Gardiner and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 171

Gardiner and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 171 (12 February 2025)

Applicant/s:  Michael Gardiner
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9707
Tribunal:Senior Member L. Nicholls
Place:Sydney
Date:12 February 2025
Date of written reasons:     12 February 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

....................[SGD]..............................
Senior Member L. Nicholls

CATCHWORDS

MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s visa – character requirement – substantial criminal record – Direction 110 – primary and other considerations – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – strength, nature and duration of ties to the Australian community – best interests of minor daughter – expectations of the Australian community – legal consequences of decision – reviewable decision set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [38] per North ACJ;

Pavey and Minister for Home Affairs [2019] AATA 4198 at [44];

FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104] per Stewart J;

Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3953 at [156]-[160] per Deputy President Boyle;

Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 per Feutrill J at [12]-[14];

VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [428];

Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [69]-[70] per Rangiah J;

SECONDARY MATERIALS

Direction 110 — Migration Act -Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

Statement of Reasons

This is an application for review of a decision of a delegate of the Respondent dated 20 November 2024, not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant and his witnesses gave evidence at a Tribunal hearing held on 6 February 2025. The Applicant gave evidence by video conference and his daughters gave evidence by teleconference.

Material Before the Tribunal

The Tribunal has before it the documentary material which is included in exhibit “HB” (Hearing Bundle),[1] together with the oral evidence of the Applicant and the Applicant’s two daughters. The Tribunal has also considered the written and oral submissions of the parties (which are included in HB).
[1] HB 1-191.

Background

The Applicant is a national of New Zealand. He is 55 years old and prior to the cancellation of his visa, he was the holder of a Special Category (Temporary) (Class TY) (subclass 444) visa.
The Applicant arrived in Australia in 2000 when he was 30 years old after he met his former wife in New Zealand, while she was there on a holiday. The Applicant and his former wife married in 2003 and the couple had two children who are now respectively 19 and 16 years of age. The Applicant and his former wife separated in 2015 and subsequently divorced. The couple have co-operatively co parented their two children since the separation.
Both daughters provided letters setting out the nature of their relationship with the Applicant,[2] and both gave oral evidence to the Tribunal during the hearing.
[2] HB 23-25.
The Applicant was previously in a relationship with his former partner, Sara, from 2022 to 2024. At the time of the cancellation, she provided a statement setting out the circumstances of the relationship and the couple’s long-term plans. The Applicant gave evidence at the Tribunal hearing that this relationship has since broken down due to the impact of his detention and the couple’s personal circumstances.
The Applicant has one brother and two sisters who live in Australia. The Applicant gave evidence at the hearing that he speaks to his brother regularly and that his elder sister is particularly supportive, even though she lives in North Queensland, and it is difficult to have much face-to-face contact. He has little contact with his youngest sister who lives on the Gold Coast, Queensland.
On 24 August 2023, the Applicant was convicted in the District Court of Queensland with the offence of “Stealing goods in transit by clerks and servants to the value of more than $5000”.[3] The Applicant was sentenced to four years imprisonment, which was to be suspended after the Applicant served a period of 12 months imprisonment.
[3]
At the time of his offending, the Applicant was employed by Prosegur, as an armoured vehicle officer. After his employment was terminated in 2021, he was employed by a transport business as a truck driver in Brisbane until he was sentenced to a term of imprisonment in August 2023. The Applicant served 12 months imprisonment in Queensland, and following his release, he was taken into immigration detention where he was present at the time of the Tribunal hearing.

LEGISLATIVE FRAMEWORK

The relevant legislation is summarised by the respondent in the Statement of Facts, Issues and Contentions and the Tribunal adopts that summary as set out below:
10. Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
11. The character test is defined in s 501(6) of the Act. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’: s 501(6)(a) of the Act. The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
12. Direction 110 sets out principles that provide a framework within which decision makers should approach the task of deciding whether to, among other things, revoke a mandatory cancellation decision under s 501CA (at paragraph 5.2). Paragraph 6 of Direction 110 states that a decision-maker must take into account the considerations identified in paragraphs 8 and 9 (summarised below) where relevant to the decision.
13. Paragraph 8 of Direction 110 sets out the following primary considerations:
(a) protection of the Australian community from criminal or other serious conduct;
(b) whether the conduct engaged in constituted family violence;
(c) the strength, nature and duration of ties to Australia;
(d) the best interests of minor children in Australia; and
(e) expectations of the Australian community.
14. Paragraph 7 of Direction 110 relevantly provides that: 3
The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
15. Paragraph 9 provides that the Tribunal must also take into account other considerations insofar as they are relevant. These include but are not limited to:
(a) the legal consequences of the decision;
(b) the extent of impediments if removed; and
(c) the impact of Australian business interests.

