BVDL and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 788
•19 June 2025
BVDL and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 788 (19 June 2025)
Applicant/s: BVDL
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3067
Tribunal:Administrative Review Tribunal
Place:Sydney
Date:19 June 2025
Decision:The Tribunal affirms the decision under review.
..........................[SGD].............................
Senior Member M Harrowell
Catchwords
Migration – Cancellation of visa – application for revocation of cancellation
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)Migration Act 1959 (Cth)
Cases
Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4069
Secondary Materials
Direction No. 110 – Direction under s 499 Migration Act 1958
REASONS FOR DECISION
INTRODUCTION
The applicant is a citizen of Indonesia who held a Bridging A class WA (subclass 010) visa (2018 Visa) issued on 6 November 2018. The 2018 Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on 16 January 2024.
The cancellation followed the applicant’s conviction for drug offences on 21 December 2023.
On 30 January 2024, the applicant made representations to have the cancellation revoked under s 501(CA) of the Act.
On 1 April 2025, a delegate of the respondent decided not to revoke the cancellation. This was because the delegate was not satisfied the applicant passed the character test, nor that there was another reason why the cancellation decision should be revoked. Notice of the decision was given to the applicant on 2 April 2025 (Delegate’s decision).
On 5 April 2025, the applicant applied to the Tribunal for review of the Delegate’s decision (review application).
For the reasons below, I have decided to affirm the decision under review.
THE TRIBUNAL PROCEEDINGS
Following the making of the review application, on 23 April 2025 directions were made for the filing and service of evidence as well as the provision of documents by the respondent as required by s 23 of the Administrative Tribunal Act 2024 (Cth) (ART Act). The directions included requiring the respondent to prepare a hearing book.
Those directions included a notation concerning the limitation on an applicant for review filing documents less than two clear business days prior to the hearing found in s 500(6H) of the Act.
The parties were also required to provide statements of facts, issues and contentions and/or submissions in support of their respective positions. In addition, directions were made permitting the parties to request the issue of summonses.
The proceedings were heard by the Tribunal on 10 June 2025. The applicant appeared in person and represented himself. The respondent was represented by Mr Slankard, solicitor, who appeared by video.
Documentary evidence consisted of the following material:
(a)Exhibit HB – the hearing book prepared by the respondent (hearing book/HB); and,
(b)Exhibit A – summons to the Commissioner – New South Wales Police Force, and documents produced in response to the summons, being documents recording the criminal history of the applicant (Exhibit A).
At the hearing, the applicant confirmed to the Tribunal that he had not filed and served any documents or statements in support of his position following the directions made by the Tribunal. He indicated he had received a copy of the hearing book, but he did not bring a copy of those documents to the hearing. Consequently, the Tribunal arranged for a copy of the hearing book and Exhibit A to be printed and given to the applicant for use during the hearing.
In addition, at the commencement of the hearing the Tribunal explained that, in determining the review application, the Tribunal was required to have regarded to Direction 110[1] (Direction 110) in the exercise of any discretion to revoke the cancellation of the 2018 Visa. Direction 110 is contained in the hearing bundle and the applicant was given an opportunity to read the document prior to the hearing commencing.
[1] Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of these are under section 501CA.
The hearing then proceeded by way of cross examination of the applicant. Following completion of the oral evidence, the parties made oral submissions. As necessary I will refer to the evidence and submissions below.
EVIDENCE AND FINDINGS
Section 501CA(4) of the Act provides:
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.
The Tribunal is permitted to exercise this power in connection with the present review application.
Direction 110 applies to the exercise of power under this section. The direction is made by the Minister under s 499 of the Act. The Tribunal is required to comply with this direction. The direction sets out primary and other considerations to be taken into account and the principles to be applied in doing so. The 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 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.
In Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration),[2] the President of the Administrative Appeals Tribunal (now the President of this Tribunal), set out the approach to be taken by the Tribunal in the decision-making process. At [16]-[18] the President said:
16. As stated by the Full Court of the Federal Court in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, although the Tribunal is required to take into account Direction 99, that direction does not dictate the outcome of the review before the Tribunal. The primary and other considerations in Direction 99 are mandatory relevant considerations but are ‘not an exhaustive universe’ of considerations.
