Bradley and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1058
•24 June 2025
Bradley and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1058 (24 June 2025)
Applicant/s: Braden James Bradley
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3132
Tribunal:Senior Member G McCarthy
Place:Canberra
Date of Decision: 24 June 2025
Date of Reasons: 22 July 2025
1.The decision under review made on 9 April 2025 is set aside.
2.In substitution for the decision under review, the original decision made on 27 August 2024 is revoked.
……………[SGD]……………………….
Senior Member G McCarthy
Catchwords
MIGRATION – review of decision not to revoke mandatory cancellation of protection visa under section 501CA(4) of Migration Act 1958 – applicant accepts he does not pass character test – whether another reason to revoke cancellation – consideration of Direction No. 110 – Tribunal satisfied another reason to revoke – consideration of unacceptable risk – decision not to revoke cancellation of visa set aside – substitution decision cancelling revocation
Legislation
Migration Act1958 (Cth) ss 499, 500, 501, 501CA
Cases
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
CKL21 v Minister for Home Affairs [2022] FCAFC 70
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ]2023] FCAFC 138
Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 186
Dayananda v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1050
Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606
Frugtniet v ASIC [2019] HCA 16
FYBR v Minister for Home Affairs [2019] FCAFC 185
HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377
LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12
Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446
Manebona and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3321
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigrov Secretary to the Department of Justice [2013] VSCA 213
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 7 June 2024)
REASONS FOR DECISION
By application dated 14 April 2025, Mr Bradley (the Applicant) applied to the Tribunal under s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act) for review of a decision of a delegate of the Minister dated 9 April 2025[1] not to revoke the mandatory cancellation of the Applicant’s visa (the decision under review).
[1] G documents G4/31
On 18 June 2025, I heard the application.
After evaluating the evidence and considering the parties’ submissions (written and oral) by reference to the Minister’s direction made under s 499 of the Act, Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024 (Direction 110), I concluded, on balance, the Minister’s decision not to revoke the mandatory cancellation of the Applicant’s visa should be set aside and a decision made, in substitution, to revoke the cancellation.
On 24 June 2025, I ordered accordingly. What follows are my reasons for doing so.
FACTUAL BACKGROUND
The Applicant is a citizen of New Zealand. He was born on 24 January 1993.
In August 2009, when the Applicant was 16 years old, he and most of his family comprising his parents and two of his siblings moved to Australia. They initially lived in Shepparton, Victoria before moving to Perth, Western Australia in December 2011 where he and his family have lived ever since.
The Applicant was issued with a Special Category (Class TY) (subclass 444) visa (the visa) which enabled him to live lawfully in Australia.
A second brother stayed in New Zealand to complete his apprenticeship before joining his family in December 2012. All members of the Applicant’s family continue to live in Perth.
From an early age, the Applicant began committing criminal offences.
On 28 November 2011 when the Applicant was 18 years old, he was convicted in the Shepparton Magistrates Court of several offences, being criminal damage, using cannabis, unlawful assault, failing to stop at a give way sign, possessing cannabis and driving whilst his licence was suspended. He was fined an aggregate sum of $2,000.
On 19 September 2014, when the Applicant was 21 years old, he was convicted in the Perth Magistrates Court for two criminal offences, being driving whilst exceeding a prescribed blood alcohol level and disorderly behaviour in public. For the first offence, he was disqualified from driving for eight months and fined $650. For the second offence he was fined $750.
On 5 March 2017, when the Applicant was 24 years old, the Applicant’s criminal offending rose to a much higher level. That night, along with two other unknown offenders, he participated in an aggravated armed robbery of a place known as the Kingsley Tavern. In his remarks when sentencing the Applicant for the offence, Troy DCJ of the District Court of Western Australia noted the Applicant was not the instigator, but played an important part in what was a premeditated armed robbery. Troy DCJ also noted the Applicant and his co-offenders each carried a weapon calculated to cause fear and to ensure the victims of the robbery complied with their demands. That said, Troy DCJ noted the Applicant did not brandish his weapon or use it in any way.[2] At hearing in this proceeding, the Applicant stated the weapon he carried was a car aerial. At hearing, the Applicant acknowledged he and his co-offenders robbed the Tavern of $70,000 which they split three ways.
[2] Sentencing remarks of DCJ Troy, District Court of Western Australia, 9 February 2023, G documents, G7/51
The Applicant was not arrested for the offence until February 2021[3] following which he was released on bail and remained in the community until February 2023 when he was convicted and sentenced to a term of imprisonment.
[3] Sentencing remarks of DCJ Troy, District Court of Western Australia, 9 February 2023, G documents, G7/55
The Applicant committed two further offences subsequent to the robbery, namely driving without authority for which he was convicted and fined $200 on 29 January 2019 and cultivating a prohibited plant for which he was convicted and fined $400 on 22 March 2021.
On 9 February 2023, the Applicant was convicted for the aggravated armed robbery (the robbery) in the District Court of Western Australia. He was sentenced to a term of five years’ imprisonment, backdated to the date before sentence (8 February 2023) with a non-parole period of three years. Consequently, at the time of the hearing in this matter, the Applicant remains in prison. He will be eligible to apply for parole on 8 February 2026. The robbery is the offence that led to the mandatory cancellation of the Applicant’s visa.
I turn next to the Applicant’s personal and work circumstances.
At the time of the robbery, the Applicant was a single man with a serious drugs problem. By his own admission, he was regularly using methamphetamines and cannabis. The Applicant gave evidence, which I accept, that he participated in the robbery to obtain money to buy drugs. The Applicant gave evidence in this proceeding, which I accept, that at the time of the offending he was hanging out with a bad crowd. Of the offence, the Applicant said “I was young, stupid, and have no one to blame but myself.”[4]
[4] Applicant’s Statement dated 10 June 2025 at [2]
On or about the time of the robbery, the Applicant was working as a concrete cutter. As I understand it, the Applicant has worked as a concrete cutter for many years. The Tribunal had evidence in the form of statements dated 2 September 2024 and 11 June 2025 from Gabriel Spillman, a director of Black Swan Concrete Cutting and Coring, who spoke positively of the Applicant. Mr Spillman stated the Applicant commenced working with Black Swan in April 2021. With full knowledge of the Applicant’s criminal history, Mr Spillman described the Applicant as “an honest and committed worker” who was “well liked by fellow employees and our clients and was one of our top operators.”[5] Mr Spillman stated that if the Applicant is permitted to stay in Australia, he will rehire the Applicant back into his previous full-time concrete cutting and core-drilling position.[6] Mr Spillman’s statements were taken into evidence without objection and he was not required for cross examination. I accepted his evidence.
[5] Spillman statement dated 2 September 2024. G documents, G17/99
[6] Spillman statutory declaration dated 11 June 2025 at [6]
In “mid 2017”, which I take to mean after the robbery, the Applicant met Elena Mohedo who is an Australian citizen. They commenced a relationship and now have two children: their son Zayden who was born on 13 July 2018, and their daughter Aylalee who was born on 10 March 2021. At the time of the hearing, Zayden was six years old and Aylalee was four years old. Both children are Australian citizens.
The Applicant said that in October 2023, about eight months after the Applicant commenced his term of imprisonment, the relationship between the Applicant and Ms Mohedo came to an end. I was not told why, but expect the Applicant’s incarceration whilst Ms Mohedo cared for the young children without his support would have placed a great strain on their relationship.
Ms Mohedo is now in dispute with the Applicant’s mother about who should have custody of Zayden and Aylalee. That dispute is the subject of court proceedings.
