Clemas and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1663

Clemas and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1663 (3 September 2025)
Applicant:Barry Francis Tea-Ata-In Clemas
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4051
Tribunal:General Member J Cipolla
Place:Sydney
Date:3 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.

………………[SGD]………………………
General Member J Cipolla
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY Subclass 444 Special Category (temporary) visa – substantial criminal record – supply prohibited drug-commercial quantity -sets aside the decision under review there is another reason to revoke the cancellation.
LEGISLATION
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth) s 501CA
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617

FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving v Minister (1996) FCA 663HZCP v Minister (2018) FCA 1803
SECONDARY MATERIALS
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
National Drug Strategy 2017-2026, Department of Health
STATEMENT OF REASONS
BACKGROUND

Mr Barry Francis Tea-Ata-In Clemes (the Applicant) was born in the New Zealand on 28 June 1965.
The Applicant is an identical twin and apart from his twin brother, he has three brothers and a sister. The Applicant’s three brothers and sister all reside in Auckland, New Zealand. The Applicant’s twin brother resides in Australia.
The Applicant’s parents are deceased.
The Applicant advised that his twin brother moved to Australia in 1998, and that he relocated to Australia in 2000.
The Applicant met his ex-partner Ms Grima in 2006. Ms Grima is an Australian citizen and at the time she and the Applicant met, Ms Grima was a single mother of triplets, who were then aged 11.
The Applicant and Ms Grima have a son together, Master K, who was born on 3 September 2008. The Applicant states that he co-parented Ms Grima’s triplet daughters.
In 2013 the Applicant and Ms Grima separated, however, the Applicant claims that the relationship he has with Ms Grima is a positive one, and that they shared the upbringing of Master K. The Applicant stated that he would have his son every second weekend and share school holidays and that they would spend significant times together such as Christmas and birthdays. The Applicant claims that the triplets consider him to be a father figure. The Applicant claims to pay child support to Ms Grima with respect to their son.
The Applicant claims to have a close relationship with his twin brother, and they have lived together in Sydney.
The Applicant claims that since his relocation to Australia in 2000 that he had worked across a range of industries and had operated companies and worked as a sole trader.
The Applicant established a charitable business in 2022, Reach Out NSW Australia, working with various charities and the Penrith Council to provide affordable food to struggling families and the homeless.
The Applicant’s movement record (printed 5 February 2024) indicates that the Applicant first came to Australia in 1987 and that he has travelled in an out of Australia on multiple occasions until May 2013. He has not departed Australia since that time.
OFFENDING HISTORY
The evidence before the Tribunal indicates that the Applicant had a criminal history in New Zealand before he came to Australia. The New Zealand Criminal History report is referenced in the delegates cancellation decision and is dated 26 August 2024. The report indicates that on 6 July 2004 the Applicant had been convicted of drug related charges referable to possessing equipment for the production of a drug not cannabis and knowingly produce and supply a cultivated drug. The Applicant was sentenced to a term of imprisonment which was served by way of home detention. The delegates cancellation decision record indicates that the Applicant failed to declare his New Zealand convictions on incoming passenger cars on 5 March 2010 and 11 May 2013. The only material before the Tribunal referable to the New Zealand offending is contained in the hearing book at HB105.
The Applicants criminal offending history in Australia commenced in 2006, and his early history is referable to driving offences.
On 28 September 2006 the Applicant was convicted in the Sutherland Local Court of driving with a low range prescribed concentration of alcohol for which he was fined and disqualified from driving for a period of three months, commencing on 28 September 2006.
On 13 October 2008 the Applicant was convicted in the Fairfield Local Court of driving on the road whilst his license was suspended, for which he was fined and subject to a driving disqualification for 12 months commencing on 13 October 2008.
On 11 February 2016 the Applicant was convicted in the Burwood Local Court with a raft of offences including dishonestly obtain financial advantage by deception (4 counts) for which the Applicant was convicted to a term of imprisonment of 8 months commencing on 11 February 2016 and concluding on 10 October 2016 and suspended, upon him entering into a good behaviour bond for 8 months.
The Applicant lodged a severity appeal with respect to the Burwood Local Court convictions. The Applicant was also convicted of possessing a prohibited drug for which he was fined $350. For the possession of identity information to commit an indictable offence the Applicant was convicted and subject to a section 9 bond for three years with a requirement to attend counselling, educational development, drug or alcohol rehabilitation and to be supervised by the New South Wales Probation Service. The Applicant was also convicted with goods suspected of being stolen and on premises for which he was subject to a section 9 bond for three years, once again with the requirement to attend for counselling, educational development, drug or alcohol rehabilitation under the supervision of the New South Wales Probation Service. Further the Applicant was required to return property to the owner. Under Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court is empowered, following the conviction of an offender, to direct the offender to enter into a bond to be of good behaviour for a specified period. If an offender breaches a condition of the bond, they can be re-sentenced for the original offence.
On 5 July 2016 the Applicant was convicted in the Downing Centre Local Court with Commonwealth-attempt/constitutional flight offence-took flight on passenger ticket. The Applicant was convicted and sentenced pursuant to s 20(1)(B) of the Crimes Act 1914 (Cth) to 6 months of imprisonment released forthwith, on the Applicant entering into a recognizance self $200 and the requirement to be of good behaviour for 6 months.
The Applicant’s severity appeal with respect to the convictions in the Burwood Local Court dated 11 February 2016, were dealt with by the Downing Centre District Court on 9 March 2017. With respect to the dishonestly obtain financial advantage by deception the order of the Burwood Local Court was varied, and the Applicant was subject to a section 9 bond for three years. With respect to goods suspected of being stolen in/on premises, the order was varied, and the Applicant was subject to a section 9 bond for 12 months. With respect to the possession of identity information to commit an indictable offence the order was confirmed, and the Applicant was subject to a section 9 bond for three years commencing on 11 February 2016 with a requirement that he attend for counselling, educational development, drug or alcohol rehabilitation under the supervision of the New South Wales Probation Service. With respect to the possession of a prohibited drug the order was confirmed, and the Applicant was subject to a $350 fine.
The evidence indicates that after the 2016 convictions in the Burwood Local Court and the Downing Centre Local Court that the Applicant did not engage in further offending until 2022. At that time, the Applicant was convicted in the Liverpool Local Court with owner/occupier knowingly allowing use as drug premises first offence for which the Applicant was imprisoned for three months commencing on 6 November 2022 and concluding on 5 February 2023.
On 24 November 2023 the Applicant was convicted in the Wollongong District Court with supply a prohibited drug at a commercial quantity for which he was sentenced to 3 years imprisonment commencing on 6 July 2023 and concluding on 5 July 2026 with a non-parole period with conditions of two years, commencing on 6 July 2023 and concluding on 5 July 2025. The Applicant was paroled in July 2025 and transferred from prison to immigration detention.
SENTENCING COMMENTS DISTRICT COURT OF NEW SOUTH WALES IN WOLLONGONG 24 NOVEMBER 2023
Judge Haesler noted that:
“On 13 July 2023, after a short trial, a jury of 12 convicted Barry Clemas of Supplying a Commercial Quantity of the Prohibited Drug methylamphetamine….That offence carries a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 10 years. The commercial quantity of the drug is 250 grams.
Clemas must be sentenced on the basis that he knowingly possessed and transported the drug knowing there was more than the commercial quantity of it. The critical issue at trial was whether Clemas had possession of a plastic bag containing 499.03 grams of methylamphetamine that was carried by taxi from Liverpool to Port Kembla and back. The taxi was intercepted by police as it returned from Port Kembla to Liverpool.
The jury, by its verdict, must have rejected the defence case that Clemas had gone to Port Kembla for an innocent purpose, not knowing drugs had been placed in the taxi’s boot. Given the way the prosecution case was presented, the jury must have accepted the evidence of the taxi driver when he said he saw Clemas at the car when the bag was placed in the boot by another person, and that Clemas took the bag from the car while he visited a house at Port Kembla before returning to the taxi with that bag.
The jury, by its verdict, must have accepted beyond reasonable doubt that Clemas knew that the bag in the taxi contained a drug, and, as he took the bag from the taxi to the house at Port Kembla and returned with it, he would have had some idea of its weight”.
Judge Haesler went on to note:
“There were a number of unanswered issues raised by the prosecution case, not the least of which is why drugs were first transported to Port Kembla, and then, after a two-hour period returned to Liverpool.
The jury obviously did not accept Mr Clemas told the truth in his police interview. I am deeply sceptical that any civilian witness at the trial was entirely truthful. The taxi driver, in my opinion, was trying to distance himself from the parcel and the suspicious circumstances involved in transporting it. The person who took the parcel to the car was not of good character. The Port Kembla witness was also suspect of being involved in criminal activity. My sentence must be consistent with the jury verdict.”
Judge Haesler went on to find that the Applicant knowingly accompanied the bag from Liverpool to Port Kembla, that his motivation was not innocent, that the bag was placed in the boot by another person and that the Applicant was present when the bag was placed in the boot of the taxi. During the journey from Liverpool to Port Kembla the Applicant made a number of phone calls, however, there was insufficient evidence about those phone calls. The Applicant took the bag from the boot of the taxi to an address in Port Kembla and had an interaction with a man in that man’s home before returning to the taxi with the bag containing the drugs and intending to return to Liverpool. The bag contained twice the commercial quantity of methylamphetamine.
