DCQB and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 492

DCQB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 492 (1 May 2025)
Applicant:DCQB
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1169

Tribunal:Senior Member M. Bourke
Place:Melbourne
Date:1 May 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

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Statement made on 1 May 2025 at 11.56am
Catchwords: Migration:- decision of a delegate of the Minister for Immigration and Multicultural Affairs not to revoke mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - character test - substantial criminal record - Direction number 110 - primary and other considerations - protection of the Australian community - nature and seriousness of criminal offending - risk to the Australian community - strength, nature and duration of ties to Australia - best interests of minor children in Australia - expectations of the Australian community - legal consequences of the decision - extent of impediments if removed - non-revocation decision set aside
Legislation:
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases:
CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Secondary Materials:
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
The decision to be reviewed

The applicant (DCQB) applied to the Tribunal for a review of the decision by a delegate of the respondent (the Minister) dated 14 February 2025 under s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), not to revoke the Minister’s decision to cancel the applicant’s visa.
Section 501(3A) provides that the Minister must cancel an applicant’s visa if the Minister is satisfied the person does not pass the character test because s.501(6)(a) is engaged. Section 501(6)(a) sets out that a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that a substantial criminal record includes a person who is sentenced to a term of imprisonment of 12 months or more.
The applicant’s visa was cancelled under s.501(3A) by a delegate for the Minister on 1 August 2023 on the grounds the delegate was not satisfied that the applicant passed the character test, because she has a substantial criminal record within the meaning of s.501(7)(c), that is, she had been sentenced to a term of imprisonment of 12 months or more.
It is not disputed that the applicant was sentenced on 22 May 2023 in the Melbourne County Court to a term of imprisonment of three years and four months, with a non-parole period of 15 months for one count of armed robbery. It is not disputed, and the Tribunal is satisfied, that the applicant in this review has a substantial criminal record within the meaning of s.501(7)(c) and for this reason did not pass the character test because of the operation of s.501(6)(a).
The applicant lodged a request for revocation of the mandatory visa cancellation on 11 August 2023, completing the request form declaration, providing reasons for the revocation request, completing a personal circumstances form, and subsequently providing a further statement and documents in support of the application for revocation.
On 14 February 2025 the delegate of the Minister provided a written decision concluding the delegate, on behalf of the Minister, was not satisfied that the applicant passed the character test and further, the delegate was not satisfied that there is another reason why the cancellation decision should not be revoked, and therefore the applicant’s visa remained cancelled. The applicant seeks a review of this decision.
A hearing was conducted on 22 April 2025. The applicant gave evidence at the hearing. Prior to giving evidence, the Tribunal gave the applicant an appropriate warning in relation to giving evidence that may be incriminating.
The Tribunal has used pseudonyms for persons referred to in this decision record. No person in this decision record is referred to by their full name or correct name. The Tribunal has also issued a direction under s.70 of the Administrative Review Tribunal Act 2024 prohibiting publishing or disclosing information tending to reveal the identity of the applicant or persons connected to the applicant.
Background circumstances relevant to the review
The Tribunal is satisfied of the following circumstances in relation to the applicant based on the submissions and written evidence and documents provided by the applicant and oral evidence of the applicant, and matters that are accepted by the Minister in oral and written submissions.
The applicant was born in New Zealand in 1980. She became a ward of the state before she was one year of age and was returned to the custody of her father when she was five years old. At the time the applicant was raised by her father, her father is described as a violent alcoholic. The applicant at the age of seven, is reported to have been sexually abused by a person known to the family.
The applicant had a relationship with her first partner P1 and had three children from that relationship.
The applicant travelled to Australia in 2001 and stayed for a short period of time.
The applicant moved lawfully to Australia in October 2006, with P1 and her three children and has not departed Australia or returned to New Zealand since that date. The applicant and P1 separated after they moved to Australia.
The applicant commenced a relationship with her second partner P2 in 2011 and had three children from that relationship. The three children from this relationship are all aged under 18, and are currently aged eleven, nine and seven years.
P2 had an affiliation with a criminal gang, [name withheld], which is known to the authorities in both New Zealand and Australia.
P2 died from pancreatic cancer in November 2019.
General overview of circumstances relevant to the primary and other considerations
The applicant experienced horrific family violence perpetrated by P2 during their relationship. The applicant made attempts to leave the relationship with the children in April and November 2017 and sought the support of Safe Steps Family Violence Response Centre. The applicant’s oldest daughter from the applicant’s first relationship, also witnessed and experienced violence perpetrated by P2.
