Haran and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 985

Haran and Minister for Immigration and Citizenship (Migration) [2025] ARTA 985 (25 June 2025)
Applicant/s:  Viknesh Haran
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/2954
Tribunal:Deputy President Burford
Senior Member De Villiers
Place:Perth
Date of decision:                 25 June 2025
Date of Written Reasons:    9 July 2025

Decision:The Tribunal affirms the decision under review.

.......................................[sgd].................................
Deputy President Burford
.....................................[sgd]...................................
Senior Member De Villiers
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – Applicant is a 42-year-old citizen of New Zealand – Applicant has 15-year-old daughter – Applicant convicted of dangerous driving occasioning grievous bodily harm – Non-Revocation Decision is affirmed
Legislation
Migration Act 1958 (Cth) ss 15, 189, 198, 499, 500(6L), 501(3A), 501(6), 501(7)(c), 501CA(3), 501CA(4), 501E, 501F, 503
Migration Regulations 1994 (Cth) Sch 5, 5001, 5002
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Walker v Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 228
Webb v Minister for Home Affairs [2020] FCA 831
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) paras 5.1, 5.2, 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.5, 9
Statement of Reasons
The decision in this matter was made and provided to the parties on 25 June 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
BACKGROUND
[1] Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].

The Applicant is a 42-year old citizen of New Zealand who arrived in Australia on 4 May 1990 when he was seven years old.[2] He has left Australia on several occasions but has not returned to New Zealand since his arrival in Australia.[3]
[2] HB73.
[3] HB73.
On 16 January 2020 he was granted a Special Category Subclass 444 (Temporary) visa on his last arrival back in Australia.[4]
[4] HB73.
The Applicant has one child, a daughter from a previous relationship who was born in November 2009. His daughter currently lives with her mother and sibling in the Northern Territory. The Applicant’s parents and three siblings also reside in Australia. His mother, siblings and daughter are Australian citizens.
On 21 December 2023, the Applicant was convicted of dangerous driving occasioning grievous bodily harm and sentenced to four years’ imprisonment.[5]
[5] HB55.
On 16 August 2024, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of a State (the Cancellation Decision).[6] He was notified of this decision by hand at Wooroloo Prison Farm on the same date and invited to make representations to the Minister requesting revocation of the decision to cancel his visa.[7]
[6] See ss 501(6)(a) and 501(7)(c) of the Act; HB74-79
[7] HB74-79
On 26 August 2024, the Applicant made representations seeking revocation of the delegate’s decision.[8]
[8] HB82-99.
On 1 April 2025, the delegate decided not to revoke the visa cancellation (the Non-Revocation Decision).[9] On 2 April 2025, the Applicant was notified of that decision.[10] This is the reviewable decision before the Tribunal.
[9] HB37.
[10] HB28.
On 2 April 2025, the Applicant applied to the Tribunal for review of the delegate’s decision.[11] The Tribunal was required by s 500(6L) of the Migration Act to make a decision in relation to this application by no later than is 25 June 2025.
[11] HB28.
In determining the application for review, the issues for consideration are:
(i)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(ii)if the Applicant does not pass the character test, whether we are satisfied that there is another reason why the Cancellation Decision should be revoked.[12]
[12] See s 501CA(4) of the Migration Act.
For the reasons outlined below, we find that the Applicant does not pass the character test. Further, having considered all the circumstances of the Applicant’s case and having weighed the relevant matters in Direction no. 110, we find there is not another reason why the Cancellation Decision should be revoked.
Accordingly, we have decided that the Non-Revocation Decision should be affirmed.
VISA CANCELLATION ON CHARACTER GROUNDS
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review.
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 why the decision to cancel 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 incarcerated 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 (mandatory cancellation).
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), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[13] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or, that there is another reason why the original decision should be revoked.[14]
[13] Migration Act s 501CA(3).
[14] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was conducted at the Tribunal’s Perth Registry on 3 and 4 June 2025. The Applicant appeared in person and was represented by Mr Chand who also appeared in person. At the time of the hearing the Applicant was in prison at Wooroloo Prison Farm. The Respondent was represented by Ms O’Grady of Minter Ellison. The Respondent’s representative appeared via video.
All the written material submitted by the parties were contained in a single bundle marked Hearing Book (HB) consisting of pages 1-480.
The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from the following witnesses:
a.    Vijayendran Haran (brother of the Applicant)
b.    Malini Haran (sister of the Applicant)
c.     Justin Powell (brother-in-law of the Applicant)
d.    Joan Washington (Youth Coordinator, CAAPS Aboriginal Corporations, Darwin)
The Applicant and his brother gave evidence in person. All other witnesses gave evidence via video.
We note that the Applicant had initially requested that his daughter give evidence before the Tribunal. However, at the commencement of the hearing the Applicant confirmed his daughter would not be called to testify.
DOES THE APPLICANT PASS THE CHARACTER TEST?
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,
[15] Migration Act s 501(7)(c).
[16] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[15] Failure to pass the character test arises as a matter of law.[16]
On 21 December 2023, the Applicant was convicted in the Perth District Court of Western Australia of dangerous driving occasioning grievous bodily harm pursuant to section 59(1)(b) of the Road Traffic Act 1974 (WA) and was sentenced to a term of imprisonment of four years.[17]
[17] HB55.
The Applicant has been sentenced to a term of imprisonment of 12 months or more, therefore we find he does not pass the character test by operation of s 501(7)(c) of the Migration Act. The Applicant accepts that he does not pass the character test.
Accordingly, we are not satisfied that the Applicant passes the character test.[18]
[18] See Migration Act s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As we are not satisfied that the Applicant passes the character test, we must then determine 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.[19]
[19] Migration Act s 501CA(4)(b)(ii).
We are required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[20] In doing so we must comply with written directions about the performance of our functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.[21]
[20] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[21] Migration Act s 499(2A).
Direction no. 110
On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[22] In considering the exercise of the power under s 501CA(4), informed by the principles set out in para 5.2 of Direction no. 110, we must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[23]
[22] Direction no. 110 para 5.1(4).
[23] Direction no. 110 para 6 referring to paras 8 and 9.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[24]
(a)the protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; an
(e)the expectations of the Australian community.
[24] Direction no. 110 para 8.
The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[25]
(a)the legal consequences of the decision;
(b)the extent of impediments if removed; and
(c)the impact on Australian business interests.
[25] Direction no. 110 para 9.
We must also take into account any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked.
The principles set out in para 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’. Those principles highlight that the safety of the Australian community is the government’s highest priority and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred in those individuals will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community. The principles state that the community expects the government to cancel the visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Direction provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community short period of time, the community may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
Noting that primary and other considerations relevant to the individual case must be taken into account, Direction no. 110 states that, in some circumstances, the nature of the 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 revoking a mandatory cancellation of a visa including in circumstances where 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.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:
(1) Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
(2) The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
The Applicant submits that there were several reasons why the Cancellation Decision should be revoked. In his application for review the Applicant states, by way of summary, that the reason he would like his visa cancellation to be revoked is as follows:[26]
I believe the decision to cancel my visa under section 501 is wrong because it does not fully consider my strong and long-standing ties to Australia and the significant impact my removal would have on my family. I have lived in Australia for most of my adult life, worked consistently, paid taxes, and consider this country my home. I am the father of a 14-year-old Australian citizen whom I have a strong and loving bond with, and I also support my elderly parents who suffer from chronic health conditions and depend on me emotionally and practically.
While I acknowledge my past offences and take full responsibility, they were not of a violent nature. I am genuinely remorseful for my acts. I have engaged in rehabilitation while in prison and have documentation from the correctional system, including my IMP (Individual Management Plan), which states that I am rehabilitated and no longer pose a threat to the Australian community.
I respectfully ask that the AAT review this decision, taking into account my rehabilitation, the best interests of my child, and the severe hardship that deportation would cause to my close family members.
[26] HB21.
In further oral and written submissions and statements made by the Applicant in support of his application he details why he considers there is another reason why the Cancellation Decision should be revoked.[27]
[27] HB415-424; 455-458.
In summary, the key representations raised by the Applicant in support of the revocation of the Cancellation Decision are:
(a)He suffered a traumatic childhood and the harm, trauma and psychological injury he experienced have reverberated into his adulthood. The harm he was exposed to included domestic violence, alcohol and drug abuse, information concerning the historical sexual abuse of family members, homelessness, isolation, and neglect. It is only later in life that he has fully realised the harmful impact of those childhood experiences onto his adult life. The Applicant contends he now continues to develop positive mechanisms, techniques and approaches to deal with the side-effects of the childhood-trauma. He submits he is making good progress with his endeavours, but he acknowledges that much remains to be done.
(b)The Applicant maintains that he fully acknowledges his wrongdoing over many years as is reflected in his extensive criminal record.[28] The Applicant says his conduct must be seen against the background of his childhood trauma, but he does not seek to use those experiences as an excuse for his conduct. He contends he is on the way to full rehabilitation, that he is seriously and deeply remorseful for the harm he had caused to the victim of the vehicle crash on 1 December 2022 (which led to what we refer to in this decision as the December 2022 offences), and that he is highly motivated to get his life back on track as a father, family member, and responsible member of society.
(c)The Applicant says he has attended various courses while in prison concerning drug and alcohol abuse and rehabilitation. He has also gained insight about the importance of self-control, positive thinking, and conflict resolution mechanisms. He contends that he is keen to return to an active sporting life as a way to build a positive self-image and stronger resilience.
(d)The Applicant says he is seriously concerned about the welfare of his 15-year-old daughter, who currently lives with her mother in the Northern Territory, if she were left without his care and support. He maintains he is close to his daughter and has supported and loved her for all her life. He contended that his daughter wants to reside with him, and he wants to guide her through the difficult time she is experiencing. He contended that he is counsellor to her, and he wants to give her the parental support love and care he never had.
(e)The Applicant also contended that he wants to take care of his elderly parents in an effort to restore the broken relationships with them. Both his parents have physical and mental health care needs, particularly his father. The Applicant contended that he cared for his father prior to his incarceration, and that he would like to return to the role as primary caregiver.
(f)The Applicant says he can be a role model to his family members, including his nieces and nephews, and to others to demonstrate how one can turn their life around for the better.
(g)The Applicant contended that he self-referred for psychological counselling after the vehicle crash of 1 December 2022. He attended several counselling sessions after the crash and before he was incarcerated. He testified that he intends to return to counselling when released from prison because he has experienced the benefits of counselling, and he realises that his journey to full rehabilitation is not yet completed.
(h)The Applicant says all his family, friendship, sporting, and social ties are in Australia. He does not have any friends, family, or other social linkages to New Zealand other than having been born there. He has not returned to New Zealand since his arrival in Australia and contended that that resettling in New Zealand would be highly traumatic for him and his family, particularly to his daughter. Returning to New Zealand may also be a set back to his efforts to start a new life with his daughter and family.
(i)The Applicant says he has close family ties with his parents, siblings, and their children. He says all those in his family have experienced trauma and they are committed, together, to restore their bonds. As the oldest brother he is seen as a role model regardless of his criminal record.
(j)The Applicant says that his progress to rehabilitation has been acknowledged by prison authorities, for example, by placing him in shared accommodation in prison where he can prepare his own meals and assigning him to laundry duty, which is one of the highest paying jobs. This is also reflected in his assessment as having a low risk of offending in the Prison Treatment Assessment Report of 8 January 2024[29] and the Education and Vocational Training Checklist of 21 February 2024 which acknowledges his positive employment record.[30] The Applicant is hopeful that he would be granted parole when he becomes eligible in December 2025.
(k)The Applicant says the Australian community would accept his remorse, would have sympathy for the childhood trauma he suffered and its impact on his adult life, and would give him the chance to restore his life, rebuild his family, support his daughter, and to become a fully rehabilitated member of society.
[28] HB54-56.
[29] HB322-323.
[30] HB324-329.

