Gibson and Minister for Immigration and Citizenship (Migration)

Gibson and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2063 (1 October 2025)
Applicant/s:  Suzanne Edith Gibson
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4346

Tribunal:General Member L M Gallagher
Place:Perth
Date of decision: 1 October 2025
Date of written reasons: 14 October 2025

On 1 October 2025, the Tribunal made the following decision:

The decision of the delegate of the Respondent dated 8 July 2025 to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s (Class BB) (Subclass 155) Five Year Resident Return visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s (Class BB) (Subclass 155) Five Year Resident Return visa is revoked under s 501CA(4) of the Migration Act 1958 (Cth).
These are the Tribunal’s written reasons.

Statement made on 14 October 2025 at 11:32am
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 47-year-old citizen of the United Kingdom – extent of impediments if returned to United Kingdom or Northern Ireland – Non-Revocation Decision is set aside
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501C (21 June 2024)
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the ‘Delegate’) dated 8 July 2025, not to revoke the mandatory cancellation of her (Class BB) (Subclass 155) Five Year Resident Return visa (the ‘Visa’) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the ‘Migration Act’) (the ‘Reviewable Decision’).
The application for review was lodged with the Administrative Review Tribunal (the ‘Tribunal’) on 17 July 2025,[1] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
[1] Exhibit R1, Document 4, G2.
s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate under s 501CA(4) of the Migration Act.
BACKGROUND
The Applicant is a 47-year-old citizen of the United Kingdom.[2]
[2] Exhibit R1, Document 4, G18.
The Applicant first arrived in Australia from Northern Ireland on 11 January 1988,[3] when she was almost 10 years old and lived in Australia for seven years, returning to Northern Ireland on 28 February 1995.[4]
[3] Exhibit R1, Document 4, G18.
[4] Exhibit R1, Document 4, G18.
The Applicant returned to Australia on 1 April 1998 for approximately five months and returned to Northern Ireland on 19 August 1998.[5]
[5] Exhibit R1, Document 4, G18.
On 25 January 2003, the Applicant returned to Australia on a permanent basis.[6]
[6] Exhibit R1, Document 4, G18.
On 11 February 2003, the Applicant was granted the Visa.[7]
[7] Exhibit R1, Document 4, G19, p 151.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Nationally Coordinated Criminal History Check Results Report by the Australian Criminal Intelligence Commission run on 3 March 2025[8] and a History for Court Report by the Western Australian Police Force compiled on 13 August 2025.[9]
[8] Exhibit R1, Document 4, G6.
[9] Exhibit R1, Document 7, S2, pp 261 to 265.
Between 2015 and 2025, the Applicant was convicted of 35 offences:[10]
[10] Exhibit R1, Document 4, G6.
(a)From 2015 to 2017 – A total of 9 convictions for no authority to drive, driving under the influence of alcohol, contravening red traffic signal and exceed 0.08g alcohol per 100ml of blood.
The Applicant received fines and periods of licence disqualification for these offences, as well as being disqualified from driving for life.
(b)In 2023, the Applicant was convicted as follows:
(i)29 May 2023 – Two counts of breach of police order.
The Applicant was fined $500 for each offence.
(ii)11 October 2023 – One count of breach of police order.
The Applicant was fined $350.
(iii)16 October 2023 – Four counts of breach of police order.
The Applicant was sentenced to a Community Based Order (CBO) for nine months to be served concurrently.
(iv)24 October 2023 – Four counts of breach of CBO imposed on 16 October 2023, along with one count of breach of police order.
The Applicant was fined $300 and sentenced to a continuation of the CBO.
(c)On 6 August 2024, the Applicant was convicted of four counts of breach of CBO on 24 October 2023, one offence of breach of police order, one offence of breached a family violence restraining order (FVRO) and one count of give false personal details to police.
The Applicant was sentenced to a Conditional Suspended Imprisonment Order (CSIO) for 12 months and fined $350.
(d)On 14 January 2025, the Applicant was convicted of six counts of breach of CSIO and one count of breach of police order (index offending).
The Applicant was sentenced to concurrent terms of imprisonment for six months and one term of imprisonment for nine months.
The circumstances of the index offending are that on 27 November 2023, the Applicant breached an FVRO by entering her partner’s premises and hiding behind the couch. The FVRO that was breached was issued against the Applicant on 17 November 2023 and named the Applicant’s partner and his minor age daughter (Child A) as the protected persons.[11]
[11] Exhibit R1, Document 7, S2, p 99.
Present proceedings
On 6 March 2025, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c), with her serving a sentence of imprisonment of 12 months or more on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or Territory (the ‘Cancellation Decision’).[12] The Applicant was notified by letter of the same date, which she received by hand delivery to Bandyup Women’s Prison on 7 March 2025.[13]
[12] Exhibit R1, Document 4, G19.
[13] Exhibit R1, Document 4, G11, pp 112–113.
On 31 March 2025, the Applicant made a request for revocation of the Cancellation Decision under s 501CA of the Migration Act and made representations to the Delegate in support of her request.[14]
[14] Exhibit R1, Document 4, G11 and G12.
On 8 July 2025, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[15] The Applicant was notified of the Reviewable Decision on 9 July 2025, which she received by hand delivery at Perth Immigration Detention Centre (PIDC).[16]
[15] Exhibit R1, Document 4, G4 and G5.
[16] Exhibit R1, Document 4, G3 and G2, p 50. On 29 May 2025, the Applicant was released on parole into immigration detention.
On 17 July 2025, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[17]
[17] Exhibit R1, Document 4, G2.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.[18]
LEGISLATIVE FRAMEWORK
[18] See Migration Act s 501CA(4).
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is ‘another reason’ that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
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)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
7 For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[19] If the person makes representations in accordance with the invitation, the Minister may revoke the Cancellation Decision under s 501CA(4) if satisfied that the person passes the character test or that there is ‘another reason’ why the original decision should be revoked.
[19] Migration Act s 501CA(3).
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the Cancellation Decision should be revoked.[20]
[20] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 10 and 11 September 2025 at the Tribunal’s Perth Registry. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and the Respondent was represented by Ms Miriam Williams of MinterEllison. Both parties’ representatives appeared by Microsoft Teams. The Applicant appeared in person.
At the hearing, the Applicant gave evidence and was cross-examined. The Applicant also called the following witnesses, who appeared in person:
(a)Mr Damien Parker (the Applicant’s fiancée);
(b)Ms Gillian Flahey (the Applicant’s sister); and
(c)Ms Alison Gibson (the Applicant’s twin sister).
The Tribunal marked the Joint Hearing Book prepared by the Respondent as an exhibit (Exhibit R1).
The Tribunal has considered the Applicant’s statements, the statements of the witnesses listed above, along with those statements provided by family and friends.[21]
[21] Including but not limited to those in Exhibit R1, Document 4 (G12 to G17), 5, 6 and 8.
At the hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (‘Direction no. 110’), in their oral closing submissions.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7).
Relevant to the Applicant’s case, a person has a ‘substantial criminal record’ if they have been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.[22] Failure to pass the character test arises as a matter of law.[23]
[22] Migration Act s 501(7)(d).
[23] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, 685 [63].
As noted above, on 14 January 2025, the Applicant was sentenced in relation to the index offending to concurrent terms of imprisonment for six months and one term of imprisonment for nine months.
As the Applicant has been sentenced to a total term of imprisonment of 12 months or more, she does not pass the character test by operation of s 501(7)(d) of the Migration Act. The Applicant agrees this is the case.[24]
[24] Exhibit R1, Document 1 [32].
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[25]
[25] Migration Act s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine, having regard to the primary and other considerations contained within Direction no. 110, whether there is ‘another reason’ why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[26]
[26] Migration Act s 501CA(4)(b)(ii).
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably, and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
Direction no. 110
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction no. 99.[27]
[27] Direction no. 110, paragraphs 2–3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of the Migration Act.[28] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction
[28] Direction no. 110, paragraph 5.1(4).
[29] Direction no. 110, paragraph 6.
no. 110 where relevant to the decision.[29]
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’, including paragraph 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under s 501CA’ and are expressed as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

