HLXZ and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 978

HLXZ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 978 (8 July 2025)
Applicant /s:  HLXZ
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2023/8082

Tribunal:Senior Member K. Raif
Place:Sydney
Date:8 July 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 07 July 2025 at 5:28pm
Catchwords
MIGRATION – Mandatory cancellation of Applicant ’s Class BF Transitional (Permanent) visa – whether the Applicant is the holder of an Absorbed Person Visa pursuant to s 34 of the Migration Act 1958 – whether the Applicant is of Aboriginal descent – Ministerial Direction 110 Applied – Applicant does not pass character test – Substantial criminal record – whether there is another reason to revoke cancellation – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647
Heathcote and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 131
Cowgill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 729
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’)
Statement of Reasons
BACKGROUND

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BF Transitional (Permanent) visa previously held by the Applicant .
The Applicant is a national of the UK, born in May 1966. He travelled to Australia in 1968 at the age of two, with his parents. The Applicant has multiple convictions. In January 2015 the Applicant ’s visa was cancelled under s. 501(3A), he made a request for revocation and in September 2016 the cancellation was revoked.
In May 2022 the Applicant (under a different name) was convicted of an offence and was sentenced to a term of imprisonment exceeding 12 months. On 25 August 2022 the Applicant ’s visa was mandatorily cancelled under s. 501(3A). The Applicant made a request to revoke the cancellation and on 25 October 2023 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
In January 2024 the Tribunal (differently constituted) affirmed the decision under review. The Applicant sought judicial review, and the matter has been remitted to the Tribunal for consideration.
The Applicant appeared before the Tribunal on 17 March 2025 and 30 June 2025. He was represented on review. The Tribunal took oral evidence from several witnesses including the Applicant ’s daughter AH, his aunt MH, his former spouse CC and a friend R.
Following the conclusion of the hearing, the Tribunal reserved its judgment. The Applicant made contact with the Tribunal stating that he was not given sufficient notice or time by his representative to call witnesses to give evidence concerning his Aboriginal descent. The Tribunal does not accept that assertion, noting that the Applicant made the claim before the first Tribunal (some 18 months ago) and the first Tribunal decision put the Applicant on notice that his evidence was inadequate. The Applicant raised the same claim before the present Tribunal on 17 March 2025, and the hearing was adjourned and reconvened on 30 June 2025 to enable the Applicant to gather and present evidence concerning his Aboriginal descent. In the circumstances, the Tribunal is satisfied the Applicant was given adequate time to enable him to present evidence to the Tribunal.
On 3 July 2025 the Applicant ’s representative confirmed that he continued to act for the Applicant and that the Applicant was satisfied with the Tribunal proceeding to the decision on the material before it. The Tribunal has done so. For the following reasons, the Tribunal has concluded that the decision dated 25 October 2023 not to revoke the cancellation of the Applicant ’s Class BF Transitional (Permanent) visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and / or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of [protection of the Australian community] is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
Before dealing with the issue of the Applicant ’s character, there are two other issues that require consideration. First, whether the Applicant held an Absorbed Person visa and its effect, if any, on the current proceedings. Secondly, the Applicant made claims of being of aboriginal descent. The Tribunal’s considerations in relation to these two issues are set out below.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
ABSORBED PERSON VISA
As the Applicant has been living in Australia, without departing Australia, since May 1968, the Tribunal invited the parties to make submissions as to whether the Applicant held an Absorbed Person visa pursuant to s 34 of the Migration Act 1958 (Cth) and, if so, whether this was relevant to the present review.
The Applicant, in his submission to the Tribunal dated 10 March 2025, states that an Absorbed Person visa, which is granted by operation of law, cannot be subject to cancellation under s. 501 of the Act. The Applicant submits that the Act makes a distinction between an Absorbed Person visa and other visas which are granted at the Minister’s ‘discretion’. The Applicant submits that s. 501 applies to visas that have been ‘granted’ (citing s. 501(1)) while the Absorbed person visa is not ‘granted’ but comes into effect by operation of law. The Applicant submits that s. 501 cannot ‘override’ s. 34 unless there is express legislative intent permitting cancellation of the absorbed person visa or unless the visa Applicant no longer meets the requirements of s. 34. The Applicant submits that the decision to cancel the visa under s. 501 was made without jurisdiction or in error.
The Applicant’s written submission does not address whether the Applicant continued to hold the Absorbed person visa or had ceased to hold that visa at the time of the cancellation or prior to that time.
The Respondent submits that s. 20(1)(d) of the Migration Act, as in force immediately before 1 September 1994, applied to the Applicant as he was a non-citizen who, relevantly, had been convicted of a crime and sentence to a term of imprisonment for a period of at least one year. The Respondent submits that since s. 20(1)(d)(ii) applied to the Applicant, he does not meet s. 34(2)(d) and is not taken to have been granted the Absorbed Person visa. The Respondent submits, in the alternative, that even if the Applicant had been granted the Absorbed Person visa, the decision not to revoke the cancellation of the Class BF visa would result in the cancellation of any other visa under s. 501F(3) and not s. 501 as the Applicant contends.
In determining whether the Applicant held an Absorbed Person visa, the Tribunal has had regard to s 34, which provides who is taken to have been granted an Absorbed Person visa. Relevantly, s. 34(2)(d) relates to a person who, immediately before 1 September 1994, was not a person to whom s. 20 of the Act, as in force then, applied.
The Tribunal accepts the Respondent’s submission that s. 20(d)(ii) of the Act did apply to the Applicant because, relevantly, before 1 September 1994 he had been convicted of crimes and sentenced to imprisonment for a period of at least one year. As s. 20 applied to the Applicant, he is precluded by s. 34(2)(d) from holding an Absorbed Person visa.
Alternatively, even if the Applicant did hold an Absorbed Person visa after 1994, the Tribunal is mindful that it is possible that the Applicant held multiple visas, such as the Absorbed Person visa and the Transitional (Permanent) visa.
In Heathcote[1] DP Burford considered the effect of s. 501 cancellation in circumstances where the Applicant held an Absorbed Person visa. DP Burford stated at [203]:
The terms of s 501 are unqualified. It is expressed as a general provision applicable to all kinds of visas. There was no information before me to suggest she held any migration status which would prevent or preclude the mandatory cancellation of her visa. She was the holder of a permanent visa which was subject to the operation of the provisions of s 501 of the Migration Act. In any event, the holder of an absorbed person visa is not immune from the operation of the provisions of s 501(3A) of the Migration Act. They are lawful non-citizens holding a visa and to whom the mandatory cancellation provisions would apply
