BGZX and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 197

BGZX and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 197 (11 March 2025)

Applicant:BGZX

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/10956

Tribunal:  Senior Member Clues

Place:Hobart

Date:11 March 2025

Decision:The Tribunal affirms the decision under review.

……………………[SGD]………………………..

Senior Member Clues

Catchwords:

MIGRATION – cancellation of Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa – invited to make representations – substantial criminal record – attempting to possess a commercial quantity of a border controlled drug – non-refoulement obligations – Direction No. 110 – primary and other considerations - protection of the Australian community - strength nature and duration of ties - best interests of minor children - legal consequences - extent of impediments if removed - decision affirmed

Legislation
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)

Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Cargill v Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 50
CRNL v Minister for Immigration and Multicultural Affairs (Migration) [2024] FCA 1482
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
VRRQ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 9
XRGY and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 755

Secondary Materials

Direction No. 110 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (7 June 2024)

Statement of Reasons

1. This is an application for review of a decision made on 17 December 2024 by a delegate of the Respondent (the Minister) to refuse to revoke the mandatory cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa (‘SHEV’). Such cancellation was made pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).

   BACKGROUND

2. The Applicant is a 33-year-old national of Iran.[1] He arrived in Australia in 2012 from Iran by boat.[2] On 9 May 2016, the Applicant made a valid application for a Subclass 790 Safe Haven Enterprise visa (SHEV). On 10 January 2017, a SHEV was granted to the Applicant as the Minister found he was a person in respect of whom Australia has protection obligations. Accordingly, the Minister made a protection finding within the meaning of s 197(5)(a) of the Act. On 9 December 2021, the Applicant made a subsequent valid application for a SHEV. On 16 February 2023, this SHEV application was converted to be an application for a Resolution of Status (Subclass 851) visa (RSV) by operation of reg 2.08G of the Migration Regulations 1994 (Cth) (‘the Regulations’). On 27 June 2024, the Applicant’s SHEV was cancelled under s 501 of the Act, and consequently, his application for an RSV was refused by operation of s 501F of the Act. Irrespective of the Applicant’s RSV being refused under s 501F of the Act, his protection finding within the meaning of s 197C(5)(a) of the Act remains relevant for the purposes of s 197C(3) of the Act. This means that the Applicant will not be involuntarily removed to Iran, unless a decision is made under s 197D that a protection finding would no longer be made.[3]

   [1] HB, 63.

   [2] HB, 121.

   [3] HB, 282-3.

3. On 30 October 2023, the Applicant was convicted of attempting to possess a commercial quantity of a border controlled drug, being methamphetamine. He was sentenced to a term of imprisonment of 4 years, 9 months.[4] This sentence gave rise to the mandatory cancellation of the Applicant’s SHEV by the Minister, which occurred on 27 June 2024 pursuant to s 501(3A) of the Act (‘the cancellation decision’).

   [4] HB, 117.

4. The Applicant was notified of the cancellation decision and invited to make representations to the Minister requesting revocation of the cancellation decision. Within the 28 days prescribed by the Regulations[5] he requested revocation of the cancellation decision and made representations in accordance with the invitation.

   [5] reg 2.52(2)(b).

5. On 17 December 2024, the Minister refused to revoke the cancellation decision (‘the reviewable decision’).[6] The Applicant was notified of the reviewable decision on the following day, by email to his then authorised representative.[7] The Applicant sought review of the reviewable decision on 27 December 2024 in the Administrative Review Tribunal (the Tribunal), within the 9 days prescribed by s 500(6B) of the Act.

   [6] HB, 49.

   [7] HB, 45.

6. The hearing took place in the Tribunal on 27 February 2025. The parties and their legal representatives attended the hearing in person in Sydney. The Senior Member constituted to the matter attended via Microsoft Teams video. The Applicant was conveyed from prison to the hearing room. He gave oral evidence with the assistance of a Persian interpreter. His partner also gave evidence.

7. The following documents were accepted into evidence by consent:

   ·Hearing Book pages 21–976.

   ·Medical history of Applicant’s partner dated 21 February 2025; Hearing Book page 977.

   ·Medical report in relation to the Applicant’s son dated 21 February 2025; Hearing Book page 978.

   ·Letter to Applicant in relation to the granting of a Bridging visa dated 16 September 2024 attaching a Bridging Visa Grant Notice dated 7 August 2024; Hearing Book pages 979–984.

   ·Applicant’s further documents pages 1–60 (including the Applicant’s Statement of Facts, Issues and Contentions (‘SOFIC’) pages 1–18).

   ·Respondent’s amended SOFIC pages 1–21.

   LEGISLATIVE FRAMEWORK

8. Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:

   (a)the person does not pass the character test because of a substantial criminal record; and

   (b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.

9. A person has a substantial criminal record in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). As stated, the Applicant was sentenced to a term of imprisonment of 4 years and 9 months on 30 October 2023.

10. A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under s 501CA(4) of the Act. This provides that:

    (4) The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation; and

    (b) the Minister is satisfied:

    (i)that the person passes the character test (as defined by s 501); or

    (ii) that there is another reason why the original decision should be revoked.

11. As stated on 24 July 2024, the Applicant made the representations required by s 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.

    ISSUES

12. The Applicant has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined by s 501(7)(c). Therefore, the Applicant does not pass the character test and he cannot rely on s 501CA(4)(b)(i) in order to have the mandatory cancellation of his visa revoked.

13. The parties agree and the Tribunal finds that the Applicant does not meet the character test. Accordingly, the issue for the Tribunal to determine is whether pursuant to s 501CA(4)(b)(ii) there is another reason why the cancellation decision should be revoked.

    THE DIRECTION

14. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).

15. The Minister has issued Direction 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’) dated 7 June 2024. It is expressed to apply to the Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.

16. Clause 5.2 of the Direction provides principles to provide a framework to approach decision‑making. These are:

    (1)       Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law‑abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The safety of the Australian community is the highest priority of the Australian Government.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[8]

    [8] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).

17. Clause 7 of the Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3) One or more primary considerations may outweigh other primary considerations.[9]

    [9] Ibid cl 7.

    THE PRIMARY CONSIDIERATIONS

18. The Direction contains five primary considerations, which are:

    (1)  protection of the Australian community from criminal or other serious conduct;

    (2)  whether the conduct engaged in constituted family violence;

    (3)  the strength, nature and duration of ties to Australia;

    (4)  the best interests of minor children in Australia;

    (5)  expectations of the Australian community.[10]

    [10] Ibid cl 8.

    THE OTHER CONSIDERATIONS

19. Clause 9 of the Direction states:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    d)impact on Australian business interests.