In making a decision under s 501CA(4), the ‘primary considerations’ to be taken into account by the Tribunal are:[30]
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; and
5expectations of the Australian community.
[30] Direction no. 110, paragraph 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[31]
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
[31] Direction no. 110, paragraph 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in paragraph 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The 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.
3One or more primary considerations may outweigh other primary considerations.
IS THERE ‘ANOTHER REASON’ WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The Applicant contended there were several reasons why the Cancellation Decision should be revoked, namely:[32]
(a)The best interests of the Applicant’s minor stepdaughter (Mr Parker’s biological daughter), who is a 15-year-old Aboriginal Australian;
(b)The impact that her removal and permanent ban from Australia would have on Mr Parker, his biological 19-year-old daughter Shanyka, Shanyka’s child[33] and the Applicant’s sisters, who all have the right to remain in Australia indefinitely;
(c)The Applicant’s periods of not reoffending and her low risk of reoffending; and
(d)The time the Applicant has spent living in Australia (approximately 30 years, having first arrived 37 years ago and spending seven years here as a minor child).
[32] Exhibit R1, Document 1 [35].
[33] On 19 September 2025, the Applicant’s representative advised the Tribunal that Shanyka’s daughter (the Applicant’s granddaughter) was born in Western Australia on 18 September 2025.
The Respondent, however, contended that there is not ‘another reason’ why the Cancellation Decision should be revoked because of the considerations that weigh against revocation of the Cancellation Decision, being:[34]
(a)The protection of the Australian community (determinatively, in the Respondent’s view)[35];
(b)Family violence; and
(c)The expectations of the Australian community,
outweigh the considerations in favour of revocation (being the strength, nature and duration of ties to Australia, the best interests of minor children and the extent of impediments if removed).
[34] Exhibit R1, Document 2 [95] and [96].
[35] Exhibit R1, Document 2 [16].
Protection of the Australian community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community.
Direction no. 110 requires decision-makers to keep in mind that ‘the safety of the Australian community is the highest priority of the Australian Government’ and 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’.[36] In this respect, the Tribunal is directed to 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.[37]
[36] Direction no. 110, paragraph 8.1(1).
[37] Direction no. 110, paragraph 8.1(1).
Paragraph 8.1(2) of Direction no. 110 then provides that 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 Applicant contended that the protection of the Australian community consideration weighs in favour of the Cancellation Decision.
As noted above, the Respondent contended that the protection of the Australian community consideration weighs determinatively against revocation of the Cancellation Decision.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[38] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[39]
[38] Direction no. 110, paragraph 8.1(1).
[39] Direction no. 110, paragraph 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction no. 110 provides:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)    acts of violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant confirmed that the History for Court was a true and correct representation of her criminal history.[40]
[40] See Exhibit R1, Document 7, S2, pp 261 to 265.
The Applicant gave evidence that in June 2014 she was the victim of a carjacking, following which she had months of work due to injuries and was subsequently diagnosed with post- traumatic stress disorder (PTSD). Ms Gibson gave evidence that this incident was a turning point for the Applicant, who had always worked and always been responsible and was a different person after it occurred.
The Applicant said that her nine driving offences had occurred after this carjacking event, between 2015 and 2017, offences of which she is embarrassed, ashamed and will regret for the rest of her life.
The Applicant confirmed that she was not convicted of any offences between 2 November 2017 and 29 May 2023.
The Applicant also confirmed that the 13 counts of ‘breaching police order’ in 2023 were all made for Mr Parker’s protection and the FVRO served on 17 November 2023 prevented her from contacting Mr Parker or entering his residence.
As to the next period during which she did not reoffend (27 November 2023 [release on bail December 2023[41]] to 27 December 2024) the Applicant said she stopped drinking, was active, worked on her health and sleep routine and took her troubles ‘very seriously’ as she knew it was her ‘last chance.’
[41] The Applicant was released to her sister Ms Flahey’s house for several months and was subject to a 6pm curfew. Ms Flahey confirmed this was the case.
The Applicant said that following Mr Parker’s cancellation of the FVRO on 3 January 2024, they resumed daily contact, however her bail conditions prevented her return to his residence until her sentencing on 6 August 2024 for the offences she committed on 27 November 2023.
As to the index offending on 27 December 2024, for which the Applicant was convicted on 14 January 2025, the Applicant said she had fallen on the grass in the park and broken her ribs and foot, her eyes were swelling up and she was having difficulty with her vision. The Applicant said that at this time her face was on fire and she believed she was going to die. The Applicant said that she had returned to Mr Parker’s residence following being told she would be subject to a nine-hour wait at the Emergency Department, where Mr Parker’s son had told Mr Parker to call the police (and a 72-hour police order was subsequently issued) and the Applicant immediately left. The Applicant said she had returned to the residence that evening intending to sleep in the backyard and was held on remand until sentencing and imprisoned immediately after.
Mr Parker gave evidence that on 27 December 2024, he had heard the fence ‘get hit’ and thought someone was breaking into his home and saw it was the Applicant. Mr Parker said he called the police, who took the Applicant away in the afternoon and he had no further contact with her until he learned what she had been charged with.
During cross-examination, the Applicant was taken to a summary of her offences and sentencing,[42] where she explained her understanding of the premise and purpose for which a number of police orders were imposed at various points in time and the extent to which she could recall the events that occurred at these times. When the sentencing judge’s remark dated 6 August 2024 that the Applicant ‘completely ignores the restrictions imposed upon you by other agencies because it doesn’t suit you,’[43] the Applicant said she had gone to Mr Parker’s residence on the one occasion, which was also her own residence at the time and it was her own mistake in doing so because she was prohibited from going there.
[42] Exhibit R1, Document 5, p 26.
[43] Exhibit R1, Document 4, G 7, p 80.
When taken to the sentencing judge’s remark that the fact that she went to the house means that this is not a minor example of breaching a police order, the Applicant said it was her fault and agrees that it was very serious. The Applicant said she had consumed a bottle of wine in the park, that she was not intoxicated, that her face felt like it was on fire and she thought she was having a heart attack.
When it was put to her that alcohol use was a causal factor in her offending, the Applicant said she would drink when she had to leave her residence (because she was prohibited from being there), that she had no family or friends she could go to at that time and she would usually sleep in the park or shelter in the city.
When asked about the circumstances that led to the FVRO being imposed, the Applicant said that it had been ‘a bit much’ with Mr Parker’s adult son Jayden staying with them, so she had gone to Ms Flahey’s house. The Applicant said that Mr Parker told Ms Flahey, who in turn told her, that he was putting an FVRO on the Applicant. The Applicant said it was issued on her when she had attended court for breaches of police orders, that she was upset when she received it, that she understood why it had been issued and knew that it was a very serious matter. The Applicant said that she and Mr Parker were not violent, had never physically fought and never threatened each other, but they argued, there was too much disharmony and something had to change.
When asked, Mr Parker said that on the day the Applicant breached the FVRO, Jayden had called the police and ‘things had escalated from there.’ Mr Parker said that from the time he cancelled the FVRO in January 2024 until the Applicant was convicted on 6 August 2024, he was unaware that the Applicant would be subject to a term of imprisonment for breaching a restraining order.
The Applicant submitted that she accepts her offending conduct was serious and includes repeated instances of drink driving and a lifetime driving disqualification. The Respondent submitted that the Applicant’s index offending is viewed very seriously by the Australian Government and the Australian community as it relates to an act of family violence. The Applicant noted in response that while her offending includes family violence by definition, and she accepts that her conduct was reckless and demonstrated a frequent disregard for police orders, she sought to emphasise that she has never been convicted of violent offending (or sexual offending) per se.
The Tribunal has considered the evidence and the parties’ related submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.[44]
[44] Exhibit R1, Document 1 [40] to [54] and Document 2 [17] to [25].
The Tribunal has regard to the fact that acts of family violence[45] (being the classification of the Applicant’s breach offences[46]) are viewed ‘very seriously by the Australian Government and the Australian community’, which includes the Applicant’s index offending.
[45] Direction no. 110, paragraph 8.1.1(1)(a)(iii). This is regardless of whether there is a conviction for an offence or a sentence imposed.
[46] The Applicant breached 10 police orders and one FVRO.
Similarly, the Tribunal also notes the Applicant’s history of driving offences and its repeated position that such offences are serious crimes against other road users[47] that place the lives of other road users at risk and carry an increased risk of catastrophic harm.
[47] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1, [51]-[54]; Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32, [50]-[51], referring within to Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561, [43]–[45].
The Tribunal notes that the Applicant’s driving offending, of which it considers to be serious in nature, does not fall squarely within the conduct referred to in paragraph 8.1.1 of Direction no. 110. However, it is not strictly required to, as paragraph 8.1.1(1)(b) of Direction no. 110 makes clear that the range of conduct that may be considered ‘serious’ is not limited to the types of crimes or conduct expressly referred to in that paragraph.[48]
[48] Direction no. 110 paragraph 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious’, using the same prefix ‘without limiting the range of conduct that may be considered serious…’.
The Applicant’s offending involved conduct for which she was ultimately sentenced to terms of imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[49] and is, in the Tribunal’s view, probative of the overall seriousness of that offending conduct, noting that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[50]
[49] Direction no. 110, paragraph 8.1.1(1)(b)(iii).
[50] Direction no. 110, paragraph 8.1.1(1)(c). Noting that acts of family violence are considered very serious regardless of whether a conviction or sentence is imposed in any event.
As noted above, the Applicant has a history of offending from 2015 to 2025, having been convicted of 35 offences, including driving offences and breaches of orders.
In relation to the frequency of the Applicant’s offending and whether there is any increasing trend in seriousness,[51] the Tribunal takes into account that the Applicant’s overall offending has been particularly frequent over time, with a trend of increasing seriousness culminating in the index offending.[52]
[51] Direction no. 110, paragraph 8.1.1(1)(e).
[52] Direction no. 110, paragraph 8.1.1(1)(e).
The Tribunal considers that the cumulative effect of repeated offending is serious as it demonstrates a continuing disregard for the laws of Australia and the safety of the Australian community.[53]
[53] Direction no. 110 paragraph 8.1.1(1)(f).
The Tribunal has considered that the Applicant provided a false name to police on a single occasion.[54]
[54] Direction no. 110 paragraph 8.1.1(g).
There is no evidence or claims made that the Applicant was given a formal warning,[55] or committed an offence in another country[56] or in relation to any of the matters set out in paragraphs 8.1.1(1)(b)(i) to (iv) or 8.1.1(1)(d) of Direction no. 110.
[55] Direction no. 110 paragraph 8.1.1(h).
[56] Direction no. 110 paragraph 8.1.1(i).
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has a significant criminal record as evidenced by the terms of imprisonment ordered, the total effective sentence imposed, and the nature of the offences committed, the family violence offending being identified as ‘very serious’ by Direction no. 110 by their very nature.
Therefore, having regard to the evidence of which paragraphs in 8.1.1 of Direction no. 110 are relevant, and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[57]
1In 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 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.
2In 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; and
(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 noncitizen 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[57] See also Direction no. 110 paragraph 8.1(2)(b).