[1] Heathcote and MIMA (Migration) [2025] ARTA 131.
Similarly, DP Burford held in the matter of Cowgill[2] that the Applicant ’s status as a holder of an Absorbed Person visa did not preclude the operation of s. 501 of the Act and, as a holder of the Absorbed Person visa, an Applicant would not be immune from the operation of the provision of s.501(3A).
[2] Cowgill v MICMSMA [2024] AATA 729.
The Tribunal finds that he Absorbed Person visa is capable of being cancelled. The Tribunal thus accepts the Respondent’s claim that even if the Applicant did hold an Absorbed Person visa, that visa would have been cancelled under s. 501F(3) once his Class BF visa was cancelled.
The Applicant ultimately conceded that he did not hold the Absorbed Person visa. The Tribunal finds that the Applicant was not a holder of an Absorbed Person a visa at the time of the cancellation because of his criminal conviction prior to 1994 but even if he did hold such a visa, the Tribunal finds that it was cancelled at the time the Class BF visa was cancelled.
The Applicant’s claim of Aboriginal descent
In Love v Comonwealth of Australia and Thoms v Commonwealth of Australia [2020] HCA 3 the Court essentially found that Aboriginal and Torres Strait Islander peoples, as defined by the tripartite test in Mabo v Queensland [No 2] are not "aliens" within the meaning of section 51(xix) of the Australian Constitution. That means, the Migration Act and, relevantly, s. 501 does not apply to them.
In Love, the court referred to the tripartite test in Mabo, enunciated by Brennan J, as depending ‘on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people’.
The Applicant stated in his revocation request and various other submissions, including his submission to the Tribunal prepared in March 2025 that he is of Aboriginal descent. In support of that claim the Applicant presented what appears to an application for confirmation of aboriginality which was completed by the Applicant on 23 January 2025. The document is signed and seconded by two people. It is neither signed nor dated by a chairperson.
The Applicant submitted in his earlier evidence to the Tribunal that the confirmation of his Aboriginality would need to be determined and confirmed at a meeting which is to take place in a few weeks’ time. The Applicant submits that he had submitted a number of documents in support his claim, including evidence regarding his grandparents. On 18 March 2025 the Applicant provided to the Tribunal a Confirmation of Aboriginality with the seal of Mununjali Housing and Development Company Ltd, dated 14 March 2025. On 20 March 2025 the Applicant informed the Tribunal, through his representative, that the certificate has been rescinded.
The Applicant subsequently provided a number of other documents, including his Centrelink profile and evidence of his interactions with other agencies. With respect to ‘indigenous identifier’ the Applicant is identified with Centrelink as Aboriginal (recorded in March 2001) however on another page, with respect to ‘indigenous identifier’ the response is recorded as ‘no’. The Applicant provided a statement from ICAN dated 21 March 2025 indicating that the Applicant received support from that organisation that prioritises support to first nations consumers and confirming that the Applicant had confirmed his ancestry as an Aboriginal man. The Applicant provided a letter from Queensland’s Department of Human Services, dated 7 June 2018, addressed to the Aboriginal and Torres Strait Islander Legal Service, which indicates that the Service has advised the Applicant as being a member of the stolen generation and there is a copy of what appears to be an application form. The Applicant has also provided a copy of the letter of offer to participate in the 12-week Normanton Recovery and Community Well-being service, issued in June 2022. The Applicant provided a copy of communication between his legal representative and a Financial Counsellor at Indigenous Consumer Assistance Network (ICAN) which states that the service provided support to the Applicant in 2021-22 and through the intake process and ongoing work, the Applicant had confirmed his ancestry as an Aboriginal man. There is no evidence before the Tribunal to indicate that any of these organisations had relied on anything other than the Applicant’s own self-identification as an Aboriginal man and that any independent assessment of his Aboriginality was made.
The Respondent in the submission dated 12 June 2025 claims that the submitted evidence does not demonstrate that the Applicant meets the tripartite test in Love. The Respondent notes that there is no evidence of the Applicant ’s biological descent and the Applicant failed to identify whether the biological descent arises from paternal or maternal ancestry and there is no corroboration of his claim. The Respondent notes that the email from ICAN dated 21 March 2025 is not independent corroboration but confirmation of what was self-reported by the Applicant. With respect to the second limb, the Respondent notes that the Applicant had given inconsistent evidence about his self-identification, noting that in August 2022 he had identified as Aboriginal but in his application to the Tribunal he claimed he was not. The Respondent submits that the Applicant ’s own identification as an Aboriginal man is ambiguous. With respect to the third limb, the Respondent claims there is no evidence that the Applicant is recognised as aboriginal or Torres Strait islander by others.
The Respondent refers to the reasoning in Helmbright[3] at [7] where Her Honour Mortimer J referred to the need for ‘mutual recognition’ as recognition by individual of being a member of the group concerned and recognition by elders or others enjoying traditional authority within a group that the individual is a member. The Respondent submits that in this case, there is no evidence of the Applicant being recognised and the only document is the statement from the Mununjali Housing and Development Company which has been rescinded with no explanation of the reasons for it. The Respondent submits that the Applicant has also failed to provide evidence of his descent, and the Applicant fails in that limb as well.
[3] Helmbright v MICMSMA (No 2) [2021] FCA 647.
The Applicant in his statement in reply, dated 25 June 2025 states that he has consistently maintained that he is biologically descended from the aboriginal people and the Applicant refers to the Confirmation of Aboriginality Form date 14 March 2005 as evidence of recognition of his biological descent. The Applicant states that the fact that the endorsement was rescinded was due to miscommunication between him and the organisation and does not negate the fact that the endorsement was initially granted. The Applicant refers to the ICAN email confirming that he has been identified as having Aboriginal ancestry and this supports his claim of biological descent. With respect to the second limb, the Applicant states that he has consistently identified as Aboriginal throughout his residence in Australia and any inconsistencies in his responses are minor in nature and can be attributed to intellectual disability. With respect to the third limb, the Applicant states that despite the rescission of the Confirmation of Aboriginality, the initial endorsement demonstrates that he was recognised as aboriginal by a legitimate organisation and also received support by aboriginal organisations.

