Callow and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1243
•5 August 2025
Callow and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1243 (5 August 2025)
Decision and
Reasons for DecisionApplicant /s: Debra Samantha Kim Callow
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3677
Tribunal:Senior Member K. Raif
Place:Sydney
Date:5 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the discretion should not be exercised to refuse the visa to the visa applicant.
Statement made on 05 August 2025 at 1:19pm
Catchwords
VISITOR VISA – refusal to grant a Visitor visa – Visa Applicant did not satisfy the character test –Ministerial Direction No. 110 applied – whether Tribunal should exercise discretion to refuse to grant the Tourist visa – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46
Uelese v Minister for Immigration and Border Protection [2016] FCA 348FYBR v Minister for Home Affairs [2019] FCA 500
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Introduction
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 22 April 2025 to refuse to grant a Visitor (Class FA) visa to the Visa Applicant.
The Visa Applicant is John Kennedy Lovelace, who is a national of the USA, born in January 1964. He made the application for the visa in October 2022. On 2 December 2024 the Visa Applicant was issued with a Notice of Intention to Consider Refusal (NOICR) of his visa under s. 501(1) of the Migration Act 1958 (Cth). The Applicant provided his responses to the NOICR. In April 2025 the delegate decided to refuse to grant the Visitor visa to the Applicant as the delegate determined that the Applicant did not pass the character test and exercised the discretion to refuse to grant the visa. The Visa Applicant’s Australian partner, Ms Debra Callow (the review Applicant) seeks review of the delegate’s decision.
The Review Applicant appeared before the Tribunal on 4 and 5 August 2025. The Tribunal also received oral evidence from the Visa Applicant and a number of character witnesses. The issues before the Tribunal are:
· whether the Visa Applicant passes the character test as required by section 501 of the Act and, if not
· whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.
For the reasons set out below, the Tribunal has decided that the decision under review should be sets aside and substituted with the decision that the discretion to refuse to grant the visa should not be exercised.
Legislative framework
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
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))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Should the Visa Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.
In June 2024 Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) came into effect. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 state that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
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.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out in clause 9 of Direction 110:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of the 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.
Does the Visa Applicant pass the character test?
The Visa Applicant’s offending is set out in the delegate’s decision and various submissions. The Tribunal has also been provided with the US Department of Justice report. The delegate outlined the Visa Applicant’s offending as follows:
16/08/11
Possess controlled substance paraphernalia
15 days imprisonment, 2 years’ probation, fine
28/06/12
Possess controlled substance
4 months imprisonment, probation
28/06/12
Possess controlled substance paraphernalia
90 days imprisonment
12/05/14
· Possess controlled substance
· Use / under the influence of controlled substance
· Possess unlawful paraphernalia
8 months imprisonment
Probation 3 years
Fines
28/01/15
· Use / under influence of controlled substance
· Possess unlawful paraphernalia
6 months imprisonment
Probation 3 years
Fines
In his submission to the delegate date 20 February 2025 and statement of 29 July 2025 the Visa Applicant confirms his offending and concedes that he does not pass a character test by virtue of the 2014 – 2015 offending which resulted in him being sentenced to terms of imprisonment totalling 14 months.
Having regard to the above convictions, the Tribunal finds that in 2014 and 2015 the Applicant has been convicted of offences and sentenced to terms of imprisonment exceeding 12 months. The Tribunal finds that the Visa Applicant has a substantial criminal record as defined in s. 501(7)(c) and that he does not pass the character test.
Consideration of discretion
The Review Applicant claims that, essentially, that the risk of reoffending is minimal or remote ad not one that cannot be tolerated. The review applicant notes that the drug offending always related to personal use and not for sale, distribution etc and the Visa Applicant had not committed any other offences that are identified in the Direction as being serious. The Review Applicant submits that the offending must be viewed in context and that the circumstances that led to the offending no longer exist, with the Visa Applicant having completed meaningful rehabilitation. The Review Applicant claims that the Visa Applicant has rehabilitated and has not reoffended since 2015. The Review Applicant claims there would be significant hardship to her if the Visa Applicant’s visa is not granted and there are strong compassionate and compelling reasons for the grant of the visa given her personal circumstances.
