Colville-Wardlaw and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 273

Colville-Wardlaw and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 273 (26 February 2025)
Applicant:Amanda Colville-Wardlaw
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10213

Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date of Decision: 26 February 2025
Date of Reasons: 18 March 2025
Decision:The Tribunal sets aside the decision made by the delegate of the Respondent on 4 December 2024 to cancel the Applicant’s visa and substitutes a decision that the Applicant’s visa is not cancelled.

................[SGD]...................
General Member Cosgrave

Catchwords
MIGRATION – Class TY Subclass 444 Special Category visa cancellation – New Zealand citizen – failure to pass good character test – whether there is another reason to set aside the visa cancellation – convicted of Unlawfully wound another and Serious assault police officer – Polysubstance abuse – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION

Ms Colville-Wardlaw seeks review of the Minister’s (the Minister or the Respondent) delegate’s 14 November 2024 decision to cancel her Class TY Subclass 444 Special Category visa (the Visa).[1]
[1] Exhibit G1: G3, 20.
The hearing was held in Brisbane on 17 and 18 February 2025. Dr van Galen-Dickie of Sisters Inside Inc. represented Ms Colville-Wardlaw. Mr Woods of SparkeHelmore Lawyers represented the Respondent. The Tribunal expresses its appreciation to Mr Woods on his advocacy and assistance in this matter.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (Cth) (the Act), the Tribunal was effectively required to make a decision by 26 February 2025. On 26 February 2025, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
THE FACTS OF THE MATTER
Ms Colville-Wardlaw is thirty one and a New Zealand citizen who has resided in Australia since August 1993.[4]
[4] Exhibit R1: G4, 41; G17, 116.
On 23 February 2024 Her Honour Judge Loury KC of the Queensland District Court convicted Ms Colville-Wardlaw of Unlawfully wound another (the Index Offence) and Serious assault police officer by biting, spitting etc. Her Honour sentenced her to a term of two years’ imprisonment for the Index Offence and six months’ imprisonment for the second offence after Ms Colville-Wardlaw pled guilty.[5]
[5] Exhibit R1: G5.
On 7 May 2024 the Respondent cancelled the Visa under s 501(3A) as Ms Colville-Wardlaw failed the character test after s 501(6)(a) and s 501(7)(c) were applied (the cancellation decision).[6]
[6] Exhibit R1: G3, 21.
On 26 June 2024 Ms Colville-Wardlaw was convicted of four counts of Assault police officer and Wilful damage of police property and was sentenced to three months’ concurrent imprisonment for each offence and forty hours of community service, to be completed within one year. In the same court appearance, Ms Colville-Wardlaw was also convicted of Commit public nuisance and sentenced to one month’s concurrent imprisonment.[7]
[7] Exhibit R1: G4.
On 4 December 2024, after Ms Colville-Wardlaw made representations, the Respondent’s delegate affirmed the cancellation decision (the reviewable decision).[8]
[8] Exhibit R1: G3.
On 6 December 2024 Ms Colville-Wardlaw lodged an application with the Tribunal for review of the delegate’s decision.[9]
[9] Exhibit R1: G2.
THE LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) and s 500 of the Act provide the Tribunal’s jurisdiction in this matter.
Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[10] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[11] or
(ii)there is another reason why the original decision should be revoked.[12]
[10] Pursuant to s 501CA(4)(a) of the Act.
[11] Pursuant to s 501CA(4)(b)(i) of the Act.
[12] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Ms Colville-Wardlaw made the representations required by s 501CA(4).[13]
[13] Exhibit R1: G2.
THE TRIBUNAL’S TASK
The Visa was cancelled on the basis that Ms Colville-Wardlaw failed the character test once the delegate considered that test, defined in s 501, as required under s 501CA(4)(b)(i). The Tribunal is satisfied, based on its own assessment of her criminal record, that she does not pass the character test articulated in s 501(6).[14]
[14] Exhibit R1: G4.
Section 501CA(4) specifies the Tribunal’s task.[15] When assessing and considering the factors weighing for and against whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to follow Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[16]
[15] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[16] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[17]
[17] Direction; [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a decision‑maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction specifies the following primary considerations:
(1) the protection of the Australian community from criminal or other serious conduct.
(2) whether the conduct engaged in constituted family violence.
(3) the strength, nature and duration of ties to Australia.
(4) the best interests of minor children in Australia.
(5) the expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
(a)the legal consequences of the decision.
(b)the extent of impediments if removed.
(c)the impact on Australian business interests.
The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting.[18] The weighing process is substantively left to the individual decision‑maker to undertake when exercising the relevant power under s 501 of the Act.[19]
[18] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[19] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A.’ The Tribunal also heard testimony from Ms Colville-Wardlaw, her fiancé Mr McLeod, her sister Ms C. Colville-Wardlaw, her former foster mother Ms Strickland and an expert witness, Dr Hatzipetrou, a clinical and forensic psychologist.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When assessing this Primary Consideration 1, the Tribunal must bear in mind that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal has considered the nature and seriousness of Ms Colville-Wardlaw’s conduct to date.
Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision‑makers to consider two separate limbs of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future. This is commonly further divided between the likely nature of any future harm and its likelihood.
Paragraph 8.1.1: The nature and seriousness of Ms Colville-Wardlaw’s conduct to date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess in considering the nature and seriousness of Ms Colville-Wardlaw’s criminal offending or other conduct to date.
The Index Offence, as well as the balance of Ms Colville-Wardlaw’s offending, is described in the written evidence.[20]
[20] Exhibit R1: G4 & G5.
Summarising Mr Woods’ contentions on the evidence about this element of Primary Consideration 1, as the Tribunal understands them:[21]
[21] Exhibit R2: [23] – [35].
(a)This Primary Consideration instructs decision-makers to prioritise the Australian community’s safety as the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Decision-makers should consider that entering or remaining in Australia is a privilege conferred on non-citizens with the expectation that they will be law-abiding, respect important institutions, and not cause or threaten harm to the Australian community. This factor involves consideration of the nature and seriousness of the non-citizen's conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(b)Paragraph 7(2) of Direction 110 provides that this Primary Consideration is generally to be given greater weight than other Primary Considerations.
(c)Regarding the nature and seriousness of Ms Colville-Wardlaw’s conduct, Paragraph 8.1.1 of the Direction prescribes factors to which decision-makers must have regard in considering the nature and seriousness of a non-citizen's criminal offending or other conduct. Having regard to the relevant factors, the Respondent contends that Ms Colville-Wardlaw’s offending and other conduct should be viewed as very serious.
(d)On 26 June 2024, Ms Colville-Wardlaw appeared in the Brisbane Magistrates Court and was convicted of assault police officer PSA 108B public place adversely affected (four convictions), wilful damage of police property, commit public nuisance and failure to appear in accordance with undertaking. The Court imposed a sentence of one month’s imprisonment for the public nuisance conviction and three months for the convictions relating to police. The Court did not further punish her on her conviction for failure to appear in accordance with undertaking. In September 2023, Ms Colville-Wardlaw had been identified by patrolling police and observed as being agitated and intoxicated. An altercation occurred between Ms Colville-Wardlaw and police, which gave rise to several convictions.
(e)On 23 February 2024, Ms Colville-Wardlaw appeared in the Brisbane District Court and was convicted of the Index Offence and serious assault of a police officer by biting/spitting. For the Index Offence, the Court imposed a sentence of two years’ imprisonment (with parole set for December 2024) and six months’ imprisonment for the assault police offence. The Court imposed the six months’ imprisonment to be served cumulatively with the two years’ imprisonment.
(f)On 15 June 2022, Ms Colville-Wardlaw appeared in the Brisbane Magistrates Court and was convicted of failure to appear in accordance with undertaking and was fined $500. This followed nine enlargements of her bail, and she was unable to provide any lawful or emergent reason for failing to appear in accordance with the undertaking.
(g)Between 2008 and 2011, Ms Colville-Wardlaw was sentenced for crimes as a juvenile. She was also sentenced as an adult between 2012 and 2019 where the Courts did not record convictions. As a result of the High Court's judgments in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 and Thornton v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 17, the Respondent does not rely upon these offences and contends that the Tribunal should otherwise disregard them for the purpose of determining the nature and seriousness of Ms Colville-Wardlaw’s offending.
(h)Ms Colville-Wardlaw has been convicted of crimes which are violent and against women. Such crimes are viewed very seriously by the Australian Government and Australian community. Further, violence against women should be viewed very seriously regardless of the sentence imposed.
(i)Ms Colville-Wardlaw has also been convicted of crimes committed against government officials in the performance of their duties, which should be considered serious.
(j)Regard must also be had to the fact that Ms Colville-Wardlaw has been sentenced to a term of imprisonment (excluding those that involve violence against women) for her offending. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
(k)The evidence before the Tribunal confirms that the impact on the victim of Ms Colville-Wardlaw's offending has been (at least) physical in nature. The injuries inflicted by Ms Colville-Wardlaw included a laceration to the victim's arm, which exposed muscle and required hospitalisation. The Court viewed this injury to be very significant. The physical impacts on the victim should be viewed very seriously.
(l)Between 2020 and 2023, Ms Colville-Wardlaw committed ten offences which resulted in the courts imposing ten convictions. Ten offences in a three-year period should be viewed as frequent and should be viewed very seriously. There is no discernible trend of increasing seriousness as the first offence for which the applicant was convicted was a very serious act of violence.
(m)The cumulative effect of her offending has exposed members of the community and government representatives to violence and consumed community resources through her term of imprisonment and repeated non-appearance at court listings.
Summarising Dr van Galen-Dickie’s contentions on the evidence about both limbs of Primary Consideration 1, as the Tribunal understands them:[22]
(a)Ms Colville-Wardlaw contends that the Australian community has already accepted responsibility for migrants who arrived during their formative years, considering them members of Australian society. She contends that criminal behaviour does not indicate non-absorption into the community but may result from the social environment, and like all community members who commit offences, migrants are punished according to criminal law.
(b)Paragraph 8.1 of the Direction instructs decision makers to consider the nature and seriousness of crimes committed, with specific offences designated as serious conduct. Ms Colville-Wardlaw acknowledges that her conduct would be considered very serious under this Direction, which provides guidance for assessing the seriousness of crimes.
(c)Regarding the nature and seriousness of conduct, her offences resulting in imprisonment were wounding and assault. While accepting the court's findings, Ms Colville-Wardlaw emphasises the importance of context in determining the weight applied to these considerations.
(d)The 18 April 2020 wounding offence occurred while Ms Colville-Wardlaw was intoxicated, as confirmed by February 2024 transcript proceedings and during an assessment by Dr Luke Hatzipetrou. The 21 October 2020 assault on a police officer occurred in the context of her compromised mental state and consumption of alcohol and opioids.
(e)Ms Colville-Wardlaw contends that the assault on a police officer followed a suicide attempt while paramedics were attempting to place Ms Colville-Wardlaw on a stretcher. The sentencing remarks indicate Ms Colville-Wardlaw was in significant distress, prompting family members to contact authorities due to concerns about her mental health, and Ms Colville-Wardlaw was so incapacitated that paramedics were attempting to transport her to an ambulance.
(f)Paragraph 8.1.1(1)(c) refers to court-imposed sentences as indicators of offence seriousness. The court imposed a two-year head sentence for an offence carrying a maximum seven-year penalty, as well as six months for assault with court-ordered parole after serving six months.
[22] Exhibit A1: [14] – [61].
The Tribunal’s consideration: The nature and seriousness of Ms Colville-Wardlaw’s conduct