CONSIDERATION

The issues to be determined in this review are whether the Applicant passes the character test and, if not, whether there is another reason why the original decision should be revoked.

Does the applicant pass the character test?

It is not in dispute that the Applicant does not pass the character test.
Section 501(6)(a) provides a person will not pass the character test if they have a ‘substantial criminal record’: s 501(6)(a) of the Act. The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
The evidence before the Tribunal includes the “Check Results Report” produced by the Australian Criminal Intelligence Commission on 26 October 2023 Transcript of Proceedings,[4] District Court of Queensland delivered on 24 August 2023,[5] Verdict and Judgment Record District Court of Queensland 24 August 2023,[6] and Queensland Corrective Services report dated 28 September 2023.[7] These documents all record that the Applicant was convicted of one count of ‘Stealing as a Clerk or Servant to the value of more than $5000’ and was sentenced to imprisonment for four years with an order that imprisonment be suspended after serving a period of 12 months imprisonment.
[4] HB 77,78.
[5] HB 79-82.
[6] HB 83.
[7] HB 84,85.
The Applicant gave oral evidence that he had been sentenced to imprisonment of 12 months or more and he accepted that he did not pass the character test as defined in s 501(7) of the Act.
The Tribunal finds that the Applicant does not pass the character test set out in s 501(6) of the Act.

Is another reason why the original decision should be revoked?

The issue for the Tribunal is whether there is another reason why the cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), having regard to the primary and other considerations contained in Part 2 of Direction 110.
The Respondent submits, and the Tribunal accepts, that this involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [38] per North ACJ.
The Tribunal has considered each consideration set out in Direction 110 in turn, having regard to the principles in 5.2 of the Direction.

8.1 The protection of the Australian community.

This consideration requires the Tribunal to keep in mind when considering the protection of the Australian community, that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal 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 they have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal has considered the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct.

