CALACA-MARTINS and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1026
•16 July 2025
CALACA-MARTINS and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1026 (16 July 2025)
Applicant/s: Helder Miguel CALACA-MARTINS
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3381
Tribunal:Senior Member C Shepherd
Place:Adelaide
Date:16 July 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.
..................[SGND]...........................
Senior Member C Shepherd
CATCHWORDS
MIGRATION – refusal to grant a Class BB Subclass 155 Five Year Resident Return visa under section 501(1) – where Applicant does not pass the character test – Applicant has substantial criminal record – two counts of breaking and entering (special aggravated) – earlier convictions – former visa cancellation – whether the discretion to refuse to grant the visa under section 501 (1) should be exercised – consideration of Ministerial Direction No. 110 – decision under review is set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
Senior Member C Shepherd
16 July 2025
Statement of Reasons
APPLICATION
This matter concerns an application for a review of a decision by a delegate of the Minister dated 23 April 2025. The delegate refused to revoke a mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (visa).
HEARING AND EVIDENCE
The Tribunal heard the application, via MS Teams, on 2 July 2025 and 3 July 2025. The Applicant was legally represented and gave evidence to the Tribunal. Six witnesses gave evidence by phone, with one witness assisted by an interpreter in English and Portuguese languages.
Following the hearing, and with the consent of the Minister, the Applicant was permitted to provide evidence on a limited issue, which evidence was provided on 8 July 2025. On 9 July 2025, the Minister confirmed that cross-examination of the Applicant was not required on the additional evidence.
The 84th day for the purposes of s 500(6L) of the Migration Act 1958 (Cth) (Migration Act). is 16 July 2025.
BACKGROUND
The Applicant is a citizen of Portugal and is 45 years of age. He migrated to Australia with his family on 21 July 1989 when he was nine years old.
On 7 April 2021, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act. The delegate was satisfied that the Applicant did not satisfy the character test because of the operation of s 501(6)(a) and s 501(7)(c) of the Migration Act and because the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State (cancellation decision).
By way of a letter dated 23 April 2025, the Applicant was notified that a delegate of the Minister had decided not to revoke the cancellation decision (reviewable decision). The Minister was not satisfied that there was ‘another reason’ why the cancellation decision should be revoked.
On 2 May 2025, the Applicant applied to the Administrative Review Tribunal (Tribunal) for review of the reviewable decision.
STATUTORY FRAMEWORK
Section 501(3A) of the Migration Act 1958 (Cth) (Migration Act) provides that 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 paragraph 6(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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)(a) of the Migration Act provides that a person does not pass the character test if they have a substantial criminal record as defined by s 501(7). Section 501(7)(c) provides that, for the purposes of the character test, a person has a substantial criminal record if they have been sentenced to a term of imprisonment for 12 months or more.
Section 501CA(4) relevantly provides that the Minister may revoke the cancellation 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.
Direction No. 110
Section 499(1) of the Migration Act states:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Migration Act provides that ‘a person or body must comply with a direction under subsection (1)’.
On 7 June 2024, the Minister made Direction No. 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) pursuant to s 499(1) of the Migration Act. The Direction commenced on 21 June 2024.
ISSUES
The issues for the Tribunal to determine are:
(a)whether the Applicant passes the character test for the purposes of 501CA(4)(b)(i) of the Migration Act
(b)whether there is ‘another reason’ why the cancellation decision should be revoked, as provided for by s 501CA(4)(b)(ii) of the Migration Act.
On 19 February 2021, the Applicant was convicted of two counts of breaking and entering (special aggravated) and was sentenced to seven years and three months imprisonment, with a five-year non-parole period.[1] I am satisfied that the Applicant has a ‘substantial criminal record’ as defined by s 501(7)(c) of the Migration Act. By the operation of s 501(6)(a), the Applicant does not pass the character test.
[1] Hearing Book (‘HB’) 56-HB90.
DIRECTION – OBJECTIVES AND MAKING A DECISION
Paragraph 5.1(1) of the Direction states that the objective of the Migration Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens…’.[2]
[2] Paragraph 5.1(1) of the Direction.
Paragraph 5.1(2) provides that ‘where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion’.[3]
[3] Paragraph 5.1(2) of the Direction.
Paragraph 5.2 sets out principles to provide a framework ‘within which decision-makers should approach their task…’.
(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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that ‘informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision’.[4]
[4] Paragraph 6 of the Direction.
Paragraph 7 of the Direction states that:
(2) The primary consideration at 8.1…(protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out the primary considerations as:
(1) protection of the Australian community from criminal or other serious conduct
(2) whether the conduct engaged in constituted family violence
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia
(5) expectations of the Australian community
Paragraph 9 sets out three ‘Other Considerations’ to be taken into account where relevant, although is not limited to these alone as other considerations.
(a) legal consequences of the decision
(b) extent of impediments if removed
(c) impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Safety of the Australian community is the highest priority of the Australian Government
Paragraph 8.1(1) of the Direction provides that when considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. I have regard to the principle that ‘entering or remaining in Australia is a privilege that Australian 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’.[5]
[5] Paragraph 8.1(1) of the Direction.
Paragraph 8.1(2) states that decision-makers 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.
The nature and seriousness of the conduct to date
In considering the nature and seriousness of the conduct to date, I have had regard to paragraphs 8.1.1(a)-(i) where relevant.
Subject offending
On 19 February 2021, the Applicant was convicted of two counts of breaking and entering (special aggravated) with special aggravation being that he was in the company of co-offenders who were armed with a dangerous weapon. He was sentenced to seven years and three months imprisonment, with a five-year non-parole period.[6] In sentencing remarks, the Court relied on agreed facts.
(c)On 9 March 2019 at approximately 7:15AM, the Applicant and three co-offenders arrived at a home in a stolen car. The Applicant and two co-offenders forced their way inside the home, wearing balaclavas and armed with a silencer affixed pistol, a metal pole and a knife. The occupants in the home included a two-year-old child. One of the offenders held a gun to a male occupant’s head and said ‘[i]f you don’t give me the money, I’ll put one in your head.’ The male occupant was punched and kicked several times and struck with the metal pole. A 51-year-old woman was struck with the metal pole. The offenders stole cash, bank cards and jewellery.