In essence, the Applicant says the Cancellation Decision should be revoked on the basis of his proven rehabilitation, his commitment to ongoing rehabilitation, his strong ties with Australia, the best interest of his vulnerable daughter, his close family ties, and the ‘serious hardship’ he would experience if deported to New Zealand.[31]
[31] HB458.
In oral and written submissions and statements made by the Minister before the Tribunal, the Minister contended, in summary, that: [32]
(a)The safety of the Australian community outweighs all other considerations that may weigh in favour of the revocation of the Cancellation Decision. The criminal record of the Applicant in general, and the December 2022 offences in particular, demonstrate a disregard for Australian law over a long period. In addition, his offending has increased in seriousness over the years, ultimately leading to imprisonment for 4 years for the December 2022 offences.
(b)The likelihood of harm which would result from further offending presents a risk that is unacceptable to the Australian community.
(c)The Applicant’s background, including his traumatic childhood, were not accepted by trial judge Massey as mitigatory for the index offence.
(d)Any progress made by the Applicant in rehabilitation has not been tested in the community.
(e)The family violence for which the Applicant has been convicted is not tolerated by the Australian community.
(f)Although it is accepted that the Applicant wishes to play a constructive and supportive role in the life of his daughter, he had admitted to previously using drugs on weekends while she was in his care and he committed many offences while being her co-parent. The evidence shows that both father and daughter need support programmes to deal with the challenges afflicting their lives. The Minister contends that this casts doubt on the Applicant’s capacity to fulfill a commitment not to reoffend, and for his the interests of his daughter to act as a protective factor against further offending.
(g)The Minister acknowledges that the Applicant, his daughter, and the rest of his family are likely to experience hardship and emotional stress if he is deported to New Zealand, but contends that the skills acquired by the Applicant may sustain him to start a new life. Similar social support for which the Applicant is eligible in Australia is also available in New Zealand. The Minister contends there are no substantial impediments if he is removed to New Zealand.
[32] HB139-150.
In short, the Minister says the Non-Revocation Decision should be affirmed because the protection of the Australian community, on balance, ‘weighs determinatively against revocation’ of the Cancellation Decision.[33]
[33] HB142 [43].
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. 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.[34]
[34] See also Direction no. 110 para 8(1).
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[35]
[35] Direction no. 110 para 7(2).
Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
We must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[36] In doing so, para 8.1.1(1) of Direction no. 110 provides that we must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be ‘serious’. We note that while Direction no. 110 expressly provides 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.[37]
[36] Direction no. 110 para 8.1(1).
[37] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, we must have regard to the frequency of the Applicant’s offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant 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 Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this paragraph that we consider the impact of the offending on any victims and their family, where information regarding this 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 as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[38]
[38] Direction no. 110 para 8.1.1(1)(d).
A summary of the Applicant’s convictions is included at Annexure A.
The following is a brief overview of the Applicant’s conduct and offending.
The December 2022 offences
On 21 December 2023, the Applicant was convicted of ‘dangerous driving occasioning grievous bodily harm’ and sentenced to three years’ imprisonment (cumulative) and received a 3 year disqualification from driving (the dangerous driving offence).[39] On the same day, the Applicant was convicted of ‘failed to stop to assist (GBH)’, ‘driver fail to report an incident occasioning death or GBH’, and ‘creating a false belief’. He received a sentence of 6 months imprisonment (cumulative) and a 2-year drivers licence disqualification for the offence of failing to stop and assist (GBH); 6 months (concurrent) for the offence of failing to report an incident occasioning death or GBH, and 6 months imprisonment (cumulative) for the creating false belief offence. This brought his total effective sentence to 4 years imprisonment. He was made eligible for parole.[40]
[39] HB55.
[40] HB55, HB68.
On 8 January 2024 he was convicted in the Perth Magistrates Court of three further offences rising from this incident – ‘driver failed to failed to report an incident involving property damage’, ‘driver failed to stop – property damage’ and ‘drove with blood alcohol content of or above 0.08g with prescribed illicit drug in fluid/blood’ (together with offences for which he was convicted on 21 December 2023, the December 2022 offences). For these offences he received a global fine of $2650 and was disqualified from driving for 14 months (concurrent).[41]
[41] HB55, HB345-352.
Drawing from the sentencing remarks of Judge Massey, the facts of the offences were, in summary, as follows:[42]
(a)On 1 December 2022, the Applicant was driving and approached the victim’s vehicle from behind. He collided with the vehicle with such force that her vehicle left the road and entered the central median strip where it rolled several times. The victim was ejected from the vehicle through her rear windscreen.
(b)After colliding with the victim’s car, the Applicant then collided with another vehicle with such force that the vehicle became airborne before landing back on the bitumen, where the driver regained control and stopped in the emergency lane.
(c)At the time of the incident, the road was clear, visibility was unimpaired, and streetlights were on.
(d)After the crash, the Applicant accelerated away from the scene, before exiting the vehicle and leaving it on the side of the road. When spoken to by police when walking nearby, the Applicant denied knowledge of the incident and refused a breath analysis.
(e)Two days later, the Applicant telephoned the police assistance line and claimed the vehicle and his wallet had been stolen.
(f)When police later put to the Applicant that his car had been involved in the accident, he claimed it must have occurred after his vehicle was stolen.[43]
(g)Following DNA testing linking the Applicant to blood found on the steering wheel of the vehicle following the crash, the Applicant admitted to being the driver of the car and plead guilty to the December 2022 offences.
(h)In oral evidence before us the Applicant admitted that there had been a passenger in his car at the time of the crash, that the passenger had left the crash site, and that he had not told the police or court about the passenger.
[42] HB142-3 [26]; HB357-361.
[43] HB59 and summary in RSFIC.
The victim received multiple fractures to her spine, alongside a spinal cord injury which required surgery to stabilise. In her victim impact statement, the victim stated that ‘pain, discomfort, and suffering from her injuries has been ongoing, and unbearable at times.’ The victim also had to re-learn how to walk and regain the use of a number of her bodily function. Additionally, she reported she was too afraid to get into a vehicle, is unable to work, and has generally lost her independence.[44]
[44] HB60.
In sentencing remarks Judge Massey did not accept the Applicant’s version of events.[45] His Honour characterised the conduct of the Applicant as a ‘selfish disregard for other road users.’[46] The court rejected the Applicant’s explanation that the car driven by the victim had attempted to merge into his lane and that he took evasive action.[47] Furthermore, his Honour said that he was not satisfied that Applicant was ‘genuinely remorseful’.[48] The judge observed that the Applicant did not have the ‘benefit of prior good character’ and that his rehabilitation was ‘in its infancy’.[49]
[45] HB65.
[46] HB62.
[47] HB62.
[48] HB65.
[49] HB66.
The Applicant agreed with the Court’s characterisation of the state of his rehabilitation during the hearing before us. The sentencing judge remarked that there was a ‘significant need for personal deterrence’, noting that the Applicant had previous convictions for crimes of dishonesty, drove with alcohol in his system on the day of the offences and had ‘really shown no remorse or insight into the effects of [his] offending.’[50]
[50] HB63.
According to the Statements of Material Facts in the context of the 1 December 2022 crash, for the additional offences for which he was convicted and sentenced on 8 January 2023 in the Perth Magistrates Court, the Applicant was involved in the incident involving the two other cars, speed away from the accident scene, leaving the victim lying semi-conscious in the middle of the highway. He pulled off the highway and alighted his vehicle before walking way. He was intercepted by police. He denied knowledge of his vehicle being involved in any crash or having driven any vehicle that evening. He was required to undergo a breath analysis test which he refused and he was placed under a requirement to undergo a blood sample which he complied with. The test showed a blood alcohol content of 0.139 grams of alcohol per 100 ml of blood and a positive test for Tetrahydrocannabinol and Methylamphetamine.[51] We note that the Applicant admitted in evidence before us that he consumed alcohol and drugs prior to the crash.
Other offences
[51] HB162, HB166, HB169-170.
In addition to the December 2022 offences, between 2003 – 2021, the Applicant was found guilty of several driving-related offences, assault offenses, drug offenses, failing to obey orders given by an Officer; and dishonesty offences, for which he received multiple fines and disqualifications to drive and repeated convictions for driving while suspended.[52]
[52] HB54-56.
The Applicant’s first recorded conviction was on 10 January 2003 for driving and unlicenced vehicle. He was 20 years old at the time of that offence.
He has served one previous prison term in 2006 following a series of convictions for driving without a licence (suspended). He was convicted in the Perth Magistrates Court on 21 June 2006 of driving while under suspension (‘no motor drivers license – under suspension’). This followed a conviction in Midland Magistrates Court on 26 October 2005 for the same offence for which he was given which he was given a suspended sentence of six months’ and one day imprisonment.[53]
[53] HB56, HB200-201.
The driving under licence suspension conviction for which the Applicant was convicted arose from convictions in October 2005 for ‘reckless driving’, driving without a licence (‘no motor drivers licence – under suspension’) and ‘failed to stop when called upon’.[54]
[54] HB56, HB204, HB207.
The Applicant has 1 conviction related to domestic violence arising from an incident on 6 June 2016.[55] The Statement of Material Facts for the offence, to which the Applicant pleaded guilty, indicates that the Applicant grabbed his partner by the shirt and pushed her to the ground. The Applicant was convicted of the offence of ‘Common Assault in Circumstances of Aggravation or Racial Aggravation’ on 21 September 2016 in the Rockingham Magistrates Court and fined $1,500.[56]
[55] HB181-182.
[56] HB55.
The Applicant has been the subject of 4 restraining orders:[57]
(1) Violence Restraining Order issued on 6 August 2003 in which the name of the protected person is redacted. The Restraining Order expired on 5 September 2003.[58]
(2) Police 72 Hour Restraining order issued on 28 January 2013 in which the name of the protected person is redacted. The Restraining Order expired on 31 January 2013.[59]
(3) Police 72 Hour Restraining order issued on 1 September 2015 in which the name of the protected person is redacted. The Restraining Order expired on 4 September 2015.[60]
(4) Police 72 Hour Restraining order issued on 16 April 2022 in which the name of the protected person is redacted. The Restraining Order expired on 19 April 2022.[61] There is a notation on this Restraining Order of it being a ‘Nationally Recognised Domestic Violence Order’.
[57] HB298.
[58] HB298.
[59] HB300.
[60] HB299.
[61] HB301.
The evidence also includes several Detected Incident Reports prepared by police in which the name of the Applicant appears as the person the subject of the incident.[62] These were put to the Applicant at the hearing and are considered further below.
[62] HB 214-297.
Direction no. 110 requires the Tribunal to take into account a range of factors in assessing the nature and seriousness of the Applicant’s conduct and offending, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.
With respect to the seriousness of the Applicant’s offending, the sentencing judge was satisfied that due to the ‘seriousness’ of the Applicant’s offending, there existed a ‘high need for personal and general deterrence, as well as the need to protect the community, that only terms of imprisonment are appropriate.’[63]
[63] HB67.
The Minister submitted that the Applicant’s offending and other conduct should be viewed as very serious.
In our view, having regard to the evidence and the comments and assessment of the offending by the court, the December 2022 offences were very serious. The Applicant admitted during oral evidence that he had been using alcohol and drugs prior to the driving which led to the December 2022 offences; he persisted with a claim that the victim caused or contributed to the crash by ‘tailgating’ with another vehicle from the side-lane and causing him to swerve; he denied any involvement with the incident when questioned by the police; and he laid a false report with the police.
Further, the sentencing judge considered the Applicant lacked remorse over the incident. This was consistent with his evidence before the Tribunal where he continued to minimise his responsibility for the crash and justified actions in leaving the scene and later denials to police as driven by panic and a need to protect himself, including from the victim’s family who he surmised my prose a risk to him. The Applicant’s offending had a serious and ongoing effect on the life of the victim however there was no evidence he had made any effort to apologise to the victim.
We note that it is well established that the Tribunal cannot ‘go behind’ the conviction giving rise to the exercise of power which is the subject of the review (the dangerous driving offence).[64] Where that power arises in part due to the sentence imposed on the Applicant, this extends to the findings of fact on which the sentence is based. For the avoidance of doubt, the Tribunal did not accept the Applicant’s alternate account of the crash, noting he offered no evidence in support of that account, and it was not accepted by the sentencing judge in making findings of fact on which the sentence was based.
[64] See HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] and HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.
We consider the Tribunal is bound by the conviction which led to the mandatory cancellation of the visa, and to the extent that we have any discretion to go behind the specific factual findings made on sentencing, we do not consider there is any basis to do so on the evidence before us.[65]
[65] SeeHZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] and HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.
We also note that during oral evidence the Applicant testified that there was a passenger in the vehicle with him at the time of the crash. There is no mention in any of the police reports or court record of such a person. Upon our questioning, the Applicant admitted that there was a person with him in the car and that the person ran away after the accident. When we asked why he did not disclose the information to the police, the Applicant said his lawyer had told him not to report it to the police. When it was put to him that the fact this information was not provided to police or the court may cause concerns regarding the truthfulness of his evidence, he accepted this might be the case but indicated he was worried his friend may get in trouble.
Although the Applicant says that he is remorseful about the December 2022 offences and the injuries caused to the victim, his conduct after the incident did not support his claim to be genuinely remorseful. We reject the proposition that his conduct was attributable to the influence of substances or childhood trauma. These were not regarded by the sentencing judge as mitigating factors and do not provide any excuse for the very serious conduct he engaged in, including after the crash. The conduct of the Applicant after the December 2022 offences occurred highlights his lack of insight, lack of accountability, and lack of remorse for the impact on the victim. The Applicant repeatedly lied to the police following the crash including when they questioned him immediately after the incident and went on to lay a false claim with the police that his vehicle had been stolen. The Applicant did not plead guilty to the December 2022 offences until 8 January 2024, over a year after the offending. He now admits that he withheld from the police that a passenger had been with him in the car.[66] It was only when all the evidence was presented to him that he entered a plea of guilty.[67] While his eventual plea was acknowledged by Judge Massey in mitigation, the investigation was already in an advanced stage at this point and, in the Tribunal’s view, his conduct in lying to the police and authorities following the incident adds to the overall assessment of his conduct and offending as very serious.
[66] HB360.
[67] HB357-361.

