Francisco and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1797
•15 September 2025
Francisco and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1797 (15 September 2025)
Applicant/s: Marcio Rogerio Da Silva Francisco
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4173
Tribunal:Senior Member K. Raif
Place:Sydney
Date:15 September 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 15 September 2025 at 9:22am
Catchwords
MIGRATION – Mandatory cancellation of Applicant’s Class BB Resident Return visa – Ministerial Direction 110 Applied – Applicant does not pass character test – Substantial criminal record – whether there is another reason to revoke cancellation – Applicant arrived in Australia as a child – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Francisco v R [2019] NSWDC 720
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
FYBR v Minister for Home Affairs [2019] FCA 500Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’)
Statement of Reasons
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration (‘the Respondent’) not to revoke the mandatory cancellation of a Class BB Resident Return Visa (‘RRV’) previously held by the Applicant.
The Applicant is a national of Portugal, born in February 1980. The Applicant travelled to Australia in November 1986 and was subsequently granted a number of visas. He was most recently granted an RRV in May 2012.
In September 2019, the Applicant’s visa was cancelled under s. 501(3A) of the Migration Act 1958 (Cth) (‘Act’), and the delegate decided not to revoke the cancellation. In July 2020, the Tribunal (differently constituted) set aside the delegate’s decision and the Applicant’s visa was reinstated.
The Applicant has been convicted of multiple offences set out below. Notably, in February 2023, the Applicant was convicted of offences for which he was sentenced to 18 months imprisonment (aggregate). On 23 October 2023, the Applicant’s visa was mandatorily cancelled. In November 2023 the Applicant made representations to revoke the cancellation and on 12 June 2025 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks a review of that decision.
The Applicant appeared before the Tribunal on 10 and 12 September 2025. For the following reasons, the Tribunal has concluded that the decision dated 12 June 2025 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information, and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
In June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) came into effect. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act. Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa or revoke mandatory cancellation decisions.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with a copy of the Criminal Intelligence Commission Check Results Report issued in August 2024. Information in that report, as well as in the various other documents and submissions, indicates that the Applicant had been convicted of the following offences.
26/02/24 · Enter vehicle or boat without consent of owner / occupier Fines 28/09/23 · Agg B&E dwelling in company steal <= $60000
· Larceny value >$5000 < $15,000
· Assault police officer in execution of duty
(call up) Imprisonment 5 months
Imprisonment 10 months
03/02/23 · Cause obstruction to railway locomotive or rolling
· Found with intent to commit indictable offence
· Destroy / damage property in company
· Drive vehicle across railway crossing
Imprisonment 18 months 16/01/23 · Intimidate police officer in execution of duty Imprisonment 6 months 14/07/22 · Drive motor vehicle during disqualification period Imprisonment 4 months 24/03/22 · Goods suspected of being stolen in / on premises
· Agg B&E dwelling in company steal
· Larceny
· Custody of knife in public place
· Fail to comply with authorised officer – produce information
· Use unregistered registrable motor vehicle on road
· Drive vehicle illicit drugs present in blood
s.10A conviction
CCO 3 years
Fines
09/09/21 · Drive while illicit drug present in blood Fine 29/11/19 · Contravene prohibition / restriction in AVO (domestic)
· Destroy or damage property
· Damage property by fire / exp >= $5000 <=15,000
s. 10A conviction
Imprisonment 3 months
Imprisonment 18 months30/04/18 · Contravene prohibition / restriction in AVO
· Stalk / intimidate intend fear physical etc harm (domestic)
s. 9 bond 29/09/17 · Stalk / intimidate intend fear physical etc harm (personal)
· Assault occasioning ABH in company of others
Imprisonment 6 months
Imprisonment 18 months
24/10/16 · Use carriage service to threaten serious harm Convicted, good behaviour bond 22/07/16 · Possess prohibited drug s. 9 bond 20/05/16 · Resist officer in execution of duty
· Behave in offensive manner in / near public place / school
· Assault officer in execution of duty
s. 9 bond 06/12/12 · Assault occasioning ABH Fine 06/02/12 · Common assault Fine 08/11/11 · Special category driver drive with special range PCA
· Not comply P2 license condition
· P2 class R drive motor cycle > 650 ml
Fines 08/07/08 · Drive on road while license suspended
· Driver state false name / address
Fines 05/08/03 · Fail to quit premises
· Common assault
· Assault occasioning ABH
Fines
s. 9 bond
15/07/03 · Fail to quit premises Fine 24/04/02 · Drive on road when license cancelled
· Class A MV exceed speed
Fines
The Tribunal finds that in February 2023 the Applicant has been convicted of an offence for which he was sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The Applicant concedes that he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE REVOCATION SHOULD BE REVOKED?
The Applicant submits, essentially, that he came to Australia as a young child with his extended family, has extensive links in Australia and has no ties in his home country. The Applicant states that he is an Australian for all intents and purposes and it would be “extremely unfair and inhumane” if, given his particular circumstances, he was deported to a country with which he has no connections. The Applicant submits that his offending occurred when he was suffering from drug dependence and in a fragile state, and he is trying his best to rehabilitate, and has insight into his situation, which is now different to what it was before. The Applicant submits that the considerations that weigh in favour of revocation outweigh others.
