DATT and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1604

DATT and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1604 (2 September 2025)
Applicant/s:  SIDARTH DATT
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4125

Tribunal:Senior Member S Thode
Place:Sydney
Date:2 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the applicant’s visa is revoked.

................................[SGD]........................................
Senior Member S Thode
Catchwords
MIGRATION – Cancellation of Class BN Subclass 136 Skilled Independent Visa under s501(2) of the Migration Act 1958 – applicant does not pass the character test – applicant has been a member of an outlaw motorcycle gang– applicant arrived in Australia as young child - whether to exercise the discretion to cancel the visa - best interests of minor children – strength, nature and duration of ties to Australia – decision under review set aside
Legislation
Migration Act 1958 (Cth)
Weapons Prohibition Act 1998 (NSW)
Cases
FHHM v Minister for Immigration [2022] FCAFC 19
Lesianawai Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Suleiman v Minister for Immigration [2018] FCA 594
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a discretionary cancellation of a visa under section 501(2).
Statement of Reasons
INTRODUCTION

The applicant seeks review of a decision made on 11 June 2025 to cancel his Class BN Subclass 136 Skilled Independent visa (visa) on the basis that the applicant does not pass the character test pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).
The visa was cancelled on the reasonable suspicion of the Minister that the applicant became a member of the Comancheros Outlaw Motorcycle Gang (OMCG) in or about January 2022. The applicant, who was represented at the hearing, admits that he associated with and was a member of the OMCG.
The application was heard on 21 August 2025. At the hearing Mr Perez, solicitor appeared for the applicant by video link and Ms C Saunders, Australian Government Solicitor Lawyer for and on behalf of the Australian Government Solicitor appeared for the respondent. The Tribunal heard evidence from the applicant’s employer Mr C S and the applicant’s sister Ms ASD.
For the following reasons the Tribunal has decided to set aside the decision under review and in substitution decide that the decision cancelling the applicant’s visa should be revoked.
BACKGROUND
Applicant’s background
The applicant is a citizen of Fiji and is currently 25 years old. He arrived in Australia in 2008 when he was eight years old with his mother and father. The applicant’s father left the family, and the applicant has no contact with him and does not know of his whereabouts. The applicant and his mother and sister, who was born in 2010, reside in Mount Druitt, although the applicant is currently in immigration detention.
The applicant’s offending history
The applicant has an extensive juvenile record, having first been convicted of criminal offending as a 13-year-old, however the Minister accepts that the Tribunal is unable to take these offences into account in light of Lesianawai.[1] Whilst the Tribunal notes that the applicant has numerous offences proven against him, the Tribunal has not taken his convictions in the juvenile jurisdiction into account, although his record has been tendered and is included in the G-Documents.[2]
[1] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.
[2] Exhibit R1 JTB p.37.
The first relevant offence for the purpose of this review is the applicant’s conviction dated 8 August 2018 for Drive with Middle Range PCA first offence for which he was fined $450, and his licence was suspended for a period of six months.
On 27 November 2018 the applicant was convicted in Penrith Local Court of an offence Destroyed or damaged property <=2000 T2 for which he was fined $500.
On 17 December 2018, only one month later, the applicant was convicted of the offence of Assault occasioning Actual Bodily Harm (AOBH), with a maximum penalty of 5 years, the applicant received a conviction and sentence of 8 months with a non-parole period of four months. The details of the offence will be set out further below in these reasons for decision.
The five subsequent offences for which the applicant was convicted in 2020 are Drive while licence cancelled - 1st off; Destroy or damage property >$ 5000 & <=$15000-T1; Drive while licence cancelled - 2nd+off; Drive while licence cancelled - 2nd+off; Drive with middle range PCA - 2nd+off.
The applicant did not offend again until January 2023 when the applicant was convicted and fined in respect of possession of a prohibited drug, being 2 grams of cannabis, for which the applicant received a fine of $450.
The applicant was served with a Weapons Prohibition Order under s 33(1) of the Weapons Prohibition Act 1998 (NSW) dated 12 July 2022 as he was found not to be a fit and proper person to have possession of or access to a prohibited weapon on account of his record. There is no suggestion by the Minister that the applicant owned a weapon or applied for a gun license or had a gun license cancelled.
