BHTM and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2074
•13 October 2025
BHTM and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2074 (13 October 2025)
Applicant:BHTM
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4500
Tribunal:Senior Member M Bourke
Place:Melbourne
Date:13 October 2025
Decision:The Tribunal affirms the decision under review
____________[SGD]__________________
Catchwords: Migration Decision of a delegate not to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) Visa – cancellation under s.501(3A) Migration Act – character test – substantial criminal record – serious offending – Direction 110 – Primary considerations – other considerations – decision not to revoke cancellation affirmed
Legislation:
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases:
Siale v MIAC [2025] FCA 608
Singh v MICMSMA [2024] FCA 1273
CRNL v MICMA [2023] FCAFC 138
R v Jones (1999) 108 A Crime R 50Secondary Materials:
Direction 110 - Migration Act 1958Direction under s.499 Migration Act - Visa refusal and cancellations under s.501; revocation of mandatory cancellation under s.501CA
Statement of Reasons
The Applicant seeks a review of a decision by a delegate of the Minister dated 29 July 2025 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. The visa was mandatorily cancelled under s.501(3A) of the Migration Act (the Act) on 3 February 2025. The Applicant had sought revocation of the cancellation decision.
The Applicant through his representative concedes that he does not pass the character test as defined in s.501 of the Act, and submits there is another reason why the cancellation decision should be revoked.
The character test
The Applicant was convicted in the District Court of Western Australia at Perth on 22 November 2024 of one count of distributed child exploitation material and was sentenced to 12 months imprisonment. This sentence was recorded as the head sentence and the Applicant was recorded as eligible for parole. The Applicant was also convicted and sentenced on three charges of possessed child exploitation material, and for each charge he was sentenced to a period of imprisonment for eight months to be served concurrently with the head sentence.[1]
[1] Certificate of Final Outcome, District Court of Western Australia, Hearing Bundle, pg 51 - 54
The character test is defined in s.501(6) of the Act. Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record as defined by subsection (7). Section 501(7) of the Act states that for the purposes of the character test, a person has a substantial criminal record if (c) the person has been sentenced to a term of imprisonment of 12 months or more.
I am satisfied based on the oral and written submissions of the Applicant’s representative, that the Applicant concedes he was sentenced to a term of imprisonment of 12 months for the charge of distributed child exploitation material on 22 November 2024 in the District Court of Western Australia, and on this basis that the Applicant concedes he has a substantial criminal record as defined in s.501(7)(c).
I am satisfied that the Applicant does not pass the character test, as he is a person who has a substantial criminal record within the meaning of s.501(6)(a) and s.501(7)(c).
The Tribunal must then consider whether there is another reason why the cancellation of the Applicant’s visa should be revoked. These considerations must be made under the guidelines set in Direction 110.
Warning in relation to self-incrimination
The Applicant, through his representative, indicated that the orders made in the District Court of Western Australia on 22 November 2024 were not disputed. Further the Applicant through his representative, stated that the facts contained in the Amended Statement of Material Facts[2] were correct. The Respondent’s representative put questions to the Applicant during cross-examination that exceeded the boundaries of the charges for which the Applicant was convicted and exceeded the content of the Amended Statement of Material Facts. In relation to these questions the Tribunal gave the Applicant the warning in relation to the right to remain silent, and the Applicant received advice accordingly from his representative in the hearing.
[2] amended Statement of Material Facts, District Court of Western Australia, hearing bundle, pg 176
Background circumstances of the applicant relevant to the review
I am satisfied based on the information before the Tribunal that the Applicant is a citizen of New Zealand and arrived in Australia in 2013 aged 22 years. I am satisfied that the Applicant spent his childhood and teenage years in New Zealand. I am satisfied the Applicant completed his schooling in New Zealand, and accept his evidence that although he proceeded through secondary school to year 12, he did not pass secondary school years after year nine.
I accept that the Applicant has a commendable employment history since his arrival in Australia. I accept that the Applicant had a period of unemployment after he was injured on the way to work in 2023, and is not employed currently due to the fact of being incarcerated. I am satisfied that outside of these two exceptions, the Applicant has been employed, or employed and studying whilst in Australia. I am satisfied the Applicant completed Certificate III in a health care assistance course, and started but did not complete a Diploma in nursing. I am satisfied that the Applicant has been employed in three states, Queensland, New South Wales and Western Australia.