The Applicant presented to the Tribunal an unsigned electronically prepared document confirming the Applicant’s Aboriginality. It prompts the writer to provide the name, community name and various personal details which has not been done. It appears to be a template prepared by a third party, rather than a statement relevant to the Applicant. The Tribunal gives it no weight.
The Tribunal has considered whether the Applicant is an aboriginal man, as he claims. In the Tribunal’s view, the presented evidence is not sufficient to establish the Applicant ’s Aboriginal ancestry. At best, it shows the Applicant ’s self-recognition as an Aboriginal man and his self-proclamation of that fact to other organisations. While there is evidence that over the years the Applicant had received supports from Aboriginal organisations and had declared his aboriginality to several organisations, there is no evidence as to what assessment, if any, had been undertaken by these organisations of the Applicant’s aboriginality. In the absence of such evidence, the Tribunal does not consider that the recognition and support by various organisations evidence recognition of the Applicant’s aboriginality. Such recognition appears to be based entirely on the Applicant’s self-identification and self-recognition.
There is no probative evidence before he Tribunal that there has been recognition by elders or other persons enjoying traditional authority and the Tribunal is mindful that the certificate issued by Mununjali Housing and Development Company Ltd, which may have evidenced such recognition, had been rescinded. Even if it was not, there is no evidence to establish that the Mununjali Housing and Development company represents the views of the aboriginal elders or the community. The Applicant submits that the certification was rescinded due to a ‘miscommunication’ and does not negate the information in the original document. The Tribunal does not accept that claim as there is nothing to support the Applicant’s contention that the original statement was rescinded due to the ‘miscommunication’. It may have been rescinded for any number of reasons, including more information becoming available to the issuing authority concerning the Applicant. It is not for this Tribunal to speculate about the reason why the document was rescinded but the Tribunal is not prepared to accept the Applicant’s uncorroborated claim that it was rescinded due to miscommunication and does not affect his recognition as an Aboriginal man.
Most significantly, there is no probative evidence before the Tribunal addressing the Applicant’s biological descent from the indigenous people and that is an important element of the tripartite test set out in Mabo, referred to in Love. The Applicant claims that he has consistently identified his Aboriginal ancestry with various organisations but in the Tribunal’s view, self-identification is a separate requirement to biological descent. In the Tribunal’s view, there is no probative evidence to support the Applicant’s claimed biological descent from Aboriginal people.
On the evidence before it, the Tribunal is not satisfied the Applicant is of Aboriginal descent.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report. Information before the Tribunal indicates that the Applicant (under different aliases) had been convicted of the following offences.

30/05/22

kidnapping for ransom – take / entices / detains another’

On appeal, the 6 years imprisonment was reduced to 5 years

17/11/20

Dangerous operation of a vehicle

9 months imprisonment (cumulative), disqualification

17/11/15

·     Import / export marketable quantity of border control drugs or plants

·     Possessing dangerous drugs

·     Possess property suspected of having been acquired for the purpose of committing a drug offence

·     Importing or exporting commercial quantity of border controlled drug or plans

·     2 years 6 months imprisonment

·     5 years 11 months imprisonment (upon reopening of sentence)

·     12 months imprisonment

·     Imprisonment 2 years 6 months

26/04/12

· Breach of suspended sentence imposed in July 2019

Convicted and sentenced 4 years

17/01/12

·   Aid / abet / make counterfeit money

·   Possess counterfeit money

·   Utter counterfeit money

·   Breach of bail conditions

·   Stealing (2 charges)

·   Attempted fraud – dishonestly obtain property from another

·   Making counterfeit money or counterfeit securities

2 years imprisonment

2 months imprisonment

1 month Imprisonment

8 months

15/07/09

Trafficking in dangerous drugs

5 years imprisonment (suspended)

17/08/06

Possess >3 unregistered firearms

12 months imprisonment

03/08/05

Knowingly obtain payment not payable / only part payable (2 charges)

17/12/04

·     Possess prohibited drug (2 charges)

·     Possess /use prohibited weapon without permit

22/10/04

·     Possess prohibited drug

·     Unlawfully possess etc a prescribed restricted substance

·     Possess ammunition without holding license / permit / authority

·     Possess >3 unregistered firearms

8 years imprisonment

31/10/01

·     Escape police custody

·     Drive vehicle recklessly / furiously or speed / manner dangerous

Imprisonment 6 months imprisonment 3 months (Convictions confirmed 3/12/01)

03/05/99

·     Imposition

·     Receiving

·     Obtain financial advantage by deception (multipole counts)

2 years imprisonment

04/03/99

Obtain money by deception (multiple counts)

05/03/96

Steal with circumstances of aggravation

2 years imprisonment

14/01/94

·     Imposition on Commonwealth

·     Open account / false name (multiple counts)

·     Obtain credit by pretences

Community service

12 months imprisonment

18/08/93

·     Escape lawful custody

15 months imprisonment

04/09/92

·     Imposition on commonwealth

·     Make false instrument (2 counts)

·     Receiving (8 counts)

·     Possess prohibited drug

·     Intent to defraud

2 years imprisonment

Various terms

02/11/90

Break, enter and steal

Fine

30/03/90

Resist arrest (2 counts)