Notwithstanding these regrettable circumstances, on a date which the parties agree was sometime after 27 August 2024 when the mandatory decision to cancel the Applicant’s visa was made and 4 September 2024 when the Applicant submitted his response to the cancellation of his visa,[7] Ms Mohedo wrote a letter to the National Character Consideration Centre, Department of Home Affairs (the Centre) in support of the Applicant retaining his visa and staying in Australia.[8]
[7] G documents G12/67
[8] G documents G25/111
On 4 September 2024,[9] the Applicant wrote to the Centre in response to the notice of cancellation of his visa dated 27 August 2024. He spoke about his background family circumstances, as detailed above, and about his relationship with his children. He spoke about being with them every day since they were born, their attendance at the BMX club with him and Ms Mohedo and how he has rung them every day since he began his term of imprisonment.
[9] G documents G12/67
The Applicant included a personal statement in which he wrote about his circumstances when he committed the robbery.[10] He said he was young and did not consider the consequences of his actions. At hearing, he explained the robbery was to fund his drug habit but he is now drug-free. At hearing, the Applicant stated he stopped using methamphetamines in 2018 when his son, Zayden, was born but still smoked cannabis a couple of times a week to help manage his withdrawal from methamphetamines. He stated he stopped using cannabis in 2021 in order to participate safely with his family in BMX and motocross.
[10] G documents G14/87
He said that following his arrest in February 2021, he was on bail for two years prior to commencing his term of imprisonment on 9 February 2023 and did not have any problems complying with his bail conditions. The Minister did not lead any evidence to the contrary. I accepted his evidence.
The Applicant stated he thought it was in the best interests of his children if he could stay in Australia and in their lives. He stated that if he had to return to New Zealand, his family will be “torn apart”. He stated “I believe that the child should have a father in their lives and I want to be there for mine”.[11]
[11] Applicant's personal statement, provided on 13 September 2024, G documents, G14/87 at 88
The Applicant explained that he has type 1 diabetes and has had it since he was 10 years old. He discussed the good relationships he has with his treating team and his contribution to help other people with diabetes. He stated he would lose that support if returned to New Zealand.
LEGAL BACKGROUND
On 27 August 2024, the Applicant received notice of the mandatory cancellation of his visa (the notice) consequent on his conviction for the robbery which led to him having a substantial criminal record. As the Applicant accepted, having a substantial criminal record meant he did not pass the character test per s 501(6)(a) of the Act. Pursuant to s 501(3A) of the Act, in these circumstances, the Minister was required to cancel the Applicant’s visa (the cancellation decision). Section 501(3A) states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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 a Territory.
The notice invited the Applicant to make representations to the Minister as to why the cancellation decision should be revoked pursuant to s 501(CA)(4) of the Act.[12] Section 501CA(4) states:
(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 section 501); or
(ii) that there is another reason why the original decision should be revoked.
[12] G documents, G55/224
The notice informed the Applicant that if a delegate of the Minister decided whether or not to revoke the cancellation decision, the delegate would be required to follow Direction 110.
On 4 September 2024, within the 28 days prescribed under regulation 2.52 of the Migration Regulations 1994, the Applicant provided his request for revocation of the cancellation decision, together with many supporting documents including his personal statement and support letters from each of his mother, father, two brothers and sister, Mr Spillman, his uncle Mr Spicer, Ms Mohedo, Ms Clarke (the mother of his nephew), and Mr Hassan (the President of the Rockingham BMX Club).
On 28 March 2025, the Applicant’s lawyers provided a further detailed response to the notice.[13] In the further response, the Applicant again acknowledged he did not pass the character test and then addressed the considerations in Direction 110 for why, he said, there is “another reason” for why the cancellation decision should be revoked.
[13] G documents,G54/204
On 9 April 2025, a delegate of the Minister decided not to revoke the cancellation decision because they were not satisfied the Applicant passed the character test and were not satisfied there is another reason for why the cancellation decision should be revoked.[14] Having decided not to revoke the original decision, the Applicant’s protection visa remained cancelled. The delegate provided a statement of reasons for their decision.[15]
[14] G documents,G4/31
[15] G documents, G5/32
On 15 April 2025, the Applicant applied to the Tribunal for review of the delegate’s decision.[16] On review, the Tribunal’s function is to hear the matter afresh and decide what it considers to be the correct or preferable decision on the evidence before it.[17]
[16] G documents, G1/1
[17] See, for example, Frugtniet v ASIC [2019] HCA 16 at [51]
The character test: section 501CA(4)(b)(i)
The Applicant accepted he does not pass the character test relevantly prescribed under s 501(6)(a) of the Act.[18] Having regard to his conviction for the robbery, his sentence to a term of five years’ imprisonment and the definition of “substantial criminal record” in s 501(7) of the Act, that acceptance was plainly right. I found accordingly.
[18] Applicant’s statement of facts and contentions dated 27 January 2025 at [5]
Another reason: section 501CA(4)(b)(ii)
Pursuant to s 499(2A) of the Act, when deciding whether there is ‘another reason’ for why the cancellation decision should be revoked, I was required to comply with Direction 110.[19]
[19] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [19]; Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 186
The starting point was the eight principles in paragraph 5.2 of Direction 110:
5.2. Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 50 IC A. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2. (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 noncitizen poses a measureable 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Direction 110 then moves, in Part 2, to the topic: “Making a decision”. Paragraphs 6, 7, 8 and 9 in Part 2 state:
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations 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 at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(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.
9. Other considerations
(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;
c) impact on Australian business interests
In Manebona and Minister for Immigration, Citizenship and Multicultural Affairs (Manebona),[20] SM Manetta commented on the operation of Direction 110 as follows:
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.[21]
[20] [2024] AATA 3321
[21] [2024] AATA 3321 at [25]-[27]
I agreed with and adopted those statements.
Pursuant to paragraph 6, I took into account the primary considerations identified in paragraph 8 and the other considerations identified in paragraph 9 where relevant. Pursuant to paragraph 7, I gave greater weight to the first primary consideration than to the other primary considerations and greater weight to the primary considerations than to the other considerations.
For the reasons given by Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL),[22] I then balanced the relevant considerations against each other and, by this means, evaluated whether there is ‘another reason’ for why the cancellation should be revoked.[23]
[22] ]2023] FCAFC 138
[23] ]2023] FCAFC 138 at [139]
Protection of the Australian community - general
Regarding the first primary consideration, I kept in mind paragraph 8.1(1) which states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principal 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.
When considering protection of the Australian community, I also gave consideration to the factors in paragraph 8.1(2):
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
I also had regard to the details in paragraphs 8.1.1 and 8.1.2 (and the subparagraphs within them) which provide details about the two considerations stated in paragraph 8.1(2).
Protection of the Australian community - nature and seriousness of the conduct
Paragraphs 8.1.1(1)(a)-(i) state eight factors to which decision-makers “must have regard” when considering “the nature and seriousness of the non-citizen’s criminal offending or other conduct to date”. I did so.
Paragraph 8.1.1(1)(a) opens with the words “without limiting the range of conduct that may be considered very serious”, and then describes three “types of crimes or conduct [that] are “viewed very seriously by the Australian Government and the Australian community”, the first of which is “violent and/or sexual crimes”.
When paragraphs 8.1.1(1)(a) and (b) are read together, it is clear that paragraph 8.1.1(1)(a) establishes the deemed views of the Australian Government and the Australian community that some types of crimes or conduct are ‘very serious’, per paragraph 8.1.1(1)(a), whilst other types are ‘serious’ per paragraph 8.1.1(1)(b).[24]
[24] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [21]-[27]
With expressed reference to paragraph 8.1.1(1)(a), the Applicant acknowledged (appropriately) that violence was an element of the robbery for which he was convicted on 9 February 2023.[25] The Applicant accepted his conduct was very serious and weighed against revocation.[26]
[25] Applicant's statement of facts, issues and contentions dated 13 May 2025 at [39].