I have considered that the Department of Justice, Corrective Services, offender notes[3] records the Applicant has no health issues and can access the gym and oval during allocated times. This was recorded upon the Applicant’s arrival to Acacia prison on 10 December 2024. I am satisfied however that the Applicant does have some health issues, which may not impede the Applicant accessing the gym and oval within the prison system, but impact his life and require ongoing treatment or supervision. I am satisfied based on the evidence provided by the Applicant, most of which are listed in the Applicant’s Statement of Facts, Issues and Contentions[4], that he is diagnosed and treated for diabetes, asthma, obesity, anxiety, nocturnal seizures (epilepsy) and high blood pressure or hypertension.
[3] Department of Justice, corrective services, offender notes, hearing bundle pages 261 to 266 at pg 265
[4] Applicant’s Statement of Facts, Issues and Contentions, dated 24 September 2025, pg 5, para 38
I am satisfied that the Applicant’s biological father resides in New Zealand, and the Applicant has no ongoing contact with him. I am satisfied that the Applicant has not maintained contact with school friends in New Zealand or other family members.
I am satisfied that the Applicant did not have a healthy relationship with his stepfather (his mother’s previous partner).
I am satisfied that the Applicant’s mother, sister, brother and current stepfather all reside in Queensland. I accept the Applicant has a close and strong bond with his mother. I accept the Applicant has been living independently from the family, and was residing in a different state at the time of the offences. I accept that the Applicant returned to Queensland on a regular basis to visit his family.
I am satisfied that at the time of the offences the Applicant had been injured when the scooter he was riding on the way to work was hit by a bus. I am satisfied the Applicant sustained physical injuries to his back and was unable to work. I am satisfied the Applicant was practically housebound, socially isolated and in significant pain. I accept the Applicant returned to his previous employment (that he had held prior to the accident) on a limited shift basis for a short period of time near the end of his recovery period, and then found alternative employment. I accept the Applicant was employed up until he resigned shortly before he was sentenced to a term of imprisonment.
The Applicant’s mother, sister and stepfather provided letters of support at the time the Applicant applied to the Department for revocation of the cancellation of his visa. The Applicant’s mother, sister, brother and stepfather provided further letters of support to the Tribunal in relation to this review.
I am satisfied that the Applicant’s mother and stepfather intend to provide accommodation in the form of having the Applicant in their home, and financial and emotional support to the Applicant upon his release from prison, if the Applicant is permitted to remain in Australia. I am satisfied based on the evidence of the Applicant that both his mother and his sister are on his phone list in prison, and he has regular contact with them. I accept the Applicant has recently applied to include his brother on that phone list.
I am satisfied that the Applicant’s mother has visited the Applicant on two occasions in Western Australia, the most recent being two weeks in November 2024 before the District Court hearing when the Applicant was imprisoned.
The offences
Based on the information contained in the Amended Statement of Material Facts, which the Applicant through his representative and in his oral evidence stated was correct, the charge of distributed child exploitation material involved the Applicant sending the undercover operative a video of a pre-pubescent female child stripping completely nude, showing her anus and vagina to the camera and later touching and spreading her own vagina.[5]
[5] Amended Statement of Material Facts, para 5, hearing bundle pg 177
The police attended the Applicant’s home on 19 October 2023, and located three mobile telephones and a laptop. The Applicant was interviewed, and admitted to possession of child exploitation material, and stated that he downloaded the material from an application and through a website, that he considered he had an addiction to the material, that he downloaded the material a couple of times a day and had been doing so since February 2023.[6]
[6] Ibid pg 177 - 178
The Amended Statement of Material Facts provides an analysis of the images and videos found on the Applicant’s phone, some within a secure folder. The images on the phone included three images of female victims aged under 10 engaged in a sexual activity with an adult male, and seven images of female victims aged under 10 posing semi naked. The images in the secure folder included a mix of adult pornographic material and child exploitation material including 17 images and 62 videos classified as category one (a prepubescent or child in early puberty perceived to be under the age of 13 involved in sexual activity or a clear focus on genitals or anus). These images and videos included female children aged three or four years engaged in sexual activity, including oral and vaginal penetration by adult males and objects, and in some of the videos the children are restrained and appear visibly upset and distressed. There were 36 images and another video classified as category two in the secure folder. There were a total of 63 images and 63 videos of child exploitation material found in the possession of the Applicant to which the three charges of possession of child exploitation material related.