We accept the categorisation by Judge Massey of the conduct of the Applicant as being a ‘pattern of dishonesty and poor decision-making’;[68] demonstrating ‘low impulse control’ and ‘poor coping skills’;[69] that the criminal record of the Applicant ‘is not a good one’;[70] and the Applicant not being ‘genuinely remorseful’ about the incident.[71] In the Tribunal’s view this was consistent with the Applicant’s history of offending and his evidence before the Tribunal, including ongoing minimisation of his role in the crash.
[68] HB62.
[69] HB63.
[70] HB64.
[71] HB65.
Furthermore, the criminal record of the Applicant since the age of 20 years shows a frequent disregard for the law that we assess as serious, particularly when viewed cumulatively. The Applicant has repeatedly put himself and members of the community at risk through his conduct, ranging from repeatedly driving without a licence, driving a vehicle that is not licenced, substance abuse, being in possession of stolen goods, driving on the wrong side of the road, and assault. His prior offending and non-compliance with restrictions placed on him by the courts led to a previous term of imprisonment.
Having been issued with warnings regarding the privilege against self-incrimination, the Applicant admitted to the Tribunal that he had been using drugs while his daughter was in his care. The Applicant committed offences against his partner,[72] a bank assistant,[73] other road users;[74] and his employer.[75] We note that the Applicant says he is now committed to restoring his life, rehabilitating, supporting his family, and taking care of his daughter. We also note the progress the Applicant has made with rehabilitation whilst in prison, but we find that those endeavours to rehabilitate have not been applied in society outside the confines and restrictions of a prison. The rehabilitation process of the Applicant is, as described by the sentencing judge and as the Applicant accepted when we put it to him, in its infancy.
[72] HB181.
[73] HB187.
[74] HB176; HB204.
[75] HB194.
We find that the childhood trauma experienced by the Applicant does not mitigate against the seriousness of the December 2022 offences whereby the Applicant caused serious injury to a member of the public, nor the offences committed over a long period. We accept evidence that the Applicant and his siblings experienced hardship growing up and that some of his siblings, in particular, suffered trauma, however we do not accept those experiences diminish or excuse the seriousness of the December 2022 offences or the Applicant’s other offending into adulthood.[76]
[76] HB331.
We find that of the nature and seriousness of the Applicant’s offending and other serious conduct is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
We are required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[77] 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.[78] The Tribunal must consider the likelihood and consequences of further offending.[79]
[77] Direction no. 110 para 8.1.2(2)(a) and (b).
[78] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
[79] Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673 at [95].
Direction no. 110 refers the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts. ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In our experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably in material relevant to assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with such offending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
The Applicant accepted that the harm that would be caused if he were to reoffend would be serious. However, he maintained that the likelihood of him doing so is extremely low. Accordingly, the Applicant says that the risk to the community is also low.
The Applicant submits, in summary, as follows:
(a)The term of imprisonment has fundamentally changed him as a person. He has developed new skills to deal with personal challenges, he has acquired conflict avoidance and management skills, and his abstinence from drugs and alcohol has made him a different person.
(b)He has deep remorse for his previous conduct, particularly for the December 2022 offences. In his Honour’s sentencing remarks Judge Massey observed that the sentence for the December 2022 offences he dealt with must not be ‘crushing’ in the sense that it ‘destroys any reasonable expectation of a useful life’ upon release.[80] The Applicant contended he has deep remorse for the December 2022 offences and feels sympathy to the victim. This is confirmed by psychologist Ms Kotovski who says that his ‘impulsive behaviours’ ‘appear to be in the past’; he shows ‘genuine regret’ for his past actions, and he is ‘capable of rehabilitation’.[81]
(c)Although his criminal record is extensive, the risk of harm he now poses to the community is minimal because he has taken major steps towards rehabilitation. The Applicant accepts Judge Massey’s assessment that his rehabilitation is in its ‘infancy’ and that much remains to be done, but he is strongly committed to become a reformed person and hence the risk of harm to the community is low.
(d)The experience he has had in prison together with his new skills, rehabilitation and commitment to his family, and particularly his daughter, will act as a protective factor against reoffending and mean it is unlikely he will reoffend.
[80] HB 63.
[81] HB 109-110.
The Minister submits that the nature of the harm that would be caused by the Applicant’s conduct if it were to be repeated is so serious, that any risk it may be repeated is unacceptable.[82] The disregard the Applicant has displayed for the law since becoming an adult creates a serious concern regarding his ability to make good on a commitment not to reoffend. That concern is not mitigated by the changes the Applicant says he has made, or intends to make, to his life, noting that commitment is untested outside the prison context. The Applicant had a prison sentence at the age of 20 and that did not serve as a ‘wake-up call’ not to reoffend as he asserts about the current imprisonment.
[82]HB144.
The Minister acknowledged the Applicant’s submission that his upbringing, mental health, drug and alcohol abuse may have contributed to his offending,[83] but the Minister submitted that the Tribunal should have regard to the sentencing remarks of Judge Massey who did not accept that the Applicant’s mental health issues or background were causative of his offending, nor did his Honour think that the childhood circumstances of the Applicant were substantially mitigatory.[84]
[83]HB144.
[84]HB145.
The Minister submits that:
(a)There is limited evidence before this Tribunal which addresses how the Applicant has addressed his alcohol and drug abuse and mental health concerns, particularly in an unsupervised environment. The counselling undertaken by the Applicant only started after the crash and no counselling has been sought by him while in prison. No detailed plan for counselling or rehabilitation the community was offered by the Applicant.
(b)The Applicant had not engaged in treatment for his mental health conditions of major depression and anxiety before the crash. The Applicant also acknowledged during oral evidence that he has not sought counselling services whilst in prison although he had received medication for depression. He testified that has now been discontinued.
(c)There is inadequate evidence to indicate that the Applicant has taken suitable steps whilst incarcerated to address the mental health issues or childhood trauma which he states lead or contributed to his convictions.
(d)The Applicant has not adequately identified what steps he would take if released into the community to refrain from the drug and alcohol abuse. The Applicant has indicated that he would re-engage counselling services, but such an endeavour does not mitigate the harm that may be suffered by the community if the Applicant reoffends or engages in other serious conduct.
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, we must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[85]
[85] Direction no. 110 para 8.1.2(2)(a).
The Applicant accepts that the harm which would be caused should he reoffend would be serious. However, he contends he presents no risk of reoffending.
The Applicant has committed a range of offences over a number of years. This includes the December 2022 offences as a result of which the victim sustained serious injuries. Noting the comments of the sentencing judge and the evidence concerning the offences, we consider that the harm which would be caused were the Applicant to reoffend would include the serious physical and emotional harm to road users, and associated health, social and economic costs to the community.
The Applicant has also committed repeated driving offences, including driving while suspended or unlicensed and driving under the influence. If the Applicant was to commit further driving offences, the consequences would be serious. The Tribunal notes that serious harm, such as injury or death, can be inflicted on road users when people drive in breach of laws put in place to protect road users. Were the Applicant to reoffend in a similar manner in the future, members of the public would suffer serious harm as a result, including physical and psychological harm.
Further, the Applicant has been convicted of drug offences. Such offending causes widespread harm to the community. If the Applicant were to commit further drug offences, this would cause physical harm to him as a drug user in the form of the health impacts of drug use, and financial costs to the community. It would also cause harm to others were he to engage in illicit drug use while driving, including serious physical harm.
We consider the nature of the harm which would be caused if the Applicant were to reoffend in a similar manner to be very serious.
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.[86]
[86] Direction no. 110 para 8.1.2(2)(b).
The Applicant maintains that there is a low likelihood he will reoffend.[87] He contends he has dedicated his time in prison to reforming himself through reflection, drug and alcohol rehabilitation, and other prison work activities; he contends he has strong social and family support; is committed to the care of his daughter; wants to be a leading figure in his family and to others; would be able to secure employment; wants to care for his elderly parents and particularly his father; wants to take up sport again; is committed to attending counselling; and recognises that his underlying mental health issues require professional attention. He also says that he is likely to receive parole but that decision will only be made later in 2025. The Applicant contends his commitment to rehabilitation, prosocial supports in the community and desire to remain with his family and daughter are strong protective factors against reoffending. Accordingly, the Applicant says he does not represent a risk to the community, and in any event, not an unacceptable risk to the community.
[87] HB419-420.
In terms of assessment of likelihood of reoffending, the Applicant contends that he is a totally reformed person, and that prison has greatly assisted him to change his approach to life. He says he now has insight into the wrongs of his previous actions; he realises the hurt that was caused by his childhood experiences; he understands the risks to which he put others through his conduct; his daughter and family need him and he wants to take care of her and be a role model; he can show to others in society how a person can change his life; he has been a model prisoner; he is committed to ongoing counselling inside and outside of prison; and he is deeply remorseful about the index offence and other wrongs of the past. He does not want to use his childhood experiences as an excuse for his wrongdoing, but he asks the Tribunal to take into account the harmful impact those experiences have had on him and his siblings.
The Minister disputes that there was a low likelihood of the Applicant reoffending. The Minster contends that the Applicant’s rehabilitation has not been tested outside the confines of prison. Up to the time of the current incarceration the Applicant has built up an extensive criminal record that demonstrates an ongoing likelihood of reoffending. The Minister contended that the lack of remorse and insight into his offending which was observed by the Judge Massey remains, noting that even during the Tribunal hearing the Applicant persisted with an account of the events which minimised his culpability and caused concerns over the genuineness of his claimed remorse. The Minister also contends that the factors which contributed to the Applicant’s offending remain present, including mental health instability, financial instability, impulsivity, recklessness and a complex family and social environment. Further, the protective factors on which the Applicant is relying to support his commitment to not reoffending were largely present when his earlier offending occurred and were not effective in preventing that offending. This presents an ongoing likelihood of reoffending.
There were no psychological reports before the Tribunal providing an assessment of the Applicant’s likelihood of reoffending in evidence before the Tribunal. There was however a Treatment Assessment Report which referred to the results of a Risk of Reoffending - Prison Version assessment of the Applicant in January 2024 for the purposes of recommendation for prison programmes.[88] While it was contended this indicated the Applicant presented a low risk of reoffending, the information in the report before the Tribunal is fairly limited - noting that the Applicant returned a score of ‘9’ and that as such no further assessment was undertaken. The report observes that the Applicant ‘was not interviewed for this assessment due to their low RoR-PV score. As such, ‘no responsivity issues were identified, and no treatment recommendations were made’.[89] As a result of this assessment the Applicant was not recommended for criminogenic programs.
[88]^{^[88]} HB322-323.
[89] HB323.
While we accept this report reflects testing of the Applicant’s risk of general offending resulted in what was recorded to be a low score there is limited information in the report about the basis for the assessment other than that the Applicant was not recommended for criminogenic programs. We accept this reflects an assessment of ‘risk’ of reoffending in the low range for the types of offending considered to be ‘general offending’. We place some weight on this assessment in the Applicant’s favour, though the very general nature of the report leads us to place limited weight on the report in considering the likelihood of reoffending in the Applicant’s case.
Ms Kotovski, a clinical psychologist who undertook seven counselling sessions with the Applicant on a self-referred basis between 7 July 2023 and 18 September 2023, provided a report to the delegate dated 19 September 2024 but did not give evidence before the Tribunal.[90] Ms Kotovski notes the Applicant ‘demonstrated a willingness to engage fully’ in counselling sessions. She observed that:[91]
During his sessions with me, [the Applicant] expressed genuine regret for his past actions prior to his sentencing, recognising the negative impact they had on others. It was clear from our discussions that he has a strong desire to improve himself and learn from these experiences.
[90] HB 109-110.
[91] HB109
Ms Kotovski says the Applicant had been diagnosed in 2013 with Major Depression and Anxiety but did not receive ongoing treatment for this. Information regarding that earlier diagnosis was not before the Tribunal and the Applicant told the Tribunal he could not recall being diagnosed. Ms Kotovski expresses the opinion that the Applicant expressed ‘genuine regret’ for his past actions. She observes the Applicant has close family connections and that providing a stable environment for his daughter is a key motivating factor for rehabilitation.
While it is not evident Ms Kotovski undertook any formal assessment of the Applicant’s likelihood of reoffending, she expressed the opinion that the Applicant is ‘capable of rehabilitation’; he is on a ‘path towards personal growth’ ‘with ‘access to proper mental health support and the continued backing of his family’, there is a ‘strong likelihood’ that he would be able to reintegrate with society in a ‘positive and constructive way’; and that it is in his and the community’s ‘best interest’ to allow him to remain in Australia where he has the support he needs to make this transition.’[92]
[92] HB110.
The Applicant confirmed he has not seen Ms Kotovski or undertaken any further counselling since he entered prison.
We accept Ms Kotovski’s assessment that the Applicant is capable of rehabilitation and her assessment that he was on a positive pathway towards personal growth noting he required further mental health support. However, we do not consider the report amounts to an assessment of the likelihood of his reoffending as it does not purport to be an assessment of that nature but rather a positive report on progress made by the Applicant during a period of treatment prior to his incarceration. On that basis we consider it weighs in favour of the Applicant noting that it also records the need for ongoing mental health supports to enable the Applicant to reintegrate in a prosocial way.
The Applicant also submitted material in which the impact of childhood trauma on adults is discussed: The National Child Traumatic Stress Network (NCTSN Effects about Child Trauma (undated);[93] Centre for Mental Health Services Adverse Childhood Experiences (undated);[94] Trauma (undated);[95] and Other Material about Childhood Trauma.[96] The Applicant did not make any submissions about these documents and did not call any expert witnesses to engage with the material. We have nevertheless considered the material and accept that childhood trauma may have an ongoing impact on children and adults for their lives. For the reasons outlined elsewhere in this decision, the Tribunal does not place significant weight on that material as demonstrating any lowered likelihood of reoffending or in reducing the seriousness of the Applicant’s conduct and offending. We do not consider the material weighs in favour of revocation. or the hardship suffered by the Applicant and his family members growing up. For the reasons expressed in this decision we do not consider the hardship experienced by the Applicant in his childhood to mitigate the seriousness of his conduct or offending.
[93] HB459-464
[94] HB466-469.
[95] HB470-476.
[96] HB477-478.