17. Complying with Direction 99 is no substitute for the Tribunal reading, identifying, understanding and evaluating the case made by an applicant on the material before the Tribunal.
18. It is not sufficient for the Tribunal to weigh each of the considerations in Direction 99 separately and then aggregate each of the individual assessments by some form of calculus. Instead, the Tribunal must undertake a process of weighing and balancing, by which it evaluates the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion required by s 501(1) of the Act.]
18. The discretion conferred by s 501(1) of the Act is to be exercised subject to the Act and subject to the self-evident Australian community protective purpose of the discretion. However, by the very circumstance that the section confers a discretion, it necessarily follows that Parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa to a person who does not pass the character test.
[2] [2023] AATA 4069.
While the President’s decision was in the context of s 501(1) of the Act and the former Ministerial Direction 99,[3] the approach is equally applicable to a decision under s 501CA in circumstances where Direction 110 applies.
[3] Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
As noted above, the 2018 Visa was cancelled pursuant to s 501(3A) of the Act. Relevantly, this section provides:
(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
…
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.
Section 501(6) provides:
For the purposes of this section, a person does not pass the
character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)).
It is not in dispute that the applicant has a substantial criminal record in that he “has been sentenced to a term of imprisonment of 12 months or more”,[4] or that he does not pass the character test. Consequently, for the Tribunal to exercise a discretion in his favour to revoke his visa cancellation, the Tribunal must be satisfied “that there is another reason why the original decision should be revoked”.[5]
[4] s 501(7)(c) of the Act.
[5] s 501CA(4)(b)(ii) of the Act.
In deciding whether to do so, it is convenient to first set out some background information and the applicant’s history in connection with his drug offending and other interactions with the Police and the Courts. These facts are relevant to the matters for consideration under Direction 110.
Background
The applicant is 32 years old. He first entered Australia on 2 March 2013 at the age of 19 as the holder of a Student visa.
Since arriving in Australia, the applicant has worked as a courier until early 2020 when he lost his job due to the Covid 19 pandemic (pandemic). While in Australia, he also obtained a Certificate 4 in Business Management.
The applicant’s parents subsequently arrived in Australia. His mother arrived as the holder of a Visitor visa on 28 March 2015. His father arrived as the holder of a Visitor visa on 24 June 2015.
By application dated 19 September 2015, lodged 22 September 2015, the applicant’s father applied for a protection visa (protection visa application). The applicant and his mother were also applicants. However, the protection visa application stated that the applicant and his mother were “not raising their own claims for protection”.
The basis of the protection visa application was that the applicant’s father had been in dispute with a former business partner in a company that owed money to clients following non-delivery of services. He contended that, as a shareholder, he was responsible for paying back those clients and that threats had been made that he and his family would be harmed or killed if he failed to do so. Therefore, he had not been able to return to Indonesia.
On 23 September 2015, the applicant was issued with a Bridging A class WA (subclass 010) visa (2015 Visa). At this time, the 2015 Visa did not immediately come into effect as the student visa, by which the applicant entered Australia, was still in effect. It is unclear when the student visa ceased to have effect, although for present purposes it is unnecessary to decide this matter.
The protection visa application was refused, the applicant and his family being notified of the Department’s decision by letter dated 7 December 2015. That decision was subsequently affirmed by the Administrative Appeals Tribunal (AAT) on 4 October 2018 (AAT 2018 protection decision).
An application for judicial review of the AAT 2018 protection decision was then filed with the then Federal Circuit Court of Australia, now the Federal Circuit and Family Court of Australia (Division 2) (Court), on 26 October 2018 (judicial review proceedings). The applicant was an applicant in those proceedings.
Following commencement of the judicial review proceedings, the 2018 Visa was issued to the applicant.
The judicial review proceedings were dismissed by the Court on 4 December 2024 because the applicants failed to appear.
In the meantime, the applicant had engaged in various criminal conduct which, amongst other things, had led to convictions for drug-related offences. In relation to some of these convictions, he was sentenced to a term of imprisonment of 16 months. The details of his criminal history and time spent in prison are set out below as necessary.
