Brennan and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2198
•20 October 2025
Brennan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2198 (20 October 2025)
Applicant/s: Dylan Travis Brennan
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4527
Tribunal:Senior Member K Rosser
Place:Sydney
Date:20 October 2025
Decision:The decision under review is affirmed
...............[SGD]...............
Senior Member K Rosser
CATCHWORDS
MIGRATION – Cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the cancellation – Direction No 110 - protection of the Australian Community – expectations of the Australian Community – interests of minor children – legal consequences of decision under review - impediments
LEGISLATION
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Migration Act1958 (Cth)
Migration Regulations1994 (Cth)CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FHHM v Minister for Immigration [2022] FCAFC 19
Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration [2018] FCA 594SECONDARY MATERIALS
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
These reasons for decision concern an application for review of a decision made by a delegate of the Minister on 28 July 2025 not to revoke the mandatory cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa (visa). The applicant is a national of New Zealand and the delegate’s decision was made under s 501CA(4) of the Migration Act 1958 (Cth) (Act)
The applicant’s visa was cancelled on 12 August 2024 because the delegate found that the applicant had a substantial criminal record and because he was serving a sentence of imprisonment on a full-time basis in South Coast Correctional Centre in New South Wales, for an offence against a law of the Commonwealth, a State or a Territory. In relation to this, on 10 May 2024, the applicant was convicted in the District Court of New South Wales at Parramatta of robbery in company, for which he was sentenced to a term of imprisonment of two years to be served by way of Intensive Correction Order (ICO). While serving the ICO, the applicant was convicted on 5 July 2024 of four counts of Shoplifting value <=$2000 and sentenced to a term of imprisonment of three months in respect of each conviction, to be served concurrently.
On 4 September 2024, the applicant made representations seeking revocation of the delegate’s decision. The applicant provided further material in support of the revocation request in February and April 2025.
On 28 July 2025, the applicant was notified of the delegate’s decision not to revoke the cancellation of his visa. He lodged the application for review on 5 August 2025.
The application for review was heard on 29 and 30 September 2025. The applicant appeared in person at the hearing. He was represented by Ms M Mamarot, solicitor. Mr A Sharma, solicitor, represented the Minister.
The applicant gave oral evidence, as did his brother Mr Shaun Brennan, his mother Ms Lorna Mahara and his friend and former employer, Mr Arron Myers.
For the following reasons, I have decided to affirm the decision under review.
JURISDICTION
The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A) if the application for review is lodged within nine days after the decision is notified: s 500(6B). As the application for review was lodged on 5 August 2025, which is within nine days after the decision was notified, the Tribunal has jurisdiction to hear and determine the application.
EVIDENCE AND SUBMISSIONS
The following material was included in the Joint Tender Bundle (JTB), the Supplementary Bundle (SB) prepared by the Minister and the applicant’s Tender Bundle (ATB):
(a)The applicant’s statement of facts, issues and contentions (SOFIC) - Exhibit A1
(b)The applicant’s statement (unsigned but apparently made on 9 September 2025) - Exhibit A2
(c)Mr Shaun Brennan’s statutory declaration dated 23 September 2025 - Exhibit A3
(d)Ms Lorna Mahara’s statutory declaration dated 23 September 2025 - Exhibit A4
(e)The Minister’s SOFIC – Exhibit R1
(f)The Minister’s Tender bundle – Exhibit R2
(g)The Minister’s Supplementary Bundle – Exhibit R3
(h)The G-documents – Exhibit G
In addition to the above material, I have also considered:
(a)The oral evidence given by the applicant and his witnesses; and
(b)The closing oral submissions made by the parties’ representatives.
Relevant parts of the documentary evidence, the oral evidence and the submissions are referred to below.
BACKGROUND
The following background is taken largely from the parties’ SOFICs,[1] the sentencing judge’s remarks[2] and from other material contained in the Exhibits. This material includes but is not limited to the applicant’s statement[3] and a report dated 10 April 2024 prepared by Mr Andrew Wong, forensic psychologist,[4] which was before the sentencing judge.
[1] JTB 228-242 and 252-278.
[2]. JTB 243-251.
[3] JTB 63-66.
[4] JTB 163-166
Personal background
The applicant is 29 years old, having been born in Hamilton, New Zealand in 1996. He is of Maori background. The applicant moved to Australia in 2011, when he was almost 15 years old. At that time the applicant’s parents already lived in Australia with his younger sisters. The applicant’s brother came to Australia shortly thereafter. The applicant’s immediate family members in Australia are his parents (Jason Brennan and Lorna Mahara), his brother (Shaun) and his two younger sisters. These are Ashlee and a sister who is a minor, referred to in these reasons for decision as N.
The applicant was raised in an impoverished home environment, and told Mr Wong that his parents struggled to make ends meet. The applicant remembered having insufficient food to eat. He stated that his family lived in an unsafe neighbourhood, where gangs and criminal behaviour were prevalent. In his report Mr Wong described the applicant as ‘traumatised, poorly socialised, and gullible’.[5] Mr Wong stated that the applicant’s thought pattern was simple, that he rarely articulated complex thinking, which suggested poor educational outcome or possible cognitive impairments.
[5] JTB at 164
The applicant told Mr Wong that from around the age of six he began leaving home and would be escorted home by police almost every night until he moved to Australia. He stated that he disliked being home due to sexual abuse by his uncle. He sought safety through older anti-social groups including organised criminals, where he was ordered to engage in various criminal activities, such as breaking into cars, breaking into houses, and violent assaults.
According to Mr Wong's report, child protection services became involved when the applicant was 13 years of age. He was then placed in the care of his grandparents. However, the applicant told Mr Wong that he continued to associate with criminal gangs until his family moved to Australia in 2011. After moving to Australia, the applicant lived with his family in the Campbelltown area. The applicant disclosed to Mr Wong that he was sexually abused by an uncle when he was four to five years old [6]. He told Mr Wong that the incident happened at his home when his parents were not present. He also reported that he had been sexually abused by a worker in a juvenile detention centre when he was 16 years old.