In the sentencing remarks the judge refers to the fact he had reviewed the material which is the subject of count one (the distribution of the child exploitation material) and a sample of the material which is the subject of counts 2 to 4 (the possession of the child exploitation material). The judge refers to the material which is relevant to count two and describes the images as “frankly, shocking”[7], as it involved very small children engaged in sexual activity with males, which the judge noted would have been physically and emotionally painful for the child.[8] In the sentencing remarks, the judge records that the distribution of child exploitation material is the most serious as it indicates that the Applicant is willing to share the material, and willing to increase the prospects of more children becoming involved in the exploitation.[9]
[7] Sentencing Remarks, District Court of Western Australia, 22 November 2024, pg 3
[8] Ibid
[9] Ibid pg 4
I have considered the judgement in Siale v MIAC[10] which similarly involved an applicant whose visa was cancelled under s.501(3A) of the Act and the cancellation decision was subsequently not revoked under s.501CA(4). In that matter the applicant did not pass the character test because he had a substantial criminal record; the applicant in that matter had been sentenced to a base sentence of 15 months imprisonment, and had concurrent terms of less than 12 month in relation to other offences (some of which related to family violence matters), and had prior offending. The Court in its judgement held that the Tribunal had erred in its assessment of the nature and seriousness of the applicant’s other offences and past offending (excluding the family violence matters) because the Tribunal had referred to the types of offences rather than assessing and looking into the underlying offending conduct. I am satisfied based on this judgement that it is appropriate for the Tribunal in this matter to consider and assess the conduct of the Applicant in relation to the three charges of possessed child exploitation material, as well as the charge of distributed child exploitation material, even though the latter charge was the only matter that attracted the penalty of 12 months imprisonment. When assessing the nature and seriousness of the criminal offending, it is proper that the Tribunal analyses the scope of the conduct of the Applicant.
[10] Siale v MIAC [2025] FCA 608
Principles of Direction 110
As stated earlier in this decision record, I am satisfied that the Applicant does not pass the character test, and therefore I must consider whether or not there are other reasons to revoke the cancellation of the Applicant’s visa. Direction 110 applies to the consideration of refusals and cancellations of visas under s.501 of the Act. Direction 110 sets out a framework of considerations which must be taken into account by the Tribunal in its role as decision-maker in a review involving the task of deciding whether to revoke a mandatory cancellation of a visa under s.501 of the Act.
The principles in Direction 110 set out Australia’s sovereign right to determine whether non-citizens who are of character concern have the right to remain in, or enter, Australia. The principles in the Direction state that the safety of the Australian community is the highest priority of the Australian government. The principles state that non-citizens who have engaged in, or who engage in, criminal or other serious conduct should expect to be denied the privilege of coming to Australia, or to forfeit the privilege of staying in Australia. The principles in the Direction set out that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or to cancel their visas, if they engage in conduct 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.
The principles in the Direction state that 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, or contributing to, the Australian community only for a short period of time. The principles state that with respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life or from a very young age.
Decision-makers must take into account the primary and other considerations relevant to each individual case. The principles set out that 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. 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 a visa or revoking a mandatory cancellation.
Considerations to be taken into account under Direction 110
There are five primary considerations, and primary consideration 8.1 is generally to be given greater weight than the other primary considerations. The primary considerations should generally be given greater weight than the other considerations. The Direction lists three other considerations but the list is not exhaustive.
Primary consideration 8.1 protection of the Australian community from criminal or other serious conduct
When considering the protection of the Australian community, as decision-maker I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian government. I must give consideration to the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
Both the Respondent and the Applicant in their Statements of Facts, Issues and Contentions[11] and in oral submissions, state that the consideration of the protection of the Australian community weighs against finding in favour of revocation of cancellation of the Applicant’s visa.
[11] Respondent's Updated Statement of Facts, Issues and Contentions dated 25 September 2025, para 23 – 39 & Applicants Statement of Facts, Issues and Contentions dated 24 September 2025, para 15 - 25
The Respondent contends that the nature and seriousness of the offending involving sexual offences on children, and the risk to the Australian community should the applicant commit further offences is so serious that the risk is unacceptable.
The submissions of the Applicant concede that the nature of the harm that would be caused should the Applicant reoffend would be serious, but that the risk of the Applicant reoffending is low and therefore for this reason less weight should be given to the primary consideration of the protection of the Australian community.