    SUMMARY OF THE EVIDENCE

    Judge’s sentencing comments

20. On 30 October 2023, the Applicant appeared before Judge T Smith SC, of the District Court of NSW, Campbelltown, for sentencing in relation to the offence of attempting to possess a commercial quantity of a border controlled drug, being methamphetamine. In her sentencing of the Applicant, the Judge made the following comments:

    ·The offence, which is under the Criminal Code 1995 (Cth), carries a maximum penalty of life imprisonment.[11]

    [11] HB, 69.

    ·The Applicant attempted to take possession of a commercial quantity of a border controlled drug in the form of 10.21 kilograms of pure methamphetamine.[12]

    [12] HB, 70.

    ·The Applicant made repeated contact with the customs broker about the relevant consignment and made arrangements for the consignment to be delivered to an address close to his residence.[13]

    [13] HB, 70.

    ·Police substituted the methamphetamine with a harmless substance and conducted a controlled delivery. During the controlled delivery, the Applicant represented himself as the consignee and took possession of the consignment.[14]

    [14] HB, 70.

    ·It was an agreed fact that there was no evidence that the Applicant knew the precise weight of the border controlled drug or that the Applicant was involved in facilitating the importation of the consignment into Australia.[15]

    [15] HB, 77.

    ·The Applicant was involved in contact with the customs broker on multiple occasions in regard to the relevant package.

    ·The Applicant was reckless as to the fact that the consignment contained a border controlled drug. The degree of recklessness involved was quite high.[16]

    [16] HB, 81.

    ·The amount of pure methamphetamine that the Applicant attempted to possess exceeded 10 kilograms. This is well in excess of the commercial quantity threshold being only 0.75 kilograms.[17]

    [17] HB, 81.

    ·The fact that such a large quantity was involved does highlight the potential deleterious harm that may have been inflicted upon the community if not for the intervention of police.[18]

    [18] HB, 83.

    ·The Applicant’s role was a relatively important one given his repeated contact with the customs broker and the fact that he was the one that nominated the ultimate delivery address for the consignment and that it was him alone that took physical possession of the delivery.[19]

    [19] HB, 83.

    ·The Applicant’s involvement extended over a period of months. It was not a situation where he only became involved a short time prior to the delivery taking place on the spur of the moment with little time for reflection. There was clearly a degree of planning and preparation involved.[20]

    [20] HB, 83-4.

    ·This was an isolated act of offending. The motivation in committing the offence was clearly financial reward.[21]

    [21] HB, 84.

    ·The psychologist records[22] that the Applicant said that he was struggling financially, being out of work due to a workplace injury he had sustained. He was desperate to help his family (which consists of his partner and a young child) and it was out of desperation that he committed the offence.[23]

    [22] HB, 158.

    [23] HB ,84-5.

    ·At the relevant time of the offending the Applicant had also acquired an addiction to pain medication that he had initially been prescribed following his workplace injury and he had also commenced the use of the illicit drug heroin at some point following that workplace incident.[24]

    [24] HB, 85.

    ·In terms of the objective seriousness, the offence is a significant example of an offence of its type.[25]

    [25] HB, 88.

    ·The Applicant had no previous criminal record in Australia and was of good character prior to committing the offence.[26]

    [26] HB, 89.

    ·The Applicant originally came from Iran. His parents and two younger sisters still live in Iran. Whilst he was growing up in Iran it was a volatile and unstable country with his family experiencing ongoing political issues.[27]

    [27] HB, 89.

    ·The Applicant arrived in Australia via boat in 2015. After spending approximately 12 months in a detention centre in South Australia he was released, with him moving to Sydney in 2017. He told the psychologist that he went on to gain employment as a security guard, as an Uber driver and that he then settled into a career in formwork as a carpenter. He reported to the psychologist that within two years he was able to pursue an intimate relationship with his now de facto partner and purchase his first home. In 2019 he suffered a major workplace injury which resulted in serious physical injuries to his left shoulder and lower back. He ended up having to stop work and he suffered significant pain.[28]

    [28] HB, 91.

    ·Workers Compensation reports confirm that in January 2021, the Applicant underwent spinal surgery after which he continued to experience some pain. A medical report dated 24 May 2022 refers to it being unlikely that the Applicant could return to any physical work.[29]

    ·The Sentencing Assessment Report refers to the fact that the Applicant had indicated that prior to his arrest in June 2022 he had been in receipt of workers compensation payments for a back injury incurred during previous employment.[30]

    ·The psychologist opined in his report that the Applicant presented with symptoms consistent with post-traumatic stress disorder (PTSD) and generalised anxiety disorder (GAD).[31]

    ·There is some form of causal connection between the Applicant’s PTSD and GAD and his offending. As a result there is some, although not great, reduction in the Applicant’s moral culpability. The moderation is not great given that there was another factor at play being the Applicant’s use of heroin.[32]

    ·In a letter to the court, the Applicant expressed his regret and apologised for his actions. He said there was no excuse for breaking the law and acknowledged his actions as well as the harm to the community as a result of his conduct.[33] He told the psychologist that he was appalled by his actions and expressed regret with remorse.[34]

    ·Some aspects of the Sentencing Assessment Report ‘jar’ with this. That report refers to a degree of a lack of acknowledgement by the Applicant of the commission of the offence and the impact of his offending behaviour. He demonstrated attitudes of denial and victimisation.[35]

    ·The Applicant expressed an understanding of how illicit substances ‘ruin’ people lives but the Applicant held no accountability for his actions by stating, ‘Not responsible not my drugs’.[36]

    ·It is a concerning feature that the Applicant does not appreciate the impact of his actions. If it had not been for police intercepting the consignment, his actions would have contributed to there eventually being over 10 kilograms of pure methamphetamine ending up in the community.[37]

    ·Whilst in custody the Applicant had been attending Narcotics Anonymous, some remand addiction sessions, the Salvation Army Positive Lifestyle Program, a reading and writing class run by TAFE NSW, and studying a Certificate I in Access to Vocational Pathways. The Applicant retains the support of his partner and has a young son who he wants to be there for and provide a good role model for. Overall, the Applicant has good prospects of rehabilitation and it is unlikely that he will reoffend.[38]

    ·There are great social consequences that follow generally from the movement of large quantities of drugs into Australia and there is a need to discourage others who might be tempted by the prospect of ‘easy money’.[39]

    [29] HB, 91-2.

    [30] HB, 92-3.

    [31] HB, 159 and HB, 95.

    [32] HB, 101.

    [33] HB, 103.

    [34] HB, 163.

    [35] HB ,105.

    [36] HB, 106.

    [37] HB, 107.

    [38] HB, 108-10.

    [39] HB, 112.