The Respondent submits that the Applicant does not pass the character test. The Respondent submits, essentially, that some of the offending (which included violent offending, offending against women, and against police officers) was very serious by reference to the Direction. The Respondent submits that the offending was of an escalating nature and the Applicant had been officially warned by virtue of the earlier visa cancellation. The Respondent submits that primary considerations 1, 2 and 5 weigh very strongly against the revocation and outweigh other considerations.
The Tribunal’s considerations are set out below with regard to Direction 110.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent crimes and crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the Police Facts Sheets, court documents and sentencing remarks, where available.
2023 offending
There are before the Tribunal the sentencing remarks of Acting Magistrate Rabbidge made on 28 September 2023 in relation to the assault of police officer offence. The facts of the offending are described as follows. The police became aware of an incident near a fast- food restaurant. When the Applicant saw the police, he ran away with the police running after him. The Applicant then turned around and charged towards a constable, shoulder-barging the officer. As the Applicant was on the ground, he lashed out in the scuffle towards a constable and connected with the officer in the face.
The Tribunal has been provided with the remarks of Magistrate O’Brien made on 3 February 2023 in relation to cause obstruction and related offences. The circumstances of the offences are described as follows. On 25 June 2021 the Applicant and his co-accused entered the water catchment area of Avon Dam with the intention to commit an indictable offence. The Applicant drove a motor vehicle along railway tracks and when becoming aware of a train, the Applicant warned the driver of the presence of his car and the train stopped before colliding with the car. The Applicant then returned to the car, crossed the tracks and continued to drive before the vehicle slid down an embankment and rested against the tree. When the police attended, the Applicant was found in the driver’s seat and was arrested. His Honour states that the Applicant told the police he was ‘only four-wheel driving’ but within the vehicle the police located a tool bag, electrical items and hand tools used for electrical work. It is reported that during the police interview the Applicant claimed he did not know it was an offence to enter the catchment but acknowledged it was an offence to open the locked gate. His Honour stated that he found the Applicant’s responses in the record of interview to be ‘entirely disingenuous and self-serving’ and rejected the claim that he was in the catchment area for the purpose of four-wheel driving, noting that the vehicle passed through a number of locked gates with the locks being removed at each gate.
2019 offending
The Tribunal has been provided with the judgment in the matter of Francisco v R[1] relating to the Applicant’s appeal against conviction (which was dismissed). The appeal relates to the 2019 conviction for intentionally or recklessly damaging property and intentionally damaging property by fire. The circumstances of the offending are described as follows. In May 2018 a person used a screwdriver to puncture the tyres of another vehicle belonging to Mr J and then set the vehicle alight. The Applicant was arrested and charged with contravening prohibitions in an AVO with respect to his former partner Ms J (the daughter of Mr J). Ms J reported that she saw the Applicant at her father’s car but the Applicant denied his involvement and stated that he spent the time at his brother’s home. This claim was dismissed, as was the appeal. The Tribunal also has regard to the findings of Magistrate McGowan set out in the judgement of 14 August 2019.
2017 offending
[1] [2019] NSWDC 720
The Tribunal has been provided with the sentencing remarks of Hunt J made on 29 September 2017 in relation to the assault offending. It is stated that the Applicant pleaded guilty to two offences, an assault occasioning actual bodily harm and intimidation with intent to cause fear, physical and mental harm. The agreed facts were as follows. The victim Mr G was in the process of building a house. On 18 March 2015 the victim entered the house and was struck to the skull with a hard object twice and fell down the stairs. The Applicant and another offender continued to hit Mr G who suffered injuries to his head and face. The Applicant and the victim drove in a car and at one point the victim ‘exited’ the vehicle and rolled onto the road landing face down. The Applicant drove at the victim and then drove off at speed. The victim suffered concussion, lacerations, cuts and bruises, fractured hand and right leg. His Honour described the offences as being serious and noted that the Applicant had a record, including a number of entries in relation to violence, and had committed another offence, post-dating the ones in question, by assaulting an officer.
His Honor referred to various medical reports relating to the Applicant, stating that following the 2015 offending the Applicant’s mental health commenced to decompensate leading to three admissions, including an involuntary hospital admission. His Honour referred to the Applicant having the support of his family and of his partner, who described him as a ‘changed person’, and to the Applicant’s commitment to psychological and psychiatric intervention, and the Applicant’s employment opportunities; determining that the Applicant was making good rehabilitation and that he had reasonably good prospects of rehabilitation. His Honour accepted that the Applicant was remorseful and that whatever drove him to commit the offences no longer applies to him. (The Tribunal is mindful that, despite that assessment, the Applicant continued to offend).
Other offending
The Tribunal has had regard to the police facts sheet in relation to the 2021 driving offending. It is reported that:
(1)In March 2021, the Applicant was observed parking in a disabled parking bay near a police station and admitted that he did not hold a disabled permit. He was administered an oral fluid test which produced a positive detection to methamphetamine.
(2)In February 2021 the Applicant’s car was stopped and the Applicant was administered an oral fluid test which produced a positive detection of cocaine and methamphetamine.
(3)In March 2021 the Applicant’s car was stopped and a drug test was administered returning a positive result for methamphetamine.
(4)In April 2021 the Applicant’s car was stopped for random testing, the Applicant was subjected to an oral fluid test which produced a positive detention of methamphetamine.
(5)In October 2021 the Applicant was detected driving a car, despite being disqualified to drive at the time. The Applicant initially told the police that he had a license but eventually agreed that he was disqualified.