I accept the submission of the Respondent that the possession or distribution of child exploitation material is not a victimless crime.[12] I am satisfied that the offences for which the Applicant was convicted are sexual crimes, and crimes of a sexual nature against children, and these are matters I must have regard to in considering the nature and seriousness of the Applicant’s criminal offending pursuant to 8.1.1(1)(a) (i) and (ii) of the Direction.
[12] R v Jones (1999) 108 A Crime R 50
I am satisfied based on the information contained in the Amended Statement of Material Facts[13] (as described in paragraph 21 of this decision record) that the Applicant had distributed a video of a prepubescent child, and had a further 63 images and 63 videos of child exploitation material in his possession at the time of his arrest.
[13] Amended Statement of Material Facts, Hearing Bundle, para 13 - 21
I am satisfied that the Applicant did not have any prior convictions. I am satisfied based on the Amended Statement of Material Facts[14] that the Applicant stated he had been downloading the child exploitation material since February 2023, and that he downloaded the material a couple of times a day. I accept that the Applicant described his behaviour as an addiction. I am satisfied that the Applicant had accessed the child exploitation material on a frequent basis between February and October 2023.
[14] Ibid, para 11
On the basis of the information in the Amended Statement of Material Facts, which the Applicant states is correct (and as set out in paragraph 21 of this decision record) and the description of the judge in the sentencing remarks[15] , I am satisfied that the offences of both distribution and possession of child exploitation material by the Applicant are serious. The judge refers to the seriousness of the offending. The children in the images and the videos are very young, some of the children only three or four years old, some are restrained, some are distressed. In the sentencing remarks[16] the judge refers to the inevitable harm resulting from the sexual activity and anything else in the videos that has been caused to the children.
[15] Sentencing Remarks, District Court of Western Australia, 22 November 2024, pg 2 - 4
[16] Ibid pg 3
I am satisfied that the most serious offence is the charge of distributed child exploitation material which related to one act, and this charge attracted the penalty of 12 months imprisonment. Because of this term of imprisonment the Applicant does not pass the character test. I have applied the principles espoused in the judgement of Siale V MIAC[17] and I have considered not only the type of offences, but the scope, conduct and frequency of the possession of child exploitation material for which the Applicant was also charged, convicted and sentenced at the same time, when assessing the nature and seriousness of the Applicant’s conduct.
[17] Siale v MIAC [2025] FCA 608
I am satisfied that the conduct of the Applicant in relation to the charge of distributed child exploitation material is the most serious as it indicated the Applicant was willing to share the material, and increase the likelihood of more children becoming involved in child exploitation. I am satisfied the overall conduct of the Applicant was serious because it involved on his own admission accessing and downloading images and videos, in order to possess the child exploitation material, on a daily basis over a period of nine months from February to October 2023, and that child exploitation material involved material of very young children involved in sexual activity or sexual poses, and the images included on occasion of children that were either restrained or distressed. As recorded in the sentencing remarks the harm to these children is inevitable. The conduct is serious because of its frequency, because of the nature of the harm to the children involved and because it involved sexual offending on children.
I am satisfied that the Applicant participated in a rehabilitation course prior to being sentenced, which involved 30 weeks of both individual counselling and group sessions. There is no report available to the Tribunal of the benefit to the Applicant from completing that course but I accept the course was completed by the Applicant.
I am satisfied based on the record of the transcript of proceedings, in the sentencing on 22 November 2024[18], that the psychological report or opinion of Dr Chen presented to the District Court was that the Applicant accessed child exploitation material as a maladaptive emotional regulation strategy due to a distressing time in his life. Dr Chen opined that the Applicant does not have a fixated paedophilic interest, and the primary appeal of the child exploitation material was the intensity or taboo of the stimulus rather than a paedophilic interest.[19] Dr Chen also advised that there was a clear need for long-term specialist therapeutic intervention, and that the applicant was well aware this was not the end of his rehabilitative journey and it was something that would require continued work.