(d)On 9 March 2019 at approximately 8:23AM, the Applicant and two co-offenders arrived at a home in a stolen car. They forced entry into the home, wearing black hoodies and balaclavas. One of the offenders hit a male occupant in the head with a pistol and put a cover over his head. The other occupants were a female and young child, whom an offender covered with a blanket. One of the offenders discharged a round from the pistol and struck the male occupant with the pistol. The offenders stole case and jewellery before running from the house. At approximately 8:27AM, the car in which the offenders were driving clipped another car, rolled and burst into flames. The Applicant fled but was arrested a short time later by police having been found on the roof of a nearby house.
(e)The Court was satisfied that the offence was pre-planned. The Court could not be satisfied which offender carried the firearm or made the death threat.
(f)The Court did not accept the Applicant’s claims that he was not aware of what was going to occur prior to arriving at the first property. The Court noted the stolen vehicle, the use of hoodies and balaclavas and that weapons were readily to hand. The offender conceded that he was armed with a knife.
[6] Hearing Book (‘HB’) 56-HB90.
During the hearing, the Applicant gave evidence that he felt ashamed and disappointed about his actions. With reference to his co-offenders, he said ‘they were bigger than me’ and he ‘couldn’t really call the shots’. He said that he thought the gun was a toy gun. The Applicant acknowledged that he had agreed to the facts presented to the Court, and that he had pleaded guilty, but said that the facts are agreed to suit all offenders. However, the Applicant conceded that it was ‘his decision’ and that said that he ‘wasn’t in the right state of mind’ and he ‘should have just got out of there’.
I am not permitted to question convictions against the Applicant.[7] I am entitled to receive evidence of the Applicant’s conviction and sentence and treat it as probative of the factual matters upon which the conviction and sentence were based.[8] I find that the Applicant pleaded guilty to, and was convicted of, the subject offending and I rely on the facts as set out in the sentencing remarks.
[7] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [25]; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [41]-[95].
[8] Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [41].
Other criminal conduct
The Applicant’s earliest criminal conviction of supply a prohibited drug is recorded on 30 March 2000, when the Applicant was 21 years of age.[9] Subsequent convictions include the following.
(a)Possess prohibited drug recorded on 22 September 2003 and 24 March 2004.[10]
(b)Take and drive conveyance without consent of owner, possess prohibited drug, and drive vehicle recklessly/furiously or speed/manner dangerous recorded on 28 November 2005.[11]
[9] HB52.
[10] HB52.
[11] HB51.
On 29 September 2005, after pleading guilty, the Applicant was convicted of robbery in company committed on 29 September 2004. The Applicant was sentenced to six years’ imprisonment, from 30 September 2004, with a non-parole period of two years. Agreed facts were accepted by the Court.[12]
(a)The Applicant, with co-offenders, approached an electronics warehouse disguised with balaclavas and armed with jemmy bars. One of the offenders punched the victim to the head and took his mobile phone. The offenders stole electrical goods, with an estimated value of $65,000 and locked the victim in a warehouse. The Applicant left the premises driving a van at high speeds through suburban areas. He tried to outrun police and lost control of the vehicle. Following a collision, the Applicant lost consciousness.
(b)The Court observed that the seriousness of the offence was reflected in the twenty-year maximum sentence. The Court accepted that the Applicant was not involved in the pre-planning of the offence, and that he committed the offence to feed his drug addiction.[13]
[12] HB101.
[13] HB103.
While on parole from September 2006, the Applicant was subject to frequent urine testing, and he sometimes tested positive to cannabis and cocaine.[14] The Applicant remained in the community, without any charges or convictions, until he was arrested on 21 September 2010 for the offending described in paragraph 33 below.
[14] HB97.
On 5 October 2012, after pleading guilty, the Applicant was convicted of aggravated take/drive motor vehicle with person in/on it in company and conspire to rob whilst being armed with a dangerous weapon committed between 12 May 2010 and 25 May 2010. The offence was aggravated as the Applicant was on parole at the time.[15] The Applicant was sentenced to seven years and six months imprisonment, with a non-parole period of four years.[16]
(a)Police used covert investigative techniques to identify the Applicant and others. The Applicant, with co-offenders, carjacked a vehicle and conducted reconnaissance exercises on cash-in-transit deliveries. On the day of the attempted robbery, the Applicant was in a vehicle ready to assist co-offenders to escape.
(b)The Court accepted that one of the Applicant’s co-offenders was ‘the main motivator of the enterprise’ but that the Applicant was ‘as involved with the others in the reconnaissance and planning’.[17]
[15] HB95.
[16] HB90-99.
[17] HB95.
The Applicant was released on 20 January 2015. On release to parole, the offender was subject to urine testing and attendance upon a psychologist.
On 14 November 2018, the Applicant was convicted of ‘Drive vehicle, illicit drug present in blood’. The Applicant was fined and disqualified from driving for three months. The Applicant was arrested on 9 March 2019 following the subject offending.
Conduct in prison
The Minister contends that records of the NSW Police and the Department of Communities and Justice evidence to the Applicant’s lack of insight and remorse regarding his offending, as well as his misbehaviour in prison involving drugs and violence. The Minister contends that due to the Applicant’s lack of regard of offensive behaviour, that he poses a real risk of reoffending in the future. The Minister relies on extracts from records dating from 2008-2022.[18]
[18] Respondent’s Statement of Facts, Issues and Contentions, [48].
Counsel for the Minister referred to documents describing incidents in which allegations were made against the Applicant, including assaults.[19] The Applicant said that in gaol, ‘they have cameras everywhere’, so if he had committed some of the alleged offences or conduct, he would have been charged. He said that he was not charged, and he was not punished. The Applicant said ‘if you are in gaol and committing assaults, they are not going to give you parole’. The Applicant gave evidence that he had a harder time in country gaols than in city gaols. He said that sometimes people take things the wrong way, and that some officers use their power against inmates.
[19] HB411, HB414, HB427, HB428.