The Respondent submits that ere is no basis to exercise discretion in favour of the Visa Applicant. The Respondent refers to the seriousness and persistence of the Applicant’s drug-related offending involving repeated and sustained breaches of probation and court orders. The Respondent acknowledges the passage of time and the Visa Applicant’s claimed rehabilitation but states that the rehabilitative programs were not medically based. The Respondent submits that the protective factors may not be transferable to a new and unfamiliar environment such as Australia. The Respondent submits that the Visa Applicant’s limited ties in Australia, which are very limited, do not outweigh the seriousness of his offending or the need to protect the Australian community.
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular 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.
(2)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 Applicant’s conduct to date
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
The delegate noted in the primary decision that there are no court or police documents outlining the circumstances of the Applicant’s offending. The Visa Applicant outlined the circumstances of his offending in a number of submissions including his statement of 29 July 2025. The Visa Applicant’s evidence is that his offending stemmed from drug use over the years. In his response to the NOIR the Visa Applicant stated that his offending was not of the type that has been characterised as being very serious in the Direction. The Visa Applicant stated that his offending could be classified as misdemeanours, which involved less serious offending and non-violent crimes. The Visa Applicant stated that the sentencing for his offending was at the lower end of the spectrum indicating the Court took some leniency and did not impose maximum penalty. The Visa Applicant stated that there were no victims of his offending, the offences were non-violent and did not involve third parties. The Visa Applicant submits there is no escalating pattern of violence or transition to higher level crimes. The Visa Applicant stated that the offending occurred at the time of deep personal crises and inability to cope, which led to him becoming homeless.
The Respondent submits that between 2011 and 2015 the Visa Applicant committed several offences including possession of controlled substance, being under the influence of/ using a controlled substance and possession of paraphernalia, and he received penalties including imprisonment, probation, fines and placement in a treatment program. Contrary to the Visa Applicant’s submission, the Respondent claims that the offending was classified as felonies due to the Visa Applicant’s prior history, reflecting judicial recognition of the seriousness and persistence of offending. (The Applicant does not agree with that submission.) The Respondent notes that the offending spanned a four year period which involved multiple convictions and custodial sentences and, despite that, repeated reoffending. The Respondent submits that custodial sentences indicate that the offending was considered as serious and there was other offending including driver offences which demonstrate the Visa Applicant’s disregard for the law. The Respondent notes that the Visa Applicant’s offending would have been recognised as criminal conduct in Australia and submits that the Visa Applicant’s offending must be regarded as serious and persistent.
The Tribunal generally accepts the Respondent’s submission that the Visa Applicant’s offending had been serious. This is because his conduct involved multiple offences over a period of time and although his offences did not involve violent crimes, it cannot be disputed that drug related offending is serious offending that can cause significant damage to the community. The Tribunal also accepts that the fact that the Visa Applicant had been given custodial sentences can be seen as reflecting the sentencing judges’ view that the offending was of serious nature.
The Tribunal finds that the Applicant’s offending had been serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
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 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
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. The Direction provides that some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The nature of harm, should the Applicant reoffend
The Visa Applicant submits in his response to the NOIR that there is no evidence of escalation of offending and the nature of harm that could occur would be in the form of the taking of illicit substances.
The Applicant had committed drug-related offending. The harm relating to drug use, which is often associated with violent and other offending, is well established. The Tribunal finds that there is potential for serious harm, should the Visa Applicant engage in drug relating offending. The Tribunal also notes that the Visa Applicant had engaged in driving offences and while these do not appear to have been serious offences, any driving offence has the potential of causing physical harm to other road users and cannot be dismissed as insignificant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has considered information and evidence on the risk of the Visa Applicant re-offending and evidence of rehabilitation achieved by the Visa Applicant.