[6] JTB at 166
According to the applicant, he received poor grades at school and struggled to read until he was incarcerated, when he independently improved his reading fluency. The applicant attended special education classes in high school, due to learning difficulties. After moving to Australia, the applicant attempted Year 10 in a mainstream school but was expelled for fighting with another student within six months of enrolment.
According to Mr Wong’s report, the applicant has never been formally employed. He has worked in construction, demolition and carpentry in the past and predominantly undertook low skilled labouring work for cash payments. The applicant sustained a workplace injury in 2021, which injured his right wrist. This injury left him incapacitated for several months and subsequently unable to work in heavy labouring roles.
The applicant told Mr Wong that he started smoking cannabis at the age of seven and by the age of eight he was smoking cannabis daily. After arriving in Australia, he abstained from cannabis for a year and then returned to a daily cannabis habit, which he maintained until the date of his arrest. The applicant started smoking methamphetamine, which he then smoked daily. Between 2017 and 2022, the applicant told Mr Wong that he smoked the least amount of methamphetamine and did not maintain a daily habit. The applicant’s grandfather died in 2022, which led to the applicant being highly distressed. He then started using 7g of methamphetamine daily for some time, intending to end his life. The applicant told Mr Wong that he had not returned to methamphetamine use since his arrest. The applicant has also experimented with heroin and GHB[7] in the past.
[7] Gamma-hydroxybutyrate.
Mr Wong diagnosed the applicant with the following mental health conditions:
·Complex Post-traumatic Stress Disorder with dissociative features
·Cannabis Use Disorder, moderate
·Amphetamine Use Disorder, severe, in early remission
The applicant has also been diagnosed with depression and anxiety, for which conditions he takes medication. The applicant stated at the hearing that he could not remember when or by whom these conditions were diagnosed.
At the hearing, the applicant stated that he has not used cannabis or other illicit drugs since his incarceration. He stated that he has also not consumed alcohol since that time. The applicant indicated that while in prison he used Buprenophine strips. These had not been prescribed and he obtained them from a friend, with whom he is no longer in contact. The applicant stated he was prescribed Buprenophine in the IDC. He was on a weekly dose for the first month and subsequently a monthly dose. He was then prescribed Buvidal injections. He no longer wishes to take Buvidal and has stopped having the injections, although this was not done on medical advice. The applicant stated that he wishes to be entirely drug-free.
Criminal history
According to Mr Wong’s report, the applicant first became involved in criminal activity as a six-year-old child. The applicant told Dr Wong that he joined a gang, which offered him a feeling of belonging and safety. The applicant described to Mr Wong being ordered to ‘do what the leader told us to do’. The applicant described engaging in behaviours such as hammering people’s knees, robbery, and breaking into people’s homes. The applicant stated that gang members ceased communication with him when he was placed into juvenile detention. He stated that soon after his juvenile criminal matter was resolved, his mother moved him to Australia. The applicant told Mr Wong that within a year of arriving in Australia he began associating with antisocial peers, although he denied joining another gang.
The applicant has an extensive criminal history in Australia starting from 2013, a little over two years after he arrived from New Zealand. The applicant has been convicted of driving offences, drug offences, affray, shoplifting and larceny offences. These offences have resulted in fines, licence disqualification, community service orders, community corrections orders, good behaviour bonds and terms of imprisonment. Prior to 2014, the applicant was convicted of multiple, minor driving offences, which were all disposed of by fines and a period of licence disqualification.
From 2014, the applicant’s criminal history is summarised as follows:
·On 28 August 2014, the applicant was convicted in the Local Court of New South Wales of Drive motor vehicle during disqualification period – 1st offence. He was placed on a 12-month good behaviour bond, with a licence disqualification period of two years.
·On 1 September 2014, which was three days after the applicant’s good behaviour bond was imposed, the applicant was detected driving while disqualified. On 8 September 2014 the applicant was again detected driving while disqualified.
·On 6 August 2015, the applicant was called up for breaching the good behaviour bond imposed on 28 August 2014 and was sentenced to three months imprisonment. He was also convicted of two counts of Drive motor vehicle during disqualification period 2nd offence. In relation to the offence committed on 1 September 2014, the applicant was sentenced to three months imprisonment. In relation to the offence committed on 8 September 2014, the applicant was sentenced to nine months imprisonment, with a two-month non-parole period. On the same day, the applicant was also convicted of Shoplifting T2, for which he was sentenced to a term of imprisonment of one month. The applicant appealed the severity of the penalties imposed. However, the appeal was dismissed by the New South Wales District Court on 6 October 2015 and the penalties imposed were affirmed.
·On 22 September 2015, the applicant was convicted of three charges of Fail to appear in accordance with bail acknowledgement. Minor fines were imposed in respect of each offence.
·On 18 May 2016, the applicant was convicted in the Local Court of New South Wales of Goods in personal custody suspected being stolen (not m/v) and was sentenced to imprisonment for one month. On the same day, the applicant was also convicted of Affray-T1 and Possess prohibited drug. In relation to the affray charge, the applicant was given an 18-month good behaviour bond. In relation to the possession charge, no penalty was imposed.
·On 19 September 2017 the applicant was called up for breaching the good behaviour bond imposed on 18 May 2016. On the same day, he was convicted in the Local Court of New South Wales of multiple charges of larceny, for which community service orders were imposed.
·On 4 June 2018, the applicant was convicted in the Local Court of New South Wales of minor offences, which were disposed of by way of fine and no other penalty.
·On 19 July 2018, the applicant was again called up for breach of the good behaviour bond imposed on 18 May 2016. The Court imposed a Community Service Order of 100 hours.
