FMXW and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 128
•24 February 2025
FMXW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 128 (24 February 2025)
Applicant:FMXW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10241
Tribunal:General Member J Cipolla
Place:Sydney
Date: 24 February 2025
Decision:The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked
Statement made on 24 February 2025 at 4:33pm
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa – substantial criminal record – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) s 501CA (4)
CASES
Smith v Minister [2024] FCA 652
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
Alesana and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3312
Onwong’a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4631
Pohahau v Minister for Home Affairs [2019] FCA 1243
D v Bruhn Supreme Court of Western Australia [2014] WASC 73
FYBR v Minister for Home Affairs [2019] FCAFC 185Irving V Minister (1996) FCA 663
SECONDARY MATERIALS
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
STATEMENT OF REASONS
BACKGROUND
The Applicant arrived in Australia as an unauthorised maritime arrival from Country A. In a completed Personal Circumstances Form (PCF) (see G88) the Applicant stated that he arrived “around 2011-2012 date to be confirmed”.
The Applicant has been known under a number of derivations of his name.
The Applicant has been known variously as M D P, and M D (surname version 1) and M D (surname version 2). He was born in Country A on 18 September 1986 and has also used the following birthdates 17 and 19 September 1986 and 18 October 1986.
In a statement provided to the Department the Applicant advised that his full birth name is M D P that it was common in Country A to use a shortened version of the surname to D (surname version 1) or depending on who is writing it down that it can also be spelled as D (surname version 2).
The evidence indicates that the Applicant has claimed refugee protection in Australia and that his claims for protection have been comprehensively assessed by the Department through the International Treaties Obligations Assessment process on 20 November 2015 and that this assessment found that the Applicant engaged Australia’s protection obligations.
The evidence indicates that the Applicant applied for a Safe Haven Enterprise visa and that during the processing of this visa application that his claims for protection were assessed and once again findings were made that the Applicant was a person to whom Australia owed protection obligations.
The Applicant was granted a Subclass 790 Safe Haven Enterprise visa in 2017.
The evidence before the Tribunal indicates that the Applicant met his current partner Ms A, an Australian permanent resident in 2021, through her younger brother and that they dated for 1 year before deciding to live together in a de-facto relationship.
On 22 October 2022 their daughter Miss A was born, and she is an Australian permanent resident.
The evidence indicates that their second child, a son, Mr A was born on 3 February 2025, he is also an Australian permanent resident.
The evidence before the Tribunal indicates that the Applicant has a long drug abuse history and a long mental health history.
The G documents include a statement from Judith Dixon dated 28 October 2024 which provides useful background information with respect to the Applicant. Ms Dixon advises that she first met the Applicant in 2013 when he was in immigration detention in Melbourne and that she was engaged by him to be his migration agent.
Ms Dixon notes that she organised a psychological assessment of the Applicant which was completed in November 2015, and which described him as suffering at that time with a persistent major depressive disorder. Aside from the depression, he was suffering with anxiety and the statement notes that these conditions appear to be attributable to the circumstances that he experienced in Country A and the death of a friend and fellow detainee on Christmas Island and also as a consequence of witnessing fellow detainees self-harming in immigration detention.
The statement from Ms Dixon indicates that the Applicant’s background history and mental health conditions led to a drug addiction that was not meaningfully addressed by the Applicant until July 2022 at which time he was made an inpatient in a drug and alcohol rehabilitation facility in Sydney.
The report also notes that in August 2023 the house in which the Applicant was residing with Ms A and their infant daughter, and his partners parents burnt to the ground, leading to the loss of their collective possessions and personal documents.
OFFENDING HISTORY
To ascertain the Applicant’s offending history, the Departmental delegate obtained a National Criminal History check and the search for this history was made under all the name iterations and birth dates that the Applicant has used since he has been in Australia. That criminal history indicates the following.
The first conviction was on 10 September 2013 in Western Australia an assault occasioning bodily harm that occurred whilst the Applicant was in immigration detention in 2011. The Applicant was sentenced to a term of 6 months and 1 day imprisonment. The history indicates that the Applicant lodged a severity appeal in the Supreme Court of Western Australia. The Supreme Court found in favour of the Applicant allowing his appeal and suspending his imprisonment order of 6 months and 1 day for 9 months.
From September 2013 until 18 March 2020 a period of close to 6 years there was no offending history recorded for the Applicant. For part of this period the Applicant was in immigration detention.
The next offending behaviour leading to interaction with the Local Court in New South Wales was, as noted, on 18 March 2020 when the Applicant was convicted in the Parramatta Local Court of possessing a false prescription and possess prohibited drug. These offences are clearly attributable to the Applicant’s drug addiction and led to two fines of $300 each.
The next conviction occurred 3 years later in 2023 and related to the contravention of a prohibition or direction in an apprehended violence order for which the Applicant was fined by the Parramatta Local Court on 28 February 2023, the sum of $1500.
The next convictions occurred within the context of drug addiction. These 3 convictions occurred in the Liverpool Local Court on 27 September 2023. They were for possession of a prohibited drug, possession of equipment for the administering of prohibited drugs, and custody of a knife in a public place (subsequent offence). For each of these offences the Applicant was fined $300.
The next conviction occurred in the Bankstown Local Court on 14 February 2024 and was for contravention of a prohibition or restriction in an apprehended violence order for which the Applicant was fined $1250.
The next convictions occurred in the Fairfield Local Court on 19 June 2024, and they appear to be once again related to drug addiction. There are a total of 6 offences for which the Applicant was convicted, and these are 4 counts of possessing a prohibited drug and 3 counts of custody of a knife in a public place (subsequent offence). The Applicant was subject to 3 fines one of $100 and two of $200 and one section 10A conviction. The Applicant was also placed on a Community Correction Order (CCO) for 12 months commencing on 19 June 2024 and concluding on 18 June 2025.
The Police Facts sheet with respect to the offending dealt with in the Fairfield Local Court at G52 notes that “the accused has been charged 9 times in the past 9 years by New South Wales Police. Majority of these charges consists of possession of prohibited drugs and custody of a knife in a public place. Police are of the impression the Accused is spiralling into a drug addiction and may benefit from drug rehabilitation programs”.
The next conviction occurred on 2 August 2024 in the Parramatta Local Court which was for custody of a knife in a public place (first offence) for which the Applicant was subject to a CCO for 6 months commencing 2 August 2024 and concluding on 1 February 2025, with a requirement that the Applicant be overseen by Community Corrections in Fairfield.
The next offending is the offending behaviour that grounded the cancellation of the Applicants visa and for which the Applicant was convicted on 25 September 2024 in the Fairfield Local Court.
The police facts sheet with respect to this offending which is located at page 56 of the G documents indicates the following. That on 23 September 2023 the victim of the offending parked his Toyota across the driveway of a residential property in Lansdale to deliver Woolworths groceries to a unit within the property. The victim started to unload the delivery by placing the shopping bags on the footpath. During this time the Applicant, who resided in the property, was trying to exit the driveway in his vehicle, however, the victim’s vehicle blocked the driveway. The Applicant asked the victim to move his vehicle, however, the victim gave the accused his middle finger. The police facts sheet indicates that the Applicant walked up to the victim and slapped the victim across the face. The victim retreated to the driver seat of his vehicle for protection. The Applicant broke his watch from hitting the victim. As a consequence, the Applicant opened the victim’s front left passenger door, and took the victim’s brand-new iPhone 15 which was still in its box on the front passenger seat and walked away. The victim got out of his vehicle and ran towards the Applicant in an attempt to get his phone back. The Applicant punched the victim in the face a number of times. The Applicant demanded the victim pay him $2200 for damaging his watch which the Applicant had damaged when he slapped the victim across the face. The victim contacted police who attended, and the victim was treated by ambulance officers for a laceration to his left palm and bruising to his facial area and conveyed to the Bankstown Hospital. The Applicant was identified through CCTV footage. On 29 September 2023 police attended the Applicant’s unit and he was conveyed to Fairfield police station. The police facts sheet indicates that the Applicant agreed to participate in an electronically recorded interview where he made admissions to assaulting the victim for giving him the middle finger. The Applicant stated that he took the victim’s phone because the victim broke his watch, and it was for compensation. The Applicant told police he listed the phone on Gumtree classifieds and sold the phone to an unknown person two days previously for $2000. The police facts sheet indicates that checks indicated that the Applicant was the subject of domestic apprehended violence order and that the person in need of protection was his partner with conditions not to approach her or contact her any way. The police discovered that the Applicant was at home with his partner at the time of the arrest and hence he was also charged with breaching an apprehended violence order.