The Visa Applicant states in his submissions to the delegate that the offending occurred due to his drug addiction. The Visa Applicant refers to the death of his mother and his own divorce, stating that he turned to drugs to help deal with the devastation. The Visa Applicant stated that after the last arrest he was determined to change his life around and voluntarily enrolled in a 14 months recovery program in April 2015. He completed the program in May 2016 and he is a different person now. The Visa Applicant states that in 2019 he had his arrest record expunged. He refers to his employment and community involvement and states that he has been ‘clean and sober’ for 8 years.
In his declaration sworn on 16 January 2025 the Visa Applicant states that he became involved in drug use as he felt lost and without purpose and direction in life. He surrounded himself with the wrong people. The Visa Applicant refers to the cycle of self-destruction until 2014 and states that in 2015 he entered a Christian-based drug program which he completed by May 2016. The Visa Applicant states that he has been working as a lead chef serving the homeless community and he participated in programs for relapse prevention, anger management, bible study and other courses. The Visa Applicant refers to 10 years of sobriety and the support of his faith. The Visa Applicant also referred to his relationship with his partner. In his declaration of 29 July 2025 the Visa Applicant also outlined the rehabilitation he had achieved since the offending. In his submission to the Tribunal the Visa Applicant provided a number of court and police documents concerning his offending. There is also some evidence regarding his present circumstances such as evidence of his rental agreement.
The Visa Applicant refers to his rehabilitation, including the completion of a 12 month residential program, having found faith and his active involvement in the church. The Visa Applicant submits that he would stay in Australia for up to 3 months and the short period of stay would afford him a very limited opportunity to engage in the type of conduct last seen more than 10 years ago. The Visa Applicant submits that the chances of him reoffending are ‘negligible’ and he refers to research into relapse which, the Visa Applicant submits, indicates the risk of relapse is ‘nearly zero’.
The Visa Applicant provided to the delegate and to the Tribunal a number of character references. The Tribunal received oral character references from Mr Darrell Latchford, who expressed the view that the applicant has rehabilitated and is no longer a risk. Mr Reynolds Stewart, described the residential recovery program completed by the applicant, noting that the program was a structured program with the involvement of health professionals. Mr Stewart confirmed that relapses are possible, particularly when people are taken away from their supportive environment but has expressed the view that the likelihood of relapse in the applicant’s circumstances is very low.
The Visa Applicant also provided a report by Ms Harrison who outlined the Visa Applicant’s personal circumstances and the circumstances of his offending. Ms Harrison refers to the Applicant experiencing trauma as a child and ‘acting out’ as an adult, as well as his recovery. Ms Harrison submits that the Applicant is not at risk of engaging in criminal conduct and assesses the likelihood of reoffending as being at ‘less than 1%’. Ms Harrison states that the Visa Applicant is not a risk to the Australian community. He has no propensity for violence, has a strong recovery from childhood trauma and there are preventative measures to ensure he does not reoffends. With respect to that report, the Respondent notes that Ms Harrison’s findings are based on self-reporting and are not supported by independent evidence such as behavioural assessments. The Respondent also notes that the assessment of risk is not limited to clinical predictions but requires a broader evaluative judgment that considers the nature and persistence of past conduct, its context and potential consequences of recurrence. In the statement in reply, the Applicant states that the lapses in judgement occurred when he was grappling with addiction rather than by an individual who turned his mind to the commission of the offence.
In oral evidence, the Visa Applicant spoke about his childhood and living in foster homes and the effect of the loss of his mother and of having separated from his partner, as well as other life events. The Visa Applicant states that in 2009 he became homeless and his subsequent turning to drugs. The Applicant states that because of his addiction, he continued to reoffend even though he knew what he was doing was wrong. The Visa Applicant states that the drugs were only for his personal drug use and he was never convicted for sale or distribution of drugs or any violent offences. The Visa Applicant states that his behaviour was ‘unacceptable’ and there have been no convictions since 2015, with his criminal record being expunged. The Visa Applicant spoke about the rehabilitation programs he has completed, stating that the residential program gave him the skills to deal with the addiction. The Visa Applicant told the Tribunal that he has stable accommodation for the past eight years, has had a stable job as a chef for over seven years and continues his mentoring role and participation in AA classes. The Visa Applicant states that he has purpose and direction in life, including a partner, a stable job and supports around him. The Visa Applicant states there is ‘zero chance’ of relapsing, stating that his supports and his faith would ‘come with him’ and he spoke about the support provided by Ms Callow (and her reliance on him).