This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[58] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[59]
[58] Direction no. 110, paragraph 8.1.2(2)(a).
[59] Direction no. 110, paragraph 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[60]
[60] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community, should the Applicant reoffend.
The Applicant submitted that while the potential harm to the community if the Applicant were to reoffend (by driving without a licence, especially while under the influence of alcohol, or by breaching an order) is serious, when considered cumulatively with the likelihood of reoffending the risk presented by her is low and should not be considered unacceptable. In support of the Applicant’s submission on the acceptability or unacceptability of the risk, the Applicant noted that the Applicant continues to be in a relationship with Mr Parker, the victim, that he voluntarily revoked the FVRO in January 2024, he is supportive of her remaining in Australia and returning to live with him in due course.[61]
[61] Exhibit R1, Document 1 [55] to [60].
The Respondent, however, submitted that the nature of the harm that would be caused if the Applicant’s offending were to be repeated is so serious that any risk it may be repeated is unacceptable.[62]
[62] See Exhibit R1, Document 2 [27] to [29] and see Applicant’s reply, Exhibit R1, Document 3 [1] to [4].
The Tribunal accepts that the Applicant is genuinely remorseful for her offending and that she understands that should she commit further similar offences, this would further result in very serious harm that may cause considerable physical, psychological and emotional harm to members of the Australian community including her partner, stepdaughters and step-granddaughter.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[63]
[63] Direction no. 110, paragraph 8.1.2(2)(b).
The Applicant said she had been ineligible for rehabilitation during prison due to the brevity of her sentence, however she did complete ‘Be the Best You’ and had a full-time job in the prison kitchen.
The Applicant said that whilst in detention she had seen a drug and alcohol counsellor for an hour each Wednesday, had reconnected with Cyrenian House (having had a previous connection following the carjacking incident) where she could attend once released and had been in touch with Holyoake. The Applicant also said she had had a 50-minute counselling session with Palmerston and was on their waitlist for one-on-one counselling and also has the support of her sisters, Mr Parker and Mr Barrie Mather (her twin’s ex-partner). The Applicant said she would also like extra support from non-family members.
The Applicant said she believes she will never drink alcohol again.
The Applicant said that if she could remain in Australia, she would not reoffend because she was in a ‘dark place’ when she did offend, now she is as clear headed as she has been in many years, she is now talking to her sisters again and she has everything in life that she wanted, other than her visa.
The Applicant said that she ‘cannot believe it got to this,’ that she is ashamed, remorseful and embarrassed and has wasted public resources. The Applicant said her offending was avoidable and due to her own stupidity.
The Applicant said that having spent the last nine months alone, she has worked on her mental and physical wellbeing, the carjacking having triggered her PTSD. The Applicant said that she had started drinking more alcohol after the carjacking. The Applicant said that (back in Ireland) she had ‘seen people being stabbed’ and ‘with their insides hanging out’ and was unable to cope at the time or realise that this was affecting her. The Applicant said that she would have nightmares and wake at night screaming and kicking. The Applicant said that her drinking was her trying to mask a problem and she was struggling daily at this time.
When asked what she had meant by her statement that the Applicant was not an alcoholic, but had had issues with alcohol in the past,[64] Ms Flahey said that the Applicant has an underlying issue of being ‘naïve to things’, of being silly and immature when she drinks (but not violent) that something had to happen for her to stop (drinking) and agreed with the proposition that the Applicant’s alcohol use was linked to her offending. Ms Gibson said that in her view the Applicant’s continued breaching of orders was a ‘cry for help’ and that the Applicant’s current situation is the ‘hardest lesson she will ever learn.’ Ms Gibson on the contrary, did not think the Applicant’s drinking was linked to her offending and rather, that she was ‘lost’ and had not yet got the help she needed. When asked how she could be sure that the Applicant had rehabilitated, Ms Gibson said that the offences occurred eight to 10 years ago, the offences were breaches of orders and she had never hurt anyone.
[64] Exhibit R1, Document 5, p 201.
The Applicant noted the breaching of orders occurred mostly at night, her having a fear of being alone in the dark and men ‘coming at her,’ referring to the carjacking and also to the night of the index offending when she was in the park and she believed two men were making their approach. The Applicant said she no longer needs alcohol as she walks with music and exercises and wishes she had done this years ago. The Applicant said she has not consumed alcohol since the date of her index offending on 27 December 2024 and did not drink between November 2023 and August 2024 when on curfew at her sister’s house. The Applicant said she is currently sober and there is no alcohol in her home. The Applicant said that the fact that her family has seen a change in her, are pleased for her and will support her inspires her even more.
When asked if she would not have repeatedly breached orders if she had not been struggling with alcohol, the Applicant said that in some cases, the breach of orders were not alcohol related.
Ms Flahey gave evidence that whilst the Applicant lived with her for several months in 2024, the Applicant had been determined to get back to work and deal with the issues that she had had and considers the Applicant would pose no risk to the community or to Mr Parker if she were to remain in Australia.
Ms Gibson told the Tribunal that the Applicant had made ‘big changes,’ ‘like she is back,’ that she has never been a risk to the community, only to herself and has never hurt anyone.
Overall, the Applicant contends that the Applicant’s risk of re-offending is low and ‘not unacceptable.’ The Respondent, however, is of the view that the Applicant presents at least a medium risk of reoffending, which is ‘unacceptable’ in the circumstances.
The Tribunal has reviewed the parties’ extensive submissions on the Applicant’s risk of reoffending, which addressed the areas of her engagement with rehabilitation, her outstanding treatment needs, remarks regarding remorse and the relationship between alcohol use and her offending.[65] Having done so, the Tribunal makes the following remarks and findings:
[65] Exhibit R1, Document 1 [61] to [88], Document 2 [31] to [47], Document 3 [7] to [11] and related oral submissions at hearing.
(a)The Applicant lived for 27 years in the Australian community before she offended.
(b)In the context of her driving offences, she has not reoffended since her lifetime licence disqualification in 2017. The Applicant accepts her driving offences related to her alcohol use and she has not driven since or consumed alcohol since the index offending.
(c)The Applicant’s breach offences occurred on 26 and 27 May 2023, 11 October to 27 November 2023 and on 27 December 2024, including a 13-month period during which she complied with the FVRO.
(d)The Applicant accepts she had no regard for adhering to the conditions of the orders imposed on her at various times and made no attempt at the time to address her alcohol use, acknowledging her treatment needs in this regard remain outstanding.