The evidence before the Tribunal in the G documents at page 59 indicates that the day before the above offending, namely 22 September 2023, the Applicant was observed by police travelling through Canley Vale on a bicycle without wearing a helmet. The Applicant was pulled over by the police who conducted checks and found information that the Applicant was known to police as a frequent user of methamphetamines and had been charged on 6 September 2023 for possession of methamphetamines and custody of a knife. The Applicant was found by police to have drugs in his possession, that the Applicant identified as being heroin. The Applicant was also in possession of drug paraphernalia and a red folded knife in his trouser pockets which the Applicant stated was for his employment.
As a consequence of the Applicant’s offending, on 22 September 2023 and 23 September 2023, the Applicant was charged with a range of offences that were dealt with on 25 September 2024 in the Fairfield Local Court. The charges included possession of a prohibited drug, possession of equipment for administering prohibited drugs, riding a bicycle without a helmet fitted and fastened, custody of a knife in a public place, stealing from a person to the value of $2000, contravening an apprehended violence order, assault occasioning actual bodily harm, stalk/intimidate intense fear of physical harm and common assault.
With respect to these offences the Applicant was sentenced to a term of imprisonment of 18 months commencing on 27 May 2024 and concluding on the 26 November 2025 with a non-parole period of six months commencing on 27 May 2024 and concluding on 26 November 2024. With respect to the possession of prohibited drugs and equipment for the administration of prohibited drugs the Applicant was the subject of a section 10A conviction. The evidence before the Tribunal indicates that the term of imprisonment was for the offences of common assault, stalk/intimidate intense fear of physical harm, assault occasioning actual bodily harm, contravention prohibition/restriction in an apprehended violence order (domestic) and custody of a knife in a public place. With respect to the failure to wear a helmet whilst riding a bicycle the Applicant was subject to a section 10A conviction.
A Section 10A conviction in New South Wales is a conviction without a penalty being imposed.
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
On 16 January 2025 the Tribunal received a statement of facts issues and contentions (SFIC) from the Applicant’s representative, Franco Del Monaco, a registered migration agent. The representative also provided a witness list for the Tribunal review. The submission also included a number of supporting documents, which have duly been considered.
The submission notes that the Applicant was granted a Safe Haven Enterprise visa (SHEV) on 14 August 2017, and he received notification of the mandatory cancellation of his SHEV on 8 October 2024.
The Applicant lodged a request to revoke the cancellation on 31 October 2024 and the Department sent the Applicant a natural justice letter on 14 November 2024 which the Applicant duly responded to, with the Department deciding not to revoke the cancellation of the Applicant’s SHEV.
The submission noted that the issues for the Tribunal were whether or not the Applicant satisfied the character test in accordance with s 501 of the Act and if not whether the Tribunal is satisfied that there is another reason to revoke the cancellation of the visa.
The submission notes that the Applicant had lodged a severity appeal with respect to the sentence that he received in the Fairfield Local Court which is listed to be heard on 6 February 2025.
The Applicant’s representative contends that in the event that the sentence on appeal is reduced to below the 12-month threshold that grounded the cancellation that the review should be set aside on the basis that the circumstances that gave rise to the cancellation no longer exist.
The Applicant’s representative contends in the event that the 12-month sentence is upheld on appeal that there exists another reason to revoke the cancellation of the SHEV.
With regard to the respective considerations in Direction 110 the submission notes that just prior to the Applicant’s offending behaviour in September 2023 that the Applicant had interaction with Bankstown Hospital Mental Health Unit because of threats of self-harm. The Applicant’s representative also characterises the Applicant’s offending as coming within the ambit of a “road rage incident”.
The submission notes that in respect of protection of the Australian community that there is only one violent offence in the record of the Applicant which led to the term of imprisonment and that was the assault charge relating to the incident in September 2023. The submission contends that the knife custody charge and the minor theft charge do not come into the ambit of serious offending contemplated by the Direction.
The submission contends that there was not a trend of increasing seriousness in the offending as is contemplated in the Direction.
The submission notes that most of the Applicant’s offending related to his drug abuse and were mostly all drug offences and knife possession charges. The Applicant has contended that with respect to the knife related offences that he was carrying a knife as they were work related implements used in his employment as a carpet layer.
With respect to the types of crimes that may evince community concerns such as violent offences the submission notes that there is only the one sentence for a violent crime that invoked a prison sentence. This was the sentence imposed in September 2024 by the Fairfield Local Court. With respect to the sentence in Western Australia in 2013 the submission notes that the 6 month and 1 day prison sentence was wholly suspended by the Supreme Court of Western Australia for 9 months.
With respect to family violence the submission notes that the breach of the apprehended violence order related to the Applicant being arrested for the 23 September 2023 offending which led to the breach. The submission further notes that it was accepted by the Departmental delegate that family violence as envisaged in Direction 110 had not occurred and that the delegate found that “it has not been established that Mr D P caused Ms N A fear, or coerced or controlled her I consider there is sufficient information before me that Mr D P has engaged in conduct that constitutes family violence as defined in the direction”.
The submission posits that there are a number of reasons to revoke the cancellation of the Applicant’s SHEV. These include the impact on Australian minor children, the impact on Australian permanent residents, the strength, nature and duration of the Applicant’s ties to Australia, evidence of rehabilitation of the Applicant, evidence of remorse of the Applicant and non-refoulement considerations pertaining to the Applicant.
The submission notes that with respect to the impact on Australian minor children that at the time of the preparation of the submission the Applicant was the parent of one minor child, a daughter, who is currently two years old. The Applicant’s partner was currently pregnant with their second child and was due to give birth in early to mid-February 2025 and thus at the time of the review decision that there will be two minor children. The submission notes that the Applicant’s daughter is currently an Australian permanent resident and has currently an unexercised right to Australian citizenship. Conversely the submission notes that the Applicant’s child, due to be born in February 2025, will also be a permanent resident of Australia and will have the right to Australian citizenship.
The submission makes reference to an affidavit from the Applicant’s partner who notes that “despite all his stress, sickness and problems, M has always been a great father to our daughter. He adores her and his parental involvement and his parenting skills, were always wonderful. He took responsibility for all parental duties including changing our daughter’s nappies, bathing, and putting her to sleep. Her daughter is very close to him she loves running around and playing with her dad”. The submission notes that further to this the Applicant’s partner stated that there had been a heavy emotional and psychological impact on the Applicant’s daughter as a consequence of the Applicant’s absence that included some acting out behaviour and their daughter asking for her father and not understanding why he was not with her during his period of imprisonment.
The submission notes that the Applicant has taken positive steps to cease his drug use, however, in the event that he was to resume illicit drug use, there is nothing in the evidence available that indicates that the Applicant would not be anything other than a positive influence on his children going forward and would act in their best interests. The submission notes that the Tribunal should find that the best interests of Australian citizen minor children should be afforded significant weight when considering revocation. The submission also notes that the Applicant is in a loving relationship with his partner N A an Australian permanent resident and there will be a substantial and adverse impact on her if the Applicant’s visa remains cancelled.
With respect to the strength, nature and duration of the Applicant’s ties to Australia the submission notes that the Applicant has strong ties as he is in a relationship with an Australian permanent resident and has a daughter who is an Australian permanent resident and holds the right to Australian citizenship and another child who will be born in February 2025 and who will hold the same status as his sister, permanent residence with a right to Australian citizenship. Further to this the submission notes that the Applicant has resided in the Australian community for the past 10 years and this factor in terms of strength of ties should be given some consideration.
The submission addresses evidence of rehabilitation noting that in early 2024 the Applicant voluntarily entered Nepean Hospital for drug rehabilitation and evidence of this 4-day detox admission has been provided in the bundle of papers. In addition to this the Applicant had engaged in a number of rehabilitation programs whilst he was in prison.
The submission notes that the Applicant has expressed remorse for his offending conduct and accepted responsibility for his actions. In a written statement the Applicant has expressed sincere remorse for his actions with respect to the offending that occurred on 23 September 2023.
The submission addresses Australia’s non-refoulement obligations noting that these create a legal impediment to the removal of the Applicant. The submission notes that the Applicant has been assessed as engaging Australia’s protection obligations in relation to his country of citizenship Country A. The submission notes that the Applicant has been the subject of an International Treaty Obligations Assessment, however, a copy of this assessment was not provided in the bundle of G documents from the Minister with respect to this review application.
The submission states that the fact that Australia’s non-refoulement obligations are engaged should be given weight with respect to the legal consequences of the decision.
