence offending and its cumulative impact. There is insufficient evidence to evaluate this DVO beyond that finding.
Mr Ashley has not committed any further family violence acts since 2018. He appears to the Tribunal to have accepted a disproportionate share of responsibility for the family violence in the Ashley-Hobbs household, attesting to his enhanced insight on family violence. Details of his rehabilitation are set out above. None of his family violence conduct involves physical violence. His actions in leaving the household and separating from Ms Hobbs demonstrate significant insight and understanding into the impact of his behaviour, at significant personal emotional cost.
In relation to Dr Donnelly’s argument on proportionality, while family violence concerns are appropriately accorded serious consideration in visa cancellation decisions, the evidence in this matter describes an isolated domestic dispute of limited severity, characterised by the absence of any physical assaults, repetitive conduct, or behavioural escalation.
The proportionality principle, as established in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 goes to administrative discretion, not factual findings. It requires that administrative decisions demonstrate “evident and intelligible justification" and avoid giving “excessive weight – more than was reasonably necessary” to particular factors, particularly where this would constitute “an obviously disproportionate response.”
The 2018 incident was addressed through civil remedial measures without subsequent recurrence. Under the Direction’s framework, while temporal factors have reduced the mitigating effect compared to previous directions, courts maintain that characterising conduct must be proportionately to actual harm caused, as established in NBMZ v Minister for Immigration and Border Protection[70], where Justice Buchanan found characterisations must not be “out of all proportion” or “exaggerated and unbalanced.”[71]
[70] [2014] FCAFC 38
[71] The High Court decision in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 reinforced that even serious criminal history cannot justify disproportionate restrictions on liberty.
Consistent with the Direction’s requirement for individualised proportionality assessments, it is valid to assess that this factor should be accorded diminished weight when determining whether visa cancellation is justified. The Direction establishes a hierarchy of family violence seriousness, distinguishing between conduct involving physical violence, weapons, or patterns of escalation versus isolated, non-physical domestic disputes.
While maintaining a “zero-tolerance approach to family violence,” the Direction requires assessment of the specific nature and seriousness of conduct rather than the categorical treatment of all family violence as equally serious.
The application of proportionality principles in this matter involves a discretionary consideration of the actual risk to the Australian community’s safety rather than speculative assessments, particularly where the conduct represents an isolated incident of limited severity, managed through appropriate civil intervention and without subsequent recurrence over a substantial (2018 – 2025) period.
The Tribunal’s Findings
The Tribunal finds that Mr Ashley has engaged in family violence. His actions were never physically violent, have not happened again and the evidence supports the Tribunal taking a nuanced and moderate view of his behaviour.
Conclusion: Primary Consideration 2: Family Violence committed by the non-citizen
The Tribunal finds that this consideration weighs only moderately in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This consideration requires the Tribunal must consider how its visa decision will affect Mr Ashley’s immediate family members who are Australian citizens, permanent residents, or have the right to stay in Australia indefinitely. It must also assess the strength and nature of his other ties to the Australian community.
When evaluating his community ties, the Tribunal looks at how long he has lived in Australia (especially if he arrived as a young child). It should give less weight to this time if he started offending soon after arrival and more weight to periods where he contributed positively to the community. The Tribunal also considers the strength, duration and nature of his family or social connections with Australian citizens, permanent residents, and others who have the right to remain in Australia permanently.
Summarising Dr Donnelly’s contentions on this Primary Consideration as the Tribunal reads them:[72]
(a)Mr Ashley arrived in Australia nearly three decades ago as a twenty two year old. His twenty nine years of uninterrupted residence means that every meaningful aspect of his adult life has developed in Australia, directly engaging the Direction's guiding principle of extended tolerance for long-term residents.
(b)His immediate family consists of his de facto partner Rebecca Messer and five children: Dakota, George, Payton, Child A and Child B, all of whom are Australian citizens or permanent residents. His siblings William, Thomas, Richard, Thelea and Betina also live in Australia. His estranged wife Ms Hobbs attests that he has always prioritised family welfare, bearing primary financial responsibility while sharing daily parenting duties, with the family depending on him for emotional support, stability and income.
(c)Dakota and Payton have ADHD. Payton also has a major depressive disorder. They rely on their father's practical guidance for medical treatment, employment and daily challenges. Mr Ashley has fostered productive pathways for his children: Dakota is apprenticed in the mechanical trade, George plans to join the Australian Army, and Payton is building a culinary career. His steady guidance and income have been essential to these developments.
(d)Beyond his immediate family, Mr Ashley maintains close relationships with his in-laws, Linda and Ian Hobbs, providing daily assistance to Mrs Hobbs who has limited mobility. He also stays connected with a large network of aunts, uncles, cousins, nieces and nephews. His de facto partner Ms Messer describes their four year relationship, noting how he left a violent marriage and rebuilt his life. She portrays him as reformed and hardworking, recently appointed as a Health and Safety Officer, acknowledging his past crimes while emphasising his twenty three years without reoffending.
(e)Mr Ashley has worked continuously, spending over three years with Volvo Trucks, and volunteers at his children’s taekwondo and cheerleading events. After twenty nine years of residence and service, his community roots are described as deep and irreplaceable.