Visa cancellation
Section 501(2) of the Act enables the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.
The Minister received information from NSW Police regarding Mr Datt’s association with the Comancheros OMCG. The Minister had regard to information provided by the Australian Criminal Intelligence Commission (ACIC) which characterises OMCG’s as one of the highest profile manifestations of organised crime in Australia and the Comanchero OMCG was identified by the ACIC as one of the 39 “one percent” OMCGs operating in Australia. Based on the information provided the Minister reasonably suspected that Mr Datt was member of the OMCG or had an association with the Comanchero OMCG group, a group that had been involved in criminal conduct. Taking into account the information the Minister reasonably suspected that Mr Datt does not pass the character test and cancelled his visa on 29 January 2025.
JURISDICTION
The Tribunal has jurisdiction to review a decision to cancel visa under s 501(2), where the application for review is lodged within nine days after the decision is notified: s 500(6B). In this case, although the visa was cancelled on 29 January 2025 the decision was not notified to the applicant until 11 June 2025. The application for review of that decision was made on 20 June 2025 within nine days after the decision was notified within the statutory time limit provided by s 500(6B) of the Act. The Tribunal therefore has jurisdiction to hear and determine the application. Pursuant to s 500(6L) of the Act, the Tribunal is required to make a decision within 84 days of the day after the applicant was notified of the decision or it will be taken to be affirmed. The ‘84th day’ in this application falls on 3 September 2025.
EVIDENCE AND SUBMISSIONS
In deciding in relation to the application, the Tribunal has considered:
(a)The applicant’s bundle of documents – Exhibit A1
(b)The applicant’s submissions filed on 20 August 2025
(c)Certificate of Prison Fellowship of Australia dated 15 August 2025
(d)Reference letter Mr CS of xxx Pty Ltd
(e)Reference letter Dr Joseph Awad dated 22 June 2025
(f)Reference letter Matthew Moynahan undated
(g)Statement of the applicant, undated, filed 16 July 2025
(h)Reference letter Ramesh Nath and Roshini Nath, undated, filed 15 July 2025
(i)Statement Shelley Roslyn Lata, applicant’s mother, undated, filed 15 July 2025
(j)Statement Shelley Roslyn Lata, applicant’s mother, undated filed 16 July 2025
(k)Statement of ASD, the applicant’s sister, 29 January 2024
(l)The respondent’s bundle of documents – Exhibit R1
(m)The “G documents” - Exhibit R2
(n)The oral evidence given by the applicant and his witnesses; and
(o)The closing oral submissions made on behalf of the parties.
The applicant’s witnesses were:
·His employer, Mr CS of XXX Pty Ltd
·His sister, Ms ASD, 15 years of age.
Relevant parts of the oral evidence and submissions are considered below.
LEGISLATIVE FRAMEWORK
Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case s501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(b) relevantly states:
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or
has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal
conduct…
If the Tribunal is not satisfied that a person passes the character test, it must then consider whether or not the discretion to cancel should be exercised. In exercising the discretion, the Tribunal must have regard to the considerations set out in Direction No. 110, visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) which commenced on 21 June 2024.
Direction 110 contains guidance for decision-makers and specifies principles that govern the task of deciding whether to cancel a visa under s 501(2). ‘Section 2 Application of the character test’ relevantly provides:
3. Membership/Association (section 501(6)(b))
…
(4) In establishing association, the following factors are to be considered:
a) the nature of the association;
b) the degree and frequency of association the person had or has with the
individual, group or organisation; and
c) the duration of the association.
(5) Decision-makers should note that in order for a person to fail the association limb of the character test, the delegate must have a reasonable suspicion that the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation – mere knowledge of the criminality of the association is not, in itself, sufficient to establish association. In order to not pass the character test on this ground, the association must have some negative bearing upon the person’s character.
The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
In this case, “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction) applies.
For the purposes of deciding whether to revoke the cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must take into account the relevant primary and other considerations set out in the Direction.
Section 7.1 of the Direction states that appropriate weight to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight over ‘other’ considerations.
The primary considerations are set out in section 8 of the Direction:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
A non-exclusive list of other considerations is set out in section 9 of the Direction. These are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and
(3) The impact on Australian business interest.
