Crisciglione and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 800

Crisciglione and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 800 (18 June 2025)
Applicant/s:  Mr Massimo Crisciglione
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/2912

Tribunal:Senior Member S. Baker
Place:Melbourne
Date:18 June 2025
Decision:The Tribunal affirms the decision under review.
……………………[SGD]…………………………

Catchwords
MIGRATION – mandatory visa cancellation – citizen of Italy – Class BB Subclass 155 Five year Resident Return Visa – attempted possession of a commercial quantity of a border controlled drug: heroin – substantial criminal record – Applicant does not pass character test – non-revocation decision – whether another reason to revoke visa cancellation – Ministerial Direction no. 110 applied – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Nguyen v Minister for Home Affairs (2019) 270 FCR 555
Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA
Siale v Minister for Immigration and Citizenship [2025] FCA 608
Suleiman v Minister for Immigration [2018] FCA 594
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

This is an application by Mr Massimo Crisciglione seeking a review of the decision of the delegate of the respondent not to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa.
On 5 June 2023, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The applicant was invited to make representations to the delegate of the respondent, which he made, seeking revocation of that decision. After considering those representations, the delegate decided on 26 March 2025 under s 501CA(4) of the Act not to revoke the cancellation.
There are two questions to be considered under s 501CA(4)(b) of the Act. The first is whether the applicant passes the character test prescribed under s 501(6). It is agreed that because of the substantial criminal record of the applicant and his period of imprisonment, he does not. The second question is whether there is ‘another reason’ warranting the revocation of the visa cancellation. The delegate of the respondent decided that there was not any other reason why the cancellation decision should be revoked and accordingly made the decision not to revoke.
The applicant was sentenced to a term of imprisonment of five years and six months for the offence of Attempted possession of a commercial quantity of a border-controlled drug – heroin. The sentencing remarks of Judge Chettle of the County Court indicate that the judge considered the offence to be a serious offence, highlighting the deleterious effect of drugs in our society.[1] The Judge took into account a number of factors in sentencing, including that the quantity was not at the higher end, the fact the sentence may lead to removal, personal factors of the applicant, and his decision to plead guilty to impose a sentence of five years and six months imprisonment.[2] On the basis of this sentence the applicant’s visa was cancelled under s 501(3A) of the Act because the Minister’s delegate was satisfied that the applicant had a substantial criminal record: sections 501(6)(a) and 501(7)(c). As noted above, that cancellation was not revoked by a delegate pursuant to s 501CA(4) of the Act and that non-revocation is the subject of this application.
[1] G documents at G8, p 256.
[2] G documents at G8, pp 256 – 262.
For the reasons that follow, I have decided to affirm the decision which is under review.
BACKGROUND FACTS
The applicant is a 46-year-old Italian national, born on 21 April 1979 in Milan. He arrived in Australia in 1997 when he was 18 years old. He has returned to Italy on several occasions, some lengthy, but the majority of his adult life has been spent in Australia.
In his personal circumstances form attached to his revocation request, the applicant provided some detail about his life and background leading up to his arrest and incarceration.[3]
[3] G Documents at G5, pp 163 – 177.
The applicant’s background, according to the sentencing remarks of the County Court, was one of poverty and difficulties. The applicant had a basic education and left school at 13 to work with his father in the markets. At 16 he moved to Milan and worked in the construction industry. He came to Australia at the age of 18, has worked as a concreter, in the security industry, and as a cleaner. The applicant was married and had two children born 1999 and 2003 but has not seen his adult children for many years.[4]
[4] G Document at G8, p 240.
The ending of his marriage appears, from his evidence and the sentencing remarks, to have precipitated his drug use and criminal behaviour. According to the sentencing remarks, subsequent to the breakup he had periods of homelessness, and he was homeless at the time of the offending.[5]
[5] G Document at G8, p 240.
The applicant’s criminal history
The applicant’s criminal history is detailed in the National Criminal History Check.[6] In July 2011, he was convicted of firearms, trafficking and possessing drug offences, and sentenced to an aggregate four months imprisonment by way of an intensive correction order. In May 2012, it was proven that he had breached that intensive corrections order, convicted of a further drug offence and he was fined and given a community corrections order for six months.
[6] G Documents at G12, pp. 255 - 258.
In June 2018, the applicant was imprisoned for 17 days on conviction and a 12-month community correction order for unlawful assault, contravening a family violence order, committing an indictable offence whilst on bail, theft, driving and weapons offences.
In March 2019, the Melbourne Magistrates’ Court recorded it was proven that the applicant breached the community correction order and was sentenced to an aggregate 21-days imprisonment. The offences which led to the breach appear to be theft and a related offense as well as contravention of a family violence intervention order.
In September 2022, the applicant was convicted of unlawful assault, property, driving and drug offences for which he received fines.
On 23 March 2023, the applicant was convicted in the Melbourne County Court of the offence leading to his current term of imprisonment, attempt to possess a commercial quantity of a border controlled drug – heroin, for which he received a period of five years and six months.