Judge Haesler found that the Applicant was involved in the facilitation of the movement of a commercial quantity of illicit drugs and found that “so serious was his involvement that it is accepted that only a custodial sentence could properly reflect the objective seriousness of the crime. There are, of course, many more serious offences of this type, but that does not mean it was not a serious offence.”
Judge Haesler noted that sentences with respect to the movement of the commercial quantity of illicit drugs must properly reflect the objective seriousness of the crime. Judge Haesler noted in his judgement that there was no evidence that money was exchanged with respect to the drugs and there was no evidence of significant planning and that no drugs were disseminated into the community.
Judge Haesler refers to the Applicant’s criminal record and notes that the Applicant’s record reveals dishonesty offences in 2013, however before the commercial quantity of drug matter Judge Haesler noted that the Applicant’s criminal record was minimal. Judge Haesler noted that “his record prior to the commission of this offence had nothing of this nature. While he is not entitled to leniency often given to first offenders, it is his first time in gaol and there is reason to suspect that if he engages in rehabilitation, he can resume normal community life.”
Judge Haesler refers to a report that was provided to the District Court from a forensic psychologist, Dr Klammer.
The report refers to the Applicant having a mixed developmental history that included periods of parental abandonment, inconsistent supervision and reports of sexual abuse as a child. The report notes that the Applicant was raised by his grandparents in a large extended family. The family was poor. Despite this fact the Applicant and his brother were sent to boarding school around age 10 or 11. The Applicant completed his education and trained as a PT teacher and at the time of the District Court trial the Applicant was working with his brother as a chef in their catering business and was working as a chef in gaol. Dr Klammer noted that in order to cope with his developmental disadvantages, that the Applicant focused on improving himself by gaining formal secondary and tertiary qualifications to increase his vocational opportunities. Dr Klammer found that the Applicant’s personal network was primarily prosocial but noted that the Applicant had a history of methamphetamine use on a weekly or twice weekly basis and had been unable to cease his drug use. Dr Klammer noted that the Applicant had used childhood disadvantage to motivate himself and to increase his personal and coping skills, however, the Applicant’s experience of sexual assault as a child led to the development of negative personality traits.
Dr Klammer opined that these negative personality traits led to the Applicant focusing on self-protection and led to a level of disregard for the law. Judge Haesler noted that “this disregard was modelled during childhood. It is reflected in the commission of the other offences on his record and the commission of this offence.”
Judge Haesler notes that Dr Klammer;
“puts forward a treatment program on page 7, par 32 of her report (Exhibit 1). I will have a copy of Dr Klammer’s report sent with the warrant to the gaol in the hope that the Corrections and the State Parole Authority can have regard to it. If it is put into place, there are reasonable prospects that the offender, having served the minimum term necessary for this sentence, can resume a normal community life and, hopefully a drug-free community life. I do not underestimate the evidence in relation to his background nor do I underestimate the impact on anyone of a child’s sexual assault it must be taken into account.”
Judge Haesler noted that:
“The material before me demonstrates that Clemas has the capacity to lead a normal law-abiding life and productive life in the community. But his persistent, and on the evidence before me, relatively low-level drug use, must be addressed. So too must his behavioural attitudes, going back to his childhood. They appear to have pushed askew what we would regard as an ordinary moral compass. There is a need for treatment and support, both in gaol and the community. I have some confidence that, with assistance, he will not reoffend. These matters provide a basis for finding special circumstances, increasing the period he should spend on parole.”
VISA CANCELLATION
On 2 July 2024 the Applicant’s Class TY Subclass 444 Special Category visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate was satisfied that the Applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c) because he was serving a sentence of imprisonment, on a full-time basis for an offence against a law of the Commonwealth, a State or a Territory.
On 23 July 2024 the Applicant made representations to the Department seeking revocation of the cancellation decision. The representation was in a letter to the Department dated 19 July 2024.
The Applicant addressed Direction 110. Having regard to the protection of the Australian community and the nature and seriousness of his criminal conduct he stated the following.
He acknowledged the fact that he had committed offences of a serious nature and that in July 2023 he was convicted of supply prohibited drug commercial quantity and received a prison sentence of 3 years with a non-parole period of 2 years. The Applicant stated that he wished to take full responsibility for his offending and that he wished it had never happened.
The Applicant advised that he experienced problems with his lawyers in respect to this offending. The Applicant stated that the initial lawyers that he had instructed to represent him withdrew from acting two weeks before his trial. The Applicant stated that these lawyers had already been paid $25,000 for services rendered and wished to be paid a further $32,000 prior to the trial. The Applicant advised that seven days before his trial he was granted Legal Aid and was unhappy with the in-house lawyers that he had been provided to him from Legal Aid. The Applicant stated that he only had a 20-minute face-to-face meeting with these lawyers prior to his trial and so three days before the trial, he submitted an application to the Wollongong District Court to adjourn his trial, however the judge refused the adjournment request.
The Applicant stated that he pleaded not guilty to the charge believing that he was being used by the people involved; the person who put the drugs in the boot of the taxi, the taxi driver who transported the drugs, and the person that the drugs were going to in Port Kembla. The Applicant claims that he did not know about the bag of drugs, nor did he touch the bag or get the bag out of the boot at any time. The Applicant claims that the reason that he was travelling to Port Kembla was to look at two vehicles and a boat for his car rental business. The Applicant noted that the Crown accepted that they could not establish aggravated features with respect to the offending such as planning or organised criminal activity or financial gain. The Applicant noted that there were no fingerprints or DNA relating to him present on the boot of the taxi or on the bag carrying the drugs that were in the boot of the taxi. The Applicant noted that the trial judge concluded that the jury did not accept that he had told the truth in his police interview. The Applicant also noted that the trial judge noted in his judgement that he was deeply sceptical about any civilian witness at the Applicant’s trial being entirely truthful.

The Applicant noted that whilst he was on bail with respect to this offence that he was charged with another offence involving drugs on premises and received a sentence of three months. The Applicant stated that at the time of this offence he was working as a sole trader in a landscaping business and that he had a warehouse in Lansvale where he kept his machinery and tools. The Applicant also used the factory for his car rental business. The Applicant stated that he sublet part of his factory to a friend for their business to help meet the lease costs. The Applicant was charged with owner/occupier knowingly allowing use as drug premises. The Applicant was convicted and was given a three-month prison sentence. The Applicant stated that he lost his machinery, tools and vehicles because of this incident and his warehouse lease was terminated by the real estate agent who sold his belongings.
The Applicant stated that his offending has led him to recognise a need to change his lifestyle and stay away from negative influences and refers to the assessment conducted by Dr Klammer, the forensic psychologist for his District Court trial, who concluded that the Applicant would be very unlikely to re-offend.
The Applicant makes reference to his behaviour in custody noting that he had not been involved in any negative incidences in prison or received any breaches of discipline. The Applicant had been employed in the kitchen and been given responsibility for kitchen and inmate food safety practices. The Applicant stated that he had been moved into a low security residential unit at Glen Innes Correctional Centre which he described as residential units for trustworthy prisoners which provided a range of benefits. The Applicant stated that he had won the Glen Innes tennis championship twice, was training most days to keep himself healthy, was attending church every Sunday and had joined the Crossroads Mentorship Program which was a Bible study program.
The Applicant stated that he wanted to note the fact that Judge Haesler believed that with treatment for his illicit drug use that he would have a good chance of turning his life around and staying out of trouble. The Applicant stated that he had attended the 12 step program group sessions once a week at the Clarence Correctional Centre, he also participated in the Glen Innes Correctional Centre Toastmasters International Speech Craft, and the Success Leadership Series. The Applicant stated that he only used drugs personally and socially and was no longer taking drugs. The Applicant also noted that he had undertaken some education courses in Glen Innes Correctional Centre including food safety courses and a digital technology course.
Having regard to the best interests of his children the Applicant stated that he believed that it was in his sons and indeed his children’s best interests that he remained in Australia. Particularly with respect to his son born on 3 September 2008. The Applicant stated that prior to his incarceration that his son was staying with him every second weekend and over the school holidays. The Applicant stated that he took his son to soccer practice three nights a week and would go to watch the weekend games. The Applicant stated that he would provide financially for his son and would assist his ex-partner, the mother of his son, any way he could as she worked in a hotel doing mostly nightshift. The Applicant stated that ever since his imprisonment he has been worried about his son who he believed was not coping well with his father being incarcerated. The Applicant stated that if he received a negative outcome with regard to the cancellation of his visa that it would further destabilise his son and he noted that Master K had been expelled from his previous school in the first term of 2024. His son is now attending Matraville Sports High school and has been living with the Applicant’s stepdaughter Rhiannon who is 27 years old, residing in Maroubra 15 minutes away from the school.