FHHM v Minister for Immigration[3] considered [8.4] of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ, Derrington J agreeing, referred to remarks made by Colvin J in Suleiman v Minister for Immigration,[4] stating at [34] that “particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one of more of the primary considerations”.
[3] [2022] FCAFC 19.
[4] [2018] FCA 594 at [23].
ISSUE
The issues before the Tribunal are whether the applicant passes the character test pursuant to s 501(6)(b) of the Act. The Minister in its written submissions acknowledges that the Tribunal is confined to this criterion of the test subject to further new facts arising.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [68] to [70].
The applicant concedes that he does not pass the character test. The issue to be determined is therefore whether the discretion to cancel the visa should be exercised, taking into account relevant considerations in the Direction.
CONSIDERATION
Character test
As is set out above, by section 501(6)(b) the applicant will not pass the character test if the Tribunal reasonably suspects:
(a) that the applicant has been or is a member of a group or organisation or has had or has an association with a group, organisation or person; and
(b) that the group, organisation or person has been or is involved in criminal conduct.
Annexure A, section 3(3) of the Direction relevantly provides
… [a] member is a person who belongs to a group or organisation. The evidence required to establish reasonable suspicion of membership of a group or organisation will depend on the circumstances of the case. Decision-makers should note that failure of this limb of the character test does not require an assessment that the person was sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is sufficient under this element of the test that the decision-maker has a reasonable suspicion that:
a) the person has been, or is a member of a group or organisation; and
b) the group or organisation has been, or is, involved in criminal conduct.
As to the satisfaction of the first limb of s501(6)(b) of the Act, the applicant has admitted that he was a fully patched member of the Comancheros OMCG and does not deny his association with that organisation. This was admitted by the applicant under oath and the applicant’s legal representative further acknowledged this to be the case in written submissions: “Mr Datt acknowledges that, for a short period of time, he became involved with the Comanchero Mudgee group. He accepts responsibility for his poor decision and understands the seriousness of such involvement”.
The first limb of s 501(6)(b) is established, and the Tribunal finds that the applicant has been a member of a group or organisation. In respect of the second limb, …that the group organisation, or person has been or is involved in criminal conduct, the Minister has provided evidence, in the form of reports of the Australian Government Australian Institute of Criminology and the Australian Criminal Intelligence Commission that establish to the reasonable suspicion of the Tribunal, that the Comancheros OMCG has been or is involved in criminal conduct. Further it is not contested by the applicant that the material before the Tribunal demonstrates that the group is or has been involved in criminal conduct.[6]
[6] Written submissions 25 August 2025, at p.2 [2].
Whilst the evidence of criminal conduct may be described as generic, the Tribunal acknowledges that the Comancheros are a recognised outlawed criminal motorcycle gang and on the material before it, and in light of the concession by the applicant’s legal representative that this issue is not in contention, the Tribunal is satisfied that the Comancheros OMCG has been and is involved in criminal conduct in Australia and finds accordingly.
Taking all of the evidence into account, the Tribunal finds that the applicant does not pass the character test.
Direction 110
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community, the Tribunal has had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. The Tribunal has also considered 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.

As required by 8.1(2) of the Direction, the Tribunal has considered:
(a)the nature and seriousness of the applicant’s conduct; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
The Tribunal has first considered the nature and seriousness of applicant’s assault charge and other criminal offending.
The applicant was convicted of the offence of Assault occasioning actual bodily harm T2 (AOABH) for which the applicant was sentenced to 8 months imprisonment with a non-parole period of 4 months. The facts of the offending are serious. The applicant hailed a taxi, while wearing a high visibility vest and asked to be conveyed from Mount Druitt to Blacktown. The taxi driver asked the applicant to pay in advance. The applicant became angry and demanded to be taken to the requested location and when the driver refused, the applicant punched him twice to the left side of the fact with a closed fist. The applicant then got out of the vehicle and whilst standing beside it, kicked the victim through the passenger door. The victim sustained immediate pain, redness and swelling to the left side of the face.
It is trite to say that incarceration is the last resort in the sentencing hierarchy and the Tribunal considers that the court viewed the offending as serious. The Tribunal has also considered that the maximum penalty for assault occasioning actual bodily harm is five years imprisonment and that a sentence of 8 months with a non-parole period of four months can be considered on the lower end of the spectrum of the possible sentence imposed.