(f)The evidence demonstrates that cancelling his Visa would separate him from his long-term de facto partner, deprive five children (including two with documented medical conditions) of their primary carer and breadwinner, disrupt his elderly in-laws who depend on his daily support, and remove a positively engaged community member and employee.
(g)Given the strength, nature and duration of his ties, combined with the severe hardship that would affect his immediate and extended family, this primary consideration strongly argues against cancellation. The submission contends that substantial weight should be given to allowing Mr Ashley to remain, considering his nearly three-decade contribution to Australian family life, workforce participation and community service.
[72] Exhibit A1: [40]– [50].
Summarising Mr Sypott’s contentions on this consideration as the Tribunal understands them:[73]
(a)Mr Ashley’s immediate family in Australia comprises his five children, three brothers, two sisters and his current partner, Rebecca Messer. Evidence suggests his sons suffer from ADHD and depression, and that cancelling the Visa would detrimentally impact their health. His sons have each provided supportive statements describing his hard work, care and the loss his absence would cause the family. However, these statements are in almost identical terms.
(b)Although Ms Hobbs (his estranged wife), his two daughters, and Ms Hobbs' parents provided statements supporting Mr Ashley, these should be viewed with significant caution. The statements are dated, appear to have been drafted before Ms Hobbs and Ms Hobbs separated, and do not address the evidence of his family violence.
(c)Mr Ashley has resided in Australia for approximately thirty years, having last arrived when he was twenty three. He previously spent about eight and half years in Australia as a child between 1979 and 1987, meaning he was present during a portion of his formative years. He states he no longer volunteers at sporting events although he previously did so and has contributed to the Australian community through employment and tax payments, which he expects to continue. However, he has only provided employment history details from 2015 onwards.
(d)He has numerous extended family members in Australia, including his father-in-law, mother-in-law, ten uncles and/or aunts, and 16 nieces and/or nephews.[74] However, he does not appear to have significant contact with his uncles, aunts, nieces or nephews, and it is unclear whether Ms Hobbs' parents remain supportive of him.
(e)The Respondent accepts that this consideration weighs in Mr Ashley’s favour but contends it should not attract significant weight and does not outweigh the heavy weight of the other primary considerations: protection of the Australian community, family violence, and expectations of the Australian community.
[73] Exhibit R2: [41] – [46].
[74] Exhibit A6.
The Tribunal now considers these contentions and the evidence, including the letters of support referenced above, in terms of each subparagraph of Paragraph 8.3. In doing so it benefited from an agreed schedule identifying Mr Ashley’s immediate family (including any minor children), extended family and social and work contacts. This people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[75]
[75] Exhibit R4.
Paragraph 8.3(1)
Mr Ashley’s immediate family are in Australia, as identified in the contentions above as Ms Messer, his children and his siblings. The Tribunal considers that Mr Ashley’s immediate family are either Australian citizens, permanent residents or have the right to remain in Australia indefinitely.
The written and oral evidence show that there are especially close ties between Mr Ashley, his children and Ms Messer. Affirming the reviewable decision would most likely create sustained emotional, financial and practical hardship and adverse psychological impacts on Mr Ashley’s children and the balance of his immediate family, as well as a loss of close physical support.
Ms Messer and Mr Ashley Jr gave testimony that they would likely have to move out of their current accommodation that they share with Mr Ashley as it is his financial contribution that enables them to pay the rent.
Paragraph 8.3(2)(a)
Mr Ashley came to Australia at five. He went back to New Zealand at thirteen.[76] He returned to Australia when he was twenty-two in 1995. The Tribunal finds that he spent a significant portion of his formative years in Australia. His initial Australian offending was in 2000, some five years after this return. The Tribunal finds that he did not begin offending soon after arriving in Australia.
[76] Exhibit R1: G18, 145.
The evidence and testimony support the Tribunal finding that Mr Ashley has worked hard and extensively. He was recently chosen by fellow Volvo workers as a health and safety representative. He also supported his children in state and national competitions for taekwondo and cheerleading, volunteering as a marshal at some of these events. The Tribunal finds that he has materially contributed to the Australian community.
Paragraph 8.3(2)(b)
In evaluating references from family members and friends, the Tribunal is conscious that these can often frame an applicant’s offending in the best possible light. The Tribunal exercises care in evaluating the weight placed on references from family members and friends.
Despite this qualification, the Tribunal acknowledges Mr Ashley’s in-laws’ evidence about the role he plays in his children’s lives.
The Tribunal’s Consideration
Considering the evidence and findings above, the Tribunal assesses that Mr Ashley enjoys substantial and enduring ties to Australia through his immediate family, his work and his volunteering.
The Tribunal’s Findings
Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
Affirming the reviewable decision would greatly affect his immediate family and his friends. His positive contributions to his immediate family and the Australian community also give this finding very strong and substantive weight in favour of setting the reviewable decision aside.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this consideration very strong and substantive weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Mr Ashely’s situation enlivens this Primary Consideration is enlivened as he has two daughters – Child A and Child B - under the age of eighteen.