The police facts sheet indicates that in October 2021 the police observed the Applicant hidden at the back of a car and the Applicant was arrested for breach of bail which prohibited the Applicant from driving or occupying a driver seat. In December 2021 the Applicant was seen occupying the driver seat of a vehicle in breach of his bail conditions and the police observed drug paraphernalia within the vehicle, with the Applicant admitting to being on drugs. No prohibited drugs were found during the search of the vehicle. The Applicant was given the oral fluid analysis was as positive for methamphetamine.
The police facts sheet for the May 2023 offending (enter vehicle without consent) states that on 30 May 2023 an owner of a vehicle realised the car was not where it had been parked. The police located the vehicle on 2 June 2023 and the DNA of the Applicant was located on the steering wheel of the car. The Applicant was subsequently arrested. It is reported that on another occasion on 14 May 2023 the victim left their car at a carpark with the keys inside. It is alleged that the Applicant and another person drove the car away.
There is before the Tribunal the Breach Report prepared in May 2023 stating the Applicant appeared to be in breach of his parole order by failing to report weekly to a community corrections officer. It is noted that since his release from custody in February 2023 he reported only four times. The Report indicates that the Applicant’s response to supervision is poor. The Applicant had not engaged in any external intervention despite repeated directions to do so. Attempts to locate him had been unsuccessful. He failed to attend appointments with support services.
The Tribunal has been provided with the sentencing remarks in relation to some of the earlier offending. Lakatos J (on appeal) described the circumstances of the offending in the sentencing remarks of 20 May 2016 as follows. In January 2015 the Applicant arrived at a premises and appeared to be heavily affected by alcohol or drugs. He stood in the middle of the street yelling abuse and threatening anybody within an earshot and there was considerable fear from those who lived in the area. The Applicant’s brother arrived to assist and there was a verbal argument. The Applicant took hold of a metal pole and threatened to smash anyone who was in his way. The Applicant continued to be argumentative and aggressive after the police arrived and refused to comply with police directions. It took six officers to restrain the Applicant. As he continued to struggle, the Applicant threatened to smash a constable, swore at the officer and spat saliva at the constable, constituting an assault.
The Tribunal has had regard to the sentencing remarks of Magistrate Beattie made on 11 April 2016 (drug supply and other offences). Her Honour noted that the Applicant sought for the offences to be dealt with under the Mental Health (Forensic Provisions) Act and she referred to the report by Dr Adams who assessed the Applicant was suffering from a severe disturbance of the mood. Her Honour noted that the Applicant has a long history of polydrug use, illicit drug abuse, a history of stresses leading to mental illness, and hospital admissions for mental health. With respect to the circumstances of the offending, Her Honour noted that the offence involved possession of a significant amount, almost 5 g, of methamphetamine and a large amount of cash. Her Honour noted that drug possession or supply in that quantity is a serious offence and regarded as serious in the community. Her Honour noted that there did not appear to have been any participation in treatment (drug / alcohol, psychiatric or psychological) and the Applicant had not engaged in any drug / alcohol services and has not done anything to get help to address the issues that he faces despite having several opportunities. Her Honour could not be satisfied that the Applicant would comply with a treatment plan and refused the application to deal with the charges under the Mental Health Act.
The Tribunal has been provided with a number of police facts sheets. The Tribunal acknowledges that these do not necessarily represent agreed facts. In relation to the 2018 offences (contravene AVO, stalk / intimidate) the victim was identified as the Applicant’s ex-partner. It is reported that as a result of domestic violence, an interim ADVO had been issued in January 2018. It is stated that on 19 March 2018 the victim called the police to report a breach of the ADVO. The victim reported to the police receiving 39 calls from the Applicant. In April 2018 the victim saw the Applicant approach her premises and attempting to gain entry. It is reported that the victim held extreme fear for her safety.
Another police facts sheet states that in March 2018 the Applicant entered the home of the victim (his ex-partner) to see his son. The parties have argued in relation to the child and the Applicant started to abuse the victim calling her ‘scum’, a ‘dog’, and a ‘slut’, causing the victim to be fearful for her safety.
The Respondent submits that the Applicant has an extensive criminal offending history, including offences committed after serving sentences of imprisonment and after having his visa reinstated in July 2020. The Respondent notes that the offending involved violent offending, offending against women, drug offending and family violence, and some of the offending occurred while the Applicant was on bail. The Respondent submits that the Applicant’s conduct should be viewed seriously and demonstrates the Applicant’s disregard for the Australian justice system. The Respondent submits that if the Applicant was to reoffend, there is a risk of serious physical and psychological harm to others.
The Tribunal finds that some of the Applicant’s offending involved violence or threats of violence towards others. Some of such conduct occurred in the setting of a domestic or personal relationships and there were multiple breaches of the AVO and stalking and intimidation offending. The Applicant was also convicted of assault / intimidation of police officers in the execution of duty. The Tribunal is of the view that these offences were very serious, and this is also reflected in the fact that the Applicant has been given several custodial sentences. The Applicant had also been convicted of numerous driving offences which had the potential of causing harm to other road users. The Tribunal considers such offending to be also serious.
The Tribunal finds that to date, the Applicant had engaged in serious offending of a nature that can cause significant harm to others.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that Direction 110 provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
In his revocation request the Applicant states that he acknowledges his mistakes and is regretful for his actions. The Applicant states that he was accepted into a 12 month rehabilitation program but could not attend due to the decision on his visa. The Applicant states that he believes if given that chance, he would have received the necessary support and guidance to make positive changes in life.