Several members of the Applicant’s family provided statements to the Department or Tribunal in support of the application, including his parents, daughter, former partner and siblings. These statements spoke to the Applicant’s commitment to family, commitment to reform and the reasons he should remain in Australia.
The following persons also gave oral evidence in support of his application:
·The Applicant’s brother, Vijayendran Haran;
·The Applicant’s sister, Malini Haran;
·The Applicant’s brother-in-law, Justin Powell; and
·Joan Washington, the Youth Services Coordinator at CAAPS Aboriginal Corporation.
In written evidence Mr Kiruba Haran, father of the Applicant, admitted and apologised for his mistakes of the past towards his children in general and the Applicant in particular. He says the Applicant’s mistakes should not define his future and that he deserves to stay in Australia.[97] The Tribunal notes Mr Haran was in attendance at the first day of the hearing to support the Applicant but did not testify.
[97] HB425.
The Applicant’s mother, Ms Martha Ah Loo, also stated in written evidence that the risk of removal of the Applicant has taken a ‘tremendous toll’ on her. [98] She says that her health has worsened since he went to prison and that due to her health condition, she may never be able to see the Applicant again in person if he were removed to New Zealand. She says she knows he is remorseful and has been ‘trying hard to turn his life around.’ She states that there are no families ties in New Zealand and she asks the Applicant be given a second chance. Ms Ah Loo also attended the hearing.
[98] HB428.
Ms T, daughter of the Applicant, provided a written statement to the Department dated 19 September 2024 in which she states he is her ‘main emotional support’, and the person to whom she turns for ‘guidance’.[99] She says she has been struggling since his incarceration since she feels ‘lost and unsupported.’ She claims she continues to make poor choices and she needs his presence for ‘emotional stability’ so she can ‘move forward’ in her life.[100] She says it would ‘devastating’ if he were sent to New Zealand.[101] She says he father knows how to calm her down. She provided a further statement to the Tribunal in April 2025 in similar tems.[102] Ms T’s interests are considered further below.
[99] HB101.
[100] HB101.
[101] HB101.
[102] HB431.
Ms Anahera Pollett, mother of the Applicant’s daughter, provided a written statement to the Department indicating she has ‘deep concern about the potential deportation of the Applicant’.[103] She says he was always a supportive and dedicated father regardless of his wrongdoings. She states that their daughter thrived while she was in his care and is now struggling without his guidance and support. She states he plays a ‘critical role’ on her life.
[103] HB103.
The Applicant’s sister, Ms Sharlini Cleave, stated the Applicant is the ‘fabric’ of their family.[104] She says he is devoted to his daughter, supports his father, and has great dedication and compassion. She says the Applicant has displayed great resilience despite their challenging childhood. She states that removing the Applicant to New Zealand would deprive his daughter of the care she needs and that it is in the best interest of all if he were to remain in Australia.
[104] HB106.
Mr Vijayendran Haran, the Applicant’s brother, gave evidence at the hearing and spoke in strong support for his brother. He says he has seen a complete change in the demeanour of the Applicant. He says the Applicant used to be the child-father figure in their house because the Applicant cared for his siblings, protected them and raised them. He stated that the trauma the Applicant experienced as a child continues to impact his adult life. The Applicant has made many mistakes, but he has the potential to be a leading figure in their family and he is needed by his daughter.[105]
[105] HB432.
Another of the Applicant’s sisters, Ms Malini Haran, gave evidence at the hearing about the care the Applicant displayed to them as siblings in their childhood. The Applicant had to assume responsibilities advanced for his age due to the disfunction in their household. He had to deal with them being exposed to family violence, family members having been abused, and suffering a period of homelessness. These events impacted the emotional and psychological state of the Applicant. There has recently been a radical transformation in the Applicant. He is committed to changing his life, to caring for his daughter, to be a leading person in their family, to care for his father; and to life a productive life. She stated that the Applicant needs close contact with the family and support from them to become fully rehabilitated.[106]
[106] HB434.
Justin Powell, brother-in-law of the Applicant, spoke about how he has seen dramatic changes in the demeanour and attitude of the Applicant. He stated the Applicant is deeply remorseful for his past offences, particularly the December 2022 offences; that he is committed to care for his father and daughter; and that he should be given a second chance. Mr Powell says that he is in a position to assist the Applicant with employment upon release from prison. He says that although rehabilitation is a ‘journey’, he is of the view that the Applicant is now fully rehabilitated or at least far advance in his rehabilitation.[107]
[107] HB435.
Ms Samier Meyer, a friend of the Applicant for many years, says the Applicant’s daughter depends on him for emotional and financial support.[108] She sees him as a good father regardless of his transgressions with the law; she can ‘attest’ to his remorse and rehabilitation; and regardless of his wrongdoing she asks he be given an opportunity to make a positive contribution to the community.
[108] HB104.
Ms Skye Cameron, a former friend and colleague of the Applicant, stated the Applicant is a person of kindness, empathy, reliability and devoted to his family.[109] The Applicant has expressed to him deep remorse for his conduct and serious concern about the welfare of his daughter. It is in the best interest of her for him to remain in Australia.
[109] HB105.
Ms C, a niece of the Applicant, provided a statement indicating that the Applicant has meant much to her and her cousin Ms T (daughter of the Applicant). She says he has always been around in their lives, some of their best memories were with him, and his daughter has been much better since she has started living with him.[110]
[110] HB445.
Mr KAC, nephew of the Applicant, says the Applicant has been a consistent factor in his life; they connected around basketball, he could discuss his goals with the Applicant, and the Applicant deeply cares about his family, especially about his daughter.[111]
[111] HB446.
Ms Kassia Keturah Kazmer, a friend of the Applicant, states she has known the Applicant since childhood and had witnessed the instability of his family home. She says the Applicant is a ‘genuinely good person’; that he deserves a second chance; that he is deeply remorseful; and that she has seen the declining health of his father due to the incarceration. She says the Applicant should be given an opportunity to rejoin his family.[112]
[112] HB436.
Mr Karl Kazmer, a friend of the Applicant since 1991, says he has witnessed how the Applicant had protected his siblings in ‘challenging circumstances’. He says the Applicant is a ‘kind-hearted and caring’ person and ‘genuinely remorseful’ about his mistakes. He says the Applicant is needed for the care of his father whose conditions has deteriorated since the incarceration.[113]
[113] HB437.
Mr Matt Menezes, a friend of the Applicant, recalls the Applicant as a person who brought ‘positivity into the room’. He says the Applicant would go out of his way to support others. He says the Applicant is very proud of his daughter and that it is in her best interest to have access to her dad. He says he does not know about the nature or extend of the offending of the Applicant, but he deserves a second chance for himself and those in his family.[114]
[114] HB439.
Ms Cheryl Joy Ingram, a friend of the Applicant, states she knew him as teenager as a polite and friendly person. She believes he has the capacity to make positive changes to his life. He wants to be a supportive father and take care of his daughter.[115] She stated that for his sake and the interest of his family, he should remain in Australia.
[115] HB440.
Mr Shaun Daniells, a solicitor and friend of the Applicant, says he has known the Applicant since 2010. He knows the Applicant as a compassionate and caring person; as a great team mate in basketball; a good student; and a good support for his family. He states that the family can play an important role to assist the Applicant integrating into social life.[116]
[116] HB441.
Ms Natasha Russell, a friend of the Applicant, knows him as a kind and generous person; loving his daughter; remorseful for the December 2022 offence. She says his family in general and daughter in particular would suffer if he were to be incarcerated.[117]
[117] HB442.
Mr Richie James, a previous employer of the Applicant, provided a letter indicating that the Applicant is a friendly, ‘reliable and hardworking’ person; with a ‘calm demeanour’. The Applicant shared how keen he was to rebuild the relationship with his father; that he loves his daughter; and that he is committed to break the cycle in which he previously found himself.[118]
[118] HB447.