·On 9 November 2018, the applicant was convicted in the Local Court of New South Wales of multiple offences of larceny and was sentenced to a Community Correction Order for a period of 12 months with 120 hours of community service.
·On 29 March 2023, the applicant was convicted of Affray-T1. He was sentenced to a Community Correction Order for a period of 18 months with 100 hours community service.
·On 10 May 2024 the applicant was convicted in the District Court of New South Wales of Robbery in company. He was sentenced to two years imprisonment, to be served by way of Intensive Corrections Order in the community. At the time of this offence, the applicant was subject to the 18-month Community Correction Order imposed on 29 March 2023.
·On 5 July 2024, the applicant was convicted of four counts of Shoplifting value <= $2000 and sentenced to a term of imprisonment of three months in respect of each conviction, to be served concurrently.
·On 19 September 2024, the applicant was convicted of two further offences of Enter/leave restricted area no process ticket - adult and intentionally mark premises etc without prescribed consent. Minor fines were imposed in respect of these convictions.
The convictions and sentence that are particularly relevant to this decision are the offences of which the applicant was convicted on 10 May and 5 July 2024. However, the delegate had regard to the applicant’s conviction for affray in 2016 and 2023, as well as his convictions for the offence of Robbery in company on 10 May 2024, as representative of escalating criminal conduct. The delegate also had regard to the frequency of the applicant’s offending, taking into account the totality and cumulative effect of his offending conduct.
Conduct in prison and immigration detention
Evidence was provided concerning the applicant’s conduct while in prison. The following incidents and resulting punishments are recorded in records held by NSW Corrective Services:[8]
·December 2015 – Give False Misleading Info – punished by 56 days good behaviour
·June 2016 – Assaults – punished by 7 days in cells
·August 2023 – Intimidation – punished by reprimand and caution
·August 2023 – Possess Offensive Weapon – punished by 21 days off by-ups
·October 2023 – Create Possess Prohibited Goods – punished by reprimand and caution
[8] JTB 95 – 96.
Material provided by the respondent indicates that that two conduct issues have been recorded since the applicant has been in immigration detention. These are the discovery of home brew in the applicant’s room at the detention centre and the applicant being involved in a physical altercation with another detainee.[9]
[9] JTB 99 –100.
Legislative framework
Section 501 of the Act deals with decisions to cancel a visa on character grounds.
Relevantly to this case, under s 501(3A) the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more.
In accordance with s 501CA(3), as soon as practicable after making a decision under s 501(3A), the Minister must give the person whose visa was cancelled written notice setting out the decision together with particulars of specified information that were the reason or part of the reason for making the decision. The Minister must also invite the person whose visa was cancelled to make representations to the Minister about revocation of the decision.
Under s 501CA(4) the Minister may revoke the original decision if representations are made in accordance with the invitation and the Minister is satisfied that the person passes the character test (as defined by s 501) or that there is another reason why the original decision should be revoked.
An application to review a decision made under s 501CA(4) not to revoke the cancellation of a visa may be made to the Tribunal under s 500(1)(ba).
The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
In this case, ‘Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction) applies.
For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a 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.
Informed by these principles, in making a decision I must take into account the relevant primary and other considerations set out in the Direction.
Section 7.1 of the Direction states that appropriate weight is to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than ‘other’ considerations.
The primary considerations are set out in section 8 of the Direction. They are:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
A non-exclusive list of other considerations is set out in section 9 of the Direction. They are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and
(3) The impact on Australian business interest.
In FHHM v Minister for Immigration,[10] the Full Federal Court considered 8.4 of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ (Derrington J agreeing) referred to remarks made by Colvin J in Suleiman v Minister for Immigration,[11] and stated at [34] that ‘…particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations’.
[10] [2022] FCAFC 19.
[11] [2018] FCA 594 at [23].
ISSUES
The issues to be decided in this matter this matter are:
·Does the applicant pass the character test?
·If not, is there is another reason to revoke the decision cancelling the applicant’s visa, taking into account considerations in the Direction and any other relevant considerations?
CONSIDERATION
Does the applicant pass the character test?
As noted above, s 501(3A)(a)(i) of the Act, the Minister must cancel a visa if a person does not pass the character test. A person will not pass the character test if the person has a substantial criminal record. A person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
The applicant concedes that he does not pass the character test. I find this to be the case on the basis that the applicant was sentenced to a term of imprisonment of two years, to be served by ICO.
Is there is another reason to revoke the decision cancelling the applicant’s visa, taking into account considerations in the Direction and any other relevant considerations?
I have considered each of the relevant primary and other considerations. The applicant did not claim and the evidence does not suggest that there are any other relevant considerations.
Primary considerations:
Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered 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.
As required by 8.1(2) of the Direction, I have considered:
(a)the nature and seriousness of the applicant’s conduct; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
In considering the nature and seriousness of the applicant’s conduct, in accordance with 8.1.1(1)(a), I must have regard to the fact that violent crimes are viewed very seriously by the Australian government and the Australian community.
While the applicant has an extensive criminal history, he has committed relatively few crimes of violence. That said, the applicant’s convictions for affray and more particularly his conviction for robbery in company can be characterised as crimes of violence.
In relation to the seriousness of the applicant’s offending generally, relevant factors under 8.1.1(1) that I must consider are:
·The sentence imposed on the applicant - 8.1.1(1)(c);
·The impact of the applicant’s offending on any victims of offending and their family – 8.1.1(1)(d);
·The frequency of the applicant’s offending and/or whether there is any trend of increased seriousness – 8.1.1(1)(e);
·The cumulative effect of repeated offending – 8.1.1(1)(f); and
·Whether the applicant has re-offended since being formally warned about the consequences of further offending in terms of the applicant’s migration status – 8.1.1(1)(g).