The Applicant stated that his son had visited him twice in prison once in Parklea and once in Glen Innes and that they speak 2 to 3 times a week on the phone and the Applicant provided evidence of his phone records to confirm this.
The Applicant stated another reason for him to stay in Australia was the fact that he has an identical twin brother Darryn who would be substantially affected if the Applicant was not around. The Applicant described the bond with his identical twin brother has been very close and that over the years they had lived together, worked together, had joint businesses and participated in sporting activities together. The Applicant stated that he had been calling his brother from prison on a regular basis. The Applicant stated that if he was forced to go back to New Zealand that his brother Darryn would most likely follow which would not be fair on him as he had resided in Australia since 1990.
The Applicant stated in the event that he had to go back to New Zealand that Master K would not be able to visit often because his ex-partner had a mortgage to pay and could not afford the airfares.
Having regard to the expectations of the Australian community the Applicant stated that he believes that the Australian community would want to give him a second chance and support the decision to reinstate his visa. The Applicant stated that he had taken steps to address his problems that led him to imprisonment. The Applicant stated that he believed that he was not a risk to the community. The Applicant stated that there were many people that believed that he had a strong chance of remaining offence free and returning to be a positive and contributing member of society. The Applicant stated that he was reliant on the many letters of support from family, friends, former co-workers and other members of the Australian community in support of the reinstatement of his visa.
In conclusion the Applicant states that:
“I don’t know what else I can say except that I hope you consider the things contained in this response. My life is my children especially my son [Master K] which would hurt me a lot if I was not able to be with him at this time of his life. I now realise that if I get involved in any trouble again, I will lose them, and not only because I might be removed from Australia.
On 11 June 2025 the delegate decided that there was no other reason or reasons to revoke the cancellation having regard to the considerations in Ministerial Direction 110.
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Tribunal received a statement of facts issues and contentions from the Applicant, which is dated 4 August 2025, prepared by the Applicant’s legal representative Ms Milojkovic. The submission has been duly considered.
The submission notes that the Applicant does not dispute his extensive criminal record, however, contrary to the delegate’s statement of reasons with respect to the cancellation, the submission notes that the Applicant’s New Zealand offending occurred in June 2003 and that he was not incarcerated but served a term of imprisonment via home detention.
The submission notes that the Applicant does not dispute that he has a criminal record in Australia that spans from 2006 to 2023 with the most recent offending resulting in a term of imprisonment. The submission refers to the Applicant’s Australian offending history.
The submission notes that the Applicant pleaded not guilty to the charge of supplying a commercial quantity of a prohibited drug namely methylamphetamine, however, he was found guilty by a jury and subsequently convicted in the District Court at Wollongong. It notes that the Applicant became eligible for parole on 5 July 2025 and that his parole period is set to expire on 5 July 2026 and that the Applicant is subject to strict parole conditions that he must comply with during the period of parole.
The submission notes that the sole determinative issue before the Tribunal is whether there is another reason to revoke the original decision to cancel the Applicant’s subclass 444 visa (s 501CA(4)(b)(ii) of the Act).
The submission notes that in making a decision on review the Tribunal must have regard to the relevant mandatory considerations reflected in Ministerial Direction 110.
With respect to primary consideration 1, protection of the Australian community the submission notes that the Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. The submission notes that the Applicant concedes that his criminal history includes very serious offending including drug, dishonesty and driving offences in Australia.
Further the direction requires the Tribunal to turn its mind to consider the risk to the Australian community which requires an assessment of potential future harm, repeat serious offences, offences that cause substantial harm and the likelihood of further offending. The submission concedes that the Applicant’s criminal history is characterised by very serious offending.
Having regard to risk the submission states that the Tribunal should have consideration to the Applicant’s remorse and the Applicant’s rehabilitation. The Applicant in the submission states that he does not fully agree with the findings of Dr Klammer, the psychologist who provided a report to the District Court.
The Applicant does not believe that his methamphetamine use could be described as habitual, and the Applicant admits to using methamphetamines on a social basis approximately every 2 to 3 weeks and claims to have never purchased drugs himself and only consumed them in a social setting with his mates. The Applicant submits that the last time that he used methamphetamines was approximately 2 ½ years ago in a social setting. The Applicant states that he did not use drugs whilst in prison, that he does not smoke and that he produced clear urinal test results for the whole time that he was in custody.
The Applicant agrees with Dr Klammer’s report regarding the difficult childhood that he and his identical twin brother experienced and acknowledges the impact of past emotional trauma caused by severe parental neglect, inconsistent supervision and exposure to both physical and sexual abuse.
The submission notes that despite the Applicant pleading not guilty in the matter before the District Court at Wollongong, that he believes that he was exploited by the representatives that he engaged privately and had less than competent representation by Legal Aid when he was not able to continue to pay the fees of his private lawyers.
The submission notes that the Applicant is now 60 years old and as recognised by the District Court, has the capacity to lead a law-abiding life and to reintegrate into the community.
The Applicant concedes that there is no justification for his poor decision-making and accepts that he requires ongoing medical and psychological intervention to address the underlying behaviours contributing to poor choices.
The submission notes that the Applicant acknowledges that his conduct and actions have significantly impacted his immediate family that include his biological son, his step-children, his step-grandchild and his identical twin brother. The submission states that the Applicant has a genuine commitment to rehabilitation and is supported by a strong familial network as well as by his former employer. In addition to this support the Applicant’s identical twin brother and the Applicant’s former partner have both expressed their continuing support for the Applicant going forward.
The submission notes that the Applicant has a positive employment history and strong prospects to be reemployed which will lead to stability going forward, and, further to this, that the Applicant’s twin brother has indicated a willingness to assist in the Applicant’s reintegration into the community.
The submission notes that risk is further mitigated by the strong reintegration plan that the Applicant has for his return to the community which includes drug, health, and counselling services. Further to this, the Applicant will continue to seek medical and professional counselling to address his behaviour that has led to poor choices being made and that this support has the backing of his family.
The submission notes that the Applicant has a comprehensive support network in the community and that the reinstatement of the Applicant’s visa would be consistent with public policy objectives that aim to balance community protection with rehabilitation and reintegration.
The submission notes that the Applicant presents a low risk of reoffending due to the fact that he has proactively engaged with rehabilitation services and has a strong support system around him from family and community members.
With respect to primary consideration 2, family violence, the Applicant agrees with the delegates findings dated 11 June 2025 that there is no evidence that he has committed any family violence offending.
With respect primary consideration 3, to the strength, nature and duration of ties to Australia, the submission notes that the Applicant has demonstrated extensive ties and connections to members of the Australian community through his immediate family including his children, grandchildren, his ailing elderly parents, his siblings and their children.
The submission notes that it is imperative for the Tribunal to consider the impact of any decision on the Applicant’s immediate family members in Australia especially those who are Australian citizens, Australian permanent residents or individuals who possess an indefinite right to remain in Australia. The submission notes that immediate family members include the Applicant’s son Master K, born on 3 September 2008, his stepchildren, his stepgrandchild and his identical twin brother. Further it is important for the Tribunal to consider the strong parental role that the Applicant has played in his stepchildren’s lives and the closeness that he has with his three stepchildren. The submission notes that the Applicant’s ex-partner continues to co-parent with the Applicant and supports the Applicant’s appeal application for the sake of their child. In addition, the Applicant’s ex-partner confirmed that the Applicant had always contributed to his family via meaningful employment.
The submission notes that despite the fact that the Applicant has family members residing in New Zealand that he is particularly close to his identical twin brother and that his twin brother Darryn has been approved by the parole board as a person that can provide support and accommodation to the Applicant when he is released into the community.
The submission posits that the Tribunal should give heavy weight to these respective considerations in favour of revoking the cancellation of the Applicant’s visa.
The submission further notes that the Applicant has closely engaged with the Australian community through his ongoing employment, the payment of child support and his contribution to the tax system. It was conceded that the Applicants child support whilst he was in prison reverted to nil as he was not earning an income during this period.
With respect to primary consideration 4, the best interests of minor children in Australia, the submission notes that the Applicant has four adult stepchildren and one minor biological child and one infant step-grandchild.
The submission notes that the Applicant’s son is now 16 years old, and that the Tribunal should not minimise the emotional toll caused by the Applicants potential separation based on his son’s age alone. The submission notes that it is essential for the Applicant’s son to retain the opportunity for in-person access to his father not only to preserve the option for future cohabitation and to continue developing and nurturing familial bonds.
The submission notes that the welfare of the Applicant’s biological son should be an essential and guiding principle with respect to the proceedings before the Tribunal, and that the Tribunal should adopt a realistic and compassionate approach with respect to the Applicant’s prospective deportation to New Zealand and the impact it will have on his child and stepchildren. The submission posits that the best interests of the Applicant’s Australian citizen child weighs heavily in favour of the Applicant.
With respect to primary consideration 5, expectations of the Australian community, the submission notes that the Applicant does not dispute his criminal record, and that the Applicant’s past behaviour and conduct had breached Australian laws and community standards and hence the Australian community would expect that the Applicant’s visa would be cancelled. It is conceded that this primary consideration weighs against the Applicant.