Summarising Dr Donnelly’s arguments as it understands them:[77]
(a)Under the Direction, decision-makers must prioritise the welfare of any minor child affected by the visa’s cancellation. This obligation aligns with Australia's commitments under the Convention on the Rights of the Child, which protects each child's right to family unity and ongoing parental care.
(b)Mr Ashley’s minor children are his daughters Child A, aged fifteen, and Child B, aged fourteen. Both girls have lived their entire lives in Australia and are currently navigating the middle-to-late stages of schooling, where stability, parental guidance and emotional security are essential.
(c)Correspondence from Child A and Child B dated 18 January 2023[78] reveals their close bond with their father. They describe him as the anchor of their daily routine, driving them to school and extracurricular activities, supporting them at sporting events, helping with homework, and providing constant reassurance during challenges. Their letters express unconditional love and gratitude, emphasising that his presence provides safety, belonging and motivation to excel academically and socially.
(d)If Mr Ashley is removed, the consequences for his daughters would be severe. The girls themselves anticipate profound emotional distress and feelings of abandonment, along with likely declines in academic performance and participation in sports and other activities. The loss of their primary role model and mentor would be equally significant, as no alternative caregiver could replicate the support, encouragement and stability he provides. Given both daughters are at formative ages, depriving them of their father’s daily involvement risks long-term developmental and psychological harm.
(e)Weighing these considerations as required by the Direction, the evidence points decisively toward preserving the family unit in Australia. The best interests of Child A and Child B are served only if their father remains with them. This primary consideration therefore carries substantial and decisive weight against any proposal to cancel Mr Ashley’s visa under s 501(2).
[77] Exhibit A1: [51] – [57].
[78] Exhibit R1: G31 and G32.
Summarising Mr Sypott’s arguments as the Tribunal understands them:[79]
(a)Mr Ashley has identified two minor children who may be affected: Child A and Child B.
(b)Mr Ashley originally stated he had a very good relationship with his children and provided daily emotional, financial and practical support, including taking them to cheerleading commitments. He suggested his removal would have significant adverse consequences for his family. However, more recently he claimed his relationship with his daughters was difficult “due to my ex wife and her whims” and that he was considering seeking full-time care of his daughters as he believed they may have been verbally and emotionally abused. Mr Ashley stated he usually had contact with his daughters every second weekend.
(c)The suggestion that Ms Hobbs is not providing adequate parental care for Child A and Child B appears to be echoed in a statement from Mr Ashley Jr. However, no such references appear in Child A and Child B’s own statements or in their grandparents’ statements. It remains unclear whether any legal proceedings were instituted or are under consideration regarding care arrangements for the children or what the children's current wishes are.
(d)The Minister contends that several factors under Paragraph 8.4(4) apply: Mr Ashley appears to have had periods of absence or reduced contact in the children's lives; given the nature of his previous offending, his conduct may negatively affect the children; and Ms Hobbs currently fulfils a parental role for the children.
(e)To the extent the Tribunal may consider this consideration weighs against exercising discretion to refuse the visa, the Respondent contends it does so only to a limited extent.
[79] Exhibit R2: [56] – [61].
When deciding whether to cancel a visa, the Tribunal must consider how this will affect any relevant minor children. If there are multiple children involved, each child's situation must be looked at separately since their circumstances may be different.[80]
[80] Direction: Paragraph 8.4 (3)
The Tribunal must examine eight key areas: how close the relationship is between the child and the person facing visa cancellation (giving less importance to relationships that aren't parent-child, where there is no real relationship, or where contact has been limited or restricted by courts); whether the person is likely to be a good parent in the future, considering how long until the child turns 18 and any court orders about custody or visitation; how the person's past behaviour and likely future behaviour might affect the child; what would happen to the child if they were separated from this person, including whether they could still stay in touch in other ways; whether other people are already acting as parents to the child; what the child thinks about the situation (giving more weight to older, more mature children's opinions); any evidence that the person has committed family violence against the child or abused or neglected them in any way; and any evidence that the child has been hurt physically or emotionally because of the person's actions.[81]
[81] Direction: Paragraph 8.4 (4)
The assessment mandates consideration of eight specified factors: the nature and duration of the relationship between the child and the non-citizen (with reduced weight accorded to non-parental relationships, absence of existing relationships, or limited meaningful contact including court-restricted access); the extent to which the non-citizen is likely to fulfill a positive parental role in future, considering the time remaining until the child reaches eighteen years and any existing court orders regarding parental access and care arrangements; the impact of the non-citizen's prior and likely future conduct on the child, particularly where such conduct may have negative consequences; the probable effects of separation from the non-citizen, taking into account alternative means of maintaining contact; the presence of other persons already fulfilling parental roles; any known views expressed by the child, weighted according to their age and maturity; evidence of family violence perpetration, abuse, or neglect by the non-citizen toward the child; and evidence of physical or emotional trauma suffered by the child as a result of the non-citizen's conduct.
This structured approach ensures that children's interests receive appropriate consideration while recognising that such interests may be compromised where the non-citizen's conduct poses risks to the child's welfare or safety.
The Tribunal finds:
(a)The minor children are between three and four years away from adulthood.