The Respondent submits that the Visa Applicant’s claims that the offending only harmed himself overlooks the ‘broader societal harms’ associated with drug use noting that drug use contributes to the normalisation and proliferation of drug abuse and is often linked to patterns of social disruption and criminal activity. The Respondent states that the Applicant’s rehabilitation had occurred in a controlled environment overseas and was supported by programs that were not medically based. The Respondent submits that such factors may not remain effective in Australia where the Applicant would be exposed to different contexts. The Respondent submits that the risk of reoffending may be unacceptable, even if low, and submits that the consequence of relapse into drug related offending, even if unlikely, would involve criminal conduct and harm to the community. The Respondent suggested that the 12 months residential program was not provided by health professionals or counsellors and there is no evidence that the course included evidence based program. The Visa Applicant denied that, stating that those who offered counselling had appropriate qualifications and stated that he did participate in relapse prevention programs. The Visa Applicant told the Tribunal medical records supporting his rehabilitation would not be available after the passage of time. The Visa Applicant denied that having limited contacts in Australia ‘carries risks’ stating that he would be supported by his partner and her family and can always reach out to his supports in the US.
The Respondent notes that the Applicant had been placed on probation multiple times and breached the probation orders repeatedly. (The Applicant concedes that). The Respondent submits that custodial sentences reflects more serious type of offending and the Visa Applicant was sentenced to a term in jail because other penalties did not preclude the offending.
In reply, the Applicant claims that the Respondent placed disproportionate weight on the Visa Applicant’s past convictions while discounting the probative value of his rehabilitation. The Applicant refers to studies showing that the extended period of abstinence lead to better outcomes and the Applicant referred to several decisions of this Tribunal (which the Tribunal considers unhelp since each case is considered on its own circumstances).
Assessment of rehabilitation and the risk of reoffending
The Applicant concedes past drug use and the offending that occurred over a number of years. However, the Visa Applicant submits that he has been drug-free since 2015. There is no evidence to contradict that claim and, significantly, there is no evidence of any offending since 2015. In that period the Visa Applicant remained in the community and had every opportunity to resume drug use. There is no evidence to suggest that he had done that.
The Respondent submits that the various structures and supports that form protective factors may not be available to the Applicant in a new environment in Australia. The Tribunal does not accept the Respondent’s claim that the in Australia the Applicant would be exposed to different surroundings that may cause him to relapse into drug use. In the Tribunal’s view, the environment in Australia would be so significantly different to the Applicant’s usual environment as to necessarily increase the likelihood of a relapse. While the Applicant may not have access to his usual supports during his visit to Australia, there is no obvious reason why he could not access other supports, including his partner and wider community, faith based supports, etc. Importantly, there is no probative basis for the assertion that the withdrawal of the particular supports he had relied on in the US and of the familiar environment – that the Respondent claims would occur during the Visa Applicant’s relatively brief visit to Australia – would necessarily cause him to relapse into drug use.
In his oral evidence, the Visa applicant spoke about the various holidays he has taken and his travel around the world. While these trips were of shorter duration than his proposed visit to Australia, there is no evidence to suggest the Visa Applicant relapsed into drug use during these periods. In the Tribunal’s view, the suggestion that the fairly short period of residence in Australia may lead to a relapse is entirely speculative. The Tribunal places considerable weight on the fact that that the Applicant had abstained from drug use for about ten years and such abstinence has been tested in the community, in all types of conditions and circumstances.