[26] Applicant's statement of facts, issues and contentions dated 13 May 2025 at [39]; Applicant's contentions in reply dated 13 June 2025 at [13]
That acceptance was appropriate. As the Minister pointed out, Troy DCJ in his sentencing remarks found the Applicant and another of the offenders -
behaved in a coercive and controlling way to the other two staff members [of the Tavern] by demanding their phones. This would have been and was a highly frightening experience for all those who were unfortunate enough to be present at the Kingsley Tavern that night.[27]
[27] G documents G7/52 at 53
The Minister relied also on the Applicant’s conviction on 28 November 2011 for unlawful assault as another offence involving violence and his conviction on 19 September 2014 for disorderly behaviour in public to contend the Applicant’s overall conduct must be viewed very seriously.[28]
[28] Minister’s statement of facts, issues and contentions dated 13 May 2025 at [23]
As for the assault in 2011, more than 13 years ago, the Minister could offer nothing as to what occurred which might or might not have involved violence. Accordingly, I gave little weight to that conviction for the purpose of considering the nature and seriousness of the Applicant’s criminal offending. Likewise, I gave little weight to the Applicant’s behaviour leading to a conviction for disorderly behaviour in public, more than 10 years ago, which again might not have involved violence and about which I knew nothing.
The little weight I assigned to these earlier convictions did not in any way discount my acknowledgement of the seriousness of the robbery. I accepted the Minister’s submission that the Applicant’s conduct in that regard must be viewed as very serious, evidenced by the sentence of imprisonment for five years. This conduct weighed heavily against revocation of the cancellation decision.
With reference to the second and third types of criminal offending or conduct “viewed very seriously” by the Australian Government and the Australian community, per paragraph 8.1.1(1)(a)(ii), there was no suggestion in this case of “crimes of a violent and/or sexual nature against women and children, regardless of the sentence imposed” or “acts of family violence”.
When considering the nature and seriousness of the Applicant’s criminal offending, I then had regard to the factors set out in paragraphs 8.1.1(1)(c) – (i) of Directions 110.
Pursuant to paragraph 8.1.1(1)(c) I considered the sentence imposed by the Court. The Applicant relied on the sentence being only five years, being significantly less than the sentence that might have been imposed, as indicative of the seriousness of the offence relative to the seriousness that aggravated armed robbery can reach. The Minister acknowledged the Applicant’s submission, but submitted five years was still a substantial sentence which underline the seriousness of the offence. The Minister relied on a decision of the Administrative Appeals Tribunal (the AAT) in Pavey and Minister for Home Affairs (Pavey)[29] in which the AAT said:
As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.[30]
[29] [2019] AATA 4198
[30] [2019] AATA 4198 at [44]
The Minister relied also on a decision of the Federal Court in Dayananda v Minister for Immigration, Citizenship and Multicultural Affairs (Dayananda)[31] in which the Court noted that a sentence at the lower end of a scale for an offence needs to be placed in context. So, in this case, the Minister said, the offence is itself an inherently serious category of offending, even if at the lower end of the scale.
[31] [2022] FCA 1050
I accepted the Minister’s submission. As previously stated, and as the Applicant acknowledged, his offending was very serious. The sentence imposed reflects this. The seriousness of the offence and the sentence imposed weighed heavily against revocation.
Paragraph 8.1.1(1)(d) concerns the impact of the Applicant’s offending on any victims of offending or other conduct and their family. The Applicant did not refer to paragraph 8.1.1(1)(d), but the Minister drew on Troy DCJ’s sentencing remark that the robbery would have been “a highly frightening experience” for those present. I accepted the Minister’s submission which reinforces the seriousness of the offence and which, as I have said, weighed heavily against revocation.
Paragraph 8.1.1(1)(e) concerns “the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness”. The Applicant submitted, in summary, that his offending was infrequent and without any “pattern of reoffending”. The Applicant properly acknowledged that his minor offending in 2011 to 2014 prior to the robbery in 2017 reflected a trend of increasing seriousness, but noted that from 2017 to the beginning of his term of imprisonment in February 2023, he was convicted of only two minor offences being a driving offence and an offence of cultivating a prohibited plant. The Applicant drew on Troy DCJ’s comment that the robbery was “plainly out of character” and that his subsequent offending was “minimal”.[32]
[32] G documents G7/51 at 55
The Minister contended there is a trend of increasing seriousness, referring to the Applicant’s criminal record which (the Minister said) involves 13 offences over a period of 12 years. The Minister provided a summary of the Applicant’s criminal offending by reference to the dates of conviction:
1) 28 November 2011: drive while authorisation supended
2) 28 November 2011: drive while authorisation supended
3) 28 November 2011: drive while authorisation supended
4) 28 November 2011: possess cannabis
5) 28 November 2011: criminal damage (intent damage/destroy)
6) 28 November 2011: use cannabis
7) 28 November 2011: unlawful assault
8) 28 November 2011 fail stop and give way-stop sign/stop line
9) 19 September 2014: disorderly behaviour in public
10) 19 September 2014: exceed 0.08g alcohol per 100ml of blood
11) 29 January 2019: no authority to drive (fines suspended)
12) 22 March 2021: cultivate a prohibited plant
13) 9 February 2023: aggravated armed robbery
The Minister submitted there had been an escalation in the Applicant’s traffic offending by him repeatedly driving without authority and under the influence of alcohol. The Minister drew on decisions of the AAT[33] in which the AAT recognised the serious nature and adverse consequences of driving offences, especially repeated reaches of road traffic laws which tend to indicate “an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads.”[34]
[33] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45]; QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
[34] QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51]
The Minister submitted there has also been an escalation in the Applicant’s drug related offending, progressing from possession and use to, most recently, cultivation. The Minister also relied on the circumstance that on 15 January 2025, the Minister said, “the Applicant and his cellmates were found to possess a number of hidden, unauthorised/unlawful items .. namely green vegetable matter, white colour tablets and a large quantity of assorted unauthorised articles not lawfully issued to him”. The Minister said “some of the items were hidden in the Applicant’s thermos”.[35] The Minister noted the Applicant faces three charges arising from the items found in his cell.
[35] Minister’s statement of facts, issues and contentions dated 30 May 2025 at [37]
The Minister submitted the Applicant’s offending “demonstrates a wilful disregard for the law and authority which, when viewed in the context of the increasing seriousness of the Applicant’s offending, weighed heavily against revocation.”[36]
[36] Minister’s statement of facts, issues and contentions dated 30 May 2025 at [30]-[31]
The delegate in his statement of reasons for not revoking the cancellation decision made no reference to any “trend of increasing seriousness of offending”, and in my view appropriately so. The Minister’s submission in this proceeding was not borne out by the facts. The Applicant’s offending was over a 10 year period, not 12, noting he was arrested in relation to the last offence of cultivating a prohibited plant in February 2021. Eight of the 13 offences on which the Minister relied occurred sometime prior to November 2011, 14 years ago when the Applicant was 18 years old. There is a single subsequent offence of unauthorised driving in 2019 and a single subsequent drug offence, cultivating (presumably) cannabis for (as I understood it) personal use in 2021 hence a fine of $400. There is a single offence in the history for driving under the influence of alcohol. There is no record of any offending from 2021. As Troy DCJ noted, the Applicant’s offending since March 2017 has been “minimal”. In particular, since committing the robbery in March 2017, there has been no trend of increasing seriousness of offending. The opposite is the case.
I placed no weight on the unauthorised items found in the Applicant’s cell on 15 January 2025. The Applicant denies any of the unauthorised items are his. I received in evidence, without objection, a statutory declaration from another prisoner at Acacia Prison who stated he took “full responsibility” for the items stored in the cell. That prisoner stated that all the unauthorised hidden items were his including the items that were hidden in “my thermos”.[37] The charges against the Applicant arising from the unauthorised items remained to be determined at the time of the hearing in this proceeding.
[37] Applicant’s supplementary bundle of documents at page 18
I reject the Minister’s submission at hearing that I can, nevertheless, take into account that the items found in the Applicant’s cell are indicative of the Applicant’s ongoing criminal behaviour. The Applicant has pleaded not guilty to the charges. In my view, having regard to the competing evidence, it is not appropriate to give these matters any weight when the charges regarding possession of these items are yet to be determined.