The Tribunal finds the Applicant’s submission problematic because it cannot be presumed that the Applicant would have engaged in treatment or that he would have done so effectively (noting in particular Beattie J’s comments that the Applicant had failed to engage in any treatment in the past despite having many opportunities). Equally importantly, there is no evidence that the treatment would have been effective. The Tribunal considers the Applicant’s claim – that if his visa was not cancelled, he would have engaged in treatment which would have been effective – to be purely speculative. The Tribunal is unpersuaded by the submission (if that is the submission that is being made) that if the Applicant had been able to engage in the 12 months rehabilitation program previously, he would have made positive changes in his life. That may or may not have occurred and it is purely speculative to state that the applicant would have been rehabilitated if he had engaged in the program for which he was accepted. In any case, the issue before the Tribunal is the applicant’s actual rehabilitation and likelihood of engaging in further offending, rather than the possibility of what may have happened.
The Applicant states in his written submissions that he takes full responsibility for his drug addiction and is committed to seeking help to overcome his addiction. The Tribunal respectfully considers these submissions unpersuasive, given that the Applicant would have made submissions of similar nature to the previous Tribunal and went on to commit serious crimes. Even if the Tribunal accepts that the applicant is committed to seeking help, as noted above, the issue here is the effectiveness of the applicant’s undertakings and the likelihood of further offending.
The Applicant states that he has demonstrated to be a law-abiding citizen and was a union delegate and a Health and Safety representative in the past. The Applicant states that since his release in 2020 he was not able to get back to work which impacted his mental health. The Applicant refers to his rehabilitation and states that he has better opportunities at rehabilitation and reintegration in Australia.
The Applicant provided to the delegate a statement from The Restoration Centre which confirms that the Applicant had been accepted into the Centre’s 12 month residential program from July 2023. There is before the Tribunal a statement from Kim Robin, confirming the Applicant’s participation in the ITS program between March and June 2023 and evidence that the Applicant completed, or participated in, other programs, including the Traffic Offender Intervention program and a SMART recovery program at Odyssey House. The Applicant provided statements from his parents and sister and some character references. The Tribunal is prepared to accept that those who provided statements believe the Applicant has rehabilitated.
The Tribunal accepts that the Applicant had been accepted into a residential program previously however it is not in dispute that the Applicant did not take part in that program. More importantly, there is no evidence that the Applicant will participate in such a program if released into the community. It is not sufficient to state that the Applicant had the intention and the opportunity to do something but was prevented from doing it. The Tribunal’s inquiry is directed to the assessment of future risk, not the consideration of past opportunities.
The Tribunal has had regard to the sentencing report prepared in March 2022 by a community corrections officer. It is reported that the Applicant attributed his offending to drug use, emotional stress and an unmanageable lifestyle. The Applicant reported that he had engaged with a psychologist in the past but this had exacerbated his emotional and drug abuse issues affecting his contact with children and sent him ‘spiralling out of control’ leading to his offending. It is stated that the Applicant had been unable to maintain abstinence from drugs due to unaddressed emotional issues. It is reported that the Applicant admitted to using methamphetamine 2-3 times a week but expressed a willingness to engage in treatment. The Applicant reported suffering from anxiety which deteriorated following separation from his children. The writer indicates that despite admitting his offending, the Applicant had limited insight into the impact on the community. It is stated that the Applicant had been assessed as at a medium risk of reoffending.
The Applicant provided to the delegate an explanation in relation to several incidents in detention.
In his SOFIC the Applicant refers to his multiple mental health issues, including long history of drug abuse, hospitalisations and involuntary admissions for self-harm and suicidal ideations. The Applicant states that it has been accepted by the courts that his mental health issues were triggered by drug use. The Applicant states that the drug use and negative associations contributed to his offending and caused his mental health to spiral.
The Applicant states that upon his release in 2020 he was unable to find work due to Covid and unable to seek support, aggravating his mental health issues. The Applicant refers to the general research concerning the use of drugs, and methylamphetamine, and he states that he is doing his best to reform and rehabilitate, but his struggles with drug dependency have been ‘an enormous impediment to his ability to get clean and stop offending’. The Applicant refers to the sentencing remarks of Acting Magistrate Rabbidge made in September 2023 and states that His Honour determined that he had made genuine efforts at rehabilitation and had good prospects of succeeding. The Applicant states that despite that, his visa was cancelled less than a month later.
The Applicant refers to the courses he completed while in detention as evidence of his rehabilitation, including domestic abuse program, NA and AA programs, managing emotions and others. The Applicant refers to completion of a three month program and states that his case worker believed his offending would cease if the Applicant would have a chance to address the long-term drug dependence. The Applicant states that he has been accepted into a 12 month residential restoration program which he was due to commence in July 2023 but he was placed into immigration detention and was unable to attend. The Applicant states that, given the absence of alcohol and drugs, being now ‘wiser’ and drug-free, given the chance to attend rehabilitative courses, and given the lengthy period of criminal and immigration detention with the risk of deportation and removal from his family, there is now a ‘very low’ risk of reoffending.
The Respondent notes that while the Applicant had completed some courses, and was mandated by the courts in the past to attend drug rehabilitation programs, he continued to use drugs which, on his own evidence, contributed to his offending.