During his offending the applicant violently attacked a member of the public during the performance of their work, causing injury and undoubtedly psychological harm. Such violent and anti-social conduct undoubtedly caused fear to his victim. The Tribunal finds this offending to be serious.
The Tribunal has also considered his convictions for driving under the influence, and the breach of bail conditions.
In addition to the AOABH offence, the Tribunal also considered the offences for which the applicant was convicted between 2018 and 2020, that is, damage to property, several driving offences and a single drug offence involving possession of 2 grams of cannabis. As noted above, the applicant was also convicted of breaching his bail conditions.
The Tribunal does not consider the driving offences or the drug offence as very serious. In the case of the driving offences, the offences consisted of driving while licence cancelled and more concerningly, two charges of Driving with middle range PCA. While driving under the influence can be extremely dangerous to both the person driving and the community in general, in this case the PCA offences were both dealt with by way of a community corrections order of twelve months and a license suspension of six months. The maximum sentence for a midrange PCA in New South Wales is 9 months imprisonment for a first offence and 12 months for a second or subsequent offence. The sentence imposed on the applicant indicates that the offences of mid-range PCA whilst considered serious were not considered very serious in nature as the court on both occasions declined to impose sentences of imprisonment. The drug offence was minor and was dealt with by way of a fine. However, while these offences are not of themselves very serious, the fact that the applicant was convicted of a second mid-range PCA whilst the applicant was subject to a community corrections order demonstrates that at that period of his life, the applicant had a propensity for disregarding the law.
In addition to this the Tribunal has considered the applicant’s association with the Comancheros OMCG. There is no evidence to suggest that any of the offending or the applicant’s criminal conduct, was in any way linked to his association with that group.
The applicant was associated with the Comancheros OMCG for a relatively short period of time. He stated he commenced being a member sometime in mid-2022 and became a patched member in December 2022. He ceased being a member in about January 2023 because he was informed that another member had his visa cancelled and this scared the applicant. It is the Minister’s submission that because he maintained employment with members associated with the OMCG (he remained employed by a business whose directors were members of the Comancheros) that he continued to associate with the OMCG even after he relinquished his membership in January 2023. The Tribunal does not accept the Minister’s proposition. The applicant gave believable evidence that he had no difficulty extricating himself from the membership of the OMCG in January 2023 but that he found it more difficult finding new employment. On balance, the Tribunal accepts the applicant’s evidence that he required employment and needed to earn a living until he found a different position. Once was able to gain employment through an employment agency, he extricated himself from his employers who were members of the Comancheros OMCG, sometime between June and September 2024.
The Tribunal is satisfied that the applicant was associated with the Comancheros OMCG for a period of about 18 months as a member and that the gang was known for their involvement in serious organised crime which is detrimental to the direct victims and harmful to the broader community. The Tribunal finds that irrespective of whether the applicant himself engaged in illicit activities, membership of the OMCGs strengthens their presence in Australia and the harm they cause. On this basis the Tribunal finds the applicant’s conduct to be serious.
Risk to the Australian community – 8.1.2
In considering the need to protect the Australian community from harm, the Tribunal has had 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. In this regard, the Tribunal has had particular regard to 8.1.2(1), which states that “[s]ome 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”.
The applicant’s position is that the risk of the applicant re-offending is negligeable. In relation to this, the applicant’s legal representative submitted that the applicant is remorseful, and his involvement with the OMCG was brief and limited,[7] he never participated in organised criminal activities or profited from the group and his involvement was motivated by a misguided need for friendship, belonging and protection during a vulnerable state of his life. During oral evidence the applicant stated that he formed an association with the gang because he was ‘young and dumb’.
[7] Written submissions dated 24 August 2024 at p.2.
In respect of the applicant’s risk of re-offending the Tribunal has considered the applicant’s evidence and the pre-sentencing reports contained in the respondent’s bundle.[8]
[8] Respondent’s bundle p.268 and p.270.