8.1.1 The nature and seriousness of the conduct.

The circumstances of the offence are set out in an agreed statement of facts provided to the Queensland District Court.[8]
[8] HB 179-180
The statement commences by stating that the Applicant had been an employee of Prosegur Australia Pty Ltd from 2003, as an Armoured Vehicle Officer servicing automatic teller machine (ATMs). The statement includes an explanation of the ATM process, the facts of the offending, the arrest and interview of the Applicant. From 21 December 2017 until 16 July 2021, the Applicant stole cash from the reject satchels of the ATMs he serviced as part of his employment. The Applicant would take money from the purge satchels before they were sealed and place the cash in the pockets of his pants. The Applicant would wait until the other AVO who accompanied him was distracted, or had gone to the bathroom, to steal the money. Over a period of three and a half years, it was estimated the Applicant stole between $124,083 and $141,540 from his employer. His employer noticed discrepancies in cash amounts concerning ATM collections performed by the Applicant and his partner. The employer set up a covert camera which showed the Applicant placing cash from the ATM into his pockets at the ATM and the rear of the Armoured Vehicle. The applicant advised the investigator that he accepted full responsibility for the allegations of theft and that his work partner had no knowledge of the thefts.
The Applicant was interviewed by police and made full admissions of the thefts. He stated he used the money to pay bills and used some to make cash deposits into his bank account.
In the sentencing comments made by the District Court on 24 August 2023,[9] Judge Williamson stated that the offending was a serious example of this type of offending because of the amount of money stolen, the period over which the offending took place, and that it had occurred during a period where he was employed to protect the money he eventually stole. The Court referred to the Applicant’s history and that up until these events he was a man of good character contributing to society. He noted that part of the explanation for the offending was that he had been disgruntled towards his employer and the thefts were a way of taking revenge on his employer.
[9] HB 80-82.
The Court noted from the pre-sentence report that the Applicant does not have a drug or alcohol problem, and as such this does not point to an explanation for the offending. He notes that the Applicant is suffering from some depression, that the sentence will involve the first time in custody, and he has no criminal history. He stated that there was no reasonable alternative to a term of imprisonment and considered that the term of imprisonment should be four years. Having regard to all the circumstances, he ordered that the period to be served in custody should be 12 months, taking into account it would be the Applicant’s first time in custody, and that it will be a significant period for him, where he will face an unclear future including possible deportation. The Court stated that to turn things around, the Applicant needed to acknowledge the offence and develop insight. He stated that on what he had read, he was confident that the applicant would have that insight.
The Tribunal notes that the offence was a financial offence and does not fall within the categories of crimes or conduct mentioned in 8.1.1 (a) and (b) which are viewed very seriously or seriously by the Australian government and community; those being, violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children, acts of family violence, causing a person to enter into or being a party to a forced marriage, crimes committed against vulnerable members of the community or government representatives or officials, conduct which forms the basis for a finding that is dependent on the decision makers opinion and crimes committed in immigration detention or escaping detention. However, the Tribunal notes that the range of conduct that may be considered as serious is not exhaustive.
The Tribunal notes that the sentencing Court described the offence committed as a serious example of this type of offending and the Applicant in his oral evidence, stated that he accepted that it was a serious offence. He did not try to minimise or diminish the nature of the offence and the Tribunal considers this reflects the attempts the Applicant has made through programs in prison, counselling and programs in detention, to develop the insight which the Court referred to in the sentencing comments.
In considering the nature and seriousness of the offending, the Tribunal must also consider the matters set out in 8.1.1 (d) to (i). In that regard, it finds that the impact of the offending was on the Applicant’s former employer and, while there is no evidence, the Tribunal infers that the employer would have suffered a financial loss due to the Applicant’s conduct. The Applicant’s offending took place over a period of three and half years and was not a single event, but was a single pattern of events which culminated in the conviction for that single offence. There is no evidence of repeated offending.
With respect to whether the Applicant has provided false or misleading information to the Department, the delegate noted that the Applicant had not disclosed a previous conviction in New Zealand, when he completed incoming passenger cards on 4 May 2013 and 7 February 2014. The Department provided a copy of the New Zealand Police Check, which disclosed that the Applicant was previously convicted in New Zealand of a false statement of an offence committed on 12 August 2017.[10] In a statement to the Department dated 29 July 2024,[11] and in his oral evidence, the Applicant stated that when he was 27 years old, he had pleaded guilty and had been convicted of an offence, where he falsely claimed he had been assaulted when he had been working at a hospital. He completed 50 hours of community service and mistakenly believed that no conviction had been recorded. He referred to the criminal history check made at the time he applied for his security licence in 2001, when he started working for Chubb Security Services. As that check did not show any previous convictions, he mistakenly believed that no conviction had been recorded. He claimed that it was an honest mistake and he had not intended to mislead the Department. The Tribunal found the Applicant gave credible and reliable evidence on this issue and accepts this evidence.
[10] HB 86
[11] HB 105-106
The Tribunal has taken account of the sentencing remarks of the District Court and notes that the Applicant received a sentence of four years imprisonment on the basis that imprisonment will provide conditions helpful to rehabilitation, as well as deterring himself and others from committing a similar offence, and to make it clear to the community that the conduct is denounced.
The Tribunal considers that sentences of imprisonment are the most serious in the sentencing hierarchy. However, in determining the amount of time spent in custody, the Tribunal notes that the Court moderated the amount suggested by the prosecution on the basis of the Applicant’s previous good character, work history, and due to it being his first time in custody and not an insignificant time in those circumstances. While these factors go to mitigation rather than the nature of the offence, the Tribunal considers that the sentence reflected the view of the Court; that the offence, while serious, was not in the category of the worst case of offending.
The Tribunal finds that the nature and seriousness of the Applicant’s conduct is serious.

8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The Tribunal has had regard to the Government’s view that the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, so serious that any risk that it might be repeated may be unacceptable. In assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and the likelihood of the Applicant engaging in further criminal or other serious conduct.