The Tribunal is mindful that the Applicant is seeking a Tourist visa, which is a short term visa. His stated during of the visit is three months and he confirmed in his oral evidence to the Tribunal that any application for a further visa would be made offshore and not in Australia. That is, the visa will not enable the Visa Applicant to remain in Australia for any significant period of time. In Singh[1] the Court held that the Tribunal is not limited to the consideration of conduct during the period of validity of the visa but is permitted to look at a longer period. It is thus open to the Tribunal to consider the risk of offending beyond the period of visa validity. Nevertheless, the primary consideration is the assessment of risk during the visa period and in relation to a Tourist visa, it is a fairly short period. While it was noted in Singh that there is a possibility of the Visa Applicant seeking other visas or remaining in Australia beyond the period of visa validity, such risks can be minimised, in the Tribunal’s view, by the imposition of the ‘no further stay’ condition on the Visa Applicant’s Tourist visa. The Tribunal is also mindful that if the Visa Applicant were to apply for another visa in Australia, that process will necessitate another assessment of the Applicant’s character which will take into account his circumstances (including the proposed period of stay in Australia) at the time of assessment.
[1] Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 at [14]
Overall, the Tribunal acknowledges that the possibility exists that the applicant will relapse into drug use during his stay in Australia. having regard to the applicant’s abstinence for about ten years, and his apparent ability to navigate the difficulties and stressors in life, the Tribunal has formed the view that the likelihood of relapse is very low.
Having regard to all the circumstances, the Tribunal finds that the risk of reoffending is low in the Applicant’s present circumstances and it is not an unacceptable risk. In reaching this conclusion the Tribunal has placed significant weight on the lengthy period of time during which the Visa Applicant has not engaged in any criminal conduct (which points to his rehabilitation) and, apparently, not engaged in drug use (which may point to his ability to abstain from drug use in the future).
The Tribunal has determined that there may be harm to the community if the Applicant were to engage in drug related offences and the Tribunal finds that this consideration weighs against the visa grant. However, as the Tribunal has formed the view that the risk of reoffending is low, the Tribunal gives this consideration limited weight in favour of exercising discretion to refuse to grant the visa.
Whether the conduct engaged in constituted family violence
There is no evidence to indicate that the Visa Applicant had engaged in family violence. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3.1 of the Direction provides:
Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Subparagraph (2) directs the decision-maker to consider the strength, nature and duration of any ties that the non-citizen has to the Australian community and to have regard to the length of the person’s residence in Australia and the strength, duration and nature of any family or social links with Australian citizens or permanent residents.
The Visa Applicant has never lived in, or travelled to, Australia. His stated purpose of seeking the Tourist visa is to visit his fiancé (the review Applicant) who is an Australian citizen. In his submission to the delegate the Visa Applicant briefly outlined the nature of his relationship with Ms Callow, stating that they first dated in 1994 and reconnected in 2022, with their relationship staring in June 2023. The Visa Applicant refers to Ms Callow’s responsibilities in caring for her elderly parents, stating that he wants to meet her parents before it is too late.
Ms Debra Callow presented a declaration to the delegate who refers to the nature of her relationship with the Visa Applicant. Ms Callow refers to her own health issues and those of her parents. She states that her carer responsibilities restricts her travel. The application includes evidence of the relationship, including evidence of the couple’s communication, social photographs, etc. In her statement of 29 July 2025 the Review Applicant also refers to her health conditions requiring a surgery. The review Applicant states that this causes her stress, given the three month recovery period and her caring responsibilities towards her parents. The review Applicant states the Visa Applicant’s visit is now critical as she wants him to assist her with revery and with caring for her parents. The Review Applicant refers to the emotional support provided by the Visa Applicant.
In oral evidence Ms Callow also spoke about her relationship with the Visa Applicant and her reliance on his care and support. Ms Callow also referred to her caring responsibilities for her elderly parents and her own health issues. Ms Callow spoke about the hardships she would face without the support of the Visa Applicant.
The Respondent submits that Ms Callow will have other supports available, both following her medical procedure, and with the care arrangements for her parents. The Respondent notes that the Visa Applicant has no other familial, social or community ties to Australia and there is no evidence of community involvement beyond isolated personal relationships. The Tribunal accepts that the Visa Applicant primary link to Australia is with his partner.