Fine

12/10/89

·     Mid PCA

·     Cancelled driver

·     State false name and place of abode

·     Fraudulently use license

Fines

21/03/88

·     Steal

·     Receiving

·     accessory after the fact

07/03/88

FTA

29/02/88

Low PCA

Fine

29/05/87

Stealing

Periodic detention

10/11/86

Stealing

22/10/84

Imposition

Fines

As noted above, in August 2019 the Applicant had committed an offence of ‘kidnapping for ransom – take / entices / detains another’ and was sentenced to 6 years imprisonment. The Applicant ’s appeal on the sentence was allowed and the sentence was varied from 6 years to 5 years. (In his submission to the delegate the Applicant claimed that his sentence was overturned because ‘they have taken out all the violence’.)
For the purpose of this review, the Tribunal has not had regard, and had given no weight, to any offending that occurred when the Applicant was a minor.
The Tribunal finds that the Applicant has been sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The Applicant states that he has lived in Australia since the age of 2, he has children and grandchildren in Australia, as well as all of his family. He has no family in England. He believes the cancellation of his visa should be revoked.
The Respondent submits that the Applicant has committed over 100 offences some of which were serious, and his offending has become more serious with time. The Respondent refers to the professional assessments of risk of reoffending and states that there is a moderate risk of reoffending. The Respondent acknowledges that some of the considerations weigh in favour of the revocation.
The Tribunal’s considerations are set out below with regard to Direction 110.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant ’s conduct to date
The Direction provides that violent and/or sexual crimes; crimes of a violent and / or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant ’s offending.[4]
[4] See R v Way (2004) 60 NSWLR 168 at [115].
In considering the nature and seriousness of the Applicant ’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and the sentencing remarks.
There are before the Tribunal sentencing remarks in relation of the most recent offence of kidnapping for ransom which occurred in August 2019. The sentencing remarks were delivered by Fantin DCJ in May 2022. His Honour refers to the circumstances of the offending, as reported in the Agreed Statement of Facts, as follows. The Applicant , in the company of two others, detained the victim and, over the course of 10-11 hours, threatened and assaulted him in order to have the victim repay a debt he owed to the defendant, who was the instigator. The victim was repeatedly assaulted by the defendant. The victim was also told that if he did not get the money or tried to get away, the Applicant would go to the victim’s mother’s house to get the money from her. The Applicant also made threats to kill. The sentencing judge referred to the Applicant as being the instigator and the ringleader. The Applicant pleaded guilty and was sentenced to 6 years imprisonment (reduced on appeal). The Tribunal has had regard to the comments of the appeal court in relation to the Applicant ’s appeal on sentence.
In oral evidence the Applicant told the Tribunal that his two co-accused were responsible, and he was not involved in any violence as his co-accused ‘brought the trouble to his place’. The Applicant states that he never made a statement and disagreed with the finding of the court, which is why he appealed. (The Tribunal notes the appeal was against the sentence but not the conviction.) The Applicant repeatedly told the Tribunal that he was never a violent person.
The Tribunal has had regard to the sentencing remarks made in November 2015 in relation to the Commonwealth offences of importing a commercial quantity of a border-controlled drug (GBL). The facts are described as follows. The Applicant had ordered one litre of GBL under the description of wheel cleaner. The package contained 1135.5 grams of GBL. Some days later the Applicant had ordered another litre of GBL. This package contained 1125.5 grams of GBL. The packages were addressed to the Applicant under one of his aliases and at his home address. Both were intercepted by Customs. In relation to the state offences, it is stated that when the Applicant was driving and stopped by the police, he identified himself under a different name. the police located a number of documents, including a driver license, under that name and some of the documents were false. The police discovered an amount over $300,000 analysing the accounts held in the Applicant ’s aliases. The police also found $75,900 in cash in the Applicant ’s car, SIM cards and mobile phone which were suspected of having been used in connection with the commission of possessing a dangerous drug. The police also located a package containing methylamphetamine.
The Applicant told the Tribunal that his wife ordered the drugs from overseas and put his name on it and made the payment in his name while he was required to pick up the drugs. The Applicant states that this is known to the police and his wife was also charged at the time. However, the Applicant also concedes that he was involved in that enterprise, in particular with making the payment for the drugs and with other aspects. The Applicant seems to minimise his culpability for the offending by blaming his wife for the offence. The Applicant also concedes in oral evidence that he was a drug courier and agreed to deliver drugs in return for a payment. The Applicant states that he knew the drugs were in the car he was asked to drive, and he was given over $2000 in payment.
The Applicant in his evidence to the Tribunal admits to holding illegal guns for others and states that ‘he is sorry’ for that and did his time. The Applicant admits to two occasions when he escaped police custody.
The sentencing remarks in relation to the counterfeit money offending indicate that the Applicant had asked his co-offender to make $200,000 worth of Australian notes in exchange for drugs. The second count relates to the amount over $42,000 in counterfeit Australian notes being found in the Applicant ’s possession. Other counts relate to the Applicant passing counterfeit $50 notes on separate occasions to businesses. Other offending included the Applicant stealing sunglasses from a business and making a false claim for the loss of two bags from an airline to the sum exceeding $8,800.
The sentencing remarks in relation to the offending relating to the trafficking of a dangerous drug indicate that the trafficking involved was of a very serious kind and was a large-scale operation, which was sustained and persistent with a degree of sophistication. In oral evidence the Applicant blamed his former wife for that offending.
The Tribunal has also been provided with incident reports prepared in immigration detention centres, police records, bail reports and inmate profile documents and other materials. The Tribunal has also been provided with QCS violation history.
The Tribunal finds that the Applicant had engaged in multiple offences. The Tribunal considers his offending to be very serious, particularly the drug offending (trafficking and importation) and the kidnapping offence, which seems to have involved inflicting physical harm towards the victim (whether it was done by the Applicant personally or whether he had other involvement in that crime). The stealing and fraud offences are likely to have caused financial damage to others. The driving offences had the potential of causing personal injury to other road users. The Tribunal has formed the view that the offending was very serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of her offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
In the revocation request the Applicant states that he wants to be there for his children. He states that he has sold his house to be closer to his eldest daughter and he has been accepted at Gidgee Healing Recovery and Community Wellbeing centre. The Applicant presented with his revocation request a letter of offer from Normanton Recovery and Community Well-being Centre, as well as a number of character references, including a statement from his daughter. The Applicant provided additional character references and support letters to the Tribunal. There is before the Tribunal a letter of support from Parents Under Pressure, stating the Applicant had participated in the parenting program and had contributed positively. There is evidence that the Applicant had completed an ATODS parenting program and other programs including Foundation Numeracy and Literacy programs. There is also before the Tribunal evidence relating to the Applicant ’s past employment.
In his statement in support of the revocation request the Applicant outlined his criminal history and stated that his criminal offending did not involve any violence to anyone and that he has never been charged with a violence offence. The Applicant expressed remorse for his crimes stating that his crimes affected his family and the community. The Applicant states that he has ‘finally woke up’ to himself while in jail and is seeing a psychologist who made him ‘see sense and the right thing to do’. The Applicant refers to the courses he completed while in prison, including a Drug and Alcohol course and others. He states that he will be seeing a psychologist upon release.