The applicant and P2 both used drugs, and developed an addiction to drugs over the period of their relationship. In the hearing the applicant gave evidence that she used illegal drugs prior to her relationship with P2, and after his death in 2019.
The applicant had no prior convictions at the time she was sentenced on 22 May 2023 for the armed robbery to a term of imprisonment of three years and four months with a non-parole period of 15 months.
At the time of the applicant’s arrest for the armed robbery she was also charged for cultivate cannabis in relation to a plant found at her home at that time. This charge was dealt separately in the Magistrates’ Court; the charge was proven, and the matter was dealt with by the applicant being discharged.
The applicant was released on bail in relation to the armed robbery charge, and remained on bail in the community for four years prior to being sentenced in the County Court on 22 May 2023. The applicant was not charged with any offence whilst on bail.
The Tribunal has only been provided with the court order of the sentence and the sentencing remarks of the Chief Charge (Charge Kidd) in relation to the information provided to the County Court on the day of hearing, 5 May 2023, and the date of sentence, 22 May 2023.[1] The sentencing remarks included a summation of the offence, the gravity of the offending and the applicant’s role in the offending, the applicant’s personal circumstances, references to and quotations from a psychological report of Dr Aaron Cunningham dated 14 February 2023, and relevant sentencing principles including the applicant’s prospects of rehabilitation.
[1] G5 pp 36-54, DPP v ABCD [2023] VCC [retracted].
The sentencing remarks record the opinion of Dr Cunningham that the applicant is diagnosed with a post-traumatic stress disorder precipitated by the abuse in her childhood and perpetrated by the violence in her romantic relationships. The sentencing remarks record the opinion of Dr Cunningham that the applicant also experienced significant symptoms of depression and anxiety, and her drug abuse is partly motivated to numbing the symptoms, including recollections of prior trauma, emotional disconnection, feelings of hopelessness, sleep disturbance, irritability, reckless and self-destructive behaviour and difficulty concentrating.[2]
[2] Ibid p 43 [35].
The applicant’s three adult children currently live independently, one interstate. The applicant’s three younger children currently live with their maternal grandfather and his current partner. The applicant’s three younger children have lived with their maternal grandfather since the death of their father in November 2019.
The applicant has a current partner P3, whom she met whilst on bail for the offence of armed robbery. The applicant and P3 planned to marry, and applied to marry whilst the applicant was serving her sentence.
P3 served a sentence in prison in 2022, which he stated in the hearing was for offences of breach of an intervention order in relation to offences relating to his previous wife. P3 has a daughter who resides with his previous wife.
The applicant has accessed drug and alcohol services in the community while she was on bail, and continues to access services whilst in prison. The applicant provided one urine sample in prison that recorded drug use.
The applicant has provided written evidence and reports, and oral evidence that (except for prescribed medication) she is not using any drugs at the time of the decision in this review. The Minister accepts the applicant previously was addicted to, and used, methylamphetamine and cannabis at the time of offending, and had substantially reduced the addiction and use at the time of her sentencing.
Considerations under Direction 110
As stated above, the applicant does not pass the character test, and therefore on review the Tribunal must consider whether or not there is another reason to revoke the mandatory cancellation of the visa. This is a direction under s.499 of the Act and applies to consideration of refusals and cancellations of visas under s.501 and the revocation of mandatory cancellations of visas under s.501CA (‘the Direction’).
The Direction sets out principles to provide a framework within which the Tribunal should approach this review, in determining whether to revoke the mandatory cancellation under s.501CA.
The principles set out Australia’s sovereign right to determine whether noncitizens who are of character concern, have a right to remain or to enter Australia. The principles state that the safety of the Australian community is the highest priority of the Australian government. The principles state that noncitizens who have engaged or who engage in criminal or other serious conduct should expect to be denied the privilege of coming to Australia, or to forfeit the privilege of staying in Australia.
The principles set out that the Australian community expects the Australian government can and should refuse entry to noncitizens or to cancel their visas if they engage in conduct that raises serious character concerns. The principles set out that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or other noncitizens.
The principles state that with respect to decisions in relation to refusing, cancelling or revoking cancellations of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life or from a very young age.