In relation to the sentence imposed on the applicant, in 2024 the applicant was sentenced to an ICO for a period of two years for robbery in company and to four terms of imprisonment of three months to be served concurrently for shoplifting. In New South Wales an ICO is a sentence of imprisonment which is served in the community.[12] While an ICO cannot be imposed for any longer than two years and the custodial sentences for shoplifting are relatively short, the sentences are relevant to the seriousness of the applicant’s offending. This is because s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
[12] See s 7(1) of the Crimes (Sentencing Procedure) Act (NSW)1999.
In relation to the impact of the applicant’s offending on victims and their family, the only direct evidence of this is from the victim of the applicant’s offence of robbery in company. In this incident, the applicant and his co-accused stole a leased bicycle from the victim.
In the victim impact statement that was tendered in the sentencing proceedings, the victim stated:[13]
·The incident deeply affected him.
·Losing his bike was tough on him financially, as he now must pay $250 per fortnight to pay for the bicycle.
·This adds to his stress because he is already struggling to pay rent, college fees and his education loan.
·He has lost his part-time jobs because he no longer has a bicycle.
·The incident was also hard on him emotionally. It has affected him mentally and he is afraid to go outside at night.
·Physically, he suffered bruises to his hand and leg.
·Because of the incident, he had to change his address for safety reasons.
·The incident left him struggling both emotionally and financially. It scared and demotivated him.
[13] JTB 446-447.
In sentencing remarks, the Court noted that the applicant’s co-accused exerted a greater degree of violence on the victim, although that needed to be considered in the context of a joint criminal enterprise. The Court stated:[14]
There was not only a threat of violence, but actual violence towards the victim in circumstances where it was late at night, and whilst he would not fall within what is generally regarded as a vulnerable position by way of employment, he was certainly vulnerable to the extent, in the more general sense of the word, as a result of him being on his own at night with English not as his first language. I am satisfied that he would have been terrified when confronted by two men he did not know in a violent manner, when he was riding home on his bike.
The bike that was stolen, he rented for $79 a week. He also had to pay an excess of $2000 recompense to that company and forfeited his deposit. The total amount of loss is $2350. That does not take into account the fact he, as he set out in his Victim Impact Statement, suffered the inconvenience and inability to work as a result of losing the bicycle. I am not satisfied the amount falls towards the lower end, as a small quantity taken.
[14] JTB 66-67.
Based on the Victim Impact Statement and the Court’s sentencing remarks, I find that the robbery in company offence had a significant adverse impact on the victim.
In relation to the frequency of the applicant’s offending, it is not in dispute that the applicant has an extensive criminal record. As noted above, the applicant’s early offending consisted largely of driving offences. However, he has gone on to commit offences including larceny and shoplifting, affray on two occasions and the robbery in company offence. This indicates that there has been a trend of increasing seriousness in the applicant’s offending, which is also demonstrated by the sentences imposed on the applicant. Initially the applicant was subject to fines and bonds. He was then subject to community corrections orders, then to imprisonment and an ICO.
In relation to the cumulative effect of repeated offending, as noted above, prior to 2014 the applicant’s minor driving offences were disposed of by fines and a period of licence disqualification. However, from 2014 the seriousness of the applicant’s offending increased. While the applicant was convicted of further driving offences in 2014 and 2015, among other offences over subsequent years he was also convicted of affray in 2016 and again in 2023, of larceny in 2017 and 2018, and of robbery in company in 2024.
Furthermore, the applicant has committed several offences while subject to non-custodial sentences. For example, three days after a good behaviour bond was imposed on the applicant in August 2014, the applicant was detected driving while disqualified. He was again detected driving while disqualified only one week later. This led to the applicant being called up for breaching the good behaviour bond, which in turn led to periods of imprisonment. The applicant was also convicted of shoplifting during the period that he was subject to the good behaviour bond. In September 2017 and in July 2018, the applicant was called up for breaching a good behaviour bond which was imposed on him in May 2016. The applicant’s robbery in company offence was committed while he was subject to a Community Correction Order which was imposed in March 2023. Furthermore, subsequent offences were committed while the applicant was subject to the ICO imposed on him for the robbery in company offence.
Other than during the period from 2018 to 2023, the applicant has been frequently before the courts since 2013. His offending has consumed considerable court time and resources. In addition, although the generally less serious nature of the applicant’s individual offences led to non-custodial sentences, the fact that the applicant has been called up on several occasions for breaches of the conditions of those non-custodial sentences demonstrates a disregard for the law.
At the hearing, the applicant was questioned about the recorded prison and immigration detention offences. In relation to the prison offences, in general terms the applicant’s evidence was to the effect that he could not remember the specifics of the incidents and/or he denied that he was involved. In relation to the conduct issues in immigration detention, the applicant stated that the home brew had been made by his former cellmate who was returned to New Zealand the night before the home brew was discovered. He stated that his new cellmate knew nothing about it. The applicant stated that he had ‘taken ownership’ of the home brew because otherwise both he and his new cellmate would have been punished for it. In relation to being involved in an altercation with another detainee, the applicant agreed that this had occurred and stated that the detainee concerned had been making derogatory comments about his (the applicant’s) mother.
I place no weight on either the prison incidents or the detention centre incidents in determining the nature and seriousness of the applicant’s offending. I accept that the applicant genuinely could not remember details of the prison incidents. I note that none of these incidents lead to criminal charges. In relation to the incidents in immigration detention, I accept that the applicant’s explanation in relation to the home brew incident is plausible. In relation to the physical altercation, while this suggests that the applicant can be volatile, it did not lead to any criminal charges.
There is nothing to suggest that the applicant provided false or misleading information to the Department. Therefore 8.1.1(1)(g) is not relevant. Further, the applicant has not been formally warned about the consequences of further offending in terms of his migration status, which means that 8.1.1(1)(h) is also not relevant. Neither is 8.1.1(1)(i), as all the applicant’s offences were committed in Australia.