The submission posits that the following application of weighting to the considerations in Direction 110 should be applied. With respect to the consideration of minor children that this consideration was very heavily in favour of revocation. With respect to the impact on immediate family in Australia including Australian permanent residents that this factor weighed very heavily in favour of revocation. With respect to consideration of strength, nature and duration of ties to Australia that this factor weighed heavily in favour of revocation. That with respect to evidence of rehabilitation that this factor weighed heavily in favour of revocation. With respect to evidence of remorse that this consideration weighed heavily in favour of revocation. With respect to Australia’s non-refoulement obligations that this factor weighed very heavily in favour of revocation. The submission posits that given the overall circumstances of the Applicant along with the specific circumstances of the offending that the reasons for revoking the cancellation of the Applicant’s visa clearly outweighed any reason for non-revocation.
The submission also addresses what the Applicant’s representative believes were errors in the delegate’s decision. The submission notes that custody of a knife in a public place is not a violent offence as has been characterised by the delegate in the decision record. The submission notes that the delegate found that the contravention of an apprehended violence order constituted a violent offence but at the same time accepted that family violence had not occurred with respect to the purported breach of the order. The submission also notes that the delegates conclusion that the Applicant had been given community-based sentences to reform his behaviour and this had not curbed his offending is wrong. The submission notes that the Applicant was not given a community-based sentence until mid-2024, and that the community corrections order from mid-2024 commenced at a time when the Applicant was remanded in custody awaiting sentence with respect to the offending of 23 September 2023.
The submission notes that the delegate found that the Applicant was subject to parole until 26 November 2024 and that this was a clear error as the Applicant was under the supervision of the parole officer until 26 November 2025.
The submission notes that it was erroneous of the delegate to consider the Applicant’s 2013 sentence in Western Australia as the Applicant’s imprisonment on appeal to the Supreme Court of Western Australia was wholly suspended for nine months.
The submission notes that the delegate made incorrect findings with respect to the lack of remorse expressed by the Applicant. The submission notes that the Applicant only had an opportunity to prepare a statement with respect to an upcoming Tribunal hearing and that at the time of the cancellation the Applicant was detained in a correctional facility and was not in a position to make a statement indicating his remorse for his behaviour from within that facility.
The submission notes that the decision maker did not give proper consideration to evidence presented with respect to the Applicant’s attempts to engage in rehabilitation for his drug usage.
The submission takes issue with the delegate’s characterisation of the injuries suffered by the victim of the 23 September 2023 offending noting that there is limited evidence with respect to the injuries suffered by the victim. The submission notes that injuries sustained by a victim can vary markedly, and that it is not accurate to characterise any injury as “very serious” in the absence of evidence to quantify that.
APPLICANT’S STATEMENT
The Applicant provided a statement to the Tribunal dated 16 January 2025.
The Applicant states that he was issued with a SHEV in 2017 and that he still maintains a fear of being returned to Country A.
The Applicant also made reference to his birth name and advised that in Country A it is not uncommon to shorten the name and that the spelling of the surname will be recorded different ways.
The Applicant made reference to the incident of 23 September 2023 namely his assault on a delivery driver and stealing the mobile phone belonging to the delivery driver.
The Applicant states that with respect to this offending “I am deeply ashamed of this behaviour and sorry for the pain and harm I have caused the driver. This behaviour is not normal for me. I am not a violent person. I do understand and accept that there is absolutely no excuse for my behaviour, and I need to accept responsibility for the assault”.
In describing the incident of 23 September 2023, the Applicant stated that “when I assaulted the driver, I broke my watch and it cut his hand. The broken watch had sentimental value for me, being a gift to me from my partner Ms A. When the watch broke, I became upset and that is why the situation became worse. I believe that the events of the previous day may have had some effect on me. The day before the incident with the delivery driver happened, I had been riding my bicycle and was stopped by the police because I was not wearing a helmet. The police searched me and found some drugs. They also found some work tools, including carpet cutting knives and a hammer. I made threats of self-harm; the police took me to Bankstown Hospital. At Bankstown Hospital I had medical examinations and assessments. At Bankstown Hospital they confiscated my hammer that I use for my carpet laying work. It was not given back to me. I think the police confiscated my work knives before I was taken to the hospital, but they let me take the hammer to the hospital. I was discharged from Bankstown Hospital the same day and I was sent home. I was very stressed and upset. The next day was the day of the incident with the delivery driver. I just wanted to get my car out of the driveway and go and try to find some work. When the driver prevented me from moving my car out of the driveway and ignored my request, I just lashed out and hit him. The incident happened very quickly. I understand and accept that there is no excuse for my behaviour, but I believe the events of the previous day may have contributed to my response to the delivery driver on that day”.
With respect to his rehabilitation the Applicant stated that part of the reason for his behaviour was his drug use. The Applicant stated that he had attempted to cease his drug use and had previously attended drug detoxification units including a voluntary admission to Nepean Hospital in 2024. The Applicant stated as a consequence of the admission to Nepean Hospital, he started getting regular injections that were to curb the effects of illicit drugs if you use them. The Applicant stated that the addiction program that he engaged in whilst he was in a remand centre awaiting sentencing assisted him to give up his drug addiction and that he had been making an effort to stay free from drugs since that time. The Applicant stated that whilst he was in prison that he had a lot of time to think about his behaviour and how stupid his behaviour had been and that there were alternatives to violence when dealing with difficult situations that he will concentrate on going forward.
With respect to his parole from prison the Applicant notes that he was released from prison on 26 November 2024 and spent a short time in Villawood Immigration Centre before being released on a Bridging visa. The Applicant stated that he was on parole for 12 months from the date of his release through to 26 November 2025 and that he is overseen by a parole officer from Fairfield Community Corrections. The Applicant stated that his parole officer had been very helpful and understanding and had introduced the Applicant to Narcotics Anonymous meetings which the Applicant intends to attend going forward.
With respect to his family the Applicant stated that his partner Ms A provides love and support and that he is very close to his baby daughter. The Applicant stated that he is looking forward to the birth of his son in February 2025 and understands that family is the most precious part of his life and that his previous poor behaviour will not threaten that going forward. The Applicant stated that he is a Christian and wishes to live by Christian values. Once again, the Applicant acknowledges responsibility for his offending behaviour and undertakes that this will never happen again and apologises again to the delivery driver for any suffering that he may have caused.
STATEMENT FROM MS A
Ms A in her statement of 3 December 2024 advises that she met the Applicant in early 2021 and that she and the Applicant were in a loving relationship. She advised that they have a daughter together, A, who was born on 22 October 2022 and is currently two years old. Ms A confirms that she was currently pregnant with the couple’s second child who is due to be born on 11 February 2025.
Ms A described meeting the Applicant through her brother when she was 28. She liked the Applicant and thought he was a kind and gentle man, however she noted that at the time of their meeting, the Applicant was a heroin addict. Ms A told the Applicant that if he quit drugs, they could have a relationship and future together, and that he desperately wished to quit drugs and agreed to give up drugs with her assistance. Ms A stated that the Applicant tried very hard to stay off drugs. Ms A stated that at the time of the inception of their relationship she was a student studying commercial interior design.
A year after the inception of the relationship she and the Applicant moved in together into rental accommodation in Sydney and that the Applicant had a job in carpentry and was doing well. Ms A stated that at the beginning of the relationship she and the Applicant did not have any problems and rarely had an argument. However, down the track they did have an argument pertaining to her visiting her ex-partner to return his belongings, which caused tension to build up in the relationship. Ms A stated around this time the Applicant lost his job and he became very stressed and lacked direction. He found it difficult to secure another job. She stated that as a consequence of these stressors, the Applicant started using drugs to cope with the situation that he found himself in and that the coupled argued regularly with respect to the Applicant’s drug use.
With respect to the apprehended violence order Ms A stated that the Applicant had never threatened her or hurt her in any way and that he was never violent towards her and that it was wrong for him to be placed on an apprehended violence order. The order was put in place due to Ms A and the Applicant engaging in a heated argument in April 2022 outside a hospital and that a member of the public called the police who attended the scene, and the Applicant was made the subject of an apprehended violence order. Ms A stated that she did not agree with the order being placed on the Applicant and that she tried to have the order removed by the courts but was not successful in doing so.
Ms A stated that whilst the couple were living in a different suburb the Applicant continued to abstain from drug usage. Ms A stated that she took the Applicant to the Nepean Hospital so he could engage in detox for six days. Upon discharge he was placed on medication that makes a person ill if they use heroin.