(b)The evidence suggests that until recently the relationship between Mr Ashley and each of the two children was close but has become more distant in recent times due to the state of the relationship between Mr Ashley and Ms Hobbs and the limitations imposed by all communications outside of visits by Mr Ashley being restricted to Ms Hobb’s mobile telephone.
(c)Subject to this constraint, the evidence suggests that based on past events, Mr Ashley is likely to play a significant and positive parental and paternal role in the future for each of Child A and Child B.
(d)There is no evidence showing that Mr Ashley’s past conduct and any likely future conduct has had an impact on either of Child A or Child B, whether negative or positive.
(e)The 2023 statements by each of Child A and Child B suggest that the likely effect of any separation if Mr Ashley is removed from Australia would be negative and deny both daughters the benefit of direct contact with their male parent. Remote communications would appear to be a poor substitute here.
(f)Ms Hobbs fulfils the primary parental role, but Mr Ashley clearly has a role in view of his current fortnightly visits.
(g)The views of Child A and Child before the Tribunal are contained in their 2023 support letters.[82]
(h)There is no evidence before the Tribunal to establish that either child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by Mr Ashley, or has otherwise been abused or neglected by Mr Ashley in any way, whether physically, sexually or mentally; or has suffered or experienced any physical or emotional trauma arising from Mr Ashley’s conduct
[82] Exhibit R1: G31, G32.
On balance, each child’s interests would be best served by setting the reviewable decision aside.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration supports setting the reviewable decision aside and carries moderate weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) is a deeming provision. It relies on Paragraph 8.5(4) and sets a community standard for the outcomes of serious behaviour or an unacceptable risk of such behaviour.
Paragraph 8.5(2) extends the threshold to certain specified types of conduct.
Paragraph 8.5(3) states that the expectations of the Australian community apply even if the non-citizen does not pose a clear risk of physical harm.
Paragraph 8.5(4) supports the Full Court of the Australian Federal Court’s reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
FYBR explains that the 'deemed community expectation' usually leads to visa cancellation. However, it also states that the decision-maker must decide if acting on this expectation is appropriate in each case.[83] [84]
[83] Ibid at 473 [75]– [76] (Charlesworth J).
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36, the High Court clarified how the Tribunal is to apply this Primary Consideration. The Tribunal is not required to attribute knowledge of an applicant's personal circumstances to the hypothetical Australian community. Instead, it should rely on Australian Government's views as articulated in the Direction without independently assessing community expectations in the particular case. The Court emphasised that decision-makers should not attempt to infer what community expectations would be with knowledge of the delegate's understanding of an applicant's personal circumstances but rather should apply the relevant norm described as community expectations as set out in the Government's stated views, which is then to be weighed against other relevant matters as required by the Direction's balancing framework.
Observing Paragraph 8.5’s norm, the Tribunal has also considered the guidance informed by the principles set out in Paragraphs 5.2(1) to (8) of the Direction.
Subparagraph 5.2(4) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, s 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay,’ as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas.
The Tribunal’s consideration
Mr Ashley’s Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. This Visa is not classed as a limited stay visa and consequently Subparagraph 5.2(5)’s low tolerance does not apply. [85]
[85] Clause 155.211, Migration Regulations 1994.
Mr Ashley has resided here for approximately thirty-six years, divided between his formative years and his adult years. This period of time enlivens Paragraph 5.2(6)’s higher tolerance.
The Tribunal has found Mr Ashley’s Index Offences to be very serious. This finding outweighs the higher tolerances acknowledged here, noting that Paragraph 8.5(2) states that the Australian community expects the Australian government should cancel the visas of non-citizens through these kinds of conduct.[86]
[86] Direction; [8.5(2)(a) & (c)].
The Tribunal is satisfied that Mr Ashley has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the Direction’s tolerances assessed above.
Dr Donnelly concedes that this consideration weighs in favour of affirming the reviewable decision:[87]
(a)Under the Direction, the Australian community expects non-citizens to observe Australian laws. When a person has engaged in serious wrongdoing or poses an unacceptable risk of doing so, visa refusal or cancellation is ordinarily anticipated by the community.
(b)This response is warranted even where no ongoing danger can be measured, if the individual's past conduct breaches community standards. Examples include family violence, forced marriage offences, serious crimes against women, children or other vulnerable people (whether violent, sexual or financial), offences targeting government officials, involvement in human trafficking, people smuggling, war crimes, slavery or worker exploitation. Decision-makers must accept these expectations as stated by the Government without needing to independently assess public opinion in particular cases.
(c)Mr Ashley has committed criminal offences in Australia. In doing so, he has contravened the normative principle that non-citizens must comply with Australian law and consequently breached the Australian community's expectations.
(d)This primary consideration weighs against Mr Ashley.
[87] Exhibit A1: [58] - [61].
Mr Sypott contends that that the expectations of the Australian community apply regardless of whether Mr Ashley poses a measurable risk of causing physical harm to the Australian community.[88]
(a)Paragraph 8.5 outlines that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct breaching this expectation, or where there is an unacceptable risk they may do so, the Australian community normally expects the Government to prevent such non-citizens from entering or remaining in Australia.