    Other documentary evidence

1. The Applicant has been charged with some traffic infringements.

2. In a report from NSW Police Force, InfoLink Unit, reference is made to an incident involving the Applicant and his partner that occurred on 2 January 2022. In summary, the report refers to an altercation that allegedly occurred between the Applicant and his partner. It was alleged that the Applicant pushed and hit his partner. The Applicant was arrested and the police applied for an apprehended domestic violence order (ADVO) for the purpose of protecting the partner from the Applicant. No charges were laid.

3. There are a number of certificates evidencing that the Applicant has attended a significant number of courses during his time in jail including: working safely; access to vocational pathways; reading and writing skills; parenting program; positive lifestyle program; barbering; cannabis awareness; remand addictions sessions; urges and cravings; problem-solving; Narcotics Anonymous; alcohol awareness; strength based practice; the prisoner’s journey; unity in diversity; anger management; emotional well-being; education and employment; domestic abuse; victim awareness; thinking skills; smart recovery; CPR and first aid; guide to safe working practices; core skills in reading and numeracy; learning foundational skills.

4. There are a number of case note reports from the NSW Department of Corrective Services.[40] In summary, they describe the Applicant as a model prisoner. He is well mannered and respectful in his interactions with staff; he abides by prison rules; he follows routine; he is polite and helpful; he has a positive attitude and a quiet personality. He has worked during his time in prison and has demonstrated a good work ethic and willingness to learn new skills.

   [40] HB, 469-82.

5. The Applicant’s neighbour provided a statement dated 24 July 2024 and described the Applicant as a very kind and helpful neighbour. She has noticed that his partner has struggled since the Applicant went to prison.

6. There is a statement from a friend who owns a butcher’s shop dated 24 July 2024. He says he will employ the Applicant when he gets out of prison. He currently employs the Applicant’s partner. He gave her around $10,000 to put towards her mortgage as she was worried, crying and struggling to pay. She was behind in her house payments for six months and the bank said she had to pay, or she would lose the house.

7. There are positive references from two prison chaplains confirming that the Applicant attends chapel services on a regular basis and confirming he has expressed a desire to amend his life and behaviour with a view to never return to prison.

   Applicant’s evidence

8. At the hearing the Applicant gave oral evidence. He also relied upon the following written evidence:

   ·a statement dated 24 July 2024.[41]

   ·a letter to the presiding judge (undated).[42]

   ·a statutory declaration made on 20 February 2025.[43]

   [41] HB, 560-5.

   [42] HB, 566-9.

   [43] Applicant’s further documents lodged 21 February 2025, 19-21.

9. In the Applicant’s statement dated 24 July 2024 he says:

   ·His offending was a mistake, he made a terrible decision, and he takes responsibility for it.

   ·It is his only offence and he will never do it again.

   ·He committed the crime because he needed the money.

   ·He experienced trauma and fear when he lived in Iran and as a refugee.

   ·He suffered a serious workplace injury to his back on 19 April 2019. He developed a dependency on pain medication, and he then started using heroin.

   ·He has not used heroin since being in prison.

   ·After his workplace injury he could no longer work and provide for his family.

   ·He started Uber driving and that is when he met the man who arranged for him to pick up the packages that contained the drugs. He did not know the contents of the packages.

   ·Prior to his offending he bought a house where his partner and son live. He wants to be with them and support them.

   ·His partner will not give him another chance and he wants to be with his son as he grows up. This is the reason he will not reoffend.

   ·He has a friend who owns a butcher shop, who will give him work when he gets out of prison. He is a skilled cabinet-maker. He has a friend who will help him get work as a cabinet-maker.

   ·His partner is struggling mentally and financially. Their son has been diagnosed with autism and requires a lot of care.

   ·His partner has sole responsibility for caring for their son; trying to earn money; trying to work; and trying to look after the house (including paying the mortgage and caring for two dogs).

   ·His partner has told him that if he cannot come home and support her, she might have to leave him as she needs support for herself and their son.

   ·He regrets his offending.

   ·He has worked hard and behaved well in prison. He has been given a job in prison with some responsibility due to his good record.

   ·He has participated in a number of courses to improve and rehabilitate himself.

   ·He is committed to ongoing rehabilitation and will not take drugs again. In prison he has attended Narcotics Anonymous, he has seen a psychologist and he has attended church. He will continue to obtain the same supports on his release from prison.

   ·The only medication he now takes is Panadol and Nurofen for his back pain.

10. In his letter to the Judge the Applicant says:

    ·Apart from his partner and son, he has no family residing in Australia as they all live in Iran, and it has been hard for him to be away from his parents and siblings.

    ·He has tried very hard to turn his life around for the better after being charged with the offence.

    ·He is determined to take any action necessary to become a better version of himself.

11. In his statutory declaration the Applicant says:

    ·He speaks English with his partner and he can read some English, but his English skills are limited.

    ·He confirms that an apprehended domestic violence order (ADVO) was put in place by his partner against him in January 2022. However, there was no charge and conviction in relation to the circumstances giving rise to that ADVO. It was put in place due to an argument he had with his partner. At the time he was not well and under the influence of drugs. His partner was right to contact the police. She is not afraid of him but was upset with him and will not tolerate any bad behaviour of any kind.

    ·The incidents giving rise to the ADVO did not occur exactly as recorded by the police.

12. In addition to his written evidence referred to above the Applicant gave the following oral evidence:

    ·He agreed that his offending put the Australian community in danger and that drugs can destroy families, cause people to lose hope and cause problems in society.

    ·After the Tribunal provided the Applicant with a warning against self-incrimination, he indicated that he did not wish to give oral evidence about the circumstances giving rise to the ADVO being put in place.

    ·After his offending he has learned how to help himself as a result of participating in rehabilitation programs.

    ·His problems that led to his offending arose after his back injury and becoming addicted to morphine.

    ·He will make sure that he does not offend again because he intends to work hard, not make bad friends, not think about the past, and attend Narcotics Anonymous regularly.

    ·He is gradually learning English. He can speak some English, but reading is difficult. He knows that by learning English this will help him express himself, communicate and find jobs.

    ·He has not fully recovered from his back injury but he wants to work operating ‘stop’ signs on construction sites to help move traffic. He would also get a second job to keep occupied and pay the expenses.

    ·He is working whilst in prison.

    ·His son has autism and needs to see doctors. He currently sees his partner and child regularly whilst he is at the Parklea Correctional Centre.

13. Under cross-examination the Applicant:

    ·Agreed that at the time of his offending his life was not going well. He was taking drugs (heroin and self-medicating with pain medication from his workplace injury). He had a partner and young child to care for. He was working as an Uber driver and under financial strain. He committed the crime for potential financial gain to make his life easier. He was in a bad psychological state and not making rational decisions.

    ·His visitors in prison are mainly his partner and son, his friend that owns a butcher shop and a friend of his wife.