(e)The Applicant has taken steps to engage with drug and alcohol rehabilitation providers if released and has taken any opportunities available to her in the detention environment for rehabilitation and counselling, including individual counselling, phone counselling, reconnection with her GP and registration for face-to-face community counselling services.
(f)The Tribunal notes the Applicant was ineligible for drug and alcohol counselling in prison due to her brief sentence and her having been assessed as having no treatment needs.
(g)While one criticism would be that these engagement efforts are recent, and hence the Applicant’s sobriety remains untested in the community, and only tested in the prison and detention environments, the Tribunal notes that indeed there are many relevant occurrences and circumstances that are recent, including the Applicant’s index offending, imprisonment and detention all taking place within the last year.
(h)Also, the Tribunal recognises that drugs and alcohol are available in WA prisons and detention centres and questions whether, indeed, these environments could be considered as ‘controlled’ and hence whether the Applicant’s sobriety has in face been tested in this way.
(i)The Applicant spoke extensively, acknowledging the seriousness of her offending conduct, her admission of not treating the police orders and FVRO in the manner that the law and the Australian community required or her, her regret, embarrassment, shame and sorrow for her offending, her commitment to seeking professional support to address the factors leading to her offending, to sobriety, to fostering her family relationships and continuing her efforts to maintain her physical health and improve her mental wellbeing.
(j)The Respondent raised concerns regarding the Applicant’s ability to engage with rehabilitation service providers if released given her past failure to respond to opportunities to do so. The Tribunal considers the Applicant’s evidence of her current engagement and future plans for rehabilitation, along with her decision to live with her sister if released rather than reside immediately with Mr Parker, plus her oral evidence regarding where she considers her treatment needs lie and the gains she has made to date alleviate these concerns to some extent.
(k)The Tribunal also departs from the Respondent’s position that the Applicant lacks insight into the offending, has attempted to minimise her offending and has failed to demonstrate meaningful remorse having heard from her orally on these matters at hearing.
(l)The Applicant has stable accommodation available to her if released and is actively seeking work in the mining industry.
(m)The Applicant’s partner and family hold no concerns of her being a risk to the community and have noticed a positive change in her.
In light of the above, the Tribunal finds that there is a low risk that the Applicant will reoffend in a similar manner. However, the Tribunal considers this low risk is unacceptable in circumstances where the harm to the community presented by the types of offending or other serious conduct the Applicant has engaged in is significant.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community consideration weighs heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision:
1The 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 (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)    efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since Otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
‘Family violence’ is defined in paragraph 4(1) of Direction no. 110 as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
For the purposes of the definition of family violence in Direction no. 110, ‘member of the person’s family’ includes a person who has, or has had, an intimate personal relationship with the relevant person.[66]
[66] Direction no. 110, paragraph 4(1).
When taken to the incident report from the night of the index offending,[67] the Applicant said the reference to Mr Parker as her ‘ex-partner’ was incorrect as they never separated, she did not accept that she was extremely intoxicated, that she was yelling, that her daughter had said she was fine and had seen it before and noted the report did not note that she had a broken foot and could not walk. Mr Parker gave evidence to the same effect, although he could not specifically recall the incident. The Applicant reiterated that at this time she thought she was going to have a heart attack, she felt as though her face was on fire and she could not see or walk.
[67] Exhibit R1, Document 7, S2, pp 302 to 303.
When referred to various matters in numerous other incident reports,[68] the Applicant at times recalled the circumstances of these incidents, at other times did not, noted where she considered matters were incorrectly recorded or otherwise indicated where she could not recall a particular matter or did not wish to provide further comment. Mr Parker’s evidence in this regard was largely similar.
[68] Including Exhibit R1, Document 7, S2, pp 313, 318, 328, 329, 334, 339, 340, 362 and 398.
When taken to particular aspects of the Communicare Family and Domestic Violence Assessment Report dated 22 April 2024,[69] the Applicant said:
(a)The assessor’s comments that she adopted minimal responsibility by positing a lack of memory of her family violence offending and that she used behaviours indicative of coercive control and jealousy bewildered her.
(b)Following her assessment by the assessor as being suitable for the Family and Domestic Violence Individual Intervention Program, she attended the initial two-hour appointment and ‘never heard back from them.’
(c)The comment that Mr Parker has another four-year-old daughter from a different relationship was incorrect.
[69] Exhibit R1, Document 7, S1, pp 220 to 226.
When asked why he had called the police at various times, Mr Parker said he did not know how to deal with the Applicant’s drinking, that he had just wanted peace and quiet following their verbal arguments, he wanted ‘a breather’ for him and the Applicant to be able to ‘work themselves out,’ that he did not understand the severity of ‘where we are today,’ that he was ashamed of having done so and had been the one to invite the Applicant back to the residence after the 72 hour order was imposed so that she could collect her boots. Mr Parker said that it was very selfish of him to do this.
When asked why orders were placed on the Applicant more than on himself, Mr Parker said that his child had been present and he did not want trouble, so he called the police knowing that the police would remove the Applicant rather than him, as he had the child and that this would put the Applicant in a position of homelessness. Mr Parker said that he had taken advantage of this being the case and wasn’t thinking properly. Mr Parker said that if he and the Applicant were ever to argue again, he would walk away to diffuse it and ‘wouldn’t do what he did before.’
The Tribunal is required to consider whether family violence considerations arise on any of the submissions, materials or evidence before the Tribunal.
The Applicant accepts that her breach offences committed in the context of her relationship with Mr Parker fall within the definition of family violence (emphasising that physical violence, or the risk of physical violence is not required in order for an FVRO to be issued)[70] and that this will weigh against revocation of the Cancellation Decision.[71] The Applicant contended, however, that the weight should be reduced given the devastating impact a non-revocation decision would have on Mr Parker and the midrange seriousness of the offending (which involved no physical contact).[72]
[70] Exhibit R1, Document 3 [13].
[71] Exhibit R1, Document 1 [89] to [91].
[72] Exhibit R1, Document 1 [91].