The principles state that decision-makers must take into account the primary and other considerations relevant to the individual case, and that in some circumstances the nature of the noncitizen’s conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa or revoking a mandatory cancellation.
The principles also state that the inherent nature of certain conduct such as family violence is so serious that strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa or revoking a mandatory cancellation.
There are five primary considerations. The Direction states that the primary consideration that is generally to be given the greater weight is the consideration of protection of the Australian community from criminal or other serious conduct.
The remaining four primary considerations are whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia; the best interests of minor children in Australia; and expectations of the Australian community.
There are other considerations, and the Direction lists three but notes the Other Considerations are not exhaustive. The three other considerations listed in the direction are the legal consequences of the decision; the extent of impediments if removed; and the impact on Australian business interests.
Primary consideration 8.1:- Protection of the Australian community from criminal or other serious conduct
The Tribunal must consider the protection of the Australian community, and assess the safety of the Australian community as the highest priority of the Australian government. The Tribunal must consider the nature and seriousness of the offence and the applicant’s conduct. The Tribunal relies on the sentencing remarks of the sentencing judge on 22 May 2023.
Despite the submission in the Minister’s Statement of Facts, Issues and Contentions dated 27 March 2025, that the applicant drove an associate to the location of the armed robbery, it was conceded in the hearing that the applicant was not involved in driving the offenders to the armed robbery, based on the sentencing remarks. The sentencing remarks refer to the applicant driving to pick up the co-offender, and then remaining at her home while her vehicle was then driven by the co-offender to the location of the armed robbery. The applicant’s connection with the armed robbery is that it occurred at a place where she used to work, she knowingly allowed her vehicle to be used in committing the offence and she was involved in planning and advising a co-offender on aspects of the armed robbery, and shared in the financial proceeds.
The Tribunal is satisfied that the armed robbery was, in the view of the sentencing judge, a “serious armed robbery”,[3] involving firearms or imitation firearms, a forced entry and direct confrontation with two staff members. The Tribunal is satisfied that the sentencing judge also commented that the assistance provided by the applicant was relatively general and unsophisticated[4] and the applicant played a secondary role and was not an active participant.[5]
[3] Ibid, 39 [15].
[4] Ibid, 40 [16].
[5] Ibid [17].
The Tribunal is therefore satisfied that the offence was a serious offence, the penalty imposed on the applicant reflects this, but the serious nature of the applicant’s conduct in the offending is to some extent mitigated by the unsophisticated assistance provided by the applicant and the secondary role of the applicant in the offending. The Tribunal accepts the submission of the Minister that the seriousness of the applicant’s conduct is reflected in the length of the prison sentence imposed, namely three years and four months.
The Tribunal is satisfied that it can afford a slightly higher level of tolerance of the criminal conduct of the applicant on the basis she has lived in the Australian community since 2006,and had lived in the Australian community for 12 years at the time of the offending. The Tribunal does not find the applicant had lived in the Australian community for most of her life or from a very young age, but does take into account that the applicant had lived in Australia for a significant period of time.
There are significant written and oral submissions, and evidence from the applicant in the hearing, in relation to the reduction of the risk to the Australian community should the noncitizen commit further offences or engage in other serious conduct. This relates to the applicant’s rehabilitation and further education through courses and treatment. These are important factors to consider and assess in relation to the risk to the Australian community.
It is relevant that the applicant has no prior history of committing offences. It is also relevant that the applicant was on bail for four years, and did not commit further offences whilst on bail. The applicant was charged with one cultivate cannabis offence, but the Tribunal accepts that this charge occurred at the time of her arrest for the armed robbery and was dealt with without penalty.
The sentencing judge who had the benefit of hearing submissions and reading all the relevant evidence about the applicant concluded that he was “cautiously optimistic” about the applicant’s future prospects.[6]
[6] Ibid, 51 [70].
The sentencing judge also recorded, prior to forming his own opinion of cautious optimism, that the psychologist Dr Cunningham had assessed the applicant as posing a “moderate risk of future violent offending” which would be further reduced if the applicant’s mental health and life stability improved.[7]
[7] Ibid, 14-5 [69].