Having regard to other considerations, the submission makes reference to the legal consequences of the decision namely that the Applicant would be held in immigration detention until such time he was removed from Australia, that the Applicant would be subject to a lifetime ban from Australia once he is removed, and that the Applicant would be ineligible to apply for any substantive visa apart from a protection visa.
Having regard to the extent of impediments if the Applicant is removed, that the Tribunal needed to take into consideration the Applicant’s age, health and social, medical and economic support available to him in New Zealand. The submission notes that the Applicant is now 60 years old, and that while New Zealand is culturally and geographically close to Australia, that many New Zealanders migrated to Australia searching for better financial and employment opportunities. Indeed, in the Applicant’s case he moved to Australia to reunite with his identical twin brother. The submission notes that a significant impediment in this case is the Applicant’s minor son who cannot simply relocate to New Zealand to be with his father.
The submission notes that there would be no impact on an Australian business or Australian business interests in this case.
In conclusion the submission notes that the Applicant has committed criminal offences in Australia of a serious nature but posits that there is compelling evidence and other reasons before the Tribunal to conclude that the adverse primary considerations are outweighed by other factors. Further that the correct and preferable decision is that the cancellation decision should be set aside and substituted with a decision to revoke the visa cancellation.
APPLICANT’S STATEMENT OF 12 AUGUST 2025
In his statement provided in support of his review application the Applicant confirms the information that he had provided to the Department in his personal circumstances form and statements was true and correct. The Applicant stated that he did not dispute his criminal record check dated 14 February 2024 and did not dispute his criminal record from New Zealand.
The Applicant advised that he had completed a number of courses in addition to those that he had previously advised the Department of Home Affairs of. These included courses in child-abuse recognition, investigation and protection, stress management, anxiety therapy and behaviour management. The Applicant advised that he continued to attend regular Christian services in immigration detention every Sunday.
The Applicant advised that the only medication that he was currently taking was to manage his high cholesterol apart from a Panadol from time to time for headaches. The Applicant stated that since being transferred to immigration detention that he had engaged with the mental health team in detention and obtained a referral to a psychologist to address his anxiety and the effects of past child-abuse.
The Applicant stated that he speaks to his identical twin brother Darryn on a daily basis by mobile phone and describe the relationship as being extremely close. The Applicant noted that if his visa is reinstated that he will be residing with his brother until he is able to get back on his own two feet. The Applicant stated that his brother is the only person that he is allowed to live with during his post-prison probation period.

The Applicant stated that he spoke regularly with his son Master K, he advised that his son is now 16 years old and working as an apprentice plumber. He advised that his son is living with his mother Ms Grima and that they speak regularly. The Applicant stated that he and his son are very close and have a very strong father-son relationship.
The Applicant states that Ms Grima is his former partner and the mother of their son. He described that he remains on good terms with Ms Grima and that she is highly supportive of his efforts to remain in Australia. The Applicant stated that prior to his imprisonment that he and Ms Grima coparented their son and that he paid child support to her to ensure that his son was financially cared for.
The Applicant states that he is the stepfather to Ms Grima’s 4 children and is particularly close to her triplets who have always known him as their dad. The Applicant stated that he has maintained a strong bond with them over the years and that his stepdaughter, Rhiannon who is now 29 years of age is especially supportive of him and had offered to attend the Tribunal hearing to give evidence on his behalf.
The Applicant stated that he had never been given a warning that his visa was going to be cancelled and acknowledged that this does not excuse his past offending. The Applicant stated that he has a clear reintegration plan if he is released back into the community. This includes addressing underlying mental health and medical issues including the impacts of childhood abuse which he has never properly addressed. The Applicant stated that he intends to attend his local general practitioner to obtain a Medicare mental health plan so that he can have access to mental health support on a regular basis for counselling.
The Applicant stated that he had been offered meaningful employment with his previous employer located in Homebush as a chef and that his brother also works for the same employer and that the employer is fully aware of his criminal record and is still willing to re-employ him.
The Applicant stated that he promises that he will be a law-abiding citizen and recognises that if he is released into the community this will be his last and only chance to prove this. The Applicant stated that he recognised the profound impact that his offending had upon his family, his children, his brother, his ex-partner all of whom had suffered as a consequence of his incarceration. The Applicant stated that he now clearly understood the difference between right and wrong and was truly sorry for his past actions and conduct. The Applicant reiterated that if he is removed from Australia will have a profound impact on his 16-year-old son who will suffer greatly and that this is his deepest regret.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Respondent’s representative provided a statement of facts, issues and contentions to the Tribunal dated 20 August 2025, received on 25 August 2025, which has been duly considered.
The submission makes reference to the Applicant’s criminal history in New Zealand for offending which occurred between October 2002 and June 2003, referable to drug-related offences for which the Applicant was sentenced to 6 months imprisonment for each offence to be served by way of home detention.
The submission also makes reference to the Applicant’s offending behaviour and subsequent convictions in Australia commencing in February 2016 and culminating in his convictions in the District Court of New South Wales in Wollongong on 24 November 2023.
The submission notes that the Applicant does not pass the character test on the basis of his substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. The submission notes that accordingly, the key issue for the Tribunal to determine is whether there is another reason why the cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act having regard to the primary and other considerations contained in Part 2 of Direction 110.
The Minister’s contention is that the Tribunal should not be satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked and thus the Tribunal should affirm the decision under review.
Having regard to protection of the Australian community, primary consideration 1, the submission notes that it is the Minister’s contention that the Applicants’ index offending on charges of drug trafficking should be regarded as very serious and that the matters set out in paragraph 8.1.1(1)(a) of the Direction are non-exhaustive and that the Applicant had been sentenced to a total of three years imprisonment. The submission notes that a term of imprisonment is the highest form of punishment in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.
The submission notes that the Applicant’s conduct helped to facilitate the sale and purchase of methamphetamines with substantial human consequences flowing from this conduct.
The submission also notes that the Applicant was convicted of owner/occupier knowingly allowing premises for use as drug premises, which led to a sentence of three months’ imprisonment, on 22 February 2023. Further that the Applicant had been convicted of dishonesty offences and offences pertaining to obtaining financial advantage by deception.
The Minister contends that the Applicants offending overall, demonstrates an inability to distinguish right from wrong, a disregard for the law in the pursuit of financial benefit, which reflects the objective seriousness of his offending and weighs heavily against revocation.
Having regard to the risk to the Australian community, reference was made to a number of authorities which have recognised the devastating effects that drugs inflict on the community. Reference was also made to the National Drug Strategy 2017-2026 prepared by the Department of Health.
The Minister contends that any future offending of a similar nature would have the potential to cause considerable physical, psychological and economic harm to those who purchase and consume drugs and to members of the Australian community as a whole.
The submission posits that there is a likelihood of the Applicant engaging in further criminal or other serious conduct with reference to the Applicant’s previous addiction to methamphetamines and referable to the comments made by Dr Klammer in the Applicants District Court proceedings in Wollongong in 2023.
Having regard to the strength, nature and ties to Australia, primary consideration 3, the submission notes that it is the Applicant’s position that he had resided in Australia since 2000 when he was approximately 35 years old. Reference is made to Departmental movement records that show that between 2001 and 2008 the Applicant frequently departed Australia. The Minister accepts that the Applicant had ordinarily been a resident in Australia since at least January 2008 and that the Applicant has been convicted of offences in Australia from September 2006 to November 2023.
The submission notes that the Applicant’s biological son is an Australian citizen and resident in Australia and that the Applicants identical twin brother Darryn, is also a resident in Australia. The Applicant claims to have a close relationship with his twin brother. The Applicant also claims to have a good relationship with his ex-wife and her adult children whom he assisted co-parenting during the relationship with his ex-wife. The Minister’s position is that this consideration weighs in the Applicant’s favour but is outweighed by the primary considerations of protection of the Australian community and expectations of the Australian community.
The submission notes that the Applicant has one biological child, his 16-year-old son, Master K, and that the Applicant has had shared care responsibilities with respect to his son since the breakdown of his marital relationship and has had access to his son every second weekend and in the school holidays. The Applicant has also submitted that he has provided child support to his son but has not paid this support since being incarcerated in December 2022. The Minister accepts that a non-revocation decision is not in the best interests of the Applicant’s son Master K and the Minister contends that this primary consideration should be given moderate weight in favour of revocation.
With respect to expectations of the Australian community, primary consideration 5, the Minister’s position is that this primary consideration weighs heavily in favour of non-revocation. The submission notes that the Applicant committed a very significant breach of Australian law, and that the Australian community would expect that the Australian Government would not allow the Applicant to remain in Australia.
Having regard to other considerations, the submission notes that the evidence indicates that the Applicant does not engage Australia’s non-refoulement obligations, that if the decision under review is affirmed the Applicant will remain in detention until such time as he is removed from Australia. The Minister accepts that the Applicant would be subject to indefinite exclusion from Australia. The Minister also accepts that there would be limited grounds in which the Applicant could apply for a visa. The Minister’s position is that this consideration should be afforded limited weight.