The sentencing remarks of the Judge Chettle of the County Court, partially summarised above, set out the following. The judge noted that the applicant and his co accused had pled guilty, that the offence was a serious criminal offence (and elsewhere, a very serious offence)[7], punishable by a maximum sentence of life imprisonment. The judge noted that the quantity was not at the highest end often seen in the court, and that the role of the applicant and his co-accused was limited. As above, the judge recounted the personal history of the applicant, summarised his prior offending, as set out above, and turned to factors in favour of the applicant in sentencing; that he was not alleged to have been involved in arranging the importation of the drugs, that the applicant was not an Australian citizen and that he may be deported as a result of the sentence to be imposed, the pleas of guilt of the applicant and his co-accused, of particular value at the time because of the COVID-19 pandemic, and their time in custody being more onerous because of the pandemic. The judge then turned to the sentencing factors which weighed against, noting that deterrence and denunciation of conduct leading to attempts to possess imported drugs was important, and that counsel for the applicant had conceded that despite the above, no sentence other than imprisonment, was appropriate.[8]
[7] G8 at para 4.
[8] G Documents at G8, pp. 236 – 244.
As noted above, in relation to this offence, the applicant’s visa was mandatorily cancelled on the basis that he was convicted of attempt to possess a commercial quantity of a border-controlled drug – heroin. On this basis, his visa was cancelled and the applicant does not dispute this information nor that he does not satisfy the character test.
The applicant’s evidence
The applicant was unrepresented. The documentary evidence provided was minimal.
On 3 June 2025, the applicant’s half-brother, Gaetano, provided a statement via email (exhibit A1). On 4 June 2025, the applicant provided a signed statement (exhibit A2).
Information provided by the applicant to the Department of Home Affairs has been included in the G Documents and has been taken into account.
The respondent’s exhibits
The respondent’s documents were provided to the applicant, and he acknowledged receipt.
The Tribunal has considered the following documents:
·G documents (updated version dated 9 May 2025) (Exhibit R1);
·Respondent’s SFIC dated 9 May 2025;
·Supplementary tender bundle dated 3 June 2025 (Exhibit R2);
·Further supplementary tender bundle dated 5 June 2025 (exhibit R3).
RELEVANT LAW AND MINISTERIAL DIRECTION 110
Section 501CA of the Act applies where the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of sections 501(6)(a) and 501(7)(c). Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months’ imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to s 501CA(4) of the Act.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under s 499 of the Act which apply to decision‑makers in the exercise of power under s 501CA(4). The relevant direction is Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)   legal consequences of the decision;
b)   extent of impediments if removed;
c)   impact on Australian business interests.
THE ISSUES TO BE DECIDED
The character test
Sections 501(6) and 501(7)(c) of the Act preclude a person from passing the character test if they have a substantial criminal record, which includes a person who has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal finds that on 23 March 2023, the applicant was sentenced to a term of imprisonment of five years and six months. The Tribunal finds that the applicant has a substantial criminal record as defined in s 501(7)(c) of the Act. As the applicant has a substantial criminal record, he does not pass the character test.
The remaining issue before the Tribunal therefore is whether the Tribunal is satisfied that there is another reason to revoke the cancellation of his Spouse visa.
Whether there is another reason why the original decision should be revoked – s 501CA(4)(b)(ii)
The Tribunal must therefore consider and determine whether there is another reason why the original decision should be revoked. The Minister has issued a direction as to the exercise of the power under s 501CA(4) of the Migration Act. Section 499 of the Act requires the Tribunal to comply with Direction 110.
Having regard to the principles in Paragraph 5.2 of the Direction, as well as the requirement in section 6 in relation to making a decision, and noting the information on weighing sources and considerations appropriately at section 7, the Tribunal turns to the considerations in sections 8 and 9 of the Direction.
Primary Considerations – section 8
8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
8.1.1 The nature and seriousness of the applicant’s conduct to date
The Direction provides a framework at paragraph 8.1.1 to consider the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, including specifying types of conduct which are viewed very seriously by the Australian Government and the Australian community.
As set out in the respondent’s Statements of Facts, Issues and Contentions, and as accepted by the applicant at the hearing, the applicant has been convicted of a very serious offence.
Subparagraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non‑citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non‑citizen’s offending and/or whether there is any trend of increasing seriousness. Subparagraph (f) requires the decision maker to have regard to the cumulative effect of repeated offending.
The Tribunal notes the sentencing remarks of the Judge, making clear that the crime for which the applicant was most recently sentenced was viewed as serious. The Tribunal has also considered what was said in PNLB and Minister for Immigration and Border Protection [2018] AATA:
Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[9]
[9] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 (9 February 2018) at [22].
The Tribunal has also had regard to the applicant’s criminal history, which the respondent, in the Statements of Facts, Issues and Contentions and at hearing, noted was extensive, increasingly serious and that the applicant could be considered a repeat offender. The applicant at hearing acknowledged his history of offending, whilst disputing some details in relation to the family violence breaches, discussed further below.