When assessing the nature and seriousness of Ms Colville-Wardlaw’s criminal offending or other conduct to date, the following elements of Paragraph 8.1.1(1) are relevant:
·the enumerated criminal offending or other conduct to date that are viewed very seriously or seriously by the Australian government and the Australian community;[23]
·the sentences imposed for her criminal offending;[24]
·the impact of her offending or other conduct on any of its victims and their family, where information in this regard is available and where Ms Colville-Wardlaw has been afforded procedural fairness;[25]
·the frequency of her offending and the trend of increasing seriousness;[26] and
·the cumulative effect of her repeated offending.[27]
[23] Direction: [8.1.1(1)(a) and (b)].
[24] Direction: [8.1.1(1)(c)].
[25] Direction: [8.1.1(1)(d)].
[26] Direction: [8.1.1(1)(e)].
[27] Direction: [8.1.1(1)(f)].
The Tribunal, after assessing the evidence and the parties’ claims and arguments, assesses that Ms Colville-Wardlaw’s Index Offence can be considered, by applying Paragraph 8.1.1(1)(a)(i), to be a violent crime and crimes of a violent nature against a woman, again by application of Paragraph 8.1.1(1)(a)(ii).[28] This assessment under Paragraph 8.1.1(1)(a) suggests that Ms Colville-Wardlaw’s Index Offences should be viewed as very serious.
[28] See also Direction: Annex A, Section 2 [7(2)(c) and (e)].
The Tribunal, after assessing the evidence and the parties’ claims and arguments, considers that Ms Colville-Wardlaw’s Index Offence may also be considered a crime against a vulnerable member of the community, possibly enlivening Paragraph 8.1.1(1)(b) by itself and consequently categorising her offending as serious. In any event, Ms Colville-Wardlaw has committed offences against police officers, thoroughly enlivening Paragraph 8.1.1(1)(b)(ii).
Applying its findings from Paragraphs 8.1.1(1)(a)(i) and 8.1.1(1)(b)(ii) to Paragraph 8.1.1(1)(c), the Tribunal notes the sentencing judge’s comments:[29]
You have a drug and alcohol problem which perhaps explains to a certain extent your offending and the escalation in your offending from, the last substantial entry on your criminal history. You have though, in the last eight months, started attending Narcotics Anonymous. And the referee reports that you committed to maintaining a substance-free lifestyle and that you regularly attend meetings. That is your sponsor who has provided that reference. Your father has also provided a reference in which he says that there has been a change in you, that you do not drink, that you have some health conditions and that you are a completely different person and that you want to remain out of trouble. Both the referees are present in Court in support of you.
Your use of a knife to inflict a wound is an aggravating feature of the offending. Your use of the knife caused a significant injury, exposing muscle, requiring hospitalisation and suturing. You at the time did nothing to assist her and, seemingly, she was at least a friend of yours.. You were heavily intoxicated at the time and were acting irrationally.
There is a very serious risk of life-threatening injury when somebody takes a knife to the body of another person, particularly when that person is heavily intoxicated. You were on probation at the time. And despite being released on bail, you went on to commit another serious offence where you bit a police officer who was simply doing his job, trying to protect paramedics.
You have, in the last three and a-half years, continuously failed to appear. That suggests a lack of remorse on your part. But ultimately, you have pleaded guilty and you have done so in circumstances where you were aware that the complainant in the wounding offence could not be found.
The other aspect that carries some significance is that other than the failures to appear, you have not reoffended with any violent offending since this time in 2020. And you have, at least in recent times, demonstrated a commitment to changing your life and to rehabilitating.
In determining the appropriate penalty, I have to take into account the need to impose a penalty which reflects general and personal deterrence. Knives and assaults on police are serious and sadly prevalent at times. The police officer has a difficult enough job to do without being bitten by someone like you. It was disgusting and demeaning to do that to him.
In terms of personal deterrence, you were on probation and on bail. So the sentence must reflect the need to deter you, but I accept that you have not reoffended in a violent way in quite a significant period of time now. The need though to impose a sentence which deters others from committing violent offences and deters you from committing violent offences means that I must sentence you to a term of imprisonment which sees you serve some actual period in custody which you appreciate.
In relation to the offence of wounding, I consider that the appropriate head sentence to reflect the objective seriousness of that offending is two years’ imprisonment. For the offence of serious assault, given you were on bail when you committed that offence, I will order that you serve a further period of six months’ imprisonment cumulative on the two years. And I will order that you be released on parole after you have served 10 months of that total sentence. So your parole release date will be the 22nd of December of this year. So in relation to the wounding, you are sentenced to two years’ imprisonment. For the serious assault, six months’ imprisonment cumulative on the two years. I order that you be released on parole on the 22nd of December 2024.” (Emphasis added.)
[29] Exhibit R1: G5, 47-48.
From these comments and from the parties’ contentions, the Tribunal assesses that the sentencing judge ultimately viewed Ms Colville-Wardlaw’s offending as serious in view of the mitigating factors and the actual sentence relative to the maximum sentence, rather than ‘very serious’ as initially stated and in line with Paragraph 8.1.1(1)(a)(i)’s indication.
The Tribunal notes the sentencing judge’s additional references to Ms Colville-Wardlaw’s drinking in relation to the Index Offence:[30]
You have pleaded to an offence of wounding and an offence of serious assault. The wounding was committed on the 18th of April 2020. You were heavily intoxicated and drinking with the complainant. You began acting erratically.
and
You remained holding the knife and did nothing to assist her while she was begging for an ambulance. A neighbour heard the commotion and came to her aid, and 000 were called. You then commenced cutting your own wrists and started apologising. The police arrived. You were so intoxicated that you could not be interviewed. Indeed, you were so intoxicated that you were unable to provide your name to the police.
[30] Exhibit R1: G5, 46.
These align with Ms Colville-Wardlaw’s uncontested contentions regarding her lack of sobriety in relation to the Index Offence and her lack of sobriety and her compromised mental state when she assaulted the police officer.
Addressing Paragraph 8.1.1(1)(d), the Tribunal agrees with the Respondent’s contention regarding the Index Offence’s physical impact on the victim and infers that Ms Colville-Wardlaw’s other offending had an impact on the police officer she assaulted.
From a consideration of the evidence in terms of Paragraph 8.1.1(1)(e), the Tribunal finds that Ms Colville-Wardlaw offended frequently between 2019 and 2023. There is no apparent trend of increasing seriousness in terms of offending.
Ms Colville-Wardlaw’s offending history enables the Tribunal to infer that her repeated offending has likely had a cumulative effect on the Australian community, police and paramedics.
Paragraphs 8.1.1(1)(g) and (h) are not enlivened when the evidence before the Tribunal is evaluated.
The Tribunal’s finding: The nature and seriousness of Ms Colville-Wardlaw’s conduct.
The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in Paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Ms Colville-Wardlaw’s offending, relevant evidence and the sentencing judge’s observations, the Tribunal finds that the offending should be characterised as serious.
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Summarising the relevant portion of Paragraph 8.1.2 of the Direction:
(a)In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·Evidence of how likely they are to re-offend.
·Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)The objective is to carefully weigh the seriousness of the possible harm if the non-citizen re-offends, the likelihood of their re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Ms Colville-Wardlaw to engage in further criminal or other serious conduct, the Tribunal has considered the evidence, testimony and the parties’ submissions in relation to Paragraph 8.1.2. The Tribunal has considered the sentencing judge’s decision and Dr Hatzipetrou’s 16 January 2025 report in particular.[31]
[31] Exhibit A5.
Summarising Mr Woods’ contentions on this point, as the Tribunal understands them:[32]
[32] Exhibit R2: [36]–[38].