The Tribunal is satisfied based on the reports provided by the applicant including the report from Ms Lemus, recovery support coach with the Commonwealth Psychosocial Support Program at co-health dated 15 April 2025, the letter from Ms MacCartney, support worker Prison Network dated 10 April 2025, reports from Ms Neyland counsellor and advocate with the specialist trauma service at the Dame Phyllis Frost Centre prison dated 3 April 2025 and 19 August 2024, and the report from Ms Day, senior therapeutic coordinator from Drummond Street Services dated 4 April 2025, that the applicant has engaged in significant and intense rehabilitation services to address her mental health issues, drug addiction issues and life instability issues. The Tribunal also notes the courses and treatment the applicant has completed and undertaken.
The Tribunal has considered the facts that the applicant did not reoffend whilst on bail, and engaged in services whilst in the community and whilst undergoing a prison sentence. The Tribunal has considered the substance of the reports provided by the applicant, and is satisfied the applicant is committed to rehabilitation. The Tribunal is satisfied that the applicant’s commitment to rehabilitation, and her positive re-engagement in services reduces the risk to the Australian community of the applicant committing further offences.
The Tribunal gives significant weight to the opinion of the sentencing judge in relation to the applicant’s future prospects. The Tribunal is of the view that the sentencing judge was in the best position with all the material available to him to assess the risk posed by the applicant to the Australian community in the terms of further offending. The Tribunal also notes the opinion of Dr Cunningham that any risk of further offending by the applicant would be reduced if her mental health and life stability improved.

The Tribunal accepts the evidence of the applicant that she has overcome her drug addiction and is committed to remaining drug free. The Tribunal accepts the evidence of the applicant that she has had the benefit of diagnosis of a mental health conditions and is committed to continuing the best possible treatment in the form of medication and counselling to maintain a stable mental health outlook in the future.
In her written and oral evidence the applicant gave detailed evidence of the trauma she experienced as a child and the violence she experienced in her relationship with P2. The applicant gave evidence of the periods of homelessness with her children. The applicant gave evidence of how low she had felt at the time of offending. The applicant gave evidence that at the time of offending she was using an excessive amount of drugs, and she considered that drug use was the cause of her offending. The applicant gave evidence that she had ceased drug use, engaged in several courses and had a planned structure for the future. The applicant gave evidence of the support she had engaged in, in trying to get her mental health right. The applicant gave evidence of her awareness of difficulties she may face upon release from prison, and the supports from friends, family and services that she planned to engage to assist her in the community.
The Tribunal has considered the corrections records provided by the Minister. The Tribunal has analysed this, taking into account the difficulties faced by the applicant as a result of being sentenced and in custody. The Tribunal gives the Corrections records limited weight, but does note the applicant was found to have used illegal substances on one occasion.
Overall the Tribunal has balanced the weight it must give to the seriousness of the offending for which the applicant was sentenced, in assessing the protection of the Australian community. The Tribunal has balanced this with the applicant’s lack of any other serious criminal or violent offending prior to the sentence, and the fact the applicant did not reoffend whilst on bail. The Tribunal has also balanced the seriousness of the offending with the applicant’s commitment to rehabilitation and drug abstinence, and the applicant’s commitment to ongoing treatment for her mental health conditions, and plans for support upon release into the community.
The Tribunal has given consideration to the nature and seriousness of the applicant’s offending and conduct. Although the Tribunal has assessed the risk to the Australian community has been reduced by the applicant’s conduct prior to the one serious offence, and subsequent to the offence, on balance the Tribunal gives weight to this primary consideration in favour of not revoking the cancellation of the applicant’s visa.
Primary consideration 8.2:- family violence committed by the applicant
There is no evidence that the applicant has committed an offence of family violence, been charged or convicted of an offence of family violence or been involved in the perpetration of an offence of family violence.
The Tribunal gives this consideration neutral weight in its assessment of revocation of cancellation of the applicant’s visa.
Primary consideration 8.3:- the strength, nature and duration of ties to Australia
It is accepted that the applicant has resided in Australia since 2006, a period of over 18 years. The Tribunal is satisfied that the applicant has contributed positively to the Australian community in the form of employment during that time. The Tribunal is satisfied that the applicant did not offend for a period of 12 years from 2006 until 2018.
The Tribunal accepts the submission of the Minister that it is appropriate to also consider the victim of the armed robbery was a previous employer of the applicant, and in this sense the applicant did not contribute positively to the Australian community through her employment.