[18] Transcript of Proceedings, District Court of Western Australia, 22 November 2024, pg 22 - 26
[19] Ibid, pg 22 - 23
In the transcript there is confirmation that the Applicant had completed the 30 week program, and that psychologist Ms Munslow-Davies provided feedback that the Applicant was open and vulnerable, and made significant gains in the program. The transcript also refers to community support which had previously not been available which reduces the risk of reoffending, and a formulated realistic relapse prevention plan.[20]
[20] Ibid pg 28
In the Sentencing remarks[21] the judge accepted the opinion of the presentence report that a paedophilic interest in children is not relevant to the Applicant, and referred to the 30 week group therapy program the Applicant had signed up for and his 24 individual treatment sessions that the Applicant had completed with a psychologist. The judge notes the psychologist concluded the Applicant is someone who is capable of adult sexual attachment and the child exploitation material attraction had to do with its intensity and stimulus and that the Applicant did not have any paedophilic interest per se. The judge concluded that the Applicant had good prospects of rehabilitation and the risks of the Applicant reoffending are relatively low.[22]
[21] Sentencing remarks, District Court of Western Australia, 22 November 2024, pg 6
[22] Ibid
I am satisfied that at the time of the offending the Applicant had sustained a back injury after an accident, was insignificant pain, was not working, was isolated, and was living in Western Australia which was away from his family.
I am also satisfied that the Applicant identifies other factors that were recognised in the sentencing remarks as precipitating factors, leading to the Applicant’s offending[23] . These factors include the Applicant was the victim of child sexual abuse by a family member and early exposure to pornography. The Applicant’s parents separated when he was very young and he had no ongoing contact with his father. The Applicant experienced emotional abuse from his first stepfather, and his childhood was a happy one. The Applicant attended several schools as a child and a teenager. It appears the Applicant was isolated, depressed and unhappy in his childhood and adolescence. The judge refers to the psychologist identifying many factors, primarily from the Applicant’s childhood,[24] and factors of grief including the loss of the Applicant’s grandmother.[25]
[23] Sentencing Remarks, District Court of Western Australia, 22 November 2024, pg 4 - 5
[24] Ibid
[25] Ibid
I have taken into account the Applicant’s evidence that he never wishes to return to prison. I accept that the experience in prison has been difficult. I accept that the Applicant is currently in mainstream in Acacia prison but has been advised to hide the nature of the offences for which he has been imprisoned from his fellow inmates[26] . I am satisfied that the Applicant is not currently undergoing any specific treatment or rehabilitation, but I accept that this is because of the relatively short duration of the remainder of his sentence.
[26] Department of Justice, Corrective Services, offender notes dated 23 November 2024
I am satisfied that the Applicant has the support of his mother and stepfather, and if released can return to Queensland and reside with his mother and stepfather. I am satisfied that the Applicant has the support of both his sister and his brother. I am satisfied that the Applicant is confident he will be able to return to employment in Queensland. I am satisfied that the Applicant is developing a plan, to prevent any further offending which includes continuing counselling, continuing contact with a support group in the community, continuing to volunteer with St Rob’s, and undergoing any further treatment that is recommended. I accept that all these factors reduce the risk of further offending.
I am also satisfied that the Applicant is deeply ashamed of the offences for which he was convicted. I am satisfied based on the sentencing remarks, that the judge was satisfied that the Applicant was genuinely remorseful for the offences[27]. I am satisfied that the Applicant admitted the offences, and pleaded guilty at the earliest available opportunity. I am satisfied that the Applicant does not wish to return to prison, and that the sentence was imposed as a deterrence to the Applicant and the protection of potential future child victims.
[27] Sentencing remarks, District Court of Western Australia, 22 November 2024, pg 6
I accept that the Applicant was found by the sentencing judge to have a relatively low risk of reoffending. I note in the transcript that Dr Chen opined that there was a clear need for long-term specialist therapeutic intervention for the Applicant and that the Applicant was not at the end of his rehabilitative journey. I am satisfied that the Applicant is willing to continue with treatment and rehabilitation.
I have concluded that the nature of the Applicant’s conduct which led to him being charged, convicted and sentenced was serious. There is a risk to the Australian community, should the Applicant commit further offences, or engage in similar conduct, although I accept this risk is low.
I take into account when assessing the risk to the Australian community that that the Applicant had no prior offences, and did not re-offend when on bail.
I do not conclude that the risk of harm to the Australian community if the Applicant should re-offend by possession or distribution of child exploitation material is an unacceptable risk. I accept the risk of the Applicant reoffending is low.
I have considered the nature and seriousness of the conduct for which the Applicant was sentenced to 12 months imprisonment, and find the conduct was serious and involved crimes of a sexual nature against children. I have balanced this with the assessments of the risk of the Applicant reoffending, and the risk of harm to children or the Australian community if the Applicant should engage in further criminal or serious conduct. I give the consideration of the protection of the Australian community from criminal or other serious conduct weight in favour of not revoking the cancellation of the Applicant’s visa.