Suffice to say, following conviction and sentencing to a term of imprisonment greater than 12 months, the 2018 Visa was cancelled. Having completed his prison sentence, the applicant is currently in immigration detention.
Records relating to criminal history and engagement with the Police and Courts
A Check Results Report from the Australian Criminal Intelligence Commission dated 10 February 2024 (HB 32 and following) and Exhibit A contain details of the applicant’s interaction with the Police and Courts. In addition, the hearing book includes a transcript of proceedings in the Local Court of New South Wales in which the applicant was convicted and sentenced to imprisonment for drug offences which gave rise to his failure of the character test (HB 35 and following).
The records include interaction with the Police concerning various driving offences. Most of these are not relevant to the matters which the Tribunal must decide.
As to Exhibit A, it includes the following information.
On 11 December 2019, the applicant was stopped by the police while driving a vehicle in Pyrmont. Following testing, it was ascertained he tested positive to methyl amphetamine and was issued with an infringement notice.
On 15 January 2021, the applicant was stopped in his vehicle by police in Cabramatta. On that occasion he was found in possession of 3.2 g of methyl amphetamine and was required to attend the Local Court.
On 4 March 2021, the applicant left premises where he had been residing with a female partner to go to the doctor. They have been in a relationship for 3 or 4 months. There had been an argument concerning removing entries in a mobile phone. When he returned, the applicant had been locked out of premises, his partner changing the locks. No action was taken by the police, the female partner indicating she would be leaving the premises later that day and the police noting that the applicant could return afterwards.
Nine days later, on 13 March 2021, the police again returned to the premises where the applicant and his partner were still living. On this occasion, the applicant had broken a lock on the door to the bedroom of his partner to gain entry. The partner was not at home at the time. When asked why he broke in, the applicant told the police he was “angry… jealous”. The applicant was arrested and taken to the local police station. The police record indicates that an application was to be made for a provisional apprehended violence order and that the applicant was charged with malicious damage.
On 25 January 2022, the applicant was stopped by the police for a random breath test while driving a vehicle in Sydney. In his possession was a bottle of strawberry milk and bags containing 19.91 grams of marijuana and 10.26 grams of methamphetamine. In addition, the police ascertained that the bottle of strawberry milk contained 129.03 grams of gamma hydroxybutyrate (GHB). Glass vials containing liquid residue, a straw, a funnel, multiple syringes and small scales were also seized by the Police. The applicant was charged, including with supply of methyl amphetamine and GHB and placed on bail.
On 19 March 2022, the applicant was stopped by the police undertaking roadside mobile testing. On this occasion, the applicant was a passenger in the motor vehicle. Upon search, the Police identified a black bag, which the applicant acknowledged as his. While he told the police that the bottle in the bag was “just water”, upon analysis it was shown to contain GHB. A court attendance notice was issued.
On 15 February 2023, the applicant was a passenger in a motor vehicle which was stopped by the police. The report records the applicant was found to be in possession of 1.17 g of methamphetamine, 923 g of GHB, just below a commercial quantity, and $5550 cash.
On 23 February 2023, when being arrested in relation to the events of 15 February 2023, the applicant was found in possession of drugs including 59.7 g of GHB and $3365 cash. A search warrant was executed at the premises where the applicant was residing. Various documents, bottles containing clear liquids and bags containing white powder as well as other goods were seized.
At the time of the 15 and 23 February events, the applicant was still on bail in connection with the event of 25 January 2022. This 25 January 2022 event was not resolved by the Court until 22 May 2023.
In addition to the above, Exhibit A records several other drug-related interactions between the applicant and the police in the period from 2019.
The Check Results Report includes the following outcomes of court attendances:
(a)18 March 2021 – conditional release without conviction in connection with destroy or damage property (which related to the incident with the applicant’s partner on 13 March 2021);
(b)29 March 2021 – fine of $600 for possess prohibited drug;
(c)9 November 2022 – fine of $770 for possess prohibited drug;
(d)3 April 2023 – fines of $330 for each of possess prohibited drug and goods in personal custody suspected of being stolen;
(e)22 May 2023 – 2 year community correction order for supply prohibited drug, less than a commercial quantity, and possess prohibited drug; and
(f)21 December 2023 – 16 months imprisonment with non-parole period of 11 months for supply prohibited drugs and dealing with proceeds of crime. The possession of drugs count was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), that is the applicant was convicted without proceeding to impose a penalty.