In relation to this issue, the Tribunal has considered:
·The applicant’s two statements, undated, filed with the Tribunal 24 August 2025 and his oral evidence at the hearing;
·The statement of the applicant’s sister dated 29 January 2024 and her oral evidence at the hearing;
·The statement of Mr C S, XXX Pty Ltd dated 10 June 2025;
·The statement of Dr Joseph Awad, undated;
·The statement of Matthew Moynahan, friend, undated;
·The statement of Ramesh Nath and Roshini Nath, grandparents, undated;
·The statement of Shelley Roslyn Lata, mother, undated;
·The oral given by the applicant, his sister and his employer at the hearing;
The applicant gave evidence in a frank and forthright manner about his association with the Comancheros OMCG and his status as a “fully patched” member.
Relevantly to the issue of the applicant’s chance of reoffending, the applicant’s evidence is, in summary, that the applicant has significantly changed since his visa was cancelled and that he has understood the negative effect of being a member of an OMCG on his family, and to a lesser extent, the wider community. The Tribunal accepts the Minister’s contention that the applicant did not cease his membership with the OMCG because of the inherent criminality of the organisation, but because his visa was cancelled or because he heard of another member whose visa was cancelled. Be that as it may, the Tribunal accepts the applicant’s evidence that he is remorseful and that he has no intention of continuing his association with the OMCG in the future.
In respect of the criminal offence of Assault occasioning actual bodily harm T2 (AOABH) the applicant seemed less insightful and less remorseful. There is no pre-sentencing report or any psychological evidence that would directly inform the Tribunal of the applicant’s risk of reoffending, or his remorse in relation to this offence. The applicant’s legal representative’s written submissions do not acknowledge the applicant’s conviction for AOABH. The pre-sentence reports provided to the Tribunal are somewhat dated and are relevant only in respect of the risk of reoffending in relation to the convictions of Drive with middle range PCA and Drive while licence cancelled, which in 2020 was assessed as medium, and Fail to appear in accordance with bail conditions which in 2018 was assessed as low.
Conclusion in relation to protection of the Australian community
It is not in dispute that the AOABH offence was a serious and violent offence. There is no doubt that should the applicant again engage in conduct similar to the AOABH offence, the resulting harm to an individual and more broadly to the Australian community through that individual’s family, friends and associates is likely to be serious as an unsuspecting member of the public was assaulted merely for carrying out his daily occupation.
In relation to the risk of the applicant re-offending, the Tribunal accepts that the applicant feels remorse for the association with the OMCG and that he is intent on not re-offending. In respect of his traffic offences, he says that he now has a licence and registration and that he does not intend to drive under the influence. The Tribunal accepts that he has matured in the seven years since the offence of AOABH was committed and that his state of mind in 2025 is not the same as his state of mind was in 2018. The Tribunal accepts that the applicant does not currently take drugs or drink alcohol and no longer associates with members of the OMCG. The Tribunal accepts that the applicant went through a phase of alcohol and drug abuse when he went through a breakup in 2018 and finds that there is no evidence that he currently suffers from substance abuse problems.
The Tribunal accepts that the applicant has family support, including from his mother, sister and grandparents, who are committed to supporting him and that there are protective measures in place with a view to ensuring that he does not re-offend.
The Tribunal accepts that he has employment and that his employer is willing to continue to employ him in the event he is released from detention. Based on the evidence given by the applicant, his sister and mother the Tribunal accepts that the applicant’s commitment to not reoffending is genuine even if his remorse is largely responsive to the applicant’s current visa status. He freely admitted that once he heard that his friend’s visa got cancelled as a result of an association with the Comancheros OMCG, he relinquished his membership. The Tribunal notes and accepts the Minister’s submission that he stopped his association with the Comancheros because he was scared of his visa being cancelled, not because of the inherent criminality. The Tribunal however accepts that the applicant realises that his visa can be cancelled at any time, should he re-associate with the Comancheros OMCG, and the fact that he put his sister and mother in danger merely by being associated with the Comancheros, is the applicant’s largest motivation not to reoffend. Overall, the Tribunal considers the risk of the applicant reoffending is low.