In considering the nature and seriousness of the applicant’s criminal offending and other conduct to date, the Tribunal has taken into account the respondent’s documents, the applicant’s statement and evidence at hearing acknowledging his past offending, and the sentencing remarks of the County Court Judge.
Considering this information, the Tribunal finds that the applicant has been given a significant sentence of five and a half years (subparagraph 8.1.1(1)(c) refers). The Tribunal finds that the applicant’s offending took place regularly over more than a ten year period of time (subparagraphs 8.1.1(1)(e) refers)
The applicant has been incarcerated from the date of his most recent conviction until the date of this decision. There is some information, which the applicant did not contest when it was put to him at hearing, that he has been involved in assaults with other inmates and has been found with contraband whilst incarcerated.[10]
[10] G Documents, G7, pp. 178 – 206.
Having considered all of the above, the Tribunal finds the applicant’s offending very serious, as reflected by the imposition of a considerable sentence of imprisonment and the frequency of the applicant’s offending over a more than a ten-year period. The Tribunal has had regard to the factors highlighted in the sentencing remarks in the applicant’s favour, as well as his statement and acknowledgement at hearing of the offending and expression of remorse.
8.1.2 The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct

Paragraph 8.1.2(1) of Direction 110 provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This entails the cumulative consideration of the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the applicant reoffending and of rehabilitation being achieved (para 8.1.2 (2)).
The respondent contends that if the applicant were to re-offend in a similar manner, that there is a real risk of significant harm to the Australian community through further drug, theft, vehicle, firearm and assault offences. The respondent further contends that the long history of offending by the applicant demonstrated a likelihood of reoffending. The respondent, in their submission, did acknowledge that the applicant had shown some remorse and had taken some positive steps towards rehabilitation, but that such rehabilitation is still nascent and untested in the community, and noted the reports from Corrections Victoria of incidents relating to the applicant whilst in prison, referred to above. The respondent submits that “…the applicant’s long history of repeated offending means there is a serious and palpable risk the applicant may return to drug use if exposed again to stressors and/or antisocial peers in the community. This is particularly so given the applicant’s serious recidivism after he was warned on 15 June 2018 by the sentencing Magistrate that he needed to address these issues or would be likely to face imprisonment.”[11]
[11] Respondent’s SFIC, p. 8.
The applicant’s contention, in his statement and his evidence at the hearing is that he is remorseful for his actions, has utilised his time to reflect on those actions and is confident that he will not re-offend in future. He has noted that the offending took place in the context of his drug addiction, which he has worked to address. He points to his desire to rekindle his relationship with his son, [child M], and his strong family support in the community, as well as the possibility of returning to work as a concreter or working with his brother. The applicant’s brother, Mr Di Bartolo, in his statement and at hearing stated that he would support the applicant by offering him accommodation until the applicant was on his feet. At hearing, the applicant noted that his brother had offered him employment at his company, Topform marble benchtops, but his brother had not mentioned this in his evidence because he had health issues. The Tribunal is prepared to accept that the applicant’s brother, Mr DiBartolo, will accommodate the applicant for some period, will provide him with employment and/or that the applicant can seek employment as a concreter.
However, the Tribunal notes, with concern, the refusal of the applicant’s parole recently in September 2024, with reasons being the seriousness of offending, current deportation status, previous non-compliance with orders and lack of suitable post-release accommodation.[12] The applicant did not dispute the refusal of parole but noted he was in a better position to get a job now as he had completed work certificates, but then conceded that he had attained these prior to his parole refusal. He did note that he understood he was refused parole as he was not certain whether he could reside with his brother at the time, as a visa requirement was that he had to provide an address.
[12] R3, FSTB, p. 15; 18 – 20; 21 – 29.
The respondent submitted that the applicant was assessed in 2018 when his matters were considered in the Magistrates’ Court to be at a high risk of reoffending, and that this, it was conceded, has moderated to an assessment of a medium risk of reoffending at the time of seeking parole.[13]
[13] R3, FSTB, p. 28.
The Tribunal also notes information that the applicant has been provided with Buprenorphine whilst in jail to manage his addiction,[14] and that due to his anxiety as his parole neared and his deportation concerns, he had doubled his dose.[15] At hearing, the applicant was questioned on his plans for managing his drug replacement when he was released. His response included that he wanted to go lower and wean himself before release but had not discussed this with medical professionals in prison, and his failure to mention he had doubled his dose due to anxiety around parole and potential deportation did not indicate the applicant had a clear plan for addressing his drug use or managing his drug replacement therapy on release.
[14] R3, FSTB, pp. 16, 31.
[15] R3, FSTB, pp. 16.