I give limited weight to the records regarding incidents where no adverse findings were made against the Applicant. However, I have regard to the incident included in a pre-release parole report which describes in ‘institutional misconduct’ in February 2022 in which the Applicant was charged with fight or other physical combat and received 28 days off buy-ups, television and amenities.[20]
[20] HB301.
Nature and seriousness of Applicant’s conduct to date: 8.1.1(a), (b)
The Direction provides that, without limiting the range of conduct that may be considered ‘very serious’, the types of crimes or conduct viewed very seriously by the Australian government and the Australian community include ‘violent and/or sexual crimes’ and ‘crimes of a violent or sexual nature against women or children, regardless of the sentence imposed’.[21]
[21] Paragraph 8.1.1(1)(a) of the Direction.
I find that the Applicant’s offending for which he was convicted in 2021 constituted violent crimes and crimes against women and children, and so is viewed very seriously by the Australian Government and the Australian community.
Sentence: 8.1.1(1)(c)
Paragraph 8.1.1(1)(c) provides that ‘with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above’, the decision-maker must have regard to the sentence imposed by the courts.
I find that the sentences imposed on the Applicant indicate the seriousness of his offending. In sentencing remarks in 2005, 2015 and in 2021, the Courts imposed sentences to reflect the seriousness of the Applicant’s offending.
In 2005, the Court observed that ‘[the Applicant] took part in a very serious offence in which a security officer was cruelly treated by the offender and his co-offenders in which a substantial quantity of goods was stolen’.
Impact on victim and their family: 8.1.1(1)(d)
I am to have regard to the impact of the offending on any victims of the offending and their family, where this information is available and where the Applicant has been afforded procedural fairness.[22]
[22] Paragraph 8.1.1(1)(d) of the Direction.
In 2005, the Court stated that the victim of the offending was punched in the head and locked in a warehouse.
In sentencing remarks relating to the subject offending:
[Victim] suffered actual bodily harm as a result of the use of the metal bar on him and the assault by each of the offenders which involved punching and kicking him multiple times to the head and body. The offence was committed in the home of the three adult victims and while there are no victim impact statements, the Court accepts that those victims would have been petrified throughout the offence.[23]
[23] HB63.
Frequency and increasing trend of seriousness: 8.1.1(1)(e)
I find that there has been an increasing trend in the seriousness of the Applicant’s offending. As submitted by the Minister, the Applicant progressed from involvement in offending in which fear and threats of violence were made to a victim, to offending where a pistol was aimed at victims and discharged during an offence.[24]
[24] Respondent’s Statement of Facts, Issues and Contentions, [37](c).
Cumulative effect of repeated offending 8.1.1(1)(f)
I find that the cumulative effect of the Applicant’s repeated criminal offending is that it has caused fear and harm to members of the Australian community. The Applicant has been supervised while on parole and breached parole conditions.
Re-offending since formal warnings: 8.1.1(1)(h)
It is highly relevant that the Applicant was given two previous warnings that future conduct could result in consideration of cancellation of his visa.
On 18 May 2006, the Department of Immigration and Multicultural Affairs notified the Applicant that his visa was liable for cancellation. On 25 September 2006, a delegate of the Minster decided not to exercise the discretion to cancel the visa. The delegate warned the Applicant that conviction for any further offences ‘will result in a fresh assessment being made to again consider cancellation of your visa’.[25] On 28 September 2006, the Applicant signed an acknowledgment that he understood that any further convictions for any offences would result in his visa being reconsidered for cancellation.[26]
[25] HB184.
[26] HB186.
On 17 September 2015, the Department of Immigration and Border Protection notified the Applicant that his visa was cancelled. Following consideration of the Applicant’s representations, a delegate of the then Minister revoked the visa cancellation and reinstated the Applicant’s visa.[27] On 1 September 2016, the Department of Immigration and Border Protection notified the Applicant that a decision had been made to revoke that visa cancellation and the Applicant signed an acknowledgment that he could be considered again for cancellation of any visa in the future.[28]
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[27] HB174
[28] HB177.
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[29]
[29] Paragraph 8.1.2(1) of the Direction.
In assessing the risk that may be posed by the Applicant to the Australian community, I have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.[30]
Nature of harm to individuals or the Australian community should the non-citizen engage in further criminal conduct or other serious conduct
[30] Paragraph 8.1.2(2) of the Direction.
The Minister submits that future offending by the Applicant of a similar nature to past offending would have the potential to cause physical, psychological and financial harm to members of the Australian community. Counsel for the Minister submitted that the Applicant’s offending caused people to be fearful in their own homes, and the Applicant’s dangerous driving in public places caused fear in the community. The Minster contends that the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.[31]
[31] Respondent’s Statement of Facts, Issues and Contentions, [45].
Should the Applicant engage in further criminal conduct or other serious conduct in the nature of the subject offending, I am satisfied that the nature of harm to others would be significant.
Likelihood of the non-citizen engaging in further criminal conduct or other serious conduct
I have regard to the likelihood of the Applicant engaging in further criminal conduct or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence… .[32]
Information and evidence on the risk of the Applicant re-offending
[32] Paragraph 8.1.2(2)(b) of the Direction.
Factors contributing to previous criminal conduct
The Applicant gave evidence that he had not engaged in any juvenile offending and that his early offending in 2000, when he was approximately 21 years of age, concerned small quantities of marijuana.
The Applicant gave evidence that his oldest sister was diagnosed with breast cancer in 2003, and that she experienced depression following the birth of her child. The Applicant said that he was working at that time but because he did not have a mortgage, kids or a girlfriend, he left his job and stayed with his sister to help her with her baby. The Applicant said that it was very difficult for him to see his sister being sick.
In 2005, Dr Olav Nielssen, Psychiatrist, indicated that the Applicant had a substance abuse disorder based on his use of large amounts of harmful drugs. Dr Nielssen reported that the Applicant was addicted to cocaine at the time of the 2004 offending, partly because of his mother being diagnosed with a brain tumour and his sister with breast cancer.[33]
[33] HB104.