PRIMARY CONSIDERATIONS
I will deal with each of the primary considerations in turn.
Primary consideration 1- Protection of Australian community
This consideration concerns the commitment of the government to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In accordance with clause 8.1(1), I should have regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by clauses 8.1(2) I should also give consideration to:
(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.
In doing so, I note paragraph 7(2) of Direction 110 provides that this consideration is generally to be given greater weight than other primary considerations.
Nature and seriousness of the applicant’s conduct
The criminal history of the applicant is summarised above.
This history and the applicant’s oral evidence in the proceedings before the Tribunal shows his use of drugs since 2019 and his subsequent supply of drugs.
On 25 January 2022, the applicant was charged following being found in possession of marijuana, methamphetamines and GHB. He was placed on bail, this incident finally being dealt with by the Court in May 2023. On 22 May 2023, the applicant was convicted of three charges of supplying a prohibited drug and one charge of possessing a prohibited drug. The applicant received a two-year community corrections order.
While on bail, he again offended. On 15 February 2023, he was found in possession of a substantial quantity of GBH as well as more than $5500 in cash. While the quantity of drugs was less than a commercial quantity, being 1 kg, nonetheless the quality was not small. Just more than one week later, on 23 February 2023 when being arrested by the police, drugs were again found in the applicant’s possession and in the premises where he resided, as well as cash and a ledger recording drug transactions. The applicant pleaded guilty to these offences and receive the 16-month custodial sentence referred to above.
In sentencing the applicant, the Court made the following comments:[6]
In terms of the objective seriousness of those offences, I do accept they are certainly not at the highest end of the range, not even in the mid-range. The amount of money involved, whilst not insignificant, is low in the range of proceeds of crime, although not as low as some, I must say. The Form 1 offence is of course to be taken into account in dealing with [the applicant] in respect of sequence 16. Whilst he is not to be sentenced for it separately, it is clearly a matter that I have to take into account in determining the appropriate penalty, having regard to the maximum that applies to the offence which is sequence 16.
[the applicant] pleaded guilty at the earlier possible opportunity. He is entitled to the full 25% discount on sentence in respect of each of the matters that are before me today. In my view, the sequence 16 supply does fall above the mid-range of objective seriousness and when I come to the aggravating factors and the very limited subjective case for [the applicant], those are factors of course that I also have to take into account in determining the appropriate penalty.
Most concerning in relation to this matter is that [the applicant], at the time of committing these offences, was on bail for other offences of drug supply. On 25 January 2022 he had been arrested and charged with drug offences, including supply of methylamphetamine and GHB. He was not actually dealt with for those matters until May of 2023, when he received Community Corrections orders for those offences. At the time of his sentence for those matters he was in fact in custody for the matters I am dealing with him for today.
It is concerning that notwithstanding having been detected by police committing these offences on 15 February 2023, he went on to commit the further offences on 23 February 2023. It is also concerning that having been detected in January of 2022 in respect of drug supply, he continued to act in the same way. Clearly there are concerns about the risk of committing further serious offences. I accept, and it is not disputed, that these offences are aggravated by the fact that [the applicant] was on bail for the other matters at the time.
[6] HB 50 – transcript line 50 and following.
As to prospects of rehabilitation, having recounted the content of a sentence assessment report where the assessing officer had assessed the risk of reoffending as low and noting that the report contained information that “has been unable to be verified by a third party” the Court continued:[7]
As I say, I am surprised in those circumstances that he has been assessed as at low risk of reoffending. That is not an assessment that I would make on the material before me. It seems that [the applicant] has had no gainful employment other than supplying drugs since 2021 and that finding, I have to say, is confirmed by the fact that after being stopped by police and detected with drugs on 15 February this year, he once again had drugs in his possession and a drug ledger in his possession just over a week later. I would consider that making any finding that he has good prospects of rehabilitation is in the face of evidence that does not support that finding.