    ·He is no longer in contact with the friends he had at the time of his offending. He will not socialise with them again upon his release from prison.

    ·Whilst in prison he has addressed the following problems through rehabilitation courses:

    odrug addiction.

    omental health problems.

    ·When he is released, he will work hard, be with his partner and son and support them.

    ·Upon his release he has been offered jobs in a butcher shop and in a cabinet‑making business. He will continue to attend programs relating to his drug addiction. He understands that working on his psychological issues is an ongoing job. He has identified two doctors near his home who could give him a referral to a psychologist.

    Evidence of Applicant’s partner

14. At the hearing the Applicant’s partner gave oral evidence. She also relied upon the following written evidence:

    ·a statement dated 24 July 2024.[44]

    ·a letter to the presiding judge (undated).[45]

    ·a statutory declaration made on 20 February 2025.[46]

    [44] HB, 175-7.

    [45] HB, 180-2.

    [46] Applicant’s further documents lodged 21 February 2025, 19-21.

15. In her statement dated 24 July 2024, the Applicant’s partner says:

    ·She is the de facto partner of the Applicant.

    ·They have a son together, born in 2021. He has a Resolution of Status visa. She has a Refugee Bridging visa.

    ·Before she was with the Applicant, she was married and suffered domestic violence. Her ex-husband is Australian but lives in Colombia. The Applicant was the flatmate of her ex-husband and herself. Her husband left because he was involved in drugs.

    ·Before the Applicant went to jail, he earned the money for their family. After he went to jail, she had to do everything by herself, including looking after their son who has now been diagnosed with autism level 2, as well as working 3–4 days at their friend’s butcher shop to earn money to pay the mortgage and provide for herself, their son and their two dogs.

    ·Their son misses the Applicant.

    ·When the Applicant got injured in 2019, he was in pain, very depressed and could not work. He was stuck in bed. He wanted to provide for his family, he took a lot of medication from the doctor and he was not in a good state to make decisions.

    ·She tries to visit the Applicant in prison every Sunday. He is remorseful and he understands his responsibility to his family. He had a bad childhood but this experience of going to jail has taught him to value family and being a father.

16. In her letter to the Judge, she says;

    ·Before she got pregnant, she worked at three restaurants. When she had the baby, she had to stop working. She suffered from postpartum depression and started seeing a psychologist whom she is still seeing now.

    ·She has no family in Australia. All she has to support her is the Applicant. He was so good to her until he started having problems with drugs. She believes the Applicant will stay off drugs and be the father she knows he can be.

17. In her statutory declaration she says:

    ·She is going through so many difficulties without the Applicant with her. She must work, pay bills, take their son to doctors and look after their son who suffers from autism and needs constant care.

    ·She is going to do everything she can to support the Applicant when he is released from jail. She will introduce the Applicant to her church and group. She is going to make sure he sees a psychologist.

    ·The Applicant knows that she will not accept him making any mistakes that are going to affect their lives. She will never allow their son or herself to be in this situation again. The Applicant knows this and understands.

18. In her oral evidence the Applicant’s partner said:

    ·She currently sees a psychologist for her mental health problems and she will take the Applicant with her to see that psychologist.

    ·She recognised that he would also need to see a psychologist to talk about his own insecurities and problems.

    ·In relation to the circumstances giving rise to the ADVO, she said that prior to the day the police were called, she and the Applicant had been arguing for a couple of days. He was not acting normal and he was taking more medication than usual. She thought that before he was going out, he was hiding something. When she approached him, he did hit her in the face although she accepted it may have been an accident. At the time she was suffering postpartum depression, she was furious and, in that moment, she was afraid and called the police. Nothing like that had happened before with the Applicant. She had no fear of him before that incident and was not afraid of him after that incident.

    ·In order to pay the expenses, she works with her friend who is a butcher. That friend also assists with providing meat. Her son goes to childcare a couple of days per week. She has been renting out rooms in their house to temporary lodgers and her family is helping with money. She sometimes gets food vouchers from charities.

    ·She has told the Applicant that the conditions of him coming home include staying with their child whilst she works, going to see a doctor and a psychologist and helping with their son’s special needs.

    ·The Applicant does not keep in contact with his friends from the past. The friends he had at the time of his offending have all disappeared since he has been in custody. He does not want to be the person he was back then.

    ·She is very angry with for committing the crime, but she loves him and believes in him.

    ·She is not an Australian citizen, but her son is. She has been receiving special benefits from Centrelink. Her son requires assistance from the National Disability Insurance Scheme (NDIS). Her first application to the NDIS was refused, but she has reapplied.

    ·When she visits the Applicant, the main thing they discuss is their son. He is very good with his son when he is with him.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

19. Clause 8.1 of the Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, particular regard must be given to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law‑abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[47]

    [47] The Direction cl 8.1(1).

20. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[48]

    [48] Ibid cl 8.1(2).

    The nature and seriousness of the conduct

21. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[49]

    [49] Ibid cl 8.1.1(1)(a).

22. Clause 8.1.1(1)(a) of the Direction sets out three categories of offences (without limitation) which are considered ‘very serious’. They are violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children; or acts of family violence.

23. In relation to the circumstances giving rise to the ADVO, the Tribunal makes no finding in relation to the allegations of the Applicant’s reported pushing and hitting of his partner on 2 January 2022 or at any other time. The only finding the Tribunal does make in relation to this is that the police were called to the Applicant’s home on 2 January 2022, prior to this there had been an altercation of some description, and the Applicant’s partner was scared. At that time, the circumstances of both the Applicant and his partner were complex and volatile. The Tribunal does not find that the Applicant has committed an act of family violence.

24. Clause 8.1.1(1)(b) of the Direction outlines the range of conduct (without limitation) that is considered to be ‘serious’. The Tribunal accepts that the Applicant has not engaged in any conduct of the type referred to in this paragraph. The sentencing judge found that the Applicant’s offence was a significant example of an offence of its type and objectively serious.[50] The parties submit that the Applicant’s offence of attempting to possess a commercial quantity of a border controlled drug, being methamphetamine, is serious given the legislature’s recognition of its potential harm by prescribing a maximum penalty of life imprisonment.[51] The Tribunal also finds that the Applicant’s offence is serious.

    [50] HB, 88.

    [51] Minister’s SOFIC, 6 and the Applicant’s SOFIC, 2.

25. Clause 8.1.1(1)(c) of the Direction requires an examination of the sentence imposed on the Applicant as a guide for assessing his offending. The Applicant was sentenced to a term of imprisonment of 4 years, 9 months with a non-parole period of 3 years. A sentence discount of 25% was included for his plea of guilty. It is clear from the term of the sentence and the Judge’s sentencing remarks that whilst she considered the Applicant’s offending was not in the category of the worst case, it was nonetheless serious. Both parties agree that the sentence imposed is substantial and reflects the seriousness of the offence.[52] The Tribunal also makes this finding.