The Respondent submitted that the Applicant’s acts of breaching orders have been frequent and have had a significant cumulative effect and that despite the Applicant never having been convicted of any sexual or violent offending, the existence of an FVRO is formal recognition that family violence occurred,[73] such that this consideration weighs heavily against revocation of the Cancellation Decision.
[73] Exhibit R1, Document 2 [55] and [56].
As detailed above, the Applicant’s breach offences committed in the context of her relationship with Mr Parker constitute family violence under paragraph 4(1) of Direction no. 110.
In assessing the seriousness of the Applicant’s family violence, the Tribunal has taken into consideration:
(a)The fact that the family violence offending was not a one-off incident.[74]
(b)The Applicant is, in the Tribunal’s view, genuinely remorseful and wholly apologetic for her conduct against Mr Parker, has sought to address this conduct and demonstrated she understands that her alcohol use contributed to this conduct and disregard for any orders in place is entirely unacceptable.
(c)For completeness, it does not appear that the Applicant was formally warned or otherwise made aware about the consequences of further family violence, noting that the absence of a warning should not be considered to be in the Applicant’s favour.[75]
[74] Direction no. 110, paragraphs 8.2(3)(a)–(b).
[75] Direction no. 110, paragraph 8.2(3)(d).
Having had regard to the various matters set out in paragraph 8.2(3) of Direction no. 110, the Tribunal cannot ignore the Government’s serious concerns about those who have committed family violence entering or remaining in Australia. However, the Tribunal is also of the view that the circumstances of the Applicant’s family violence offending in their entirety and the temporal and contextual history in which it occurred are such that overall, the family violence consideration weighs moderately against revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
1Decision-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.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to 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 gave evidence that she met Mr Parker in 2014 on site, having worked FIFO since 2008 on a 2:1 roster (until approximately 2022). The Applicant said Mr Parker’s daughters had lived with her and Mr Parker in or around 2016 for about one year, then lived full time with their grandmother Ms Ryder (Mr Parker’s mother) and moved primary schools.
The Applicant gave evidence that in 2017, she and Mr Parker secured a rental property close to the Applicant’s stepdaughters’ school and that the Applicant’s stepdaughters then lived with them on a full-time basis when they were home from their two-week swing and then full time with their grandmother Ms Ryder (Mr Parker’s mother) when they were working on site.
The Applicant said she and Mr Parker never separated throughout the time of her offending (imprisonment or detention). The Applicant said that she and Mr Parker had never had any issues ‘until the breaches.’ The Applicant said she was in contact with Mr Parker ‘all day every day,’ that he visited her in detention several times per week and had visited her in prison once every three weeks.[76]
[76] The Tribunal notes that Mr Parker’s evidence accords with the Applicant’s account of their relationship, her relationship with Shanyka and Child A and the living arrangements over time for themselves, Shanyka and Child A.
The Applicant said she has a good relationship with Mr Parker’s sister Vanessa and with his mother, who has had her own health battles and ‘gone through a lot.’
The Applicant said she had raised Shanyka (and her younger sister, Child A) from when they were ‘very young and troubled’ and they would be devastated if she was unable to remain in Australia. Ms Flahey gave evidence that Shanyka ‘thinks the world’ of the Applicant. The Applicant said she would like to be able to give 100% support to Shanyka as a young mother, noting Shanyka is still partnered with her baby’s father who is currently in prison. The Applicant said that she and Shanyka speak ‘every other day.’
As to how her twin sister Ms Gibson would be impacted if the Applicant were removed, the Applicant said it would ‘kill them both,’ there were no words for it and that Ms Gibson has ongoing health issues that she would not get through without the Applicant. At the hearing, Ms Gibson spoke in detail regarding her health issues and her belief that the Applicant would be able to support her with these issues. When asked, the Applicant said Ms Gibson did not receive NDIS assistance but that Ms Gibson and Mr Mather had sold three properties, with most of the proceeds going to Ms Gibson’s medical expenses and that Ms Gibson lives in the spare room of Mr Mather’s house. At the hearing, Ms Gibson confirmed she was not a NDIS recipient and works on a full-time basis.
The Applicant said that if she were removed, her partner Mr Parker would kill himself and she is trying to be strong for both of them. When asked how the Applicant’s detention had affected him, Mr Parker said he had ‘lost the plot’ and had contemplated hurting himself, had fallen behind on rent and had to sell assets but also that he had secured new employment and was ‘taking it day by day.’
The Applicant said that she knows that she would not be able to cope away from Mr Parker, Shanyka and Child A and her own two sisters, that there would be no life for her and her removal would be like a ‘death sentence’ or a ‘life sentence.’
The Applicant said that if she were to remain in Australia, she will live with her twin sister Ms Gibson and Ms Gibson’s ex-partner Mr Mather (who are separated and live under one roof) and has given Ms Gibson’s address for parole. Ms Gibson also attested to this option being available and this would probably be ‘what the Applicant needs.’ The Applicant said she and Mr Parker intend to get their own place at a later time. Mr Parker gave evidence to the same effect. The Applicant said she does not see herself ever walking the streets again or having the need to, given that her sisters have offered her suitable accommodation.
The Applicant said that her goal is to return to FIFO work, however she would be prepared to start with any employment. The Applicant said she had updated her resume and SEEK profile and was applying for jobs daily.
The Applicant said she intended to apply for an e-licence as she would like to be able to drive Shanyka and her baby. The Applicant said she will use public transport if her e-licence is not approved, having done so since 2017.
Mr Parker said that he confided in the Applicant a lot when his father passed away in 2016 and she was his ‘back bone’ at this time.
Ms Flahey said that she was having a difficult time with the ‘whole situation’ and that if the Applicant could remain in Australia, she and her partner would give her whatever support she needs, including a room in her and her partner’s home if needed.
Ms Flahey stated that if removed, Shanyka would be devastated, Mr Parker ‘110% would not cope’ and it would ‘break him,’ her having had conversations with him so he would not harm himself and that she tried not to think about this eventuating.
Ms Gibson said that did not want to think about what would happen if the Applicant were removed and that her removal would also affect Mr Mather who did not have any family other than his mother whom he does not get along with.
The Applicant submitted that the negative impact a non-revocation decision would have on the Applicant’s family in Australia should be given heavy weight in favour of revocation of the Cancellation Decision, that this in itself constitutes a reason why the Reviewable Decision should be set aside and that it outweighs all other considerations in favour of non-revocation.[77]
[77] Exhibit R1, Document 1 [105].
The Respondent, however, accepts this consideration weighs in favour of revocation of the Cancellation Decision but invites the Tribunal to moderate the weight afforded to this consideration having regard to factors such as the nature of her ongoing relationship with Mr Parker.
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal is required to consider any impact of the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to remain in Australia.[78] The Tribunal is also required to consider the strength, nature and duration or any other ties that the Applicant has to the community.[79]