I note that [the applicant] was given an opportunity to go to residential rehabilitation and the author of the sentence assessment report says that [the applicant] did not feel it was fair to be discharged for using buprenorphine as it was due to his drug addiction and was helpful to stop him from using other drugs. I note there is no evidence as to the nature of the drugs that [the applicant] was discharged for using.
I am prepared to accept for the purpose of that submission that it was in fact buprenorphine, but of course at the point in time at which [the applicant] went to that residential rehabilitation, he had been in prison for eight months and the circumstances of his lack of success at residential rehabilitation does, in my view, have to be factored into the assessment of his prospects of rehabilitating 15 himself and of not reoffending.
I note that the author of the sentence assessment report also indicated that [the applicant] has limited insight into the impact of his offending, and the report goes on to say that he is unlikely to receive supervision if given a supervised order due to his low risk of reoffending. In determining the appropriate sentence it is conceded that at least some of these matters cross the s 5 threshold. I consider that to be an appropriate concession because given the quantity of the drugs involved and the circumstance of being on bail for other drug supply matters, clearly a term of imprisonment is appropriate.
[7] HB 52 – transcript line 43 and following.
These matters were not in dispute in the proceedings before me. In cross examination, the applicant accepted he had engaged in criminal behaviour in connection with the supply of drugs and acknowledged the offences and punishments he had received. I note this conduct did not involve violence.
In connection with his drug use, the applicant initially said he commenced using drugs after losing his job as a courier at the commencement of the pandemic. However, on further questioning, he said he started using in 2019 when he was introduced to drugs at a party. This earlier use of drugs is confirmed by the infringement notice issued to the applicant on 11 December 2019, having tested positive to methyl amphetamines.
The applicant also gave evidence concerning drug use and addiction during his time in custody following his arrest on 23 February 2023.
This evidence included that he had been released on bail to attend a six-week rehabilitation program being conducted in Orange. He was discharged from this program following testing positive to drugs. His bail was revoked and he returned to custody. This was referred to by the Court in the transcript of the sentencing hearing which is set out above.
The applicant was also cross examined about programs he attended while in custody in connection with his drug rehabilitation.
The first program was a Narcotics Anonymous meeting which he attended 3 times. This was in the period October 2023 to December 2023, prior to being sentenced in connection with the events that occurred in February 2023. The second program consisted of meetings at which was discussed how participants could engage in other activities and adjust their community connections to minimise occasions on which participants might be exposed to drugtaking in the future. The third program consisted of ad hoc meetings at which participants and conveners would discuss personal plans to assist in avoiding relapse to drugtaking.
There were no reports provided to the Tribunal from the conveners of those meetings concerning the applicant’s participation or outcomes.
In addition to the above, the applicant gave evidence about a program he commenced in June 2024 while in immigration detention. This was a Buvidal program, Buvidal being used as a treatment for drug addiction. The program is continuing and involves one-on-one sessions with a doctor.
While the applicant gave evidence that the program has been assisting him in managing his drug addiction, again there was no report provided by the medical practitioner in connection with his treatment or prognosis.
Having regard to the above, in my opinion the offending is serious. In this regard I find:
(a)Since it least 2019 the applicant has been using illegal drugs.
(b)There has been repeated criminal conduct in connection with supplying illegal drugs in the community and receiving money in return. This has occurred over a period from at least early 2022.
(c)The conduct of supplying illegal drugs in the community continued in a period after the applicant had been arrested on similar charges and placed on bail.
(d)The volume of illegal drugs found in the applicant’s possession over time has increased. In this regard, when arrested in early 2023, the GHB seized by the Police was only slightly less than the commercial quantity.
(e)Drug-related offences, whether of a personal or supply nature, have been frequent in recent times.