Paragraph 8.1.1(1)(f) concerns “the cumulative effect of repeated offending”. The Applicant submitted there is no evidence of a cumulative effect. The Minister made no submissions regarding this consideration. I was not persuaded this factor is relevant when considering the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(g) concerns the provision of false or misleading information to the Department including nondisclosure of prior criminal offending. There was no suggestion this factor is relevant, and I put it aside.
Paragraph 8.1.1(1)(h) is concerned with whether the Applicant has re-offended since being formally warned or made aware about the consequences of further offending in terms of his migration status. There was no suggestion this factor is relevant, and I put it aside.
Paragraph 8.1.1(1)(i) concerns an offence or conduct committed in another country. That factor was not relevant, and I put it aside.
Protection of the Australian community - risk to the Australian community
Paragraph 8.1(2) b) of Direction 110, detailed in paragraph 8.1.2, addresses the risk to the Australian community should the Applicant reoffend or engage in other serious conduct. Paragraph 8.1.2 addresses, in particular, the need to protect the Australian community from harm. It relevantly states:
(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 re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Of note is that paragraph 8.1.2(2) required consideration, “cumulatively”, of the nature of the harm to individuals or the Australian community should be Applicant engage in further criminal or other serious conduct and the likelihood of him engaging in such conduct.
The Applicant referred to a decision of the Federal Court, per Mortimer J (as she then was), in Murphy v Minister for Home Affairs (Murphy)[38] in which her Honour said:
.. part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated”.[39]
[38] [2018] FCA 1924
[39] [2018] FCA 1924 at [37]
The Applicant acknowledged that were he to engage in another robbery or further criminal or other conduct of such a kind the harm would be “very serious”, but submitted the risk of that occurring “must be considered to be low.”[40]
[40] Applicant's contentions in reply dated 13 June 2025 at [14] – [15]
The Applicant acknowledged that in some cases even a low risk of reoffending can be unacceptable, but submitted this is not such a case. The Applicant relied on comments of the AAT, per DP Boyle, in Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs (Fetelika)[41] on the subject of unacceptable risk:
It is a submission that should be reserved for cases involving only the most serious of conduct and harm. A finding that “any risk that it may be repeated...[is] unacceptable” under para 8.1.2(1), is, in effect, a finding that an applicant’s visa must remain cancelled. If a risk is unacceptable, by definition, it cannot be accepted no matter how strong the countervailing considerations. The Minister does not identify any particular elements or characteristics of the Applicant’s conduct, or the harm that would be caused, which would warrant elevating this case to one coming within the operation of the final sentence of para 8.1.2(1).[42]
[41] [2023] AATA 2606
[42] [2023] AATA 2606 AT [48]
The Applicant began by noting he was in the Australian community after committing the robbery for four years before he was arrested without suggestion he harmed anybody. The Applicant’s offending since March 2017 has been “minimal”, comprising a driving offence and an offence of cultivating cannabis, neither of which involved harm to anyone. The Applicant noted he was on bail for two years prior to sentence without breaching his bail conditions.
The Applicant relied on him being in the community for six years following the robbery, during which time he maintained full-time employment, supported his family and sought to live a “pro-social life”. In summary, the Applicant submitted, his behaviour has been tested without incident.
The Applicant also relied on documents prepared during his incarceration. These included the WA Department of Justice Risk of Reoffending-Prison Version assessment completed on 21 February 2023, which scored the Applicant “4” in a range of 1 to 22 which meant he “was not further assessed or recommended for criminogenic programs”. The Applicant noted he was held in a minimum-security prison within six months of commencing his term of imprisonment.
The Applicant also relied on his voluntary engagement and completion of rehabilitation courses including Alternatives to Violence Project-Peaceful Pathways, Community Transitions-Alcohol & Other Drugs (AOD) Drug Awareness Treatment Readiness Group, Wungening Reset Service-InsideOut Dad Program & Active Parenting, Plan for Personal Management and other skill-based courses.
The Applicant also relied on epidemiological expert reports which explain why there is significantly less risk of a person of reoffending if they are re-employed following release from prison, as the Applicant probably will be if released on parole in February 2026 and not removed from Australia.
The Applicant also relied on the significant motivating factors for why he is unlikely to reoffend, particularly the prospect that further offending might lead to further reincarceration for breach of parole. Perhaps, more importantly, it might lead to removal from Australia by reason of (again) failing to pass the character test pursuant to s 501(6)(c) of the Act and consequential loss of all material connection with his children and his family, even if the cancellation of his visa is revoked on this occasion.
In summary, the Applicant submitted the risk of him reoffending is low, and that this circumstance must be considered when considering the broader question about protection of the Australian community. In particular, the Applicant submitted the risk of him reoffending should not outweigh the several factors in favour of revocation having regard to his demonstrated rehabilitation.
The Minister’s delegate considered there to be, on balance, “a low likelihood”[43] the Applicant will reoffend but should he (my emphasis) “engage in similar conduct again” it may result in psychological and/or physical harm and financial harm to members of the community. In the context of another aggravated armed robbery or an offence of a similar kind, that must be right. What troubled the delegate was being unable to identify why the Applicant “agreed to participate in what was a far more serious criminal offence tha[n] anything of which he had previously been convicted.[44] The delegate wrote:
In this conduct, I refer again to the lack of a clear explanation of why he agreed to take part in what was obviously far more serious criminal activity than he had previously done, which I find to be a significant concern in making my decision. I have given this consideration weight against revocation.
[43] G documents, G5/32 at 37
[44] G documents, G5/32 at 36
At hearing, the Minister took a different approach, submitting the Applicant’s offences and the harm that would be caused if they were to be repeated –
is so serious that any risk that they may be repeated is unacceptable.[45]
[45] Minister’s statement of facts and contentions dated 30 May 2025 at [34]
In support, the Minister drew on the following statement of the Federal Court, per Mortimer J, in Tanielu v Minister for Immigration and Border Protection (Tanielu) with reference to the Victorian Court of Appeal’s decision in Nigrov Secretary to the Department of Justice (Nigro):[46]
The Court summarised the task in determining “unacceptable risk” in this way (at [111]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.[47]
[46] [2013] VSCA 213 at [111]
[47] [2014] FCA 673 at [95]
The Minister submitted that even a low risk of reoffending is “unacceptable” if the gravity of the harm that might eventuate is sufficiently serious.[48] In this regard, the Minister drew on the statement of the Federal Court, per Abraham J, in Main v Minister for Immigration, Citizenship and Multicultural Affairs (Main):[49]
The applicant accepted, referring to CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 401 ALR 647 (CKL21), that a decision-maker is entitled to conclude that even a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious (CKL21 at [66]), and that on many occasions the seriousness of the applicant’s crime may be sufficient to justify a decision to refuse a visa (CKL21 at [69]).[50]
[48] Minister’s statement of facts and contentions dated 30 May 2025 at [42]
[49] [2023] FCA 446
[50] [2023] FCA 446 at [30]
The Minister drew on the sentencing remarks of Troy DCJ that there was “no demonstrable remorse or insight”[51] shown by the Applicant who pleaded not guilty to the offence, but accepted the Applicant has since acknowledged his crime was serious. The Minister submitted “limited weight” should be given to the Applicant’s statement that he was “young and didn’t consider the consequences” when committing the crime because he was 24 years of age at the time and (as I understood the submission) was old enough to know better.
[51] G documents, G7/52 at 55
The Minister submitted “limited weight” should be given to the time the Applicant has spent in the community between the offence and his sentence, given he committed additional offences during that period and was subject to bail conditions for a significant portion of that period.
The Minister submitted the Applicant’s claims about his exhibited good behaviour in prison need to be tempered by the fact that on 15 January 2025 several hidden and unauthorised/unlawful items were found in his cell which has led to him being charged as discussed above. This behaviour, the Minister submitted, “undermines”[52] the Applicant’s claim of being rehabilitated.