Ms A stated that despite all the stress and sickness and problems in the life of the Applicant that he had always been a great father to their daughter. She advised that the Applicant adored his infant daughter and relished having parental involvement in her upbringing. Ms A stated that their daughter is very close to the Applicant and loves running around and playing with her father. Ms A stated that there had been a heavy emotional and psychological impact on the family unit as a result of the Applicant’s absence from the family unit during his imprisonment. Ms A stated that at the time of writing the statement she was 30 weeks pregnant and that she did not have the support of her partner to help care for herself, their new baby, and their infant daughter. Ms A stated that in the event that the Applicant is released into the community that she would provide him with support and assist him in finding ongoing rehabilitation in detox facilities so that he can continue not to engage in drug use. The witness stated that the Applicant had suffered a lot of trauma and pain in his life and that he used drugs as a form of self-medication. The witness stated that it was heartening that the Applicant had been off illicit drugs since he had been in prison and in immigration detention and that she is hopeful of his ongoing abstinence.
RESPONDENT’S STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Respondent’s representative provided a submission to the Tribunal dated 31 January 2025 which the Tribunal has duly considered. The submission makes reference to the relevant law with respect to the cancellation of the Applicant’s SHEV visa on character grounds pursuant to s.501(6)(a) and s.501(7)(c) of the Migration Act which provides that a person does not pass the character test if they have a substantial criminal record being that the person has been sentenced to a term of imprisonment of 12 months or more.
The submission notes that the Act, at s.501CA(4), provides that the Minister may revoke a mandatory cancellation decision if satisfied that the person passes the character test, or that there is another reason why the mandatory cancellation decision should be revoked. The submission notes that the Tribunal must have regard to the considerations set out in Ministerial Direction 110 which “govern the task of whether to revoke a mandatory cancellation decision”.
The submission notes that there is a severity appeal against the Applicant’s 18-month sentence for his September 2023 offending and that the Applicant’s representative is asserting that if the appeal results in a reduction of the sentence of less than 12 months that ‘the circumstances that give rise to the visa cancellation no longer exist’.
The submission notes that “if that sentence is reduced to less than 12 months on appeal, before the Tribunal’s decision is made, the Applicant’s submission at [22] and [30] of the Applicant’s SFIC that ‘the circumstances which gave rise to the visa cancellation no longer exist’ is not an answer to whether the Applicant passes the character test. The Tribunal may in that event ask the ‘wider question’ of whether the Applicant failed the character test on grounds other than those on which the delegate had relied: Smith v Minister [2024] FCA 652, at [52-55]. The respondent will address this circumstance, only if the appeal relevantly succeeds (i.e. by reducing the sense to less than 12 months, before the Tribunal’s decision). In that event, it is likely that a submission will be made that the Applicant fails the character test under another provision such as s 501(6)(c) or (d) of the Act”.
With respect to the primary considerations the submission notes that with respect to the protection of the Australian community that the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.
The submission notes that the protection of the Australian community has two elements firstly the nature and seriousness of the non-citizens conduct to date and secondly the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. The submission notes that the Applicant was involved in an act of violence in 2013 and again in 2023. The submission notes that the Minister accepts that the drug possession charges of small amounts are less serious than a drug trafficking charge. The submission notes that the theft and resale of an iPhone taken from the Uber driver victim of the Applicant’s September 2023 offending was “brazen and self-interested”.
The respondent’s submission posits that the Applicant’s representatives SFIC equating the Applicant’s assault on the Uber driver to a ‘road rage’ incident does not assist the Tribunal. The submission concedes that the assault may not have been premeditated, however it was serious in nature as it inflicted harm and that the Applicant stole the victim’s iPhone and sold it on Gumtree classifieds.
The submission posits that the Applicant remains at risk of reoffending for a number of reasons. Firstly, that the Applicant was the subject of an assault occasioning actual bodily harm in 2013. The September 2023 assault was indicative of an act of violence that demonstrated a trend in violent offending. The submission notes that the Applicant was charged with possession of a knife which he submitted was in his possession for a legitimate reason as a work tool, the submission notes despite this fact the Applicant pleaded guilty to the offence.
The submission notes that the Applicant’s assault in 2013 lead to a suspended sentence, however, that did not indicate that the crime was not serious or violent. The Minister accepts that the September 2023 offences were more serious in nature than the 2013 assault offence.
The submission notes that the Applicant was suffering with substance abuse issues as recently as September 2023 when he engaged in the offending that led to the imposition of a prison sentence. The submission notes that the Applicant had not yet attended any drug rehabilitation programs such as narcotics anonymous. The submission notes that the Applicant is currently the holder of BVR which imposes a curfew on the Applicant and the Applicant is subject to an electronic monitoring device. The submission notes that these Bridging visa conditions provide a measure of protection for the community which will not be present if the cancellation decision is revoked, and the visa is restored.
With regard to the primary consideration with respect to family violence, the submission notes that this consideration is not engaged as there is no evidence that the Applicant has engaged in family violence and that this consideration should be given neutral weight.
With respect to primary consideration 3, namely the strength, nature, and duration of ties to Australia the submission notes that the Applicant has an Australian permanent resident partner and an Australian permanent resident child and that his partner is due to have their second child in February 2025. The submission notes that the Applicant’s contribution to Australian society is unclear on the basis of the evidence. The submission notes that there is evidence that the Applicant attends church. The submission notes that the Applicants offending began in 2013, which was merely two years after he arrived in Australia in 2011. The submission posits that overall, moderate weight should be given under this consideration in favour of revocation.
With respect to the primary consideration 4, namely, the best interests of minor children in Australia affected by the decision, the submission notes that the Applicant has a minor Australian citizen child in Australia and will more than likely have another Australian citizen child born by the time the Tribunal makes a decision on review. The submission notes that as the Applicant is currently the holder of a BVR that this bridging visa allows him to have contact with his child and play a fatherly role in his child’s life and that this will equally apply when the second child is born. The Minister with respect to this consideration accepts that it strongly favours revocation.
With respect to primary consideration 5 the ‘expectations of the Australian community’ the submission notes that “overall, the strength of the deemed expectation in this case means that this primary consideration weighs substantially against the Applicant being able to hold a visa”.
With respect to other considerations the submission initially addresses the legal consequences of the decision. The submission notes that the Applicant has been found to be owed protection obligations by Australia, with the protection finding made with respect to Country A. The submission notes that “as a result of these findings, the Applicant will not be removed from Australia to Country A regardless of the Tribunal’s decision”. The submission notes that in the event that the Tribunal affirmed the decision of the delegate that the Applicant would remain in Australia as the holder of a BVR and that the Tribunal should attach limited weight to the legal consequences of the decision due to the fact that the Applicant will remain in the community.
With respect to the extent of impediments if removed, the submission notes that the Applicant will not be removed from Australia to Country A due to the protection findings made with respect to the Applicant pertaining to Country A by the Department. The submission notes that as a result, this consideration is not engaged and should be given neutral weight.
With respect to the impact on Australian business interests, the submission notes that there does not appear to be any impact on Australian business interests and that this consideration should be given neutral weight.
In conclusion the submission makes reference to the recent decision of CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35] which states that the “… process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task”.
The submission notes that the “Minister acknowledges that the legal consequences of the decision, ties to Australia and best interests of minor children likely weigh in favour of revocation” however, the Minister submits that the two primary considerations weighing against revocation are not outweighed by countervailing considerations.
APPLICANT’S RESPONSE TO RESPONDENT’S SFIC
The Applicant’s representative provided a response to the respondents SFIC which is dated 14 February 2025 and has been duly considered.
The submission notes that aside from the submissions provided on behalf of the Applicant to date that there was additional information that the Applicant wanted the Tribunal to consider.
Firstly, that his second child a son had been born in Sydney on 3 February 2025.
Secondly, the Applicant’s severity appeal in the Parramatta District Court had been finalised on 6 February 2025 before Judge Herbert. The 18-month prison sentence that had been imposed upon the Applicant for his September 2023 offending by the Fairfield Local Court was dealt with by way of a Community Correction Order and an Intensive Correction Order.
With respect to the custody of knife in a public place offence, the Applicant was directed to enter into a Community Correction Order for 12 months pursuant to Section 8 of the Crime (Sentencing Procedure) Act 1999 to commence on 6 February 2025 subject to the following standard conditions, firstly, that the Applicant must not commit any offences and secondly that the Applicant must appear before the court if he is called on to do so during the term of the order.
With respect to the contravention of the apprehended violence order, the Applicant was convicted and directed to enter into a Community Correction Order for 6 months pursuant to section 8 of the Crime (Sentencing Procedure) Act 1999, to commence on 6 February 2025 and that the Community Correction Order was subject to the following standard conditions, that the Applicant must not commit any offences, and that the Applicant must appear before the court if called upon to do so during the term of the order.