In weighing the likelihood of reoffending, the Tribunal has had regard to the above. The Tribunal has considered, and accepts, that the offending of the applicant has been in the context of his drug addiction, that he has claimed, and indicated remorsefulness for his past offending. However, the Tribunal considers that this must be placed in the context of the applicant having committed offences over a considerable period of time, including whilst on Community Correction Orders and similar which are designed to provide a person with an opportunity to change their behaviour and cease or reduce offending, and which, demonstrably, the applicant has not done so far, and the applicant’s minimal consideration of his drug replacement options if released. The Tribunal accepts that the applicant has undertaken a range of activities including drug courses, a parenting course and learning skills which may allow him to gain employment on release, going some way towards demonstrating attempts to rehabilitate himself. The Tribunal notes and accepts the support of accommodation and employment offered by the applicant’s brother, as well as the more limited support offered by the applicant’s other relatives in Australia. However, the applicant notes that Mr Di Bartolo indicated he was not aware of the applicant’s drug replacement therapy. The Tribunal accepts that a very significant motivation for the applicant is to be released and work towards gaining custody of his son, [child M], and to a lesser extent to redevelop a relationship with his minor nephew [D]. The Tribunal accepts that the applicant has taken some steps, including seeking contact with [child M]’s mother to find out where [child M] is, and writing some weeks ago to the Department of Family Services to attempt to determine where and with whom [child M] is currently living. However, the Tribunal notes that many of these factors were considered when the applicant was refused parole, and that the applicant’s intent, and the support of his family in Australia must be considered in the context of his repeated and long-standing offending which, given the minimal consideration the applicant has given to his drug replacement options if released, is of considerable concern.
In conclusion, The Tribunal finds that the offending was very serious, despite consideration being given to the fact that the applicant committed this offending in the context of his drug use. The Tribunal has weighed the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct, and concludes that the harm the applicant would inflict were he to commit further offences of the kind he has committed previously, would be serious and that the assessment of the applicant reoffending being medium in the assessment conducted for his recent parole application is a significant factor in terms of whether or not the decision should be set aside. Despite the factors in the applicant’s favour considered above, where, on the evidence before the Tribunal, the nature of the applicant’s offending is very serious, and there is an assessed risk of reoffending that is medium, the Tribunal concludes that the protection of the Australian community is a factor which weighs strongly against revocation of the visa.
8.2 Family violence
Paragraph 8.2 of Direction 110 concerns family violence. The consideration is engaged where the person has been convicted or otherwise had charges proven of family violence, or there is information or evidence from independent sources indicating the applicant has committed family violence and the applicant has been afforded procedural fairness (paragraph 8.2(2)), and the seriousness of the family violence must be taken into account on a range of factors including the frequency and any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation of the person, and whether the person has re-offended since being formally warned. ((paragraph 8.2(3)).
The non-revocation decision considered whether the applicant had engaged in conduct constituting family violence,[16] acknowledging that the applicant was convicted on 15 June 2018 in the Magistrates’ Court of Victoria at Heidelberg of Contra-fam viol interv ord-int harm/fear and on 8 March 2019 in the County Court of Victoria at Melbourne of Contravene fam violence intervention order, but that there was no information available to indicate the circumstances in which the convictions were issued.
[16] G Documents, G3, pp. 125-126.
Subsequent information was provided in the form of records from the Victoria Police LEAP database,[17] and there is details of a police report dated 25 May 2018 relating to incidents involving the applicant and his former partner.[18] This includes a report that the applicant grabbed his former partner by the throat and pushed her, pursued her out of her house and attempted to drag her inside, and had broken his former partner’s phone.[19] The report concludes that the applicant was remanded by uniformed police on 29 May 2018 and the matter completed at court. The Tribunal finds that this is the offending which led to the 15 June 2018 conviction, and therefore provides the circumstances in which this conviction was issued.
[17] R2, STB6, pp. 47 – 110.
[18] R2, STB6, pp. 64 – 66.
[19] R2, STB6, pp. 64 – 66.
At hearing, the applicant did not accept that he had committed family violence, he accused his former partner of being on drugs and being a poor mother, and expressed frustration that she had not contacted him whilst he was in jail to allow him to determine where their son was. When it was put to him that he had committed family violence which led to the 15 June 2018 conviction, the applicant said that these things had happened in the past and were not true.
The respondent also sought to include information about an incident of alleged family violence recorded in the police records prior to the 2018 offending which led to conviction, but the Tribunal finds that this is not established, being allegations only, and has placed no weight on this.
However, the Tribunal finds that the applicant has been convicted of offences which involve family violence, on 15 June 2018, the details of which are before the Tribunal on the basis of the Victoria Police reporting, that this information was raised with the applicant.
The Tribunal has weighed the applicant’s denial that these events are true and that they happened in the past and prefers the authoritative and contemporaneous information in the police reporting and the fact that the applicant was convicted in relation to this offending and places no weight on the applicant’s assertions.