The Applicant told the Tribunal that he has been in immigration detention for close to two years and he used to be able to attend rehabilitative programs but none are presently available. The Applicant states that upon his last release from prison he was accepted into a residential rehabilitation program but was detained before he could attend. The Applicant told the Tribunal that drugs are available in prison and in VIDC, but he is drug-free. With respect to the future, the Applicant told the Tribunal that he wants to move away from his associates, move closer to his daughter with whom he has re-established contact, and get a job. The Applicant submits that he wants to remain drug-free in order to maintain his relationship with his daughter. He states that on the last occasion, he was isolated due to Covid and resumed drug use leading to reoffending, but in the future, he will rely on his family for support to avoid drugs.
The Applicant states in his written evidence that he became addicted to methylamphetamine while a member of the Australian community and he suffered drug dependencies and hospitalisations due to the mental health issues and drug dependencies. The Applicant refers to the comments of DP Rayment and submits that the fact that he reoffended does not mean he is not attempting his best to rehabilitate. In oral evidence the Applicant also relied substantially on the findings made by DP Rayment in the earlier decision. The Tribunal finds that submission problematic. The Tribunal is concerned with the risk to the community and part of that assessment is the likelihood of the Applicant reoffending. If there remains a risk of reoffending because the Applicant is ‘attempting his best’ but such attempts are not adequate or are not effective to minimise the risk of harm, then that is not sufficient. It is not enough to state that the Applicant has tried his best where such best does not remove or effectively reduce the risk he may pose to others.
The Applicant refers to the difficulties he had experienced in 2020 (Covid, limited employment etc) as the reasons for resuming drug use and reoffending. However, there can be no certainty that the Applicant will not experience any number of setbacks or hardship in the future. For example, the Applicant states that it will not be hard for him to get a job in the future, but he concedes that he does not presently have any job offers and has not explored job opportunities. There may also be any number of other issues unrelated to employment that may cause hardship to the Applicant. The Applicant has not satisfied the Tribunal that he has gained the skills and the ability to avoid drugs and negative influences in the future and that he has the skills to manage the setbacks that, he claims, led to his offending in the past.
The Applicant claims that he is now drug-free and intends to remain drug-free. However, he also concedes that prior to the first Tribunal hearing he was able to be drug-free for some time (he claims he ‘succumbed to drugs a couple of times’). In the Tribunal’s view, the fact that the Applicant is (or at least claims to be) drug-free now is not a strong indication that he will remain drug-free if released into the community and the Applicant concedes that he cannot be certain that he will avoid drugs in the future.
The Tribunal considers it significant that the Applicant’s visa was previously cancelled in 2019 and was reinstated by the Tribunal. At that time the Applicant was put on notice that further offending could jeopardise his visa and potentially lead to his removal from Australia. The Applicant concedes in his oral evidence to the present Tribunal that he understood his visa may be cancelled and that he may be removed from Australia if he reoffended. The Applicant told the Tribunal that he made undertakings to the first Tribunal to have a job and “to do the right thing” but he could not get a job during Covid and returned to drug use. Despite the undertaking not to reoffend, and despite being put on notice that he may be removed from Australia if he reoffended, the Applicant went on to commit serious offences following that first cancellation. Indeed, the Applicant concedes that his offending became more serious. The fact that despite his undertakings the Applicant was unable to avoid engagement in criminal activities offers, in the Tribunal’s view, a very strong indication that the Applicant is either unwilling, or unable, to abide by the law and avoid criminal behaviour. The Applicant’s present undertakings not to use drugs and not to reoffend are, in the circumstances, less persuasive.
The Applicant states that his present situation is different to what it was in the past when he reoffended. Firstly, the Applicant states that his primary desire is to repair his relationship with his daughter, who has been able to contact him since turning 18. The Tribunal accepts that the Applicant wants to re-establish that relationship, and his evidence is that he has had some contact with his daughter recently (after many years of non-contact). That does not necessarily translate, however, to establishing a relationship with his daughter. That may happen or it may not. The Applicant’s own evidence is that he does not know what to say to his daughter and that she is like a stranger to him. It will undoubtedly be not an easy task to re-establish that relationship. In the Tribunal’s view, while it is possible that the Applicant will be successful in establishing and maintaining that relationship, it is also possible that any setbacks in that endeavour may have an adverse impact on the Applicant’s mental health and well-being and that may in turn affect his future conduct.
Secondly, the Applicant refers to his father’s dementia diagnosis and the expert evidence which indicates that the Applicant can assist as his mother struggles to support her husband due to her own health. The Tribunal accepts that the Applicant may be in the position to assist but it is the Applicant’s own evidence that he intends to move to Queensland to live with his daughter even if his parents do not move with him and the Applicant told the Tribunal that his parents cannot move while his grandmother lives in the area. Therefore, the Tribunal does not accept that the Applicant will be the primary caregiver to his father, at least in the immediate future, and the Tribunal does not accept that this responsibility will act as a meaningful incentive for the Applicant to avoid drug use and to avoid reoffending.