The Tribunal is satisfied that the applicant has strong family and social links, particularly in the form of three adult children and three minor children, the latter of whom are children of an Australian citizen. The Tribunal is satisfied that the father of the three adult children does not reside in Australia. The Tribunal is satisfied that the father of the three minor children is deceased. The Tribunal is satisfied that the applicant’s three adult children live independently, and currently the applicant has a strained relationship with her second eldest daughter who lives interstate. However the Tribunal is satisfied that the impact of the applicant’s deportation would cause hardship and emotional harm through the separation from their mother, to all of the applicant’s children.
The applicant’s father and his partner, who is the applicant’s stepmother, reside in Australia and currently care for the applicant’s three minor children. The Tribunal accepts that the applicant is grateful for the assistance provided by her father and stepmother in caring for the three younger children, but also accepts the evidence of the applicant that her current relationship with her father and stepmother is not strong. The Tribunal accepts that the relationship between the applicant and her father in the applicant’s childhood was abusive. However, the Tribunal is satisfied that both the applicant and her father and stepmother would be impacted by the removal of the applicant from Australia, and as separated family members they would suffer emotional harm.
The applicant submitted she had a particularly close relationship to her nieces and nephews. No particular evidence was provided about this relationship. The Tribunal accepts the applicant has extended family in Australia, and extended family members of the applicant would experience limited emotional harm if the applicant was removed.
The applicant has formed a new relationship with P3. The Tribunal notes that P3 did not attend the hearing in person, but gave evidence by telephone. The explanation for not attending the hearing was dubious, and the Tribunal had expressed its preference for a person to give evidence in person or by video.
P3 gave written evidence in the form of two statements dated 4 April 2025 and 1 December 2023 in support of the application to revoke the non-revocation of the cancellation of the visa. The Tribunal accepts that the applicant and P3 are supportive of each other in their drug rehabilitation and ongoing abstinence, and that P3 and his father have offered accommodation at their home for the applicant after she leaves prison. P3 also told the Tribunal in his evidence that he was sentenced to a term of imprisonment in 2022 for breach of an intervention order in relation to his previous wife. The Tribunal accepts that the applicant and P3 are in a relationship, and P3 and his father would experience emotional hardship if the applicant was removed from Australia.
The Tribunal does note that the fact the applicant is in a relationship with a person who has a conviction for family violence offences, is a tie to Australia that may not be of a potential supportive nature to the applicant.
The Tribunal is satisfied that P3 has a daughter from a previous relationship, with whom he is in contact but does not currently have personal visits and is in the process of trying to negotiate personal visits. The Tribunal accepts that if the applicant was removed from Australia, P3 would consider going with her and this would impact his relationship with his daughter and his future contact with her. There is not sufficient evidence before the Tribunal to indicate that P3’s daughter would experience any emotional impact from the applicant’s removal from Australia.
The Tribunal has considered the strength of the applicant’s ties with her family, in particular with her three adult children and three minor children, her partner and his father, her father and stepmother, and to a lesser extent other family members, and the applicant’s positive contribution to Australia through employment, and gives this positive weight in its assessment of the revocation of the cancellation of the applicant’s visa.
Primary consideration 8.4:- best interests of minor children in Australia affected by the decision
The applicant has three minor children who are Australian citizens born in Australia. Based on the registered Victorian birth certificates, the Tribunal is satisfied that the three minor children include two girls born in 2014 and 2016, and a son born in 2017.
The Tribunal is satisfied based on written and oral evidence that the father of the three minor children is deceased, and died from pancreatic cancer in November 2019.
The Tribunal is satisfied the three minor children currently reside with their maternal grandfather and his partner, and have resided with their maternal grandfather and his partner since the death of their father in November 2019.
The Tribunal is satisfied based on oral evidence before it, that the three minor children were placed by an order of DHHS with their maternal grandfather after the applicant was arrested on the charge of armed robbery. The Tribunal is satisfied that after their father was diagnosed with cancer the maternal grandfather agreed to the children residing with him in 2019. The Tribunal is satisfied the children then returned to reside with their maternal grandfather after the death of their father.
The Tribunal is satisfied that the applicant was not able to visit the children during 2019 while they resided with their father due to the ongoing difficulties in the relationship between the applicant and their father.