In assessing the likelihood of the applicant engaging in further criminal or other serious conduct, 8.1.2(2) of the Direction requires the Tribunal to take into account not only information and evidence on the risk of the applicant reoffending, but also evidence of rehabilitation achieved by the time of the decision. In doing so, the Tribunal has given weight to time spent in the community since the applicant’s most recent offence. The Minister tendered evidence that the applicant was in remand for 12 months for offences that are not relevant for this review as he was acquitted by verdict. The Tribunal has taken into account that the applicant has been in prison for the AOABH offence and in immigration detention and was held on remand. Even taking the time on remand into account, the applicant spent time in the community between the offence of AOABH for which he was convicted in 2018 and ceasing his association with the Comancheros. The applicant was not convicted of any offences while he was a member of the OMCG. He has spent some significant time in the community since his last serious offence of Drive with middle range PCA in August 2020. He was convicted of only one offence of violence which was seven years ago. He has obtained and sustained employment. The Tribunal therefore considers that he has demonstrated to some degree that he is capable of rehabilitation, rehabilitation in this instance referring to some sustained reduction in recidivism whilst living in the community.
The Tribunal accepts the applicant’s submission that the applicant has a low risk of reoffending. The Tribunal accepts the genuineness of the applicant’s commitment to not reoffend in the sense that he does not wish to rejoin the Comancheros and that he does not want to re-engage in violent or traffic offending and that there is some personal, familial and social factors which are present to assist him to achieve this goal.
Although the evidence before the Tribunal is that the applicant has ceased all association with the OMCG, and as there are no gang related charges, and although he has not offended since 2020 (with the exception of being convicted of possession of 2 grams of cannabis when the search warrant was exercised) the Tribunal finds that the protection of the Australian community weighs in favour of cancelling the applicant’s visa, although not overwhelmingly so.
Family Violence – 8.2
The applicant has not committed a family violence offence. This factor is neutral.
The strength, nature and duration of ties to Australia – 8.3
In accordance with 8.3(1) of the Direction, the Tribunal has considered any impact of the decision on the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
As consideration is being given to whether to cancel a visa or to revoke the mandatory cancellation of a visa, the Tribunal is obliged to also consider the strength, nature and duration of any other ties that the applicant has to the community. In doing so, the Tribunal must consider:
a)how long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child
i.noting that less weight should be given where the non-citizen began offending soon after arriving in Australia;
ii.and 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’s mother and sister are immediate family members residing in Australia. The Tribunal understands they are Australian citizens. The Tribunal has considered the interests of the applicant’s grandparents separately below.
During the hearing, the applicant referred to him being concerned for his mother’s and sister’s safety being one of the reasons why he ceased membership of the OMCG. He stated that he was ‘scared’. The Tribunal has taken into account his mother’s statement that he contributes financially and emotionally to the family and that his contribution extends to being a driver for both his mother and sister. After an accident the applicant’s mother rarely drives and she relies on the applicant to drive her. She says that since he was taken into immigration detention she suffers psychologically and financially. She states that the applicant is “her joy and happiness” and has been a supportive male presence in the home since her husband left the family. She states the applicant assists her when she has arthritis.
On the basis of this evidence, the Tribunal finds that a decision adverse to the applicant would have a devastating effect on the applicant’s mother in particular. That said, the applicant is not currently the sole breadwinner in the family but his mother states that he assists financially. In relation to this, the applicant stated at the hearing that that he wishes to get a job and that all that he wishes for is to be with his mother and sister so that he can “take care of them”.
The Tribunal concludes that if the applicant were removed from Australia his mother would find it difficult to provide for her and the applicant’s sister. The Tribunal concludes that that the impact on the applicant’s mother would be devastating as he financially contributes to the household and appears to be the family’s sole mode of transport. Emotionally his mother would undoubtedly suffer if the applicant were removed from Australia.
The Tribunal has considered the impact of the decision on the applicant’s sister. It is clear from the evidence of his sister Ms ASD that she has a close bond with the applicant. The Tribunal accepts that the applicant’s removal from Australia would have an adverse impact on the applicant’s sister.
The Tribunal was referred to evidence directly concerning the applicant’s grandparents. Whilst it was acknowledged that they are not the applicant’s actual grandparents, it became clear that they are blood relatives, either cousins once removed or aunts and uncles who have assumed grandparental roles. The letters of support state that the applicant has assisted both witnesses during times of hardship and illness and the Tribunal accepts that the applicant’s removal from Australia would have an adverse impact on both witnesses. The Tribunal accepts the evidence that the applicant assists them on a regular basis conveying them to hospital when they require regular medical treatment and assisting with chores around the house and that this relationship is not fabricated for the purpose of this review. The Tribunal concludes from this that the applicant has a good relationship with his grandparents, who would be adversely affected if he were to be removed from Australia.