Having regard to the extent of impediments if removed that the Tribunal should turn its mind to the Applicant’s age and health, whether there would be substantial language or cultural barriers with respect to his removal to New Zealand, and consideration should be had to the social, medical or economic support available to him in New Zealand.
The submission notes that the Applicant resided permanently in New Zealand until he was a mature adult arriving in Australia at age 35. On this basis the Minister’s contention is that the Applicant would not experience substantial language or cultural barriers in New Zealand and as a New Zealand citizen would be able to avail himself of the rights bestowed on a New Zealand citizen with respect access to health services, treatment and welfare.
With respect to the Applicant’s medical ailments the Minister contends that the Applicant would have access to comparable medical and psychological support to treat his medical and mental health conditions if he returns to New Zealand.
In conclusion the Minister contends that the Tribunal should not be satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.
REVIEW HEARING
The Tribunal noted that the evidence filed and marked before it included the hearing book filed on 25 August 2025 served on the Tribunal and the parties.
The Applicant attended the review with his legal representative Ms Milojkovic. The Respondent Minister was legally represented by Mr Fyfe who attended the Tribunal hearing.
At the outset of the review the Tribunal went into detail about the process of merits review, the respective issues in the review and the prospective outcomes of the review. The Tribunal also explained how the hearing would be conducted.
The Applicant’s representative made an opening submission to the Tribunal. It was noted that the Applicants Subclass 444 visa was cancelled on character grounds as a consequence of his serious criminal offending and there was no dispute with respect to the grounds of cancellation.
It was noted that the Applicant entered a plea of not guilty with respect to his index offending for which he was imprisoned by conviction of the District Court sitting at Wollongong dated 24 November 2023. Reference was made to the District Court sentencing remarks found in the hearing book at HP 52-59. It was noted that the Applicant did not agree with the court findings, however conceded that the Tribunal was not able to go behind the conviction of the District Court.
The Applicant’s representative noted that the Applicant placed reliance on the statement of facts issues and contentions dated 4 August 2025 found at HB 251-262.
Further, in support of the case the Applicant was reliant on his statutory declaration dated 12 August 2025, and the statutory declaration provided by his twin brother Darryn Clemas.
The Applicant was also reliant on evidence provided by his 16-year-old son, a minor who had attended the Tribunal review hearing to give evidence on behalf of his father. It was also noted that the Applicant’s stepdaughter Rhiannon had also attended the hearing to give evidence in support of the Applicant, along with the Applicant’s twin brother Darryn. Further that the Applicant’s ex-partner Ms Grima would be giving evidence by telephone in support of the Applicant.
It was noted that the Applicant had provided evidence to the Tribunal of his continuing rehabilitation efforts by the many courses that he had undertaken during the term of his imprisonment and his recent engagement with mental health professionals after being transferred to immigration detention. It was noted that the Applicant was currently on parole. It was submitted that the Tribunal needed to consider all of the tendered material, along with the Applicant’s oral evidence and the evidence of witnesses and it was further submitted that there was sufficient evidence for the Tribunal to revoke the cancellation of the Applicant’s visa.
The Minister’s representative Mr Fyfe advised that he had no opening submissions.
The Applicant was examined by his representative.
The Applicant confirmed the contents of the statement that he provided to the Tribunal dated 12 August 2025. The Applicant also confirmed the information that he had provided to the Department in support of revocation contained in the hearing book was true and correct. The Applicant further confirmed that his criminal history check located at pages 49-51 of the hearing book was a true account of his criminal history in Australia.
The Applicant was taken through his offending history. The Applicant was referred to the hearing book at page 105 which referenced his offending history in New Zealand for offences which occurred on 1 October 2002 to 3 June 2003. That history made reference to the Applicant knowingly supplying/producing equipment for the production and cultivation of a drug and possessing equipment capable of the production and cultivation of drugs not being cannabis.
The Applicant was asked about this offending. The Applicant stated that he got together with a group of friends. The Applicant stated that he had a friend who obtained boxes of Telfast purchased in Australia, a drug that contains pseudoephedrine. One friend flew to New Zealand with 80 boxes of the drug and another person flew to New Zealand with 200 boxes of the drug, with each box containing 12 tablets. They were intercepted and arrested at the airport in New Zealand. The Applicant stated that his part in the operation was to invest any money made in legitimate business enterprises. The Applicant stated that he was sentenced to a period of home detention on each of the charges. The Applicant could not remember the exact period of home detention. The Applicant described his home detention as a requirement of staying in his home, being allowed to study, not being allowed to work, and being able to attend church. The Applicant also was required to wear a monitoring bracelet for the duration.
The Applicant’s representative made reference to page 50 of the hearing book which referred to a conviction in the Wollongong District Court on 24 November 2023, of supply a prohibited drug at a commercial quantity for which the Applicant was sentenced to a period of three years imprisonment with a non-parole period of two years and then a period of 12 months parole supervision when he was released on parole. The Applicant was asked what plea he entered in the Wollongong District Court, and he advised not guilty.
The Applicant was taken to page 57 of the hearing book namely paragraph 40 of the sentencing comments of Judge Haesler in the District Court of Wollongong. The paragraph was referable to a report by a psychologist, Dr Klammer, who formed the view when assessing the Applicant that he was a drug user and had a stimulant use disorder. The Applicant was asked whether he agreed with the findings of Dr Klammer. The Applicant stated that he did not agree. The Applicant recalled telling the psychologist that he would use methamphetamine on the odd social occasion but did not see himself as having a stimulant use disorder. The Applicant agreed with Dr Klammer’s findings that drug use clouds people’s thinking. Reference was also made to Dr Klammer’s findings that the Applicant’s prospects would be enhanced if he engaged in illicit drug treatment programs. The Applicant stated that he did not believe that he had a drug problem.
The Applicant was taken to page 53 of the hearing book which indicated that the jury, by its verdict, must have accepted beyond reasonable doubt that the Applicant was guilty of the offending behaviour. The Applicant agreed with this.
The Applicant was asked whether he believed he had a drug problem to which he reiterated that he did not. The Applicant was asked whether he had ever taken illicit drugs to which he advised that he had, namely methamphetamine, but he had not taken cocaine, opiates or cannabis. The Applicant stated that he had taken methamphetamine on about 2 to 3 occasions and that he had smoked methamphetamine through a glass pipe. The Applicant stated that he engaged in this because of the social element and that he had never used the drug in front of family members. The Applicant stated that he had never been under the influence of methamphetamine in front of family members and never been questioned about methamphetamine use by family members.
The Tribunal asked the Applicant why he would engage in methamphetamine use in his late 50s given the adverse publicity around the drug and given that it was against the law. The Applicant stated that at the time he used illicit drugs he was dealing with psychological problems, that he had lost his mother, that she had not been buried in accordance with Maori tradition, that he believed that he was suffering with depression and that he did not go to a general practitioner or a professional to seek help.
The Applicant was asked whether he had used drugs in prison or in immigration detention The Applicant stated that he did not use drugs in prison or immigration detention and there was no incident with respect to drug use. The Applicant stated that he was tested in prison on six occasions with all tests being negative. The Applicant stated that he had not been tested in immigration detention but had undergone a medical check when he arrived at the facility.
The Applicant was taken to page 50 of the hearing book, namely his Australian criminal history, and was asked about the offence grounding a conviction in the Liverpool Local Court on 22 February 2023 of owner/occupier knowingly allowing use as drug premises first offence. The Applicant was asked to explain the circumstances of this offending. The Applicant stated that he had leased a warehouse for his business which involved hiring cars. The Applicant signed a contract for the lease. The Applicant stated that the premises were subdivided and that he sublet part of the premises to a Vietnamese man on the basis that he proposed using the premises as a karaoke venue. The Applicant stated that he had only been a tenant in the premises for two months when the police raided the premises and arrested seven people in the sublet part of the premises finding glassware that could be used for the manufacturing of illicit drugs. The Applicant stated that as a consequence he was charged three months later with the offence of owner/occupier knowingly allow use as drug premises first offence.
With respect to this offending the Applicant was taken at pages 378-382 of the hearing book which was a police fact sheet pertaining to this offending, the police fact sheet indicated that a clandestine drug laboratory was situated at the rear of the ground level of the premises that the Applicant let for his business purposes. Further the police observed multiple prohibited drug manufacturer items set up in the premises. The Applicant stated that he told the police that he had seen the glassware. The Applicant stated that he was arrested with respect to this offending on 6 November 2022, the Applicant stated that this incident took place after the incident pertaining to trafficking in a commercial quantity of drugs.

The Applicant was asked whether he knew the difference between right and wrong. The Applicant stated that he did.
The Applicant was taken to his medical record which indicated that he only took medication for high cholesterol and the occasional paracetamol for headaches and the Applicant confirmed this. The Applicant also noted that he had a blood test when he was transferred to the Villawood Detention Centre. The Applicant advised that he had been referred to a psychologist in Villawood and was waiting for that appointment to occur. The Applicant stated that he had experienced no issues in immigration detention and no arguments with the authorities in detention.