With respect to the offence of stealing from the person an item with a value of $2000 and the offence of assault occasioning actual bodily harm, the Applicant was ordered that the imposed terms of imprisonment would be served by way of an Intensive Correction Order in the community in accordance with section 7 of the Crime (Sentencing Procedure) Act 1999 for 13 months, commencing on 6 February 2025, and expiring on 5 March 2026. The Intensive Correction Order was subject to the following conditions, namely that the Applicant not commit any offences, and that the Applicant must report to a Community Corrections Officer on the day the order is made and at the times and places directed by the officer, and that the Intensive Correction Order would be supervised by the Fairfield Community Corrections district office.
The submission also included a copy of a historical report by Associate Professor Terence John Laidler, a Registered Psychologist which is dated 30 November 2015. The report notes that Associate Professor Laidler implemented the Beck Depression Inventory, a test for depression and that the Applicant at that time scored 43/60 on the test which was a score indicative of severe depression. The testing of the Applicant also indicated clear signs of mood dysphoria. In his concluding comments Associate Professor Laidler notes that the Applicant was suffering with a persistent major depressive disorder that should be able to be treated as the Applicant’s then immigration detention was a significant contributor to the depressive disorder.
The submission refers to the fact that the Applicant had lodged a severity appeal with respect to his sentence in the Fairfield Local Court on 25 September 2024 with the District Court of New South Wales and the decision of that appeal had now been made. The submission indicates that this fact had been raised in the Applicant’s submission of 16 January 2025, noting, that it could lead to the prospect of a reduced sentence. The submission notes that with respect to the outcome in the District Court leading to a reduced sentence the respondent in their SFIC advised they would address this circumstance if it arose.
The Applicant’s representative contends that if the sentence was reduced to less than the 12 months imprisonment that grounded the mandatory cancellation of the Applicant’s SHEV that the Minister was foreshadowing in their submission the imposition of another character test under s 501(6)(c) or (d) of the Act and that this “additional test” breached the provisions of the Migration Act and the principles of natural justice and procedural fairness.
The submission notes that in the event the Tribunal finds that the Applicant does not satisfy the character test that a decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
With respect to Direction 110 the submission makes reference to the Applicant’s earlier submission of 16 January 2025 which posits that consideration of minor children weighed very heavily in favour of revocation as did the impact on immediate family members in Australia including Australian permanent residents, a factor that weighed heavily in favour of revocation. With respect to the strength, nature and duration of ties to Australia that this consideration weighed heavily in favour of revocation as did evidence of rehabilitation, evidence of remorse, and consideration of Australia’s non-refoulement obligations. The submission notes that the Minister’s representative proposed in their SFIC the following weightings. That with respect to the primary consideration, namely the best interests of minor children that this factor strongly favoured revocation. That with respect to primary consideration 3 the strength, nature and duration of ties to Australia that “overall, moderate weight could be given under this consideration, in favour of revocation”. With respect to the legal consequences of the decision the submission notes the respondent’s view was that this consideration favoured revocation of the cancellation of the Applicant’s visa.
The Applicant’s representative’s response to the Minister’s SFIC notes that a number of relevant points made in the Applicant’s SFIC “have been disregarded, misunderstood or even misrepresented by the Minister’s Representative”.
Firstly, that the sentencing of the Applicant on 25 September 2024 by the Fairfield Local Court related to an incident on 23 September 2023 which was steal from a person goods to the value of less than $2000 and assault occasioning actual bodily harm. The submission notes that the knife offence, along with the possession of prohibited drug and equipment for administering prohibited drugs and the contravention of an apprehended violence order related to offending on 22 September 2023 and were being conflated with the offending of 23 September 2024.
The submission notes that it is the Applicant’s contention that there was only one occasion in which the Applicant served a term of imprisonment and that was in 2024 and that the 2013 prison sentence imposed in Western Australia was suspended. The submission further notes that it is unclear what the 2013 charges in Western Australia related to, as the available evidence referred to a charge of assault occasioning bodily harm and an assault occasioning actual bodily harm.
The submission takes umbrage with the Respondent’s assertion that the Applicant’s criminal offending involved an act of violence in 2013 and again in 2023. The submission notes that there are questions about whether the sentence in 2013 can be relied upon.
The submission notes that the description of the Applicant’s offending in September 2023 by the Minister’s representative as “brazen and self-interested” is baseless as the incident involved the theft of a mobile phone and an assault that resulted in a minor injury.
The submission notes that there is evidence of rehabilitation undertaken by the Applicant including information pertaining to a voluntary admission to the Nepean Hospital to treat his opiate addiction and posits that there is sufficient evidence before the Tribunal with respect to the Applicant’s rehabilitation for the Tribunal to find that this is an additional reason for the revocation of the cancellation decision.
The submission also notes that the Minister’s representative has made a number of assertions with respect to the Applicant’s Bridging R visa. Namely that the Minister asserts that if the Applicant complies with his Bridging R visa conditions, he will not experience ‘acute separation’ from his family that he would experience if he was held in immigration detention. The submission again takes umbrage with the suggestion that limited weight should be applied to the legal consequences of the cancellation decision by virtue of the fact that the Applicant will remain in the community. The submission notes that the December 2024 amendments to the Migration Regulations means that the Minister can provide the Applicant with written notice that the Minister is satisfied that the visa holders removal from Australia is reasonably practicable, and that the Applicant could be placed on a removal pathway which the Applicant would be required to comply with.
In conclusion, the submission notes that the Tribunal needs to determine whether the Applicant passes the character test and that it is submitted that on the available evidence he does. However, in the event that the Tribunal finds that the Applicant does not pass the character test, that it is submitted that the Tribunal has discretion to revoke the cancellation if there is another reason to do so. In respect to these considerations the Applicant was reliant on submissions made with respect to Direction 110 made at review.
REVIEW HEARING
The Tribunal conducted a review hearing on the 19 and 20 February 2025.
The Applicant appeared in person at the hearing with his representative Mr Franco Del Monaco who appeared by video. The Respondent was represented by Ms Hervee Dejean from the Australian Government Solicitors. Mr Jonathan Hutton from Australian Government Solicitors appeared at the review hearing on behalf of Ms Dejean due to her unavailability.
At the outset of the review hearing the Tribunal went into detail about the process of merits review, the respective issues in the review and outlined details about how the hearing would be conducted.
The Applicant’s representative advised the Tribunal that the Applicant was reliant on the SFIC, supplementary submissions and statements that had been made to the Tribunal at review.
The Applicant’s representative noted that the Applicant’s SHEV had been cancelled and that the delegate in reviewing the cancellation decision had decided not to revoke the cancellation. It was noted that the Applicant was granted a temporary protection visa in 2017. The Applicant’s representative noted that a number of documents had been provided by the Minister’s representative on the day of hearing prior to its commencement. The Applicant’s representative noted that the Western Australian Supreme Court severity appeal decision was not referenced in the delegate’s decision and could be deemed to be potentially prejudicial to the Applicant.
The Applicant’s representative noted that the Applicant first arrived in Australia in 2011 and made claims for protection. The Applicant was held in immigration detention for an extended period of time. The Applicant was subject to a protection obligations evaluation and the associated appeals process, namely, an independent protection assessment. In 2011 the Applicant provided a statutory declaration with respect to his claims for protection. The Applicant’s representative noted that the Applicant spent from 2011 to 2016 in immigration detention. The Applicant was issued with his SHEV in 2017. Aside from the assault incident in immigration detention in 2011 the first offending of the Applicant related to his drug addiction at which time he was sentenced in the Parramatta Local Court in 2020 for possessing a forged prescription and possessing a prohibited drug. The next tranche of offending did not occur until 2023, once again involved charges with respect to the possession of prohibited drugs along with the possession of equipment for administering prohibited drugs and custody of a knife in a public place which the Applicant has maintained was held by him for work purposes. This fact has not been challenged.
The Applicant’s representative noted that there are a range of offences that occurred on 22 September 2023 and 23 September 2023 which were bundled into an aggregate sentence by the Fairfield Local Court.
The Applicant’s representative identified that there were a number of significant issues that the Tribunal needed to determine. Firstly, whether the Applicant passed the character test. The Applicant’s representative noted that the Minister’s representative had provided a range of authority that suggested that an intensive correction order as imposed by the District Court of New South Wales in February 2025, grounded the cancellation of the Applicant’s visa. The Applicant’s representative suggested there was some conjecture around this. This was based on the fact that the Applicant was not sentenced to a full-time custodial sentence.