In 2010, the Applicant’s counsellor reported that the Applicant said: ‘I just don’t know how to stay clean, I feel like I should know but I get scared that I can’t control my drug use, it controls me, I don’t know what to do’.
In 2012, the Court had regard to the illnesses of the Applicant’s mother and sister, and the Applicant’s drug use. The Court observed that was about the time that the Applicant began to use cannabis more regularly and developed a serious drug habit which at one stage cost him $3,000 per week.[34] The Court noted that since the Applicant’s arrest he had been consistently attending drug and alcohol counselling sessions, and that his dependence on drugs was rated as ‘chronic/severe’. The Court referred to evidence from the Applicant’s counsellor that the Applicant was motivated for ‘awareness and change’. The Court accepted that the Applicant’s drug addiction was the root cause of his offending, that the Applicant was remorseful and that he had ‘abundant support’ from family and friends. [35]
[34] HB96
[35] HB98.
The Applicant submits that the 2019 offending occurred during a period marked by severe personal challenges including a long-standing struggle with substance abuse, depression and anxiety and a history of traumatic events. He submitted that his personal and professional life was destabilised by the following events.
(a)His business was impacted by cybercrime
(b)His 14-year relationship broke down
(c)His older sister attempted suicide
(d)Another sister had cancer surgery
(e)He experienced multiple serious car accidents.[36]
[36] HB136-HB14.
The Applicant gave evidence that his sister, [‘PD’], was diagnosed with cancer in or around 2015. He gave evidence about starting a business with his brother-in-law which collapsed in 2019. In 2021 the Court referred to the Applicant having twice attempted suicide as a result of financial pressures brought about by the failure of his business and the illnesses of family members.[37] The Court referred to the offender’s other sister being diagnosed with bowel cancer in 2017 and the Applicant caring for her children at that time.[38]
[37] HB71.
[38] HB69-HB71
Risk assessments
In sentencing remarks on 19 February 2021, the Court stated that it was of the view that it was premature to make a positive finding that the offender was unlikely to reoffend in the future. However, the Court stated that it did not make a finding adverse to the offender that he will reoffend in the future.[39]
[39] HB78.
In a pre-release report dated 22 December 2023, the Community Corrections Officer reported that:
(a)that the Applicant had been assessed a medium-low risk of reoffending, according to the Level of Service Inventory – Revised
(b)the Applicant had not positive urinalysis whilst in custody, and he was reported to intend to remain abstinent from drugs on release and be willing to further engage in intervention in the community and undertake any necessary drug tests as required
(c)the Applicant’s supervision plan would include referrals to AOD counselling services, referral for a Mental Health Care Plan, random drug testing, and implementation of other intervention modules
(d)the Applicant’s ‘behaviour in custody has been mostly positive, having maintained a C2 classification and maintaining employment’ and that ‘there are no key reasons that have been identified against release to parole’
(e)the Applicant has a ‘stable and supportive post release accommodation and an adequate post release plan has been formulated’.[40]
[40] HB702-709.
The Applicant was released to parole on 8 March 2024, being the non-parole period expiry date. He was immediately transferred to immigration detention.
Evidence of rehabilitation and protective factors
In a letter dated 3 January 2025, the Applicant states that he takes complete responsibility for his past criminal convictions, which he deeply regrets. He says that he has ‘worked tirelessly’ to rehabilitate and address the underlying issues that contributed to his past behaviour.[41]
[41] HB136-HB142.
The Applicant gave evidence that he was ‘disgusted with his behaviour’. He said that he feels deeply sorry for the victims of his offending and understands that they would have been traumatised. He said that he is ashamed and embarrassed by his actions. He said that it broke his heart that he put his parents through it, and he let them down. The Applicant said that he is older and is now equipped to ask for help and knows what services to contact. He said that he is willing to see a psychologist. He said that he understands that there may be triggers, but that he must take himself out of the situation and he can’t make stupid decisions. He said that he intends to attend Narcotics Anonymous and Alcoholic Anonymous to help him refresh his mind.
The Applicant gave evidence that his biggest motivation not to reoffend is that his father died by suicide in 2023, and that changed his outlook on life. He said that his mother found his father, and she is traumatised. He said that he missed his father’s funeral and does not want the same thing to happen when his mother passes away. He said that his father is buried in Australia and that he wants to support his mother as she is getting older and is living on her own. He said that his father used to drive his mother to the doctor, and because he is the only one of his siblings who does not have a partner and kids, he wants to take care of his mother.
In 2021, the Court had regard to the Applicant’s support from family and friends, and remorse shown by the Applicant. Evidence from the Applicant’s psychologist was that if the Applicant keeps to plans, he had a ‘good chance of rehabilitation’.[42]
[42] HB76.
The Applicant submitted that he has participated in the following programs and courses.[43]
(a)Narcotics Anonymous (NA) and Alcoholics Anonymous (AA). The Applicant submitted that he has attended during 2023 and 2024.
(b)SMART Recovery Program. The Applicant submitted that he has completed structured sessions which focus on self-management and recovery.
(c)Drug and Alcohol Counselling. The Applicant submitted that he attended regular one-on-one and group counselling sessions.
(d)Relapse Prevention Planning. The Applicant submitted that he engaged in sessions focused on creating a robust relapse prevention plan.
(e)Psychological Education Programs. The Applicant submitted that he completed courses on understanding mental health, emotional regulation and managing stress and anxiety.
(f)Anger Management and Emotional Regulation
(g)Life Skills Development
(h)Enough is Enough ‘R Program’ course in 2024. The Applicant submits that this dealt with ending criminal behaviour including drugs and crime.
[43] HB137-HB139.
The Applicant completed a Salvation Army Positive Lifestyle program on 17 November 2020.[44] This included units on self-awareness, grief and loss, anger, assertiveness, depression and loneliness, self-esteem and future direction. In 2021, the Court noted that since being in custody, the Applicant had completed a Positive Lifestyle course, that he had established a good relationship with the chaplain and had been asked to be a peer mentor for the program.[45]
[44] Certified given to Tribunal on 8 July 2025.
[45] HB71.
