Dalzell and Minister for Immigration and Multicultural Affairs - [2024] ARTA 17

Applicant/s:  Brian David Dalzell
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8105

Tribunal:General Member Gallagher
Place:Perth
Date:31 December 2024

Decision:The Reviewable Decision, being the decision of the Delegate dated 9 October 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.

...............................................[SGD].........................
General Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 62 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 5, 15, 32(2)(a)(ii), 189, 196, 197C, 198, 499(1), 499(2A), 500(1)(b), 500(6B), 501, 501E, 501F, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 503, 5001
CASES
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Lal and Minister for Immigration and Multicultural Affairs [2024] AATA 3504
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
FYBR v Minister for Home Affairs [2019] FCAFC 185
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Siu Kuk Tam and Minister for Immigration and Multicultural Affairs (Decision) (Administrative Review Tribunal, File No 2024/7124, 10 December 2024).
Cowgill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 729
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCA 1273
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Minister for Home Affairs v HSKJ [2018] FCAFC 217
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 5.1, 5.1(3), 5.1(4), 5.1, 5.2, 5.2(2), 5.2(3), 5.2(4), 7, 7.2, 7(3), 8.1, 8.1(1), 8.1(2), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(i), 8.1.1(1)(ii), 8.1.1(1)(b)(iii), 8.1.1(b)(iv), 8.1.1(1)(c), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(2), 8.4, 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9.1, 9.2, 9.2(b), 9.2(c), 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Delegate) dated 9 October 2024, not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (subclass 444) visa (the visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) (the Reviewable Decision).[1]
[1] R3, G2 and G3.
The application for review was lodged with the Administrative Review Tribunal (the Tribunal) on 14 October 2024,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(b) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.
[2] R3, G1.
BACKGROUND
The Applicant is a 62-year old citizen of New Zealand. The Applicant first arrived in Australia on 23 September 1982,[3] at the age of 19.
[3] R3, G5, Attachment O.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, run on 3 March 2023,[4] a Conviction History Report by New Zealand Police run on 5 July 2023[5] and a History for Court Report by the Western Australian Police Force compiled on 7 November 2024.[6]
[4] R3, G5, Attachment A.
[5] R3, G5, Attachment B1.
[6] R4, TB3, page 163.
The Applicant’s offending history is compiled in Annexure A.
The Applicant’s offending commenced in 1981[7] and continued until 2022. Briefly, the Applicant has committed:
(a)26 driving offences and infringements;
(b)three offences involving stealing and property damage; and
(c)one drug offence.
[7] The Applicant was convicted of two offences in New Zealand in 1981 (R3, G5, Attachment B1) and commenced offending in Australia in 1984 (R3, G5, Attachment A).
Between May 1981 and April 1993, the Applicant was convicted of 16 offences including obtaining credit by fraud, larceny, traffic offences, driving uninsured and unregistered, drug offending and high range drink driving.[8]
[8] R3, G5, Attachments A and B. See also Annexure A.
Notably, on 8 November 2022, the Applicant was convicted in the Perth District Court of two counts of dangerous driving occasioning GBH – Alcohol, sentenced to a total of four years’ imprisonment (cumulative) and disqualified from driving for four years.[9] The facts of these offences were summarised by the sentencing judge as follows:[10]
[9] R2, G5, Attachment A, p 30 and Attachment C. The Applicant was sentenced to a three year term of imprisonment for the first count and 12 months for the second count.
[10] R3, G5, Attachment C, pages 38 and 39.
In summary, at approximately 9.15pm on 1 August last year you were driving your [vehicle] in a southerly direction on [the road] in [suburb] which has a speed limit of 80 kilometres per hour.
The victim of count 2, [name], was in the front passenger seat of your vehicle. You had consumed a significant quantity of alcohol prior to driving your vehicle. You were travelling at approximately 88 kilometres per hour when you approached a section of roadworks on [the road].
That section of road ordinarily has two lanes of south-bound traffic. However, due to the roadworks the lane closes to the median strip was closed. The closed lane was clearly marked with a series of orange traffic cones and lit-up signs on either side of the road which stated roadworks ahead.
There were also signs posted on either side of the road at the start of the roadworks reducing the speed limit from 80 kilometres per hour to 60 kilometres per hour. The road at the time was dry, traffic was light and the road was also well lit by street lights on either side of the road.
The victim of count 1, [name], was working as the supervisor of the roadworks and he was standing in the closed-off lane. He was wearing high visibility clothing. You approached the roadworks and drove through the orange traffic cones and into the closed-off lane without reducing your speed.
[Victim of count 1] was facing south, the same direction that you were travelling, when he was hit by your vehicle from behind. You were travelling at approximately 88 kilometres per hour at the time you impacted him.
He suffered extensive injuries. He was conveyed by ambulance to Royal Perth Hospital. You didn’t slow or stop your vehicle after you hit [the victim of count 1]. Rather, you continued driving in the closed lane for approximately 200 metres until you drove directly into a street sweeper which was operating at the time.
You were travelling at approximately 76 kilometres per hour at the time of that impact. The collision caused damage to both the street sweeper and to your own vehicle. Both yourself and the victim of count 2 had to be extracted from the vehicle by officers from the Department of Fire and Emergency Services.
The victim of count 2 suffered serious injuries in the collision and he was also conveyed by ambulance to [hospital]. As a result of the first collision, so in relation to count 1, [the victim] suffered the following injuries, an open book pelvic fracture, a fractured left fibula head and tibial plateau, a right pneumothorax, cardiac contusion, a right mesenteric injury, six fractured ribs, a subgaleal haematoma and a left pleural fusion.
Without medical treatment the injuries were likely to endanger his life due to the risk of death from blood loss, respiratory failure, heart failure and/or sepsis. After the initial medical treatment [the victim of count 1] underwent multiple additional surgeries to treat his injuries over a number of months.
In relation to the victim of count 2 he suffered the following injuries, a bladder perforation, concussion and abrasions. Without medical treatment the bladder perforation was likely to endanger his life due to the risk of death from sepsis.
You were also conveyed from the scene to Royal Perth Hospital for treatment in relation to injuries you also sustained in the collision. Police attended the hospital and they obtained a sample of your blood for analysis which revealed that your blood alcohol content was 0.153 grams of alcohol per 100 mils of blood.
On 9 November 2022, the Applicant was convicted of one count of drove under the influence of Alcohol, fined $1700 and disqualified from driving for a further 10 months.[11]
[11] R2, G5, Attachment A, page 30 and Attachment C.
Present proceedings
On 17 April 2018, being the Applicant’s most recent arrival to Australia, the Applicant was granted the visa.[12]
[12] R3, G5, Attachment O.
On 19 June 2023, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory[13] (the Cancellation Decision). The Applicant was notified by letter of the same date, which he received by hand delivery to Karnet Prison Farm.[14]
[13] R3, G5, Attachment E.
[14] R3, G5, Attachment E, page 57.
On 26 June 2023,[15] the Applicant made a request for revocation of the Cancellation Decision and made representations to the Delegate in support of his request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[16]
[15] Received 3 July 2023 (R3, G5, Attachment F, p 58).
[16] R3, G5, Attachment F.
On 9 October 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[17] The Applicant was notified of the Reviewable Decision on the same day.[18]
[17] See [1] above.