Primary Consideration 8.2:- Family Violence committed by the non-citizen
There is no evidence that the Applicant has committed family violence, or been involved in the perpetration of family violence. I give the consideration of family violence committed by the noncitizen neutral weight in my assessment of whether or not to revoke the cancellation of the Applicant’s visa.
Primary consideration 8.3: – the strength, nature and duration of ties to Australia
When considering the strength, nature and duration of ties to Australia I must consider the impact of the decision in relation to the Applicant’s visa upon his immediate family members in Australia where those members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely, and I must consider the strength, nature and duration of any other ties, the Applicant has to the Australian community.
I am satisfied that the Applicant arrived in Australia in 2013 age 22 years of age. I am satisfied that the Applicant spent his childhood and teenage years in New Zealand. I am satisfied that the Applicant has been in Australia for 12 years, and had resided in Australia for a period of 10 years before offending. I am therefore satisfied that the Applicant did not begin offending soon after arriving in Australia.
I am satisfied that the Applicant has a commendable employment history since his arrival in Australia, and that he was essentially employed, or employed and studying since the time of his arrival in 2013 up until the time of his accident which occurred on his way to work in February 2023. I am satisfied that the Applicant contributed positively through his employment to the Australian community from the time of his arrival in 2013.
I am satisfied that the Applicant has a very strong relationship with his mother. I am satisfied that after the Applicant left Queensland to come to Western Australia for work, he returned to Queensland on a regular basis to maintain his contact and relationship with his mother and family in Queensland. I am satisfied that the Applicant’s mother visited the Applicant in Western Australia on two occasions, the second occasion being for a period of two weeks just before his court appearance in the District Court in November 2024. I am satisfied that the Applicant’s mother is committed to supporting the Applicant. That support includes providing the Applicant with a home, specially the Applicant has the opportunity to reside with his mother and her partner after his release from prison. I am satisfied the support the Applicant’s mother wishes to provide includes accommodation, and financial support, emotional support and guidance, and support with his rehabilitation. I am satisfied that the Applicant has maintained contact with his mother through “e visits” and telephone contact since his incarceration. I accept that the Applicant’s mother would experience emotional and psychological hardship and distress if the Applicant was required to leave Australia.
I am satisfied that the Applicant also has a strong relationship with his sister. I am satisfied that the Applicant’s sister has remained in contact with the Applicant during his incarceration. I accept, based on her letters of support, that the Applicant’s sister wishes him to be involved in her life, and with his nephew who is due to be born in December, and wishes him to be involved in her community activities, including her local church group in the future. I accept that the Applicant’s sister would be impacted emotionally and mentally if the applicant was not in Australia and was unable to be part of her life, and part of her expanding family going forward.
I am satisfied that the Applicant has the support of his stepfather (he is mother’s current partner), and his younger brother. I accept that the Applicant has not been in telephone contact with either his stepfather or his brother whilst in prison but has kept up with their news through his mother and sister. The applicant’s stepfather has provided two letters of support and the applicant’s brother has provided a letter of support confirming they stand by the Applicant, and believe in his rehabilitation and remorse. I accept the Applicant’s stepfather wants the Applicant home with him and his mother, and wishes to assist the Applicant with his continued growth and rehabilitation, and to provide love and support and an opportunity for him for the future. I am satisfied that the Applicant’s stepfather and brother would be impacted if the cancellation of the Applicant’s visa was not revoked, and he was required to depart Australia.
I am satisfied the Applicant has other family members in Australia, including two uncles, an aunt and two cousins. I accept the Applicant is not in regular contact with these extended family members, but the fact of these family members reside in Australia demonstrates that the Applicant’s familial relationships exist essentially in Australia. The Applicant gave evidence that he wished to re-establish contact, particularly with his aunt with whom he felt a special connection, after his release. I accept that it is difficult for the Applicant to have contact with extended family members both from prison, and in light of the charges of which he was convicted. I accept in the long-term that these extended family members may also be impacted if the cancellation of the Applicant’s visa is not revoked.
I accept that the Applicant has strong familial ties to Australia which have been established over a period of 12 years. I am satisfied that although the Applicant’s father resides in New Zealand, the Applicant has not had contact with his biological father since he was a small child. I accept that the Applicant’s family essentially resides in Australia and hold visas to remain in Australia. I am satisfied that the Applicant has established strong ties to the Australian community through his employment and training in Australia, and has a wealth of employment experience in Australia.