The Applicant submitted that he has developed a comprehensive relapse prevention plan comprising ongoing support by attending NA and SMART Recovery meetings post-incarceration; professional counselling; healthy habits; structured routine; and community engagement.[46]
[46] HB140
The Applicant submitted that he successfully completed vocational training in horticulture while incarcerated, which he plans to use to contribute to the Australian community.[47]
[47] HB141.
The Applicant has been incarcerated since 2019, and when released on parole was taken immediately into immigration detention. As such, any rehabilitation that has occurred over the past six years has not been tested in the community. However, it is relevant that in a pre-release report dated 22 December 2023, the Community Corrections Officer reported that:
(i)the Applicant’s ‘behaviour in custody has been mostly positive, having maintained a C2 classification and maintaining employment’.[48]
[48] HB 702-709.
In a letter dated 16 December 2024, the Applicant’s sister, [PD] stated ‘[a]nyone who knows [the Applicant] can clearly see that he is a more mature, level-headed and calm man, which is the opposite of the young man from 10 years ago’.[49]
[49] HB149-HB150
In a letter dated 13 January 2025, the Applicant’s school friend [‘HA’] states that through his conversations with the Applicant, the Applicant has shown ‘remorse and a strong determination to rebuild his life…it is clear that he has reflected deeply on the consequences of his actions and is committed to living a lawful and responsible life’. Mr HA states that he is willing to support the Applicant and is committed to helping him secure meaningful employment and providing guidance as he reintegrates into the community.[50]
[50] HB154-HB155, and letter given to the Tribunal from Applicant’s counsel, Mr Mark Northam dated 8 July 2025.
[‘ST’] and [‘MT’], the Applicant’s sister and brother-in-law, state that they are committed to providing the Applicant with the support he needs to reintegrate into society. They stated that ‘he has a secure home with us and access to a strong family network that will guide and assist him in maintaining his positive progress’.[51]
[51] HB148.
Mr [‘DM’], the Applicant’s brother, said that he and his family would assist the Applicant to reintegrate. In a letter dated 29 December 2024, the Mr [DM] and his wife expressed their ‘unwavering support’ for the Applicant. They said that their family is united in ensuring that the Applicant has the support and stability he needs on release. They said that the Applicant will live with them in a structured environment, and that they will assist with his reintegration into the community.[52]
[52] HB151.
Ms [‘VM’], the Applicant’s sister-in-law, said that she lives close to the Applicant’s mother, and that she is willing to support the Applicant, financially and by including him in family events. Mrs [VM] said that the Applicant has changed, and that he wants to do better.
Minister’s submissions
Counsel for the Minister submitted that the Applicant’s remorse is for himself, rather than victims, and submitted that the Applicant sought to minimise his conduct during the hearing.
The Minister contends that there is a significant risk of the Applicant re-offending in the future, and submitted that:
(a)the traumatic events experienced by the Applicant and his drug addiction do not reduce or mitigate the Applicant’s offending, particularly in circumstances where Applicant previously warned through the visa cancellation program
(b)the Applicant previously made submissions in support of revocation of a cancellation decision and expressed his remorse at that time, and despite the support the Applicant has received from his family, expression of remorse and rehabilitation, these factors have not acted as protective factors for him as he has consistently reoffended
(c)the Applicant does not have the skillset to avoid a return to drug use and associated violent offending if he is faces with challenges in the future
(d)the Applicant’s history of offences committed in breach of parole demonstrate his disregard for judicial orders and poor ability to abstain from criminal behaviour.[53]
[53] Respondent’s Statement of Facts, Issues and Contentions, [49].
Counsel for the Minister submitted that nothing has changed for the Applicant, and that there was no independent evidence as to the timeframes that the Applicant completed courses or programs. In a submission to the Tribunal dated 9 July 2025, the Minister noted that the Applicant’s claims of attendance at NA and AA in 2023 and 2024 are unsubstantiated and should be given limited weight.
The Minister contends that primary consideration 1 should weigh very heavily against revocation of the cancellation decision.[54]
[54] Respondent’s Statement of Facts, Issues and Contentions, [86].
Conclusion on the protection of the Australian community
I am satisfied that the subject offending and other criminal conduct engaged in by the Applicant constitutes conduct viewed very seriously by the Australian Government and the Australian community and is very serious offending. I find that the victims of the Applicant’s offending were harmed physically and financially and consider it likely that they were traumatised by the offending particularly when that offending occurred in their homes. I find that the Applicant’s offending over many years is of a very serious nature, and should it be repeated, the harm perpetrated against the Australian community would be significant.
That the Applicant received two previous warnings regarding visa cancellations, and had his visa cancelled in 2016 with that decision being revoked, weighs heavily against him. It is apparent from sentencing remarks in 2005 and in 2012 that the Applicant expressed similar expressions of remorse, that he engaged in rehabilitation for his drug use, attended a psychologist and that was supported by a close and loving family throughout his life. However, those factors did not deter the Applicant from re-offending in 2019.
I find that the nature and seriousness of the Applicant’s conduct weighs heavily against revocation of the cancellation decision.
The evidence regarding the Applicant’s risk of re-offending tends to suggest that the Applicant has a low to medium risk of re-offending. Based on factors contributing to past offending, I find that the Applicant’s risk of re-offending is informed primarily by his ability to cope with traumatic life events and abstain from drug use. I find that the Applicant has engaged in rehabilitation programs although I accept the Minister’s submission that there is limited evidence regarding his attendance at AA and NA. I find that the Applicant’s family are committed to supporting the Applicant, both emotionally and financially. I am persuaded that the Applicant has a different motivation for change now. He gave evidence that his father died by suicide in 2023, and he was greatly impacted by his father’s death and the change that his father’s death has had on his mother’s living circumstances.
I cannot assess the impact of any rehabilitation undertaken by the Applicant since 2019 in terms of his behaviour in the community because the Applicant has been incarcerated since March 2019. On release to parole, he was immediately transferred to immigration detention. I have regard to the fact that the Applicant was released to parole on the day that his non-parole period expired, and that his pre-release report was broadly positive in terms of the Applicant’s behaviour and rehabilitation.[55]
[55] HB702-709.