The Tribunal has taken into account the information and evidence on the risk of the Applicant reoffending and the evidence of rehabilitation achieved by the time of the decision.
The Applicant stated in his oral evidence that he accepts that his offending was serious. The Tribunal considers that if he committed the same offence again, it would harm the Australian community. However, the Tribunal does not consider that the conduct is so serious that any risk that it might be repeated is unacceptable.
With respect to the likelihood of his re-offending, the Applicant gave evidence that he would never commit the same offence again due to the impact of his offending on his family and on himself. The Tribunal considers that the Applicant gave credible and reliable evidence, which clearly showed he had a strong and loving relationship with his two daughters and that their written and oral evidence indicated that they were deeply affected by his conviction and subsequent imprisonment.
The Tribunal notes in the pre-sentence report provided to the District Court, dated 24 July 2023,[12] that the author of the report noted in her summary and recommendations for treatment that the Applicant had reported developing feelings of resentment and depression following a workplace injury to his back in 2015. He reported his employer denied responsibility for the injury for several years resulting in him feeling unsupported and aggrieved. His offending commenced after the accident when he identified an opportunity to steal cash that was not counted or readily accountable. There may have been justifying cognitive distortions associated with taking retribution for his employer’s perceived lack of support and loss of potential employment opportunities with the Queensland Police Service. His emotional deterioration and capacity for work for about 12 months also led to his marriage breakup and it is likely that he was experiencing loss, loneliness and some helplessness at that time. At the time the report was written, he had self-isolated and become socially withdrawn. At that time, he was ashamed of his offending and these feelings seem to have interfered with his motivation to engage in treatment for depression. He is generally resilient and self-assured but susceptible to negative thoughts and externalising blame. The author concluded that were he to engage in treatment to reduce negative emotional states he would be expected to recover fully.
[12] HB 181-188.
With respect to the risk of further offending, she stated that the salient protective factor when considering his risk is the impact of his offences upon his two daughters.
“11.4…. He is cognisant of their increasing anxiety and fears, particularly if he is deported to New Zealand in the future. This does weigh heavily on him. His risk of further offending in a similar vein is likely low given his profound shame and remorse….11.5 In terms of sentencing, and in light of his lack of previous offences, Mr Gardiner presents as a suitable candidate for community-based supervision, if the court were minded to consider such an option either at this time or in the future. He presents as highly likely to be fully compliant with any conditions or directions.”
The current evidence before the Tribunal regarding treatment and rehabilitation indicates that the Applicant has engaged in counselling and a program to assist in his rehabilitation while in immigration detention.[13] These include medical and counselling sessions with staff at the International Health and Medical Services (IHMS), a health service provided in immigration detention and attendance at the SMART recovery programme provided in immigration detention. The Applicant and Respondents’ solicitor both noted that the records regarding his latest sessions with the detention centre’s health provider were not available due to a change in the health provider. Taking account of the content of the records provided, the Tribunal accepts that the Applicant has been attending counselling and the SMART recovery program in detention and that both programs have assisted him in dealing with his depression and giving him some insight into the reasons for his difficulties in the past, as well as assisting him with providing tools for coping better in the future.
[13] HB 154-178.
The Applicant also provided reports from a psychologist, Greg Hutcheon,[14] that he had engaged himself for treatment. He submits that the psychologist and the counselling in detention has helped him address some underlying causes of his behaviour. Mr Hutcheon stated that he has conducted nine sessions with the Applicant between 16 September 2024 and 20 January 2024. In his report he noted the following:
oThe Applicant presented as strongly motivated to engage in therapy. He wanted to talk to someone about the suicide of his brother, as he had never discussed the impact of this before.
oHe identified the suicide, his marriage breakdown and his work injury resulting in a depressive event in which his offending behaviour occurred.