[18] R3, G8(a) and G9(a).
On 14 October 2024, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[19]
[19] R3, G1.
On 6 November 2024, the Applicant was released on parole.[20]
[20] A2, [17].
The Applicant is currently detained at Yongah Hill Immigration Detention Centre.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[21]
LEGISLATIVE FRAMEWORK
[21] See s 501CA(4) of the Migration Act.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(a)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[22] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[22] Section 501CA(3) of the Migration Act.
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[23]
[23] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, p 136 at [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 17 December 2024 at the Tribunal’s Perth Registry. The Applicant was represented by Mr Hamish Glenister, of William Gerard Legal. The Respondent was represented by Mr Ashley Burgess of the Australian Government Solicitor. All parties appeared in person.
At the hearing, the Applicant gave evidence and was cross-examined. No other witnesses were called.
The Tribunal admitted the following documents into evidence:
(a)Letter from Applicant dated 10 October 2024 and filed 17 October 2024 (Exhibit A1);
(b)Applicant’s Statement of Facts, Issues and Contentions dated and filed 15 November 2024 (Exhibit A2);
(c)Applicant’s Parole Plan dated 12 August 2024 and filed 15 November 2024 (Exhibit A3);
(d)Letter from Karnet Prison Farm dated 13 August 2024 and filed 10 December 2024 (Exhibit A4);
(e)ASETS transcript of the Applicant dated 15 August 2024 and filed 10 December 2024 (Exhibit A5);
(f)Applicant’s Parole Order dated 10 October 2024 and filed 10 December 2024 (Exhibit A6);
(g)Respondent’s Statement of Facts, Issues and Contentions dated and filed 2 December 2024 (Exhibit R1);
(h)Chronology of Applicant’s offending filed 2 December 2024 (Exhibit R2);
(i)Respondent’s Section 501G Documents, comprising 145 pages, filed 2 December 2024 (Exhibit R3);
(j)Respondent’s Tender Bundle, comprising 249 pages, filed 2 December 2024 (Exhibit R4).
The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts.[24] At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110), in their oral closing submissions.
[24] See A4 and R3, G5, Attachments H, J, K, L, M and N.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[25] Failure to pass the character test arises as a matter of law.[26]
[25] Migration Act, s 501(7)(c).
[26] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
As noted above, on 8 November 2022, the Applicant was convicted of two counts of dangerous driving occasioning GBH – Alcohol and sentenced to a total of four years’ imprisonment.[27]
[27] See [7] above.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.[28]
[28] The parties accept this is the case.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[29]
[29] See Migration Act s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction no.110, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[30]
[30] s 501CA(4)(b)(ii) of the Migration Act.
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of section 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to section 499(1) of the Migration Act.[31]
[31] See [38] to [44] below.
Direction no. 110
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[32] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[32] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].

On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction no. 99.[33]
[33] Direction no. 110, paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of the Migration Act.[34] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction
[34] Direction no. 110, para 5.1(4).
[35] Direction no. 110 at [6].
no. 110 where relevant to the decision.[35]
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia 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.
6With 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.
7Decision-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.
8The 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.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[36]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[36] Direction no. 110 at [8].
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[37]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed; and
(c)       impact on Australian business interests.
[37] Direction no. 110 at [9].
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The 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.
3One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In his application for review, the Applicant claimed that the Reviewable Decision is wrong because ‘[t]he correct or preferable decision was to revoke the mandatory cancellation of [the Applicant’s] visa.’[38]
[38] R3, G1, page 9.
The Applicant’s rationale for his position is that while the protection of the Australian community and the expectations of the Australian community considerations weight against revocation of the Cancellation Decision, they are outweighed by the countervailing considerations weighing determinatively, significantly or strongly in favour or revocation being:
(a)Primarily, the strength, nature and duration of the Applicant’s ties to Australia consideration; additionally,
(b)The legal consequences of the decision consideration; and
(c)The extent of impediments if removed consideration.^[39]
[39] A2 [6], [43] and [46].
The Respondent, however, contended that there is not ‘another reason’ why the Cancellation Decision should be revoked because:
(a)the protection of the Australian community and expectations of the Australian community considerations weigh significantly against revocation;
(b)the considerations weighing in favour of revocation, being the strength, nature and duration of the Applicant’s ties to Australia and the extent of impediments if removed, ought to be afforded moderate and minor weight, respectively; and
(c)the legal consequences if removed consideration should be afforded neutral weight.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community.
Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to 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.[40]
[40] See also Direction no. 110, para 8(1).
Paragraph 8.1(2) of Direction no. 110 then provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The parties agree that the protection of the Australian community consideration weighs against revocation of the Cancellation Decision. However, while the Respondent contended this consideration should be afforded significant weight, the Applicant contended that given the Applicant’s very low risk of reoffending, it ought to attract only limited weight.[41]
[41] A2, [29].
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[42] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[43]
[42] For completeness, the Tribunal notes there is no ‘other conduct’ to date that falls for consideration in this matter.
[43] Direction no. 110, para 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction no. 110 provides:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As to the circumstances of the Applicant’s offending for which he was convicted on 8 November 2022, the Applicant gave evidence that on 1 August 2021, he had been at a work colleague’s barbeque where he had had a few drinks. The Applicant said that around this time, he had been feeling lonely as his partner had been unable to return to NSW where she had been staying with her mother following her father having passed away. The Applicant said that people present had begun arguing so he decided to leave. The Applicant said that is when he made the “stupid decision” to drive and that he should have put more thought into the situation and the potential consequences of driving a motor vehicle.
The Applicant said that since this time he has made changes through the courses he has completed, including Solid Ground, Palmerston and Holyoake, which made him realise where he went wrong and how damaging alcohol can be. The Applicant said if faced with the same situation again, he would have not driven and called a taxi or Uber.
The Applicant said he hasn’t had a drink since the accident in 2021[44] and has attended Alcoholics Anonymous in prison. The Applicant said that if he remains in Australia, he will continue to go to Alcoholics Anonymous and use whatever tools are available to him in the community and attend a GP for his mental health.
[44] See also A3.
The Applicant said that he worked for himself during the 15 months that he was on bail and that he had learned strategies to maintain abstinence from alcohol (as that is where his problems stem from), including surrounding himself with pro-social friends and more family time.
The Applicant said that if he were released, he would gain employment straight away, start his own business, marry his partner and spend quality time with his family, including his grandchild (once born).
During cross-examination, the Applicant said that during the 15 months he was on bail, he did not participate in rehabilitation, rather, that is when he undertook voluntary counselling at Palmerston.[45]
[45] See also A3.
As to the comment by the Applicant’s Counsel in 2022, that:[46]
…[O]n Christmas Day last year he had a couple of drinks at Christmas lunch and that was it. He hasn’t drunk since.
The Applicant said that these drinks were two “Heineken Zero” beers, which although 0% alcohol, he classed them as beer and considers to be a relapse because he had wanted to have a (alcoholic) beer at that time.
[46] R4, TB2, page 139.
When taken to his record of two previous counts of dangerous driving, previous licence disqualifications, driving uninsured, unregistered and with a high PCA and later with a high BAL, and of regular speeding in the 2000s, the Applicant accepts this occurred and would have known the potential consequences of drink driving when he did so in August 2021.