[52] Minister's statement of facts, issues and contentions dated 30 May 2025 at [39]
The Minister also submitted that any apparent rehabilitation has not been tested against “the stressors of an unsupervised environment in the community”,[53] meaning (as I understood it) the risk of him reoffending remained.
[53] Minister's statement of facts, issues and contentions dated 30 May 2025 at [41]
As for the Applicant returning to employment as a concrete cutter with Mr Spillman, the Minister noted the Applicant’s employment did not previously prevent him from offending.[54]
[54] Minister's statement of facts, issues and contentions dated 30 May 2025 at [41]
In total, the Minister submitted the Applicant‘s risk of reoffending “overall weighs heavily against revocation and should be given greater weight than other relevant primary considerations weighing in the Applicant’s favour”.[55] This submission differed from the Minister’s first submission that “any risk” of the Applicant reoffending is “unacceptable”.
[55] Minister's statement of facts, issues and contentions dated 30 May 2025 at [42]
I respond to the Minister’s submissions in turn.
In Tanielu and in Main, the Federal Court expanded upon the statements of principle regarding unacceptable risk upon which the Minister relied.
In Tanielu, the Court quoted from several decisions of other Courts regarding the task of assessing risk of future harm. It noted two points when making such an assessment:
- First, in decision-making which has a clear protective purpose, and which therefore involves an assessment of how a person may behave in the future, and whether that behaviour involves a risk of harm or a risk of repetition of prior conduct that has been impugned in one way or another, it is an inherent and indispensable part of any such assessment that the likelihood of a person engaging in such conduct in the future is considered. There is no reason to suppose any qualitatively different approach is to be taken in administrative decision-making where the exercise of a power is intended by Parliament to be protective of the safety and welfare of others.
- Second, where a decision-maker chooses, as the Minister chose in the present case, to examine whether there is an “unacceptable risk” to the Australian community if a person remains in Australia, in order lawfully to determine the nature and magnitude of that risk, certain matters need to be considered. The term “unacceptable risk” is not without content in Australian law, and that content has some general features which can be derived from authorities such as those to which I have referred. One feature, the one upon which the applicant fastens in his third ground of review, is that the likelihood of a person engaging in conduct in the future which may cause harm needs to be assessed. The authorities to which I have referred make it clear that an assessment of likelihood of conduct occurring, or recurring, is assumed to be an integral part of determining risk.
In Main, the passage on which the Minister relied is in paragraph 30 of the decision. Paragraph 30 continued as follows:
.. [the applicant] submitted that: a conclusion that a person represents an unacceptable risk of harm to the Australian community must be based on probative evidence concerning the risk, or likelihood, of the person committing an offence of a particular kind in the future; and a conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk: CKL21 at [70]-[74]. The applicant submitted that the Minister’s reasons did not disclose a probative basis for the finding of a future risk. In light of the evidence to the contrary that was before the Minister at the time of the decision, it was said not to be open to him to make the finding he did on future risk.
The Court’s summary of the applicant’s submission in Main caused me to review the Full Federal Court’s decision in CKL21. At paragraph 74, after citing a passage from the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (Guo)[56] the Court said:
74 As the above passage makes clear, while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further, as the above passage of the plurality in Guo indicates, a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
[56] [1997] HCA 22
Referring to Tanielu, the first point I considered was the risk of the Applicant again committing aggravated armed robbery or an offence of a similar kind.
The index offence was, as Troy DCJ observed, “plainly out of character”. It occurred eight years ago at a time when, on the evidence, the Applicant was a very different person to the person he is today. Then, he was a young, single man struggling with methamphetamine drug abuse. He was mixing with a ‘bad crowd’ and had no idea of the consequences of his actions. Now, he is an older man and a father of two children. The Applicant states he has been clear of methamphetamine use since 2018, following the birth of his son, and drug free since 2021. There is no evidence to suggest otherwise.
The Applicant is presently suffering the consequences of his actions in 2017 by being in prison and is acutely aware that if released on parole in February 2026, he faces the prospect of further incarceration and, subsequently, removal from Australia if he commits a further offence of a kind that involves harm to anyone.[57]
[57] See s 501(6)(c) of the Act and paragraph 8.1.1(1)(b)(iii) of Directions 110
I appreciate the delegate’s concern about a lack of explanation for why the Applicant committed such a serious offence, but I think the answer is that the Applicant did not think. As the Applicant stated in evidence at hearing, I was “just there in the scene” and “got stuck being a goose listening to people that I shouldn’t have”. As he later said “that’s what meth tends to do to most people”. The Applicant’s mother gave evidence at hearing. When asked about what happened, she said “we don’t really know why he did it. I don’t think even he knows why he did it. He was hanging around in the wrong crowd at that time and he was on drugs.”
If the Applicant had still been hanging around in the wrong crowd and was still using methamphetamines at the time he commenced his prison sentence in 2023 there would have been force in a submission that the risk of him again not thinking and again reoffending by committing another serious offence would be unacceptable, but that is not the evidence.
On the evidence, I agree with the delegate and the Applicant that the risk of the Applicant reoffending is low. Where the robbery occurred eight years ago without further material incident and where the circumstances of the Applicant have fundamentally changed for the better, I was not persuaded that “any risk” of the Applicant reoffending is “unacceptable”.
Referring to the Minister’s second submission, for materially the same reasons, I was not persuaded the low risk of reoffending should, nevertheless, be given greater weight than other considerations weighing in the Applicant’s favour.
Troy DCJ’s comments about the absence of “demonstrable remorse or insight” were in the context of his guilty plea. I am satisfied, now, he has considerable remorse and insight into the seriousness of his conduct in 2017.
The submissions that ‘limited weight’ should be given to the six years the Applicant spent in the community after the robbery because of two minor offences and him being on bail for the last two years and that his rehabilitation has not been tested in an unsupervised environment were not persuasive when balanced against him being unsupervised for four years after the robbery, becoming drug-free, not committing an offence of harm to anyone, and living a pro-social life of commitment to his family, his work and his community.
For the reasons given, I placed no weight on the items found in the Applicant’s cell on 15 January 2025.
The Minister’s submission about the Applicant’s employment as a concrete cutter at the time of the robbery was not persuasive. He was a different person at that time. What matters is his offer of re-employment, consequent on the person he is now.
Returning to the first primary consideration, protection of the Australian community, I kept in mind that safety of the Australian community is the highest priority of the Australian Government. In that context, I gave consideration to the two factors in paragraph 8.1.(2).
Per paragraph 8.1.(2) a), I considered the nature and seriousness of the Applicant’s conduct “to date”. The robbery in 2017 was very serious, and weighed against revocation, but the nature and seriousness of his adverse conduct since then has been minimal.
Per paragraph 8.1.(2) b), I considered the risk to the Australian community should the Applicant reoffend or engage another serious conduct and concluded that risk is low.
When applying these considerations, I concluded that protection of the Australian community weighed against revocation, but not heavily having regard to seriousness of his adverse conduct since 2017 being minimal and the low risk of the Applicant reoffending.
Family violence
The second primary consideration in paragraph 8 of Direction 110 is whether the Applicant has engaged in conduct that constituted family violence. The parties agreed there is no evidence of the Applicant engaging in such conduct, noting the broad definition of “family violence” in section 4 of Direction 110, and this consideration should therefore be given neutral weight. I agreed, and put this consideration aside.
Ties to Australia
The third primary consideration is the strength, nature and duration of the Applicant’s ties to Australia. Section 8.3 details this consideration as follows:
8.3. The strength, nature and duration of ties to Australia
(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.
The Applicant submitted this factor “must weigh very strongly in favour of revocation”.[58] The Applicant drew on the undisputed facts regarding his residency in Australia since he was 16 years old; that all his immediate family reside in Australia; his two children being Australian citizens; his regular employment in Australia; and his participation in the community with his family through the Rockingham BMX Club.