Overall, while I accept that the applicant’s offences of affray and robbery in company involved violence, the violence involved was at a low level. I am not satisfied that the applicant’s offending can be categorised as very serious. However, the cumulative effect of the applicant’s offending over several years, coupled with the fact that he has offended while being subject to court orders, leads me to conclude that the applicant’s offending should be regarded as serious.
Risk to the Australian community – 8.1.2
In accordance with 8.1.2, when assessing the risk that the applicant may pose to the Australian community, I must have regard to, cumulatively:
·The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence about the risk of the applicant re-offending, as well as evidence of rehabilitation achieved by the time of the decision.
In submissions, the applicant’s representative conceded that should the applicant engage in further criminal or other serious conduct, the nature of the harm to individuals or the Australian community would be serious. I agree that this is the case. I find that if the applicant offended in the future in the way he has offended in the past, this could cause serious physical, psychological and financial harm to members of the Australian community.
In relation to the likelihood of the applicant engaging in further criminal or other serious conduct, I have first considered the information and evidence on the risk of the applicant reoffending.
In his report, Mr Wong states that the applicant has a moderate risk of general reoffending.[15] This assessment was based on several criminogenic and non-criminogenic risk/need factors. At the hearing, the Minister’s representative suggested that Mr Wong’s opinion in this regard should be treated with caution because of the limited material that Mr Wong had before him; that is, the Statement of Agreed Facts and the Bail Report. However, Mr Wong was clearly aware of the applicant’s record of offending, which he refers to at [34] of his report.[16] Mr Wong was also aware that the applicant had not offended between October 2017 and January 2023: see [36] of his report.[17] Even if Mr Wong did have limited material before him, this does not lead me to place less weight on his report.
[15] JTB 172
[16] JTB 170.
[17] JTB 170.
I have also considered evidence concerning the applicant’s rehabilitation. The evidence supports a conclusion that the applicant has taken steps towards rehabilitation.
First, in his report Mr Wong comments that the applicant fears further incarceration and is motivated to turn his life around.[18] Second, the applicant pleaded guilty to the most recent offences, which as the Court noted, meant that the victim was not required to give evidence. The Court accepted that the plea of guilty could be considered in mitigation.
[18] JTB 175.
Third, in the personal circumstances form provided to the delegate in support of the request to revoke the cancellation of his visa,[19] the applicant stated that he has undertaken programs aimed at supporting rehabilitation including:
·Completion of drug and alcohol positive lifestyle courses while in custody;
·Participation in the Positive Lifestyle’s Program at John Moroney Correctional Centre;
·Opioid Substitution Therapy Program at Villawood Immigration Detention Centre; and
·Online courses relating to drug and alcohol at Bankstown Library, run by Universal Class.
[19] JTB 124 – 127.
Fourth, the applicant prepared a plan for integrating into the community, which was also provided in support of the request to revoke the cancellation of his visa. The applicant identified the following strategies to reduce the risk of putting himself into difficult situations:[20]
Continue to see D&A Clinic to get my monthly buvidal injection
Continue to take prescriptions provided by my GP
Connect to local supports i.e. D&A programs
Continue with smart recovery program
Plan my surroundings and social groups, friends, Workmates where risk are higher
(prevention)
Stay connected with my older brother daily, and if I need to work through anything, I can talk to him for guidance before making any decisions.
[20] JTB 133.
Fifth, the applicant’s oral evidence, which I accept, is that he has not used alcohol or illicit drugs since he was incarcerated, even though both such substances can be obtained in prison and in immigration detention.
However, several factors lead me to conclude that the applicant’s rehabilitation is in an early stage and remains untested.
First, the applicant continued to consume alcohol and drugs in breach of a condition of his ICO.[21] The applicant conceded that this was the case during his oral evidence.
[21] JTB 708.
Second, in assessing the applicant to be at a moderate risk of reoffending, in his report Mr Wong states that this directly translates to a need for a moderate level of intensity of intervention and monitoring.[22] Mr Wong noted that the applicant’s biggest protective factor was his connection with his family, and his personal motivation for self-improvement. However, Mr Wong stated that the applicant ‘lacked the coping strategies to completely desist from drug abuse, especially under significant stress’.[23]
[22] JTB 172.
[23] JTB 172.
Second, in relation to the applicant’s family operating as a protective factor, even accepting that the applicant has a close bond with his family, that bond has not deterred the applicant from consuming illicit drugs and excessive alcohol in the past. In his report, Mr Wong noted that the applicant’s family members were prosocial and supportive in their own way. However, he also stated that his parents and siblings ‘did not appear to have adequate resources or capacity to support his desistance [from substance abuse]’.[24]
[24] JTB 172.
Third, Mr Wong’s report recommends the following treatment plan:[25]
-Neuropsychological assessment and brain scans to understand the extent of his substance-related cognitive impairments.
-Residential alcohol rehabilitation for at least 8 weeks.
-Outpatient drug abuse counselling.
-Long-term psychological intervention. He had been referred to You in Mind, which is a free psychological therapy service for people diagnosed with mental illness, financially disadvantaged, and living within the Southwestern Sydney PHN catchment (including Campbelltown). The service offers 12 free sessions, although I understand that further sessions can be sought on a needs-basis, which I believe he satisfies for another round of 12 sessions. After the initial 24 sessions, it is anticipated that he would have secured employment and can continue working with the same psychologist under the Medicare system. He would benefit from Trauma-Informed Cognitive Behaviour Therapy along with Schema Therapy or Dialectical Behaviour Therapy approaches to target his complex trauma. An Attachment-based approach may also be indicated for his complex trauma. As complex trauma can manifest differently in different patients, an eclectic and flexible approach is required to manage such a complex and dynamic disorder. He would also need to develop a relapse prevention plan and be monitored by his therapist over the course of his treatment.
-Narcotics Anonymous.
-Supervision for at least 2-years to ensure his compliance with the above treatment plan.