oTreatment centred around psycho education and using a narrative therapy approach to explore his styles of coping and failure to seek support from others.
oIt was suggested that the pattern of his behaviour was consistent with autism spectrum disorder (high functioning). The Applicant reported he understood this, and this helped him understand himself. It was recommended that he should consider authoritative assessment of this in the future.
oHis family culture and experiences had resulted in a pattern of not seeking support or sharing issues. They identified ways in which he could journal his thoughts to help them build inside an understanding and acknowledge and address issues in the future.
oHe was able to identify several obsessions and compulsions and whether it was possible that the pattern of stealing from his workplace without being able to understand why and not having a plan of what to do with the money may have some consistency with obsessive compulsive rituals.
oHe engaged in cognitive processing during the treatment and progressed well and made an earnest effort to identify and challenge negative schemas that he had developed around guilt and responsibility. Further work needs to take place in relation to his obsessive thoughts and compulsive rituals.
oMr Hutcheon recommended continuing psycho education regarding obsessive-compulsive disorder as well as values-based goalsetting. He noted that the Applicant indicated he wished to continue with psychological programs in the future.
[14] HB 13-33.
When questioned about the reasons for his offending, the Applicant stated that following his back injury and the death of his brother and marriage breakdown, he experienced depression. He stated that this did not fully account for his offending and he accepted that there was no excuse for stealing from his employer, despite feeling somewhat aggrieved regarding earlier treatment by his employer and for reasons of his depression.
He explained that the counselling and treatment that he has received while in immigration detention has helped him “open up” about issues that concerned him and has taken a huge weight of responsibility from his shoulders in relation to personal matters. He would like to continue counselling in the future as it has assisted him to date.
In response to questions from the Respondent’s solicitor, he stated that although the sentencing judge had stated that the reason for his offence was because he was disgruntled towards his former employer, this was not the sole reason. He referred to his back injury and the treatment he experienced from his employer and the lengthy period of time which it took for the matter to be resolved. At the time of his offending, he stated there was a lot going on, including his depression, his marriage breakdown and the difficulties he had in expressing himself. He stated he now had a more positive attitude on life following his counselling and psychological treatment. His psychologist had helped him develop a few tools to deal with his personal issues, for example, he uses a meditation programme he has downloaded on his laptop. Counselling has assisted him with negative thoughts and excessive rumination about matters in the past. He has learned to deal with issues on a day-to-day basis. He has also learnt to identify trigger points when he is in a depressed state. He noted that he if remained in detention he would continue counselling and if he was released, he intended to continue counselling and that his family doctor has provided a list of counsellors he can access and who were covered by Medicare.
He stated that he had too much to lose if he reoffended and wanted to prove to his daughters that he was a good person. He explained that since he and his wife separated in 2015, they had cooperatively co-parented their daughters and he had a very strong and loving relationship with them.
On the evidence before it, the Tribunal considers that there is a very low risk of the Applicant engaging in further criminal or other serious conduct. He has provided evidence of his motivation not to re-offend, along with evidence of his psychological treatment and how it has provided him with further insight into his previous conduct and offending. The Tribunal notes that the sentencing judge referred to the importance of the Applicant developing this insight, so as to turn his situation around.
The Tribunal considers the Applicant has significant protective factors in place to avoid re-offending, that being, the positive relationship with his daughters, his psychological treatment and counselling and other positive factors such as his relationship with family members and former work colleagues who have all provided written evidence of their continuing support for the applicant[15].
[15] HB 18-28
The Tribunal considers that the consideration of the protection of the Australian community weighs moderately in favour of affirming the non-revocation of the cancellation.