(f)The seriousness of the most recent offending is reflected in the fact a custodial sentence was imposed. Although it is acknowledged that the time in detention was reduced by reason of the non-parole period being fixed at 11 months. In reaching this conclusion, I note the comments of the Court that:
(i)the offences relating to proceeds of crime were “not at the highest end of the range [of objective seriousness], nor even in the mid-range”; and
(ii)the offence of supply “does fall above the mid-range of objective seriousness”;
(iii)the criminal conduct was aggravated by the fact that the offending occurred while the applicant was on bail; and
(iv)despite having been detected by the police committing offences on 15 February 2023, the applicant committed further offences on 23 February 2023.
Finally, there can be no question that the drugs to which the supply convictions relate have a significantly detrimental effect on those in the community consuming the drugs. This is evident from the applicant’s own evidence concerning his addiction.
Risk to the Australian community
In my opinion, there is a significant risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
As noted above, supplying illegal drugs has a significant detrimental effect on those in the community consuming the drugs.
As to the likelihood of further offending, on the evidence before me there is a real risk of reoffending. In reaching this conclusion, I have had regard to the following:
(a)Evidence that during a period of treatment in a facility at Orange, for which he had been released on bail, he re-engaged in taking illegal drugs.
(b)The comments of the Court in sentencing the applicant on 21 December 2023, rejecting the assessment that the applicant was at low risk of reoffending.
(c)The evidence of the applicant that he is continuing to receive treatment for his addiction. While he asserted that the provision of Buvidal is assisting in managing his addiction, no medical evidence has been provided to the Tribunal in connection with his past treatment, current condition or prognosis.
(d)The absence of any statements or direct evidence from friends, family or associates who might be able to support the applicant if he were to be released back into the community. Further details of the evidence before the Tribunal are set out below when considering primary consideration 3 – strength, nature and duration of ties in Australia.
(e)The fact the applicant has been unemployed since about March 2020.
(f)The absence of any evidence indicating the availability of accommodation for the applicant or any capacity of the applicant to support himself if he were released into the community.
While the applicant has apologised for his conduct and seeks to provide an assurance that he will be “a good person and is useful for the community”,[8] these statements do not satisfy me that the risk of reoffending is not real or that the risk is low.
[8] See HB 77. See also HB 75 (a statement made by the applicant on 13 May 2024).
Having regard to the above, primary consideration 1 weighs strongly against revocation of the cancellation of the 2018 Visa.
Primary consideration 2- Family violence committed by the non-citizen
Direction 110 defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
…
e) intentionally damaging or destroying property;
Damaging property, namely the door and door lock of his partner’s bedroom to gain entry, can constitute an act of family violence within the definition above.
The conduct occurred in circumstances where the applicant told the police he was angry and jealous and where he had been in a relationship with his partner occupying the same bedroom. The applicant gave evidence that he was “possessive” of his partner and sought to explain his conduct on the basis that his partner had changed the lock while he was absent from the premises. In giving this evidence, he also indicated that he sent her a picture of her bedroom after he had forced entry. When asked why he sent the picture he said that it was to show her he could get into the room, which he described as “my bedroom”.
This conduct occurred shortly after an earlier dispute on 4 March 2021, where the applicant had apparently been locked out of the shared premises by his partner.
Be that as it may, as recorded above, on 18 March 2021 the applicant pleaded guilty in connection with the charge of destroy or damage property and was conditionally released without conviction.
Although there is no evidence of a physical attack on his partner, in my view this conduct constituted an act of family violence for the purpose of direction 110.
The applicant is no longer with this partner. However, he did give evidence that he was in a subsequent relationship with another female partner for approximately 2 years. This relationship ended in 2023 when he was arrested. There is no suggestion there was any incident of family violence associated with the second relationship nor is there evidence to suggest any other family violence events since the applicant arrived in Australia.
Having regard to the above, this conduct has slight weight against revoking the cancellation of the 2018 Visa.
Primary consideration 3- Strength, nature and duration of ties to Australia
The applicant has been in Australia for about 12 years, having first entered on a student visa as an adult age 19.
As noted above, his parents subsequently arrived on visitor visas but have since left the country following their unsuccessful application for a protection visa. The Tribunal was told the parents returned to Indonesia. However, they also frequently visit Malaysia where their daughter (the sister of the applicant) now resides.