(b)Paragraph 8.5 provides the Government's view of Australian community expectations rather than requiring the Tribunal to independently determine community expectations based on Mr Ashley's circumstances or evidence. The Tribunal must give effect to the stated “norm” rather than conduct its own assessment of community views, as established in relevant Federal Court decisions.
(c)The Respondent contends this primary consideration weighs heavily in favour of exercising discretion to cancel Mr Ashley’s Visa. Specifically, Mr Ashley has committed offences involving family violence and sexual crimes which raise serious character concerns under Paragraphs 8.5(2)(a) and (c). Through his offending, he has put members of the Australian community at risk.
(d)These community expectations apply regardless of whether Mr Ashley poses a measurable risk of causing physical harm to the Australian community, as specified in paragraphs 8.5(3) and 5.2(4).
[88] Exhibit R2: [53] – [55].
After applying the normative expectation and evaluating the evidence against Paragraph 8.5’s qualifications, the Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:
(a)Their status in Australia is unlawful.
(b)They are subject to being detained or removed.
(c)Any other visas they hold or any visa applications they have made are cancelled or refused.
(d)They cannot apply for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[89]
(e)Periods of exclusion from Australia and special return criteria may apply.
[89] Section 501E of the Act. Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
Mr Sypott contends that:[90]
(a)There is no claim or evidence suggesting that Mr Ashley engages Australia's non-refoulement obligations (prohibiting return to persecution).
(b)While Mr Ashley has not raised this, it is accepted that if the Tribunal affirms the decision under review, several consequences follow: he will remain an unlawful non-citizen; be liable for removal from Australia as soon as reasonably practicable under s 189 and 198 of the Act; will not be able to apply for another visa while in Australia (except for a protection visa) under s 501E of the Act; and would be unable to satisfy special return criteria in clause 5001(c) of Schedule 5 to the Migration Regulations 1994, which applies to most visa grants.
(c)The Respondent accepts that the Tribunal must consider these legal consequences. However, the Respondent submits that Mr Ashley is not subject to a protection finding, nor has he raised any non-refoulement claims before the delegate or the Tribunal. In circumstances where his removal and exclusion from Australia are the statutory scheme’s intended purposes, and where these purposes underlie the Direction’s considerations, the Tribunal should afford this consideration neutral weight.
[90] Exhibit R2: [56] – [58].
Dr Donnelly contends that:[91]
(a)Section 501E of the Act creates a general prohibition on lodging further visa applications while remaining in Australia if the Respondent has previously refused or cancelled a person's visa under ss 501, 501A, 501B or 501BA and that decision has not been set aside or revoked.
(b)The prohibition applies even if the earlier application was made on the person's behalf or they were unaware of it, such as due to being a minor or having mental impairment. It covers refusals or cancellations that are deemed to occur by operation of the Act or regulations.
(c)Exceptions exist which allow applications for protection visas or other prescribed visas, applications where the Respondent has personally granted a permanent visa beforehand, or applications for visas that would otherwise be barred once the person has already received a protection or other excepted visa.
(d)If removed from Australia, Mr Ashley will generally be permanently barred from returning under clause 5001 of Schedule 5 to the Migration Regulations 1994. Mr Ashley has been in immigration detention since 31 March 2025. An adverse decision would result in his continued deprivation of liberty until removal from Australia, which represents a consequence of considerable gravity.
(e)These serious adverse legal consequences if the Tribunal affirms the decision constitute another consideration that weighs in Mr Ashley's favour.
[91] Exhibit A1: [62] – [66]
The Tribunal finds that:
(a)Mr Ashley has not specifically contended that he engages Australia’s protection obligations, nor does the information before the Tribunal clearly indicate that non-refoulement obligations arise in relation to him, as opposed to raising a concern about the risk of harm.
(b)It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia.
(c)Mr Ashley’s Visa was not a protection visa, and he is not barred from applying for a protection visa.
The Tribunal’s finding
The Tribunal finds that in these circumstances this Other Consideration supports setting the reviewable decision aside.
The Tribunal further finds that this consideration carries slight weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Summarising Dr Donnelly’s contentions as the Tribunal comprehends them:[92]
(a)Mr Ashley is fifty two years old. He faces several significant health issues that would complicate resettlement in New Zealand. He suffered a serious workplace accident in 2013 resulting in permanent injuries to his right arm and wrist, including nerve damage and bone fractures requiring surgery. These injuries led to a shortened right arm and ongoing pain. He also has a history of spinal problems, including bulging discs that required surgery, and continues to experience lower back pain and leg symptoms. Additionally, he sustained a prior head injury from an eighty kilogram steel object falling on him.
(b)He has been diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and depression, both managed with medication. While he maintains he is fit to work, the cumulative impact of his physical and psychological conditions suggests that re-establishing himself in a new environment would be extremely difficult, particularly at his age and without his current Australian family support network.
(c)Although some medical reports are dated, they demonstrate the seriousness of his impairments. Despite the lack of recent formal assessments, evidence supports that he continues to experience ongoing physical and emotional limitations.