8.2 Family violence committed by the non-citizen.

There is no evidence of any family violence. This consideration is not relevant and is given no weight.

8.3 The strength, nature and duration of ties in Australia.

Paragraph 8.3(1) of Direction 110 requires the Tribunal to have regard to 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.
Paragraph 8.3(2) of Direction 110 requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a)the length of time the non-citizen has resided in the Australian community, 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;
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(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 evidence before the Tribunal is that the Applicant is 55 years old and was born in New Zealand. He is of Māori background and ethnicity. He was born in Palmerston North, New Zealand. His parents are both deceased with his mother passing away in 1994 and his father in 2013. He is the eldest of nine children and two of his brothers are deceased, one following a truck accident and the other to suicide. He has an older brother living in Brisbane and they maintain contact. He also a sister who lives in Winton North, Queensland and they maintain contact. He has had little contact with his younger sister who lives on the Gold Coast.
He left school in New Zealand after completing year 10 in 1986. He first worked in a factory for three years and then worked as a security guard at the Palmerston North Hospital.
He moved to Queensland from New Zealand in 2000, having met his former wife in 1998, when she was on holiday in New Zealand. After he arrived in Australia, he worked at the immigration detention centre on Nauru from 2001 for two years with Chubb security services and he then moved into the role as an armoured vehicle officer in 2003, where he remained until he was charged in 2021. Prior to his conviction and imprisonment, he worked as a full-time delivery driver for a transport business in Brisbane for about two years.
The Applicant married his former wife in 2005 and they had two daughters, one of whom is a minor. He and his former wife separated after his workplace accident in 2015 and they later divorced. He stated that his former wife initiated the separation as he was self-isolating with depression after the accident. He stated that the separation was the result of his conduct and was not the fault of his former wife. His former wife has since re-partnered and lives in Brisbane with their younger daughter; their elder daughter having left home.
Since his separation he has had two partners, however, neither relationship continued following his conviction and detention.
At the time of the visa cancellation a former partner, Sara, provided a statement setting out the circumstances of their relationship and plans for the future. At the Tribunal hearing the Applicant explained that the relationship had broken down due to the pressures of being detained and the uncertainty of his future.
The Applicant’s former wife provided a statement dated 15 December 2024,[16] setting out her concerns about the impact of any possible deportation of the applicant on their two daughters. She stated that their daughters have always had a relationship with their father and as they enter the challenging phase of their teenage years and early adulthood, they require his emotional and practical support. Both girls are at pivotal points in their lives, one finishing school and the other making important decisions about her future. She stated they need the guidance, love and stability that their father has provided and his involvement in their lives is crucial to their well-being and mental health.
[16] HB 27.
She stated that over time she had witnessed significant positive changes in the Applicant’s behaviour, and noted he has taken full responsibility for his past conduct. She believes he is remorseful and committed to making better decisions and given these changes she believes he will be a more responsible and understanding citizen contributing positively to his community and fulfilling his paternal obligations. She stated that as a mother, she is doing her best to provide for her daughters but cannot replace the unique bond their father provides. She stated raising children is a shared responsibility and that their father’s presence is irreplaceable as they face important milestones. She believes his absence would create emotional and psychological problems for them, which would affect their development and future. She stated they had made significant efforts to parent co-operatively and the Applicant has always been a reliable presence in the children’s lives. His involvement is essential for their emotional support and practical assistance.
The Applicant’s eldest daughter provided a statement dated 15 December 2024. Contained within, she detailed the importance of her father and the impact his deportation would have on her and her well-being. She stated she needed his presence and guidance as she navigates through life, makes decisions, and reaches milestones. She stated she has always dreamt of having her father walking down the aisle at her wedding and being with her when she makes decisions such as purchasing a new home and having children. She stated she and her father’s relationship has always been a positive one and he has always been there for her and loving and devoted to her and her sister. She stated “he is the type of person who would take his jumper off even in the snow if it meant you were kept warm”. Her childhood is filled with loving and positive memories, and she believes her father is remorseful and regrets his actions and is committed to making better decisions. His absence over the last 18 months has affected her and the bond they have cannot be replicated or replaced as she continues to grow older. She stated her father is a kind and loving person who would never harm anyone. She stated her younger sister needs her father as their bond is like no other. She stated her sister was facing a difficult time growing up as she goes through puberty and changing emotions and needs her father to rely on. She stated her younger sister has always been extremely close to their father and he has always been there for the family. She also noted that he has a brother and two sisters in Australia.
The Applicant’s eldest daughter gave oral evidence by telephone and repeated the evidence she had included in her statement.
The Applicant’s youngest daughter provided a statement to the Tribunal. She stated that throughout her 16 years of life, her father has been one of the only constants and she now feels utterly terrified at the thought of losing proximity to her father. She understands that the law has rules, and he broke those rules, but wanted to explain why it was important that her father stay in Australia for the benefit of her sister and herself. She stated that her father had been co-parenting her and her sister with their mother and worked hard every day to give them a chance at a better future and experience a better childhood than the one he received growing up. He has supported her through life with helping with schoolwork; cheering her on at horse riding competitions and helping her when her emotions became too overwhelming to be alone. She has observed that he is remorseful and has made many attempts to better himself since his sentencing. She stated she could not picture her life without him residing in Australia.
The Applicant’s youngest daughter also gave evidence by telephone and essentially repeated the evidence she had given in her statement.
In the Applicant’s oral evidence, he referred to his relationship with his daughters as the most important issue in his life. He explained his belief that if he was deported, it would have an adverse impact on both daughters. He stated that he had made his home since in Australia since 2000, and had two beautiful daughters and that before his imprisonment had a strong and regular personal contact with both daughters. He and his former wife have co-parented since their separation and he has provided regular contact, has paid child support and assisted with school expenses including the purchase of computers, laptops and other school necessities. His eldest daughter is currently studying hair and beauty and hopes to have a career in that industry. She has now left home but calls him regularly and has visited him in detention. His youngest daughter is in Year 11 at high school and despite the earlier period of disruption to her studies, she is currently doing well at school and hopes to enrol in a degree course in veterinary science when she finishes high school.
The Applicant gave oral evidence that he has three siblings who reside in Australia and that he is in regular contact with his elder brother and sister but has little contact with his younger sister who lives on the Gold Coast. His elder brother and sister are supportive. His sister provided a letter asking that the Tribunal exercise compassion in considering the Applicant’s situation. She noted he has a loving family and a strong relationship with his daughters and a co-operative relationship with his former wife.