The applicant gave evidence that cousins of each of his father and mother live in Sydney. However, he has not seen any of these people since 2019. The applicant has had no close relationship with these relatives since 2019.
When asked about community contacts and friends, the applicant indicated that he did have good friends before he started using drugs. However, he no longer sees these friends and lost contact with them after he started taking drugs in 2019. While in prison and detention, he has not contacted any of these people. In this regard he told the Tribunal he had not been visited by anybody during the period in which he has been detained. His last personal relationship ended in 2023 when he was arrested.
The applicant gave evidence of a childhood friend from Indonesia who is a truck driver and currently resides in Melbourne. The applicant had not requested his friend provide a statement to the Tribunal for the purpose of these proceedings. However, this person is referenced in documents previously provided by the applicant contained in the hearing book.
The applicant’s evidence in cross examination included that he communicated regularly with his friend by mobile phone and that they had had discussions of the applicant moving in if he was released back into the community. There had been discussions about the applicant paying rent when he could afford to do so.
When asked whether he had ever lived in Melbourne, the applicant said no. He also indicated that he did not know anyone else in Melbourne other than his friend. The applicant said that there had been discussions that his friend might move back to Sydney.
When asked about ongoing support, the applicant gave evidence of his intention to attend the local mosque and engage in drug and alcohol programs, either run by Royal Prince Alfred Hospital or Health New South Wales. However, he indicated he had not contacted Health New South Wales. He also said that he last attended the MERIT (Magistrates Early Referral Into Treatment) Program in February 2023.
When asked about his plans if released into the community, the applicant indicated he would look for a job and a place to live. He would contact his friends again, most of these being people with whom he worked as a courier. When asked about his drug addiction, he said his medication was working and he did not have cravings and that he would continue to use the medication and keep active to avoid future problems.
As is evident from the above, the applicant has little support in Australia and no identified immediate support in New South Wales. His parents and sister reside in Indonesia and Malaysia respectively. While he has been in Australia for over 12 years, the past 6 years in Australia has resulted in the dismantling of any network of friends and associates he may have established through his work and studies as a student after his initial arrival, that network being replaced with those associates connected with his drug addiction and dealing.
On balance, slight weight should be given to this consideration in favour of revocation of the cancellation of the 2018 Visa.
Primary consideration 4- Best interests of minor children in Australia affected by the decision
There are no minor children which have been identified who might be affected by the decision.
Primary consideration 5- Expectations of the Australian community
There is an expectation that non-citizens will obey Australian laws while in Australia. As noted in paragraph 8.5(3) these expectations “apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community”.
Dealing in illegal drugs in the circumstances that occurred here constitutes serious conduct in breach of this expectation. Further, there is a real risk this conduct might reoccur in the future.
This consideration weighs against revocation of the cancellation of the 2018 Visa.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 110 requires the Tribunal to take account of other considerations including those specified in paragraphs 9(1)(a)-(c).
In the present application, this includes the legal consequences of any decision and the extent of impediments if the applicant is removed to his home country. In relation to consideration 9(1)(c), there is no evidence to suggest there is any impact on Australian business interests and this consideration is irrelevant in the present case.
As noted in Direction 110, the applicant is liable to be removed from Australia if the cancellation of the 2018 Visa is not revoked.[9] Until that occurs, he must remain in detention.[10]
[9] s 198 of the Act.
[10] s 189 of the Act.
The applicant claims that if he is returned to Indonesia he may be harmed or killed by those seeking to collect debts in relation to his father’s business, the circumstances in which those debts arose being referred to above. The events in question occurred in about 2010/11.
The applicant’s father made a claim for a protection visa based on the same circumstances which was refused. The decision of the AAT to affirm the earlier decision not to grant a protection visa is included in the hearing bundle as is the original decision maker’s decision.[11] Each of these decisions provides detailed information concerning the claims made and the findings in connection with those claims. As noted above, judicial review proceedings in connection with that refusal were dismissed for nonappearance.
[11] HB – G20 at 228 and G21 at 246.