(a)The nature of the harm that would be caused were Ms Colville-Wardlaw to reoffend by committing further violent offences is very serious and any future offending of a similar nature would have the potential to cause serious physical and/or psychological injury to a victim. Ms Colville-Wardlaw's most serious offending resulted in a very significant arm laceration that required hospitalisation. Injuries of a similar kind have the potential to cause catastrophic harm to a victim. The nature of the harm that could occur if Ms Colville-Wardlaw were to re-offend is so serious that any risk of it being repeated is unacceptable.
(b)It is the Respondent’s position that there is insufficient evidence to support a conclusion that Ms Colville-Wardlaw is now rehabilitated. The Tribunal should instead conclude that the risk of further offending by Ms Colville-Wardlaw is unacceptable for several reasons.
(c)Ms Colville-Wardlaw has provided a recent risk assessment which opined that she was a moderate risk of violent reoffending. The Queensland Corrective Service (QCS) has also completed a Risk of Reoffending Prison Version assessment, in which Ms Colville-Wardlaw scored 19, which indicates that she is a high risk of further general offending. Ms Colville-Wardlaw has submitted that no true risk assessment will be possible until she is allowed to engage in supports that assist her, but the Respondent invites the Tribunal to reject that contention. Whilst Ms Colville-Wardlaw's risk may be mitigated in the future, the assessment of Dr Hatzipetrou and QCS represents what Ms Colville-Wardlaw's risk is at present. Given the nature of the harm caused by Ms Colville-Wardlaw, a speculative risk level unsupported by evidence should not be accepted.
(d)The Tribunal should not be satisfied that Ms Colville-Wardlaw's risk factors have resolved. The sentencing judge identified that substance abuse (particularly alcohol) is a major contributing factor to her offending. In his risk assessment, Dr Hatzipetrou also highlighted Ms Colville-Wardlaw’s more general substance abuse (including narcotics and opiates) and her exposure to unstable and dysfunctional interpersonal relationships. Alongside substance abuse, stress, grief and significant historic trauma have been identified as major factors which contributed to her offending. There is presently no evidence supporting any engagement with professional/clinical treatment for the trauma, stress or underlying mental health issues. The longstanding nature of her mental health problems requires multifaceted treatment. While it may be accepted that Ms Colville-Wardlaw has maintained a level of sobriety while in criminal custody, this, and any other rehabilitation, has not been tested in the community.
(e)Her rehabilitation is in its early stages. Dr Hatzipetrou opined that her risk is mitigated through employment, compliance with medication and ongoing mental health treatment (with regular access to professional and personal supports). Aside from his risk assessment, Ms Colville-Wardlaw has not provided evidence detailing any engagement with professional treatment. She has provided a list of some self-guided rehabilitation completed virtually, but the Respondent submits that she is yet to fully engage with recommendations made to mitigate her risk. In addition, while Ms Colville-Wardlaw has expressed a strong desire to gain meaningful employment, there is no evidence detailing her plans to gain employment. While her partner Mr McLeod has offered her employment, the Respondent submits that this opportunity is not stable employment and has a risk of uncertain pay. In circumstances where her income and how frequently she will work is uncertain, she will likely be exposed to a level of stress that is unacceptable.
(f)In addition to the above, Ms Colville-Wardlaw has previously failed to maintain her sobriety. According to Ms Colville-Wardlaw, this was the result of the negative influence from the victim of her violent offending. The Minister submits that the Tribunal should treat her current 'pro-social' contacts with caution. Ms Colville-Wardlaw is now in a relationship with Mr McLeod, who has admitted to having a criminal history likely serious enough to bar him from visiting Ms Colville-Wardlaw in New Zealand if she was removed. Whilst Mr McLeod states that he is reformed, there is no evidence before the Tribunal of the scope of his criminal offending and of his reform. The Tribunal should carefully scrutinise this relationship given the significant role he will play in the applicant's future. There are also risks from Ms Colville-Wardlaw being subjected to a continuing or chronic degree of stress and grief because of her mother's bowel cancer diagnosis.
(g)While Ms Colville-Wardlaw has expressed some degree of responsibility, any remorse should be treated cautiously. The Court highlighted that the delay in progressing her criminal proceedings was a result of her continuous failures to appear and subsequent arrests. She has also offended while on bail. Ms Colville-Wardlaw only pled guilty prior to the commencement of the criminal trial.
(h)Her family serving as protective factors should also be treated cautiously. Her most serious offending was committed in the same residence as her father, and he was unable to prevent either her most serious offending or prevent her substance abuse.
(i)This Primary Consideration weighs very heavily against revocation.
Dr van Galen-Dickie’s contentions on this point were summarised previously above.
The evidentiary details of Ms Colville-Wardlaw’s Index Offence support the Tribunal inferring that there may likely be physical harm to members of the Australian community if Ms Colville-Wardlaw re-offended in a similar fashion to her Index Offence in the future.
The Tribunal notes the Respondent’s contention regarding speculative risk unsupported by evidence and observes that assessing risk requires speculation regardless of whether there is supporting evidence or not.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were Ms Colville-Wardlaw to engage in further criminal or other serious conduct
If Ms Colville-Wardlaw is permitted to remain in Australia, the Tribunal finds that any future repetitions of criminal or serious conduct of the type that Ms Colville-Wardlaw has previously engaged in could result in physical harm to members of the Australian community.
The Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
Assessing the likelihood or risk of Ms Colville-Wardlaw engaging in further criminal or serious conduct, the Tribunal has evaluated and considered her testimony, the other witnesses’ testimony, especially Dr Hatzipetrou, and the relevant evidence as directed by Paragraph 8.1.2(2) of the Direction, in terms of Ms Colville-Wardlaw’s risk of offending and the evidence of what rehabilitation she has achieved. Ms Colville-Wardlaw is not currently in the Australian community.
The Tribunal draws the following observations from the evidence and testimony before it:
(a)Ms Colville-Wardlaw’s offending is linked to her alcohol and drug abuse based on the sentencing judge’s observations. Her pancreatitis is, for want of a better description, a risk management factor in terms of alcohol abuse.
(b)Dr Hatzipetrou’s report identified Ms Colville-Wardlaw as having a polysubstance abuse disorder coupled with mental health disorders and borderline personality disorder.[33] Dr Hatzipetrou writes that Ms Colville-Wardlaw has also experienced pervasive feelings of anger related to post traumatic stress disorder (PTSD), while Ms Colville-Wardlaw wrote in her Personal Circumstances Form that she is being treated for PTSD.[34]
(c)Dr Hatzipetrou testified that there is limited evidence that Ms Colville-Wardlaw harbours violent ideations, but that her Index Offence was a reaction to the situation when she was intoxicated.
(d)Dr Hatzipetrou testified that Ms Colville-Wardlaw’s polysubstance abuse disorder appears to have intensified and peaked during her marriage breakup, which appears to have begun in late 2017.
(e)Dr Hatzipetrou assessed her risk of recidivism, in terms of violent offending, as likely to be moderate in his report, assuming no protective factors are in place.
(f)Dr Hatzipetrou testified that while alcohol abuse is a major element of Ms Colville-Wardlaw’s offending, her risk is multi-factorial in nature. Sobriety, full-time work, better health, and compliance with mental disorder medication regimes were not present before, are present now and are risk management factors.
(g)The QCS risk assessment score of 19 referenced in the Respondent’s contentions is qualified by the assessing QCS officer concluding that: “Based on this information I consider you do not pose a risk to yourself, others and the safety and security of the corrective services facility at this time and therefore can be appropriately managed as a low security classification.” [35]
(h)Mr McLeod’s lived experience and understanding of how an individual can overcome addiction and substance abuse informs his relationship with Ms Colville-Wardlaw and how he would like them to continue to build their relationship. When asked, he had clear plans on how to address the situation if Ms Colville-Wardlaw considered drinking alcohol.
(i)Ms Strickland asserted that even if Ms Colville-Wardlaw was returned to New Zealand, she would maintain constant contact as that was a key factor in helping Ms Colville-Wardlaw avoid substance abuse.
[33] Exhibit A5: 18, 20.
[34] Exhibit R1: G10, 73.
[35] Exhibit R3: TB4, 144.