Generally greater weight is to be given to primary consideration 1. There is no reason to depart from that approach although in this case. I find that primary consideration 1 weighs moderately against revocation of the cancellation decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Both the Applicant and the Minister submit that there is no evidence or suggestion of the Applicant having committed family violence. I do not attribute any weight to primary consideration 2.
PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Impact on immediate family members in Australia
I am to consider any 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.[56]
[56] Paragraph 8.3(1) of the Direction.
The Applicant has a large family in Australia comprising his mother, siblings, and nieces and nephews. During the hearing, counsel for the Minister submitted that the Tribunal could be satisfied that all of the Applicant’s family members were all either Australian citizens or Australian permanent residents.
(a)Mrs [MM], the Applicant’s mother
(b)[ST], the Applicant’s oldest sister
(c)[PD], the Applicant’s sister
(d)Mr [DM], the Applicant’s brother
(e)Mrs [VM], the Applicant’s sister-in-law
(f)[DD], the Applicant’s nephew and godson
(g)[CD], the Applicant’s niece
(h)[IT], the Applicant’s niece
(i)Minor Niece 1
(j)Minor Niece 2
Mrs MM
The Applicant’s mother, Mrs [MM], gave evidence by phone with the assistance of a Portuguese and English interpreter. She said that she lives on her own since her husband died, and that she wants the Applicant to come and live with her. She said that she is 73 years of age, and that she does not speak English properly. She said that she would like the Applicant to help her go shopping and help her with everything.
In cross-examination, Mrs [MM] said that her daughters and other son assist her. She said that she goes to visit the Applicant in prison every week and that she is ready to help her son in every way.
In a letter dated 13 December 2024 the Applicant’s mother submitted that she has ‘seen his transformation’ and she believes that he can make meaningful contributions to the community. The Applicant’s mother confirms that she is ready to provide the Applicant with a stable and supportive environment and her ‘unwavering support’.[57]
[57] HB153.
Ms [PD], the Applicant’s sister, gave evidence that the Applicant’s mother has health issues, referring to scoliosis of the spine. She said that she doesn’t know how her mother will cope if the Applicant is deported. She said that her mother is ‘already so depressed since Dad died’ and that she is a ‘wreck’. Mrs [PD] explained that her mother does not want to go into a nursing home, and that she has said that she would ‘rather die’, and that the Applicant would be able to live with and support their mother.
Ms [ST], the Applicant’s sister
Ms [ST] is the Applicant’s oldest sister. Ms [ST] gave evidence by phone and submitted a joint statement with her husband, [MT].[58]
[58] HB148.
Ms [ST] gave evidence that the Applicant is a very loving and caring person. She said that she supports him and believes that he has changed. She said that her health is not good, and her sister’s health is not good. Ms [ST] said that ‘we are suffering as well’.
Mr [DM], the Applicant’s brother
Mr [DM] gave evidence by phone and submitted a joint statement, with his wife [VM].[59] Mr [DM] confirmed his support for the Applicant.
[59] HB151.
Mr [DM] said that it would cost a lot to support the Applicant if he was returned to Portugal because of the exchange rate and cost of living, and because the Applicant would need to rent accommodation rather than being able to live with their mother. Mr [DM] said that it would be expensive for the family to travel to visit the Applicant in Portugal, and that they might only be able to go once every ten years.
Ms [VM], Applicant’s sister-in-law
Ms [VM] gave evidence by phone at the hearing, and a joint statement with her husband dated 29 December 2024.[60] Ms [VM] explained that she grew up with the Applicant, having attended the same primary school and community club. She confirmed her support for the Applicant, particularly as regards reintegration.
[60] HB151.
Ms [PD], Applicant’s sister
The Applicant’s second oldest sister, Ms [PD], gave evidence by phone. Ms [PD] submitted a statement dated 16 December 2024.[61]
[61] HB149.
Ms [PD] states that if the visa is cancelled ‘it would be devastating and very painful for our family’.[62] Ms [PD] gave evidence that her family are ‘strong and passionate’ about wanting to support the Applicant. She explained that she has been dealing with a cancer diagnosis.
[DD], Applicant’s nephew and godson (25 years old; [CD], Applicant’s niece (20 years old); Minor Child 1 (15 years old), Applicant’s niece
[62] HB149.
Ms [PD] states that two of her children are adults, [DD] is 25 years of age, [CD] is 20 years of age and Minor Child 1, is 15 years old.
Ms [PD] gave evidence that if the Applicant is deported, her children will never see their uncle. She said that her children ‘miss him every day’ and that her daughter still remembers the Applicant from when she was younger. Ms [PD] said that although the Applicant has not been physically present with her children, they have a relationship with him and speak to him on the phone. She said that she took her children to visit the Applicant in gaol. She said that if he is deported, it will be hard for her children to maintain that relationship. She said that a video call is not the same as the children being able to touch and hug their uncle.
Ms [PD] states that the Applicant is the godfather of [DD] and that they are ‘remarkably close’.
[IT] (23 years old)
Ms [ST] described her daughter as having a very close relationship with the Applicant. She said that they speak to each other on the phone regularly and that when the Applicant’s father died, her daughter was the one to go to tell the Applicant in person in gaol.
Minor Child 2 (11 years old)
Ms [VM] gave evidence that her daughter would be impacted by the Applicant’s removal from Australia. Ms [VM] said that Minor Child 2 would know that her uncle is gone permanently, and that Minor Child 2 would be impacted by the stress on her grandmother, and family.
Strength, nature and duration of any other ties
I am to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[63]
[63] Paragraph 8.3(2)(a)-(b) of the Direction.
The Applicant arrived in Australia at the age of 9. I have regard to the Applicant having lived in Australia for 38 years, and that he arrived as a young child. The Applicant’s first offences are recorded as occurring in 2000, some 14 years after his arrival.
The sentencing remarks for the subject offending describe the Applicant as having started school in Australia in Year 4 and proceeding through to Year 12 although he did not complete his Higher School Certificate. The Applicant’s employment history includes working in a fast food restaurant, as an airport baggage handler, as a forklift driver, as a labourer, and playing soccer professionally for four years for a suburban team. I accept the evidence of the Applicant and his family that he was involved in assisting with the care of his nieces and nephews when his sisters were ill and receiving treatment.