The Tribunal acknowledges that the Applicant has completed some rehabilitation programs, particularly during his imprisonment. He told the Tribunal he participated in two programs, one around 2016 which he may not have completed, and a 2023 online course, but he had difficulties recalling what these were. The Applicant also completed some programs in jail (again, with limited recollection of these courses and the Applicant concedes in oral evidence that he cannot remember much about the courses). There is little evidence before the Tribunal concerning the efficacy of these programs or the skills the Applicant had acquired as a result of his participation in these courses and this, coupled with the Applicant’s lack of recollection of these courses, raises particular concerns about the efficacy of the rehabilitation. The Applicant told the Tribunal he has had very limited interactions with a psychologist, having spoken to someone twice during detention and limited times prior to his detention. He has indicated his intention to engage in mental health support but there is no suggestion that any arrangements have been made at present. (The Respondent submits the availably of such future supports is speculative.) The Tribunal is not satisfied that the presented evidence establishes that the Applicant has completed effective rehabilitation in relation to drugs and other type of offending and that he has the skills to avoid drug use in the future. The Tribunal is not satisfied that the rehabilitation that the Applicant has completed will significantly reduce his risk of reoffending.
The Applicant told the Tribunal that he will need to engage with a psychologist and reconnect with his daughter. There is no evidence that the Applicant has made any arrangements to see a psychologist (he confirmed in oral evidence to the Tribunal that he has not taken any steps to arrange help from a psychologist or a mental health professional). As noted above, there is no persuasive evidence that the Applicant will be able to re-establish his relationship with his daughter, even if genuinely intends to do so. On his own evidence, the Applicant states that he broke up his relationship with his daughter for the past 14 years (from 2010 until early 2025) and he referred to the hardships of maintaining contact with his daughter. The Applicant refers to his plans to relocate to Queensland but presented no evidence of having explored the practicalities of such a move. The Applicant submits that his family will help him stay away from drugs but the Tribunal is mindful that they have not been able to do that in the past. The Tribunal also notes the Applicant’s evidence that he lived with his parents after his last release from jail but he did not speak to his family about what was going on and he believed his family knew about his drug use. In the circumstances, the Tribunal does not consider that the presence of family and family support, and of his daughter, will act as effective protective factors.
The Applicant’s own evidence to the Tribunal is that he intends to stay away from drugs but cannot positively state that he will not use drugs in the future. That is, the Applicant acknowledges that he may not have the capacity and the skills to avoid drugs in the community. That seems to be a truthful and realistic assessment of the Applicant’s circumstances.
The Tribunal is not satisfied that there now exist effective protective factors that would meaningfully reduce the future risk of reoffending. In light of these concerns, and placing some weight on the 2022 pre-sentencing report which assessed the risk of reoffending as medium, the Tribunal has formed the view that there remains a real risk that the Applicant will engage in further criminal conduct in the future. The Tribunal is of the view that such risk is above minimal. In the Tribunal’s view there is insufficient basis to depart from the 2022 assessment that there is a medium risk of reoffending, and while the Applicant completed several rehabilitation courses and had engaged in other rehabilitation activities, the Tribunal does not accept that these have necessarily been effective. The Tribunal has formed the view that there could be significant harm to the community if the Applicant were to commit similar offences. The Tribunal has formed the view that the protection of the Australian community weighs very heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of family violence related offences, including several contraventions of restrictions / prohibitions of the AVOs.
The Applicant submits that there has been no family violence since the previous Tribunal decision and the issue is res judicata. The Applicant submits that the family violence should not be given much weight against him. The Tribunal is of the view that the principle of res judicata has no application in the proceedings before an administrative tribunal. The Tribunal cannot be fettered in its consideration of issues set out in the Direction and the Applicant’s circumstances. In conducting a de novo review, the Tribunal is able to have regard to the entirety of the Applicant’s offending and is not limited to the offending that occurred since the previous Tribunal decision.
The Applicant also submits that, given the previous Tribunal’s decision that the family violence did not preclude a favourable decision and, given the absence of any family violence offending since the previous Tribunal decision, this consideration should not be given much weight. The Tribunal is of the view, however, that the weight to be given to each consideration is a matter for the Tribunal and the present Tribunal is not bound by any findings or apportionment of weight made by the previous Tribunal.
The Tribunal finds that this consideration weighs against the revocation. In light of the seriousness of the family violence offending, the Tribunal gives this considerable weight against the revocation.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant has been living in Australia since he entered Australia at the age of 6, for a period of about 40 years. He did not begin offending soon after arriving in Australia
The Applicant’s immediate family reside in Australia. His Australian family includes his parents, three siblings, grandmother, nieces and nephews. The Applicant has three children, two of whom are minor. The Applicant claims he has no connection to Portugal, having spent the majority of his life and having been educated in Australia, and does not speak fluent Portuguese. The Tribunal accepts these claims.
In an undated letter to the delegate in support of the revocation request, the Applicant stated that Australia has been his home since 1986 and the only place he has called home. The Applicant refers to the connections within the community and the presence of his three children who are Australian citizens. The Applicant states that it is in the best interests of each of the children to have both parents living in the same country. The Applicant also refers to his parents whom he supports financially and emotionally. The Applicant states that his parents rely on him and his absence would have a significant impact on their well-being. The Applicant refers to his siblings and extended family, nieces and nephews.
The Applicant presented a report by Dr Peter Nguyen which refers to the Applicant’s father having depression and dementia and it is stated that he is being cared for by his wife who has been struggling with worsening health conditions (with chronic back pain, shoulder pain, anxiety / depression and diabetes). Dr Nguyen has expressed his support for the Applicant to stay in Australia to care for his father. There is a letter from Dr Valachova, psychogeriatrician, who also refers to the applicant’s father having late onset depression, cognitive decline and a complex medical history. It is stated that his wife has expressed concern about her capacity to manage his care alone and she relies on the support of the Applicant who plays an essential role in supporting his parents. There is before the Tribunal a statement from the Applicant’s mother dated 15 August 2025, in support of the Applicant.