The Applicant’s representative noted that if the Tribunal found that the Applicant did not pass the character test the Tribunal was required to determine whether there was another reason or reasons for revoking the cancellation. Once again, the Applicants representative stated that the Tribunal should have regard to the Applicant’s SFIC and the Applicant’s statement and various submissions and statements that had been provided in support of the Applicant’s review. The Applicants representative noted that the Minister had conceded that weight should be apportioned to some of the considerations in Direction 110 but that these countervailing considerations were outweighed by considerations with respect to the protection of the Australian community and expectations of the Australian community.
The Applicant’s representative advised that the Tribunal was requested to look at the nature and seriousness of the Applicant’s criminal conduct and the frequency of that conduct. The Applicants representative contended that most of the Applicant’s offending was related to his drug addiction and the balance was not of a serious nature. With respect to the knife possession charges, despite the fact that there was more than one, that the Applicant was only carrying knives with respect to employment reasons. The Applicants representative characterised the Applicant’s drug addiction as being more akin to a health issue.
The Applicants representative made reference to the 2011 offence. He noted that shortly after the Applicant arrived in Australia, he was the subject of a refugee status determination which was refused. The representative noted that the person that was impacted by the assault or the persons that perpetrated the assault were not Australian citizens.
With reference to the September 2023 offending, the Applicants representative noted that the offending that occurred on 22 September 2023 related to the Applicant not wearing a helmet on a bicycle and being pulled over by the police. At the time that the Applicant was pulled over he was in the possession of illicit drugs for personal use and equipment for the administration of illicit drugs. The Applicant was also in possession of a knife which he maintains was for work purposes. Because the Applicant made threats of self-harm, he was taken to the Bankstown Hospital mental health unit for an assessment.
The offending of 23 September 2023 occurred the morning after the hospital assessment on mental health grounds and involved an Uber delivery driver blocking the Applicant’s driveway and when asked to move his vehicle giving the Applicant ‘the finger’ and the Applicant engaging in an inappropriate way by slapping the Uber driver. The offending escalated as a consequence of the Applicant breaking his watch and stealing an iPhone from the Uber driver to compensate him for the damage to the watch.
The Ministers representative addressed the Tribunal and advised that the Minister had no objection to the material filed by the Applicants representative on Monday 17 February 2025 as it related to material and issues that had been raised in previously submitted documents. The Ministers representative noted that there had been reference to the 2011 incident of offending in Western Australia in the submitted documents and that the Minister had merely undertaken a search of the relevant Supreme Court case with respect to this offending and provided a copy to both the Tribunal and the representative of the Applicant.
The Ministers representative made submissions to the Tribunal with respect to the outcome of the severity appeal in the District Court of New South Wales and made reference to section 7 of the Crimes (Sentencing Procedure) Act 1999 NSW, and, submitted that an intensive correction order is a term of imprisonment for the purposes of s 501 of the Act. It was submitted that the issue before the Tribunal was whether there was another reason or reasons for revoking the cancellation of the Applicant’s SHEV.
The Ministers representative stated that there was no objection to the Tribunal considering the documents submitted by the Applicants representative pertaining to the government’s agreement with Nauru.
The Applicants representative advised the Tribunal that the Applicant was reliant on the statements he had made, the submissions lodged on the Applicant’s behalf and other statements in support of the Applicant provided to the Tribunal. The Applicants representative noted that the Applicant currently resides with his Australian permanent resident partner in Canley Vale and that she was born in Iran in 1993 and along with her family was granted offshore humanitarian visas and came to Australia in 2008.
The Applicant met his partner in 2021 and they dated for one year before deciding to reside together. The Applicant’s daughter was born 22 October 2022 and his son was born on 3 February 2025. The Applicants representative noted that both the Applicant’s son and daughter are Australian permanent residents and have a right to Australian citizenship. The Applicants representative noted that in 2022 the Applicant and his partner moved to Smithfield and that the house in which they were residing was destroyed in a fire and that the Applicant and his partner lost all of their possessions.
With respect to the offending of 23 September 2023 the Applicant’s representative suggested that the incident was more akin to a “road rage” incident and that it was not planned and was spontaneous. The Applicant had been struggling with mental health issues and had been taken to a mental health facility the night before the offending by police. The Applicant had been traumatised by an extended period in immigration detention during which he developed substance abuse issues. The Applicants representative noted that the Applicant had been engaged in a number of detoxification admissions to hospital and had seen drug and alcohol counsellors whilst in prison and in immigration detention. The Applicant had been the subject of detoxification at Fairfield Hospital and the Nepean Hospital. The Applicant has also been prescribed injections which are designed to negate his opiate drug abuse. The Applicants representative noted that the Applicant spent six months in prison on remand followed by a brief period in immigration detention and that he has been residing in the community for a number of months and has been drug-free during this period.
The Applicants representative noted that the Applicants partner struggled with the impact of the Applicant’s visa cancellation. Whilst the Applicant was detained in prison the Applicant’s partner was heavily pregnant and had to look after an infant daughter which led to her becoming very stressed and anxious. The Applicants representative noted the Applicant was a committed father who was actively involved in the care of his daughter and was committed to being involved in the care of his recently born son. The Applicants representative noted that the Applicant had worked in a number of different jobs as a carpenter installing kitchens, and as a carpet layer and that there was an opportunity for the Applicant to obtain employment with car wreckers. The Applicants representative noted that the Applicant’s partner’s parents and brother are Australian permanent residents and ar supportive of the Applicants relationship with his partner.
The Applicants representative made reference to an apprehended violence order taken out by the police in November 2024. The Applicants representative submitted that there was no violence involved in the domestic violence incident. The Applicant and his partner had been attending hospital for an antenatal visit were having an animated argument outside the hospital that came to the attention of members of the community who called the police. The Applicants partner gave evidence with respect to this incident and advised that she lashed out at the Applicant and scratched him, and the Applicants representative noted that the apprehended violence order was initiated by the police and not by his partner. The Applicants partner gave evidence that they attempted to have the apprehended violence order removed but were told they would need to have witnesses with respect to their argument in the hospital grounds willing to provide evidence in court. This was not possible.
The Applicants representative noted that with respect to breaches of the apprehended violence order the Applicant was pulled over with respect to a driving issue whilst in the company of his partner which led to a breach. A further breach occurred on New Years Eve in 2023 and a further breach in September 2023. The Applicants representative noted again that there was no violence with respect to the domestic violence offending.
The Applicants partner gave evidence to the Tribunal noting that she met the Applicant in 2021, and that they commenced a relationship, and their daughter was born in 2022 and their son in February 2025. The witness advised that she met the Applicant through her brother. She described the Applicant as being a kind and gentle person who unfortunately had suffered from drug addiction. The witness stated she made it clear to the Applicant that he needed to stay off drugs for the relationship to be able to survive and continue. She advised that she and the Applicant moved in together to a property in Merrylands and later to a property in Smithfield which was destroyed in a fire. The witness stated that after the Applicant lost a position of employment that they were under financial pressure and started to argue and that the Applicant reverted to drug use to cope with the stress. The witness stated that she and the Applicant had argued in the past about his drug use. The witness made reference to the incident that occurred at hospital in April 2022 when the couple were arguing, and community members called the police. The witness stated that it was the police that initiated the apprehended violence order and that she and the Applicant had tried to have the apprehended violence order removed or altered. They had not been successful in doing this. The witness stated that the Applicant had engaged in two admissions for detoxification from drugs at Fairfield Hospital and the Nepean Hospital. She described the Applicant as being a great father with good parenting skills and that he assisted her with all aspects of parenting of their daughter and since the birth of their second child, their son. The witness stated that she really needed the support of the Applicant and that she loved him and was committed to him and wanted to be with him. She stated that the Applicant had suffered a lot of pain during the course of his life and that unfortunately he had used drugs to self-medicate and that she is hopeful that the Applicant will continue to heal going forward.
The Ministers representative asked the witness a number of questions with respect to the apprehended violence order. The witness stated that the argument that ensued in the hospital was with respect to the Applicants drug use and that as a consequence of the argument the Applicant was punching himself. The witness stated that she scratched the Applicant who was holding car keys which he threw and the alarm to the keys broke. The apprehended violence order that was issued meant that the Applicant could not come within close proximity of her but there were no restrictions with respect to their daughter.