    [52] Minister’s SOFIC, 7 and the Applicant’s SOFIC, 2.

26. Clause 8.1.1(1)(d) of the Direction refers to the impact of the Applicant’s offending on any victims and their family. Due to the detection and intervention by the police, on the facts of this case, the large quantity of drugs was not released into the community. However, as stated by the Judge in her sentencing remarks, there is a need to recognise the inevitable devastation that would have been caused by the relevant large quantity of drugs being in the community.[53] That did not occur in this case and therefore there is no evidence of any impact of the Applicant’s offending on specific victims. However, both parties agree, and the Tribunal finds, that potentially significant harm may have been caused to individuals, families and the Australian community, from a commercial quantity of methamphetamine, had it been successfully imported.[54]

    [53] HB, 113.

    [54] Minister’s SOFIC, 7 and the Applicant’s SOFIC, 2.

27. Clauses 8.1.1(1)(e) and (f) of the Direction look at the frequency of the Applicant’s offending and/or whether there is any trend of increasing seriousness and the cumulative effect of repeated offending. The Tribunal accepts that in this case there is no evidence of this. However, the Tribunal accepts the concession made by the Applicant that the cumulative effect of supplying large quantities of methamphetamine to the community, had the offending succeeded, would have been enormous.[55]

    [55] Applicant’s SOFIC, 2.

1. Clauses 8.1.1(1)(g), (h) and (i) do not apply and are not relevant to this application.

2. The Tribunal has considered in its totality cl 8.1.1(1) of the Direction relating to the nature and seriousness of the Applicant’s conduct. The Tribunal finds that his offending meets the threshold of serious criminal conduct. This consideration weighs heavily against the revocation of the cancellation of the visa.

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

3. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:

   (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

   (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

   a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   i.       information and evidence on the risk of the non­citizen reoffending; and

   ii.      evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken) …

4. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[56] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[57] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[58]

   [56] The Direction, cl 8.1.2(2)(a).

   [57] Ibid cl 8.1.2(2)(b).

   [58] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

5. In the Minister’s SOFIC the following submissions are made at paragraphs 31–34:[59]

   [59] Minister’s SOFIC, 8.

   Paragraph 8.1.2(1) of the Direction introduces the notion of an ‘unacceptable risk’; that is, a risk that the community should not be required to tolerate regardless of other considerations.

   In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, to determine an ‘unacceptable risk’, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.

   103. It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.

   Her Honour provided further guidance in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78]:

   78 The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for assessment about the nature and extent of any risk of further offending.

   The Minister contends that, having regard to the nature of the Applicant's offending, any future offending of a similar nature would have the potential to cause significant physical and psychological injury and/or financial harm to members of the Australian community, noting the widespread impact drugs have on users and the community. The Minister also notes that Judge Smith, the sentencing judge, remarked [HB113]:

   The inevitable devastation that would have been caused by the relevant large quantity of drugs being in the community did not eventuate only because of detection by police, not through any action on behalf of the offender. It is not just about the harm that could have been caused to those who purchase and ingest such drugs but the harm to the community more generally. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that illicit drugs can generally cause.

6. The Applicant acknowledges that if his criminal conduct was repeated it would be capable of causing significant harm to individuals and the broader community.[60] However, the Applicant submits that the factors that contributed to his offending and that may contribute to his risk of reoffending have all been addressed such that he now presents with a low risk of reoffending.

   [60] Applicant’s SOFIC, 3.

7. In her sentencing remarks, the Judge noted that at the time of the Applicant’s offending there were a number of factors that contributed to his offending including:

   ·     Mental health issues: described as PTSD, GAD, feeling helpless and diminished self‑esteem.

   ·     Addiction: to prescription medication.

   ·     Drug use: heroin.

   ·     Back injury: causing an inability to work and poor financial circumstances.

   ·     Limited support and guidance: no family in Australia and feeling alone and vulnerable.

8. On behalf of the Applicant, it is submitted that:

   His mental state has since drastically improved and he is seeking regular treatment for his mental health, drug use and overall offending behaviour. This proactive behaviour is another factor which contributes to the Applicant’s low risk of reoffending and being a risk to the Australian community.[61]

   [61] HB, 126.

9. The Applicant submits that his likelihood of future offending is low given his rehabilitation, ongoing familial and community support, strong employment prospects and an expressed commitment to abide by the law.[62]

   [62] Applicant’s SOFIC, 4.

10. The Tribunal accepts that the Applicant has been working hard in prison to rehabilitate himself and that he has demonstrated some level of insight into and remorse for his offending. However, the Tribunal accepts the following contentions made by the Minister:

    (a) the Applicant’s abstinence from illicit and non-prescription medication has not been tested outside a closely supervised environment.

    (b) there remain concerns regarding the Applicant’s ability to cope with life stressors and continue to abstain from drug use outside of a controlled environment.

    (c) as a result, the Applicant remains at ongoing risk of reoffending.[63]

    [63] Minister’s SOFIC, 10-1.

11. The Tribunal also accepts the Minister’s contention that the Applicant’s family support and employment as an Uber driver did not prevent his offending at the relevant time and, therefore, there remains concerns about whether these factors will be sufficient in mitigating any further offending by the Applicant.[64]

    [64] Minister’s SOFIC, 10.

12. The Applicant’s parents and siblings remain in Iran. His family in Australia comprises his partner and his 3-year-old son. When he is released from prison, he will have the same amount of family and community support that he had at the time of his offending. Further, the Tribunal notes that his partner and son have very high needs. His partner suffers a range of health issues including anxiety/depression and obesity for which she requires treatment.[65] His son also suffers with a number of current medical issues including autism spectrum disorder, level 2; global development delay; severe speech and language disorder; restrictive eating; cow’s milk protein intolerance; food allergies; and haemangiomas (one on left shoulder, two on back).[66] In her statements, the Applicant’s wife is open about her mental health issues and how she and her son are financially reliant upon the Applicant.

    [65] HB, 272-3; 374-6; 977.

    [66] HB, 978.

13. The evidence includes the report prepared by the psychologist referred to in the Judge’s comments on sentencing. That report is dated 14 August 2023.[67] In that report the psychologist says:

    ·The Applicant has not received any psychiatric and psychological treatment of any real significance that would have adequately addressed his chronic mental health conditions and has not received targeted therapy to address his PTSD.

    ·Trauma-focused therapy cannot be delivered in jail, due to the retraumatising environment jail is.

    ·The Applicant requires ongoing and intensive psychological therapy. He has lacked the guidance, support and structure that would enable progress.

    ·Intensive long-term therapy is required to address the self-destructive, reckless and impulsive behaviours that he exhibited.