[58] Applicant's statement of facts, issues and contentions dated 13 May 2025 at [60]
The Applicant drew on the reviewable decision in which the Minister’s delegate summarised the evidence and concluded the Applicant’s ties to Australia “weigh strongly” in favour of revocation.[59]
[59] G documents, G5/32 at 41
In this proceeding, the Minister accepted the evidence summarised by the delegate and the Applicant regarding this consideration, but withdrew from the weight that should be given to it. The Minister submitted the Applicant’s ties to Australia weigh “somewhat” in favour of revocation.[60] Why the Minister’s position as to weight changed from “strongly” to “somewhat” was not explained.
[60] Minister's statement of facts, issues and contentions dated 30 May 2025 at [50]
Having regard to the evidence and paragraph 8.3(2) of Direction 110, I was not persuaded this consideration weighs only “somewhat” in favour of revocation. I agreed with the Applicant and the delegate as to the weight that should be given. On any view, the Applicant has strong and long-standing ties to Australia through family, work and the community. On the evidence, I am satisfied the Applicant’s removal from Australia would have a devastating impact on all members of his family.
This consideration weighed strongly in favour of revocation.
Best interests of minor children
The fourth primary consideration in paragraph 8 is the best interests of minor children in Australia.
As discussed above, the applicant has two minor children, Zayden and Aylalee, now aged 6 and 4. He also has a nephew, Elijah, with whom he has a close relationship. The parties agreed, appropriately, that the best interests of these children is a primary consideration in favour of revocation of the cancellation decision. The parties disagreed however on the weight that should be given to this consideration, to which I now turn.
The Applicant began by noting the views of the delegate who made the decision under review not to revoke the cancellation decision:
I accept that Mr Bradley has been a primary caregiver to his children and that he maintains frequent contact with them whilst he is incarcerated. I also note that there are current Family Court proceedings regarding their welfare whilst in their mother’s care.
I accept that it is in the very strongly (sic) in the best interests of the children to maintain close and daily personal contact with their father and not break the bond they have with him, and that this is very important to their development.
I am mindful that the best interests of Zayden and Aylalee Bradley is a primary consideration in this context. Noting that Mr Bradley has been a primary carer for Zayden and Aylalee, I accept that they would be emotionally and financially disadvantaged to a very significant extent if their father was to be returned to New Zealand. I find it it is in the best interests of Zayden and Aylalee that I revoke the visa cancellation. I have attributed this consideration substantial weight in favour of the decision to revoke the cancellation of Mr Bradley’s visa.[61]
[61] G documents, G5/32 at [87] – [89]
The Applicant built upon the conclusion of the delegate, noting the children have suffered emotionally, practically and financially upon being separated from their father since his incarceration began in February 2023. The Applicant submitted his children “miss him terribly”[62] and that his removal to New Zealand would “spell the end”[63] of meaningful contact between the children and their father for the remainder of their childhood. The Applicant pointed out, for Zayden, that would be 12 years and, for Aylalee, 14 years.
[62] Applicant’s statement of facts and contentions dated 13 May 2025 at [67]
[63] Applicant’s statement of facts and contentions dated 13 May 2025 at [71]
The Applicant also relied on Article 3 of the United Nations Convention on the Rights of the Child (the CRC) which provides that “in all actions concerning children … the best interests of the child shall be a primary consideration”. The Applicant drew on the Preamble to the CRC in which the parties to it (which includes Australia) agreed that -
the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
The Applicant drew also on a statement in the Preamble to the CRC that a child “for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.”
The Applicant went so far as to say that permanent separation of the Applicant from his children “would see Australia acting contrary to its obligations under the CRC”.[64] This submission was not developed, but it seemed unlikely if the Applicant’s removal from Australia was according to law.
[64] Applicant’s statement of facts and contentions dated 13 May 2025 at [74]
The Applicant drew on papers written by experts in the field of child psychology published in the United States about the “catastrophic” psychological and behavioural effects on children separated from their parents.
The Applicant also submitted that in Bettencourt v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (Bettencourt),[65] in the context of considering the best interests of minor children, the Federal Court noted the assessment by the Minister is required to include the “nature, extent or duration”[66] of the harm caused to the children by being permanently separated from their father.”[67]
[65] [2021] FCAFC 172
[66] [2021] FCAFC 172 at [44]
[67] Applicant’s statement of facts and contentions dated 13 May 2025 at [80]
With respect, I do not think the Court’s comments can be construed in that way. Bettencourt concerned an appeal for jurisdictional error on the ground that the Minister failed to give proper, genuine and realistic consideration to the appellant’s representations regarding the best interests of his children.[68] The Court allowed the appeal by reason of many deficiencies it found in the Minister’s reasons for decision, one of which was the absence of any description of the nature, extent or duration of the harm the children would suffer if separated from their father as set out in the appellant’s submissions, but the Court did not state this was a requirement. Rather it was, and was only, a fact specific illustration of the Minister’s failure to engage with the submission.
[68] 2021] FCAFC 172 at [19]
In any event, as the Federal Court pointed out in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs (Nguyen),[69] Bettencourt now needs to be read with caution. In Nguyen, the Court said:
Since Plaintiff M1/2021[70] it can no longer be said that the Minister in deciding whether to exercise the power conferred by s 501CA(4) is required to form the necessary state of satisfaction by considering the representations made to the Minister. Provided the Minister reads, identifies, understands and evaluates the substantial and clearly expressed claims in the representations, it is a matter for the Minister as to what, if any, weight is given to those claims and whether a matter is brought to bear in making the decision.[71]
[69] [2024] FCAFC 160
[70] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
[71] [2024] FCAFC 160 at [23]
The Applicant acknowledged technology would enable him to continue to communicate with his children, were he removed to New Zealand, but said this would be no substitute to him being a meaningful physical presence in their lives. The Applicant also relied on Ms Mohedo presently not facilitating electronic communication between the Applicant and his children whilst he is in prison, which suggests a risk that that obstruction would continue were he to be removed to New Zealand.
The Applicant also relied on the financial support he could bring to his children arising from his re-employment with his former employer following his release from prison.
The Applicant accepted that his removal from Australia would negatively affect his nephew, Elijah, but the weight that can be attributed to the nephew’s best interests is “limited”.[72]
[72] Applicant’s statement of facts and contentions dated 13 May 2025 at [62]
The Applicant concluded with the following submission:
This primary consideration, together with the Applicant’s low risk of reoffending, considerable family and community support, and significant ties to Australia, should outweigh all other considerations weighing against revocation.[73]
[73] Applicant’s statement of facts and contentions dated 13 May 2025 at [86]
The delegate reviewed the best interests of the Applicant’s children and attributed “substantial weight”[74] to this consideration in favour of revocation. In this proceeding, the Minister accepted this consideration “weighs in favour”[75] of revocation but downplayed the weight that should be attached to it.
[74] G documents, G5/32 at [89]
[75] Respondent's statement of facts, issues and contentions dated 30 May 2025 at [57]
As to the dispute between Ms Mohedo and the Applicant’s mother regarding custody of the children, currently the subject of legal proceedings, the Minister noted there is no independent evidence regarding those proceedings and submitted I should not make any finding that Ms Mohedo is not appropriately caring for her children. The Minister noted the children remain in her care. This submission was to discount the idea, apparently advanced by the Applicant, that he should be allowed to remain in Australia to fulfil the children’s need for responsible parenting.
I attached no material significance to the custody dispute between the Applicant’s mother and Ms Mohedo. It is occurring in circumstances where the Applicant has been in prison since February 2023 and will be until February 2026, at least. His absence creates a very different dynamic between all concerned that would exist if he was present and able to care for his children. I anticipate the dynamics and wishes of the parties in the custody dispute might change significantly in February 2026, if the Applicant is released on parole and is able to remain in Australia and resume participation in the care for his children.
Also, I did not hear Ms Mohedo’s ‘side of the story’. It would also be improper of me to venture a view on matters that remain to be decided by the Court. Also, my focus was on whether revocation of the cancellation decision was in the best interests of the children, which raised many more considerations than Ms Mohedo’s suitability as a mother.