The Ministers representative asked the witness about the Applicants drug rehabilitation. She confirmed the periods of detoxification in hospital. She advised that under his current parole conditions that he has been directed to engage with Narcotics Anonymous and that she had explained the conditions that are attached to the Applicant’s intensive corrections order made by the District Court of New South Wales in February 2025 to him. The witness also stated that the Applicant had been having injections to reduce his dependency on opiate related drugs. The witness was asked how things had been between the couple since he had been released from prison and detention. The witness stated that the injections that the Applicant was having with respect to his opiate drug use were quite debilitating and she was hopeful that there could be other alternative treatments going forward. She stated that the Applicant had fitted back into family life and had been a good partner. She advised that his drug use in the past had made him aggressive. She advised that the Applicant was very good towards their daughter and that he maintained a good relationship with her parents. The witness stated that she believed the period that the Applicant was incarcerated was a good lesson for him. The witness stated that the Applicant was overseen by a parole officer in the community with a number of powers of supervision.
The Applicant gave evidence to the Tribunal. The Applicant advised that he was granted a SHEV in 2017. The Applicant stated that he still holds a fear of being returned to Iran. The Applicant explained the different iterations in the spelling of his surname. With respect to the Applicant’s offending on 23 September 2023 in Canley Vale New South Wales the Applicant stated that he was deeply ashamed of his behaviour and that he is not a violent person. The Applicant stated that he needed to accept responsibility for the offending. The Applicant stated that during the assault his watch was broken. The Applicant stated that the day before this incident he was riding a bicycle and not wearing a helmet and was searched by police who found drugs in his possession along with a knife used for occupational purposes. The Applicant stated that he threatened self-harm and as a consequence the police had him transported to the Bankstown Hospital for a mental health assessment. The Applicant stated that he had a hammer in his possession, also for work purposes that was taken by staff at Bankstown Hospital. The Applicant stated the very next day he was wanting to find work and an Uber delivery driver had blocked the driveway and he asked him to move and was given ‘the finger’. The Applicant stated that he understood and accepted that there was no excuse for his reaction and behaviour.
The Applicant stated that he attended drug detoxification at Nepean Hospital and Fairfield Hospital and that he had been administered injections to assist with his opiate addiction. The Applicant had attended programs whilst he was in custody with respect to drug use and his behaviour with strategies to minimise aggression and violence. The Applicant stated that he is currently overseen by a community correction officer from Fairfield by the name of Patrick. The Applicant stated that he will be attending Narcotics Anonymous going forward and is required to comply with the conditions attached to his intensive correction order.
The Applicant stated that he loves his daughter and son and wants to be involved in their life and provide support to his partner. The Applicant acknowledged that his behaviour in September 2023 was threatening and once again the Applicant apologised for his behaviour with respect to the delivery driver.
The Applicant was asked questions by the Ministers representative. The Applicant advised that he was born in Iran in September 1986 and that he left that country in the middle of 2011, and arrived in Australia on 27 July 2011 when he was 26 years old. The Applicant stated that he was detained in the Curtin Detention Centre for a period of about 14 months and then he was transferred to a detention centre in Melbourne after a fight occurred in the detention facility in Western Australia. The Applicant confirmed that he was granted a SHEV in August 2017. With respect to his work history the Applicant stated that he had been involved in carpet laying, cabinet making and cabinet installation. The Applicant stated that prior to his current relationship that he had a previous relationship with an Australian woman named Katrina. The Applicant stated that over the time of that relationship he predominantly lived in Melbourne however he did spend some time in Sydney.
The Applicant stated that he started using drugs in immigration detention in Melbourne predominantly methamphetamines, marijuana, and painkillers, including Tramadol and Tarjin.
The Applicant stated that he was detained in the Melbourne immigration detention facility for four years and that he came to Sydney in 2020 just before the outbreak of the global pandemic. The Applicant stated that he initially lived with his cousin and then eventually met his partner through her brother and that they developed a relationship and eventually moved in together. The Applicant stated that during this time he experienced periods of homelessness which exacerbated his drug use. The Applicant stated that when he was in Sydney he used methamphetamines, heroin and marijuana. The Applicant was asked the last time he used methamphetamines and he advised around a year ago in 2024. The Applicant stated that he had an argument with his partner, caught up with an old friend and engaged in drug use. The Applicant was asked the last time he used heroin and he advised about six months before he went to prison, so about 12 to 18 months ago. The Applicant was asked the last time he used marijuana and he advised about six months before he went to prison.
The Applicant advised that he met his partner in 2021 in Sydney and that he obtained work in Sydney in carpet laying, demolition, and a number of other mixed jobs.
The Applicant stated that he was committed to his partner and his children and saw a great future with them. The Applicant was asked to describe his relationship with his partner historically and he advised that there had been ups and downs but since he ceased using drugs things had improved. The Applicant confirmed that most of the issues in the relationship were drug related. The Ministers representative made reference to the apprehended violence orders. The Applicant stated that the initial apprehended violence order came about as a consequence of the Applicant and his partner arguing in public. The Ministers representative asked the Applicant whether he had been aggressive towards his partner, and he advised that he had not. He advised that with respect to the apprehended violence order there was no physical fighting that they were arguing in hospital public environment, and it did not look good, and that he threw the car keys down on the ground. The Applicant stated that the police attended, and he was kept overnight at the police station and released on bail and issued with an apprehended violence order. With respect to the finalisation of the order the Applicant stated that he was not represented by Legal Aid and there was no interpreter present for the proceedings. The Ministers representative noted that there had been three breaches of the apprehended violence order and the Applicant stated that he remembered two of them. The Applicant stated that the breaches had occurred because he was not allowed to be within 150 metres from where his partner resided and that they had engaged in contact. The Applicant stated that he and his partner attempted to challenge the apprehended violence order but were not able to do so. The Applicant stated that he attempted to have the apprehended violence orders changed and that he approached Legal Aid for assistance with respect to this. This attempt was unsuccessful. The Applicant stated that in order to have the apprehended violence order lifted with respect to the incident of him arguing in the hospital grounds that he was told that he would need to find witnesses who had observed the incident and that this was not possible.
The Ministers representative asked the Applicant whether he avoided contact with his partner to comply with the apprehended violence order and he advised he did his best to comply but because of the fact that they had a daughter in common that he thought he needed to contact his partner in order to seek permission to have access to his child. The Applicant was asked whether he lived with his partner whilst the apprehended violence order was in place and he advised that initially he did, but after the first breach they tried to stay apart, and the Applicant stated that he was living with friends and relatives.
The Applicant was asked about drug rehabilitation that he had engaged in. The Applicant stated that he was planning to attend a Narcotics Anonymous meeting next week in Fairfield. The Applicant stated that he had attended some courses whilst in prison and immigration detention. The Applicant stated that he had undertaken a number of detoxification programs in hospital. The Applicant stated that since he was released into the community in December 2024 that there had been limited opportunity to engage in drug rehabilitation programs because he was looking after his daughter and assisting his heavily pregnant partner.
The Ministers representative questioned the Applicant about the 2011 assault occasioning bodily harm in Western Australia whilst he was in immigration detention. The Applicant stated that he was sitting in the dining room with a number of fellow detainees. The Applicant stated that the victim hit his friend with a broken melamine plate and the Applicant claimed that his actions were in self-defence and that he was an innocent party. The Applicant initially entered a not guilty plea and stated that when the matter was dealt with in the Supreme Court his lawyer told him to enter a guilty plea. The Applicant stated that throughout that court process he had access to a Legal Aid lawyer but not to an accredited interpreter. The Applicant stated that he was told by his lawyer that the judge would give him a discount with respect to sentence if he pleaded guilty. The Applicant stated that he punched the victim because he felt that he might be attacked with the broken plate that the victim was holding. The Applicant stated that he also ended up initiating a guilty plea because he wanted the case to move on so that he could pursue his immigration case. The Applicant stated that during the court proceedings in Western Australia that he and his fellow offenders knew nothing about Australian law and trusted the lawyers that were assisting them. The Applicant stated that he did not fully understand the impact of pleading guilty and that he had a few video interactions with his lawyer prior to the Supreme Court proceedings. The Applicant claims that the lawyers had initially told the Applicant to plead not guilty but on the last day advised him to plead guilty.
Reference was made to the Applicant’s convictions for possession of a knife in September 2023, June 2024, August 2024, and September 2024. The Applicant was asked why he had knives in his possession on these occasions. The Applicant stated that on the first occasion he was on a bicycle and had a knife in his possession because he had been travelling to a job site and that when he arrived the job had been cancelled. Reference was made to the Applicant being found in possession of a multi toolkit and a knife with a 15 cm handle and a box cutter. The Applicant stated that these were items in his possession used for work purposes.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s children are only 2 years of age in the case of his daughter and 2 weeks old in the case of his son.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia should be given strong weight with respect to the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 should be given strong weight in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.