    [67] HB156-66.

14. When the Applicant is released from prison, he will require treatment for his own physical and mental health conditions and on top of this he will need to support and manage the complex health needs of his partner and son.

15. The Applicant submits that he has ‘secured an offer of lawful employment upon release, providing a legitimate means of financial stability and reducing the risk of reverting to any form of criminal conduct for economic gain’.[68] The evidence includes a short letter from Berry Kitchens dated 8 August 2024 stating:

    This is to confirm that [the Applicant] will be offered an installation job with our company upon his release.[69]

    [68] Applicant’s SOFIC, 4.

    [69] HB, 274.

16. The evidence also contains a statement from the Applicant’s friend who owns a butcher’s store. He says that if the Applicant needs work when he gets out of prison, he will employ him as an assistant butcher.[70]

    [70] HB, 187.

17. In the sentencing comments of the Judge, she noted that the Applicant underwent spinal fusion surgery in 2021; he continued to experience pain and had difficulty with tasks requiring bending or manual labour. She mentions a ‘medical report dated 24 May 2022 refers to it being unlikely that the [Applicant] could return to any physical work’ and, further, that ‘he had been prescribed very strong pain relief medication analgesics for his constant pain and discomfort’.[71]

    [71] HB, 91-2.

18. The ability of the Applicant to work as a kitchen installer or an assistant butcher remains untested, and as there is medical evidence that he has difficulties with tasks requiring bending or manual labour and that it is unlikely he could return to any physical work, there is some doubt as to whether he could work in this type of employment.

19. During his evidence the Applicant admitted that he had not recovered from his back injury and that he continued to suffer from pain. He indicated that he believed he could obtain a job holding the ‘stop signs’ on a construction site to help the traffic moving. His ability to obtain such a job and maintain it is speculative.

20. It is the Tribunal’s view that the factors such as the Applicant’s mental health issues, back injury and limited support and guidance that were identified as contributing to his offending still exist. Whilst the Applicant has taken some steps to address some of the factors, this has been done in the controlled environment of the prison and not in the reality of the Applicant’s life. When the Applicant is released from prison he will be faced with the very real and significant mental and physical health issues suffered by himself, his partner and his child. It is possible that the Applicant will find himself in the same perilous position that he found himself in at the time of his offending.

21. The Tribunal acknowledges that the Applicant has taken positive steps to rehabilitate himself whilst he is in jail particularly in relation to his drug addiction and use. However, as stated, there are other issues that he has been unable to fully address whilst in jail, and therefore the Tribunal finds that there remains a risk that the Applicant will reoffend, and if he does the nature of harm to individuals or the Australian community is serious.

22. As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 1, particularly the safety of the Australian community, the serious nature of the Applicant’s conduct and the risk to the Australian community should the Applicant reoffend, the Tribunal finds the evidence weighs strongly against the Tribunal revoking the cancellation decision.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

23. Clauses 8.2(1) and (2) of the Direction provides:

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)   a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)   there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

24. The Minister submits that the report made by the police following a callout to the home of the Applicant and his partner on 2 January 2022 (referred to above)[72] should be accepted by the Tribunal as evidence that the Applicant has been involved in some way in the perpetration of family violence.

    [72] HB, 639-40.

25. The Minister contends that these police reports are independent and authoritative sources to a conclusion that the Applicant’s reported but not charged and convicted family violence must be found to constitute family violence for the purposes of paragraph 8.2(2)(b) of the Direction. The Minister relies upon the case of CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1482 at [44].[73] In that case, Jackson J stated in relation to paragraph 8.2(2)(b) that ‘the drafters of the direction can be seen to have taken into account the possibility that evidence from other sources may well be less reliable than a guilty verdict in a court of law. They have addressed that by requiring that the sources available are independent and authoritative, and that procedural fairness has been afforded. Provided those criteria are satisfied, the Tribunal must determine that family violence is a relevant criterion and move on to the various evaluations required by sub-paragraph (3).’

    [73] Minister’s SOFIC, 12.

26. As stated above, the Tribunal accepts that the police report is evidence that the police were notified about potential domestic violence involving the Applicant and his partner. There is no evidence of the Applicant actually being involved in the perpetration of family violence and the Tribunal is not prepared to find that the Applicant has been engaged in family violence. At its highest, the evidence from the police reports indicates that the relationship between the Applicant and his partner at that time was for various reasons complex and volatile.

27. The Tribunal finds that primary consideration 2 is not relevant to this case and gives it neutral weight.

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

28. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:

    (1)Decision-makers must consider any impact of the decision on the non‑citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision‑maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision‑makers must have regard to:

    a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

29. The Applicant’s only immediate family member who is an Australian citizen, Australian permanent resident or a person who has a right to remain Australia indefinitely is his 3‑year‑old son. He has no other family in Australia.

30. His de facto partner, who is the mother of their son, is currently in Australia on a Refugee Bridging visa. She has no family in Australia. The Applicant’s parents and two younger siblings reside in Iran. He fled Iran in 2012 because he was involved in a consensual relationship [with a male, Ehsan].[74] That person’s mother informed the police and the authorities have been looking for him.[75] After this, his father distanced himself from him because he brought shame on his family.[76] He currently remains in contact with his family by phone but he cannot return to Iran because he fears he will be tortured and/or killed by Iranian authorities.[77] He went to Malaysia and then to Indonesia and arrived by boat in Adelaide, Australia, in 2015.[78] At that time he was 20 years old.[79]

    [74] HB, 560.

    [75] Applicant’s further documents, 19.

    [76] HB, 157.

    [77] Applicant’s further documents, 19.

    [78] HB, 158.

    [79] Applicant’s SOFIC, 5.

31. He met his current female partner in 2017, and they had a child together in 2021. The Applicant is currently in a committed relationship with his partner. She told the Tribunal that she loves him and believes in him. However, she also made it very clear that she will not tolerate the Applicant’s previous behaviours. She said he could not spend time with the friends he had at the time of his offending, he needs to support her and their child, and he needs to see a doctor and a psychologist. Their son needs a lot of help and treatment. She has her own mental health problems. They need to put their family back together again.

32. The Tribunal accepts that since the Applicant has been in prison, his partner has:

    ·been struggling to look after their child who has been diagnosed with autism.

    ·found it difficult to work to pay the mortgage and provide for all of the expenses for both herself and their child.

    ·suffered postpartum depression after the birth of their child and now suffers from major depressive disorder as well as generalised anxiety disorder.[80]

    [80] HB, 272.

1. The Tribunal accepts that the Applicant’s partner and their son would experience emotional and practical hardship if the Tribunal refused to revoke the cancellation decision.