As to the Applicant having been found with cannabis in his system when he crashed, the Applicant said it had only been a minute amount as his cannabis use was not a regular occurrence given he worked in the mines and was regularly (drug) tested. The Applicant said on this occasion he had “one puff” when out fishing and the cannabis had stayed in his system.
In relation to the nature and seriousness of the Applicant’s conduct:
the Applicant conceded he has been convicted of serious offences and that his conduct will be viewed by the Tribunal as serious,[47] particularly given the sentence that was imposed.[48]
(b)the Respondent submitted that the Applicant’s criminal history should be regarded as very serious and weighing heavily against revocation, noting he has been convicted of multiple offences over many years while in Australia, involving serious and repeated driving offences as well as driving offences, property damage and theft.[49]
[47] A2 [19].
[48] A2 [12], referring to Direction no. 110, para 8.1.1(1)(c).
[49] R1 [25] and [40]. The Tribunal has considered the Respondent’s detailed additional submissions in this regard (see R1 [26] and [40]). Given the parties general consensus that the Applicant’s offending is, at the least, to be regarded as ‘serious,’ it is unnecessary to reproduce these submissions in detail in this decision.
The Tribunal has considered the parties submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.
The Tribunal notes the facts and circumstances of the Applicant’s offending on 1 August 2021 and the convictions imposed. The Tribunal also notes the Applicant has been sentenced to a term of imprisonment of four and the related sentencing remarks.
In relation to para 8.1.1(1)(a) of Direction no. 110, the Tribunal finds that the Applicant’s offending is very serious. The Tribunal acknowledges that some of the conduct it regards as very serious does not fall squarely within the conduct referred to in para 8.1.1 of Direction no. 110. It is not strictly required to.
Indeed, para 8.1.1(1)(a) of Direction no. 110 makes clear that the range of conduct that may be considered ‘very serious,’ is not limited to the types of crimes or conduct expressly referred to in that paragraph.[50]
[50] Direction no. 110, para 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious,’ using the same prefix ‘without limiting the range of conduct that may be considered serious…’
Namely, the Tribunal has repeatedly had regard to the fact that the Applicant’s history of driving and traffic offences are serious crimes against other road users[51] that place the lives of other road users at risk. These offences include:[52]
dangerous driving occasioning GBH – Alcohol;
(b)driving with excess blood alcohol;
(c)driving under the influence of alcohol;
(d)driving uninsured;
(e)driving unregistered; and
(f)speeding by more than 20km/hr but less than 30km/hr.
[51] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51] to [54] and Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32 at [50] and [51], referring within to Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43] to [45].
[52] R3, G5, Attachment A.
The Applicant’s offending involved conduct for which he was ultimately sentenced to four years imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[53] and is, in the Tribunal’s view, probative of the overall seriousness of that offending conduct.[54]
[53] Direction no. 110, para 8.1.1(1)(b)(iii).
[54] Direction no. 110, para 8.1.1(1)(c). See also sentencing remarks at R3, Attachment C, pages 41 to 47.
In considering para 8.1.1(1)(b) of Direction no. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage,[55] whether the crimes were committed against vulnerable members of the community or government representatives or officials[56] and any crime committed while in immigration detention.[57] None of the Applicant’s offending or other conduct falls within these categories, nor have the parties made claims in this regard.
[55] Direction no. 110, para 8.1.1(1)(b)(i).
[56] Direction no. 110, para 8.1.1(1)(b)(ii).
[57] Direction no. 110, para 8.1.1(1)(b)(iv).

As to para 8.1.1(d) of Direction no. 110, the Tribunal has taken into account the available information as it relates to the Applicant’s offending on 1 August 2021. The injuries sustained by the victims of count 1 and count 2 of the offending are set out above.[58] The impact of the offending on the two victims (of counts 1 and 2, respectively) was summarised by the sentencing judge as follows:[59]
The seriousness of count 1 is clearly very much reflected by the severe injuries sustained by the victim which have no doubt had an ongoing adverse impact on him not just physically but psychologically. Indeed, in his witness statement provided to police dated 1 September 2021 he notes that as a result of the injuries sustained due to your offending he has had to learn to walk again. In my view he is very fortunate as are you that he didn’t receive fatal injuries that night.
The seriousness of count 2 is also reflected by the injuries sustained by that victim albeit they are less serious than those suffered by the victim of count 1. Nevertheless, they’re not inconsequential and again that victim is extremely fortunate as are you that he didn’t suffer more serious debilitating injuries.
…
The victim of count 2 also wrote a letter of support to the court in which he expresses his own accountability for deciding to be a passenger in your vehicle on the relevant night in question. He also informs the court that the injuries he sustained have now fully healed and he has returned to work and he holds no animosity towards you in respect of that offence which he describes as being out of character for the person that he knows.
He also acknowledges the remorse you’ve expressed to him and he informs the court that you continue to be friends and he continues to support you.
[58] See [8] above.
[59] R3, G5, Attachment C, pages 40, 41 and 44.
The Applicant’s offending has been frequent in the Tribunal’s view, particularly between:
1984 and 2000 (15 offences and/or infringements); and
(b)2010 and 2021 (12 offences and/or infringements),
and marked with a trend of increasing seriousness culminating in his offending that attracted a four-year term of imprisonment because the nature of the offending was so serious that no other sentence in the circumstances would be justified.[60]
[60] Direction no. 110 para 8.1.1(1)(e).
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent the Applicant committed a considerable number of offences and in the since that the Applicant’s offending have required significant resources from the courts, the hospital system, the police and emergency and corrective services) is a significant feature.[61]
[61] Direction no. 110 para 8.1.1(1)(f).
For completeness, the Tribunal notes that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(g), 8.1.1(1)(h) or 8.1.1(1)(i) of Direction no. 110.
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has a substantial criminal record, which has escalated over time as evidenced by the terms of imprisonment ordered and the total effective sentence imposed.
Therefore, having regard to the evidence which paras 8.1.1 of Direction no. 110 are relevant and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[62]
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[62] See also Direction no. 110, para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[63] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[64]
[63] Direction no. 110, para 8.1.2(2)(a).
[64] Direction no. 110, para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[65]
Nature of the harm
[65] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[66]
[66] Direction no. 110, para 8.1.2(2)(a).
The Applicant submitted that if he were to reoffend, it would likely be by committing an offence involving drinking and driving, which he accepts is a type of offending that can cause significant harm.[67] The Applicant also contended, however that:[68]
(a)It is uncommon that this type of offending actually results in significant harm, such that there ought to be some tolerance of the risk that the Applicant will reoffend in this manner; and
(b)He would not cause so much harm should he reoffend that any assessed risk of him doing so should result in this consideration being given determinative weight against revocation.
[67] A2, [20] and [21]. The Respondent agrees (R1 [44]).
[68] A2, [21] and [22].
Essentially, the Applicant is asking the Tribunal to accept the proposition that while he accepts that the nature of the harm that would be caused should he reoffend could be very serious, that outcome is extremely unlikely given the very low likelihood that he would reoffend[69] (risk of reoffending being addressed further low).
[69] A2, [29]/.