[25] JTB 175 – 176.
While the applicant has participated in a range of courses and activities addressing his substance abuse issues, the applicant has not had ongoing therapy to address his history of complex trauma, including experiences of sexual abuse. Further, while I accept the submission made on behalf of the applicant that Mr Wong’s report does not suggest that the applicant is inherently dangerous or beyond rehabilitation and that the District Court, in sentencing the applicant to an ICO, accepted that the applicant did not pose a general risk to the community, the applicant has an entrenched drug dependency, which on the applicant’s evidence goes back to early childhood.
Moreover, as noted above, the applicant continued to use illicit drugs and consume alcohol in breach of a condition of his ICO. This undermines his claim to rehabilitation. I consider that the applicant remains vulnerable to relapsing into substance abuse in stressful situations, which in turn leads to a risk of re-offending. While the applicant’s reintegration plan shows what he wants for his future, the evidence overall demonstrates that the applicant is at an early stage in his rehabilitation. While I accept that the applicant has not taken drugs or consumed alcohol since his incarceration, his commitment to not doing so remains untested in the community.
Taking into account Mr Wong’s report and the evidence concerning the degree of rehabilitation achieved, I find that the likelihood of the applicant engaging in further criminal or other serious conduct is moderate.
Conclusion in relation to protection of the Australian community
I have found that the applicant’s offences are serious. I accept that should the applicant again engage in similar conduct the resulting harm to an individual and more broadly to the Australian community would be serious. I consider that the risk that he will re-offend is moderate. I accept that the applicant has demonstrated remorse. However, the applicant has a long history of substance abuse, which has been central to his offending. He has been diagnosed with substance abuse disorders, as well as with post-traumatic stress disorder. While I accept that the applicant has not consumed cannabis or other illicit drugs since his incarceration, until recently the applicant was taking a prescribed opioid substitute. The applicant’s evidence at the hearing was that he stopped taking this prescription drug not on medical advice but because he wants to be drug-free. His abstinence from drugs and alcohol has not been tested in the community.
I accept that the applicant genuinely wants to turn his life around, to obtain treatment, to not take illicit drugs, to not abuse alcohol and to not commit crimes. However, the evidence indicates that the applicant fell back into a daily drug habit and excessive alcohol consumption when under stress because of the death of his grandfather. The available evidence does not lead me to conclude that this would not happen again if the applicant was once more in a stressful situation.
Overall, I consider that it is too early to find that the applicant has achieved substantial rehabilitation. Rather, his rehabilitation is at an early stage.
The view of the Government is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I have had regard to 8.1.2(1), which states that ‘[s]ome 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’. I do not consider that this is such a case because taken individually none of the applicant’s crimes is at the serious end of the scale. However, in view of the applicant’s extensive criminal record, history of entrenched substance abuse and early stage of rehabilitation, I conclude that protection of the Australian community weighs strongly against revoking the cancellation of the applicant’s visa.
Family Violence – 8.2
The applicant has not committed a family violence offence. This consideration is neutral.
The strength, nature and duration of ties to Australia – 8.3
In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant’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.
The applicant’s immediate family members who are either Australian citizens or who have a right to remain in Australia indefinitely are his parents, brother and younger sisters.
As one of the applicant’s younger sisters, N, a minor, I have specifically considered the impact of the decision on her when considering the best interests of minor children affected by the decision. However, as N is part of the applicant’s immediate family, this consideration is also relevant to her.
The applicant’s mother Ms Lorna Mahara and his brother Mr Shaun Brennan made statements and gave evidence at the hearing. Their evidence was that the applicant’s removal to New Zealand would have a significant adverse effect on their family. Both Ms Mahara and Mr Brennan stated that their family is very close knit. Ms Mahara stated that the effect would be devastating for her and for the family. Mr Brennan stated that if the applicant were removed it would be as if ‘a piece of the puzzle’ were missing. Although neither the applicant’s father and nor his sister Ashlee gave oral evidence or provided statements, I accept that the applicant’s removal to New Zealand would also have an adverse effect on them.
I accept that the applicant’s removal to New Zealand would significantly adversely affect all members of his immediate family.
I have considered the strength, nature and duration of other ties the applicant has to the Australian community. In doing so, I have placed weight on the fact that the applicant arrived in Australia as a 14-year-old and has spent some fifteen years in Australia. While I do not consider that the applicant has spent his formative years in Australia, I accept that he arrived in this country at a relatively young age and has not travelled outside Australia since his arrival. I have also taken into account that the applicant began offending within two to three years of his arrival in Australia
The applicant has extended family in Australia, consisting of ten uncles and aunts and twenty cousins. While there is no direct evidence on this point, I accept that these members of the applicant’s extended family are either Australian citizens or have the right to remain in Australia indefinitely. However, the evidence does not suggest that the applicant has a close relationship with his extended family in Australia. In his most recent statement (contained in the ATB), the applicant reported that his cousins live in different parts of Australia and that they keep in touch occasionally over Facebook. No members of the applicant’s extended family provided statements in support of the application for review and no submissions were made about the impact on the applicant’s extended family if the applicant were removed to New Zealand. In these circumstances, I do not consider that members of the applicant’s extended family would be adversely affected if the applicant were removed to New Zealand.
Although the applicant’s most extensive ties to Australia are through his immediate family, I accept that he also has ties through friends. In this regard, I note the evidence of Mr Arron Myers, the applicant’s friend and former employer. In a statement provided in support of the application to revoke the cancellation of the applicant’s visa, Mr Myers described the applicant as punctual, reliable, hardworking and a team player.[26] In oral evidence, Mr Myers stated that the applicant is ‘a great person’ and that he has ‘never had a friend like him’. I accept that there would be some adverse effect on Mr Myers if the applicant were removed to New Zealand.
[26] JTB 178.