Ms Joan Washington, Youth Services Coordinator of CAAPS Aboriginal Corporation, provided a letter and gave evidence before the Tribunal. Ms Washington explained that she is the caseworker working with the Applicant’s daughter who was referred to the service earlier in the year by a legal aid service. Ms Washington spoke about what she understood to be a close relationship between the Applicant and his daughter based on his daughter’s accounts. She noted that Ms T reports that her father is a role model to her and is the principal person to whom she turns for advice. She expressed the view that it was in both of their best interests for the Applicant to remain in his daughter’s life.[119] She expressed the view that the Applicant and his daughter can be healed and lead a productive life if they receive the required support and stressed the importance of a healthy co-parenting relationship to support this. Ms Washington’s evidence is considered further below in the context of consideration of Ms T's best interests.
[119] HB449-450.
The Applicant provided evidence that has participated in the following programmes while in prison between August 2023 and January 2025 as part of his rehabilitation process:
·12 Voluntary Alcoholics Anonymous sessions;[120]
·12 Voluntary Narcotics Anonymous sessions;[121]
·12 Voluntary Narcotics Anonymous sessions.[122]
[120] HB451.
[121] HB452.
[122] HB453
The Applicant contends he is committed to fully rehabilitating. The Applicant provided evidence that Corrective Services have placed him on a waitlist for the following voluntary programs:[123]
·AOD – brief intervention workshop
·Alternative to violence
·Inside Out Dads
·Bringing up great kids; and
·Cognitive Brief Intervention.
[123] HB454.
The email confirming this notes the Applicant ‘will start to be placed on these programs as he gets closer to his parole date in December.’ As noted above, the Applicant was not assessed to require criminogenic programs in prison.
There was no evidence before the Tribunal that the Applicant had completed any other rehabilitation programs and he indicated he had not undertaken individual counselling in prison. The Applicant pointed to the assessment he was a low risk of general offending and that he had recorded positive employment history in prison as evidence of his reform and low likelihood of reoffending.
The Tribunal accepts Ms Kotovski’s report that the Applicant is capable of rehabilitation. However, we note that the sentencing judge assessing the Applicant’s remorse In December 2023, after his counselling sessions, found he was not remorseful following the crash. The sentencing judge did not accept the alternate account of the crash proffered by the Applicant and considered his actions following the crash did not demonstrate genuine remorse or acknowledgment of the harm he had caused the victim. The sentencing judge observed that the rehabilitation of the Applicant is ‘very much’ in its infancy.[124] When this proposition was put to the Applicant by us during the hearing he agreed.
[124] HB66.
We shared the sentencing judge’s concerns regarding the Applicant’s remorse. He maintained a version of the events of the crash which minimised his culpability. He rationalised lying to the police following the incident in terms of protecting his own safety and admitted that there was someone else in the car with him whose involvement was never declared to police of the court. In our view the Applicant did not demonstrate genuine remorse for his role in the crash though we accept he was remorseful for the impact his imprisonment has had on his family. His ongoing minimisation of his responsibility for the crash causes us to have ongoing concerns about the extent of his rehabilitation and his commitment to not reoffending, noting that the December 2022 offences, while the most serious, were not an isolated incident of criminal conduct.
We note the statements of support by his friends and family, but we are concerned that the commitment to rehabilitation they speak about has not yet been tested in the community beyond the period he was on bail and awaiting trial for the December 2022 offences. While we acknowledge that the period spent in the community while on bail is in the Applicant’s favour, this included a period of denial of the offences and, on the evidence before the Tribunal, ongoing withholding of information about the crash from authorities. Further, we consider that the fact the Applicant was facing pending charges provided disincentive to reoffending during this bail period. Such constraints would not be present in the community in the longer term, even if the Applicant were to be granted parole and be subject to parole conditions for a period. For completeness we note the Applicant has not been considered for parole and there is no information before the Tribunal as to the nature of any parole conditions which might be imposed.
To the extent the Applicant relies on his family members, including his sense of responsibility for his daughter we are concerned that his prosocial supports were not sufficient to prevent the Applicant’s offending in the past. Importantly, he admitted to having taken illicit drugs while his daughter was in his care indicating that concern for her welfare was not a protective factor against offending in the past. This causes us to have concerns about the degree to which concern for his daughter’s welfare will be a protective factor against reoffending in the future.
We consider there remains a strong likelihood that the Applicant will engage in further criminal or other serious conduct if he is permitted to remain in the community, taking account of information and evidence on the likelihood of re-offending and evidence of rehabilitation achieved at the time of the hearing and giving weight to the period he spent in the community following the December 2022 offence including when on bail following his arrest in February 2023. We find so for the following reasons:
·The criminal record of the Applicant spans many years and although he says prison has been a ‘wake-up call’, we note that he also served a prison sentence at the age of 20 whereafter substantial criminal conduct continued and worsened.
·The Applicant committed the December 2022 offences and a substantial proportion of other offences after the birth of his daughter. The Applicant admitted in evidence before us that he had used drugs during some weekends while his daughter was in his care. Although we accept his love for his daughter, we find that he engaged in ongoing offending during the life of his daughter, her welfare was not a protective factor against his offending in the past and may be insufficient to protect against offending in the future.
·While the Applicant resided in Queensland to be close to his daughter, he continued to commit offences, including ‘Possessing Dangerous Drugs’.[125] He then remained in Queensland for a significant period after his daughter returned to live in Western Australia.
·The Applicant had the support of his family and friends in the past including during periods of prior offending. As those pro social supports were not sufficient to protect against offending in the past there is some doubt they will be sufficient to do so in the future.
·The Applicant testified that prior to the crash he and a friend had consumed alcohol and drugs.
·The Applicant has lacked remorse and insight into his offending and continued to minimise his responsibility for the crash.
·While the Applicant has engaged in some voluntary programs to address alcohol and illicit substance use, he has not undertaken any formal rehabilitation programs and there are no reports to demonstrate voluntary participation programs addressing use of alcohol or illicit drugs have addressed issues of the Applicant’s use of those substances, including in the context of serious driving offences. This is particularly the case with respect to further illicit substance use which the Applicant conceded was a factor in the December 2022 offending. While Ms Kotovski identified a need for ongoing psychological support there was no evidence the Applicant has undertaken any further counselling or psychological treatment. Nor was there any demonstrated plan for him to do so in the community.
·Although the Applicant participated in counselling after the crash he has not sought to access counselling in prison. The Applicant also had not sought any counselling prior to the December 2022 offences, regardless of many years of offending and carrying the burden of his traumatic childhood.
[125] HB302-319.
Overall, we find there is a strong likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.
Conclusion on the protection of the Australian community
The Applicant’s conduct and offending are very serious. The December 2022 offence read with the lengthy criminal record of the Applicant demonstrate the serious harm which would be caused were he to reoffend. We find there is a strong likelihood he will reoffend or engage in other serious conduct noting observations his rehabilitation is in his infancy and the Tribunal had ongoing concerns about the genuineness of his remorse for his offending. We find that the serious harm which would be caused by further serious offending means the risks associated with his likelihood of reoffending are significant. Considering the significant harm which would be caused if the Applicant were to reoffend, we consider the risk to be unacceptable.
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, we find that this primary consideration weighs very strongly against revocation.
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.
The Applicant has 1 conviction related to domestic violence arising from an incident on 6 June 2016.[126] The Statement of Material Facts to which the Applicant pleaded guilty says the Applicant grabbed his partner by the shirt and pushed her to the ground. The Applicant told the Tribunal that his actions were in response to her hitting him with a frying pan, but he accepts his reaction was excessive. The Applicant was convicted of the offence of ‘Common Assault in Circumstances of Aggravation or Racial Aggravation’ and fined $1,500.
[126] HB181-182.