In relation to the nature of the harm to individuals or the Australian community should the Applicant reoffend, the Respondent contended that:[70]
(a)The Applicant's offences are very serious, and any likelihood that they may be repeated is unacceptable.
(b)The potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and psychological harm to members of the Australian community. This conduct need not strictly fall within the three descriptors appearing at subparagraphs at 8.1.1(1)(a)(i),(ii) or (iii) of Direction no. 110 to be considered very serious.[71]
(c)Should the Applicant engage in further criminal or other serious conduct, it may cause significant physical and/or mental harm to a victim and other persons using the roads. Given the possible degree of harm, including significant physical harm, the Australian community has low tolerance for any risk of harm of such a serious nature eventuating.
(d)If the Applicant reoffended in the same manner, it is likely that it would result in significant harm to members of the community, including grievous bodily harm or death, which is so serious that any risk that it may be repeated is unacceptable.
[70] R1, [43] to [46].
[71] Citing Lal and Minister for Immigration and Multicultural Affairs [2024] AATA 3504 at [27] and [29].
At the hearing, the Respondent added that driving with a high level of BAL or otherwise under the influence of alcohol, is very likely to cause harm to the community and that harm would include GBH. The Respondent added that it is not the case in the past that the Applicant had “one beer too many.” Rather, it was the case that the Applicant was severely impaired by alcohol consumption when he got behind the wheel and drove.
In the Tribunal’s view, should the Applicant commit further similar offences, in particular offences involving drinking and driving, speeding and dangerous driving and drug-related offences,[72] this would clearly result in further very serious harm that may cause considerable and widespread physical, psychological, emotional and economic harm to members of the Australian community.
Likelihood of the non-citizen engaging in further criminal or serious conduct
[72] See, for example, Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]-[54].
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[73]
[73] Direction no. 110, para 8.1.2(2)(b).
The Applicant gave evidence that the Tribunal should have confidence that he will not reoffend because he was identified as a low risk prisoner,[74] was in minimum security at prison, the courses he completed in prison have changed him and the mistakes he has made have been quite detrimental on him and his family.
[74] See A6.
The Tribunal has considered the Applicant’s detailed submissions in support of his position that there is, at most, a very low likelihood[75] that he will reoffend in a serious manner[76] Briefly, they are:
(a)The Applicant has not committed an offence for about three years, including a period of over one year spent in the community.
(b)In relation to his most recent offending, the Applicant has engaged in appropriate rehabilitation and demonstrated remorse and insight into his offending, as noted by the sentencing judge.[77]
(c)The Applicant’s convictions in recent times relate to a single incident.
(d)The Applicant has abstained from alcohol since his offending on 1 August 2021.[78]
(e)The Applicant is well regarded with his trade and community, has family support and has employment available to him upon release.[79]
(f)Imprisonment and now the prospect of permanent removal from Australia and from his family deters the Applicant from further offending and the Applicant is aware of the consequences of doing so.
(g)His contribution to Alcoholics Anonymous has been positive, he was a model prisoner, assessed as low risk and was subject to minimum security. His low risk assessment in custody meant he was not required to engage in rehabilitation programmes, but he did so voluntarily, along with some education programmes.[80]
(h)The Applicant will be subject to his parole conditions until 7 November 2026[81] and remains disqualified from driving until 4 years and 10 months post his parole release dated of 6 November 2024.
[75] Described as an ‘immaterial risk’ at hearing.
[76] A2, [22] to [29].
[77] See R3, Attachment C, page 44.
[78] There was some conjecture at hearing as to whether the Tribunal ought to accept the Applicant’s evidence that his counsel’s reference to his having relapsed by drinking two beers at a Christmas lunch was to him having declared to have drunk two beers which were in fact zero alcohol Heineken beers. In any event, the Tribunal accepts that whether or not the two beverages consumed were alcoholic or not, the Applicant’s evidence is that he is aware that one of his parole conditions is not to consume alcohol (A6) and his rehabilitation is centred around ensuring that he does not do so (A2 [24]). See also Respondent’s submission at [90].
[79] See related letters of support (R3, G5 Attachments H and J to N).
[80] See A5.
[81] A6.
At the hearing, the Applicant submitted that his parole plan[82] is a thoughtful, comprehensive and well thought out document and the Tribunal should trust that he will carry out that plan. The Applicant added that his convictions other than his conviction dated 8 November 2022 are dated, and while the offences to which they relate is not trivial, they were committed by a much younger man and have not been repeated for a least two decades. The Applicant also further emphasised that the Applicant’s rehabilitation has addressed his poor decision making and the skills learned from these courses fortified his position regarding his low risk of offending.
[82] A3.
The Respondent contended that the Applicant’s offences are very serious and any likelihood that they may be repeated is unacceptable, having regard to the following (again, briefly):[83]
(a)The delegate’s acceptance of the Applicant’s genuine remorse and the rehabilitative measures undertaken weigh in the Applicant’s favour and reduce the Applicant’s risk of recidivism.
(b)The facts of the Applicant’s low risk assessment, that he remains on parole until 7 November 2026 and that his licence continues to be disqualified should offer little comfort to the Tribunal that these conditions will reduce his risk of reoffending in circumstances where he has previously been convicted of drink driving whilst unlicenced.
(c)The effect of the majority of the Applicant’s rehabilitation[84] is yet to be tested in the community. At hearing, the Respondent added that the Applicant’s parole condition are in force until November 2026 and the Tribunal needs to look beyond this time as the protection of the Australian community consideration is concerned with protection the community for the entire time the Applicant would remain in Australia.
(d)The Applicant’s likelihood of reoffending depends, in part[85] on his ability to abstain from alcohol. The Applicant’s ability to do so, is questionable in time where he may experiences substantial life stresses, which may lead to further offending
(e)Despite the evidence of his rehabilitation, the Applicant’s 40 year history of offending means that he remains an unacceptable risk of reoffending if the Cancellation Decision is revoked.
(f)The Applicant poses a real risk of offending should he be released back into the community and the presence of any risk should be unacceptable given the potential for serious harm if the Applicant were to reoffend.
[83] R1, [47] to [53].
[84] As summarised in the Applicant’s parole plan (A3 p 2 and pp 4 to 7).
[85] The Applicant’s offending also includes property and theft related offending, drug offending, speeding and dangerous driving.
At the hearing, the Respondent added that when reviewing the Applicant’s offending history, previous punishment, including disqualification from driving did not prevent him from further drink driving.
The Respondent also submitted that the Applicant’s evidence that he made the mistake of indicating that he had consumed two beers but had forgot to also state that they were non-alcoholic beverages cannot be accepted. The Respondent also further emphasised that if the Applicant were to offend again on the basis of poor decision making, the harm caused would be real, not remote and unacceptable.
The Applicant is asking the Tribunal to accept his claims of rehabilitation and that he won’t reoffend given his claims of remorse, completion of rehabilitation courses, his abstinence from drinking, his commitment to his parole plan and to abiding his parole conditions, his awareness of the potential consequences of future offending and his desire to be reunited with his family and spend time with his grandchild due to be born shortly.[86]
[86] A2, page 5.
As there is no expert report regarding the risk of the Applicant reoffending for the Tribunal to consider, the Tribunal is tasked with considering risk based on the lay evidence available to it.