(d)Returning to New Zealand after decades of absence would likely be destabilising, particularly given his concerns about cultural disconnection and reintegration. The distinct cultural influence of Māori traditions in New Zealand differs significantly from the Australian context he has known since early childhood, requiring considerable adjustment by him.
(e)Although English is the primary language in New Zealand and some similarities exist between the countries, Mr Ashley has had minimal contact with New Zealand since 1995 and maintains no close community ties. While his mother and two siblings live there, their ability to provide practical or emotional support remains uncertain.
(f)Mr Ashley holds serious concerns about finding employment in New Zealand due to his age, health issues, and criminal history. While health and welfare services are technically available to him as a New Zealand citizen, their accessibility and quality may not match what he receives in Australia. He would need to establish new relationships with healthcare providers and support networks, which may prove especially difficult given his mental health vulnerabilities.
(g)Although he could theoretically access basic services in New Zealand, the personal and practical obstacles he faces—combined with his long absence from the country and the severance of strong family and community ties in Australia—mean that impediments to his reintegration would be substantial. These factors weigh significantly in his favour as another consideration supporting his case.
[92] Exhibit A1: [67] – [75].
Summarising Mr Sypott’s contentions as the Tribunal apprehends them:[93]
(a)Mr Ashley contends that removal to New Zealand would result in his daughters growing up in a toxic environment and that he would have problems finding work and re-establishing himself. He also points to several health issues: a damaged nerve in his elbow that may require surgery, previous surgery for multiple disc bulges in his lower spine, depression first diagnosed in 2007, and COPD. Mr Ashley suggests he would suffer "lifelong emotional and psychological trauma as a result of being permanently excluded from Australia." He does have family in New Zealand, including his mother, a brother and a sister.
(b)The Respondent contends that while Mr Ashley may face difficulty establishing himself in New Zealand due to his prolonged residence in Australia, this would only present short-term hardship and would not preclude resettlement. The Respondent notes that Mr Ashley would not face any cultural barriers, would have the same access to social, medical, and economic support as other citizens, and accepts that he is fit to work.
[93] Exhibit R2: [59] – [61].
The Tribunal’s consideration
Paragraph 9.2 requires the Tribunal to assess and consider the extent of any impediments that Mr Ashley, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
The phrase “(in the context of what is generally available to other citizens of that country)” in Paragraph 9.2(1) is of significance because it establishes the measure by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Ashley is fifty-two.
Based on the evidence presented to the Tribunal, Mr Ashley has only moderate physical health because of past work injuries. He has or has had depression or depressive symptoms since 2007, has COPD and has received significant work injuries to his back and both arms (left elbow and ulnar nerve, right arm), requiring surgery and resulting in permanent impairments. He testified that he suffers bronchitis or a chest infection every winter at present.
In assessing Mr Ashley’s depression claims, the Tribunal applies Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[94]. If he is removed to New Zealand, it is likely that his depressive symptoms or his depression will be exacerbated. In turn, this health-related issue would likely adversely affect his efforts to achieve basic living standards there and potentially complicate his physical health issues such as COPD.
[94] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126, see [12] – [14].
The Tribunal considers, based in part on its assessment of Primary Consideration 3, that Mr Ashley would probably face a substantial and overwhelming loss of emotional and psychological support due to separation from his immediate family if he is removed to New Zealand.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Ashley, based on his testimony and the evidence before the Tribunal, would not face any significant linguistic difficulties if he returned to New Zealand.
The Tribunal, applying the same reasoning, considers that Mr Ashley is unlikely to face any major cultural issues.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
Dr Donnelly stated in his closing submission that the Maori cultural adjustment argument raised in Mr Ashley’s SFIC is not pressed.
Mr Ashley testified that his mother and siblings live in or near New Plymouth and that is where he would likely stay and seek support if removed to New Zealand. The Tribunal notes that New Plymouth is over four hours’ travel from either Auckland or Wellington. It does not appear to be a large city.
The evidence indicates that Mr Ashley will likely have relatively less social, medical and economic support in New Zealand than in Australia. This is especially valid if he lives in New Plymouth. While this is partly due to differences between the two countries and outside the Tribunal’s consideration, it is also partly due to his physical and mental condition and the medical supports these likely require. Consequently, the Tribunal considers that Mr Ashley may be confronted by significant impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other New Zealand citizens.
Mr Ashley does not appear to have any active personal social networks available to him in New Zealand apart from his elderly mother and his siblings.
The Tribunal’s finding
The Tribunal has considered above the extent of any impediments that Mr Ashley, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
After evaluating each of the three subparagraphs of this Other Consideration (b) and the relevant evidence, the Tribunal finds that it is likely, if Mr Ashley is returned to New Zealand, that he would face substantial emotional, psychological, practical and financial hardships, as well as increased risks to both his physical and mental health. He is likely to face difficulties in establishing social, medical and economic support – difficulties that may be exacerbated by his mental health related issues. He is unlikely to face any language or cultural barriers.
The Tribunal notes the testimony that, if removed, he will be unable to prosecute his workers’ compensation claim for his latest work injury. This would reduce the financial resources available to him if removed to New Zealand.