The Minister submitted I should discount Ms Mohedo’s unwillingness to facilitate the Applicant having contact with his children, whether in Australia or if he removed to New Zealand, because this could be remedied by the Applicant applying for and obtaining Court orders directing Ms Mohedo to facilitate the Applicant having contact with his children. This submission was not persuasive. Meaningful contact between the Applicant in New Zealand and his children in Perth would require proactive and willing co-operation between whomever was caring for the children (likely, their mother) and the Applicant. If such cooperation is not present, in my view, Court orders could remedy the lack of contact only to a limited degree.
In response to the Applicant’s reliance on expert reports regarding the importance of children having meaningful connections with their parents, the Minister submitted the Tribunal’s role is “more nuanced”. The Minister submitted:
The best interest of the Applicant’s children must be assessed by reference to the specific matters of this matter, rather than by reference to research addressing the best interests of children more generally.[76]
[76] Minister’s statement of facts and contentions dated 30 May 2025 at [56]
This submission too was not persuasive. In my view, epidemiological studies reporting on the importance of children having meaningful connection with their parents in the interests of their long-term future is highly relevant, even if in specific cases some children do not evidence that outcome.
In response to the significance of the children losing all meaningful contact with their father if he is removed to New Zealand, at hearing the Minister submitted the weight given to this consideration should be “tempered” because the children would still have their mother in their lives. This was an unsettling submission. It brought many responses to mind, but it is enough to say I doubt the children would see it that way.
The Minister submitted “limited” weight should be given to the best interests of the Applicant’s nephew, Elijah, because the relationship is non-parental. In this respect, the Minister relied on paragraph 8.4(4)(a) of Direction 110 which states “less weight should generally be given where the relationship is non-parental”, and (e) which requires consideration of “whether there are other persons who already fulfil a parental role in relation to the child” among other considerations. The delegate accepted that it was in the best interests of the Applicant’s nephew that the cancellation decision be revoked but gave that consideration “limited”[77] weight. The Applicant agreed with that weighting, as did I.
[77] G documents, G5/32 at [93]
The more I considered the best interests of the Applicant’s children, the more heavily this consideration weighed in favour of revocation.
An important starting point was that the Applicant committed the robbery when he was 24 years old, was using drugs of addiction, had not met Ms Mohedo and the children did not exist. I had evidence, unchallenged and which I accept, that the Applicant at that time was not the better person he has become consequent (at least in part) on fatherhood.
The evidence was extensive and consistent that after meeting Ms Mohedo and having their two children, the Applicant became a committed father and partner to Ms Mohedo, supporting them emotionally, practically and financially. The children in return, as the Minister accepts, had a very close relationship with him from the time of their birth until his imprisonment for an offence they, more than likely, knew nothing about until his arrest.
True, the offence was very serious and the Applicant accepts he must serve his term of imprisonment as a consequence. The children have no choice but to come to terms with the fact that their father is incarcerated until at least February 2026, and to deal with that as best they can, but for them to lose their father altogether in any meaningful way is a far greater consequence. I weighed avoidance of that consequence very heavily in favour of revocation.
Several aspects of the evidence strengthened the weight I gave in favour of revocation by reference to this consideration.
First, whilst I sometimes harbour doubts about such claims, in this case on the evidence I accepted the Applicant is a different and better person than he was at the time of the robbery. His conduct between 2017 and 2023 is persuasive in this regard. At hearing, the Applicant gave evidence from prison. He impressed me as honest, forthright and clear in his understanding of the serious errors he made as a younger man that led to his criminal behaviour and, now, of his responsibilities as a father to his children to whom I accept he is devoted and (as a result) they are to him.
Second, it would seem on the evidence that for six years after the robbery the Applicant was in continuous gainful employment, supporting his family financially, emotionally and in practical ways such as their participation in community activities with the Rockingham BMX Club. He established himself as a good father. I am confident that, if given the chance, he will continue to be so. To take all that away from his children would be an extremely serious adverse consequence for them.
Third, I accept his evidence that he ceased using methamphetamines in 2018 and ceased using cannabis in 2021.
Fourth, on the evidence I accept the Applicant has a close relationship with his parents and his siblings. Ironically, their natural wish for him to remain in Australia tempered the weight I placed on their letters of support for him, but that was not so for the letter Ms Mohedo wrote in September 2024.
At that time, Ms Mohedo’s relationship with the Applicant had ended 11 months earlier, in October 2023, and after the Applicant had been in prison for eight months. The Applicant and Ms Mohedo had been through two years (February 2021-February 2023) of the Applicant being in the community on bail for the (then) alleged offence of aggravated armed robbery and seven months living apart consequent on the Applicant commencing his term of imprisonment for a minimum of three years. As a consequence, Ms Mohedo is currently denied the Applicant’s support in bringing up their children at their very demanding ages and, it seems, is doing so on her own.
Yet, notwithstanding their relationship being at an end and (it would seem) her poor relationships with the Applicant’s mother (at least), and with every reason to have the Applicant ‘out of her life’, Ms Mohedo wrote passionately and rationally about the importance of the Applicant remaining in Australia in the interests of their children.
Ms Mohedo spoke about the support the Applicant gave her when her mother suicided in 2020. She spoke about how she and the children relied heavily on the Applicant, emotionally and financially. She described his work ethic as “beyond incredible”. She spoke about the Applicant being a valued member of the Rockingham BMX Club where he was the track manager and she was the secretary. She spoke about how she and the children have a very strong bond with the Applicant. She described the Applicant as “not the same person he was before”. Ms Mohedo stated that if the Applicant is removed from Australia, neither she nor the children would see him again because they cannot afford to travel to New Zealand to visit him, nor could they move there. Ms Mohedo attached 11 photographs of the Applicant with his children and other members of his family, together with pictures drawn by their children.
In my view, her statement as a person who knows the Applicant probably better than anyone in the context of his qualities as a father to their children, written after her relationship with the Applicant had ended, was powerful evidence that the best interests of their children weighed heavily in favour of revocation of the cancellation decision.
Ms Mohedo did not provide a further statement for this hearing or present as a witness, and I was told she did not wish to do so, but there could be many reasons for that including the custody dispute with the Applicant’s mother. Nevertheless, I accepted her statement in September 2024 as her view about whether the Applicant remaining in Australia is in the best interests of their children.
Expectations of the Australian community
The fifth primary consideration is the expectations of the Australian community. Paragraph 8.5 details this consideration as follows:
8.5. Expectations of the Australian Community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
This consideration has been the subject of much judicial[78] and tribunal comment.[79] In summary, the Tribunal must regard the fifth consideration as a kind of deeming provision about what the Australian community expects, as articulated by the Minister. In particular, as a norm, the community expects a person who has engaged in serious conduct would not be allowed to remain in Australia. In relation to that norm, in FYBR v Minister for Home Affairs (FYBR), Charlesworth J sitting as a member of a Full Court of the Federal Court commented on this consideration, materially the same in an earlier Ministerial direction, as follows:
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12.[80]
[78] Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358 at [64] – [65]; YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; FYBR v Minister for Home Affairs [2019] FCA 185 at [75] – [76] and [100] – 101]
[79] HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377 at [44]; Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 310 at [60]
[80] [2019] FCAFC 185 at [75]-[76]
I refer also to Stewart J’s explanation of community expectations in FYBR:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
1)non-citizens will obey Australian laws when in Australia;
2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
3)in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[81]
[81] [2019] FCAFC 185 at [101]-[102]
The Applicant properly acknowledged the expectations of the Australian community weighed against revocation.
The Minister contended this primary consideration “weighs heavily” against revocation. The Minister submitted the Applicant’s offending should be regarded as very serious “such that the Australian community would expect him not to continue to hold a visa.”[82] In support of this submission, the Minister relied on paragraph 8.5(2)(c) of Direction 110 quoted above.