In addressing this element of Primary Consideration 1, the Tribunal notes that the legislative threshold is whether there is ‘a’ risk.[36]
[36] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] – [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn.[37]
[37] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Tribunal’s task is to determine the realistic level of risk posed by Ms Colville-Wardlaw as at the time of its decision,[38] with the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’,[39] to the extent that it could be considered an unacceptable risk.[40]
[38] Direction; [8.1.2(2)(b)(ii)].
[39] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (Murphy) [37].
[40] Direction; [8.1.2(1)].
When considering whether Ms Colville-Wardlaw poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal must consider all ‘available information and evidence’ pertaining to her risk of re-offending, and the ‘rehabilitation achieved’. [41] In undertaking this task, the Tribunal acknowledges that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. Senior Member Taylor observed a qualification to this in Dharma and Minister for Home Affairs,[42] in that the degree of risk that may be acceptable to the community is ‘inversely related’ to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.
[41] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (GJJF); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (Roberts); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]–[52]; Roberts, (n 53) [27].
[42] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].
Paragraph 8.1.2(1) uses the phrase ‘unacceptable risk’, that is, a risk that the community should not be required to tolerate or accept, regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection,[43] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, when determining what an ‘unacceptable risk’ is, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
[43]Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, at [89]–[104].
The decision of Minister for Immigration and Ethnic Affairs v Baker[44] provides an evaluative approach for the Tribunal to apply in assessing Ms Colville-Wardlaw’s conduct, finding that Paragraph 8.1.2(b)’s reference to criminal or other serious conduct is:
…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material. (Emphasis added.)
[44] (1997) 73 FCR 187 at 194.
In Guo, Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court clarified the extent to which past events are a guide to potential future events:[45]
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. (Emphasis added.)
[45] MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS V GUO WEI RONG (1997) 191 CLR 559 AT PAGES 574-575; QKVH V MINISTER FOR HOME AFFAIRS (QKVH 2020) [2020] AATA 4431 (2 NOVEMBER 2020) [5].
Her Honour Justice Mortimer (as she then was) explored the concept of risk in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], where Her Honour noted:
That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.
Applying Sabharwal’s reasoning to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Ms Colville-Wardlaw engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo, guided by Murphy and Baker’s consideration of what Ms Colville-Wardlaw’s past criminal conduct and other serious conduct reveals about her character.
As observed in GTPT,[46] the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence’ in assessing whether there is a risk.[47] Additionally, the more time that passes without Ms Colville-Wardlaw re‑offending, irrespective of formal rehabilitation, is evidence that her risk has reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’[48]
[46] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246, [67] (Senior Member Bellamy) (GTPT).
[47] Ibid [67] citing the then current Direction.
[48] Ibid [94].
The Tribunal’s consideration of the risk or likelihood of Ms Colville-Wardlaw engaging in further criminal or serious conduct will assess the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
The factors that facilitate the risk of re-offending
The evidence and testimony in this matter lead the Tribunal to infer and find that Ms Colville-Wardlaw’s polysubstance abuse disorder, her mental health disorders and her borderline personality disorder are significant factors in her offending.
The sentencing judge’s comments regarding Ms Colville-Wardlaw’s alcohol and drug abuse and their role in her offending, considered in conjunction with Dr Hatzipetrou’s evidence regarding how her then capacity for self-regulation was affected by her mental health disorders and her polysubstance abuse disorder, reinforce this finding.
The factors that hinder or reduce the risk of re-offending – rehabilitation and remorse
Several features present as risk management factors that hinder or reduce the risk of offending. Ms Colville-Wardlaw’s remorse was evident in her testimony and her statements. Her self-directed rehabilitation and her accounts of her daily praxis since her uncontested assertion in her testimony that her denial of her issues ended when she went to prison for the Index Offence, as well as her sustained sobriety in prison and detention, are more substantive evidence of personal growth, insight and change.
Her enrolment in a tertiary preparation course and her ambition to undertake undergraduate studies is further evidence of positive change and personal growth in a prosocial manner.
Mr McLeod, Ms Strickland and Ms Colville-Wardlaw’s sister offer her the protective factors of support and a network of close prosocial contacts that Dr Hatzipetrou described when he stated that her risk of re-offending was moderate without them. Mr McLeod demonstrated in his testimony how lived experience can provide insight and lessons that can be operationalised as protective factors to help Ms Colville-Wardlaw avoid alcohol.
The Tribunal’s risk analysis and consideration
The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Ms Colville-Wardlaw’s offending, her history of remorse, her self-directed rehabilitation efforts and the protective factors that manage or mitigate her risk of offending.
In doing so, it has applied the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
In the study of criminology, the crime is the crime. It is the situation leading up to it and the behaviour during and afterward that tell the tale and give context.
In making its finding on the likelihood of Ms Colville-Wardlaw re-offending, the Tribunal has then considered what the combination of the significant factors in her offending, the evidence of her remorse and the protective factors that Mr McLeod, Ms Strickland and Ms Colville-Wardlaw’s sister now offer her say about her character, as well as assessing whether the risk of the consequences of her offending in future are likely to be unacceptable to the Australian community.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that a risk to the Australian community, should Ms Colville-Wardlaw commit further offences or engage in other serious conduct, exists. The Tribunal, after evaluating and weighing the factors described above in terms of what either may facilitate or hinder her re-offending, considers this risk to be small, once Ms Colville-Wardlaw’s protective factors, her sobriety, her remorse and her rehabilitation efforts are considered and evaluated against the factors that contributed to her offending. The latter are outweighed by the former, making it unlikely that the risk involved is unacceptable to the Australian community.
Conclusion: Primary consideration 1: Protection of the Australian community
The Tribunal finds that Ms Colville-Wardlaw’s offending is serious, that the consequences of any such future offending may involve physical harm to members of the Australian community and that the likelihood of her future re-offending when assessed is small.
The Tribunal further finds that in its totality, this consideration weighs moderately in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON‑CITIZEN
Applying the Direction’s definition of ‘family violence’, there is evidence to enliven Paragraph 8.1.2.[49]
[49] Exhibit R1: G4; Exhibit R3: TB3, 60-63.
The family violence appears to have had a degree of frequency between 2017 and 2018 based on Ms Colville-Wardlaw’s criminal record.[50] However, the Tribunal does not have sufficient evidence before it to draw any findings in terms of the family violence’s cumulative effect.[51] There is no evidence of rehabilitation aimed at Ms Colville-Wardlaw’s family violent offending before the Tribunal.[52]
[50] Direction: [8.2(3)(a)] and Exhibit R1: G4.
[51] Direction: [8.2(3)(b)].
[52] Direction: [8.2(3)(c)].
Dr van Galen-Dickie argues that no convictions were recorded for Ms Colville-Wardlaw’s three contraventions of domestic violence orders, that these contraventions were a facet of a ‘volatile and messy’ intra-family issue, that there were cross-orders involved, that Ms Colville-Wardlaw cannot recall the incidents and that there have been no subsequent contraventions. She contends that this Primary Consideration should be found to be either neutral or, if it favours affirming the reviewable decision, it should have a low weight.[53]
[53] Exhibit A3: [21] – [25].