[78] Direction no. 110 paragraph 8.3(1).
[79] Direction no. 110 paragraph 8.3(2).
The Applicant has presented evidence regarding her extensive family ties to Australia and the importance of her being present to continue her relationship with Mr Parker, her stepdaughters, her newborn granddaughter and her sisters. Her immediate family members attest to the strength of these ties and the Tribunal accepts this to be the case.
The Tribunal does not seek to, nor does it consider it necessary to summarise the entirety of this evidence in supporting its ultimate finding that this evidence supports the Applicant’s claims regarding her ties to Australia, and that the strength, nature and duration of ties to Australia consideration weighs very heavily in favour or revocation of the Cancellation Decision. Rather, it emphasises the following matters to sufficiently serve this purpose:
(a)The Applicant has lived in Australia continuously for the last 22 years and for an additional seven years as a child.
(b)Her ties to Australia consist of Mr Parker, her stepdaughters Shanyka and Child A, Shanyka’s newborn daughter, her two sisters, her nephew and niece, her nephew’s minor age son (Child E), Ms Ryder (Mr Parker’s mother), Ms Parker (Mr Parker’s sister) and her sister Ms Gibson’s ex-partner Mr Mather.
(c)The Applicant and Mr Parker have been in relationship for 13 years. Mr Parker and his daughters have never left Australia.
(d)At the hearing, Mr Parker along with the Applicant’s sisters, was visibly and demonstrably devastated at the prospect of her removal, articulating the detrimental impact this would have on their lives and the bases of their inabilities to relocate or visit should she be removed.
(e)In particular, Mr Parker was extremely distressed by this prospect and has engaged in counselling in an endeavour to cope and to manage his recent admission that he wishes to end his life. Mr Parker expressed his regret for having called the police in relation to the Applicant, regrets having issued the FVRO without having an understanding of its conditions or duration and the flow-on impact that this has had on Child A, given his decreased ability to ‘be a good father.’
(f)The Tribunal accepts that the Applicant has been heavily involved in Shanyka’s and Child A’s[80] upbringing and the Tribunal accepts that it is her wish to support Shanyka as a young mother and especially given Shanyka’s partner is currently in prison.
(g)The Tribunal accepts the Applicant and her sisters share a close relationship, despite past periods of no or lesser contact and that her sisters are also experiencing extreme emotional distress at the prospect of her removal. The Tribunal also accepts the Applicant would, particularly in respect of Alison, provide necessary and positive emotional and practical support if released.
(h)The Tribunal also notes the Applicant’s partner and sisters maintain their support with full knowledge of her offending history.
[80] Child A’s interests will be considered under the best interests of minor children in Australia consideration.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal ‘must make a determination about whether cancellation or refusal under s 501… is, or is not, in the best interests of’ children who are under the age of 18 at the time the decision is expected to be made.[81] Where there are ‘two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ’.[82]
[81] Direction no. 110, paragraph 8.4(1)–(2).
[82] Direction no. 110, paragraph 8.4(3).
Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:[83]
[83] Direction no. 110, paragraphs 8.4(4)(a)–(h).
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; [and]
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has identified Child A as a child who may be affected by a non-revocation decision, who is currently 15 years of age, along with Shanyka’s newborn daughter (Child T).
The Tribunal notes Child E was not identified in this manner and no claims or evidence otherwise exist in this regard.
Child T
Regarding the best interests of Child T, on the available evidence and having regard to the matters in paragraph 8.4.4 of Direction no. 110 the Tribunal affords moderate weight in favour of revocation of the Cancellation Decision. While Shanyka will assume the parental role and indeed the Applicant is yet to meet Child T, the Tribunal accepts Shanyka will require additional support given her young age and vulnerability associated with her partner being in prison and that Shanyka, Mr Parker and the Applicant are hopeful that the Applicant will be released so that she can provide such support. Indeed, the Applicant gave evidence that the reason she wished to apply for her e-licence was so that she could support Shanyka as a new mother and care for Child T when possible.
Child A
The Applicant said that Child A had lived with her and Mr Parker ‘full time’ (on their week off from their 2:1 FIFO roster) since the beginning of year 1. The Applicant said she currently speaks to Child A daily and spoke to her as often as she could whilst in prison, not wanting to subject Child A to prison visits, favouring writing letters instead. The Applicant said Child A sees her biological mother, but never stays with her, noting that Child A’s mother has additional children (who are not Mr Parker’s children).
When asked, the Applicant does not know if Child A was ever listed as a protected person on the FVRO. When it was put to her that the fact is that Child A was so listed and noting the incidents detailed in the summons material, she did not accept the proposition that she had every been violent to Child A or that she otherwise exposed Child A to incidents of family violence.
Mr Parker described the Applicant as a good influence on Child A and a mother figure to her, helping her with reading, bike riding, sporting events and talking together about ‘girl’ matters.
Ms Flahey gave evidence that the Child A thinks of the Applicant as her mother and that Child A would be distraught if the Applicant were removed.
The Applicant contended it is in the best interests of Child A that she remains in Australia and this consideration weighs in favour of revocation of the Cancellation Decision to the extent that it constitutes another reason why the Cancellation Decision should be revoked.[84] The Tribunal has considered its submissions in support of its contention.[85]
[84] Exhibit R1, Document 1 [111].
[85] Exhibit R1, Document 1 [106] to [110] and orally at hearing.
Similarly, the Tribunal has considered the Respondent’s submissions in support of its contention that to the extent the best interests of Child A weigh in favour of revocation of the Cancellation Decision, it does so to a limited extent.[86]
[86] Exhibit R1, Document 2 [70] to [72] and orally at hearing.
Turning to the factors relevant to this consideration, the Tribunal accepts that the Applicant fulfilled a parental role since Child A was six years old.[87] While Child A currently resides with her grandmother Ms Parker, Mr Parker clearly intends and is supportive of (as are Ms Parker, Ms Ryder and Shanyka) the Applicant resuming her (face-to-face) parental role, as she wishes to. The Tribunal considers that while Child A may not reside with the Applicant immediately, in the past when the Applicant has played a parental role, Child A was spending periods with Ms Parker in any event given the Applicant’s and Mr Parker’s FIFO work roster. The Tribunal is of the view that given the brevity of the Applicant’s sentence and time in detention and her evidence regarding her contact with Child A, their relationship has been maintained in a meaningful manner and would continue to be positive in the future.[88]
[87] Direction no. 110 paragraph 8.4(4)(a).
[88] Direction no. 110 paragraph 8.4(4)(b).
Keeping in mind the age and maturity of Child A, her statement attesting to their close relationship and her wish for the Applicant to be released supports a finding that her best interests lie with revocation of the Cancellation Decision.[89] Similarly the Tribunal accepts Mr Parker’s evidence of the negative effect removal would have on Child A.[90]
[89] Direction no. 110 paragraph 8.4(4)(f).
[90] Direction no. 110 paragraph 8.4.4(d).