The Applicant confirmed the courses that he had completed whilst incarcerated. The Applicant stated that he chose these specific online courses because they were relevant to him. The Applicant stated that he had been the subject of child abuse and hence his engagement in that course. The Applicant had suffered with stress and anxiety traits and hence his engagement in a stress management course. The Applicant stated that he had learnt a lot from the courses that he had completed and found them valuable in assisting him to address underlying psychological problems. The Applicant identified his psychological problems leading to poor associations, being too trustworthy, being gullible and vulnerable. The Applicant stated that if he is released into the community that he will continue to seek professional help and that he will maintain his associations within his family unit.
The Applicant was asked to describe the difference between him prior to his imprisonment and now. The Applicant stated that he was imprisoned for two years. The Applicant stated that this deprived him from spending an important period of time with his son during his transition from childhood to manhood. The Applicant stated that he had let his family down because of stupid decisions. The Applicant stated that he was gullible and too trusting of people and once again reiterated that if he is released into the community he will work hard and spend all of his time with his family.
The Applicant was asked about his family and ties to Australia. The Applicant was asked about his twin brother Darryn. The Applicant stated that he and his brother had been together for 60 years and that his brother was younger by eight minutes. The Applicant stated that both he and his brother experienced a terrible upbringing of being abandoned as children. The Applicant stated that his mother suffered with post-natal depression. The Applicant stated that he and his brother were placed into a boarding school.
The Applicant gave evidence about his ex-partner Ms Grima. The Applicant confirmed that when they commenced their relationship, she had triplets from a previous relationship who he raised as his own. The Applicant stated that his ex-wife’s family played a significant role in his life and would continue to do so in the future.
The Applicant was asked why he needed to remain in Australia for his son. The Applicant stated that his son needed him, that he was at a vulnerable age of 16. The Applicant stated that his ex-partner Ms Grima believed that their son needed his father’s presence in Australia. He advised that his son was involved in sport and that his son was very special to him. The Applicant stated that he was very proud of his son and how his son had handled his incarceration.
The Applicant agreed that he had let his son down by his actions and his imprisonment and that if he was deported to New Zealand, it would have a substantially adverse impact on his son and himself. The Applicant’s representative put to the Applicant at what point he realised that he could not continue with his previous behaviour. The Applicant stated that he had respect for the law, respect for the community, that he had worked hard in employment in the past, that he had supported his children and that he intended not to have anything to do with associates from his past. Indeed, the last contact he had with adverse associates in his life was prior to his imprisonment.
The Applicant advised the Tribunal that his son was five years old when he and Ms Grima split up. Despite the breakdown of their relationship, they always maintained cordial terms and the Applicant cared for his son on alternative weekends and that they shared school holidays. The Applicant stated that he had always been involved in his sons primary and secondary schooling, attending school events, and sporting events.
Once again, the Applicant was asked about the impact upon his son if he was removed from the country. He stated that it would have a substantial and emotional impact as a son needed his father around. He advised that during the time that he was imprisoned and since he had been transferred to immigration that his son had visited him in all of his prisons and in immigration detention and that they communicated via FaceTime. The Applicant stated that his son leans on him for support. The Applicant stated that he had navigated cultural issues pertaining to his Maori culture with his son. The Applicant stated that prior to his arrest that led to his imprisonment that he was about to go to the Masters Games in Brisbane for touch football and that his son was going to accompany him.
The Applicant was asked about the impact of child abuse on his life. The Applicant stated that he had always suppressed it, it took away his decision-making, that the symptoms of child abuse included withdrawal from education, depression, poor decision-making, and no support from parents or relatives. The Applicant stated that his ex-partner Ms Grima knew about his child abuse history. The Applicant stated that he had now recognise the impact of child abuse upon him. He advised he will engage in counselling and obtaining professional support. The Applicant stated that he has a lot of remorse for his offending. The Applicant stated that he had been involved with the triplet’s lives during formative years and that he had a good relationship with them.
Mr Fyfe cross-examined the Applicant. Mr Fyfe referred to the Applicant’s New Zealand offending and his evidence in which he described it as a business opportunity, and that an associate, namely an uncle, was willing to pay $100 a box for the Telfast tablets. The Applicant was asked what he was to gain from this criminal enterprise. The Applicant stated that he was participating in it and knew about it. Mr Fyfe asked the Applicant about his role. The Applicant stated that he was going to set up a business and was going to manage the administrative side of the business putting the proceeds of the sale of the Telfast tablets into legitimate investments. The Applicant stated that his role was to be a business advisor. The Applicant stated that he had work experience in the information technology sector and again stated that any money made from the illicit business was going to be funnelled into legitimate enterprise. Mr Fyfe asked the Applicant why he would be given money for this role. The Applicant stated that he had established a successful information technology business and that his knowledge would contribute to the establishment of a legitimate business.
Discussion was had at the hearing about the New Zealand criminal history records located at HB 105. With respect to the result of the conviction it was not clear on the face of the record whether the conviction for each of the two offences was six months home detention or a cumulative sentence of 18 months home detention. The Applicant had no recollection of the length of time that he was in the home detention given the passage of time. There was eventual agreement that each offence grounded six months of home detention, a total of 12 months. Mr Fyfe asked the Applicant to describe the period of home detention. The Applicant stated that he had to stay in his home, that somebody attended his residence and placed an ankle bracelet on his leg. He had to surrender his passport. The Applicant stated that he engaged in courses, was able to attend the gym, go to church and go shopping.
Mr Fyfe noted that the New Zealand criminal record indicated offence dates of the 1 October 2002 and 3 June 2003 with an ultimate result date of conviction being 6 July 2004.
Reference was made to the Applicant’s movement record and his multiple departures from New Zealand. The Applicant stated that he ran a business in 2000 which was an information technology business. The Applicant stated as a consequence he travelled frequently out of New Zealand to Taipei, Chennai, Bangkok and Australia. The Applicant also developed a business for a glow-in-the-dark bubble bath under the business name of Bossi Kids.
Mr Fyfe asked the Applicant whether there was a connection between his extensive travel history and his New Zealand offending at HB 105. The Applicant stated that with respect to the Bossi Kids business that he sold products through Coles supermarkets and IGA supermarkets. The Applicant stated the businesses facilitated travel. The Applicant stated that eventually both the IT business and the Bossi Kids businesses were sold.
Mr Fyfe made reference to the Applicant’s offending history at HB 51 and asked him about a conviction on 5 July 2016 of Commonwealth attempt/constitutional flight offence-took flight on passenger ticket. The Applicant stated that he flew to Darwin on a flight ticket purchased by his cousin in his cousin’s name, Dion Fidow, and he was questioned by Federal Police when he arrived in Darwin and charged with this offence. It was noted that with respect to this offending the Applicant was convicted to 6 months imprisonment and released forthwith upon entering into a recognizance self, to be of good behaviour for six months.
Reference was made to HB 336 which referred to the Applicant being convicted of offences of dishonestly obtaining financial advantage by deception. Mr Fyfe noted that in September and October 2013 the Applicant and an associate Mr Todd Smith, used stolen credit cards to purchase expensive goods. The Applicant confirmed that they were not his credit cards and did not belong to Mr Smith. The Applicant claimed that his role in this offending was that Mr Smith asked him to drive him to a shopping mall and the Applicant stated that he was found to be in possession of a credit card that did not belong to him. The Applicant stated that he knew Mr Smith as they both lived in the Sutherland shire. Reference was made to HB 338 which indicated that the Applicant and Mr Smith entered a Louis Vuitton store in George Street Sydney and purchased expensive goods using stolen credit cards. Mr Fyfe noted at HB 343 that the police found the Applicant to be in possession of three mobile telephones and that the police fact sheet appeared to clearly implicate the Applicant in the offending. Mr Fyfe noted at HB 342 of the police fact sheet that at the time of the offending police located one small resealable bag with a white crystal powder inside it. This was later identified to be methamphetamine. The Applicant claimed that it belonged to Mr Smith. The Applicant once again claimed that his role was driving Mr Smith around, he described Mr Smith has a friend and claimed that he did not know him well. The Applicant stated that he disagreed with a lot of what was in the police fact sheet with respect to this offending and that he believed that the drug charge and the credit card offending was wrong.
The Tribunal asked the Applicant whether he had any thoughts of guilt by association and he advised that he did not.
Mr Fyfe made reference to HB 339 when Mr Smith said that he would buy the Applicant’s son an iPad. The Applicant stated that he needed to give his son an iPad and he planned to pay Mr Smith for the purchase. Mr Fyfe asked the Applicant why he had three mobile phones in his possession. The Applicant stated that one phone was for business purposes, one phone was for personal use and the other phone was for orders with respect to his glow-in-the-dark bubble bath business.
Mr Fyfe asked the Applicant about his offending with respect to the offence of owner/occupier knowingly allowing use as drug premises first offence for which he was convicted in the Liverpool Local Court on 22 February 2023. The Applicant stated that at the time, in November 2022, he was running a car rental business and a garden business. The Applicant stated that he leased a warehouse premises in Landsvale for business purposes.