The Tribunal notes that the offending which led to that conviction is serious, involving grabbing his ex-partner by the throat and pursuing her, which would be expected to cause significant fear, pain and distress to his former partner, as well as smashing her phone, and that there is no indication that the applicant has achieved any form of rehabilitation in relation to this conduct because he denied it had occurred and did not accept responsibility.
The Tribunal finds that the applicant has engaged in family violence. The Tribunal is concerned that the applicant did not acknowledge and accept responsibility for this conduct, nor reflect on any factors which may have contributed to his conduct. The Tribunal acknowledges that there is limited information about any further acts of family violence which the Tribunal can rely on and that this should be considered in isolation, but notes that the offending was serious. Therefore, the Tribunal finds that this factor weighs strongly against revocation.
8.3 Strength, nature and duration of ties to Australia
In accordance with 8.3(1) of the Direction, the Tribunal has considered the impact of the decision on the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal has also had regard to the strength, nature and duration of any other ties that the non-citizen has to the Australian community; having regard to the period the person has resided in Australia (paragraph 8.3(2)(a)).; and the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia (paragraph 8.3(2)(b)).
The applicant arrived in Australia as an adult. He has spent the greater balance of his adult life in Australia, with some periods of return to Italy, in some cases for considerable periods.
The applicant has a number of family members in Australia, including his brother Gaetano Di Bartolo, who gave evidence at the hearing, as well as the applicant’s two older children, Stephanie and Michael Crisciglione, his son [child M], and other relatives.
The Tribunal heard from both the applicant and Mr Di Bartolo himself that the relationship is significant for Mr Di Bartolo and the Tribunal accepts that Mr Di Bartolo, and his family, would be significantly emotionally impacted if the applicant’s visa were to remain cancelled.
The applicant acknowledged at hearing that he has had no contact with his two adult children for many years and that they are estranged. Mr Di Bartolo has had limited contact but did not claim that the adult children had any interest or desire to resume a relationship with their father. The Tribunal finds that the applicant has no contact and has had no contact with is adult children for a long time and finds that this is not likely to change in the future. Therefore, whilst it must be acknowledged that the visa of the applicant remaining cancelled, and the prospect of his removal from Australia would diminish any future possibility of contact, the lack of contact for a long period leads the Tribunal to find that there is no basis to find that the applicant’s two adult children would be impacted more than a little if the applicant’s visa were to remain cancelled.
The Tribunal has considered the situation in regard to [child M]. The applicant claimed at hearing, and the Tribunal is prepared to accept, that the applicant saw [child M] with some level of frequency even after he separated from his ex-partner, and would take [child M] to the park. The information before the Tribunal, which the applicant agrees with, is that the applicant is not aware of [child M]’s current living arrangements, neither where [child M] lives or whom he lives with, but that it is likely that [child M] is in some form of child protection arrangement. The applicant says that he had contact with [child M] some months before his most recent incarceration and the Tribunal is prepared to accept this. The applicant also claims that he has attempted to find out where [child M] is living, through his ex-partner, and through writing a letter to DHS two weeks prior to the hearing to see if he could get in contact with his son. The Tribunal accepts that the applicant wishes to resume a relationship with his son and has taken some steps towards trying to determine where his son is and his current circumstances. The Tribunal understands that the applicant claims he wishes to work and find a place to live so that he can seek custody of his son and re-develop their relationship and act as a good father figure for his son. This is commendable. However, the Tribunal notes that there are considerable impediments. The Tribunal has not been provided with clear information about the current circumstances of [child M] nor what the likelihood would be of the applicant gaining custody of him in the future. Without this information, the Tribunal finds it can give only limited weight to this factor in considering the impact of the decision on [child M]. However, as below, the best interests of [child M] are clearly for the applicant to remain in Australia, where there is more potential for [child M] to be able to have some form of relationship with his father in the future. If the applicant’s visa remains cancelled and he faces the prospect of removal to Italy, this would remove or severely limit this possibility, and there is the potential in that case for there to be significant impact on [child M].
Turning to the strength nature and duration of any other ties that the non-citizen has to the Australian community, the Tribunal has considered what has been said in Siale v Minister for Immigration and Citizenship[20] - that this consideration directs attention to ‘… the impact on the non-citizen of the loss of any other ties to the Australian community.’[21] The Tribunal has considered the impact on the applicant of the potential loss to him of any other ties to the Australian community.
[20] Siale v Minister for Immigration and Citizenship [2025] FCA 608.
[21] Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [52].
The Tribunal accepts that the applicant has lived the majority of his adult life in Australia, whilst noting that he spent his childhood and formative years in Italy and returned to Italy after his arrival in Australia on four occasions, some of them lengthy. The applicant has relationships with other family members in Australia, including Maria Grazia Di Bartolo, the wife of his deceased brother, her two sons, and members of his mother’s family. The applicant has noted in particular, the relationship with his nephew [D], stating that he has tried to be a father to the boy. The applicant spoke about his ties to these members of his family with significant feeling, and the Tribunal accepts that the strength and nature of these ties, particularly to [D] is significant. The fact that the applicant has spent a very large part of his life in Australia, and his ties to members of his family, particularly [D], should be given significant weight.