The Applicant gave evidence he also has siblings who reside in New Zealand and occasionally has contact with them, although does not have the same strong family ties that he has with his daughters and his Australian resident siblings.
The Applicant appears to have had a stable employment history up until his conviction, having worked at the Nauru Detention Centre with Chubb Security Services, and then as an armed vehicle officer servicing automated teller machines. Following the termination of his employment with Prosegur in 2021, he found work with a small transport business in Brisbane and continued there until he was sentenced in 2023.
The Applicant gave oral evidence of his employment history, along with the work and friendship bonds he had formed with former work colleagues at his previous employer. He has provided several letters of support from his employer, as well as work colleagues. Those letters all indicate support for the Applicant and note that they have observed he is a reliable and helpful work colleague. The managing director of the transport business has written a letter stating that he would employ the Applicant if he were to seek re-employment.[17] The Applicant gave oral evidence that the managing director was aware of his conviction, imprisonment and immigration detention and continued to offer him further employment in these circumstances. The Tribunal accepts the evidence that the Applicant’s former employer is aware of the circumstances of his conviction and detention.
[17] HB 20
The Applicant has provided a letter from a work colleague,[18] who stated the Applicant was a hardworking, positive employee of good moral character. His colleague stated that the Applicant has personal items stored at his home and was welcome to stay at his home as long as he needed if he was released.
[18] HB 21
The Tribunal has considered the strength, nature and duration of his ties to Australia. It accepts that the Applicant has a strong and loving relationship with his two teenage daughters who are emotionally dependent on him, that he has lived in Australia and has regarded it as his home since 2000 and has significant family, friendship and employment ties in Australia. His offending commenced at the end of 2017, some 17 to 18 years after he moved to Australia and the evidence indicates that during those 17 years he has contributed positively to his family’s welfare.
The Tribunal finds that this consideration weighs heavily against affirming the non-revocation of the cancellation.

8.4 The best interest of minor children in Australia affected by the decision.

Paragraph 8.4 of Direction 110 provides that decision-makers must make a determination about whether non-revocation is in the best interest of a child affected by the decision.
It is not in dispute that the applicant has one child under the age of 18 years, that is, his daughter.
The evidence before the Tribunal indicates that the Applicant has had a strong relationship with his daughter since her birth and that he has been a loving and committed father both before he and his wife separated in 2015 and following the separation. The Tribunal accepts his oral evidence that, prior to imprisonment, he had an active involvement in her life and following separation in 2015, has had regular weekend and mid weekly contact. The evidence indicates he paid child support before his imprisonment and detention and made other financial contributions. He gave evidence that he continues to have regular telephone contact with his daughter and that she has visited him in immigration detention.
Although his daughter will turn 18 years in less than two years, the Tribunal accepts his written submissions, his oral evidence, the evidence given by his daughters and his former wife that his youngest daughter will “be crushed” if his visa is cancelled, and he is removed from Australia. The evidence indicates that she is in a critical stage of her development and that she needs his involvement to assist in making critical decisions regarding her future.
Both daughters and his former wife provided evidence that they believe he is remorseful and regrets his former conduct. They consider that he has learnt from his actions, is committed to making better decisions and has made significant progress in bettering himself since his sentencing. His youngest daughter stated her father was a good person and deserved a chance to rectify his mistakes. She gave oral evidence that physical separation will negatively affect her life and that her father had always been there for her, and she does not know how she will cope if she cannot have close personal contact with him in the immediate future. When he was first convicted her school grades dropped but have since improved and she is hoping to get a scholarship to enable her to complete a degree in veterinary science. The applicant’s oldest daughter gave oral evidence that she had observed that if the applicant was removed from Australia, her younger sister would “be destroyed” as she has always had a strong relationship with the applicant and was very dependent on him.
The Tribunal accepts the evidence which indicates that the Applicant’s youngest daughter will be adversely affected if the applicant is removed from Australia. The evidence indicates that apart from the period of imprisonment and detention the applicant has had regular personal contact with his daughter and that if he was removed remote contact would be possible but would not provide the continuing personal contact his daughter has previously enjoyed. The evidence indicates he has been a loving and reliable parent and their relationship would be diminished if he was removed. The Tribunal considers it is not in the best interests of his youngest daughter if the cancellation is not revoked.
The Tribunal finds that this consideration weighs heavily against affirming the non-revocation of the cancellation.

8.5 Expectations of the Australian community.

Paragraphs 8.5(1) and (2) of Direction 110 outlines the expectations of the Australian community. Paragraph 8.5(1) sets out the government’s view of the expectations of the Australian community as follows:
(1) 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(2) states
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5 (2) also states that the Australian community expects that cancellation is appropriate if a non-citizen’s conduct raises serious character concerns in Australia or elsewhere of the kind of conduct set out in 8.5(2) (a) to (f). These include acts of family violence, offences relating to forced marriages, commission of serious crimes against women, children or other vulnerable members of the community, commission of crimes against government representatives or officials, involvement in people smuggling, human trafficking, war crimes against humanity and slavery and worker exploitation. The Tribunal finds that the applicant has not engaged in the kinds of conduct set out in paragraph 8.5 (2) (a) to (f).
Paragraph 8.5(3) of Direction 110 states that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australia community.
The Respondent’s solicitor submits that,
This paragraph provides a statement of the Government’s view as to the expectations of the Australian community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the ‘norm’ stipulated above: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]–[93], [100]–[104] per Stewart J; see also Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3953 at [156]–[160] per Deputy President Boyle.
Notwithstanding that the Applicant has not engaged in the kinds of conduct set out in paragraph 8.5(2), he has committed a serious financial offence and failed to meet the Australian community’s expectations.
The Applicant’s commission of the offence, and the breach of law in Australia means the expectation of the Australian community is that the cancellation of the visa should not be revoked. This consideration weighs in favour of affirming the non-revocation of the cancellation.