2. The Applicant has removed himself from the ‘bad friends’ he had prior to his offending. He has had no further contact with them since being incarcerated. He does not have an extensive support network of friends and family in Australia. His friend who owns the butcher shop describes the Applicant as a good person and that his offending was out of character. He says he would employ the Applicant when he gets out of prison. His neighbour describes him as kind and helpful and he has a ‘big heart’. The evidence contains some letters of support for the Applicant from two chaplains[81] and a correctional officer[82] that provide positive assessments of his character. However, the chaplains and the correctional officer will not have any ongoing ties with the Applicant when he is released into the community.

   [81] HB, 190-3.

   [82] Applicant’s further documents lodged 21 February 2025, 46-7.

3. After the Applicant arrived in Australia in 2015, he apparently worked as a security guard and in formwork. He suffered a major workplace accident in 2019 whereby he suffered significant injuries including to his back. He has undergone surgery for his injuries. He received workers compensation as a result of his injuries.[83] After his injuries, he worked as an Uber driver, which is when the offending occurred. He owns a house, where his son and partner reside.

   [83] HB, 92,103, 905, 906.

4. The Applicant has strong ties to his partner and child and lesser ties to the community. His partner has been very clear with him that she will not wait for him forever and if he can’t provide for them then she might look somewhere else.[84] If the Applicant was to lose the support of his partner, he would have very limited support from other members of the Australian community. The Applicant, his partner and their child all have significant health issues. These issues will place the Applicant under significant financial and emotional pressure, which he has not coped with previously. The relationship between the Applicant and his partner has been volatile in the past. Their child will present them with many challenges. Apart from one friend and a neighbour, the Applicant has very little other community support.

   [84] HB, 562.

5. On balance, despite the adverse impact a decision not to revoke the cancellation decision would have on the Applicant’s partner and child, when considered in totality, the strength, nature and duration of the Applicant’s ties to Australia weigh slightly against the revocation of the cancellation decision.

   PRIMARY CONISDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

6. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.

7. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:[85]

   [85] The Direction cl 8.4(4)(a)-(h).

   ·the nature and duration of the relationship between the child and the non‑citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

   ·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;

   ·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

   ·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   ·whether there are other persons who already fulfil a parental role in relation to the child;

   ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   ·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

   ·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct;

   ·the nature and duration of the relationship between the child and the non‑citizen, noting less weight should generally be given where the relationship is non‑parental, and/or there is no existing relationship, and/or there have been long periods of absence, or limited meaningful contact.

8. The Tribunal accepts that the evidence establishes the following:

   ·The Applicant has been involved in his son’s life since his birth.

   ·Despite the fact that the Applicant was incarcerated when his son was one year old and he is now 3 years old, he has continued to be involved in his life, as his partner organises in-person visits in prison when it is practical to do so, and he has regular communication with his son via telephone or video call.

   ·The Applicant’s past offending conduct will have little negative impact on his son’s life, except that the Applicant has not been present to be a father to his son during his time of incarceration.

   ·Due to the fact that the Applicant’s son has autism, level 2, as well as global development delay including a severe speech and language disorder, it is likely that the Applicant’s continued physical presence in his son’s life would mean that he could provide positive hands-on support and care for his son which may benefit his well-being and development.

   ·The Applicant’s partner already fulfils an excellent parenting role in their child’s life. However, it is likely that there would be benefit to their child if the Applicant was available to positively assist his partner in the parenting role.

   ·The Applicant’s partner gave evidence that when their so goes to the park he approaches bearded men because he wants his dad.

   ·There is no evidence that their son is at any risk of being abused or neglected by the Applicant and additionally there is no evidence that their son has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

   ·Due to the lack of broader community and family support, the Applicant’s return to the household to co-parent is important and would be in the best interests of both the Applicant’s son and partner.

9. The Applicant has expressed a strong desire to play a positive parental role in the future with respect to his son. His son is 3 now. His partner has expressed a strong desire for the Applicant to be actively involved in their son’s life on an ongoing basis.

10. The Applicant and the Minister both agree, and the Tribunal so finds, that it is in the best interests of the Applicant’s son that the cancellation of the Applicant’s visa is revoked. Accordingly, this factor weighs strongly in favour of the Tribunal revoking the cancellation decision.

    PRIMARY CONISDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

11. This consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non‑citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow them to enter or remain in Australia.

12. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Tribunal accepts the submissions that the Applicant has not been involved in the offences listed in cl 8.5(2) of the Direction.

13. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[86]

    [86] Cargill and Minister for Immigration and Multicultural Affairs [2025] ARTA 50 at [145].

14. In the Applicant’s SOFIC he acknowledges that his conviction for attempted possession of a commercial quantity of methamphetamine constitutes a serious breach of the Australian community’s expectations and that his offending is serious.[87]

    [87] Applicant’s further documents lodged 21 February 2025, 12.

15. The Applicant played an important role in the importation of a commercial quantity of methamphetamine into Australia. This is a serious offence and it resulted in a significant sentence. The Tribunal finds that the Australian community would expect the Applicant would not hold a visa given this conduct. The Tribunal accepts that the Applicant has undertaken measures to avoid reoffending, he has expressed remorse and he has stated that he is committed to upholding the law in the future. However, the Tribunal finds that these factors do not lessen the weight to be given to the expectations of the Australian community given the seriousness of his offending.

16. In weighing this consideration, the Tribunal is also guided by the principles in cl 5.2 of the Direction. In applying these principles, the Tribunal finds this consideration weighs strongly against the revocation of the cancellation decision.

    OTHER CONSIDERATIONS

    Legal consequences of the decision

17. In the reviewable decision, the Minister sets out the legal consequences of the decision. The consequences are summarised as follows:

    ·The Applicant is a national of Iran and has made claims about the risk of harm he would face if he is removed to Iran. A protection finding has been made in favour of the Applicant and his previous protection finding remains valid.

    ·The Applicant is a person in respect of whom Australia has non‑refoulement obligations which means he will not be removed to Iran, so the feared harm will not occur in the foreseeable future.

    ·In accordance with s 197C(3) of the Act, the protection finding made for the Applicant means that his removal to Iran is neither required nor authorised by s 198. The exceptions under s 197C(3)(c) do not currently apply to the Applicant. As such, a decision not to revoke the cancellation of the Applicant’s visa will not result in his removal in breach of Australia’s non-refoulement obligations.

    ·The legal effect of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that where the statutory duty to remove a non-citizen has arisen, pursuant to s 198, detention of the non‑citizen will no longer be supported by s 189 and s 196, where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, the non-citizen, if in immigration detention, must be released.

    ·When the Applicant finishes his prison sentence, he will be placed in immigration detention. As a result of the protection finding made in his favour, his removal to Iran is not required or authorised and he could only be removed to a safe third country. There is presently no real prospect of this so he would not be subject to indefinite detention pending his removal and would instead be released from detention.