While the Tribunal accepts Child A’s father and grandmother already fulfil a parental role, it also considers Child A’s circumstances are unique in that, in the past, the Applicant’s and Mr Parker’s FIFO work arrangements were such that Child A lived across two homes and with multiple parental figures[91] and it was indeed when the Applicant became one of those figures that Child A made many positive gains.
[91] Direction no. 110 paragraph 8.4.4(e).
For completeness, there is no evidence regarding the matters addressed in paragraphs 8.4(4)(c), 8.4(4)(g) and 8.4(4)(h) of Direction no. 110 in relation to any of the minor children identified.
Overall, the Tribunal finds that the best interests of Child A weighs heavily in favour of revocation of the Cancellation Decision, a weighting that is maintained when considered together with the best interests of Child T as stated above.
Expectations of the Australian community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that:
[t]he 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) of Direction no. 110 directs that:
… 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of [particular kinds].
The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paragraphs 8.5(2)(a)–(f) of Direction no. 110. Those particularised types of harm generally reflect the types of conduct identified in paragraphs 8.1.1(a)–(b) as conduct which is considered ‘very serious’ or ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated ‘expectations apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community’. In doing so, paragraph 8.5(3) arguably further qualifies the ‘norm’ expressed in paragraph 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the person’s conduct or offending.[92]
[92] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208, [86]–[87].
Paragraph 8.5(4) of Direction no. 110 directs that:
[t]his 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 [in para 8.5], without independently assessing the community’s expectations in the particular case.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached, or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in paragraph 5.2 of Direction no. 110.
(a)Paragraph 5.2(2) states that ‘the safety of the Australian Community is the highest priority of the Australian Government’;
(b)Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, ‘should expect to… forfeit the privilege of staying in Australia’;
(c)Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community;
(d)Paragraph 5.2(5) states that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time; and
(e)Paragraph 5.2(6) states that, with respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
In relation to the expectations of the Australian community, the Applicant submitted it is likely the Tribunal will attribute this factor significant weight against revocation of the Cancellation Decision, noting she has engaged in family violence, one of the categories listed in paragraph 8.5(2) of Direction no. 110.[93] The Minister maintained a similar view.[94]
[93] Exhibit R1, Document 1 [113] to [115].
[94] Exhibit R1, Document 2 [73] to [76].
The Tribunal agrees that the expectations of the Australian community would be for the Applicant’s visa to remain cancelled.
The Applicant’s offending comprises ‘serious crimes’[95] as that is the term used in Direction no. 110, including at paragraphs 8.5(2)(a) and 8.5(2)(c), being ones that raise serious character concerns and bringing the expectation of the Australian community that the offending person should not continue to hold a visa.
[95] Direction no. 110, paragraph 8.5(2)(c).
In light of the objective seriousness of the Applicant’s offending, the Tribunal finds that the expectations of the Australian community consideration weighs heavily against revocation of the Cancellation Decision.
Other considerations
Legal consequences of a decision under ss 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[96]
[96] Direction no. 110, paragraph 9.1.
While this consideration in Direction no. 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of an applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
(f)Unlawful status;
(g)The likelihood of becoming subject to detention and/or removal;[97]
(h)Refusal of other visa applications and cancellation of other visas;[98]
(i)A prohibition on applying for other visas;[99] and
(j)Periods of exclusion and special return criteria may apply.[100]
[97] Migration Act, ss 189, 196, 197C, 198.
[98] Migration Act, s 501F.
[99] Migration Act, s 501E.
[100] Migration Act, s 503; Special Return Criteria 5001.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[101] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[102]
[101] Migration Act, s 15.
[102] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305, [112]–[122] to find the Applicant’s detention had at all times been lawful.
The Applicant noted she had witnessed traumatic and violent events in Northern Ireland in the 1980s and 1990s, however made no specific claims regarding whether she faced a real chance of persecution there[103] and accepted it would be open for her to make an application for a protection visa for any such claims to be fully considered. The Applicant submitted the legal consequences consideration should be afforded some weight in favour of revocation of the Cancellation Decision in circumstances where her exclusion from Australia would prevent her from continuing her relationship with Mr Parker and maintaining her relationships with Shanyka, Child A (and establishing a relationship with Child T).[104]
[103] Exhibit R1, Document 1, [116] to [117].
[104] Exhibit R1, Document 1 [120] to [121].
The Tribunal has also considered the Respondent’s submissions on this consideration, including that, the Applicant’s exclusion from Australia and any consequences impacting Mr Parker or their relationship are already subsumed in the Tribunal’s evaluation of the other considerations in Direction no. 110 and hence should not be given additional weight, the legal consequences of the decision should be afforded neutral weight.[105]
[105] Exhibit R1, Document 2, [84] to [85].
The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501. The Tribunal acknowledges these legal consequences.
As the effect of cancellation is considered under the third and fourth primary considerations and the ‘extent of impediments if removed’ consideration, the Tribunal considers this consideration carries neutral weight in the Applicant’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that, taking into account the matters identified in paragraphs 9.2(1)(a)–(c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under paragraphs 9.2(1)(a)–(c) are:
(a)the [Applicant’s] age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to [the Applicant] in their country.
When asked, the Applicant said she has no relationship with her mother in Ireland and they have not spoken for the last 10 to 12 years. The Applicant said she has no other family in Ireland and an older sister that lives in Spain with whom she has had no contact for over 13 years. The Applicant said her father passed away 25 years ago and her stepfather and two stepsisters have also passed away. The Applicant said she had no other contacts in Northern Ireland, does not like to think of what she would do if she was returned there and would rather be ‘sentenced to death.’
The Applicant said she had also not considered where she would live and work in the UK and has no idea what is available to her there. When it was put to her that she could communicate with family and friends in Australia from the UK or Northern Ireland by electronic means, the Applicant said ‘that’s not living’ and said it would be like living the same day over and over.
Ms Flahey said that if the Applicant were removed, she would not be in a position to visit as she is scared of flying and does not want to think about it. Ms Gibson also said she did not want to think of this occurring and would not be travelling to visit the Applicant any time soon as last time she visited their older sister in Spain she contracted an infection.
The Tribunal has considered the parties’ submissions in relation to their respective position that, in the Applicant’s case, this consideration should be given some weight in favour of revocation[106] and in the Respondent’s case, that it should be given limited weight in favour of revocation.[107]
[106] Exhibit R1, Document 1 [122] to [125].
[107] Exhibit R1, Document 2 [87[ to [91].
As noted above, the Applicant is 47 years old and has lived the majority of her life in Australia. She claims to have no family or social connections in Ireland or the United Kingdom, that she suffers from anxiety and depression and acknowledges her alcohol addiction requires management and her treatment needs are ongoing. The Applicant expressed concerns for her mental health, if removed, and the violent and traumatic events she witnessed in Northern Ireland in the 1980s and 1990s.
The Applicant has not returned to Ireland since 2003 and has not been in contact with her mother since 2017 and is unsure where she is living. The Applicant gave evidence she has not had contact with her older sister Sharon (who lives in Spain) for over 13 years.
Regarding the Applicant’s treatment needs for her alcohol use and mental health conditions, there is no evidence before the Tribunal that the Applicant would be unable to receive similar treatment for these conditions in the United Kingdom or Ireland,[108] or that any language or cultural barriers exist in this regard, or more generally.[109]
[108] Direction no. 110 paragraph 9.2(a).
[109] Direction no. 110 paragraph 9.2(b).
The Tribunal accepts that the Applicant has virtually no relationship with any extended family or friends in the United Kingdom or Ireland and that her family and support network is entirely in Australia.[110]
[110] Direction no. 110 paragraph 9.2(c).
While the Applicant may encounter some difficulties establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of that country, if she were to return to the United Kingdom or Ireland, the Tribunal regards these difficulties as temporary.[111]
[111] Direction no. 110 paragraph 9.2(c).
The Tribunal also finds, however, that there is a real risk the Applicant’s removal, in particular her separation from Mr Parker, her sisters and Shanyka and Child A, would negatively impact the gains she has made regarding her sobriety and her physical and mental health and see her face significant emotional and psychological hardship due to this separation.[112]
[112] Direction no. 110 paragraph 9.2(c).
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
1Decision-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.
The Applicant did not suggest that her removal from Australia would adversely impact Australian business interests.[113]
[113] Exhibit R1, Document 1 [126].
The Respondent noted there is no evidence the Applicant is involved in the delivery of a major project or important service in Australia that would impact any Australian business interests.[114]
[114] Exhibit R1, Document 2 [93].
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION – THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).
Relevantly, the Full Court of the Federal Court considered the operation of Direction no. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. While the Court was considering Direction no. 90, its observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the Cancellation Decision should be revoked.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal found that the protection of the Australian community weighs against revocation of the Cancellation Decision and affords the consideration heavy weight in the Applicant’s circumstances.
The Tribunal found that the consideration of family violence carries moderate weight against revocation of the Cancellation Decision in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia consideration weighs in favour of revocation of the Cancellation decision. The Tribunal finds very heavy weight should be afforded to that consideration in the present matter.
The best interests of the children identified as being impacted by the decision, being Child A and Child T, weigh in favour of revocation. Overall, the Tribunal considers heavy weight should be afforded to this consideration in the Applicant’s circumstances.
The expectations of the Australian community consideration weighs against revocation of the Cancellation Decision and the Tribunal finds this consideration should be afforded heavy weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that:
(a)the legal consequences of the decision consideration; and
(b)the impact on Australian business interests consideration;
weigh neutrally for the reasons given, and the
(c)the extent of impediments if removed consideration,
weighs moderately in favour of revocation of the Cancellation Decision.
Having weighed the considerations, the Tribunal finds that:
(a)The first and fifth primary considerations each weigh heavily against revocation of the Cancellation Decision;
(b)The second primary consideration weighs moderately against revocation of the Cancellation Decision;
(c)The third and fourth primary considerations, weigh very heavily and heavily in favour of revocation of the Cancellation Decision, respectively;
(d)The extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision; and
(e)The legal consequences of the decision consideration and the impact on Australian business interests consideration weigh neutrally.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.