The Tribunal concludes that the applicant’s ties to Australia is a factor that weighs strongly in favour of revocation.
8.4 Best interest of minor children
Paragraph 8.4 requires that the Tribunal determine whether non-revocation is or is not in the best interests of a child affected by the decision. Paragraph 8.4(2) and (3) specify that the child must be under 18 years old when the decision is made, and that if there are two or more such children, that each child should be given individual consideration.
Paragraph 8.4(4) specifies factors which must be considered if relevant.
In this case, the Tribunal has very limited information available to determine the best interests of the children claimed to be affected.
As has already been raised above, the applicant does not have current contact with [child M], his only non-adult child. According to the evidence of the applicant, he had a really good relationship with [child M], and they would go to the park to play. The applicant also states that he supported [child M] and his ex-partner to some extent financially. The applicant has said that [child M] was removed to Child Protection Services but he has not been able to explain when this happened or the circumstances. At the hearing, both he and his brother Mr Di Bartolo said that the applicant saw [child M] several weeks to several months before he was most recently incarcerated. At the hearing the applicant spoke about his wishes to have stable accommodation and employment so that he could seek to have custody of [child M]. He spoke also of wishing to be a positive role model for the boy.

Having regard to this information, the Tribunal has considered the nature and duration of the relationship between the applicant and [child M], which has in the past been a sporadic role, with some support and interaction and engagement with the child, over some significant period of the child’s life. The Tribunal has considered the extent to which the applicant is likely to play a positive parental role in the future, and finds that there is some possibility of this, but that the ability of the applicant to be the sole or main carer for [child M] appears untested and there is the potential, as discussed above, for the applicant to reoffend and be reincarcerated, rendering them unable to play a positive parental role. The Tribunal has considered the impact of the applicant’s prior conduct and any likely future conduct. There is no information directly before me about any impact of the applicant’s prior conduct on [child M]. As above, if the applicant were to reoffend, this would once again remove him from a potential to play a positive parental role in [child M]’s life. Having regard to the likely effect that any separation from the applicant would have on the child, taking into account the child's or applicant’s ability to maintain contact in other ways, the Tribunal notes that the applicant does not currently have contact with [child M] who has instead, it appears, been placed into child protection custody. However, the Tribunal has considered what it accepts of the past relationship of the applicant with [child M]. If the applicant’s visa remains cancelled and he is removed to Italy, there will be no or very little possibility for [child M] to develop a relationship or any meaningful contact with, or to know and understand his father. The Tribunal considers the removal of this possibility significant and likely to have a significant impact on [child M]. In relation to other persons who already fulfill a parental role, these is currently no information about this given [child M] appears to have been placed into child protection custody. There are no known views of [child M], and there is no information before the Tribunal in relation to any harm being perpetrated against [child M] nor any trauma from the applicant’s past conduct.
The Tribunal has considered the situation of [D], the applicant’s nephew. The applicant has not had contact with [D] since being incarcerated but stated that he had a good relationship with him previously, and that he had tried to step in as a form of father figure after the death of the applicant’s brother. The nature and duration of the relationship appears of some significance, and there is some potential for the applicant to play a positive role in [D]’s life going forward, and there is no information about any impact on [D] resulting from the applicant’s prior conduct. In relation to the likely effect separation from the applicant would have on the child, the Tribunal notes that there has not been contact since the applicant was incarcerated. However, the Tribunal accepts that the applicant played some part in [D]’s life prior to incarceration, and if the visa remains cancelled and the applicant is removed to Italy, there would be no or limited capacity for this to occur in the future, which is likely to have a significant effect on [D].
Having considered the best interests of [child M] and [D] individually, the two children under 18 who would be affected, the Tribunal considers that this factor weighs strongly in favour of revocation.
8.5 Expectations of the Australian community
Paragraphs 8.5(1) of Direction 110 provides that the Australian community expects non‑citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.
Paragraph 8.5(2) further provides that it may be appropriate not to revoke the mandatory cancellation of a visa of such a person because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa.
Paragraph 8.5(4) specifies that this consideration is about the expectations of the Australian community as a whole, and, in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case. The Tribunal understands that the expectations of the Australian community are to be determined by reference to Direction 110 itself, and not an independent assessment conducted by the Tribunal, and has had regard to caselaw which supports this approach.[22]
[22] Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791, at [17]; FYBR v Minister for Home Affairs [2019] FCAFC 185, [73]–[75] (Charlesworth J), [103]–[104] (Steward J).
Having regard to what was held in the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, and DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3, the Tribunal accepts that this consideration requires the Tribunal to proceed on the basis that the views of the Australian Government, as set out, are the relevant norm described as the expectations of the Australia community, and not to attempt to infer what the expectations of the Australian community would be in this particular case.
The respondent’s submission therefore rightfully identifies that the question for the Tribunal is therefore what weight to give these expectations.