The Tribunal notes that the Applicant presented no evidence of having provided financial support to his parents and no meaningful evidence of having ever provided emotional support to them. The Tribunal does not accept on the evidence before it that the Applicant has provided financial support to his parents. In terms of practical, physical or other support, the Tribunal acknowledges the professional opinions presented in the various reports, but the Tribunal also notes the Applicant’s own evidence that his family live in NSW and he wants to move to Queensland to be closer to his daughter. The Applicant told the Tribunal that he has not had a ‘concrete conversation’ with his parents about moving to Brisbane and that they could not move with him until his grandmother passes away. The Applicant told the Tribunal that he would move to Brisbane to be close to his daughter whether or not his parents move with him. That is, it is not apparent that the Applicant has the intention of looking after his parents, at least in the near future, if released into the community, and in such circumstances the hardship arising from the unavailability of such support due to the Applicant’s removal is given more limited weight.
Overall, the Tribunal accepts that his family members may be adversely affected if the Applicant was to be removed from Australia. In particular, the Tribunal accepts that the Applicant’s grandmother is elderly and that his parents require a level of care due to their health and other circumstances and that the removal of the Applicant would preclude the possibility of such care. The Tribunal accepts that the removal of the Applicant may also affect his reconciliation and relationship with his daughter and the possibility of reconciliation with the two younger children. The Tribunal accepts that there may be a significant adverse impact on the Applicant’s family members in Australia if the Applicant was to be removed from Australia. The Tribunal finds that this consideration weighs in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
The Applicant has three children in Australia, aged 18, 16 and 8. The Applicant told the Tribunal that his daughter recently turned 18 and they are making efforts to re-establish the relationship. The Tribunal notes that the Applicant’s daughter is no longer a minor.
The Applicant told the Tribunal that he has not been able to maintain contact with the two younger children. He said that he last spoke to his son M around 2012, had some phone contact with the son, and the connection stopped when he started using drugs around 2015. The Applicant told the Tribunal that he wants to re-establish contact with his son. There is nothing to indicate that is a real possibility. The Applicant told the Tribunal that he has no contact with the 8 year old son, does not know about this child’s living arrangements, and he has no contact with the child’s mother. Again, there is nothing to suggest that reconnecting with this child is a real possibility.
There is no evidence that the Applicant has played any parental role, nor any other meaningful role, in relation to the two minor children. There is no evidence of the Applicant providing any support to these children. Given the very limited (or no) contact the Applicant has had with these children in recent years, the absence of any meaningful interaction, and the uncertainty of the future relationship, the Tribunal does not consider on the evidence before it that the best interests of these two children will be adversely affected by the cancellation of the Applicant’s visa.
The Applicant also has nieces, great-nieces and nephews who are Australian citizens. The Applicant claims he has spoken to them occasionally prior to his imprisonment but has had limited contact since his detention. Again, there is no suggestion that the Applicant has had any parental responsibility in relation to these children or that he has otherwise had a close relationship with these children, and their relationship seems to be limited to occasional conversations.
The Tribunal is prepared to accept that it may be in the best interests of these minor children if the Applicant remains in Australia. The Tribunal gives this some weight in favour of the revocation, but very limited weight in light of the nature of the Applicant’s relationship with these children. Further, even if the Tribunal were to find that it is in the best interests of the Applicant’s own children that the Applicant’s visa be reinstated to allow the possibility of reconciliation and a future relationship, the Tribunal would still give very limited weight to this consideration in favour of revocation, given the Applicant’s practical absence from the children’s lives.
Expectations of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
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,[2] 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. Instead, 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.[3]
[2] [2019] FCAFC 185
[3] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) 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 the decision maker must have regard to.
In Ismail[4] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
… para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case”.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
[4] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52].
The Applicant submits that he committed offences in Australia after growing up and living in this country and he ‘did not import his criminality’ into Australia. The Applicant refers to the findings of DP Rayment concerning his personal circumstances, stating that he is, for all intents and purposes, an Australian. The Applicant submits that it would be inhumane and morally wrong to remove him from Australia where he has lived his entire life. The basis for the Applicant’s propositions is unclear. It is not, in the Tribunal’s view, an unassailable or incontrovertible proposition that criminality becomes more tolerable and acceptable to the community if ‘grown’ in Australia rather than ‘imported’.
The Applicant states that, given his arrival in Australia as a young child and the fact that he has served time here, the Australian community would be ‘appalled’ at the prospect of him being deported. The Applicant states that the ordinary enlightened Australian would consider his deportation as being cruel and contrary to the Australian ethos of a ‘fair go’ or ‘second chance’, especially given his lengthy immigration detention following criminal incarceration. Again, the basis for the Applicant’s claims that the Australian community would be ‘appalled’ at the prospect of his deportation is unidentified and unclear. In the Tribunal’s view, the Applicant’s claims do not accord with what the Direction and the case law require.
The Applicant submits that given his personal circumstances and contribution to the community, the Australian community would grant him a level of tolerance, particularly where removal would ‘tear apart’ his family. He submits that the expectations of the community weigh against the cancellation.