In his submissions to the delegate the Applicant stated that he has never been violent and that the claimed violence during the kidnapping offence was not committed by him and was ‘taken off’ on appeal. The Applicant also told the Tribunal that he was never violent and the appeal court ‘took violence out’. The Respondent notes that the appeal court considered that the violence should not have been considered when sentenced, rather than finding that the violence did not occur. The Respondent refers to the agreed facts in relation to that offending which the Applicant now denies and claims that it ‘never happened’. The Applicant was taken through the agreed statement of facts and denied the information there concerning his involvement.
In his written submission to the delegate in support of the revocation request the Applicant refers to his early life and the history of sexual abuse at home and at school, leading to lack of education and moor mental health, and leading to the Applicant to escape memories through drugs and alcohol. It is stated that the Applicant appears to suffer from an intellectual disability with his IQ scores suggesting mental retardation and a functional level of a 6–7-year-old. The submission notes that the Applicant was taught from a young age by his uncle to engage in crime and would not have been able to organise the crimes committed by himself. It is stated that the Applicant suffers from Paranoid Personality Disorder increasing his risk of depression, and he suffers from schizophrenia.
The Applicant told the Tribunal that many of the offences were committed by his then wife, as he cannot read and write and it was his wife who did all the paperwork and submitted the forms (such as Centrelink fraud). The Applicant also states that his wife made up several identities to claim Centrelink payments. The Applicant states that he is no longer with his wife and that reduces the risk of reoffending. The Tribunal is unpersuaded by the Applicant ’s evidence that the criminal conduct was entirely of someone else’s doing and that he had no involvement. This is so because on his own evidence, the Applicant was aware of the offending that he claims was planned by his wife (for example he told the Tribunal she had ordered the drugs from overseas but he had to pick these up and that she had created different identities for Centrelink but he signed the papers). That is, the Applicant cannot be said to have been ignorant of the offences planned and prepared by his wife but his evidence suggests he participated in the offending conduct willingly and freely with the understanding that his conduct was against the law. The Tribunal also notes that some of the offending, including the kidnapping and the firearms offences, did not involve the Applicant ’s spouse. Thus, the fact that the Applicant is no longer in that relationship does not minimise, in the Tribunal’s view, the risk of reoffending.
The Applicant states that he pleaded guilty to the kidnapping offence because he had already served the time and his release would have been quicker. The Applicant ’s representative refers to the Applicant ’s low IQ and questioned the Applicant ’s ability to enter a plea. The Applicant submits that the circumstances of the offending are relevant to determining the objective seriousness of the offending and the weight to be given to it. The Tribunal is mindful, firstly, that the Applicant was legally represented and there is an agreed statement of facts, which would suggest that the Applicant was aware of, and agreed with, the information before the court. Secondly, information about the Applicant ’s personal circumstances, including his ability to enter a plea, was before the court. The Tribunal is satisfied that these matters were taken into account when the Applicant was convicted and when the sentence was imposed.
The Applicant told the Tribunal that he intends to seek treatment for his mental health and will make arrangements once he is released from detention. That is, there is no evidence before the Tribunal that at present, there are firm plans in place for the Applicant to undergo treatment for mental health.
The Tribunal has considered a psychiatric assessment report by Dr Tagkalidis dated 19 January 2023. The report refers to the Applicant ’s background, developmental history and past sexual abuse. It is stated that the Applicant reported daily alcohol use which ceased in 2019, and past drug use. The report refers to intact cognition and reasonable insight. Dr Tagkalidis concludes that the Applicant is currently suffering from a chronic dysthymic Disorder (persistent depressive disorder) and complex PTDS with associated personality disruption of an antisocial and borderline nature. It is stated that past polysubstance abuse has resolved in recent years. The Applicant is reported to be vulnerable to future major depressive episodes. It is stated that he is of low intelligence with significant learning difficulties. Dr Tagkalidis concludes that the Applicant ’s prognosis remains poor and will be so for the foreseeable future and that he will struggle in any relationship, potential workplace setting and in life in general.
The Tribunal has had regard to a report by Rebecca Geddes, psychologist, dated 25 May 2022. The report outlines the Applicant ’s personal and relationship history. It is stated that the Applicant has a history of methamphetamine use and took part in a residential drug and alcohol rehabilitation program and denied recent use of illicit substances.
The report refers to the diagnosis of PTSD and states that the Applicant had experienced symptoms of anxiety and depression. It is stated that the Applicant reported the presence of paranoia and there is history of self-harm. The report states that there is evidence of intellectual difficulties, a marked risk of experiencing emotional and behavioural difficulties and notable elevation in the domains of negative affect, suicidal ideation, significant potential for social detachment, discomfort in close relationships, impulsivity, sensation – seeking, recklessness and disregard for authority. The report offers a risk assessment, noting the protective factors and states that the Applicant has medium high risk / needs with respect to general offending. It is stated that the area of psychological concern is mental disorder and other areas include finances, employment, leisure and emotional personal. The report recommends further treatment to modify cognitive distortions and antisocial attitudes and beliefs.
The Tribunal has also had regard to a report by Mavis Berman, prepared in November 2011, who states that the Applicant has had ‘a bad start in life’ and has made concerted efforts to rehabilitate himself.
There is before the Tribunal a psychologist’s report prepared by Meg Perkins dated 8 July 2009. Ms Perkins states that the Applicant appears to be suffering from an intellectual disability and his IQ score indicates mental retardation and a functional level of a 6–7-year-old. It is stated that the Applicant ’s brain function is at 2^nd percentile (indicating that 98% of people would be more capable). It is stated that the Applicant may be intelligent enough to be a criminal’s ‘offsider’. Ms Perkins observes that the Applicant may be suffering from schizophrenia affecting the functioning of his brain. Ms Perkins states that the Applicant has a significant intellectual disability which prevents him from functioning as an independent adult in the society. He has committed offences but in association with another person who had the ability to organise and plan the crime.
The Tribunal has considered a report by Mr John Taylor prepared in October 2003 which refers to the Applicant having mild intellectual handicap in the domains of verbal scale IQ, performance scale IQ and full-scale IQ, with the IQ score of 69 (bottom 2%). The report states that the Applicant was suffering from a mental illness at the time the offences were committed and an appropriate psychiatric treatment over 12 months or more would reduce the likelihood of recidivism. It is stated that this assessment would be significantly affected by the Applicant ’s ability to resolve his substance abuse and severe emotional disturbance.
The Tribunal has considered a statement from Lee Johnson who states that the Applicant is not a violent person and will not be a risk to the community. Mr Johnson states that the Applicant ’s partner took advantage of him. Mr Johnson states that returning to the UK would be harmful to the Applicant ’s mental health given the length of time the ap has spent in Australia and his diagnoses of PTSD, anxiety, depression and schizophrenia, affecting his normal functioning. Ms MH provided a statement which is substantially similar to the statement by Mr Johnson.
In his own statements to the Tribunal dated 8 March and 11 February 2025 the Applicant states that he appreciates the seriousness of his past actions and takes responsibility for his behaviour. The Applicant refers to his life in Australia, stating that his family, identity and relationships are in Australia. The Applicant states that he believes himself to be an Australian citizen and to be of Aboriginal heritage. The Applicant refers to his deep and loving relationship and an ‘unwavering commitment’ to his children and in particular his daughter who, the Applicant claims, relies on him for emotional support, love and guidance. The Applicant states that separation from daughter caused emotional and financial hardship for his family and reuniting with them is crucial for their well-being. The Applicant states that he has taken steps towards rehabilitation and wants to be a law-abiding person.