Nothing before the Tribunal would cause it to find that that general principle should not apply in the Applicant’s case.
The Tribunal also emphasises that the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[115]
[115] Direction no. 110 paragraph 7.3.
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them.
Therefore, while the considerations weighing in favour of revocation of the Cancellation Decision are equal in number to those weighing against revocation, the Tribunal is satisfied that the very heavy and heavy weight in favour or revocation afforded to the third and fourth primary considerations carry, overall, greater weight than the first and fifth primary considerations weighing heavily against revocation.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Reviewable Decision and substitute it with a decision to revoke the Cancellation Decision.
DECISION
For the reasons given above, the Tribunal’s decision dated 1 October 2025 was:
The decision of the delegate of the Respondent dated 8 July 2025 to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s (Class BB) (Subclass 155) Five Year Resident Return visa under section 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s (Class BB) (Subclass 155) Five Year Resident Return visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of General Member L Gallagher

..........[SGD]..............................................................
Associate
Dated: 14 October 2025

Date of hearing: 10-11 September 2025

Counsel for the Applicant: Ms A Graziotti, Estrin Saul Lawyers and Migration Specialists

Solicitor for the Respondent: Ms M Williams, Minter Ellison

[2025] ARTA 2063

1 October 2025

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Character Test

Judicial Review

Revocation of Visa

Mandatory Cancellation of Visa

Direction no. 110

Date of hearing:	10-11 September 2025
Counsel for the Applicant:	Ms A Graziotti, Estrin Saul Lawyers and Migration Specialists
Solicitor for the Respondent:	Ms M Williams, Minter Ellison