The Tribunal considers that the applicant maintains significant ties to Australia, notably his mother, sister and grandparents. The applicant stated that he has many “aunties and uncles” and whilst the Tribunal accepts that this may be case, he has tendered no further evidence in respect of extended family members and the impact the applicant’s removal may have, the Tribunal has therefore not considered ties to the Australian community other than those that were before it.
Consistent with the statements of the applicant’s mother, sister and grandparents are the statements of Mr C, the applicant’s employer, Dr Joseph Awad and Matthew Moynahan, although the Tribunal acknowledges that those character witnesses make no specific reference to the applicant’s OMCG membership or his incarceration for the AOABH. Based on the fact that the character witnesses have not acknowledged the specific offending relevant to this review, the Tribunal has given these witness statements less weight.

Primarily on the basis of his relationship with this mother, sister and grandparents the Tribunal considers this consideration weighs heavily against cancelling the visa.
The best interests of minor children in Australia - 8.4
In accordance with 8.4(1) of the Direction, the Tribunal has considered whether the cancellation of the applicant’s visa is in the best interests of the applicant’s sister, who was born in August 2010 and is currently 15 years of age.
The Tribunal accepts the evidence given by the applicant at the hearing that he lives with his sister and mother and has a strong familial bond with her.
The applicant’s sister gave evidence that the applicant was easily influenced at school and that as a young person both she and the applicant thought it ‘cool’ that the applicant was affiliated with an OMCG. However, it became clear to the witness that the association with such a group was inherently dangerous and negative. When asked what she thought when her brother was convicted of the assault occasioning actual bodily harm, the witness stated “disappointed”. On balance the Tribunal does not consider that the applicant’s past conduct will have a negative effect on his sister, although there could be an adverse impact on her if the applicant reoffended or renewed his association with the OMCG.
That said, the relationship between the applicant and his sister is not a parental relationship. The applicant’s sister lives with and is primarily cared for by her mother although the applicant contributes financially and supports her emotionally. In her statement Ms ASD describes that he is the only male figure she has in her life and that he is of support to her as he supports the family financially, he supports her with her school life and with exercise. She states that if the applicant’s visa was cancelled, it “would break our family apart”.[9]
[9] Respondent’s bundle p. 189.
The testimony before the Tribunal together with the applicant’s sister’s statement clearly establishes that the applicant’s and his sister genuinely care for each other and that he is significantly involved in her life. His absence would have a negative impact on her. Any positive contribution the applicant makes to her life, be it financial or emotional or even as her driver, would not be able to be replaced if he were removed to Fiji.
The Tribunal is satisfied that it is in the best interest of the applicant’s sister that he remains in Australia so he can continue to play his role in her ongoing upbringing even if she attains her majority in a relatively short period in 2028.
The Tribunal has considered that this Primary Consideration weighs moderately against the visa cancellation.
Expectations of the Australian community – 8.5
In relation to this consideration, 8.5(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.
The applicant has failed to obey Australian laws. He would therefore be expected to be removed from the community, as his association with the OMCG and the AOABH offence, together with his other offending, is considered serious.
The Tribunal has considered the principle expressed in 5.2(6) of the Direction; that is, that the Australian community may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The applicant is now 25 and has lived in Australia since he was 8 years of age. He has therefore lived in Australia for most of his life. He was a child when he arrived in this country, and the Tribunal considers that he can be considered to have lived here from a very young age.
The Tribunal finds that the Australian community expects that the Australian government should not grant the applicant a protection visa, although the community may afford him a higher level of tolerance because he has lived in Australia for the majority of his life.
The Tribunal considers that this factor weighs in favour of cancelling the visa.
Other considerations
In deciding whether to exercise the discretion to cancel the applicant’s visa the Tribunal must also take into account the other considerations listed in Direction 110 where relevant.
Legal consequences of the decision – 9.1
As noted above, the applicant is a citizen of Fiji.
Paragraphs 9.1 of Direction 110 states that decision makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant if Australia has non refoulement obligations in respect of an unlawful non-citizen.