The Tribunal has also been provided with the Applicant ’s IHMS records and other materials.
The Applicant referred in oral evidence to his difficult childhood, stating he was molested by family members and at school. He states that he started using drugs at the age of 14 to forget about the past. The Applicant states that he received counselling which helped ‘a little bit’. The Applicant told the Tribunal he has not used drugs since 2016 and had completed a rehabilitation program and a number of courses and addressed his mental health.
In oral evidence the Applicant ’s long term friend Ms R spoke about the Applicant ’s good character, stating the evidence in relation to his offending was ‘circumstantial’ and his offending does not represent who he is. Ms R refers to the Applicant being easily led and influenced by others. The Applicant ’s daughter Ms AH provided statements to the Tribunal supporting her father, referring to his past experiences and mental health. She refers to his relationship with his young daughter. In oral evidence Ms AH confirmed her support for her father, being ‘family’. She stated that she is aware of his offending and also of her father’s mental health issues. She states that in recent years their relationship has grown stronger. Ms AH states that she has accommodation in Cairns where the Applicant and her younger sister can stay, and she said she could help her father in finding employment. The Applicant ’s aunt Ms MH also gave oral and written evidence about the Applicant ’s circumstances and spoke about the difficult circumstances of his upbringing. She referred to the Applicant not being a violent person, stated that she does not like guns and states that he would not hurt anyone and is not a risk to others. Ms MH stated that the Applicant would have no support in England and his family here would be devastated. Ms MH said that there are job opportunities for the Applicant , and he wants to lead a normal life with his children. Ms MH states that the past offending occurred because of the Applicant ’s ex-wife who was ‘manipulative’ and he is now capable of leading a normal life without offending. She also referred to the Applicant ’s mental health.
The Applicant spoke about his desire to move to Queensland (if the parole allows him to relocate) and to see his daughter, and also to obtain a job. However, the Applicant ’s evidence is that he held jobs in the past so that the availability of employment is unlikely, in the Tribunal’s view, to act as a strong disincentive to future offending. Neither will the Applicant ’s residence in any particular area.
The Applicant told the Tribunal that he will not commit any more offences because he is not with his wife anymore and because he has promised his daughter he would not reoffend. The Tribunal does not find that undertaking persuasive. This is because many of the offences did not involve the Applicant ’s wife and the Applicant concedes that some of the offending, including the serious kidnapping offence and the firearm possession offending, had no links with his wife. As for the promise the Applicant claims to have made to his daughter, the Tribunal does not consider this would form a strong incentive for the Applicant to avoid reoffending.
It is significant, in the Tribunal’s view, that the Applicant had previously had a visa cancelled and the cancellation was revoked in 2016. At that time the Applicant signed a document confirming his understanding that his visa may again be cancelled. That is, the Applicant was already put on notice that his offending may lead to the cancellation of his visa and his removal from Australia. Despite that, the Applicant had re-offended in 2019. In the Tribunal’s view, that indicates either the Applicant ’s significant disregard for the Australian law or his inability and / or unwillingness to abstain from criminal conduct. The frequency of the Applicant ’s past offending also points, in the Tribunal’s view, to his unwillingness or inability to abide by the law.
The Applicant claims that there was a gap in his offending between 2015 and 2019 showing that he has rehabilitated. However, the Tribunal accepts the Respondent’s submission that the Applicant was incarcerated between September 2016 and August 2017 so that the period of not offending was a fairly brief one of about two years. The Tribunal does not consider that period to a significant one to establish the Applicant ’s rehabilitation, particularly given his engagement in a serious offence in 2019.
The Tribunal has given considerable weight to the most recent reports prepared by Ms Geddes and Dr Tagkalidis. Ms Geddes refers to a medium risk of reoffending while Dr Tagkalidis refers to the Applicant ’s poor prognosis. In the Tribunal’s view, there is insufficient evidence to indicate that the Applicant has achieved meaningful rehabilitation and while there is some evidence that the Applicant has abstained from illicit substances recently, there is no evidence that he had addressed his mental health issues and taken meaningful steps to counter the intellectual disability, which may have also contributed to his past offending.
It is of significant concern to the Tribunal that the Applicant appears to have no insight into his behaviour, as he persistently denies any wrong-doing and continues to blame others. He blames his wife for the Centrelink fraud and drug offences, and he also claims that the kidnapping offence was committed by others who ‘brought trouble to him’. The Tribunal acknowledges the various reports noted above which suggests that the Applicant would have been incapable of organising or planning the offending, however, the fact that he was convicted indicates that the Applicant ’s commission of the offences has been established. The Tribunal is unpersuaded by the Applicant s’ denials and has formed the view that the Applicant lacks insight into his conduct.
The Applicant ’s representative refers to the Applicant ’s low IQ and being easily led. Submissions have been made about the Applicant ’s inability to plan and execute offending. The Tribunal acknowledges the evidence in the various reports concerning the Applicant ’s IQ and other evidence concerning his personal circumstances. As noted elsewhere, the Tribunal cannot go behind the convictions and the fact that the Applicant has been convicted of multiple offences, despite his level of IQ, indicates that the Applicant was found to have met the elements of the offending. Significantly, if it is suggested that the Applicant engaged in offending because of his low IQ and because he is easily influenced, that evidence might also suggests that the Applicant ’s IQ and personal characteristics may result in him being easily influenced by others (even if not his former partner who longer has a relationship with the Applicant ) and that he may again engage in criminal or anti-social conduct to meet his needs.
The Tribunal remains unconvinced about the Applicant ’s rehabilitation. As noted above, the Tribunal has formed the view that the Applicant lacks insight into his conduct, having denied much of the wrong-doing, and the Tribunal is not satisfied that the Applicant has the ability or the wherewithal to avoid similar conduct, or bad associations that may lead to future reoffending.
The Tribunal has formed the view that there remains at least a moderate risk of reoffending. This is consistent with the professional views expressed in the reports summarised above. Ms Geddes refers to the medium risk of reoffending while Dr Tagkalidis refers to the Applicant ’s poor prognosis.
Having regard to the nature of the Applicant ’s past convictions, which involved violence towards others, drug offending and storage of firearms, and the Tribunal’s view that there remains at least a moderate risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs very heavily against the revocation.
Whether the conduct engaged in constituted family violence
There is no evidence before the Tribunal to indicate that the Applicant engaged in family violence offending. The Applicant concedes that he was subject to Family Violence Orders around 2011 and 2016 but states that his wife ‘put the order’ against him and made things up and the magistrate did not accept her evidence. The Applicant claims there was never any violence between them, and they have not lived together since 2016.
The Applicant does not have any convictions in relation to family violence and any evidence relating to the family violence offending has not been tested. The Tribunal does not consider that the Applicant had engaged in family violence. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant has been living in Australia since the age of two. He did not begin to offend soon after arriving in Australia. There is little evidence of the Applicant ’s positive contribution to the Australian community, although he claims to have been employed in the past.