Other family members and friends note the Applicant is close to his daughter and observe that he needs her in his life.[146]
[146] See, for example, HB443, HB437, HB445, HB446.
Ms Washington, Youth Services Coordinator at the CAAPS Aboriginal Corporation, also says that from her personal observations it is apparent that the Applicant’s daughter is in need of his care, love and support as part of her healing process.[147] She says that the daughter needs a safe and caring environment. She indicated Ms T has had interactions with the authorities and entered a residential program with CAAPs earlier this year. She has since moved back with her mother but has ongoing engagement with CAAPS. Ms Washington expressed a concern that that the remove of the Applicant to New Zealand may delay her own rehabilitation. Ms Washington testified she was not aware of the nature or extent of offending by the Applicant and when it was put to her that he had admitted to a history of illicit substance use while she was in his case, acknowledged that reoffending by the Applicant may be a set-back in the care and support of his daughter. Ms Washington expressed the view Ms T would be best placed for now to remain with her mother in the Northern Territory but that a co-parenting arrangement could be managed including if the Applicant were to remain in Parth.
[147] HB449.
We note Ms T is 15 years old and approaching adulthood however we acknowledge these are important teenage years during which the Applicant could make a positive contribution to her life, were he to refrain from illicit substance use and not reoffend.
While there was evidence the Applicant had used drugs while his daughter was in his care, there was no evidence that the Applicant’s offending had a negative impact on his daughter other than the separation from him caused by his incarceration. Notwithstanding evidence of family violence, there is no evidence that Ms T has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant or has otherwise been abused by the Applicant in any way, or any evidence that they have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
We note Ms T has been communicating with the Applicant in part by phone while he has been in detention and would be able to continue to do so were he removed to New Zealand. While we consider that they could manage contact by electronic means we accept that is not a substitute for in person contact, particularly given Ms P’s needs at present.
We note Ms T is being financially supported by her mother at present and that Ms Washington testified there were no concerns that her mother was unable to provide a safe home environment for her. Ms Washington testified that conflict caused by Ms T’s behaviour had been an issue and they were working with her and her family in the Northern Territory to rebuild those relationships and provide her with stability to curb risk taking behaviours and engage in prosocial behaviour.
We consider it is in the best interests of Ms T that the Cancellation Decision be revoked and that this weighs in favour of revocation. In all the circumstances her best interests carry moderate weight.
The Applicant’s nieces and nephews
The other children whose best interests were identified as being impacted by the decision were the Applicant’s nieces and nephews who range from 2 to 17 years of age. The children reside with their parents in Perth and Melbourne.
The Applicant did not suggest the interests of his nieces and nephews were materially different and we have considered the interests of these minor children together as a group, as there was limited information about those individual children.[148]
[148] Direction no. 110, para 8.4(3).
As noted in the consideration of the Applicant’s ties to Australia, the Applicant has a large number of nieces and nephews in Australia who he says will be impacted by the decision.[149] While these children were identified in the Applicant’s submission to the Tribunal as relevant to this consideration, there was limited evidence regarding their individual circumstances or relationships with the Applicant.
[149] RB1, p 115.
Letters from the oldest niece (Ms C) and nephew (Mr KAC) were provided to the Tribunal in support of the application. Both speak of their love for their uncle and their desire for him to remain in Australia. As noted earlier, Ms C, indicated that the Applicant has meant much to her and her cousin Ms T. She states: [150]
[The Applicant] has been around throughout my life. He was always kind to me and made the effort to spend time with me and [Ms T]. Some of my best memories growing up are of him taking us out shopping or for food, just spending time together and having fun. He always made us feel special and looked after, like we mattered.
He’s always been someone I felt comfortable with. Even though he’s my uncle, I’ve always seen him as someone I could trust and talk to. It’s clear how much he loves [Ms T]. They’ve always been close and she relies on him a lot. Since she started living with him, she seemed more settled and happy.
[150] HB445.
Mr KAC, says the Applicant has been a consistent factor in his life. He states:[151]
[The Applicant] has always been consistent in my life. From when I was young, he was someone who always made time for me and never made me feel forgotten. We share a strong passion for basketball, and it’s something that has really connected us over the years. He always showed interest in my games and my goals, and it meant a lot to have someone who understood and shared that love for the sport.
He never judged me, always encouraged me, and was just there — even when he had his own challenges going on. I know he cares about his family deeply, especially his daughter [Ms T], and he has always tried to do the right thing for the people he loves. I hope he is given the chance to stay in Australia where he has his family and can continue to be part of our lives.
[151] HB446.
We accept these statements reflect the children’s desire for their uncle to remain in Australia and are representative of the position he holds with respect to his nieces and nephews.
We accept that the Applicant has a close relationship with his nephews and nieces who reside in Perth, particularly those of ages 17, 16, and 9. The Applicant has engaged in criminal conduct in the past regardless of his stated positive relationship with the children and has been separated from them during periods of incarceration. Although we note the commitment of the Applicant to rehabilitation, there remains a real risk that the Applicant may reoffend, and this may impact the children with whom he has a relationship.
We note that the Applicant has a limited relationship with the nieces in Melbourne (ages 5 and 2). They have only had exposure to the Applicant as a baby and toddler since he has been in prison for the past 2 years. However, we note their parents gave evidence of their desire for the Applicant to remain as an active member of their family and we accept they consider it is in those children’s best interests for the cancelation to be revoked to allow that to occur.
The Applicant does not play a parental role to his nieces or nephews. There is limited evidence regarding his contact with the children while in prison or detention. As with his daughter, the Applicant could maintain contact with his nieces and nephews by electronic means should he be returned to New Zealand, to the extent he has individual contact with them or through their parents. There is no evidence that these children have been subject or exposed to family violence, abuse or neglect perpetrated by the Applicant.
As noted above, we accept the Applicant is part of a close family and that he is a valued member of that family, including to his nieces and nephews in the role of an uncle. While his relationships with his nieces and nephews have likely been impacted by his time in prison, the Tribunal finds their best interests lie in the Applicant remaining in Australia to maintain the extended family bond he has with them. This weighs in favour of revocation.
However, noting the non-parental relationship with the children and the limited evidence of the nature of the ongoing interaction with them, we afford only slight weight to their best interests in favour of revocation.
Conclusion
For the above reasons, we consider that revocation of the Cancellation Decision would be in the best interests of all the minor children identified. However, we consider those interests carry moderate weight in the case of the daughter of the Applicant and slight weight in the case of the nephews and nieces.
Having regard to the best interests of the children impacted by the decision, we consider overall that the consideration of the best interests of children weighs in favour of revocation and carries moderate weight.
Expectations of the Australian Community
This primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) 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.
Direction no. 110 notes that 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 sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ 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 measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 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 persons conduct or offending.
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.
The Applicant contended that this consideration should weigh in favour of revocation citing the dissenting opinion of Flick J in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [13] where his Honour observed that the Australian community ‘would have different expectations with different contraventions’. The Applicant contended that the Australian community ‘would never want children to grow up without their father’. It was contended that the community would favour revocation ‘where the Applicant’s conduct was mainly due to his growing up in a dysfunctional family, mental health issues and trauma’. Further, it was contended the community would be compassionate and willing to allow the Applicant to remain particularly where he has a minor child.[152] The Applicant contended that the expectations of the Australian community should be assessed 'realistically'[153] and that the community also expects:[154]
·That rehabilitation efforts are recognised.
·That people who have lived here since childhood are treated with some degree of compassion.
·That children are not unnecessarily separated from their parents, especially where the parent is committed to supporting them.
[152] ASFIC, HB422.
[153] Citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 ant [3].
[154] Applicant’s Reply Submissions, HB457-458.
The Minister contended that the Tribunal should find that this primary consideration weighs heavily against revocation, noting that the Applicant had put members of the Australian community at considerable risk through illicit drug and driving offences.[155]
[155] RSFIC, at HB148.
The Tribunal has found that the Applicant was convicted of an assault against a former domestic partner which constituted family violence. Such offending falls within paras 8.5(2)(a) and (c) of Direction no. 110 and as such is identified in the direction as conduct which raises serious character concerns leading to a community expectation that the Applicant’s visa would be cancelled. Further, while his other serious offences do not fall within those identified in paragraphs 8.5(2)(a)–(f), that list is not exhaustive.
We have found that the Applicant’s offending was very serious for the reasons outlined above. In our view the totality of his offending history raises the sort of serious character concerns referred to in the part of the Direction and we find the Australian community would expect that his visa would remain cancelled.