The Tribunal has considered the available evidence and the parties submissions and make the following comments and findings:
(a)Given the significant risk of harm from driving offending and in particular, driving under the influence of alcohol, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community in general. This is particularly the case in circumstances where there is some uncertainty regarding whether the Applicant has completely abstained from alcohol since his offending in 2021 and where this abstinence has been untested in the community in more recent times.
(b)The Tribunal accepts the Applicant is genuinely remorseful for his offending conduct, that his desire to be reunited with his family and participate in family life in the future, including being a present grandparent in due course, serves as a deterrent to some extent.
(c)The Applicant appears to have accepted he had a continued need for alcohol use rehabilitation and has taken voluntary steps to undergo counselling, courses and attend Alcoholics Anonymous.[87] While the Tribunal accepts he would continue to participate in rehabilitation if released and would abide by his parole conditions, the Tribunal is without an expert opinion regarding the likelihood of the Applicant refraining from these behaviours in the future, and in particular when he parole conditions cease to apply, when undoubtedly he will face stressful situations should he return to the community.
[87] See summary at A3, page 2 and pages 4 to 7.
In light of the above, the Tribunal is of the opinion there is a real risk that the Applicant will reoffend in a similar manner and that the presence of any such risk is unacceptable.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community weighs heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence. Accordingly, the Tribunal considers that this consideration is not relevant to the Applicant’s case and weighs neutral.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
1Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Applicant submitted that the strength, nature and duration of the Applicant’s ties to Australia weighs heavily in favour of revocation,[88] referring to the following matters in support of his position:[89]
He has resided in Australia for over 42 years and has contributed positively to the community through his work as an auto-electrician and volunteering at local sporting clubs for the vast majority of that time.[90]
(b)He has been in a de facto relationship with his partner for over 36 years. They have built a house, family and a life together, have two adult sons together, are a tight knit and supportive family expecting their first grandchild.
(c)The Applicant also has a sister, a niece, nephews and in-laws in Australia and supportive friends willing to assist with his reintegration if released.[91]
(d)His strong ties to Australia are of substantial duration and his family will be devastated and permanently torn apart if he is required to leave Australia.
[88] A2, [30]
[89] A2, [31] to [34].
[90] See R3, G5, Attachments F and G.
[91] See R3, G5, Attachments J to N.
At hearing, the Applicant gave evidence that one of his sons moved to Cairns 8 years ago and while the Applicant has not visited him there, his son would visit on his trips between cairns and Barrow Island (where he works). The Applicant said that in addition to his close family times, has also has a few close friends, he has now been in Australia for longer than he has been in New Zealand and he has adjusted to the Australian climate and way of life.
The Applicant also added by way of further submission that the offences he committed shortly after arriving in Australia were not of “any huge seriousness.”[92]
[92] Referring to Direction no. 110, para 8.3(2)(a)(i)
The Respondent made the following observations and submissions regarding the strength, nature and duration of ties consideration:[93]
[93] R1, [57] to [63].
The Applicant settled in Australia in 1982, when he was 19 years of age. He has resided in the Australian community for 42 years and has employment history as an auto-electrician.
(b)The Applicant has been in a de facto relationship for over 36 years. He has two sons together with his partner. The Applicant also has a sister in Perth as well as other family and social ties.
(c)The Applicant is expecting his first grandchild in December 2024.[94]
[94] As the Tribunal has not been advised that the grandchild has been born at the time of its decision, the Applicant’s expected grandchild will be considered in the context of this consideration and not in the context of the best interests of minor children consideration.
(d)The Applicant has continuously offended throughout his adult life, with offences dating back to 1982, when he was 19 years of age and first arrived in Australia.[95]
[95] Referring to Direction no. 110, para 8.3(2)(a)(i).
(e)There were the following gaps (of longer than 1 year) in the Applicant’s offending during which time the Applicant appears to have been contributing positively to the Australian community through his work, family and volunteering at local sporting clubs:[96]
[96] Referring to Direction no. 110, para 8.3(2)(a)(ii)
(i)1 and a half years between September 1982 and February 1984;
(ii)2 years between May 1986 and August 1988;
(iii)3 and a half years between November 1989 and April 1993;
(iv)7 years between April 1993 and August 2000;
(v)10 years between August 2000 and September 2010;
(vi)1 year, 9 months between July 2012 and April 2014;
(vii)1 and a half years between October 2015 and April 2017; and
(viii)2 years between June 2019 and August 2021.
(f)Therefore, the strength, nature and duration of the applicant’s ties to Australia consideration Respondent should weigh moderately in favour of revocation because while the Applicant has strong ties and the impact of the decision on his family members, he started to offend soon after arriving in Australia and has continuously offended throughout his adult life.
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal is required to consider any impact of the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to remain in Australia.[97] The Tribunal is also required to consider the strength, nature and duration or any other ties that the Applicant has to the community.[98]
[97] Direction no. 110, para 8.3(1).
[98] Direction no. 110, para 8.3(2).
The Applicant has presented evidence regarding his family and social ties to Australia and the importance of him being present in Australia to care for his family members and to participate as a grandfather to his grandchild (once born). The Tribunal has had regard to a number of matters pertinent to this evidence being:
The Applicant arrived in Australia in 1981 at 19 years of age.
(b)The Applicant has essentially spent his adult life and employment in Australia.
(c)The Applicant began offending in Australia in 1984, within two years of his arrival.
(d)In the years that followed, the Applicant had periods where he offended continuously and periods where he did not offend at all,[99] his most recent offence being the most serious and culminating in his term of imprisonment.
(e)In the years the Applicant has lived in Australia, he has been employed as an auto-electrician and hence has made positive contributions to the community through this employment and volunteering at local sporting clubs.
(f)However, the Applicant’s offending conduct has necessitated significant resources and expenditure in law enforcement, including police and the justice system more broadly.
(g)While the Applicant has claimed family and social links in Australia and has provided letters of support in that regard,[100] no witnesses were called to attest to these relationships or the impact those persons would experience if the Applicant were removed from Australia. That being said, the fact that the Applicant has been with his de facto partner for over 36 years and she has continued to support him throughout his offending, imprisonment and detention does, in the Tribunal’s view, evidence the strength of their relationship.
[99] See R2 and [103(e)] above.
[100] See R2, G5, Attachments J to N.
Having considered the available evidence and the parties submissions, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia consideration weighs heavily in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
The Applicant does not, at the time of the Tribunal decision, have any minor children[101] and has not raised this consideration as a relevant factor.
[101] The Tribunal understands that the Applicant was expecting his first grandchild in December 2024.
As such, the Tribunal considers that this consideration is not relevant to the Applicant’s case and weighs neutral.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Direction no. 110 goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[102]
[102] Direction no. 110 para 8.5(1).
Paragraph 8.5(2) of Direction no. 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction no. 110 notes 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 through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very serious’ or ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.[103]
[103] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 at [86]-[87].
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction no. 110.
Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government;
(b)Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia; and
(c)Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
The Applicant concedes that the expectation of the Australian community consideration weighs against revocation of the Cancellation Decision, albeit to a limited extent.[104]
[104] A2, [35] and [38].
The Applicant also considers that that para 8.5(2) of Direction no. 110 does not apply in his case.[105]
[105] The Tribunal agrees.