The Applicant stated in the revocation request that he has extensive family in Australia, including his three children, grandchildren, mother, siblings and extended family such as uncles, aunts, cousins and a grandparent. He refers to his relationship with his now ex-wife Sonya, who has been his support in the past.
In his February 2025 statement to the Tribunal the Applicant refers to the ‘profound’ effect of his absence on the extended family. In his statement dated 11 February 2025 the Applicant states that he wants to support his daughter and states that prolonged separation has caused considerable emotional and financial hardship to his family. He states that reuniting with his family is crucial for their well-being. The Applicant refers to his close relationship with his daughter SL and states that he makes an effort to be involved, outlining the efforts he has made to arrange an in person visit and to arrange support for his daughter. The Applicant states that his commitment to children includes his other children. The Applicant provided a copy of the Parentage Test Report confirming his paternity of his daughter SL and documents relating to a study concerning the effects of family separation.
The Applicant referred to having a good relationship with his two older children, AH and J and he refers to regular communication with them by phone.
In oral evidence, the Applicant spoke about the difficulties and expense in seeing his daughter SL. The Applicant spoke about arranging speech therapy for the child (which he claims no one else could organise) and the expense of supporting his child. The Applicant states that the child lives with her mother but if he is able to remain in Australia, he will have the custody of her on weekends. The Applicant states that if he is removed, he will not be able to communicate with the child (due to her young age) and due to financial constraints and visa issues, the mother will not be able to bring the child to the UK.
The Applicant ’s daughter Ms AH provided statements to the Tribunal supporting her father, referring to his past experiences and mental health. She refers to his relationship with his young daughter. In oral evidence Ms AH confirmed her support for her father, being ‘family. She stated that she is aware of his offending and also his mental health issues. She states that in recent years their relationship has grown stronger. Ms AH states that she has accommodation in Cairns where the Applicant and her younger sister can stay. She refers to a close relationship between the Applicant and his young daughter and the needs of the child to be with her father. Ms AH also referred to her own relationship with her sister, stating she will continue to have that relationship with her sister whether or not her father is present, but she could not replace her father in terms of emotional support. Ms AH referred to the devastating effect of losing her father on her and her young sister. Ms AH states that her father has been living in Australia his whole life and she is very concerned about him being deported as he would not have any support there. She states that she believes her father can contribute to the community and she could help him find a job. She states that she has identified herself as being Aboriginal in various settings.
The Applicant ’s former partner Ms CC provided a statement dated 4 February 2025 expressing concern about the Applicant ’s detention and possible deportation, stating it would have a devastating impact on their daughter SL. Ms CC states that she struggles to support the child financially and this has limited their ability to visit the Applicant in person. CC states that the Applicant has been actively involved with their daughter, providing emotional support and maintaining a strong bond.
In oral evidence Ms CC referred to the Applicant being a good father and a good relationship he has with his young daughter. She spoke about the hardship to the child if the Applicant was not available, as she has a good relationship with him and Ms CC also spoke about the relationship between the child and her sister. Ms CC spoke about the financial support the Applicant has provided to her family.
The Applicant ’s aunt MH spoke about the Applicant not being a risk to others, his relationship with his family and the hardships that they would experience if the Applicant was not in Australia. Ms MH also said that the Applicant ‘wants to have a nice quiet life’ and would find it very difficult to establish himself in the UK.
The Applicant ’s long term friend Ms R referred to a close relationship between the Applicant and his children, and the support he provides to his children, stating that they would be affected if the Applicant was not present in their lives. She refers to the Applicant ’s daughter AH being ‘devastated’ and ‘traumatised’ by separation from her father.
The Applicant also suggests that he has provided financial support to his former partner to support Ms SL and Ms CC confirmed that regular support, stating that the money is used for daily needs. There is no documentary evidence of such support, but the Tribunal is prepared to accept that the Applicant does provide such support to his family (he claims through the sale of cigarettes). However, there is no evidence before the Tribunal that the family would experience financial hardship if that support was no longer available.
The Tribunal accepts that, given the length of the Applicant ’s stay in Australia, he has formed significant family ties in this country. The Tribunal accepts that his family members are likely to be permanent residents or citizens of Australia and have an indefinite right to remain in Australia. The Tribunal is prepared to accept that there may be detrimental impact on the Applicant ’s immediate family in Australia, including his children, grandchildren and former partner, if the Applicant was to leave Australia.
The Tribunal finds that this consideration weighs heavily in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has adult children in Australia and a minor daughter born in November 2019. In his submissions to the delegate the Applicant refers to having a close relationship with this child and regular contact. The Applicant submits that removing him from Australia means he would never see his child again and that would adversely affect his daughter. The Applicant states that this child is at risk from her mother, noting the mother’s substance abuse, and lives with a grandmother. The Applicant states that during his incarceration he engaged legal assistance to ensure his daughter’s safety (the child has been removed from the mother and is cared for by the grandmother).
The Applicant provided a number of statements to the Tribunal concerning his close relationship with his daughter, the opportunity to see her in early 2025 and the financial support he has provided for his daughter’s treatment and other expenses, as well as his commitment to ongoing financial support. The Applicant refers to regular contact with his daughter. The Applicant also refers to his bond with this older daughter and states that his absence has had a ‘profound and lasting impact’ on his children and extended family. The Applicant provided to the Tribunal several general publications about trauma and psychological damage caused by separation of children from parents. (The Tribunal is mindful that a significant period of separation occurred due to the Applicant ’s convictions and incarcerations rather than any visa issues).
The Applicant ’s oral evidence toe the Tribunal is that he is the only person who has been able to arrange medical support for his daughter SL. He states that he has provided financial support to the child, and he is the only male role model for the child. The Tribunal accepts that evidence, although as noted elsewhere, the Tribunal notes that there is no evidence that the child will be adversely affected if the financial support will not be provided by the Applicant .
Ms CC in her statement to the Tribunal states that the potential deportation of the Applicant would be devastating for their young daughter, who has been deprived of an in-person relationship with her father. Ms CC states that she has ‘struggled’ to maintain her own visa due to her criminal history and it would be difficult to facilitate in-person contact between the Applicant and his daughter and impossible if she cannot travel overseas. In oral evidence Ms CC also stated that the Applicant is a good father and has a good relationship with the young child and they speak daily. The child expects her father to return home as she does not know he is in jail. Ms CC confirmed her belief that the Applicant ’s presence is crucial to the child’s development, and she states that the Applicant is a good man who deserves to come home.
The Applicant ’s daughter Ms AH in her evidence also referred to the close relationship between the Applicant and his young daughter, stating that she can offer accommodation to both.
The Tribunal accepts the Applicant has a close and meaningful relationship with his young daughter SL. The Tribunal accepts that their capacity for personal contact may be limited, at best, if the Applicant resides overseas and the quality of their relationship may be diminished if they are only able to maintain electronic contact. The Tribunal accepts that it may be in the best interest of the daughter, SL if the Applicant ’s visa is reinstated. The Tribunal gives this significant weight in favour of the revocation.
The Applicant told the Tribunal that his son has two minor children, but he does not have a good relationship with them. There is no evidence, and no suggestion, that the Applicant and these grandchildren have any meaningful relationship or that the Applicant has ever had any parental role in relation to these grandchildren. In the circumstances, the Tribunal does not consider that the best interests of these two grandchildren would be adversely affected by the Applicant ’s visa issues and removal from Australia if his visa remains cancelled.
The Applicant spoke about his relationship with his grandchild M, stating that he has a good relationship with that child and last saw him a few months ago. There is very little other evidence concerning the Applicant’s relationship with that grandchild. However, the Tribunal is also prepared to accept that it is in the best interests of the Applicant’s grandchild M to maintain a relationship with the Applicant. The Tribunal gives the best interests of that child some weight in favour of revocation.
The Tribunal finds that the best interests of the children weigh significantly in favour of revocation.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[5] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant ’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[6]
[5] [2019] FCAFC 185 (‘FYBR’).
[6] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s offending, the community expectations would weigh very heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. The Applicant has not made any claims that could indicate that non-refoulement obligations arise in this case. The cancellation of the visa would not result in the Applicant being detained indefinitely but the Tribunal acknowledges that there may be a period of detention before the Applicant can be removed from Australia, should his visa remain cancelled.
The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia to be with his family or for any other reason.
The Tribunal is of the view that consideration weighs in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 58 years of age. He refers to having an intellectual disability and PTSD. In his submission to the Tribunal the Applicant refers to having a chronic sub-syndromal depressive state, chronic dysthymic disorder, low self-esteem, traumatisation, post-traumatic stress disorder, complex PTSD, early development traumatisation affecting personality development. The Applicant presented a Patient Summary which refers to his conditions as back pain, substance abuse, PTSD, hypertension and GORD. It also refers to the Applicant being an Aboriginal. The Applicant also refers to mental health issues. The Tribunal accepts the medical evidence in relation to the Applicant .
The Applicant had lived in Australia for most of his life, having arrived as a very young child. In his revocation request the Applicant states that he has lived in Australia his entire life, has his children, immediate and extended family in Australia and no supports in England. He has never visited England. He states that his family would not be able to live with him due to the financial strain. The Tribunal accepts that if the visa remains cancelled, the Applicant is likely to be separated from his family in Australia.
The Applicant refers to being illiterate and states that he was molested in primary school and has a claim under the National Redress scheme (and a copy of determination not to approve the application for redress because of his visa status), and a civil claim against his school. The Applicant presented evidence of his communication in relation to the compensation claim. There is no evidence as to whether that process is still ongoing and whether the Applicant will be able to pursue this claim if he was residing outside of Australia.
The Applicant told the Tribunal that he would have no income and no support in England and would have nowhere to stay. The Applicant states in his written evidence that if he was ‘sent back home’, he would never see his kids again. The Tribunal accepts that the Applicant may not be able to return to Australia to be with his family if his visa remains cancelled. In the revocation request the Applicant states that has no one in his home country and has never lived there, having come to Australia at the age of 18 months. The Applicant also stated that he would not be eligible to any benefits in the UK for some time and he would have nowhere to stay. The Tribunal accepts that evidence
Given the length of the Applicant ’s stay in Australia and his limited (if any) links to his home country, the extent of his supports in Australia and absence of any supports in the UK, the Tribunal accepts that the Applicant may experience hardship if he is removed from Australia, particularly in the initial period of resettlement and re-establishment himself in the UK. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal to indicate that any Australian business would be impacted if the Applicant is not allowed to remain in Australia. This consideration is neutral.
Other considerations
The Applicant stated in his revocation request that if his visa remains cancelled, he will not see his children, and that would impact his children. The best interests of the Applicant ’s youngest child and grandchild, who are minors, are addressed above. The Tribunal accepts, as noted above, that if the Applicant ’s visa remains cancelled, he is likely to be separated from his family in Australia.