    ·There would be significant restrictions on the Applicant’s ability to apply for another visa. He would be prevented by s 48A from making a further application for a protection visa while he is in the migration zone, unless it is determined under s 48B that s 48A does not apply to him. Apart from a protection visa, the Applicant would not be allowed to make an application for a visa or have one made on his behalf. This means that, without leaving the migration zone, the Applicant would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by reg 2.12AA of the Regulations) for which he could only apply in response to an invitation.[88]

    [88] HB, 63-4.

18. The Applicant submits and the Tribunal agrees that a decision not to revoke the cancellation decision would not result in the removal of the Applicant to Iran, ensuring compliance with Australia’s non-refoulement obligations. Given that his protection finding remains valid, when he is placed in immigration detention pursuant to s 189, he will not be detained indefinitely, as there is currently no real prospect of his removal in the foreseeable future. However, a non-revocation decision will impose significant visa restrictions upon the Applicant, limiting his ability to seek further protection unless Ministerial discretion is exercised.[89]

    [89] Applicant’s further documents, 16.

19. On 5 December 2024, the Migration Amendment Act2024 (Cth) (‘the Amendment Act’) came into operation. As a result of the Amendment Act, where a protection finding has been made in respect of a person for a particular country, and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country. Other provisions in the Amendment Act require the person to cooperate with steps for their removal to a foreign country and the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (which came into operation on 4 December 2024) creates a criminal offence if the person does not cooperate with these steps.[90]

    [90] VRRQ and Minister for Immigration and Multicultural Affairs [2025] ARTA 9 (‘VRRQ’) at [135].

20. The Minister submitted that the question of the Applicant’s removal is to be assessed by reference to whether there is a real prospect of removal to a regional processing country (relevantly Nauru) becoming reasonably practicable when the Applicant becomes detained in immigration detention pursuant to s 189 of the Act.[91]

    [91] Minister’s SOFIC, 18.

21. At the hearing, counsel for both parties made no specific submissions in relation to the Applicant’s potential removal to a third country on the basis that any submissions would be speculative in nature.

22. Nevertheless, as a result of the new legislation, it seems clear that it is the intention of the Australian Government to remove non‑citizens who fail the character test, and whilst it is entirely speculative as to whether or not the Applicant would be removed from Australia to a safe third country, it is now possible that he may be.[92]

    [92] VRRQ at [138].

23. The Tribunal accepts that if it affirms the cancellation decision, the immediate legal consequences would be:

    ·The Applicant will be concerned and anxious about holding a conditional visa and/or the possibility of removal to a third country.

    ·When he is released from prison, he will be placed in immigration detention whilst his visa status is resolved.

    ·Strict visa conditions may be imposed upon him.

24. As a result of the Tribunal’s analysis and evaluation of the evidence that relates to the other consideration of the legal consequences of an affirmation of the refusal decision, including the potential to remove him to a safe third country, the Tribunal finds the evidence weighs slightly in favour of the Tribunal revoking the refusal decision.

    Extent of impediments if removed

25. Clause 9.2 of the Direction provides that taking into account the matters identified in cls 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters are:

    • The Applicant’s age and health;
    • Whether there are substantial language or cultural barriers; and
    • Any social, medical and/or economic support available to the Applicant in their country.

26. The Applicant has a protection finding in his favour and he cannot be removed to Iran. If, for some reason, a decision was made to remove the Applicant to Iran, the Tribunal notes that the Applicant left Iran as an adult when he was 20 years old and therefore he will have retained sufficient familiarity with Iran’s culture and language should he be returned. His parents and siblings reside in Iran and he has stated that he has close relations with all his family members.[93]

    [93] HB, 566.

27. The Applicant still is fearful of returning to Iran. He says that because of his ‘queer identity’, that places him at harm in Iran.[94] The fact that it is highly unlikely that the Applicant would ever be removed to Iran significantly affects the weight that can be given to this consideration.[95]

    [94] HB, 565.

    [95] See XRGY and Minister for Immigration and Multicultural Affairs [2023] AATA 755 at [177] and Respondent’s SOFIC, 19.

28. The Applicant is 33 years of age, and his mental and physical health is not good. He has exhibited symptoms of PTSD and GAD for some time. He suffered a severe injury to his back as a result of a work accident in 2019 and continues to suffer pain and restrictions as a result. He has some difficulty communicating in English. Whether he would face substantial language or cultural barriers or social, medical or economic support would depend upon which country the Applicant may be removed to. In these circumstances, the Tribunal cannot make any finding as to what impediments the Applicant may face if he was to be removed to a third country. The Tribunal finds that at a minimum, the Applicant would face the impediment of being separated from his son and partner.

29. The Tribunal accepts that the uncertainty associated with the Applicant’s visa status and the possibility of his removal to a third country at some time in the future are impediments for him and concludes that this factor weighs slightly in favour of the Tribunal revoking the refusal decision.

    Impact on Australian business interests

30. Clause 9.3 of the Direction states:

    (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

31. The parties agree that this other consideration is not relevant to this review and accordingly the Tribunal gives it neutral weight.

    CONCLUSION

32. The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.

1. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.

2. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[96]

   [96] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

3. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision‑maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together’.[97]

   [97] [2023] FCAFC 138, [23].

4. In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.

5. Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is ‘generally to be given greater weight than other primary considerations’, and that otherwise, the relevant ‘primary considerations should generally be given greater weight than the other considerations’. This is consistent with the principle articulated at cl 5.5(2) that ‘the safety of the Australian community is the highest priority of the Australian Government’. The Tribunal notes that this guidance does not mean that other considerations are secondary to the primary considerations, or that they should always be given less weight.[98]

   [98] MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [142] and Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

6. In this case, the best interests of the Applicant’s minor child and his partner weigh in favour of the Tribunal revoking the cancellation decision. However, the Tribunal has concluded that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those as well as the remaining relevant primary and other considerations in this case.

7. The Applicant does not pass the character test, and having evaluated and weighed all of the considerations, the Tribunal has determined that there is not ‘another reason’ to revoke the cancellation decision. Accordingly, the Tribunal has determined that the reviewable decision should be affirmed.

   DECISION

8. The decision not to revoke the cancellation of Applicant’s SHEV under s 501CA(4) of the Act is affirmed.

120.    I certify that the preceding 119 (one-hundred and nine-teen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Clues

121.    ........................[SGD].........................

122.    Associate

123.    Dated: 11 March 2025

Date(s) of hearing:   27 February 2025

Date final submissions received:   27 February 2025

Solicitors for the Applicant:           Milojkovic Visa & Migration Legal Services

Solicitors for the Respondent:       Hunt & Hunt Lawyers