The Applicant submitted that he accepts he has not obeyed Australian laws while in Australia and as such, the Australian community would expect the Government to not allow him to remain in Australia.[106]
[106] Referring to the norm expressed in Direction no. 110, para 8.5(1). See A2, [36].
The Applicant submitted further, however, that there is not an unacceptable risk that he will breach that same norm, and the Australian community would not hold the expectation that the Government would not allow him to remain in Australia for that reason.[107]
[107] A2, [37].
The Respondent submitted that this consideration should be given significant weight against revocation.[108] In doing so, the Respondent also submitted that:[109]
The expectations of the community would be for the visa to remain cancelled.
(b)While a higher level of tolerance may be afforded as the Applicant has lived in Australia since he was 19 years old, he started offending shortly after arriving in Australia.
(c)While the Applicant’s offending does not comprise “serious crimes” as that term is used under Direction no. 110, it cannot be said that there is not an unacceptable risk that the Applicant may engage in serious conduct in light of the Applicant’s offending history which is lengthy and involves repeated and serious dangerous driving offences, increasing in seriousness.
(d)The Applicant also categorised the offending as serious and violent.[110]
[108] R1, [73].
[109] R1, [73] to [74].
[110] See A3 at page 6 and A2 at [19].
The Applicant’s offending history is lengthy and he has been convicted of serious driving offending and offending involving grievous bodily harm.[111]
[111] See Direction No. 110 para 8.5(1).
In light of the extent and seriousness of the Applicant’s criminal offending, the expectations of the Australian community consideration should weigh heavily against revocation of the Cancellation Decision.
Other considerations
Paragraph 9 of Direction No 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[112]
[112] Direction no. 110, para 9.1.
While this consideration in Direction no. 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
(a)unlawful status;
(b)the likelihood of becoming subject to detention and/or removal;[113]
(c)refusal of other visa applications and cancellation of other visas;[114]
(d)a prohibition on applying for other visas;[115] and
(e)periods of exclusion and special return criteria may apply.[116]
[113] Migration Act, ss 189, 196, 197C, 198.
[114] Migration Act s 501F.
[115] Migration Act s 501E.
[116] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[117] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[118]
[117] Migration Act, s 15.
[118] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Applicant contended that the legal consequence of refusing to revoke the Cancellation Decision will be his permanent exile from Australia.[119] The Applicant stated that he will remain an unlawful non-citizen and accordingly, will be liable for removal from Australia as soon as reasonably practicable. The Applicant submitted further: that this consideration ought to be given significant weight in favour of revocation because:[120]
(a)Once removed, the Applicant will be subject to exile from Australia by operation of the Special Return Criterion in cl 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth), which is a criterion that must be satisfied in order for the Applicant to be granted any visa that he might reasonably be eligible to apply for and be granted. This is a relevant legal consequence that must be taken into account.
(b)The Applicant will no longer be eligible to be granted a special category visa by operation of s 32(2)(a)(ii) of the Migration Act, as he is now a ‘behaviour concern non-citizen’ as defined in s 5 of the Migration Act.
(c)The Applicant’s entire life and family are based in Australia.
[119] A2, [39].
[120] A2, [41] to [43].
At the hearing, the Applicant directed the Tribunal to the following passage of Siu Kuk Tam and Minister for Immigration and Multicultural Affairs (Tam),[121] where, Deputy President Thompson SC made the following comments and findings regarding the legal consequences of decision consideration:[122]
Whilst I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are the intended consequences of the operation of section 501, they place a strain on what I believe is a solid and symbiotic long-term marriage partnership. Given that Ms Tam would be excluded from Australia if she is deported, to maintain their marriage Ms Tam and Mr Cross will have to make substantial emotional and financial sacrifices to remain together as a couple. In light of these matters, I find that the legal consequences of the decision carries moderate weight in favour of the Cancellation Decision and should be afforded moderate weight overall.
[121] Siu Kuk Tam and Minister for Immigration and Multicultural Affairs (Decision) (Administrative Review Tribunal, File No 2024/7124, 10 December 2024).
[122] At [90].
The Respondent, however, submitted that this consideration should be afforded neutral weight for the following reasons:[123]
(a)As to the Applicant’s submission at [128] above, Deputy President (then, Senior Member) Burford articulated in relation to s 501 (which also applies to s 501CA(4)) in Cowgill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 729 (11 April 2024) relevantly at [227]-[233] that in circumstances where there are no protection findings or information to suggest that the Applicant would be detained indefinitely or where the Applicant’s circumstances are not such as would suggest a non-refoulement claim arises, the unlawful status, permanent removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501CA(4) of the Migration Act.
(b)The same reasoning applies in that the only consequences of a decision not to revoke the cancellation are the intended consequence of the operation of s 501CA(4). The Applicant has not raised claims based on Australia’s nonrefoulment obligations. There is no evidence to suggest that the Applicant’s circumstances are such that a non-refoulement claim arises.
[123] R1, [77] to [79].
At the hearing, the Respondent referred to Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCA 1273 (Singh), where it was held that it was an error for the Tribunal to assign neutral weight to the legal consequences of decision consideration in the circumstances of that case. In Singh, non-refoulement claims had been made and the Tribunal had stated it would:[124]
…“defer” consideration of the Applicant’s non-refoulement claims until such time as the applicant sought a Protection visa, when the matter could be addressed in proper detail as provided by the Act.
[124] Singh at [24].

The Respondent submitted that the requirement to consider the legal consequences of a decision on a non-citizen is nuanced, in the sense that although the relevant paragraph is headed “Legal consequence of decision under section 501 or 501CA,” the actual text of the consideration is solely related to non-refoulement obligations. The Respondent submitted that therefore, and to that extent, the Applicant’s espousal of the extract in Tam is irrelevant to this case.
The Respondent added that, however, it is not to say that other legal consequences and of a decision aren’t relevant and directed the Tribunal to the following passages:
(a)Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [40]:
Here, the reasons record the Delegate’s consideration of the issues of fact presented by the plaintiff’s non-refoulement claims. The Delegate stated that they had considered the plaintiff’s “claims of harm upon return to [South] Sudan outside the concept of non-refoulement and the international obligations framework” and that they accepted that, “regardless of whether [the plaintiff’s] claims [were] such as to engage non-refoulement obligations, [the plaintiff] would face hardship arising from tribal conflicts were he to return to [South] Sudan”. The harm, which formed the basis of his non-refoulement claims, was that if he was returned to South Sudan he faced persecution, torture and death. In concluding that they were not satisfied that there was another reason to revoke the Cancellation Decision, the Delegate stated that they had “considered all relevant matters including … an assessment of the representations received in relation to the invitation for the purposes of s 501CA(4)(a)”. The Delegate concluded that the plaintiff represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed both the interests of his children and “other countervailing considerations”, which would include the hardship identified by the Delegate.