The applicant was a party to that application, although his father did not assert in that application that the applicant was making a claim for protection. I note the applicant did not otherwise take steps in connection with that application or the subsequent court proceedings to assert any claim based on personal threat to him. In this regard, the applicant told the Tribunal he did not know much about the claim.
Under questioning, the applicant gave evidence to the Tribunal to the effect that the last contact he had with any person seeking to enforce the debts was in 2014. As to his father, he said last contact was made in about 2022. No detailed evidence was provided concerning these communications and there was no evidence to suggest any continuing threat to the applicant, let alone his father.
As to why the applicant might be targeted by any debt collectors, the applicant said that he helped with bookkeeping and managing provision of some of the client services for his father.
On the material available to the Tribunal, I am not satisfied there is any threat to the applicant arising from these matters. Consequently, this claim does not support a decision to revoke cancellation of the 2018 Visa.
I note s 48A of the Act prevents a further application for a protection visa while in the migration zone. In addition, s 501E prevents the applicant applying for another type of visa while in the migration zone. Finally, an inability to meet Special Return Criteria 5001(c) may operate to prevent the applicant obtaining a visa to return to Australia in the future. These considerations provide some weight in favour of revocation of the cancellation of the 2018 Visa
As to other impediments if the applicant is removed, the only evidence of any adverse medical condition is the applicant’s drug addiction. It has not been suggested that treatment for this condition would not be available in Indonesia. Otherwise, the applicant is 32 years old and appears in good health. He holds a business management qualification and has some work prior experience as a courier which one would expect would assist him in obtaining employment on return to Indonesia. On the other hand, his recent history, including convictions, and absence from the work force may present difficulties with prospective employers.
There is no suggestion of any language or cultural barriers affecting his return to Indonesia where he grew up. Further, as his parents are located in Indonesia, they may be able to provide support to him on his return. Having said so, no evidence has been provided by the applicant concerning his parents and their capacity or preparedness to help him if he returns to Indonesia other than that they appear to maintain contact with each other and his parents reside in Indonesia. However, as a citizen of Indonesia, the Tribunal would expect the applicant to have access to that country’s social, medical and economic support services.
Together, the other considerations weigh slightly in favour of revocation of the cancellation of the 2018 Visa.
CONCLUSION
As recorded above, I have made the following determinations:
(a)Primary consideration 1 (Protection of Australian community) weighs strongly against revocation of the cancellation of the 2018 Visa.
(b)Primary consideration 2 (Family violence committed by the noncitizen) weighs slightly against revoking the cancellation of the 2018.
(c)Primary consideration 3 (strength, nature and duration of ties to Australia) weighs slightly in favour of revocation of the cancellation of the 2018 Visa.
(d)Primary consideration 4 (Best interests of minor children in Australia affected by the decision) is not relevant.
(e)Primary consideration 5 (Expectations of the Australian community) weighs against revocation of the cancellation of the 2018 Visa.
In relation to other considerations, these weigh slightly in favour of revocation of the cancellation of the 2018, noting that family support may be available to the applicant by returning to Indonesia to assist in any ongoing rehabilitation from his drug addiction.
Direction 110 provides primary consideration 8.1 (protection of the Australian community) “is generally to be given greater weight than other primary considerations” and otherwise “primary considerations should be given greater weight than other considerations”.[12]
[12] Paragraph 7(2) of Direction 110.
Having reviewed the evidence in the context of the requirements of Direction 110, particularly primary consideration 8.1 and the weight generally afforded to that consideration, it seems to me that the factors in favour of revocation of the cancellation of the 2018 Visa do not outweigh the factors in favour of its cancellation. The criminal conduct engaged in by the applicant represents a risk to the safety of the Australian community requiring protection. While the applicant has been in Australia for more than 12 years, there has been a significant period of criminal conduct which has included the applicant continuing to breach the law while on bail. Save for his friend in Victoria, the applicant appears to have no significant current ties to Australia or people who could provide support.
In these circumstances and having regard to the Tribunal’s assessment there is a real risk of reoffending, the decision under review should be affirmed.
Consequently, the Tribunal affirms the decision under review.
Date of hearing: 10 June 2025 Applicant: Self-represented Solicitors for the Respondent: Mr Slankard
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