[82] Ministers statement of facts, issues and contentions dated 13 May 2025 at [60]
As can be seen, the Minister’s submission was drawn from paragraph 8.5(2) of Direction 110 quoted above. I was not persuaded non-revocation was appropriate “simply because” the nature of the Applicant’s offending is such that the Australian community would expect him not to continue to hold a visa. I was satisfied other factors, including factors in favour of revocation, needed to be weighed in the balance.
Also, the Minister’s reliance on paragraph 8.5(2)(c) of Direction 110 was misplaced. As stated in the text, the reference to “crimes of a violent or sexual nature” is to be read “in [the] context” of serious crimes against women, children or other vulnerable members of the community”. There is no suggestion the Applicant has committed a crime of that kind.
Nevertheless, per paragraph 8.5(1), I accepted that “as a norm” the Australian community would not expect the Government (and now this Tribunal on review) to allow the Applicant to remain in Australia. That norm weighed against revocation.
Other considerations
I turn to the three non-exhaustive “other considerations” in paragraph 9: legal consequences of the decision, extent of impediments if the Applicant is removed; and the impact of the decision on Australian business interests. Details concerning these three other considerations are provided in paragraphs 9.1 (including 9.1.1 and 9.1.2 concerning non-citizens covered or not by a protection finding), 9.2 and 9.3, respectively, which I took into account.
Legal consequences
The Applicant submitted he is not the subject of a protection finding and does not seek to engage Australia’s protection obligation. Accordingly, he submitted, this consideration is “neutral”.[83]
[83] Applicant's statement of facts, issues and contentions dated 13 May 2025 at [87]
The Minister noted that not to revoke the cancellation decision would render the Applicant liable to be removed from Australia as soon as practicable after completing his term of imprisonment for the robbery and any period of immigration detention pending removal from Australia. The Minister noted that if removed, the Applicant would be unable to satisfy the special return criteria in clause 5001(c) of Schedule 5 to the Regulations which is required for the grant of most visa types.
The Minister submitted these legal consequences, whilst adverse to the Applicant, are intended purposes of the statutory scheme and so the Tribunal should “afford negligible weight” to this consideration, but “in favour” of revocation.[84]
[84] Minister’s statement of facts, issues and contentions dated 30 May 2025 at [63]
I gave this consideration neutral weight. True, the legal consequence of removal for the Applicant are severe, but to weigh that consequence in favour of revocation in this case would have materially and inappropriately duplicated the weight I gave to other considerations that weighed in favour of revocation.
Extent of impediments if the Applicant is removed to New Zealand
Regarding the second ‘other consideration’ under paragraph 9(1)(b) of Direction 110, the Applicant acknowledged he would not face any significant cultural or language barriers if removed to New Zealand, but submitted he would face other impediments. He relied on the circumstance that he has not lived in New Zealand since he was 16 years old and all his immediate family live in Australia. At hearing, the Applicant stated (and I accept) that his grandparents who were living in New Zealand are now dead. He has little if any family or social connections in New Zealand and would, for all practical purposes, need to ‘start again’ in terms of finding work, accommodation and social connection.
The Applicant also noted removal would also involve loss of all realistic or practical connection with his children with whom he has close bonds.
The Applicant also relied on the circumstance that he lives with Type 1 diabetes and is prone to hypo-unawareness, meaning he struggles to control his blood sugar levels and to recognise when he is experiencing hypoglycaemia. That lack of recognition means he needs others to assist him in managing his condition and responding to an episode of severe hypoglycaemia. At hearing, the Applicant explained that sometimes he is unaware he is experiencing hypoglycaemia in time to address it himself before serious consequences follow and therefore needs others to recognise the hypoglycaemia before he does and then help him to address it. The applicant relied on a report from the Applicant’s endocrinologist, Dr Clay, dated 11 April 2025 in this regard.[85]
[85] Applicant's supplementary bundle, page 53
In all, the Applicant submitted he would face significant financial, emotional and potentially medical impediments were he removed to New Zealand. This consideration, the Applicant submitted, weighed in favour of revocation.
The Minister noted, as acknowledged, the Applicant would not face any language or cultural barriers if returned to New Zealand. The Minister noted the Applicant’s employment history suggests he would likely obtain work in New Zealand. The Minister submitted that while the Applicant would face some practical financial and emotional hardship if returned to New Zealand, he would still be able to establish himself and maintain basic living standards.
The Minister submitted the Applicant would be able to access health and welfare services to the same standard as other New Zealand citizens. In response to the Applicant’s submissions about losing access to his team of medical specialists who are presently treating his diabetes, the Minister submitted there is “no evidence” the Applicant would not be able to access the same or similar medical support in New Zealand.
The Minister appeared to agree, nevertheless, that this consideration weighed in favour of revocation, but submitted it should not be given “significant or overwhelming” weight in favour of revocation and that the extent of any impediments in the long-term will be limited.[86]
[86] Minister’s statement of facts, issues and contentions dated 30 May 2025 at [65] – [67]
I accepted the Applicant is familiar with New Zealand and would know how to resume life there. In terms of social norms, living standards, health care, accommodation and opportunity, it is a country materially similar to Australia. However, it is a country where he has not lived since he was 16 years old. In almost every respect, he would need to start again and by himself. He would need to find work, accommodation, appropriate health care (especially to help him manage his diabetes) and to do so without family support.
By reason of distance, removal would also create substantial impediments to him having any further material connection with his children contrary to his clear wishes. On any view, especially having regard to his history, it is a circumstance that would test his resolve especially where he has no wish to live in New Zealand.
The Applicant’s situation is quite different to a person who comes to a country knowing no one, but chooses to come.
Having considered the competing submissions, the impediments the Applicant would face if removed to New Zealand weighed moderately in favour of revocation.
Impact on Australian business interests
Regarding the third ‘other consideration’ under paragraph 9(1)(c) of Direction 110, both parties submitted there is no evidence there would be any such impact and that this consideration is either not applicable or neutral. I accepted the submission.
Weighing the competing considerations
The weighing exercise required me to address the precise circumstances of the individual case. I took into account the following observations of the Federal Court in CRNL regarding consideration of the relevant matters:
34 … in order to meet the requirements of the Direction, the Tribunal had to undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is “another reason” to revoke the cancellation.
35. The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[87]
[87] [2023] FCAFC 138 at [34]-[35]
Arising from the first primary consideration, I kept in mind that the safety of the Australian community is the highest priority of the Australian Government. I kept in mind the principle that remaining in Australia is a privilege that Australia confers on non-citizens (in this case the Applicant) in the expectation that they are law-abiding, will respect Australian institutions and will not cause or threaten harm to individuals or the Australian community. Informed by these principles and that the index offence was very serious, the first primary consideration weighed against revocation but not heavily having regard to seriousness of his adverse conduct since 2017 being minimal and the low risk of the Applicant reoffending.
The fifth primary consideration (expectations of the Australian community) also weighed against revocation.
The question was whether those two primary considerations were outweighed by the considerations in favour of revocation. I acknowledge the delegate’s conclusion, particularly at paragraphs 109 – 117 of their reasons for decision, that the balance weighed against revocation. Respectfully, in my view, the balance falls the other way. The best interests of the Applicant’s children weighed heavily in favour of revocation and, when coupled with the heavy weight I gave to his ties to the community and some weight to the impediments he would face if removed to New Zealand, the balance overall weighed in favour revocation.
DECISION
Where the Applicant did not pass the character test, but I was not satisfied there is another reason for why I should revoke the cancellation of the Applicant’s visa, I set aside the decision under review and determined the cancellation of the Applicant’s visa should be revoked with the result that the Applicant s continues to hold his visa.
Date of hearing: 18 June 2025
Advocate for the Applicant: L Martin
Advocate for the Minister: J Fyfe
Solicitor for the Applicant: Estrin Saul Lawyers
Solicitor for the Minister: Minter Ellison
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