The Tribunal accepts, for the purpose of this review and without undertaking any meaningful assessment, that the Visa Applicant and Ms Callow may be in a supportive relationship and that Ms Callow is emotionally reliant on the Visa Applicant for support. Ms Callow is an Australian citizen. The Tribunal accepts that the Visa Applicant has otherwise limited, if any, ties to Australia. The Respondent submits that emotional support can be provided even if the Visa applicant does not travel to Australia and the Tribunal accepts that this is so, however, in this case, Ms Callow also refers to the practical and physical support she requires, not merely the emotional support. The Tribunal accepts that due to her carer responsibilities, Ms Callow may be unable to travel overseas to see the Visa Applicant. The Tribunal accepts that Ms Callow has her own health issues and that she hopes to rely on the Visa Applicant to assist her with her own post-operative recovery and to support her in caring for her parents, particularly during the recovery period. The Tribunal thus accepts that the decision to refuse the visa to the Visa Applicant may have an adverse impact on Ms Callow, and potentially on members of her family in Australia.
This consideration weighs in favour of the visa grant.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
There are no minor children in Australia who would be affected by the decision to refuse the visa to the Visa Applicant. This consideration is neutral.
Expectations of the Australian community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[2] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[3]
[2] [2019] FCAFC 185 (‘FYBR’).
[3] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail v MICMA,[4] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is 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" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
[4] [2024] HCA 2 at [51]-[52].
The Direction provides, essentially, that the community expects those who do not abide by the law may not be able to enter Australia. The visa Applicant submits that, given his particular circumstances, including the time that has passed since the offending, rehabilitation and his Australian citizen fiancé, the Australian community expectations do not prevent the visa grant.
In light of the Applicant’s past offending, the Tribunal considers that community expectations weigh against the visa grant. However, given the low risk of reoffending and the hardship to the Australian citizen fiancé if the visa is not granted, the Tribunal gives this consideration limited weight against the visa grant.
The Tribunal will now turn to the other considerations listed in section 9 of the Direction.
Legal consequence of the decision
The Applicant resides outside of Australia so that Australia’s non-refoulement obligations do not arise in this case.
The decision to refuse to grant the visa to the Applicant means that the Applicant will not have the opportunity to travel to Australia. The present decision is not binding on any future delegate, should the Applicant make another visa application in the future.
The Tribunal finds that this consideration is neutral.
Extent of impediments if removed
This is not relevant, given that the Visa Applicant is outside of Australia and cannot be ‘removed’ from Australia. This consideration is neutral.
Impact on Australian business interests
There is no evidence that a decision not to grant the Visa Applicant a visa will have any impact on Australian business interests or would significantly compromise the delivery of a major project or of an important service. This consideration is neutral.
CONCLUSION
The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances.
The Tribunal has formed the view that the Applicant had engaged in serious offending, given the potential the impact of drug related offending on the community. However, the Tribunal has also formed the view that there is strong evidence of the Applicant’s rehabilitation, given in particular the significant period of time that has passed since the last conviction, with no further convictions and no evidence of repeated drug use. The Tribunal has formed the view that there is only a low risk of reoffending, at its highest. The Tribunal finds that the protection of the community weighs against the visa grant but in light of the above circumstances, gives this consideration limited weight in favour of exercising the discretion to refuse.
Similarly, the expectations of the community weigh against the visa grant but the Tribunal has decided, for the reasons set out above, to give this consideration limited weight.
The Tribunal has determined that there could be significantly adverse impact on the Australian citizen partner if the visa is not granted and this consideration weighs in favour of the visa grant. Most other considerations are neutral.
In the circumstances of this case, the Tribunal has decided to give greatest weight to the strength, nature and duration of the Visa Applicant’s ties to Australia and the adverse impact on his Australian partner, should the visa not be granted. This consideration weighs against the exercise of discretion to refuse and, in the particular circumstances of this case, the Tribunal has decided that it outweighs other considerations.
Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should not be exercised.
DECISION
The Tribunal sets aside the decision under review and substitutes the decision that the discretion to refuse to grant the visa should not be exercised.
Date(s) of hearing: 4 and 5 August 2025 Solicitors for the Applicant : Ms A. De Silva, Agape Henry Crux Solicitors for the Respondent: Ms G. Wilson, Minter Ellison
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