Minister’s submissions
Counsel for the Minister submitted that the Applicant has spent 13 years in prison or detention, and so he has not been present with this family and this significantly reduces his engagement with the community. In closing submissions, counsel for the Minister noted the evidence that assisted living is an option for the Applicant’s mother. The Respondent submits while primary consideration 3 should weigh in favour of revocation of the cancellation decision, it is not outweighed by other primary considerations.[64]
[64] Respondent’s Statement of Facts, Issues and Contentions, [57].
Conclusion in relation to primary consideration 3
I find that each of the Applicant’s immediate family members, all of whom are either Australian citizens or Australian permanent residents and are in Australia, would be adversely impacted if the cancellation decision is affirmed.
I find that the Applicant has close relationships with his family members and they have each remained supportive and in regular contact with the Applicant throughout his life. I accept that family members have visited the Applicant and supported him through Court cases.
I find that the Applicant’s mother would be most significantly impacted, and the consequences for her may be that she considers assisted living rather than be supported by the Applicant and her other children in her own home. I find that the Applicant’s siblings and their partners, and the Applicant’s nieces and nephew would be negatively impacted because of the stress on other family members, and because of the limitations in providing support to the Applicant in Portugal on a day-to-day basis.
I accept that the Applicant’s family would be likely to provide financial support to the Applicant if he were to be deported to Portugal but that would be an expensive exercise considering exchange rates and rental costs. I accept that the Applicant’s family would be limited in their ability to travel to Portugal to visit him, because of the costs of travel, and that would negatively impact on the Applicant’s family members.
I give weight to the time that the Applicant has spent positively contributing to the Australian community, as outlined in paragraph 112, which contribution is tempered by the fact that the Applicant has spent 13 years in prison or in immigration detention.
I find that primary consideration 3 weighs in favour of revocation of the cancellation decision.
PRIMARY CONSIDERATION 4: BEST INTEREST OF MINOR CHILDREN
I must determine whether non-revocation of the cancellation decision is, or is not, in the best interests of children who are affected by the decision. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.[65]
[65] Paragraph 8.4(1)-(3) of the Direction.
In considering the best interests of any child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. [66]
[66] Paragraph 8.4(4)(a)-(h) of the Direction.
The Applicant has two minor nieces in Australia, and I find that each of those nieces will be affected by the decision. I do not consider that their interests differ, so I have considered their interests together.
I accept that the Applicant has relationships with Minor Child 1 and Minor Child 2 although I find that the Applicant has been incarcerated for a significant period of their lives. I find that the Applicant has maintained phone and video call contact with both minor children.
I do not consider that the Applicant will play a parental role to the minor children in the future. They each have two parents, along with other aunts and uncles.
I find that the Applicant would be able to maintain contact and a relationship with the minor children through phone and video calls. However, I accept Ms [PD]’s evidence that a video call is not the same as the children being able to touch and hug their uncle.
There is no evidence before the Tribunal that the minor children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct, or that the Applicant’s conduct has had a negative impact on them.
Ms [VM] gave evidence that her daughter, Minor Child 2 would be impacted by the Applicant’s removal from Australia. Ms [VM] said that Minor Child 2 would know that her uncle is gone permanently, and that Minor Child 2 would be impacted by the stress on her grandmother, and family.
In closing submissions, counsel for the Minister contended that neutral weight should be given to primary consideration 4 because the Applicant’s relationships with his nieces are non-parental, and because the Applicant has spent a large part of their childhoods in detention.
Conclusion in relation to primary consideration 4
Based on the evidence presented during the hearing, I find that primary consideration 4 weighs only moderately in favour of revocation of the cancellation decision.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[67]
[67] Paragraph 8.5(1) of the Direction.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(3) of the Direction states that the expectations outlined in paragraph 8.5 apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, the High Court described paragraph 8.4(4) (as it was then):
…to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be ‘in the particular case’…but to proceed on the basis that the views of the Australian Government…are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90.[68]
[68] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52].
I find that the Applicant has committed offences that are viewed very seriously by the Australian community. I find that the Australian community, as a norm, would expect that the Australian Government would not allow the Applicant to remain in Australia.
I find that primary consideration 5 weighs against revocation of the cancellation decision.
OTHER CONSIDERATIONS
(a) Legal consequence of the decision
Mr Northam submitted that the Applicant does not seek protection and is not the subject of a protection finding. However, Mr Northam submitted that the Tribunal is bound to have regard to the legal consequences of the cancellation decision being affirmed. They can be described are as follows.
(a)The Applicant remains an unlawful non-citizen.[69]:
(b)The Applicant is not allowed to make an application for another visa except for a protection visa or a prescribed visa.[70]
(c)The Applicant must remain in detention and must be removed from Australia as soon as reasonably practicable.[71]
(d)The Applicant may be subject to permanent exclusion from Australia, subject to Special Return Criteria.[72]
[69] Section 15 of the Migration Act.
[70] Section 501E of the Migration Act.
[71] Sections 189 and 198 of the Migration Act.
[72] Section 503 of the Migration Act.
Mr Gauci submitted that the consequences of removal and exclusion from Australia are the intended purposes of the statutory scheme, and those purposes underline the considerations in the Direction 110. Mr Gauci submitted that the fact that the scheme will be carried out means that this factor should not weight in favour of revocation, and so other consideration (a) should be given neutral weight.
I find that the decision results in technical legal consequences, as outlined by Mr Northam. However, I accept the Minister’s submission that these consequences underline the considerations in Direction 110, and I give neutral weight to other consideration (a) in the circumstances of this matter.
(b) Extent of impediments if removed
Age and health
The Applicant is 45 years of age.
The Minister contends that there is an absence of any diagnosed mental or physical health issue for the Applicant.[73]
[73] Respondent’s Statement of Facts, Issues and Contentions, [80](a).