I have had regard to the submissions of the respondent, that the seriousness of the offending and the lengthy term of imprisonment should be taken into account when considering what weight to give these expectations. The Tribunal also notes the only recent independent assessment of the applicant’s risk of reoffending rated that risk as medium and has also considered that the applicant has engaged in offending for over ten years prior to his imprisonment. The Tribunal also notes the findings above on family violence matters, which goes to paragraph 8.5(2)(a). The respondent contends that the Australian community would expect the applicant’s visa to remain cancelled, given the applicant’s extensive and serious criminal history.
The Tribunal has considered the principle expressed in 5.2(6) of the Direction; that is, that the Australian community may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. However, in this case the applicant arrived in Australia as an adult. He has spent the majority of his adult life in Australia, but, as the Tribunal notes, for many of these years he has been convicted of offences or imprisoned.
The Tribunal finds that the applicant has engaged in serious conduct in breach of the expectations of the Australian community as that is set out in the Direction. Having regard to the considerations and findings above, the Tribunal finds that the community expectations must weigh significantly against revocation.
Other considerations – section 9
Section 9 concerns ‘other’ considerations. There is a non-exhaustive list of three such considerations.
9.1 Legal consequences of the decision
Paragraph 9.1(1) of the Direction directs a decision-maker to take into account the following.
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, to be detained under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, if the visa remained cancelled, the applicant would have very limited ability to apply for a further visa. There is a strong likelihood that the applicant would be detained pursuant to s 189 until his removal from Australia to Italy could be facilitated.
The Tribunal does not have before it a current Italian passport for the applicant. If the applicant does not hold a current passport, he could be provided with a temporary laissez-passer by the Australian government to allow travel to Italy.
This would then mean that the period the applicant would spend in immigration detention until he was removed from Australia would be reasonably short.
The Tribunal finds that the applicant, if the visa remains cancelled, will be removed from Australia and may be detained for a reasonably short period before this in immigration detention. If the applicant were to challenge an adverse decision or seek a further visa, this may extend the period the applicant remains in immigration detention, but the period of detention will be time limited to the conclusion of those events and will not be indefinite.
The Tribunal accepts that the temporary detention of the applicant in immigration detention and removal from Australia will adversely affect the applicant. He wishes to remain in Australia and does not wish to be removed to Italy. The respondent submits that these are the ordinary legal consequences for a non-citizen in Australia whose visa has been cancelled. The Tribunal agrees with his submission and notes that the period of detention will be limited to the requirements of removal or any other visa or legal avenues the applicant chooses to pursue, and that removal is a consequence of the cancellation of a visa of a non-citizen. The Tribunal therefore accords this consideration neutral weight.
Paragraph 9.1(2) goes on to describe non-refoulement obligations, and paragraph 9.1(3) states that International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration, and the circumstances do not suggest a non-refoulement claim. Paragraphs 9.1.1 and 9.1.2 address the situation for applicants covered or not covered by a ‘protection finding’ as defined in s 197C, directed towards the situation where a protection claim has been made at some point.
However, the respondent submits that the applicant has not made any protection claims and none are apparent from the material. The applicant has not raised any protection claims in his submissions. On the material before it, the Tribunal finds that the applicant has not raised international non-refoulement obligations for consideration and the circumstances do not suggest a non-refoulement claim.
Taking all of the above into account, the Tribunal finds that this consideration is neutral.
9.2 Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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:
(i)the non-citizen’s age and health;
(ii)whether there are any substantial language or cultural barriers; and
(iii)any social, medical and/or economic support available to that non-citizen in that country.
In considering the first of these factors, the Tribunal notes that the applicant is 46 years old and, as submitted by the respondent, is in reasonably good health. The applicant has not raised any impediments related to his age or health. The Tribunal accepts that the applicant’s drug replacement therapy may be adversely affected by his removal, because the applicant will be unfamiliar with accessing rehabilitation services available to him in Italy. the Tribunal observes however that as a citizen of Italy, the applicant will have access to health and allied services available to Italian citizens. The applicant has not submitted, and the Tribunal does not accept, that the applicant will be unable to access drug replacement and drug rehabilitation services in Italy.
Turning to the second factor, the applicant spoke Italian during the hearing, lived in Italy until he was 18 and returned for several periods, some lengthy, after this. Whilst it is the case that the applicant has lived for the majority of his adult life in Australia, and that there may be some cultural barriers he may need to adjust to, the Tribunal does not accept on the material before it that these would be substantial, and notes that the applicant has not raised any substantial language or cultural barriers. The Tribunal does not accept there are any substantial language or cultural barriers on the material before it.
Turning to the third factor, the applicant and his brother, Mr Di Bartolo, in their statements and evidence at hearing have indicated that the applicant will face difficulties on return to Italy, that he will have no one to support him but his elderly mother and that he will not be able to gain employment.