Other considerations

There are three other relevant considerations, being the legal consequences of the decision, the extent of any impediments the applicant may face if removed from Australia to New Zealand and impact on Australian business interests.

9.1 Legal consequences of the decision.

The Respondent’s solicitor submits that no claims have made, and there is nothing to suggest, that Australia’s non refoulement obligations are enlivened in respect of the applicant and that should the Tribunal affirm the decision that the applicant will remain an unlawful non-citizen and will be liable for removal from Australia (s 198 of the Act).
The Tribunal accepts that no claims have been made with respect to Australia’s non refoulement obligations and none arise on the evidence.
The Tribunal considers that this consideration is neutral, and the Tribunal does not give it any weight.

9.1.2 Extent of impediments if removed.

Paragraph 9.2 states
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant is 55 years old and gave evidence that he sustained a back injury in 2015, and that he underwent surgery in 2015 and 2018 and has some lingering back pain which is well managed with medication. He has been receiving mental health treatment and counselling but otherwise stated he is in reasonable physical and mental health. He did not express any concerns about health care were he to return to New Zealand. However, he stated he would be devastated if he had to return to New Zealand due to the impact on his two daughters.
The Applicant grew up in New Zealand. He speaks English, which is the national language of New Zealand. Australia and New Zealand share similar cultures. The Tribunal finds there are no language or cultural barriers if the Applicant was removed from Australia to New Zealand.
The Applicant stated, and the Tribunal accepts, that he has social and family ties in Australia and would face significant emotional and psychological hardship if he was separated from those persons.
The Applicant has given evidence that he has three brothers living in New Zealand and while they have had limited contact since the applicant moved to Australia, he would be able to seek some support from them should he return to New Zealand. He stated he would find it difficult to find employment given his age, the recession and lack of work experience or connections in New Zealand. He also would not have a place to live if he returned. He visited New Zealand prior to 2020, generally for the purpose of attending funerals. On one visit, he took his daughters to New Zealand so they could see where he was born and grew up.
The Tribunal considers that this consideration weighs in favour of revoking the cancellation of his visa.

9.3 Impact on Australia’s business interests.

No claim has been made, and none arises on the evidence, which might indicate that there would be any impact on Australia’s business interests if the Applicant’s visa is cancelled. There is no evidence that the cancellation of Applicant’s visa would compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal considers that this consideration is neutral and the Tribunal does not give it any weight.

Conclusion

The Applicant does not pass the character test under s 501 of the Act and the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked having regard to the primary and other considerations in the Direction.
There has been significant judicial consideration on the exercise of balancing and weighing considerations contained in the relevant ministerial directions, including a number of Ministerial Directions preceding the Direction.
In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations, and weighed them in light of the evidence and findings using the guidance provided by the direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to the primary considerations. The Tribunal has given the primary consideration of the protection of the community greater weight than any other primary consideration. The Tribunal has assessed the Applicant as being at low risk to the Australian community, but the fact of the previous offending always means there is a slight risk and the Tribunal has given this factor some weight against revocation of the visa cancellation. The Tribunal has also found that the Australian community expects that the cancellation of the Applicant’s visa is not revoked.
The Tribunal has found that the best interests of the Applicant’s minor child weighs heavily in favour of revocation and that the strength, nature and duration of the applicant’s ties to Australia weigh heavily in favour of revocation of the visa cancellation. The Tribunal has assessed the other considerations and considers the extent of impediments if removed to be of some weight in favouring revocation of the visa cancellation. The Tribunal has weighed the consequences of removal and impact on business interests to be neutral.
The Tribunal finds that the combined weight of the considerations that way in favour of revocation outweigh those that favour of cancellation of the applicant’s visa. Those considerations are the best interests of his minor child as well as the strength nature and duration of his ties to Australia and impediments to his removal.
The Tribunal sets aside the decision under review and in substitution decides there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

Date(s) of hearing:	6 February 2025, by video conference
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Jackson