(b)Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003:
[12]  Relevantly, the legal consequence of the Minister’s decision is that the applicant will be removed from Australia and cannot satisfy the special return criteria in cl 5001 of Sch 5 of the Regulations. In substance, that means that the applicant is ineligible for most classes of visa that would otherwise relate to him. That is not a matter of speculation. It is not necessary to wait for an application for a visa to be made to know that he cannot be granted a visa in any of the applicable classes. Therefore, the practical reality in human terms that flows from the legal consequences of the Minister’s decision is that the applicant will be removed from Australia and, thereafter, will be precluded from travelling to, entering and (or) remaining in Australia unless he is able to bring himself within the criteria of a visa class to which the special return criteria does not apply. In much the same way that a legal consequence may be characterised as ‘indefinite detention’, the legal consequence here may be characterised as removal and ‘indefinite exclusion’ from Australia. Moreover, in my view, not only is that a legal consequence it is manifestly a purpose of the applicable statutory framework and scheme that includes s 501(3).
[13]  It is evident that a purpose of specifying that the special return criteria be satisfied for the various visa classes in Sch 2 is that persons who have had their visas cancelled under s 501(3) cannot satisfy the visa criteria and, therefore, cannot be granted visas in those classes and lawfully travel to, enter and (or) remain in Australia. It would plainly defeat a purpose of s 501(3) of the Act if persons who have had their visas cancelled on the grounds of national interest could, upon removal from Australia, immediately be granted a visa and return to Australia because all other criteria for the grant of that visa are satisfied.
[14]  It follows that the applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa under s 501(3) of the Act. Accordingly, that was a consideration the Minister was bound to take into account.
The Respondent contended that therefore:
(a)It is a legal consequence of a decision not to revoke the Cancellation Decision that the Applicant would be indefinitely excluded from Australia by operation of the Special Return Criterion in cl 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).
(b)The Tribunal does need to take this legal consequence into consideration and would fall into error if it did not.
(c)However, it is not the case that this legal consequence is one that strictly falls under the header of paragraph 9.1 of Direction no. 110 (the text of which relates solely to non-refoulement obligations).
(d)Rather, in considering cl 5001(c), the Tribunal must be mindful that it does not overstate its significance, when considering the consequences of removal in almost all of the additional considerations it is required to consider under Direction no. 110. For example:
(i)In relation to the protection of the Australian community consideration, the legal consequences of decision not to revoke the Cancellation Decision include that the Australian community is protected as the Applicant has no further opportunity to reoffend.
(ii)In relation to the strength, nature and duration of ties to consideration, the legal consequences of decision not to revoke the Cancellation Decision include that the Applicant is unable to continue to engage with family and social links face to face.
(e)Finally, the weighing exercise is not purely mathematical and is always fraught by the prospect of double counting. Hence, the importance of the Tribunal ensuring that is understands the Applicant’s submission and considers it in the context of the legal consequences of decision consideration where relevant.
The Tribunal has considered the parties submissions and related authorities in reliance and has formed the following view regarding the legal consequences of decision consideration in the present matter:
(a)The Tribunal is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made.[125]
(b)This includes the consequence that if removed, the Applicant would be indefinitely excluded from Australia by operation of the Special Return Criterion in cl 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth)
(c)The Tribunal has considered the consequences of removal as and when it is relevant to the considerations in Direction no. 110. This is consistent with the manner in which the Respondent contended the Tribunal ought to do so in para 134(d) above, this being the correct approach in light of the fact that:
(i)The text of paragraph 9.1 of Direction no. 110 relates to the legal consequences of removal in the context of non-refoulement obligations.
(ii)The Applicant has not raised any non-refoulement claims in the present matter.
(iii)No matters regarding non-refoulement appear on the available evidence.
[125] See NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1.
As such, the Tribunal acknowledges and accepts the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501 of the Migration Act. These consequences are not a matter of speculation and the Tribunal has taken this into account in terms of the practical ‘reality in human terms.’[126]
[126] See Rano at [12], extracted at [133] above.
The Tribunal considers this consideration weighs neither for nor against revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in paras 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under paras 9.2(1)(a), (b) and (c) of Direction no. 110 are:
(a)the [Applicant’s] age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in their country.
The Applicant gave evidence that he has no family in New Zealand and otherwise no connections there. The Applicant said that as such, he would have no support if he had to relocate. The Applicant added that he has chronic lung disease, a hernia, asthma, blood flow problems and high cholesterol.
The Applicant submitted that he has lived in Australia for over 50 years, he has concerns that his physical and mental health with deteriorate if his removed and he will need to start from scratch financially if removed.[127]
[127] A2, [44] and [45].
The Applicant also submitted that in these circumstances, he may be unable to maintain a basic standard of living and this consideration ought to weigh strongly in favour of revocation.
The Respondent submitted that the extent of impediments consideration should be given minor weight in favour of revocation, relying on the following matters in support of its position:[128]
[128] R1, [80] to [85].
The Applicant is 62 years of age and has lived in Australia since he was 19 years old.
(b)The Applicant would not suffer any language or cultural barriers in New Zealand.
(c)The Applicant has travelled back to New Zealand on multiple occasions since his first arrival in Australia.
(d)The Respondent accepts that the Applicant has no family in New Zealand, having lived in Australia for over 40 years and that he will need to start from scratch in New Zealand.
(e)The materials before the Tribunal suggest that the Applicant’s health has deteriorated during his incarceration. However, there is limited information as to the current level of the Applicant’s health and the Applicant has not as yet provided any further details to corroborate these claims.
(f)There are organisations such as Te Pa (formerly known as PARS),[129] which aid people who are removed from Australia to New Zealand. In this regard, the Respondent notes the comments of the Tribunal in relation to Te Pa, that ‘[t]here is no reason to think that the Applicant would not receive the assistance that is available if he needed it’.[130]
(g)The Respondent accepts that there are some impediments to the Applicant being able to establish himself in New Zealand, but they are not insurmountable.
(h)The main impediment is likely to be emotional due to the Applicant being separated from his children and other family members.
(i)His health issues may also be a slight impediment.
[129] align="left">[130] Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774 at
[158].
As noted above, the Applicant is 62 years old. There is limited evidence regarding the Applicant’s claims as to his health concerns.[131] However there is no evidence that whatever treatment the Applicant may require in the future would not be available to him in New Zealand.
[131] See [140] above.
Having lived in New Zealand as a child and teenager, there is no evidence before the Tribunal that any language or cultural barriers exist in New Zealand should the Applicant be removed.[132]
[132] Direction no. 110, para 9.2(b).
The Tribunal accepts that the Applicant has retained no social connections with any friends, family or other contacts in New Zealand and that his support network is entirely in Australia.[133]
[133] Direction no. 110, para 9.2(c)
While the Applicant may encounter some difficulties establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, if he were to return to New Zealand, the Tribunal regards these difficulties as temporary.[134]
[134] Direction no. 110, para 9.2(c).
The Tribunal also accepts, however, that the Applicant’s removal, in particular his separation from his long term de facto partner, his sister and his two sons children would see him face emotional and psychological hardship due to this separation.[135] If removed, the Applicant could maintain family contact by electronic means (although this is not his preference) and his family could visit him in New Zealand.
[135] Direction no. 110, para 9.2(c).
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction No 110 states:
(1)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.
The Applicant did not suggest that his removal from Australia would adversely impact Australian business interests.
There is also no evidence the Applicant is involved in the delivery of a major project or important service in Australia.
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION – THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.[136]
[136] See [42] above.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[137]
[137] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[138] While the Court was considering Direction No. 90, it’s observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[139]
[138] [2023] FCAFC 138.