Should the visa be cancelled, the applicant would be prohibited from applying for other visas by operation of s501E of the Act. The applicant’s removal and future exclusion from Australia would be the legal consequence of a decision to cancel the visa which flows from the intended operation of the Act. Having regard to Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[10] the Tribunal finds this consideration weighs at least to some extent in favour of revoking the cancellation of the visa.[11]
[10] [2024] FCA 1273 at [39]-[43].
[11] Singh, ibid, at [42].
Extent of impediments if removed – 9.2
The Tribunal must consider any impediments the applicant may face if removed from Australia to Fiji in establishing himself and maintaining basic living standards, taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him.
The Minister submits that the applicant is young and has no identified health issues. The applicant has not been to Fiji in 16 years, he spent the first nine years of his life there and therefore, there is no evidence that the applicant will have to overcome substantial language or cultural barriers. While the applicant does have family in Fiji, he stated that he has never been in contact with them. The Tribunal finds that the applicant may face some impediments if removed to Fiji; however, it is submitted by the Minister and accepted by the Tribunal that these impediments would not be insurmountable.
Of significance is the consequential emotional hardship that the applicant would endure if he was separated from his mother and sister. He stated several times during his evidence that he “just wants to be with his mother and sister”. There is no evidence to suggest that his family would relocate to Fiji with him, even if the applicant were to be removed from Australia. The Tribunal accepts that this would have a negative impact on the applicant.
In respect of this consideration, the Tribunal this consideration weighs moderately against cancelling the applicant’s visa.
Impact on Australian business interests – 9.3
There is no evidence of impact on Australian business interests. This factor is neutral.
CONCLUSION
The Tribunal has considered the applicant’s circumstances in relation to the various considerations set out in the Direction. It must now carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion under s 501(1) of the Act to cancel the applicant’s visa.
The Tribunal made the following findings concerning the relevant primary considerations in the Direction, other considerations being neutral:
(a)The protection of the Australian community against criminal and other serious conduct weighs in favour of cancelling the visa.
(b)The strength, nature and duration of ties to Australia weighs heavily against cancelling the visa.
(c)The interest of minor children weighs moderately against cancelling the visa.
(d)The expectations of the Australian community weighs in favour of cancelling the visa, although not overwhelmingly so.
The Tribunal made the following finding about the only relevant other consideration in the Direction:
(e)The legal consequences of the decision weighs at least to some extent in favour of revoking the cancellation of the visa.
(f)In respect of the impediments if removed, the Tribunal this consideration weighs moderately against cancelling the applicant’s visa
The Tribunal concludes that the primary consideration of the protection of the Australian community, which weighs in favour of cancelling the visa, and the expectations of the Australian community, which weighs in favour of cancelling the visa although not overwhelmingly so, do not outweigh the considerations that weigh in favour of the applicant; namely the strength, nature and duration of the applicant’s ties to Australia, the best interests of minor children, the legal consequences of the decision and the extent of the impediments the applicant may face if removed from Australia.
The Tribunal is satisfied that the conclusion in this regard accords with the weight of the evidence and the principles set out in 5.2 of the Direction. In relation to this, 5.2(2) expressly states that the safety of the Australian Community is the highest priority of the Australian Government, and the principles otherwise emphasise the interests of the community rather than those of the individual. In this case, the two primary factors do not overwhelmingly weigh against the applicant, and the other primary considerations weigh moderately in favour of the applicant. For these reasons, the primary considerations that weigh in favour of the applicant, the ties to the Australian community, the best interests of minor children, the legal consequences if the applicant were to be removed, and the impediments he may face if removed, outweigh the primary considerations that weigh against the applicant.
For the reasons set out above the Tribunal sets aside the reviewable decision of a delegate of the respondent to cancel the applicant’s visa and in substitution decides that the cancellation of the applicant’s visa is revoked.

Date(s) of hearing: 21 August 2025

Solicitors for the Applicant:
J Perez, Perez Varela Lawyers

Solicitors for the Respondent: C Saunders, AGS Lawyer for and on behalf of the
Australian Government Solicitor

Date(s) of hearing:	21 August 2025
Solicitors for the Applicant:	J Perez, Perez Varela Lawyers
Solicitors for the Respondent:	C Saunders, AGS Lawyer for and on behalf of the Australian Government Solicitor