I am satisfied based on the evidence provided that the Applicant has strong ties to Australia of a familial nature which has been of significant duration since the Applicant arrived in Australia in 2013. I am satisfied that the impact of any decision in relation to the Applicant’s visa would have an impact on the Applicant’s mother, sister, brother and stepfather. I am satisfied that the emotional and psychological impact of a decision not to revoke the cancellation of the Applicant’s visa would be of most significance to the Applicant’s mother and sister.
I am satisfied that the Applicant himself has strong ties to the Australian community through his employment history, in addition to strong familial ties to his family members who reside in Australia.
I give the consideration of the strength, nature and duration of the Applicant’s ties to Australia weight in favour of revocation of cancellation of the Applicant’s visa.
Primary consideration 8.4: – best interests of minor children in Australia affected by the decision
I am satisfied there is no evidence that there are any minor children in Australia who would be directly affected by the decision to revoke or not revoke the cancellation of the Applicant’s visa. I give the consideration of the best interests of minor children in Australia neutral weight in my assessment of whether or not to revoke the cancellation of the Applicant’s visa.
Primary consideration 8.5 : – expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in a serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. Further it may be appropriate because of the nature of the character concerns or offences that the Australian community would expect the person would not be granted or continue to hold a visa. The Direction specifies serious character concerns through conduct can include, pursuant to 8.5 (2)(c) the commission of serious crimes against children, including crimes of a sexual nature in the form of material exploitation. The Direction further stipulates pursuant to 8.5 (3) that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Direction in this primary consideration is established as a ‘deeming’ provision, and the Tribunal cannot assess or change the community expectations as set out in this primary consideration. I am required to proceed on the basis of the Direction, that the Australian community’s expectation, particularly where there are serious character concerns including the commission of serious crimes against children which include sexual crimes in the form of material exploitation, that the Government will not allow the Applicant to remain in Australia.
I give the consideration of the expectations of the Australian community weight in favour against revocation of cancellation of the Applicant’s visa.
Other consideration 9.1: – legal consequences of the decision
The legal consequences of the cancellation of the Applicant’s visa, and any decision not to revoke the cancellation of the Applicant’s visa, are that the Applicant is liable to be removed from Australia, once he has completed the sentence he is serving. The Respondent in the Updated Statement of Facts, Issues and Contentions[28] contended the Tribunal should give this other consideration neutral or very limited weight. However, the Tribunal applies the principles in Singh v MICMSMA[29] and accepts that it would not be logical or reasonable to conclude that the fact the Applicant is subject to continuing detention should not weigh to some extent in favour of revocation of cancellation of the Applicant’s visa. The Applicant would not be eligible for parole if the cancellation of his visa is not revoked. The legal consequences of the decision include requiring the Applicant to serve his entire sentence without the opportunity of being released on parole. This is not a fact to which the Tribunal can give neutral weight.
[28] Updated Statement of Facts, Issues and Contentions dated 25 September 2025, pg 15 - 17
[29] Singh v MICMSMA [2024] FCA 1273
A further the legal consequences of the decision to refuse to revoke the cancellation of the Applicant’s visa would be the Applicant would be removed from Australia, and the likelihood of the Applicant being able to return to Australia are virtually non-existent. I accept the submissions of the Applicant’s representative[30] that he would be defined as a ‘behaviour concern non-citizen’, and would not be eligible to be granted a special category visa. The Applicant had been the holder of a Class TY Subclass 444 Special Category (Temporary) visa. The Applicant’s representative submits that the Applicant would be subject to exile from Australia by operation of the Special Return criterion in cl.5001(c) of Schedule 5 the Migration Regulations 1994 (Cth).
[30] Applicant’s Statement of Facts, Issues and Contentions dated 24 September 2025, pg 5
I am satisfied that there is no evidence that the Applicant would be at risk of persecution of the type identified in the Refugees Convention, or the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights, if the Applicant returned to New Zealand. There is no evidence of international non-refoulement obligations in this review.
I am satisfied that the legal consequences, including the Applicant would be unable to be granted parole and would have to complete the entire sentence, the removal of the Applicant from Australia, and the Applicant’s likely inability to return to Australia are factors that weigh in favour of revocation of the cancellation of the visa. I give the consideration of the legal consequences of the decision weight in favour of revocation of cancellation of the Applicant’s visa.
Other consideration 9.2: – extent of impediments if removed
I am required to consider the extent of any impediments the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards.