The Applicant’s first instance of criminal conduct was in 2011 when the Applicant engaged with 3 co-offenders in an assault against a fellow detainee in immigration detention in Western Australia. This led to the Applicant being made the subject of a suspended sentence. The next offending occurred in 2020 and then 2023 and related largely to personal drug offences one possession of a forged prescription and equipment for the administration of illicit drugs. The offending all points to an ongoing drug addiction that commenced when the Applicant was in immigration detention a time when he had been assessed by a psychologist as suffering with a persistent major depressive order with drug use being a form of self-medication at that time. The habit continued when the Applicant was released into the community although it should be noted that between 2016 and 2020 there was no recorded offending history or indeed between March 2020 and March 2023.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
On balance with respect to Primary Consideration 5 the Tribunal gives some weight against the revocation of the cancellation of the Applicant’s visa to this consideration.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
As has been noted the Applicant has been found to be owed non-refoulement obligations by Australia as reflected in an International Treaties Obligations Assessment dated 20 November 2015. That assessment found that the applicant had a real chance of being persecuted for a refuges Convention reason, as defined under the Refugees Convention and the Applicant’s fear was well-founded. The assessor also concluded that Australia has non-refoulement obligations with respect to the applicant.
Paragraph 9.1.1 of Direction 110 provides:
(1) Where the protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non- citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them-see sections 48A and 48B of the Act). Further, as a result of the refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations
The Tribunal has had regard to Section 197(3)C of the Migration Act which addresses the relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198 of the Migration Act it states that:
Relevance of Australia's non - refoulement obligations to removal of unlawful non - citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non - refoulement obligations in respect of an unlawful non - citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non - citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non - refoulement obligations in respect of the non - citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non - citizen to a country if:
(a) the non - citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non - citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non - citizen is complete within the meaning of subsection 197D(6);
(iii) the non - citizen has asked the Minister, in writing, to be removed to the country.
There is no evidence before the Tribunal that the International Treaties Obligations Assessment finding with respect to the Applicant has been quashed or set aside or that a decision has been made under subsection 197D(2) in relation to the non-citizen is complete, within the meaning of subsection 197D(6), or that the Applicant has asked the Minister to remove him from the country.
The evidence indicates that as the Applicant is the subject of an International Treaties Obligations Assessment which finds that Australia has non-refoulement obligations to the Applicant and that he consequently does not face the prospect of removal to Country A.
The Tribunal has had regard to the Migration Amendment (Removal and Other Measures) Bill 2024 which was given Royal Assent on 4 December 2024.
The effect of these amendments is that they require non-citizens who are on a removal pathway and who have exhausted all available avenues to remain in Australia to cooperate with any steps that are taken for the purpose of arranging their lawful removal from Australia. The amendments also provide for the cessation of certain bridging visas (such as a Bridging visa R) which is currently held by the Applicant, in circumstances where the holder of the bridging visa has been granted permission by a foreign country to enter and remain in that country and enables the Minister to make a decision that a protection finding would no longer be made in relation to a non-citizen who holds a visa as a removal pathway non—citizen.
Section 76AAA of the Migration Act 1958 (the Act) provides for the cessation of certain bridging visas:
Cessation of certain bridging visas--holder has permission to enter and remain in another country
(1) This section applies in relation to a non - citizen if:
(a) the non - citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the non - citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and
(c) the foreign country is a party to a third country reception arrangement (within the meaning of section 198AHB) that is in force; and
(d) none of the following apply:
(i) the non - citizen has made a valid application for a protection visa that has not been finally determined;
(ii) the non - citizen could not be removed to the foreign country because of subsection 197C(3) if the non - citizen were an unlawful non - citizen;
(iii) the non - citizen is a child under 18.
Submissions were made by the Minister’s representative at hearing with respect to the impact of these amendments having regard to the Tribunals consideration of the legal consequences of decision under section 501 or 501CA of the Act.
Those submissions in essence are that the Tribunal is required to confine itself to an assessment of the immediate legal consequences of the cancellation of the Applicant’s SHEV visa. These consequences are that as the holder of a Bridging R visa the Applicant will be able to remain living with his partner and children in the Australian community and that he will not be able to be removed to Country A.
The Tribunal notes again that the Applicant was found to be owed non-refoulement obligations by Australia in 2015 via an International Treaties Obligations Assessment and he was granted a SHEV in 2017. He has resided in Australia since 2011 and since 2016 after his release from detention in the Australian community. He has been in a relationship with an Australian permanent resident since 2021 and there are two Australian permanent resident children of that relationship aged 2 and the other child aged 2 weeks.
The effect of the 4 December 2024 changes to the Migration Act means that in the event that the Applicant’s visa cancellation is not revoked that his SHEV visa which offers him safe haven and further offers him the prospect of applying for a resolution of status visa which will lead to permanent residence will become tenuous. The Tribunal acknowledges that there is a predicative element in how this will play out, however it is beyond dispute that the prospective legal consequences of these changes now mean that the for the purposes of section 198, it is irrelevant whether Australia has non - refoulement obligations in respect of an unlawful non - citizen.
At any time, the Minister may make a decision under sub-section 198(2) of the Act and it is “an officer's duty to remove as soon as reasonably practicable an unlawful non - citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non - refoulement obligations in respect of the non – citizen”.
The legislation enables the Minister to impose a removal pathway direction if there is a third country that has given the Applicant permission to enter and remain in that country and a protection finding is not made in respect of that country. Furthermore, that in the event that the Applicant objects to or fails to comply with the removal pathway the Act empowers the imposition of criminal sanctions upon the Applicant. These legal consequences, irrespective of them being speculative and based on an exercise of executive power and are a reality for the Applicant that were not applicable prior to 4 December 2024. The Tribunal finds on this basis that they are a legal consequence attributable to the December 4, 2024, amendments and that they directly affect the substantive legal rights of the Applicant.
The uncertainty and predictive element that can be attributed to these changes will also have an adverse impact on the Applicant’s partner and his two dependent infant children.
The Tribunal has had regard to the definition of ‘legal consequence’ in which states it is “the result of an action that directly or indirectly affects substantive legal rights or obligations”.
These ‘other considerations’ when cumulatively considered lend weight to the revocation of the cancellation of the Applicants visa.
(b) Extent of impediments if removed
If the Applicant is removed from Australia the following impediments may come into play. The Applicant could be removed from his Australian permanent resident partner and his two Australian permanent resident children. The Applicant could be potentially removed to a third country and depending on the economic and social circumstances of that country may act as an impediment to the Applicant in re-establishing his life and in his ability to create economic stability going forward and to maintain interaction with his partner and dependent infant children going forward.
(c) Impact on Australian business interests
The evidence before the Tribunal indicates the Applicant acquired skills in carpentry, as a cabinet installer, and carpet layer during the time he worked in Australia, experience which is of value to the Australian community during a period of trade skill shortages.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative. The Tribunal also relies on evidence of factors in place that will mitigate the risk of future offending and act to mitigate risk to the Australian community.
(b)Primary Consideration 2 is not relevant and hence no weight is given to this consideration.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh in favour of the revocation of the cancellation of the Applicant’s visa.
For the stated reasons the Tribunal gives some weight to Primary Consideration 1 and the protection of the Australian community with respect to the cancellation of the Applicant’s visa. No weight is apportioned to Primary Consideration 2 as it is not relevant. Strong weight is given to Primary Consideration 3 with respect to the revocation of the Applicant’s visa. Strong weight is given to Primary Consideration 4 respect to the revocation of the Applicant’s visa. Primary Consideration 5 is given weight with respect to the cancellation of the Applicant’s visa due to the offending history and the prescriptive requirements of this consideration. The Tribunal gives weight to other considerations with respect to the revocation of the Applicant’s visa. Cumulatively considering the Primary Considerations and the Other Considerations the Tribunal finds, in what it considers to be a finely balanced decision, that the cancellation of the Applicant’s visa should be revoked.
The Tribunal has given careful consideration to all of the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also given careful consideration to the Other Considerations. The Tribunal finds that having regard to the totality of the evidence and with respect to those considerations, that the cancellation of the Applicant’s SHEV visa should be revoked.
Accordingly, the Tribunal is satisfied that the cancellation of the Applicant’s visa should be revoked.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked
Date(s) of hearing: 19 & 20 February 2025 Advocate for the Applicant: Mr F. Del Monaco, Registered Migration Agent Solicitors for the Respondent: Mr J. Hutton, Australian Government Solicitor
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