In this regard we do not accept the Applicant’s contention that it is for the Tribunal to determine the community’s expectation based on an analysis of the Applicant’s circumstances. Such an approach runs contrary to the express terms of the Direction which deems the community’s expectation to the Applicant would not continue to hold a visa. The submission also runs counter to the majority in FYBR.[156]
[156] At [86] per Charlesworth J and [92]-[93] and [100]-[104] per Steward J.
Accordingly, we find the expectation of the Australian community weighs against revocation.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration.
In weighing this consideration, we are guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 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.
However, the principles also note the increased tolerance afforded to non-citizens who have been in the community from a very young age or for most of their lives. The Applicant came to Australia as a child, spent his formative years in Australia and has lived here all of his adult life.
We find the community would afford the Applicant additional tolerance for his conduct and offending behaviour consistent with the Direction in this regard. However, we consider that the repeated nature of his offending has reduced that tolerance and the weight to be placed on it.
Overall, we consider this primary consideration weighs strongly against revocation.
Other considerations
Paragraph 9 of Direction no. 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 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.[157]
[157] Direction no. 110 para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment 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 the Applicant’s visa. The major consequences of visa refusal or cancellation under s 501 and related provisions include:
·a prohibition on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);
·refusal/cancellation of other visa applications/visas under s 501F; and
·periods of exclusion and special return criteria may apply under s 503 and Special Return Criteria 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusions where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[158] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[159]
[158] Migration Act, s 15.
[159] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]–[122].
The Applicant’s request for revocation of the Cancellation Decision, his personal circumstances, or any other information provided to us did not raise any claims he would suffer harm on return to New Zealand such that would give rise to a non-refoulment obligation arising from his return.
The Applicant did not raise concerns regarding return to New Zealand other than those relating to his separation from family and friends in Australia and the difficulty he would face resettling in New Zealand. In particular, the Applicant contended that one of the legal consequences of a decision not to revoke the cancellation of his visa would be his permanent exclusion from Australia. The Applicant contended that this consequence was significant in the Applicant’s circumstances given the health issues suffered by his parents and the fact they would be unable to travel to see him.[160]
[160] ASFIC, HB422.
Based on the information before me, the Applicant’s circumstances are not such as would suggest a non-refoulement claim arises with respect to his return to New Zealand. As to the general concerns the Applicant raised about his fears of return impacting his ability to re-establish himself in New Zealand, we have considered those representations further below in the context of the consideration of impediments if removed.
We accept that, were the Cancellation Decision not revoked, the effect of the exclusion and other visa restrictions would likely cause permanent separation from his parents and extended separation from his other family members, including his daughter. While we note the visa limitations which result from visa cancellation are an intended consequence of the operation of s 501 and related provisions, we consider that the impact of these consequences, and in particular the impact that permanent exclusion would have on the Applicant and his family members, weighs in favour of revocation. However, having regard to all the circumstances we consider only slight weight should be afforded this consideration 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 sub-paragraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant was born in New Zealand and resettled in Australia when he was 7 years old. He is now 42 years old. He has not visited New Zealand since settling here. He considers himself to be Australian. He does not have any close family, friendship or social connections to New Zealand.
The Applicant contends that he will suffer emotional and psychological hardship due to separation from his family and that he would struggle to reestablish himself notwithstanding he has transferrable skills.[161]
[161] ASFIC, HB423, citing Walker v Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 228.
The Applicant says he is in generally good physical health and this is supported by the documents before us. The Applicant suffers from Type 1 Diabetes for which he receives medication. Although Ms Kotovski’s report says that the Applicant had previously been diagnosed with severe depression, he was not currently being treated for mental health issues. The Applicant says that he no longer uses excessive alcohol or illicit drugs and that is committed to ongoing abstention and rehabilitation programmes when released from prison.
We accept on the evidence that the Applicant has ongoing treatment needs in respect of the diabetes and that Ms Kotovski identified the need for further mental health support. We consider the Applicant may also need o as drug ongoing support and alcohol use given the lack of information the outcomes of voluntary programs undertaken to date. However, we consider he would have the same access as other citizens to supports for these needs in New Zealand and that those supports are likely to be of a similar kind to those available to him in Australia.[162]
[162] Webb v Minister for Home Affairs [2020] FCA 831 at [100]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
The Applicant says that he does have Australian superannuation but he does not know the balance because he had withdrawn some of it while he experienced hardship when he was resident in Queensland. We find that the funds the Applicant has available in superannuation may assist him if he is returned to New Zealand and once he is eligible to access those funds. In addition, and as noted above, we find the Applicant will have the same access to social welfare supports as other citizens of New Zealand and that these are comparable to Australia.
We find there is nothing in the information before us to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances, including mature age, work experience, and lack of language or cultural barriers in New Zealand. There was no evidence that the Applicant would suffer any significant cultural or language barriers on return to New Zealand, albeit that we do not diminish the practical, social, and personal challenges of resettlement to a country he left as a child.
We accept that the Applicant is likely to face significant emotional hardship with respect to his separation from family members in general, and his daughter in particular, if returned to New Zealand. We consider his positive prospects for future employment will assist his resettlement.
We accept that it is unlikely that his parents in particular may be able to travel to New Zealand. We accept the separation from his daughter is likely to be significant and that the Applicant and his daughter would suffer emotional hardship as a result.
We consider the Applicant has comparable prospects for employment in New Zealand given his transferrable skills and employment history as a forklift driver, storeroom packer, and laundry manager.
Overall, we find that the Applicant may encounter some difficulty establishing himself were he to return to New Zealand, but we do not regard those difficulties as significant impediments if removed.
On balance we find that this consideration weighs in favour of revocation, but only slight weight is afforded to this consideration in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.3(1) of Direction no. 110 states:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has worked as a forklift driver, at a pet grooming business, and a storeroom packer.
While the Applicant submitted he has in demand skills and has ‘consistently demonstrated that he was trustworthy, honest and hardworking’, and if he is removed Australia would lose ‘a reliable and dedicated worker’[163] he did not contend that if he is not allowed to remain in Australia this would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
[163] ASFIC, HB 423.
We find this consideration weighs neither for nor against revocation in the Applicant’s case and afford it neutral weight.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
We have therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant 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.
We must weigh the various primary and other relevant considerations outlined in Direction no. 110 against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.
In determining the weight to be applied to each consideration, we have considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. We have gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
We have considered all the primary considerations. We found that the protection of the Australian community weighs against revocation and we afford the consideration very strong weight in the Applicant’s circumstances.
We find that the consideration of family violence weighs against revoking the Cancellation decision and afford the consideration moderate weight against revocation in the Applicant’s case.
We find that the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revoking the Cancellation Decision. We find strong weight should be afforded in the Applicant’s case.
We find that the best interests of the children identified as being impacted by the decision weigh in favour of revocation, albeit to different degrees. Overall, we consider moderate weight in favour of revocation should be afforded to this consideration in the Applicant’s circumstances.
We find that the expectations of the Australian community weigh against revocation and we find this consideration should be afforded strong weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, we find that the legal consequences of the decision weigh in favour of revocation and we afford this slight weight in the Applicant’s circumstances. We find that the extent of impediments if removed weights in favour of revocation and we afford it slight weight. We find that the impact on Australian business interests weighs neither for nor against revocation in the Applicant’s case and afford it neutral weight.
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 us to find that that general principle should not apply in the Applicant’s case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, we find that the considerations weighing against revocation, being the primary considerations of the protection of the Australian community, family violence considerations and the expectations of the Australian community, outweigh those weighing in favour of revocation, being the primary considerations of the strength, nature and duration of ties to Australia, and the best interests of minor children and the other considerations of the legal consequences of the decision and the extent of impediments if removed.
In summary, having regard to all the primary considerations, and the relevant other considerations in Direction no. 110, we are not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 16 August 2024 not to revoke the cancellation of the Applicant’s Subclass 444 visa under section 501CA(4) is affirmed.