The respondent submits that the applicant has the majority of his immediate family living in Italy, including parents and siblings. Further, that he has departed Australia on four occasions since his arrival in 1997, including nine months from 1997-98, eight months in 2001, and a month each time in 2008 and 2009. The applicant has been able to find employment in concreting, and has now undertaken additional courses and training.
The applicant has indicated that he has his father, mother, sister and two brothers living in Italy. He also did indicate at the hearing that he was not in regular contact with his siblings in Italy. The applicant conceded at the hearing that he had returned to Italy on the four occasions and that he has travelled outside Italy on several occasions with his then wife and their children. The applicant and Mr Di Bartolo claimed that the applicant would not be able to find employment and that one of the applicant’s brothers remains unemployed.
Having carefully considered the submissions, the Tribunal finds that the applicant will have the social and economic support of his parents and, to a lesser extent some of his siblings. The Tribunal notes that the applicant has indicated he is aware of the situation of his brother, which indicates some level of contact. The Tribunal is not convinced that the applicant will not be able to find employment, given he has worked in several fields in Australia and Italy, with experience working in concreting and construction in both countries. The Tribunal finds that the applicant will be able to live with his mother, as he has conceded, and be supported by her and others in his immediate family, until he finds employment.
The Tribunal has considered the situation for medical support for the applicant. This involves, on the information before the Tribunal, drug replacement therapy to address his drug dependence. The applicant has not claimed, and the Tribunal does not accept, that the Italian medical and allied health system, a developed world medical system, will not be able to provide him, as an Italian citizen, with an appropriate level of care for his drug dependence. The Tribunal finds that the applicant will be able to receive an appropriate level of care for his drug dependence.
The Tribunal has therefore considered the extent of any impediments that the applicant may face if removed from Australia to Italy. In establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), the Tribunal finds that the applicant will face only minimal impediments in doing so. The Tribunal therefore finds that this consideration should weigh in favour of revocation, but only a little.
9.3 Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non‑citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Whilst the Tribunal accepts that the applicant has previously worked as a concreter, in the security industry, and as a cleaner, he has received an offer from his brother to work in his brother’s business, to which the applicant has not raised any claims to be involved in work which would significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal finds therefore that this consideration is neutral.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the applicant’s visa: either the applicant must be found to pass the character test, or, if not, the Tribunal must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As the Tribunal has found previously in these reasons, the applicant does not pass the character test.
The consideration of the factors in Direction 110 is not a mathematical exercise, but rather is evaluative and it is for the Tribunal in this case to determine the relative weight to be given to each factor.[23] The nature of an evaluative exercise permits consideration of the context of facts which are relevant to the matters in paragraphs 8 and 9 of Direction 110. While primary considerations should generally be given greater weight than the other considerations, these other considerations are not necessarily “secondary considerations”, and particular circumstances of a case may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations.[24]
[23] Nguyen v Minister for Home Affairs 920190 270 FCR 555 at [33].
[24] Suleiman v Minister for Immigration [2018] FCA 594 at [23].
The Tribunal has found above that the offending was very serious and that the protection of the Australian community is a factor which weighs strongly against revocation of the visa. The Tribunal has found above that the applicant’s offending against his former partner, as family violence, weighs strongly against revocation. The Tribunal has found above that the applicant’s ties to Australia are a factor that weighs strongly in favour of revocation. The Tribunal has found that the best interests of the minor children associated with the applicant, his son [child M] and his nephew [D], weighs strongly in favour of revocation. The Tribunal has found that the nature of the applicant’s offending is such that the community expectations must weigh significantly against revocation.
The Tribunal has found that the extent of impediments, if removed, weighs only slightly against revocation and that the legal consequences of the decision and impact on Australian business are neutral. No other considerations outside those required to be considered under the Direction have been identified nor are apparent on the material.
The Tribunal has considered the decision of the Full Court of the Federal Court concerning the operation of Direction No. 90 in CRNL v Minister for Immigration Citizenship and Multicultural Affairs.[25] The Court found that the Tribunal must weigh and balance the various primary and other relevant considerations outlined in the Direction (in this case, Direction 110) against each other, but to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task. See CRNL at [35]:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[25] [2023] FCAFC 138.

Applying the principles in CRNL, the Tribunal has decided to give great weight to the primary consideration of protection of the Australian community and the offending constituting family violence. These factors, as well as the expectations of the Australian community weigh against revocation. Despite the significance of the best interests of the Children here, his ties to the Australian community and other considerations weighing in favour of revocation, they do not displace these primary factors.
DECISION
The Tribunal affirms the decision under review.

116. I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the written reasons for the decision herein of Senior Member S. Baker

................[sgd]........................................................
Associate
Dated: 18 June 2025

Date(s) of hearing: 3 & 10 June 2025

Applicant: Self-Represented

Solicitors for the Respondent: Mr Matthew Daly

Date(s) of hearing:	3 & 10 June 2025
Applicant:	Self-Represented
Solicitors for the Respondent:	Mr Matthew Daly