The Tribunal is satisfied that the applicant visited the children whilst she was on bail when they lived with their maternal grandfather by arrangement every second weekend. The Tribunal is satisfied that this was an arrangement between the applicant and the children’s maternal grandfather, based on the maternal grandfather’s wish for stability in the children’s lives, and for the applicant to resolve the issues in her own life. The Tribunal is satisfied that whilst on bail the applicant undertook to reduce her drug use, overcome her addiction, and engage in other services to turn her life around. The Tribunal is also satisfied that the applicant was overwhelmed by being charged with armed robbery, by being on bail and complying with the conditions of bail, by dealing with the court processes, and by coming to terms with what had happened. The Tribunal is cognisant that the applicant was on bail, and the three minor children resided with their maternal grandfather during the covid 19 pandemic, and periods of lockdowns in Victoria. The Tribunal accepts the applicant visited the three minor children regularly whilst on bail, as the circumstances permitted.
The Tribunal is satisfied that the three minor children come to visit the applicant at the prison every fortnight. The Tribunal is satisfied that the applicant’s oldest daughter brings the children into visit her. The Tribunal is satisfied the applicant also has regular ‘zoom’ calls and telephone calls with the three children.
The Tribunal has considered the letter and drawings from the children. The Tribunal has also considered the statements from friends of the applicant in prison, K, and S, who describe the applicant’s relationship with her children when they visit her, and the statement of M who described the importance of the relationship between the applicant and her children, and that maternal relationship in general.
The Tribunal has considered the statement of the applicant’s eldest daughter dated 16 April 2025, who states the last thing she wants is for her youngest siblings to lose their mother. She describes the impact of their father’s death. The applicant’s eldest daughter opines on the impact of the long-term impact on the three minor children of losing their mother if she had to leave Australia.
The Tribunal has considered the statement of the applicant’s father and his partner. The Tribunal accepts that the three children love and miss their mother. The Tribunal accepts that when the applicant is able, and has proven she is capable, they plan that the three children will live with her again.
The Tribunal has considered the best interests of minor children in Australia affected by the decision and gives this positive weight in its assessment of revocation of the applicant’s visa cancellation.
Primary consideration 8.5:- expectations of the Australian community
This consideration sets out the Australian community expects noncitizens to obey Australian laws. The applicant has engaged in serious conduct in breach of this expectation. As a norm the Australian community expects the government not to allow the noncitizen to remain in Australia.
The Tribunal accepts the Minister’s submission that the Tribunal must not seek to access what the community’s expectations would be, and should not reduce the weight given to the community’s expectations due to other considerations. The Tribunal has considered Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 and the approach of Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [57]-[58] as set out in the Minister’s submissions in reply dated 14 April 2025.
The Tribunal does not accept the submissions of the applicant that it can and must consider specific circumstances of the applicant’s case, including relevant countervailing factors as part of an evaluative task of the expectations of the Australian community, (Applicant’s statement of facts, issues and contentions dated 7 April 2025). This was discussed in the hearing. Counsel for the applicant stated that the Tribunal could choose what weight the Tribunal gives to the expectations of the Australian community, without further elucidating the applicant’s claim.
The Tribunal gives the expectations of the Australian community weight in favour of non-revocation of the cancellation of the applicant’s visa.
Other considerations 9.1:- legal consequences of the decision
The legal consequences of the decision would be that the applicant would be liable to be removed from Australia. The applicant may be briefly detained prior to removal from Australia.
The applicant claims fear of being removed to New Zealand (her country of citizenship), due to fear of harm from her co-offender who was deported to New Zealand, and from P2’s family and members of the gang with which he was affiliated. The Tribunal accepts that the applicant has a genuine fear of harm.
The applicant gave evidence that she knew the co-offender and was afraid of him. The applicant did not give evidence that the co-offender had made threats against the applicant.
The Tribunal is satisfied that the applicant was on bail in the community after the death of P2. The Tribunal is satisfied that there were disputes with members of P2’s family involving future custody of the three children of the applicant and P2. The Tribunal is satisfied that the gang with which P2 was affiliated had members in Australia as well as New Zealand. The Tribunal is not satisfied that there is sufficient evidence of the basis of ongoing threats of harm or likelihood of harm to the applicant by members of P2’s family or members of the gang with which she was affiliated.
The Tribunal has assessed the legal consequences of the decision and gives this moderate weight in favour of revocation of the cancellation of the applicant’s visa.
Other considerations 9.2:- extent of impediments if removed
The Tribunal has considered the extent of impediments to the applicant if she is removed from Australia. The Tribunal is satisfied that if there is no revocation of the applicant’s visa, the applicant is not entitled to be considered for parole.