The Tribunal finds that this Other Consideration carries very substantial weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
Dr Donnelly’s closing submissions contended that there is some marginal weight raised against this consideration because of Mr Ashley’s role as a health and safety representative at Volvo Australia in the context of Australia’s need for a skilled workforce and the consequential need for Volvo Australia to find a replacement if Mr Ashley is removed.
In response Mr Sypott questioned whether this contention is sufficient to be taken into account.
The Tribunal finds that this consideration is enlivened and carries very slight weight towards setting the reviewable decision aside.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1)).[95]
Dr Donnelly’s closing submissions contended that Mr Ashley may be a family violence victim and that the Tribunal should consider this factor.
Mr Sypott contended that the Tribunal should not be satisfied on the evidence that Mr Ashley is a family violence victim and that this additional consideration should not be given any weight.
The Tribunal considers that the evidence, such as it is, for this claim comes from the hearsay evidence of Ms Messer and to a lesser extent, the testimony of Mr Ashley Junior and Mr Payton Ashley. There are no independent or authoritative accounts. It is also an open question whether removal to New Zealand would take Mr Ashley away from the threat of family violence against him.
The Tribunal finds that this additional consideration attracts no weight.
THE TRIBUNAL’S FINDINGS
Having regard to the Direction and to the totality of the evidence, the Tribunal holds the view that it should not exercise the power conferred by s501(2) to cancel Mr Ashleys visa.
In reaching this conclusion, the Tribunal had regard to the Direction’s considerations. With regard to the weight the Tribunal has allocated to each of these Primary and Other Considerations, it finds as follows.
Primary Consideration 1 weighs moderately but not dispositively in favour of affirming the reviewable decision.
Primary Consideration 2 weighs only moderately in favour of affirming the reviewable decision.
Primary Consideration 3 carries very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 4 carries moderate weight towards setting the reviewable decision aside.
Primary Consideration 5 weighs in favour of affirming the reviewable decision.
Other Consideration (a) carries a slight weight in favour of setting the reviewable decision aside.
Other Consideration (b) carries very substantial weight in favour of setting the reviewable decision aside.
Other Consideration (c) carries a very slight weight in favour of setting the reviewable decision aside.
CONCLUSION
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations, the Other Considerations and the Additional Consideration.
The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations as set out above, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[96]
The Direction states that Primary Consideration 1 is “generally” to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word “generally” preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake[97], Aksu[98], and Lu[99] cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.
[97] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[98] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
The Tribunal has determined and found that, in this particular matter, the greater weight that can generally be given to protecting the Australian community is not applicable in light of the circumstances, the passage of time between the Index Offence and the reviewable decision and the other evidence.
After conducting a comprehensive, holistic and integrated assessment of all the specific findings and weights attributed to each relevant primary consideration and other considerations, and additional considerations in this case, the Tribunal concluded that it should not exercise s 501(2)’s discretion.
DECISION
Applying s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 11 February 2025 and substitutes it with a decision to revoke the cancellation of Mr Ashley’s Class TY Subclass 444 Special Category (Temporary) visa.
Date(s) of hearing: 4 & 5 June 2025 Advocate for the Applicant: Dr Donnelly. Advocate for the Respondent: Mr Sypott instructed by Ms Tattersall of Minter Ellison Lawyers. ANNEXURE A: EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
G-Documents
R
Various
28/2/2025
R2
Respondent’s SFIC
R
28/5/2025
28/5/2025
R3
Respondent’s Supplementary Documents
R
Various
28/5/2025
R4
Respondent’s Supplementary Submissions
R
3/6/2025
3/6/2025
APPLICANT SUBMISSIONS
A1
Applicant’s SFIC
A
16/5/2025
16/5/2025
A2
Statement of George Ashley Junior
A
16/5/2025
16/5/2025
A3
Statement of Payton James Ashley
A
16/5/2025
16/5/2025
A4
Statement of Rebecca Messer
A
16/5/2025
16/5/2025
A5
Applicant’s Reply
A
Various
30/5/2025
A6
Agreed Statement of Immediate and Extended Family
A
5/6/2025
5/6/2025
- AGLC
- Ashley and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 875
- Case
- [2025] ARTA 875
- Decision Date
CaseChat Overview and Summary
The Tribunal considered the arguments presented by both parties and the relevant evidence. It found that s 501(2) does not contain an implied temporal limitation, distinguishing it from s 501BA. The Tribunal also concluded that Mr. Ashley's criminal history, including his conviction for indecent treatment of a child under 16, warranted a finding that he had failed the character test. The Tribunal weighed the Primary Considerations under Direction 110 and found that the protection of the Australian community from criminal or other serious conduct was of paramount importance. The Tribunal assessed the nature and seriousness of Mr. Ashley's conduct to date, his risk of reoffending, and the potential harm to the Australian community if he were to commit further offences. The Tribunal was not satisfied that Mr. Ashley had sufficiently demonstrated genuine insight or engaged in rehabilitation efforts to mitigate his risk of reoffending.