The Tribunal does not accept the Applicant’s claims. Firstly, as noted above, the Applicant has made several assertions that are entirely unsupported by any probative evidence and seem to reflect nothing more than his personal views and assumptions. Secondly, the law cited above makes it clear that it is not for this Tribunal to determine for itself what the community expectations may be (which is what the Applicant has invited the Tribunal to do). The Direction provides that the community expects its members to abide by the laws and, where there has been serious conduct in breach of that expectation, the Australian community expects the Government to not allow such a non-citizen to remain in Australia. In the present case, the Applicant has committed serious offences. The Tribunal finds that this consideration weighs against the revocation.
Given the serious nature of past offending and the harm that reoffending may cause to members of the community, the Tribunal is of the view that this consideration weighs heavily against the revocation and that it should be given significant weight against revocation. The Tribunal reaches that conclusion while acknowledging the Applicant’s evidence concerning his personal circumstances, the time he has lived in Australia and other circumstances, and while acknowledging the Direction that the community may grant a higher level of tolerance where the visa holder remained in Australia since a young age. This is because of the nature and frequency of the Applicant’s offending and the risk he continues to pose.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not the subject of a protection finding. The Applicant does not claim, and there is no evidence before the Tribunal to indicate that, Australia’s non-refoulement obligations are engaged in this case.
If the Applicant’s visa remains cancelled, the Applicant would be removed from Australia and may spend time in detention until the removal can be effected. There is no suggestion the Applicant would be subject to indefinite detention. The cancellation of the visa means that the Applicant may not be granted another Australian visa in the future. The Tribunal finds that this consideration weighs in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 45 years of age. He travelled to Australia as a young child and claims to have no connection to Portugal and no fluency in Portuguese. In his revocation submission, the Applicant stated that he would face numerous challenges if deported to Portugal as he has limited support or family. The Applicant refers to language barriers and lack of access to suitable rehabilitation programs. The Tribunal accepts that, given the length of the Applicant’s residence in Australia, there may be considerable language and cultural barriers if the Applicant was to return to his home county.
With respect to his health, the Applicant states that he has a number of mental health issues, including polydrug use, drug induced psychosis, severe mood disorders, including bipolar disorder, depression, and diabetes. The Applicant states that he would suffer emotional distress in Portugal as he will be away from his family and he has no family in Portugal. He has no one to offer him support. There is before the Tribunal a report dated 12 April 2021 which refers to a recent diagnosis of diabetes. In oral evidence, the Applicant referred to multiple recent hospital admissions and his present medications in relation to diabetes, pneumonia and other conditions. There is no evidence before the Tribunal concerning the availability of such medication and healthcare in Portugal.
The Applicant submits that he needs to address his mental health and drug dependency issues and has the ability to do so here but no knowledge of how to do that in Portugal. The Applicant states that he is accustomed to life in Australia and it is unreasonable to expect he will be able to find employment in Portugal where he has not lived for many years, has no language or transferable skills. The Applicant states that it is unclear whether he would be entitled to any welfare payments and his removal may lead to destitution and possibly criminality in Portugal. The Respondent submits that there is no evidence the Applicant would not get the same supports as would be available to the nationals of Portugal.
The Applicant has been living in Australia since the age of 6, has completed his study and training in this country, and had previously been employed and contributing to society. The Tribunal accepts that the Applicant has spent the majority of his life in this country, and that he has strong family, employment, social and other ties in Australia. The Tribunal accepts that the Applicant may not have social, financial or other supports in Portugal. The Tribunal accepts that the Applicant may experience difficulty in finding employment and finding supports in Portugal, at least initially. The Tribunal accepts that the Applicant may experience significant hardship if he was to return to Portugal.
The Tribunal accepts that there would be a significant impediment to the Applicant if he is removed from Australia. This consideration weighs heavily in favour of revocation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal to indicate that a decision not to revoke the cancellation of the Applicant’s visa would significantly compromise the delivery of a major project or of an important service in Australia. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has determined that the Applicant had committed serious offences, and that if he were to commit other offences, there would be a risk of harm to the community. The Tribunal has formed the view that there remains a real risk of the Applicant reoffending because of the limited evidence of the Applicant’s rehabilitation being effective and concerning his ability to abstain from drug use. The Tribunal has determined that the protection of the Australian community weighs very heavily against the revocation.
The Applicant had committed family violence offending, and that also weighs against the revocation. The Tribunal has determined that the expectations of the community weigh against the revocation. The Tribunal gives these considerations significant weight. The Tribunal acknowledges that paragraph 7(2) of Direction 110 states that the primary consideration of protection of the Australian community is generally to be given greater weight than other primary considerations.
The Tribunal accepts that there may be a significant impediment to the Applicant if he is removed, noting in particular the length of time he has lived in Australia and lack of any meaningful connection to Portugal, and also having regard to the Applicant’s personal circumstances, his family and other connections in Australia and barriers to reintegration in his home country. The Tribunal finds that the strength, nature and duration of ties, as well as impediments of removal, are considerations that weigh very heavily in favour of the revocation.
The Tribunal has decided that the best interests of various children may be better served if the Applicant remains in Australia, but the Tribunal gives this consideration little weight in favour of the revocation, given the nature of the Applicant’s relationship with these children (including his own two minor children and various other relatives). The Tribunal also gives little weight in favour of revocation to the legal consequences, given that the Applicant will be precluded from returning to Australia, but also noting that that is the intended consequence of the decision.
The business interests are neutral.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations.
The Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Class BB Resident Return visa.
Date(s) of hearing: 10 and 12 September 2025 Counsel for the Applicant: B Loukas, Sir Anthony Mason Chambers Solicitors for the Respondent: E Letcher-Boldt, Clayton Utz
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