The applicant has worked in roles between 2016 and 2023, including in container unloading, demolition and shopfitting, and as a labourer and food shop assistant. The applicant has also been involved in volunteer work, albeit only in 2022 and 2023. During this period the applicant volunteered with a community kitchen, helping to serve food to homeless people on weekends. He also volunteered at a support centre in Campbelltown and with a local mental health organisation which is focused on suicide prevention and support for people experiencing homelessness.[27] I accept that through his paid and volunteer work, the applicant has made some positive contribution to the Australian community.
[27] JTB 121.
Overall, given the adverse effect the removal of the applicant would have on his immediate family in particular, I consider that this consideration weighs strongly in favour of revoking the cancellation decision.
The best interests of minor children in Australia - 8.4
In accordance with 8.4(1) of the Direction, I have considered whether the refusal of the applicant’s visa application is in the best interests of N.
I note the factors to be considered in respect of this consideration, which are set out in 8.4.(4).
N is currently 17 years of age and will turn 18 in June 2026. The applicant does not have a parental relationship with N, who is cared for by her parents. There is nothing to suggest that the applicant is likely to have a parental relationship with N in the future.
N did not provide a statement or give evidence, so her views are unknown. That said, I accept the applicant’s evidence that he has a bond with his sister and that he fears that connection would be lost if he were removed to New Zealand.[28] However, the applicant has stated that he was not in touch with N while he was incarcerated in Bathurst Gaol[29] and the evidence does not suggest that N has visited him in immigration detention.
[28] JTB 117.
[29] Ibid.
There is no evidence to suggest that the applicant’s prior conduct or any likely future conduct will have a negative impact on N. Nor is there any evidence that N has been, or is at risk of being, subjected or exposed to family violence perpetrated by the applicant, or that she has otherwise been abused or neglected by the applicant. There is also no evidence that N has suffered or experienced any physical or emotional trauma arising from the applicant’s conduct.
I accept that separation from the applicant may be difficult for N. However, if removed to New Zealand the applicant would be able to maintain contact with N through electronic means. While not ideal, there is nothing unusual about family members who live in different countries communicating with each other in this manner.
I conclude that it is in the best interests of N for the applicant not to be removed to New Zealand. However, in circumstances where N is almost 18 years old, the applicant does not fill a parental role and N could stay in touch with the applicant by electronic means, I consider that this consideration weighs only slightly in favour of revoking the decision to cancel the applicant’s visa.
Expectations of the Australian community – 8.5
In relation to this consideration, 8.5(1) of the Direction states:
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 remain in Australia.
In accordance with 8.5(4) of the Direction, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed in the Direction, without independently assessing the community’s expectations in the particular case.[30]
[30] See Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2, at [38] and [51] to [52].
In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,[31] Horan J stated:
The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] –[67] , [74] –[75] (Charlesworth J), [91]–[93], [103]–[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] –[30] (Moshinsky, O’Bryan and Cheeseman JJ). The “degrees of tolerance” referred to elsewhere in the Direction “are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion” (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and “in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences”: FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.
[31] [2024] FCA 876 at [56].
The applicant has engaged in conduct in breach of Australian laws. The Australian community therefore expects the Government to not allow the applicant to remain in Australia. This is so, even if the applicant has not committed offences of a kind set out in 8.5 (2).
Given the applicant’s extensive criminal history and his repeated breaches of the expectations of the Australian community, I conclude that this factor weighs strongly against revoking the cancellation of the applicant’s visa.
Other considerations:
Legal consequences of the decision – 9.1
A legal consequence of the decision to cancel the applicant’s visa not being revoked is that he will remain in immigration detention pending removal from Australia under s 198 of the Act, which in accordance with s 198(2B) would need to occur as soon as reasonably practicable.
Another legal consequence is that there will be significant restrictions on the applicant’s ability to apply for another visa. An application for any visa other than a protection visa would be subject to s 501E; that is, it could not be made from within the migration zone unless it was for a Bridging Visa R (Class WR) as prescribed by cl 2.12AA of the Migration Regulations1994. The applicant could only apply for such a visa in response to an invitation.
The applicant’s evidence and submissions indicate that he fears returning to New Zealand because as a child he was involved with and gave evidence against a crime gang. It is argued that this circumstance engages Australia’s non-refoulement obligations.
I have some concerns about the applicant’s evidence in relation to this issue. According to the applicant, he gave evidence against the crime gang as a 12-year-old child. He is now almost 30 years of age. It is unclear why, even accepting that he did give evidence as he claims, he would remain at risk seventeen years later. Furthermore, Ms Mahara stated in her oral evidence that the applicant had not been in any form of trouble prior to leaving New Zealand.
However, there is insufficient evidence before the Tribunal to enable me to make findings in respect of the applicant’s claimed fear of the crime gang. Part 9.1.2 (2) of the Direction states that where it is open to a person to apply for a protection visa, it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining a protection visa application is specifically designed for consideration of non-refoulement obligations and a decision-maker is not required to determine whether non-refoulement obligations are engaged in respect to the person.
As it is open to the applicant to make a protection visa application, I consider it appropriate to defer consideration of whether the applicant is owed non-refoulement obligations. If the applicant does so, his protection claims will be assessed as required by s 36A of the Act, before consideration is given to any character or security concerns associated with those claims.[32]
[32] See Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [9] and [30].
Another legal consequence of the decision is that, depending on the visa that may be applied for once the applicant is offshore, the applicant may be subject to indefinite or permanent exclusion from Australia as he may not be able to meet Special Return Criteria 5001(c) if it applies to the relevant Schedule 2 criteria of the visa.
The Minister submitted that this consideration should attract neutral weight. I do not accept that submission. In circumstances where the applicant has lived in Australia since he was a teenager and his immediately family lives in this country, I consider that the legal consequences of the decision – and specifically the possibility of permanent exclusion from Australia - weigh in favour of revoking the decision to cancel the applicant’s visa, although only moderately so in circumstances where it remains open to the applicant to make a protection visa application.