Mr Woods argues that the contraventions involved physical violence against Ms Colville-Wardlaw’s father, that the contraventions were frequent in the 2017-2018 period and that there is no independent evidence of Ms Colville-Wardlaw undertaking family violence rehabilitation. He contends that this Primary Consideration should favour affirming the reviewable decision and carry a heavy weight.[54]
[54] Exhibit R2: [40] – [48].
Conclusion: Primary consideration 2: Family violence committed by the non-citizen
This consideration favours affirming the reviewable decision but carries only a small weight in this regard due to insufficient evidence and a lack of convictions.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This Primary Consideration directs the Tribunal to consider any impact of its decision in relation to the Visa on Ms Colville-Wardlaw’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The Tribunal must also consider the strength, nature and duration of any other ties that Ms Colville-Wardlaw has to the Australian community, having regard to the guidance and indicia set out in Paragraph 8.3(2) of the Direction.
The evidence before the Tribunal in relation to this Primary Consideration includes witness testimony, statements from Ms Colville-Wardlaw[55], her sister[56], her mother[57], her father[58], Mr McLeod[59] and Ms Strickland[60].
[55] Exhibit A1: Attachments.
[56] Exhibit A1: Attachments.
[57] Exhibit A1: Attachments.
[58] Exhibit A1: Attachments.
[59] Exhibit A1: Attachments.
[60] Exhibit A1: Attachments.
The Tribunal draws the following observations from the evidence and testimony before it:
(a)Ms Colville-Wardlaw’s mother is seriously ill. Both Ms Colville-Wardlaw and her sister provide care to their mother. Ms Colville-Wardlaw’s removal would place this burden on her sister.
(b)Ms Colville-Wardlaw and Mr McLeod appear to have a close relationship that would be jeopardised if Ms Colville-Wardlaw is removed.
Summarising Mr Woods’ contentions on this Primary Consideration as the Tribunal understands them:[61]
(a)Ms Colville-Wardlaw has immediate family members in Australia consisting of her mother, father, sister and her partner, all of whom have provided at least one letter in support of Ms Colville-Wardlaw. She has also provided evidence outlining her close relationship with those family members in Australia.
(b)In respect of Paragraph 8.3(2)(a) of the Direction, Ms Colville-Wardlaw moved to Australia permanently in August 1993 as a five month old. The Respondent accepts that she did arrive as a young child. The Respondent also accepts that the applicant has provided some positive contribution to the Australian community through her employment and volunteering history.
(c)In respect of Paragraph 8.3(2)(b) of the Direction, Ms Colville-Wardlaw has ties to two aunts, three uncles, two nephews and five cousins. Ms Colville-Wardlaw has provided evidence from some of these family members. She has also provided evidence from social ties, including her former foster parents.
(d)The Respondent accepts that this primary consideration weighs in Ms Colville-Wardlaw's favour but submits that it does not outweigh Primary Considerations 1 and 5 weighing very heavily in favour of affirming the reviewable decision.
[61] Exhibit R2: [49]– [53].
Summarising Dr van Galen-Dickie’s contentions on this consideration as the Tribunal understands them:[62]
[62] Exhibit A1: [63] – [87].
(a)Paragraph 8.3 of the Direction specifies three distinct aspects of ties to Australia to be considered: strength, nature, and duration. Ms Colville-Wardlaw contends that the weight given to these considerations should considerably favour setting the reviewable decision aside.
(b)Ms Colville-Wardlaw arrived in Australia as a five-month-old baby, representing an extraordinary duration of ties to the country. At this age, a child is totally dependent on adults and the community for survival, with development of identity, speech, and intellect completed within the cultural environment. This means Ms Colville-Wardlaw's character, personality, and individual identity developed within the Australian community.
(c)Her problematic childhood occurred against a backdrop of family dysfunction and her treatment while in the care of a Queensland Government agency until eighteen, during which she was moved multiple times to new homes or placements. Now an adult, Ms Colville-Wardlaw faces the repercussions of her childhood and is taking steps to rehabilitate, having worked solidly while incarcerated and achieved outcomes that will assist her reintegration into the community.
(d)Evidence before the Tribunal demonstrates that Ms Colville-Wardlaw has very strong, lifelong ties to the Australian community and no appreciable ties to any other community. Her only real family is in Australia, including her parents and sister, her sister's children, and her brother-in-law, all of whom live in Brisbane and its surrounds.
(e)Ms Colville-Wardlaw’s family life was severely fractured, but she has finally regained her parents as they have overcome their own trauma and addictions to live stable lives. Removing her from Australia would damage this small family that has remained close-knit despite interventions and struggles. Her family maintained contact during her incarceration and have visited her while in immigration detention.
(f)Ms Colville-Wardlaw's mother has written a support letter briefly explaining why the children were taken to foster care and has provided a doctor's letter outlining her current health issues. The relationship between Ms Colville-Wardlaw and her mother is now stable, and Ms Colville-Wardlaw wishes to remain in Australia to assist with her mother's healthcare. Her mother has provided an updated letter confirming the cost she will pay if her daughter is removed, confessing she let her daughter down as a child and noting that losing her to prison and detention has impacted her own mental and physical health. She needs her daughter to assist with physical care and to continue mending their relationship.
(g)Importantly, Ms Colville-Wardlaw will be unable to return to Australia if her mother's health worsens or in the event of a family death. Her father has described the possibility of losing his daughter through the reviewable decision as heartbreaking and has provided an updated letter outlining concerns for her health and safety should she be removed from Australia.
(h)Ms Colville-Wardlaw's foster mother lives in Australia and has testified to the trauma she experienced as a young child, continuing to support her and describing her as a cherished part of her own family. Ms Colville-Wardlaw's aunts and cousins also live in Australia (at the Gold Coast and in Sydney).
(i)Ms Colville-Wardlaw’s fiancé, Mr McLeod, lives in Carina, Brisbane. As an Australian citizen, he can move beyond his criminal history and begin life again. The couple planned to marry this year in spring, now on hold due to the visa cancellation. He states that her removal would have an extreme and profound effect on his future, robbing him of his dreams. However, he cannot migrate with her to New Zealand if she is unsuccessful in her request, imposing an unfair outcome on two people aiming to rebuild their lives.
(j)Ms Colville-Wardlaw has worked productively in Australia since a very young age, gaining employment at fourteen and working predominantly in hospitality. She has completed courses while incarcerated to assist with future employment. Her past employment ensures her ties to Australia are founded in the ability to contribute to the community. Additionally, she volunteered at the RSPCA shelter in Brisbane, something she loved and will pursue again if given the opportunity.
(k)Despite childhood struggles at school, Ms Colville-Wardlaw has successfully enrolled in a university program preparing her for future tertiary studies, an achievement of which she is proud.
(l)Ms Colville-Wardlaw notes that ascertaining the nature of a non-citizen's ties with Australia extends beyond Primary Consideration 3. The Direction’s principles in Paragraph 5.2 provide a framework upon which the primary considerations rest. Paragraph 5.2(6) indicates the government's intent to afford a higher level of tolerance for criminal or serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(m)This principle recognises that a person who has spent most of their life in Australia would have developed significant ties to the Australian community, providing for a higher level of tolerance when assessing criminal or serious conduct.
(n)Given the length of time Ms Colville-Wardlaw has lived in Australia and the nature of her ties to the community, she submits that an assessment of the strength of those ties will conclude they are very strong. In light of Primary Consideration 3’s provisions and the principles in Paragraph 5.2, Ms Colville-Wardlaw asks that this consideration be granted heavy weight in favour of setting the reviewable decision aside.
(o)The Respondent contends that the weight to be given to this consideration should not outweigh the other Primary Considerations without specifying what that weight should be.
(p)The weight that should be given to Primary Consideration 3 is strongly in Ms Colville-Wardlaw’s favour. The evidence before the Tribunal is that she not only has life-long ties to Australia but that she has no relevant ties to any other country. This makes her ties to Australia significant. This consideration weighs heavily in her favour.