The Tribunal concluded that the Minister's decision to cancel Mr. Ashley's visa under s 501(2) was justified. The Tribunal found that the protection of the Australian community from the potential harm caused by Mr. Ashley's criminal conduct outweighed other considerations. As a result, the Tribunal upheld the Minister's decision to cancel Mr. Ashley's visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Having considered these contentions, the Tribunal finds that the exercise or activation of s 501(2) can be distinguished from that of s 501BA. Section 501(2) is a freestanding visa cancellation power unlike s 501BA. The period between 2004 and 2025 in this case is a relevant factor to consider in terms of assessing the risk of re-offending but it does not limit s 501(2)’s operation.THE PRIMARY CONSIDERATIONS PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT When considering this Primary Consideration 1, the Direction provides that the Tribunal should observe that the Australian Government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence. The Tribunal has considered the nature and seriousness of Mr Ashley’s conduct to date and the pertinent evidence, as well as evaluating the relevant portions of each party’s submissions. Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to look at two areas of inquiry:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.Paragraph 8.1.1: The Nature and Seriousness of Mr Ashley’s Conduct to Date Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, when relevant, in considering the nature and seriousness of Mr Ashley’s criminal offending or other conduct to date. Summarising Mr Sypott’s’ contentions on both limbs of Primary Consideration 1 as the Tribunal understands them:[29][29] Exhibit R2: [24] – [25].(a)As Mr Ashley was convicted on 23 April 2004 of indecent treatment of children under 16 and sentenced to two years imprisonment, he has a substantial criminal record under s 501(6)(a) and 501(7)(c) of the Act.(b)Paragraph 8.1.1 sets out factors that decision-makers must consider regarding the nature and seriousness of criminal offending or other conduct. The Respondent argues that Mr Ashley’s offending is very serious and that his conduct's nature is so serious that even strong countervailing considerations cannot justify revoking the mandatory visa cancellation under Paragraph 5.2(7).(c)Several factors support this position. First, the conviction for indecent treatment of children under 16 must be viewed very seriously under Paragraphs 8.1.1(1)(a)(i) and (ii), regardless of the sentence imposed by the court under Paragraph 8.1.1(1)(c). Second, Mr Ashley has engaged in acts of family violence, which must also be viewed very seriously under Paragraph 8.1.1(1)(a)(ii), to the extent such conduct is accepted.(d)While Mr Ashley’s offending does not appear frequent, there is a trend of increasing seriousness when his Australian criminal history is viewed alongside his New Zealand criminal history, as noted in Paragraphs 8.1.1(1)(e) and (f).(e)Mr Ashley provided false and misleading information to the Department by failing to disclose his New Zealand offending on his incoming passenger card, contrary to Paragraph 8.1.1(1)(g). Mr Ashley explains this failure as a misunderstanding, suggesting he did not consider disclosure necessary since he served no jail sentence, and attributes the misleading information to nervousness and alcohol consumed on the plane. The Respondent contends Mr Ashley has failed to provide an adequate explanation for this non-disclosure.The Nature of the Harm(f)In assessing whether Mr Ashley represents an unacceptable risk of harm to the Australian community, decision-makers must cumulatively consider the nature of the potential harm should the non-citizen engage in further criminal conduct, and the likelihood of such conduct occurring. This likelihood assessment must consider information on reoffending risk and evidence of rehabilitation achieved by the decision time, giving weight to time spent in the community since the most recent offence.(g)The Respondent contends that the nature of Mr Ashley's offences and the harm that would result if they are repeated are so serious that any risk of repetition is unacceptable under Paragraph 8.1.2(1). Further offending of this kind would likely cause significant physical and psychological harm to Australian community members, along with broader financial and other consequences to justice and health systems. Studies demonstrate that short and long-term outcomes associated with child sexual abuse cover a diverse range of serious consequences.(h)The Respondent emphasises that physical or psychological harm from sexual offending against children can be serious and long-term due to children's inherent vulnerability and undeveloped emotional maturity, which makes them susceptible to abuse and exploitation by adults. The nature of harm caused to children or their family members is potentially devastating.(i)Mr Ashley contends he presents no reoffending risk, citing only one offence in the past twenty years. He claims remorse for the Australian offences, which the sentencing judge accepted. However, the Respondent notes his remorse appears limited to the effects on his family and personal circumstances rather than broader understanding of his conduct's impact.(j)The Respondent submits that the Tribunal cannot have confidence in Mr Ashley's rehabilitation for several reasons. First, his expressions of remorse and insight are inconsistent, as he previously justified the offending by describing it as a drunken “threesome” where he claimed ignorance of the victim's age. Second, the cause of his offending remains unclear and appears to relate to deviant sexual desires, given he told police he knew his actions were wrong at the time. Third, there is no evidence of rehabilitation efforts, and when combined with additional charges faced in 2021, allegations made in July 2022, and his continued access to minors through his children, this suggests ongoing reoffending risk.(k)The Respondent argues the Tribunal cannot safely conclude from limited evidence that Mr Ashley has developed genuine insight or engaged in psychological assessment or counselling to reduce reoffending risk. Therefore, protection of the Australian community weighs heavily against revocation, noting this consideration should generally receive greater weight than other factors. The Respondent contends that potential harm from future similar offending is so serious that even strong countervailing considerations cannot justify revoking the cancellation.