I accept that the Applicant has indicated that he does not have a diagnosed medical or psychological condition but has a history of poly-drug use.[74] However, the evidence before the Tribunal indicates that the Applicant has twice attempted suicide,[75] suffered from depression, substance abuse and drug dependency,[76] and in 2019 was place on a risk intervention team due to his emotional state and suicide attempt.[77]
[74] HB133.
[75] HB71,
[76] HB76.
[77] HB705.
Language and cultural barriers
The Applicant has lived in Australia since he was nine years of age. The Applicant visited Portugal once in the past 34 years, to attend his grandfather’s funeral. Members of the Applicant’s family referred to distant relatives living in Madeira. I accept the evidence of the Applicant and his family members that he does not speak, read or write the Portuguese language.
I find that the Applicant would face significant language and cultural barriers in Portugal.
Social, medical and/or economic support available
Given that the Applicant does not speak Portuguese, combined with the lack of any social support other than distant relatives, I find that the Applicant is likely to face challenges in establishing himself in Portugal. I accept that these difficulties may diminish over time as the Applicant becomes familiar with language and culture.
I find that the Applicant does not have any meaningful connections or relationships in Portugal, and I find that the Applicant would not have the family support that would be available to him if he remained in Australia. [ST] and [MT] state ‘deportation to Portugal would isolate [the Applicant] from the family and resources he needs to thrive’.[78]
[78] HB148.
I accept that the Applicant would be able to remain in contact with his family and friends in Australia through phone and video calls, and that his family may be able to visit him in Portugal. I find that the Applicant’s family may be able to provide financial support to him in Portugal although I accept Mr [DM]’s evidence that it would be more expensive for his family to support him in Portugal than in Australia because of the exchange rate and rental costs.
I accept that the Applicant will have access to health services, treatment and welfare services in Portugal.
Minister’s submissions
The Minister submits that any impediments that the Applicant may face are limited, given his strong employment history and absence of diagnosed mental or physical health conditions. The Minister contends that other consideration (b) should weigh moderately in favour of revocation of the cancellation decision.
Conclusion on other consideration (b)
I find that the impediments that would be faced by the Applicant, if he returned to Portugal, would be his ability establish himself socially and financially in an environment in which he does not speak the language and in unfamiliar with the day-to-day culture and services. I find that he would not have the support of his family or friends to integrate into the community, having been in prison and immigration detention for six years.
I find that other consideration (b) weighs heavily in favour of revoking the cancellation decision.
(c) Impact on Australian business interests
Paragraph 9.3 requires decision-makers to consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia. Both the Applicant and Respondent submitted that this consideration should be given neutral weight. There is no evidence before the Tribunal to suggest that Australian business interests will be impacted if the Applicant is not allowed to remain in Australia, and so I give other consideration (c) neutral weight.
CONCLUSION
The Applicant arrived in Australia as a young child of 9 years of age. One of the principles in the Direction relevant to the Applicant is that…’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’.[79] This principle is part of a framework within which decision-makers should approach their task, and sits alongside the other principles under paragraph 5.2, including that the safety of the Australian Community is the highest priority of the Australian Government.
[79] Paragraph 5.2(6) of the Direction.
Informed by the principles in paragraph 5.2, I am required to take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.[80]
[80] Paragraph 6 of the Direction.
In considering the safety of the Australian community, I find the Applicant’s criminal offending to be very serious. The Applicant committed offences in 2004, in 2014 and in 2019, with increasing seriousness in offending. I find that the that the potential for harm to the Australia community is significant should the Applicant commit offences of a similar nature in the future. The fact that the Applicant was previously warned on two occasions through the visa cancellation program weighs heavily against him. I accept that the Applicant’s motivation for change is different now, because of the death of his father in 2023 and the impact on his mother. I find that the Applicant’s risk of re-offending is low to medium, and I find that risk is informed by the Applicant’s ability to cope with traumatic life events and his ability to abstain from drugs. The Applicant has been incarcerated since 2019, so the steps he has taken in respect of rehabilitation during that period have not been tested in the community. The Applicant’s pre-release parole report was broadly positive, and the Applicant was released on parole on the date that the non-parole period expired. Generally greater weight is to be given to primary consideration 1. There is no reason to depart from that approach and I find that primary consideration 1 weighs moderately against revocation of the cancellation decision.
Primary consideration 3 weighs heavily in favour of revoking the cancellation decision. I find that the Applicant’s immediate family members, all of whom are Australian citizens or Australian permanent residents will be negatively impacted by the Applicant’s deportation from Australia. The Applicant’s mother will be most profoundly impacted, which will have consequential impacts for all the family. The Applicant has lived in Australia since he was 9 years of age, and although he has been incarcerated for 13 years, he remains connected with at least one school friend who has offered him employment if he remains in Australia.
I find that the best interests of each of the Applicant’s two minor nieces is for the Applicant to remain in Australia, and I find that primary consideration 4 weighs moderately in favour of revocation of the cancellation decision.
I find that primary consideration 5 that weighs against the Applicant, being that the Australian community would expect that the cancellation decision would not be revoked.
I find that the other considerations (b), being the extent of impediments facing the Applicant if deported, weigh heavily in favour of revoking the cancellation decision. The Applicant does not speak, read or write Portuguese and has only visited Portugal once since coming to Australia. The Applicant is likely to face difficulty in establishing himself financially and socially in Portugal.
I am required to ‘bring together the considerations as part of a single evaluation of their relative significance, weighing them all together’.[81] In doing so, I find that primary considerations 3 and 4, with the other consideration (b) outweigh primary considerations 1 and 5 in the circumstances of this matter.
[81] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [23].
Decision
I find that there is another reason for the cancellation decision to be revoked. I set aside the decision under review and substitute it with a decision that cancellation of the Applicant’s visa be revoked.
I certify that the one hundred and sixty (160) paragraphs are a true copy of the reasons for the decision herein of Senior Member C Shepherd.
......................[SGND]......................................
Associate
Dated: 16 July 2025
Date of hearing:
Date final submissions received:
2 and 3 July 2025
9 July 2025
Advocate for the Applicant:
Mr M Northam (Northam Lawyers)
Advocate for the Respondent: Mr M Gauci (Hunt & Hunt Lawyers)
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