I certify that the preceding 249 (two hundred and forty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Simone Burford

..............................[sgd]..........................................
Associate
Dated: 9 July 2025

Hearing dates: 3 and 4 June 2025

Counsel for the Applicant: Mr Mukesh Chand

Solicitors for the Applicant: Shiva’s Migration Services

Counsel for the Respondent: Ms Alexandra O’Grady

Solicitors for the Respondent: MinterEllison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY

Court	Conviction/ Sentence Date	Offence	Offence date (if known)	Result
Joondalup Court of Petty Sessions	10 January 2003	Unlicensed vehicle	$100 fine
Joondalup Court of Petty Sessions	5 November 2003	No Motor Drivers licence – Under Suspension	$400 fine License disqualified for 9 months
Midland Court of Petty Sessions	9 December 2003	No Motor Drivers licence – Under Suspension	Community Based Order for 12 months; Community Service Order for 80 hours; Licence disqualified for 9 months
Perth Court of Petty Sessions	14 December 2004	No Motor Drivers licence – Under Suspension	$1,000 fine License disqualified for 9 months
Perth Court of Petty Sessions	14 December 2004	Fail to stop at a stop sign	$150 fine
Midland Magistrates Court	26 October 2005	Reckless Driving	$700 fine License disqualified for 9 months
		No Motor Drivers licence – Under Suspension	6 months and 1 day imprisonment; Licence disqualified for 16 months
		Failed to stop when called upon	$150 fine
Perth Magistrates court	21 June 2006	No Motor Drivers licence – Under Suspension	6 months and 1 day imprisonment; Licence disqualified for 16 months
		Give false personal details to police	24 January 2006	$150 fine
		Drive vehicle contrary to compliance notice	$600 fine
		Remove compliance sticker that was in force	$400 fine
		Unlicensed vehicle	$100 fine
	21 December 2009	Possess a prohibited drug (MDMA)	20 November 2009	$500 fine
Fremantle Magistrates Court	14 April 2010	Unlicenced vehicle (Owner/Driver)	$150 fine
Fremantle Magistrates Court	10 August 2010	Possess a Smoking Utensil used for smoking prohibited drug	8 July 2010	$200 fine
Armadale Magistrates Court	3 May 2013	Stealing as a servant	17 April 2013	$750 fine
Perth Magistrates Court	2 December 2013	Stealing; Criminal Code (WA); 378	10 September 2013	$300 fine
	30 July 2014	No Authority to Drive (fines suspended)	$600 fine
	12 January 2016	Driving with prescribed illicit drug	$200 fine
	21 March 2019	Used a mobile phone whilst driving a vehicle	$400 fine
	21 March 2019	No authority to drive (fines suspended)	$200 fine
	13 April 2016	Assault occasioning bodily harm	29 December 2015	$2,500 fine
	13 April 2016	Common assault	29 December 2015	$1,000 fine
Rockingham Magistrates Court	23 May 2016	Reckless Driving – Dangerous to the Public or any Person	29 December 2015	$150 fine
Rockingham Magistrates Court	21 September 2016	Common Assault in Circumstances of Aggravation or Racial Aggravation	6 June 2016	$1,500 fine
Southport Magistrates Court (QLD)	16 September 2019	Possessing dangerous drugs’ receiving tainted property	15 March 2019	$1,500 fine On all charges with traffic matters conviction recorded; Licence disqualified for 2 years
Southport Magistrates Court	15 September 2020	Possessing dangerous drugs	19 June 2020	$500 fine Conviction recorded
Fremantle Magistrates Court	5 March 2021	Give false personal details to Police	17 January 2021	$250 fine
Perth District Court of Western Australia	21 December 2023	Dangerous driving occasioning grievous bodily harm	1 December 2022	Licence disqualified for 3 years (cumulative) 3 years imprisonment (cumulative)
		Creating false belief		6 months imprisonment (cumulative)
		Driver fail to report an incident occasioning death or GBH		6 months imprisonment (concurrent) Licence disqualified for 12 months (cumulative)
		Failed to stop to assist (GBH)		Licence disqualified for 2 years (concurrent); 6 months imprisonment (cumulative)
		Dangerous driving occasioning grievous bodily harm		Licence disqualified for 3 years (cumulative) 3 years imprisonment (cumulative)
Perth Magistrates Court	8 January 2024	Drove with blood alcohol content of or above 0.08g with prescribed illicit drug in oral fluid/blood	1 December 2022	$2,650 fine Licence disqualified for 14 months concurrent
		Driver fail to stop – property damage
		Driver failed to report incident involving property damage

Hearing dates:	3 and 4 June 2025
Counsel for the Applicant:	Mr Mukesh Chand
Solicitors for the Applicant:	Shiva’s Migration Services
Counsel for the Respondent:	Ms Alexandra O’Grady
Solicitors for the Respondent:	MinterEllison