The applicant also loses the services that she has been linked into including the post-release services of Commonwealth psychosocial support program, Salvation Army social housing service for housing support, emergency relief, employment support, Centrelink support, mental well-being community services, dental and other health services.
The Tribunal recognises the information provided by the Minister of the Returning Offenders program in New Zealand. The Tribunal notes the benefit of supports services that continue programs that the applicant has been participating in the community whilst on bail, and in custody prior to her release, and for this reason considers the removal of the applicant would still mean an impediment, although some program services would be available in New Zealand.
The Tribunal also recognises the applicant has resided in Australia since 2006, and her family and her familiarity with services are local; this is a relevant consideration given the applicant has been diagnosed with post-traumatic stress disorder with symptoms of depression and anxiety as noted in the sentencing remarks referring to the report of Dr Cunningham.[8]
[8] Ibid, 43 [35].
The Tribunal has assessed the extent of impediments if removed, and gives this weight in favour of revocation of cancellation of the applicant’s visa.
Other considerations 9.3:- impact on Australian business interests
The Tribunal has considered the submission of the applicant in relation to the applicant’s work history and work ethic. The Tribunal accepts that the applicant has a good work history, and ethic, but does not consider the removal of the applicant would have an impact on Australian business interests. The Tribunal gives this consideration neutral weight in relation to its assessment of revocation of cancellation of the applicant’s visa.
Other considerations:- impact on international relations
The Tribunal accepts that it can consider the removal of the applicant in relation to Australia’s obligation as a signatory to the International Covenant on Civil and Political Rights. However, the Tribunal accepts the submission of the Minister in the Submissions in Reply dated 14 April 2025, that if appropriate, this issue can be assessed under the primary consideration of best interests of minor children in Australia. Further, the Tribunal cannot properly assess the impact on Australia’s international reputation in relation to the decision.
As an other consideration, the Tribunal has assessed the impact on Australia’s reputation on its international relations and gives this neutral weight in its assessment of revocation of cancellation of the applicant’s visa.
CONCLUSION
As stated above the applicant does not pass the character test under s.501, and the Tribunal must consider whether there is another reason why the decision to cancel her visa should be revoked. The Tribunal has had regard to the primary and other considerations in Direction 110.
The Tribunal has applied the judgement in the full Court of the Federal Court in CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138, and undertaken a task in complying with the Direction by bringing together all the considerations as part of a single evaluation of their relative significance, and weighing them all together.
The Tribunal has determined the weight to be given to each consideration, and applied the guidance given in the Direction.
The Tribunal has given greater weight to the protection of the Australian community, and generally given greater weight to the primary considerations.
The Tribunal has assessed that the applicant is at low risk to the Australian community in the terms of re-offending, but that the applicant was involved in serious offending. The Tribunal has assessed that the applicant has strong family and social ties to the Australian community and there are three minor children whose best interests would be affected by the decision to cancel the applicant’s visa. The Tribunal has assessed the expectation of the Australian community that the applicant should not be permitted to remain in Australia.
The Tribunal gives less weight to the other considerations of the legal consequences and extent of impediment if the applicant is removed, but gives these considerations weight in favour of revocation of the cancellation of the visa.

The Tribunal finds that the best interests of the applicant’s children weigh significantly in favour of revocation of the cancellation of the visa, and the strength, nature and duration of the applicant’s ties to Australia weigh significantly in favour of revocation of the cancellation of the visa. The Tribunal finds that together with consideration of the legal consequences of the decision and the consideration of the extent of the impediments if removed, the primary considerations of the best interests of minor children in Australia and the strength, nature and duration of the applicant’s ties to Australia outweigh the primary considerations of the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community.
For these reasons although the Tribunal has given the consideration of the protection of the Australian community greater weight than the other primary considerations, the Tribunal finds that the combined weight of the best interests of the minor children in Australia, and the strength, nature and duration of ties to Australia of the applicant, combined with other considerations, cumulatively weigh in favour of revocation of the visa cancellation.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the applicant’s visa.

I certify that the preceding 104 (one-hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M. Bourke

.............................[SGD]...........................................
Associate
Dated:   1 May 2025
Date of Hearing:  22 April 2025
Counsel for Applicant:  Ms Maxine Lange
Solicitor for Applicant:  Ms Hannah Dickinson

Russell Kennedy

Counsel for Respondent:  Mr Mathew Kenneally
Solicitor for Respondent:  Ms Michelle Stone
  Australian Government Solicitor