The Tribunal now considers these contentions and evidence through the lens of each subparagraph in Paragraph 8.3.
Paragraph 8.3(1)
Ms Colville-Wardlaw’s immediate family are in Australia. The Tribunal, based on the evidence before it, considers that Ms Colville-Wardlaw’s father, fiancé and her two nephews are Australian citizens. It is unclear whether her sister and mother are Australian citizens, permanent residents or persons having the right to remain in Australia indefinitely. The Tribunal will treat them as meeting this criterion in the absence of evidence to the contrary.
Based on the evidence and testimony, a decision to affirm the reviewable decision will have very substantial and negative emotional, psychological and physical (in terms of support) impacts on each of these members of Ms Colville-Wardlaw’s immediate family. This is amplified by the relatively small and closeknit nature of Ms Colville-Wardlaw’s family. Each will also lose the benefit of Ms Colville-Wardlaw’s supporting presence and proximate availability to assist them when needed, just as Ms Colville-Wardlaw will lose theirs.
Paragraph 8.3(2)(a)
Ms Colville-Wardlaw arrived in Australia at five months of age and has resided here since then. Her Index Offences occurred some twenty seven years later.[63] The Tribunal consequently considers and finds that Ms Colville-Wardlaw did not begin offending soon after arriving in Australia. This carries significant weight.
[63] Exhibit R1: G4.
Ms Colville-Wardlaw’s uncontested evidence and testimony demonstrate that she has made positive employment and volunteer contributions to the Australian community.
Paragraph 8.3(2)(b)
The family links identified above also make out the strength and duration of Ms Colville-Wardlaw’s links to Australia under this paragraph.
The Tribunal’s consideration
The Tribunal considers that a decision leading to Ms Colville-Wardlaw’s removal will likely have multiple substantial and persistent adverse long-term impacts on each member of her immediate family.
Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
In terms of weight, the severity and persistence of the impact of affirming the reviewable decision on her immediate family and her friends as well as her positive contributions to the Australian community give this finding very strong and substantive weight.
Conclusion: Primary consideration 3: The strength, nature and duration of ties to Australia
The Tribunal gives this consideration very strong and substantive weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction requires the Tribunal to determine if affirming the reviewable decision aligns with the best interest of any minor children in Australia who would be impacted by that decision.
To make this determination, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of a child affected by such a decision. This is only enlivened if the child is under eighteen years old when the decision to set aside or affirm is made.
This paragraph is enlivened by Ms Colville-Wardlaw’s two nephews, her sister’s sons, Child A (born in 2011), and Child B (born in 2024).[64]
[64] Exhibit R1: G10, 68.
When deciding what is in the child’s best interests, the Tribunal must consider how close the child is to the non-citizen, the non-citizen’s role as a parent, the impact of the non‑citizen’s past and future behaviour on the child, how separation would affect the child and whether the child has been hurt or abused by the non-citizen. The Tribunal should also consider the child’s own views, depending on their age and maturity, if available.
The evidence before the Tribunal in relation to this Primary Consideration includes testimony and statements from Ms Colville-Wardlaw and her sister.[65]
[65] Exhibit G1: 114 -120, 235-240; Exhibit A4: 32–33.
There is no direct evidence from either child as to their views.
Summarising Mr Woods’ contentions as the Tribunal understands them:[66]
(a)The Respondent accepts that it is likely in the best interests of Child A and Child B that Ms Colville-Wardlaw remains in Australia.
(b)However, the Respondent contends that less weight should be given to their interests because these children have a parent who fulfils the parental role and Ms Colville-Wardlaw has otherwise played a limited role in their upbringing aside from being a supportive aunt.
(c)There is no evidence before the Tribunal of any effect of separation these children would suffer from if Ms Colville-Wardlaw was removed from Australia and there are no known views of the children available.
(d)The remaining nieces, nephews and cousins outlined by Ms Colville-Wardlaw have not been identified as minor aged children. In circumstances where these family members are minor children and in the absence of any evidence regarding their best interests, it is the Minister's position that sometimes the best decision "about" whether revocation is, or is not, in the best interests of the children may be that it is neither.
(e)The Respondent contends that there is insufficient evidence to find that revocation is in the best interests of the remaining nieces, nephews and cousins.
[66] Exhibit R2: [54] – [57].
Summarising Dr van Galen-Dickie’s contentions on this consideration as the Tribunal understands them:[67]
(a)In determining whether the cancellation of Ms Colville-Wardlaw's visa should be revoked, Paragraph 8.4(3) tasks the Tribunal with weighing the best interests of all relevant children affected by the decision.
(b)Child A has recently turned thirteen. His father has not been present in his life, and Ms Colville-Wardlaw provided support to her sister and built a close relationship with him. She was able to communicate with him regularly while in prison.
(c)Child B was born with a blocked artery and was on oxygen. Ms Colville-Wardlaw’s sister has taken Child B to meet Ms Colville-Wardlaw in immigration detention.
(d)Although these children are young, their mother describes their relationship with Ms Colville-Wardlaw as “meaningful” and “invaluable to their sense of family and stability.” This is not an empty description. In terms of their own experiences as children, the need their mother has described for a sense of family and stability is poignant and powerful. She states that Ms Colville-Wardlaw’s physical absence in their lives will have a profound effect on the whole family, especially the children.
(e)In light of their close relationship, Ms Colville-Wardlaw asks that the Tribunal grant this consideration heavy weight in favour of revocation. Ms Colville-Wardlaw agrees that this consideration should be given positive weight, noting that the Respondent does not specify what that weight should be. Ms Colville-Wardlaw submits that the small nature of her family and their past experiences, along with the commitment by the children's mother to maintain close family ties, provides reason for this consideration to be given heavy weight.
[67] Exhibit A1: [88] – [92].
The Tribunal’s consideration
When evaluating this Primary Consideration, the Tribunal should consider the best interests of each identified child to the extent that their interests may differ.
Acknowledging the evidence and testimony before it in addition to the Respondent’s contentions, the Tribunal makes the following points in its assessment of this consideration relative to Paragraph 8.4(4) of the Direction.
Child A
The relationship between Ms Colville-Wardlaw and Child A, prior to Ms Colville-Wardlaw entering prison and detention, was and is non-parental but involves substantial and continuing meaningful contact.
Qualified to an extent on the outcome of these proceedings, Ms Colville-Wardlaw is likely to continue to play a parental role over the next five years before Child A turns eighteen.
Ms Colville-Wardlaw’s sister testified that Child A has been in Ms Colville-Wardlaw’s presence twice when she has been drunk with no signs that he was affected by this experience. There is no evidence before the Tribunal indicating that Ms Colville-Wardlaw’s prior conduct has had a negative effect on Child A. Child A was not exposed to Ms Colville-Wardlaw’s Index Offence.
The evidence and testimony support the Tribunal finding that Child A will suffer significantly – both emotionally and psychologically – if he and Ms Colville-Wardlaw are physically separated because of Ms Colville-Wardlaw being returned to New Zealand.
Child B
The relationship between Ms Colville-Wardlaw and Child B is non-parental. In view of Child B’s age and Ms Colville-Wardlaw’s detention, the relationship is best described as nascent in terms of its nature and duration.
Dependent on the outcome of these proceedings, Ms Colville-Wardlaw is more likely than not to continue to have a role over the next seventeen years in Child B’s life.
There is no evidence before the Tribunal indicating that Ms Colville-Wardlaw’s prior conduct has had a negative impact on Child B. Her Index Offences and other conduct occurred before Child B’s birth.
The evidence and testimony support the Tribunal inferring that Child B may suffer – both emotionally and psychologically – if he and Ms Colville-Wardlaw are physically separated because of Ms Colville-Wardlaw being returned to New Zealand. The extent of this suffering cannot be assessed on the evidence before the Tribunal.
There is nothing here to suggest that Paragraphs 8.4(4)(g) or (h) are enlivened with either child.
Assessing the evidence and resulting claims evaluated above, the Tribunal considers that this Primary Consideration supports setting the reviewable decision aside and that it weighs substantively in this regard.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration supports setting the reviewable decision aside. It carries a substantive weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
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.
In addition to the above, Paragraph 8.5(2) of the Direction directs that a 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 in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) also provides that 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 because of conduct, in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
Paragraph 8.5(3) provides that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(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.
Clause 8.5(4) of the Direction aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). FYBR establishes that this Primary Consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[68]
[68] FYBRv Minister of Home Affairs (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
FYBR’s reasoning further establishes that the ‘deemed community expectation’ will in most cases call for cancellation of a visa, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine.’[69]
[69] Ibid at 473 [75]– [76] (Charlesworth J).
Observing Paragraph 8.5’s norm, the Tribunal has also considered the guidance offered by the principles set out in Paragraphs 5.2(1) to (8) of the Direction. In summary these are:
(a)The Australian government’s highest priority is the Australian community’s safety.
(b)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(d)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(f)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(g)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non‑citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(h)Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.
Subparagraph 5.2(4) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, s 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay,’ as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas.
The Tribunal’s consideration
Ms Colville-Wardlaw’s Visa was a Class TY Subclass 444 Special Category visa until it was cancelled. This Visa cannot be classified as a limited stay visa.[70] This implies that Subparagraph 5.2(5)’s low tolerance does not apply.
[70] Clause 155.211, Migration Regulations 1994 (Cth).
Arriving in Australia at the age of five months in 1993, Ms Colville-Wardlaw has resided here for nearly thirty two years. This enlivens Paragraph 5.2(6)’s higher tolerance.
The Tribunal has found Ms Colville-Wardlaw’s offending conduct to be serious. She committed crimes of a violent nature against a woman. She committed acts of family violence. These findings temper the higher tolerances acknowledged above.
The Tribunal is satisfied that Ms Colville-Wardlaw has breached the Australian community’s expectations by her criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow her to remain in Australia. This expectation is modified by the tolerances assessed above.
Summarising Mr Woods’ contentions as the Tribunal apprehends them:[71]
(a)In having regard to this consideration, Paragraph 8.5(4) provides that the decision-maker should proceed based on the Government's views about the community's expectations as articulated and must not independently assess the community's expectations as they may pertain in a particular case. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51] - [52], the High Court said (regarding the same Primary Consideration as it appeared at Paragraph 8.4 in the former Direction 90):
[51] Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 'without independently assessing the community's expectations in the particular case'.
[52] Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be 'in the particular case' (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.
(b)Observing the norm stipulated in Paragraph 8.5(1), and in accordance with the guidance provided by Principles 5.2(1)-(5) of the Direction, the Australian community would expect that Ms Colville-Wardlaw should not continue to hold a visa on account of the nature of the character concerns and offences.
(c)Overall, the Respondent contends that this Primary Consideration weighs very heavily in favour of affirming the reviewable decision.
[71] Exhibit R2: [58] – [63].
Summarising Dr van Galen-Dickie’s contentions on this consideration as the Tribunal understands them:[72]
·The Tribunal can consider if there are any factors that modify the Australian community's expectations.
·Considering Ms Colville-Wardlaw’s childhood and circumstances, she asks that this consideration be given minimal weight. She accepts that this is a 'deeming provision' which counts against revocation. However, she contends that the Respondent has argued for a heavy weight to be placed on this consideration without reference to her arguments that her childhood and circumstances provide reasons for a minimal weight to be allocated to this Primary Consideration.
[72] Exhibit A1: [93] – [95].