Extent of impediments if removed – 9.2
This consideration refers to impediments the applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. I must take into account the applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in New Zealand.
The applicant is 29 years of age and suffers from physical and mental health issues.
In relation to his physical health, the applicant suffered a workplace injury to his hand in 2021 and reports chronic right arm nerve pain.[33] In relation to his mental health, as noted above, the applicant has been diagnosed with PTSD and substance abuse disorders. He has also been diagnosed with anxiety and depression.[34]
[33] JTB 135.
[34] Ibid.
The applicant has not lived in or visited New Zealand since he was a young teenager. Nor has he worked in that country. In these circumstances, I conclude that the applicant will have difficulty establishing himself in New Zealand. This is so even though the applicant would not face any language or cultural barriers in that country because of the similarities between Australia and New Zealand.
I consider that the applicant’s criminal record, his mental health issues, his history of substance abuse and his lack of employment history in New Zealand will make it difficult for him to find a job. Furthermore, although Ms Mahara’s evidence clarified that the applicant has relatives in New Zealand, including Ms Mahara’s two sisters, I accept that neither of them would be in a position to provide the applicant with any support. I further accept that the applicant does not have a relationship with them or with any other members of his extended family who remain in New Zealand.
That said, I am satisfied that the applicant would be entitled to the same services available to other New Zealand nationals, including physical and mental health care and treatment and income support. In relation to treatment for the applicant’s mental health conditions, as noted above, Mr Wong has recommended a treatment plan. It was not submitted that the applicant would not be able to obtain the kind of treatment recommended by Mr Wong if he were returned to New Zealand. I am satisfied that the applicant would be able to obtain both physical and mental health care in New Zealand.
While the applicant will face significant impediments if he is removed to New Zealand and that he is likely to have difficulty establishing himself in New Zealand after living in Australia since he was 14 years old, I consider that the impediments the applicant will face will be somewhat reduced by the fact that his brother Shaun Brennan intends to move to New Zealand with him. Mr Brennan gave evidence to this effect at the hearing. Mr Brennan also stated that he could assist the applicant to obtain employment in New Zealand. He further stated that he believes that his parents would visit.
In her oral evidence Ms Mahara, confirmed that Shaun intends to move to New Zealand. She stated that her daughters do not wish to move to New Zealand and that she and her partner Jason Brennan do not propose to do so. Ms Mahara stated that when her parents were alive, she visited New Zealand regularly, although she did so alone and not with the rest of the family. Ms Mahara’s most recent trip to New Zealand was in August 2025, for the memorial of her mother’s gravestone. On that occasion, Ms Mahara travelled with her partner Jason, her son Shaun and their daughters.
I conclude that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa, but only moderately so in circumstances where the applicant’s brother intends to move to New Zealand with him.
Impact on Australian business interests – 9.3
In relation to this consideration, I must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia. I note that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant has worked in Australia in the past and could be expected to work in the future, subject to his arm injury and his mental health issues.
The applicant has received a job offer in Australia from his former employer and friend Mr Myers. According to the applicant, he could also work in his father’s business. However, there is no evidence that another person could not be found to fill either of those roles or that a business will fail if the applicant is not employed. In these circumstances, there is no evidence that a failure to revoke the decision to cancel the applicant’s visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant conceded that this factor should be given neutral weight. I agree with this assessment.
CONCLUSION
I have made the following findings concerning the relevant primary considerations in the Direction:
(a)Protection of the Australian community against criminal and other serious conduct weighs strongly against revoking the cancellation of the visa.
(b)The family violence consideration is neutral.
(c)The strength, nature and duration of ties to Australia weigh strongly in favour of revoking the cancellation of the visa.
(d)The best interests of minor children weigh slightly in favour of revoking the cancellation of the visa.
(e)The expectations of the Australian community weigh strongly against revoking the cancellation of the visa.
I have made the following findings concerning the other considerations:
(a)The legal consequences of the decision weigh moderately in favour of revoking the cancellation of the visa.
(b)The extent of the impediments if the applicant were removed to New Zealand weigh moderately in favour of revoking the cancellation of the visa.
(c)Australian business interests are neutral.
However, compliance with the Direction is not achieved by focussing upon the weight I have given to the various considerations in isolation. In deciding this case I must ‘bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together’.[35]
[35]CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28].
In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs stated:
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.[36]
[36] Ibid at [38].
As noted above, 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than ‘other’ considerations.
In this case I have found that the protection of the Australian community and the expectations of the Australian community weigh strongly in favour of not revoking the cancellation of the applicant’s visa. These considerations are balanced against the considerations that weigh in his favour: that is, applicant’s ties to Australia and in particular his relationship with his immediate family, the best interests of N, the legal consequences of the decision and the impediments the applicant will face if he is removed to New Zealand.
I conclude that this is a case where the protection of the Australian community and the expectations of the Australian community that the applicant’s visa should remain cancelled should be given greater weight than both the other primary considerations and the other considerations. Central to my conclusion in this regard is the applicant’s extensive criminal history and the fact that his rehabilitation has not been tested in the community. Also relevant is the fact that N will turn eighteen in a few months and the fact that the applicant’s brother Shaun proposes to move to New Zealand with him. In these circumstances I do not consider that the considerations that weigh in the applicant’s favour outweigh the protection of the Australian community and the expectations of the Australian community.
I conclude that there is not another reason to revoke the cancellation of the applicant’s visa. I have therefore affirmed the decision under review.
Date of hearing:
29 and 30 September 2025
Advocate for the Applicant:
Solicitors for the Applicant:
Ms M Mamarot
SouthWest Migration & Legal Services
Advocate for the Respondent:
Mr A Sharma
Solicitors for the Respondent: HWL Ebsworth
0
7
0