Mr Fyfe made reference to the Applicant’s offending leading to conviction in the Wollongong District Court on 24 November 2023 of supply prohibited drug commercial quantity. The Applicant was referred to HB 54 paragraph 8 which the Applicant read. Mr Fyfe stated that based on the Applicant’s evidence he did not appear to accept most of the facts in that paragraph. The Applicant stated that he did not.
The Applicant was taken to HB 130 and referred to the second paragraph in which the Applicant stated: “I pleaded not guilty to the charge believing that I was used by the people involved. The person who put the drugs in the boot of the taxi, the taxi driver who transported the drugs and the person that the drugs were going to Port Kembla I did not know about the bag of drugs, nor did I not touch or get the bag out of the boot any time. My reason to go to Port Kembla was to look at two motor vehicles and a boat for my car rental business from the Port Kembla person.”
Mr Fyfe asked the Applicant why he would take a taxi to Port Kembla from Liverpool given that he owns a number of motor vehicles. The Applicant stated that he was travelling to Port Kembla and that the taxi was organised by a friend of a business partner. Mr Fyfe noted it seemed implausible that the Applicant happened to want to look at cars and a boat in Port Kembla and that a friend just happened to have a taxi going to Port Kembla.
The Applicant stated the taxi was going to the seller’s residence in Port Kembla and that the person selling the cars told the Applicant that he had a cab going to Port Kembla. Mr Fyfe asked whether the person who put the drugs in the car was a business associate, and the Applicant stated that he was and that he was Vietnamese.
Mr Fyfe noted that the Applicant pleaded not guilty to this offending and that the matter was dealt with in the District Court before a jury and that the Applicant was not happy with his legal representation. The Applicant stated that his original lawyers wanted $64,000 before trial and he was not able to afford this money. The Applicant was advised that he should obtain Legal Aid. The Applicant stated that he applied for Legal Aid and was granted aid one week before the trial. The Applicant stated that legal aid gave him two Legal Aid lawyers from Wollongong to represent him and that he had one 20-minute interview with them prior to the trial. The Applicant stated that he ended up sacking his lawyers from Legal Aid. The Applicant stated that the judge refused an adjournment of the trial based on legal representation issues that the Applicant was experiencing. The Applicant stated that he did not have a fair trial. The Applicant stated that in between this offence and the trial he was caught up in the owner/occupier knowingly allowing use as drug premises with respect to the subletting of his warehouse in Landsvale. The Applicant stated that the property was divided and that the tenants that he had sublet the property to were planning the creation of a karaoke bar in the premises in the upstairs section of the premises and described there being a toilet with a sink in the downstairs part of the premises. The Applicant stated that his business was in the main warehouse area of the premises.
Mr Fyfe refer the Applicant to HB 379 which was a police fact sheet relating to the owner/occupier knowingly allow use as drug premises first offence. The police fact sheet noted that “the active clandestine drug laboratory was situated at the rear of the ground level, next to the staircase which separates the two levels”. Mr Fyfe asked the Applicant whether the drug cultivation was obvious or blocked to his view. The Applicant stated that it was blocked off with timber panels. The Applicant stated that he saw something like a bong on the other tenants table but did not see any drugs. The Tribunal noted that the police fact sheet made reference to a strong chemical odour emanating from the area. The Tribunal asked the Applicant whether he could smell any chemical odour, and he advised that he did not. Mr Fyfe noted that the karaoke club was being constructed upstairs and asked what the downstairs part of the sublet premises was used for. The Applicant stated that karaoke equipment was downstairs, and the Applicant stated that he knew the co-tenants from a business associate. Mr Fyfe asked the Applicant whether the associate that introduced him to the cotenants was involved in the drug scene. The Applicant stated that he was not sure and that when he saw drug paraphernalia namely a ‘bong’ that he asked his associate about drugs. The Applicant stated that he never saw a laboratory and noted that a lot of money had been expended on creating the karaoke club.
Mr Fyfe noted that there appeared to be a theme in the Applicant’s offending which indicated that he lacked judgement; the New Zealand offending was indicative of a lack of judgement, the obtain benefit by deception offending was described by the Applicant as just going along with Mr Smith, and the Port Kembla offending involving $160,000 worth of methamphetamines was something that he was not directly involved in. Further the use of a drug lab on premises sublet by the Applicant. Mr Fyfe noted that the Applicant claimed to be an innocent bystander in most of this offending and invited comment. The Applicant stated that he is too trusting of other people. The Applicant stated that he has poor judgement. The Applicant acknowledged that his offending was his own fault. The Applicant stated that he was not a bad person. The Applicant stated that he was innocent of the charge of supply methamphetamines.
Mr Fyfe noted that the Tribunal must consider the risk of the Applicant engaging in further criminal conduct. Mr Fyfe noted that the Applicant appeared to be easily persuaded into criminal conduct, or conversely, had deliberately engaged in offending behaviour. Mr Fyfe asked the Applicant what is different now. The Applicant stated that he wants to work as a chef and focus on his work. The Applicant stated that if he is released into the community his main focus will be on his family. The Applicant stated that he will seek ongoing psychological support and assistance in the community to address underlying psychological issues.
Mr Fyfe noted another pattern in the Applicant’s offending namely that they were predominantly drug-related offences apart from the obtain benefit by deception offence. The Applicant stated that he was not a drug user, he was not addicted to drugs, and that he is committed to personal fitness. The Applicant agreed that he had associated with drug users in the past.
It was noted that the Applicants offending history started in New Zealand in 2002 and continued through to 2023. Mr Fyfe noted that the Applicant denied the essence of a large component of this offending and asked the Applicant given his history why he would not be involved in further offending. The Applicant stated that in the past he had struggled with his mental state, he was impulsive, he was wanting to be successful, the Applicant described having a blockage within him, which manifested in both his mind and behaviour. The Applicant stated that he had not adequately addressed these issues. The Applicant stated that he was attending a church organisation that had offered him help in the community to assist him in understanding why things have happened in his life. The Applicant stated that he is ostensibly a good person. The Applicant stated that he had undertaken a lot of charitable work in the past including the provision of food for homeless people, and had been involved in sports coaching. The Applicant stated that because of poor past associations that if he is released into the community, he does not intend to associate with anybody except his own family.

The Minister’s representative noted in submissions to the Tribunal that the Applicant’s family did not serve as a protective mechanism to prevent offending in the past. With respect to this the Tribunal notes that the Applicant has now been subject to a term of imprisonment, removed from his family, and continues to be removed from his family as a consequence of his immigration detention. The evidence before the Tribunal indicates that the Applicant’s close family members believe that he should be given a second chance to show that he can live the remainder of his life as a law-abiding member of the Australian community. The Applicant gave evidence to the Tribunal that it is his belief that he should be given this chance and that he will not reoffend in the future or present a risk to the Australian community.
The Applicant’s representative noted that the Applicant had a positive employment history. As has been discussed the Applicant has a job offer to work as a chef in the same organisation as his twin brother. The Applicant’s prospective employer is aware of his criminal history and is still willing to employ him going forward. It was submitted to the Tribunal that this is an additional protective factor.
The Applicant’s representative notes that the Applicant has prepared a reintegration plan should he be allowed to return to live in the Australian community. As noted, this includes ongoing rehabilitation, the Applicant engaging with counsellors with respect to past drug use and psychologists with respect to past childhood trauma.
The Tribunal is guided by the comments of Judge Haesler in the District Court of New South Wales sitting in Wollongong dated 24 November 2023 and referable at HP 52-59. Justice Haesler formed the view that:
“The material before me demonstrates that Clemas has the capacity to lead a normal law-abiding life and productive life in the community. But his persistent, and on the evidence before me, relatively low-level drug use, must be addressed. So too must his behavioural attitudes, going back to his childhood. They appear to have pushed to askew what we would regard as an ordinary moral compass. There is a need for treatment and support, both in jail and the community. I have some confidence that, with assistance, he will not reoffend. These matters provide a basis for finding special circumstances, increasing the period he should be on parole”.
The evidence before the Tribunal indicates that the Applicant has heeded the recommendations in the judgement of Judge Haesler, the Applicant has engaged in rehabilitation programs whilst in prison. The Applicant plans to continue engagement with rehabilitation services if released into the community that will include counselling for past drug use, and psychological intervention for past child abuse. In addition to this the Applicant has the benefit of a close-knit and supportive family unit and also the close support of his identical twin brother. It appears that the Applicant has put in place a number of protective mechanisms that will provide assistance to him to ensure that he does not reoffend going forward.
The respondent has submitted that the Applicant has not undertaken any meaningful formal treatment to address his drug use history and his offending history. The respondent conceded that the Applicant had attended a number of courses aimed at rehabilitation whilst in prison, along with Alcoholics and Narcotics Anonymous groups, as well as chapel services. The respondent noted that the Applicant had committed offences whilst on bail showing an ambivalence for Australian law. The Respondent contends that even if there is a low risk of the Applicant reoffending, any risk is too great a risk.