The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.
Having regard to the evidence and context of Ms Colville-Wardlaw’s Index Offence, her childhood history in foster care, her mental health disorders and her alcohol and drug abuse disorders recognised by the sentencing judge, the Tribunal also concludes, after evaluating the tolerances Ms Colville-Wardlaw’s circumstances invoke, that this Primary Consideration weighs only slightly in favour of affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries a slight weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled under s 501 of the Act is barred, while in the migration zone, from applying for any visa other than a Protection visa or a Bridging R visa.[73]
[73] Section 501E of the Act.
Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to a person outside Australia whose visa has been cancelled under s 501.
Ms Colville-Wardlaw has not contended that she engages Australia’s protection obligations, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to her situation.
It follows that the legal consequence of a decision to affirm the reviewable decision is that she will remain in detention until she is removed from Australia.
The Visa was not a protection visa, and Ms Colville-Wardlaw is not barred from applying for a protection visa.
The Tribunal’s consideration
The logical consequential operation of the Direction and the Act in regard to this consideration is that where the revocation of an applicant’s visa is affirmed, the applicant is liable to be removed from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act.[74]
[74] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 at [209].
There are no claims of protection or of non-refoulement in this matter.
When the Tribunal considers whether to affirm a decision to cancel a visa under s 501CA(4) of the Act, it must consider the legal consequences of that decision as stated in Paragraph 9.1 of the Direction. In this matter, this includes assessing the implications of Ms Colville-Wardlaw being removed from Australia as soon as reasonably practicable, such as the possibility of further detention and being precluded from returning to Australia.
In NBMZ v Minister for Immigration and Border Protection,[75] the Full Federal Court held that while the Respondent has broad discretion under the Act, the decision must still follow the legal framework set by the law. The Respondent – and the Tribunal – must consider the legal consequences referred to in the preceding paragraph when making their respective decisions.
[75] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ) at [8], [9] and [153].
The Tribunal must approach this consideration in a logical and rational way, based on a correct understanding of the law, as the High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs.[76]
[76] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [25].
The Full Federal Court in Taulahi v Minister for Immigration and Border Protection[77] stated that the Tribunal’s obligation is to take into account ‘the direct and immediate statutorily prescribed consequences of the decision in contemplation.’[78] In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision.
[77] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 (Taulahi). See also Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 (Rano).
[78] Taulahi, [84].
These consequences are that Ms Colville-Wardlaw would be liable to be removed from Australia as soon as reasonably practicable and would be excluded from returning to Australia. However, the Tribunal has the discretion to decide how much weight these consequences should carry in its decision-making process.[79]
[79] See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [33] and [38].
The Tribunal has considered the evidence and testimony before it and the contentions above in assessing the legal consequences arising from either affirming or setting aside the reviewable decision.
The Tribunal’s finding
The Tribunal finds that in these circumstances the legal consequences raised by this Other Consideration carries neutral weight.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Notwithstanding the evidence and testimony before the Tribunal and discussed above, there is no evidence or testimony before the Tribunal to show that Ms Colville-Wardlaw has contacts, ties or connections in New Zealand.
Her work experience in hospitality suggests that she has transferrable skills that would be recognised in New Zealand.[80]
[80] Exhibit R1: G10, 72.
She has several mental health disorders and suffers from pancreatitis.
Summarising Mr Woods’ contentions as the Tribunal apprehends them:[81]
(a)In relation to Ms Colville-Wardlaw's age and health, she is thirty one years old and has identified borderline personality disorder, PTSD and anxiety as relevant mental health conditions. She has been prescribed medications for those conditions. The evidence also reflects that she has a history of pancreatitis. There is nothing to suggest that she would not have access to relevant medication and treatment in New Zealand for these conditions.
(b)Whilst she may face some difficulty in re-establishing herself in New Zealand, any difficulties she may face would be temporary. She has limited family or social ties to New Zealand. It is notable however that there are no substantial language or cultural barriers for the applicant to overcome and as a New Zealand citizen, she has the same access to social, medical and economic support as other citizens. Furthermore, the Tribunal has previously found that New Zealand has comparable standards of health care, social welfare and housing support to those in Australia.
(c)The Respondent accepts that this Other Consideration weighs in her favour, but it does not outweigh the Primary Considerations weighing very heavily in favour of non-revocation.
[81] Exhibit R2: [68] – [71].
Summarising Dr van Galen-Dickie’s contentions as the Tribunal understands them:[82]
(a)The Respondent claims that Ms Colville-Wardlaw may “face some difficulty in re-establishing herself” and that the “difficulties would be temporary”.[83] Ms Colville-Wardlaw argues this is an assertion with no basis that directly contradicts the evidence before the Tribunal.
(b)While Australia and New Zealand share many common aspects of life, Ms Colville-Wardlaw contends that establishing a new life in New Zealand would be extremely stressful and difficult for a woman with her profile. She notes that the factors the Respondent relies upon as triggers for her conduct are the same factors that the respondent dismisses as "difficulties."
(c)Based on the evidence provided, Ms Colville-Wardlaw argues it is highly likely that the stress associated with removal would have a long-term, extremely negative effect on her mental health and her ability to overcome alcoholism.
(d)Ms Colville-Wardlaw notes that Dr Hatzipetrou has been clear that the fear of abandonment is a strong factor in her mental health.[84] To be removed to a country she has never lived in, with no family support (including her fiancé and her foster mother) has the potential to be devastating for her mental health.[85]
(e)Ms Colville-Wardlaw maintains that Other Considerations are not limited to those mentioned in the Direction, which can provide the delegate with a wide range of discretionary power. She notes that the issues raised in her Statement of Facts, Issues and Contentions regarding this consideration have been addressed by the Respondent.
[82] Exhibit A3: [30] – [37].
[83] Exhibit R2: [70].
[84] Exhibit A5: lines 773 - 776 and 971 - 983.
[85] Exhibit A5: lines 1020 - 1026.
The Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Ms Colville-Wardlaw, if removed from Australia to New Zealand, will face in establishing herself and maintaining basic living standards, taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
The phrase ‘(in the context of what is generally available to other citizens of that country)’ in Paragraph 9.2(1) is of significance because it establishes the standard against which impediments may be measured for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Subparagraph 9.2(1)(a) – the non-citizen’s age and health
Ms Colville-Wardlaw is thirty one and appears to be in average physical health.
In assessing Ms Colville-Wardlaw’s mental health in terms of her borderline personality disorder, her history of polysubstance abuse, her PTSD and anxiety, the Tribunal has considered the Federal Court’s decisions in GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[86]at paragraph [95] and Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[87] at paragraphs [9] – [14]. Ms Colville-Wardlaw’s mental health appears to be a ‘health related issue’ to reference GXXS.
[86] GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468.
[87] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
The Tribunal considers that Ms Colville-Wardlaw likely faces higher risks of anxiety, depression and lapses or relapses in terms of her polysubstance abuse disorder due to separation from her immediate family and her fiancé and the loss of her accompanying supporting and protective factor network they constitute if she is removed to New Zealand. The Tribunal considers this risk or health related issue to be a significant and substantial impediment.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Ms Colville-Wardlaw, based on her testimony and the evidence before the Tribunal, would not face any linguistic difficulties if she returned to New Zealand.
The Tribunal, applying the same reasoning, also considers that Ms Colville-Wardlaw is unlikely to face significant cultural issues.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Ms Colville-Wardlaw would have access to the same medical, social and economic support as that available to other citizens of New Zealand.
Ms Colville-Wardlaw does not appear to have any close personal social networks available to her in New Zealand. If this is correct, then it further supports the Tribunal’s evaluation above that she faces a risk to her mental health if she is deported to New Zealand.
The Tribunal’s finding
The Tribunal has considered above the extent of any impediments that Ms Colville-Wardlaw, if removed from Australia to New Zealand, will face in establishing herself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely that Ms Colville-Wardlaw would face health, emotional, psychological, practical and financial hardships if she were returned to New Zealand, as well as risks to her mental health in terms of likely being at an increased risk of anxiety and depression. She is likely to face short-term difficulties in arranging or establishing social, medical and economic supports. She is unlikely to face any language or cultural barriers.
After assessing its totality, the Tribunal finds that this Other Consideration carries strong and substantial weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence and testimony before the Tribunal enlivening this consideration.
The Tribunal’s finding
The Tribunal finds that this Other Consideration carries neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction).[88]
[88] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
Dr van Galen-Dickie makes the following contentions that the Tribunal is treating as Additional Considerations:[89]
[89] Exhibit A1: [97] – [114].
(a)Ms Colville-Wardlaw has lived in Australia since she was a baby. Sadly, her childhood and formative years were marked by extreme abuse and neglect. Her treatment at the hands of those meant to care for her is described as shocking.
(b)The evidence of the abuse she suffered during her formative years is definitive. The effect this abuse had on her life cannot be discounted. Australian studies have shown that children abused during these years have significantly higher rates of criminal activity.
(c)Given the complex nature of trauma associated with sexual abuse and family violence as a young child, the complexity of her health condition and addictions, and the links these factors have to her risk of committing crime, Ms Colville-Wardlaw argues that no true assessment will be possible of the risk she poses to the Australian community until she is allowed to engage with supports that will assist her to retain her health.
(d)Her mother recognises she has “let her down” as her parents' lives were severely impacted by drugs, alcohol, and domestic violence. The loss of her parents and separation from her sister as a young child had a profound effect on Ms Colville-Wardlaw's life. Child Safety notes provide proof that the family was facing difficulties from 1997 when she was three to 2005 when she was taken into care.
(e)There is abundant evidence in her Child Safety case notes demonstrating the negative effect both her family life and exposure to foster carers and homes had on her development, which in turn affected her behaviour and mental health. Although the aim was for reunification with her parents, this was never achieved due to their dysfunctional lives. Faced with their struggles of domestic violence and alcoholism, she was unable to go home.
(f)Instead, Ms Colville-Wardlaw was shuffled from placement to placement. She revealed she had been sexually assaulted while in one of these placements. This followed concerns raised by her head teacher, on 28 February 2006, that something "very dark was going on with her" and that she had changed significantly.
(g)The concerns regarding these changes were clarified when Ms Colville-Wardlaw revealed what had happened to her and asked to be moved from that placement. Astonishingly, the Child Safety supervisor, who had known her all her life and had repeatedly raised concerns regarding the changes in her behaviour, chose not to believe her revelations and instead decided she needed counselling about “false allegations.”
(h)Despite his reluctance to believe the applicant and Child Safety's inability to find a new placement, the supervisor expressed concern about her mental health, noting she seemed “on the edge” and her behaviours were “so very different to how she was in primary school.”
(i)The failure to believe her as a young child in 2006 began a downward spiral in her behaviour and response to school and Child Safety. Child Safety notes dated 16 May 2007 summarised concerns for Ms Colville-Wardlaw as “exposed to chronic domestic violence,” yet the aim remained reunification with her parents.
(j)Child Safety notes dated 19 December 2007 clearly indicated that Ms Colville-Wardlaw was “assessed as being at ongoing risk of significant neglect and emotional and physical harm if returned.” In July 2007 Child Safety placed her in a hotel for three days with supervision by three different carers. This happened more than once and affected her ability to retain belongings, school clothes, and to build consistent relationships.
(k)Dr van Galen-Dickie contends that the neglect of Ms Colville-Wardlaw as a child by her parents, and the mishandling of her allegations of sexual abuse by foster carers, must be taken into account when considering her case.
(l)Ms Colville-Wardlaw is described as a victim of a terrible childhood and a system that failed her. She has struggled with the emotional and physical trauma resulting from that childhood. She has experienced drug and alcohol dependency and recognises this as an illness she can overcome.
(m)She has struggled with feelings of abandonment her entire life. Ms Colville-Wardlaw argues that permanent removal from Australia will ensure she is abandoned by the only country and culture she has ever known.
Mr Woods responded as follows:[90]
(a)Ms Colville-Wardlaw contends that the Tribunal should take into account the neglect she suffered by her parents and by the mishandling of allegations of sexual abuse by foster carers (by the child protection authorities) as a further other consideration.
(b)While the Tribunal must read, identify, understand and evaluate her representations, the Respondent submits that this representation should be given neutral weight, and at best minimal weight to the extent that it does not outweigh the Primary Considerations weighing in favour of affirming the reviewable decision.
(c)While Ms Colville-Wardlaw’s material and statements contain information regarding her experience in the foster system, there is no evidence that a determinative finding was made with respect to her treatment. The sentencing judge did describe her overall childhood as being prejudicial, which the Respondent accepts. In DQDW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[91] [2022] AATA 3657 (DQDW), Senior Member Bellamy had regard to contentions relating to child sexual abuse suffered by DQDW. The Senior Member found:
It is something that, as a matter of public policy, should weigh in favour of the non-citizen being allowed to remain in Australia. Whether the Tribunal is permitted to do that, given the legislative scheme being applied, is a question that does not need to be answered in the present case because I have not accepted that the childhood sexual abuse suffered by the Applicant was a significant contributor to his serious drug offending, and there is no evidence that the Australian government or a State or Territory government or their agencies caused the abuse perpetrated on the Applicant or knowing failed to act to stop it.
(d)Similar to the observations in DQDW, the Respondent submits that while Ms Colville-Wardlaw’s prejudicial childhood was a factor that has contributed to her mental health issues, it was not a significant contributor to her offending. In addition, the Respondent submits that unlike DQDW, there is no evidence that an independent and authoritative finding was made by a relevant body that the Australian government or a State or Territory Government perpetrated such abuse or knowingly failed to act to stop it. Where the evidence does not even reach the same level as that found in DQDW, the contention should not be accepted and accordingly given neutral weight.
[90] Exhibit R2: [72] – [74].
[91] DQDW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3657.