I am satisfied that the Applicant would not experience any substantive language or cultural barriers on returning to New Zealand. I accept that the Applicant spent his childhood and teenage years in New Zealand, and left there when he was aged 22 in 2013.
I am satisfied that the Applicant has been in Australia for the last 12 years, and has not maintained contacts in New Zealand. I accept that the Applicant does not have contact with his biological father or other family members in New Zealand. I accept that the Applicant does not have contact with schoolfriends or other associates in New Zealand. I accept that it would be difficult and socially isolating for the Applicant to return to a country where he has not resided and does not have family or friends with whom he is in contact.
I am satisfied that the Applicant is now 33 years of age and has been diagnosed and is currently treated for ongoing health issues. I accept that the Applicant describes himself as obese, and is currently receiving treatment for his obesity. I accept that the Applicant has been diagnosed and is treated for diabetes, asthma, anxiety, nocturnal seizures and high blood pressure. I accept that a person is entitled to access medical support in New Zealand for the treatment of those health conditions. I accept that medical treatment is available and accessible in New Zealand. However I also accept that those health conditions would make the reintegration into New Zealand society more difficult. I accept that the submission of the Applicant’s representative that the probability that if the Applicant is removed to New Zealand his mental and physical health would decline due to increased stress and anxiety.[31]
[31] Applicant’s Statement of Facts, Issues and Contention, dated 24 September 2025, pg 5, para 38
I have considered that the Applicant has moved interstate within Australia and has been able to establish himself in the sense of arranging accommodation and employment and at times enrolled in courses to study. I accept that the Applicant has the capacity to establish himself in a new environment based on the historical facts that he has done this in Australia, including arranging accommodation and employment. However I accept that the Applicant is currently vulnerable after the convictions and serving a term of imprisonment, combined with his current physical and mental health conditions, which may impact his ability to establish himself in New Zealand.
I have also given consideration to the fact the Applicant would be isolated from the support of his family which he has relied on whilst residing in Australia. I accept that the Applicant although he had moved to other states, continued to return to Queensland to visit his family, which he will not be able to do if he is removed to New Zealand. I give weight to the social isolation, the Applicant would experience if the cancellation of the Applicant’s visa is not revoked.
I give consideration of the extent of impediments if removed weight in favour of revocation of the cancellation of the Applicant’s visa.
Other consideration 9.3: – impact on Australian business interests
There is no evidence before the Tribunal that the cancellation of the Applicant’s visa would impact Australian business interests. I give consideration of the other interest of the impact on Australian business interests neutral weight in my assessment of whether to revoke the cancellation of the Applicant’s visa.
Other considerations
There was no evidence submitted in relation to any further considerations.
CONCLUSION
The Applicant does not pass the character test under s.501 of the Act, and I must consider whether there is another reason why the decision to cancel his visa should be revoked. I have had regard to the primary and other considerations as set out in Direction 110.
I have applied the judgement of the Full Court of the Federal Court in CRNL v MICMA[32] and have undertaken to comply with the Direction by bringing together all the considerations as part of a single evaluation of the relevant significance and weighing them all together.
[32] CRNL v MICMA [2023] FCAFC 138
I have given greater weight to the protection of the Australian community. I have generally given greater weight to the other two primary considerations that apply in this review (noting the remaining two primary considerations only attract a neutral weight).
In applying the Direction 110 considerations I have assessed that the weight in favour against revocation of the cancellation of the Applicant’s visa, according to my assessment of primary consideration 8.1 protection of the Australian community from criminal or other serious conduct, and primary consideration 8.5 the expectations of the Australian community, cumulatively outweigh the combined weight accorded to the primary consideration 8.3 the strength nature and duration of ties to Australia and the other considerations 9.1 legal consequences of the decision and 9.2 extent of impediments if removed. The remaining primary considerations and other consideration were accorded neutral weight.
Accordingly I find after assessing all the considerations as set out in Direction 110, evaluating their significance, and analysing the cumulative weight of the matters in favour of revocation of cancellation of the visa, and the cumulative weight of the matters in favour against revocation of cancellation of the visa, the most weight is in favour against revocation of cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing: 6 October 2025 Date final submissions received: 25 September 2025 Representative and Solicitors for the Applicant: Mr Glenister
William Gerard Legal Pty LtdRepresentative and Solicitors for the Respondent: Ms Jones-Bolla,
Sparke Helmore Lawyers
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