[139] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation of the Cancellation Decision and affords the consideration heavy weight in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case and weighs neutral.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds heavy should be afforded that consideration in the Applicant’s case.
The best interests of minor children consideration was not relevant in the Applicant’s case and weighs neutral.
The expectations of the Australian community, weigh against revocation and the Tribunal finds this consideration should be afforded strong weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision consideration weighs neither for nor against revocation for the reasons given. The extent of impediments if removed consideration weighs moderately in favour of revoking the cancellation of the Applicant’s visa. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
Having weighed the considerations, the Tribunal finds that:
(a)The first and fifth primary considerations weigh heavily against revocation of the Cancellation Decision.
(b)The third primary consideration weighs strongly in favour of revocation of the Cancellation Decision.
(c)The extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation decision.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case.
The Tribunal also emphasises that the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[140]
[140] Direction no. 110, para 7(3).
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied that the circumstances of the Applicant’s case warrant the heavy weight placed on the first and fifth primary considerations. Those circumstances being:
(a)the serious view taken by the Australian Government and the Australian community in relation to drug-related offending and driving offending;[141] and
(b)that the Australian community expects the Australian government to cancel visas of those persons who do not obey Australian laws.[142]
[141] Direction no. 110, para 8.1.1(a).
[142] Direction no. 110, para 8.5.
Therefore, while the considerations weighing in favour of revocation of the Cancellation Decision are strictly equal in number to those weighing against renovation, the Tribunal is satisfied that the heavier weight afforded to the first and fifth primary considerations give the result that they carry, overall, greater weight than the considerations weighing in the Applicant’s favour.
In summary, having regard to all of the primary considerations, and other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 9 October 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 175 one hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of General Member Gallagher.

.....................[SGD]...................................................
Associate
Dated: 31 December 2024

Date of hearing: 17 December 2024

Applicant: Mr Hamish Glenister, William Gerard Legal

Solicitors for the Respondent: Mr Ashley Burgess, Australian Government Solicitor
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 3 March 2023,[143] New Zealand Police ‘Conviction History Report’ dated 5 July 2023,[144] and the Western Australian Police Force ‘List of Traffic Infringements,’ compiled on 7 November 2024.[145]
[143] R3, pages 29 to 30.
[144] R3, page 31.
[145] R4, pages 198 to 199.

Conviction Date	Court	Offence	Offence Date(s)	Result
1.	9 November 2022	Perth Magistrates Court	Drove under the influence of alcohol	8 January 2021	$1700 Fine Mdl Disqualification – 10 months cumulative
2.	8 November 2022	Perth District Court of Western Australia	Dangerous driving occasioning GHB - Alcohol	1 August 2021	Imprisonment: 12 months cumulative Mdl Disqualification: 2 years concurrent-
3.	8 November 2022	Perth District Court of Western Australia	Dangerous driving occasioning GHB – Alcohol	1 August 2021	Imprisonment: 3 years cumulative Mdl Disqualification: 2 years concurrent
4.	28 June 2019	N/A	Exceed speed limit in a speed zone by not more than 9km/hour	20 June 2019	$100 Fine
5.	15 August 2018	N/A	Exceed speed limit in a speed zone by 10km/hour but not more than 19km/hour	24 July 2018	$200 Fine 2 Demerits
6.	24 April 2017	N/A	Exceed speed limit in a speed zone by not more than 9km/hour	1 April 2017	$100 Fine
7.	14 October 2015	N/A	Exceed speed limit in a speed zone by not mor than 9km/hour	7 October 2015	$100 Fine
8.	30 June 2015	N/A	Exceed speed limit in a speed zone by not more than 9km/hour	17 June 2015	$100 Fine
9.	1 October 2014	N/A	Exceed speed limit in a speed zone by not more than 9km/hour	20 September 2014	$75 Fine
10.	11 July 2014	N/A	Exceed speed limit during periods indicated on signs in a school zone by 10km/hour but not more than 19km/hour	1 July 2014	$150 Fine 2 Demerits
11.	17 February 2014	N/A	Exceed speed limit in a built-up area by not more than 9km/hour	7 February 2014	$75 Fine
12.	7 August 2012	N/A	Exceed speed limit in a speed zone by not more than 9km/hour	26 July 2012	$75 Fine
13.	17 November 2011	N/A	Exceed speed limit in a speed zone by 10km/hour but not more than 19km/hour	31 October 2011	$150 Fine 2 Demerits
14.	18 September 2010	N/A	Driver of a vehicle fail to give signal of intention by using signalling device when vehicle is equipped with properly working indicators	18 September 2010	$100 Fine 2 Demerits
15.	14 February 2010	14 February 2010	Exceed speed limit in a speed zone by 10km/hour but not more than 19km/hour	14 February 2010	$150 Fine 2 Demerits
16.	22 August 2000	Elizabeth Magistrates Court	Drive without due care Drive with excess blood alcohol	3 August 2000	$800 Fine Mdl Disqualification 13 months
17.	28 April 1993	Gilgandra Local Court	High PCA	12 April 1993	$600 Fine $45 Court Costs Mdl Disqualification: 12 months
18.	28 April 1993	Gilgandra Local Court	Unregistered	12 April 1993	$150 Fine $45 Court Costs
19.	28 April 1993	Gilgandra Local Court	Uninsured	12 April 1993	$200 Fine $45 Court Costs
20.	28 April 1993	Gilgandra Local Court	Ride motorbike without helmet	12 April 1993	$150 Fine $45 Court Costs
21.	22 August 1990	Warren Local Court	Malicious Damage	3 November 1989	$100 Fine $100 Compensation
22.	22 August 1990	Warren Local Court	Drive manner dangerous	3 November 1989	$500 Fine Mdl disqualification 2 years
23.	22 August 1990	Warren Local Court	Drug misuse and trafficking	21 August 1988	$500 Fine
24.	17 July 1986	Wyong Local Court	Lower prescribed concentration of alcohol	10 May 1986	$400 Fine or 4 days hard labour Mdl disqualification 6 months
25.	17 July 1986	Wyong Local Court	Unlicensed	10 May 1986	$200 Fine or 4 days hard labour
26.	6 December 1985	Darwin CSJ	Exceed speed limit summons	17 July 1985	$80- Fine $25 Court Costs I.D. 4 Days
27.	28 October 1985	Port Adelaide Magistrates Court	Larceny	28 October 1985	$100 Fine
28.	28 October 1985	Port Adelaide Magistrates Court	Larceny	28 October 1985	$100 Fine
29.	11 September 1984	Midland Court of Petty Sessions	Speeding by more than 20km/hour but less than 30km/hour	11 September 1984	$60 Fine
30.	9 February 1984	Fremantle Court of Petty Sessions	Dangerous driving	2 September 1984	$120 Fine
31.	30 November 1981	Hastings District Court	Obtaining credit by fraud	24 November 1981	$100 Fine
32.	12 May 1981	Hastings District Court	Unlawful assembly to disturb peace	1 December 1981	$175 Fine

Date of hearing:	17 December 2024
Applicant:	Mr Hamish Glenister, William Gerard Legal
Solicitors for the Respondent:	Mr Ashley Burgess, Australian Government Solicitor