The Tribunal in looking at risk to the Australian community should the Applicant commit further offences or engage in other serious conduct has had close regard to the Applicant’s criminal history and to the various protective factors that are in place.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs against a decision to revoke the cancellation, however, the weight afforded to this consideration is reduced by a number of protective factors in place which the Tribunal finds will mitigate the risk of future offending in the circumstances of this case.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
There is no evidence before the Tribunal which indicates that the Applicant has engaged in family violence and hence this consideration is afforded neutral weight by the Tribunal.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant and accordingly is given neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Having regard to this primary consideration Direction 110 states the following:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal must (8.3(1)) consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
The evidence before the Tribunal indicates that the Applicant’s biological son (a minor), adult stepchildren, identical twin brother, and ex-wife (with whom he co-parents their son) reside in Australia. The evidence indicates that the Applicant’s son and stepchildren are Australian citizens, his twin brother is a permanent resident, and his ex-wife is an Australian citizen.
The evidence before the Tribunal indicates that the Applicant is very close to his biological son who is 16 years old and was born, raised and educated in Australia. The evidence indicates that the Applicant’s son is currently undertaking a plumbing apprenticeship. The Applicant’s son gave heartfelt evidence to the Tribunal with respect to the closeness of the relationship that he has with his father. Evidence was provided to the Tribunal by the Applicant, his son, and the Applicant’s ex-wife Ms Grima that in the event that the Applicant is released into the community that their son will live between his parents.
The evidence indicates that the Applicant is close to his stepchildren, particularly Rhiannon, and evidence was provided at hearing indicating that the Applicant played a strong parental role in their upbringing after forming a relationship with their mother.
The evidence before the Tribunal indicates that the Applicant is particularly close to his identical twin brother who is committed to his life in Australia where he has lived for an extended period of time. As discussed, the Applicant’s twin brother has been approved by the New South Wales Parole Board as a person suitable to provide support and accommodation to the Applicant when he is released into the community under parole supervision.
The evidence before the Tribunal indicates that the Applicant during the time that he has resided in the Australian community has maintained strong employment ties. The Applicant has been made an offer of employment if he is released into the community working alongside his twin brother as a chef.
The evidence before the Tribunal indicates that the Applicant whilst living in the Australian community, undertook charitable work, providing food supplies to those in need, an enterprise that he was involved with for a number of years.
The Minister’s representative, in submissions made to the Tribunal at hearing and in written submissions, accepts that the strength, nature and duration of the Applicant’s ties to Australia weigh in the Applicant’s favour. The Minister acknowledges the Applicant’s strong familial ties and his close relationship with his identical twin brother. The Minister also notes that the Applicant had worked extensively in Australia.
When all of these factors are taken into account this consideration is given heavy weight in favour of revoking the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 is given heavy weight in favour of revocation.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The evidence before the Tribunal indicates that the Applicant has a biological son, Master K, who is aged 16 and who is an Australian citizen.
The evidence before the Tribunal indicates that the Applicant has been intrinsically involved in the raising of his son and the evidence provided by both the Applicant and his son at hearing are indicative of the closeness of the relationship that exists between them.
The evidence before the Tribunal indicates that the Applicant is profoundly remorseful for his offending, particularly given the fact that it removed him from his son’s life during formative years, namely part of his son’s transition into manhood. The Applicant gave evidence that his son is still at a critical juncture in his life at 16, and that he hopes to be present in the Australian community to provide ongoing support to his son.
The importance of the relationship between the Applicant and his son was clearly reflected in the evidence of the Applicant’s ex-wife Ms Grima. She advised the Tribunal in her evidence that despite the breakdown of her relationship with the Applicant, that they maintained an amicable and respectful relationship and worked closely together in co-parenting their son.
Ms Grima also gave evidence to the Tribunal that there is a strong likelihood that if the Applicant is released into the community that their son may elect to spend a considerable period of time living with his father. She is supportive of this arrangement.
The Tribunal finds having regard to the Applicant’s very close relationship with his son that the best interests of his minor son weigh heavily in favour of the Applicant. The evidence provided by the Applicant’s son at hearing was that he would be adversely affected in the event that his father was deported from Australia. It was also submitted on the Applicant’s behalf that a relationship via video calls is not an adequate replacement for an in-person relationship. The evidence indicated that the Applicant’s son would not relocate to New Zealand because of the fact that Australia is his home, he is engaging in a plumbing apprenticeship, and his future plans and aspirations are Australian based.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily in favour of the revocation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Tribunal notes that Primary Consideration 5 of Direction 110 states the following.
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant’s representative concedes that the expectations of the Australian community having regard to his criminal history weighs against the Applicant.
The respondent contends that this consideration weighs heavily in favour of non-revocation.
Upon consideration of the evidence before it, which has included an assessment of the Applicant’s offending history in Australia, the Tribunal is satisfied that the expectations of the Australian community are such, that some weight should be given to this consideration against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 should be given some weight against a decision to revoke the cancellation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
9.1 Legal consequences of the decision
Pursuant to Direction 110 at 9.1 the Tribunal needs to take account the fact that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as is reasonably practicable in the circumstances specified in that section of the Act. Accordingly, if the Tribunal does not revoke the cancellation of the Applicant’s visa, he will be held in immigration detention until such time as he can be removed from Australia.
Other legal consequences of the decision include a prohibition on applying for other visas, except for a Protection visa or a Bridging R visa under s 501E, and a permanent exclusion from Australia for visas subject to Special Return Criteria 5001(c).
The evidence before the Tribunal indicates that the Applicant was born in New Zealand but has lived in Australia for the best part of the last 20 years and last departed Australia in May 2013 arriving back in Australia in May 2013.
The Applicant in this case does not contend that non-refoulement obligations are relevant or arise with respect to him.
The Minister argues that limited weight should be given to this consideration
The Tribunal finds that none of these consequences would be desirable from the Applicant’s perspective and hence this consideration is given some weight in favour of revoking the visa cancellation.
9.2 Extent of Impediments if Removed
The Tribunal has given consideration to 9.2 of Direction 110 the extent of impediments if removed from Australia.
The Applicant’s representative has argued that the Tribunal should take into account the fact that the Applicant is now 60 years old. The Applicant’s representative submits that whilst New Zealand is culturally and geographically close to Australia that many New Zealanders have migrated to Australia because of better financial and employment opportunities offered in this country. The Applicant moved to Australia to reunite with his identical twin brother and to pursue better opportunities going forward. The Applicant’s representative has submitted that a significant impediment to the Applicant’s removal is the fact that his 16-year-old son is an Australian citizen who is not able to simply relocate to New Zealand to be with his father for a range of factors. The Applicant’s representative submits that this factor should weigh in the Applicant’s favour with respect to revocation of the cancellation decision.
The Minister’s position with respect to the extent of impediments if removed from Australia is that the Applicant resided in New Zealand until he was a mature adult and began residing permanently in Australia in January 2008 when he was 42 years old. The Minister states that even if it was to accept the Applicant’s claim that he commenced residing in Australia in 2000 that he was 35 years of age when he did so. The Minister posits that the Applicant would not experience any substantial language or cultural barriers in New Zealand. Further to this the Applicant’s employment history in Australia may be of assistance to him obtaining similar work in Australia. In addition, the Applicant would be able to avail himself of access to health services, treatment and welfare to the same standard as all New Zealand citizens. Further the Minister contends that there is no evidence that is been provided that the Applicant would not be able to access counselling and psychological support to treat his underlying mental illnesses if he was to return to New Zealand and the Minister’s position is that this consideration weighs minimally in favour of revoking the cancellation of the Applicant’s visa.
Having regard to the impact on Australian business interests the Applicant’s representative submitted that chefs are on the skills shortage occupation list in Australia, particularly in rural Australia. The Applicant has worked prior to his incarceration with his brother as a chef and has been offered work as a chef if he is released back into the Australian community. The Applicant’s representative contends that this consideration should be given some weight in favour of revoking the cancellation of the Applicant’s visa because his removal from Australia may have an impact on Australian business.
The Minister’s representative submits that there is no evidence before the Tribunal that the Applicant’s removal from Australia will have an impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia. It was submitted at hearing that there is no evidence that the Applicant’s removal would have a negative impact on a major project. It was submitted that neutral weight should be afforded to this consideration with respect to revoking the cancellation of the Applicant’s visa.
CONCLUSION

Having regard to the evidence before it the Tribunal finds that there is another reason to revoke the original decision.
Having close regard to the principles in paragraph 5.2 of Direction 110, the Tribunal has taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. The Tribunal has duly considered the matters raised by the Applicant in this review.
The following considerations are given some weight against a decision to revoke the cancellation:
(a) Primary Consideration 1, Protection of the Australian community from criminal or other serious conduct;
(b) Primary Consideration 5, The expectations of the Australian community.
Primary Consideration 2 is not relevant and hence given neutral weight.
Primary Consideration 3 for the reasons provided is given strong weight in favour of revocation.
Primary Consideration 4 for the reasons provided is given strong weight in favour of revocation.
To the extent that they are relevant, the Other Considerations are given some weight in favour of revocation.
For the comprehensive reasons that the Tribunal has provided the Tribunal is satisfied that there is another reason to revoke the visa cancellation.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.
Hearing Dates 26 and 27 August 2025
Ms W J Milojkovic Solicitor for Applicant
Mr J Fyfe Solicitor for Respondent