The Tribunal acknowledges the representations made by Dr van Galen-Dickie. It accepts that Ms Colville-Wardlaw suffered from a prejudicial childhood. There is no evidence before the Tribunal supporting the claims of childhood sexual abuse. This is not to say that abuse did not occur – only that there is no evidence of it before the Tribunal.
The Tribunal finds that the Additional Consideration is made out to the extent that Ms Colville-Wardlaw’s prejudicial childhood was a factor that has contributed to her mental health issues. This finding is tempered by the other factors, such as polysubstance abuse, that are more directly connected to her offending. This finding supports setting the reviewable decision aside and carries moderate weight.
THE TRIBUNAL’S FINDINGS
The statutory framework poses two issues for the Tribunal to address:
(a)character test: whether there is a reasonable suspicion that Ms Colville-Wardlaw does not pass the character test in terms of s 501(6)(b), and whether Ms Colville-Wardlaw satisfies the Tribunal that she passes the character test,[92] and, if not,
(b)exercise of discretion: whether there is another reason the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.
[92] Section 501(2) of the Act.
The Tribunal found above that it was satisfied that Ms Colville-Wardlaw did not pass the character test.
In determining whether there is ‘another reason’ to set aside the reviewable decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
Addressing Primary Consideration 1, the Tribunal found that Ms Colville-Wardlaw’s offending is serious, that the consequences of any such future offending may involve physical harm to members of the Australian community and that the likelihood of her future re-offending is small. Primary Consideration 1 weighs moderately in favour of affirming the reviewable decision.
Primary Consideration 2 favours affirming the reviewable decision but carries only a small weight in this regard due to the lack of evidence and convictions.
The Tribunal gives Primary Consideration 3 very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 4 supports setting the reviewable decision aside. It carries a substantive weight.
The Tribunal found that Primary Consideration 5 carries a slight weight in favour of affirming the reviewable decision.
The Tribunal found that the legal consequences of the decision regarding Ms Colville-Wardlaw’s Visa carries neutral weight.
The Tribunal found that the extent of impediments Ms Colville-Wardlaw would face if she were removed to the New Zealand carries strong and substantial weight in favour of setting the reviewable decision aside.
The Tribunal found that the impact on Australian business interests carries neutral weight.
The Tribunal found that the Additional Consideration raised by the parties supports setting the reviewable decision aside and carries moderate weight.
CONCLUSION
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[93]
[93] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
In applying this process, the Tribunal has regard to the Direction and specifically, Paragraph 7(2):
The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. (Emphasis added.)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[94] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[95]
[94] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[95] Ibid at [37]– [39].
Two further authorities offering guidance are His Honour Justice Dowsett’s decision in Aksu v MIMA[96] at [10]–[13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and His Honour Justice Sackville’s decision in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[97] at [54].
[96] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[97] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion.
Taken together, these points above support the argument that the Tribunal retains a discretion to determine in a specific matter whether ‘greater weight’ should be given to Primary Consideration 1. The Tribunal considers that, in this matter, it should exercise this discretion to find that Primary Consideration 1 should not be accorded this greater weight.
Having conducted and considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations and the Other Considerations in this matter leads this Tribunal to find that it is satisfied that there is another reason to set the reviewable decision aside.
DECISION
Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent and substitutes a decision that Ms Colville-Wardlaw’s visa is not cancelled.

I certify that the preceding one hundred and ninety six (196) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave

..............[SGD]..............
Associate
Dated: 18 March 2024

Date(s) of hearing: 17 & 18 February 2025

Solicitors for the Applicant: Dr van Galen-Dickie of Sisters Inside Inc.

Counsel for the Respondent: Mr Woods of SparkeHelmore Lawyers.

Date(s) of hearing:	17 & 18 February 2025
Solicitors for the Applicant:	Dr van Galen-Dickie of Sisters Inside Inc.
Counsel for the Respondent:	Mr Woods of SparkeHelmore Lawyers.