The Applicant refers to his poor mental health and as noted above, the Tribunal accepts the evidence concerning the Applicant ’s health.
The Applicant refers to his Aboriginality. While the Tribunal accepts that the Applicant may genuinely believe himself to be of Aboriginal descent and has represented himself to others as such, for the reasons set out above, the Tribunal has rejected the Applicant ’s claim of Aboriginal descent.
The Applicant refers to his personal characteristics and low IQ and claims that due to these factors, his offending and the future risk of reoffending should be given less weight. The weight that the Tribunal has determined to be given to different considerations is set out below.
CONCLUSION
The Tribunal has found that the Applicant has a lengthy criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that there is a medium risk of reoffending. This is primarily based on the Tribunal’s view that the Applicant lacks insight for his offending and also because of his personal characteristics (including low IQ, being susceptible to influences and mental health) which may not have been effectively addressed or overcome. The Tribunal finds that the offences in which the Applicant had previously engaged were very serious and if the Applicant were to reoffend, there may be a significant risk to the community. The Tribunal has determined that the protection of the community weighs very heavily against the revocation and gives that consideration considerable weight.
The Tribunal has also given considerable weight to the expectations of the community which, the Tribunal has determined, also weigh against the revocation.
The Tribunal finds that the best interests of minor children weigh heavily in favour of the revocation. The Tribunal accepts that the Applicant has extensive ties to Australia (and no ties in the UK) and that there could be significant impediment caused to the Applicant and his Australian family members in Australia if the Applicant was removed. These considerations weigh heavily in favour of the revocation. The legal consequences of the decision also weigh in favour of the revocation as the cancellation of the visa would preclude the Applicant from being able to return to Australia.
Other considerations are neutral. In particular, the Applicant has not committed family violence offending and there is no evidence of any impact on a business.
As the Tribunal has found that there is a moderate risk of the Applicant committing further offences and given the serious nature of the offending and the risk to the community if the Applicant was to reoffend, the Tribunal has determined that the protection of the community and the expectations of the community considerations should be given greatest weight and that they outweigh other considerations.
Having considered all the circumstances, the Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Transitional (Permanent) visa.

Date(s) of hearing: 17 March & 30 June 2025

Solicitors for the Applicant : Mr F. Nikjoo, Nikjoo Lawyers

Solicitors for the Respondent: Mr J. Hutton, Australian Government Solicitor

30/05/22	kidnapping for ransom – take / entices / detains another’	On appeal, the 6 years imprisonment was reduced to 5 years
17/11/20	Dangerous operation of a vehicle	9 months imprisonment (cumulative), disqualification
17/11/15	· Import / export marketable quantity of border control drugs or plants · Possessing dangerous drugs · Possess property suspected of having been acquired for the purpose of committing a drug offence · Importing or exporting commercial quantity of border controlled drug or plans	· 2 years 6 months imprisonment · 5 years 11 months imprisonment (upon reopening of sentence) · 12 months imprisonment · Imprisonment 2 years 6 months
26/04/12	· Breach of suspended sentence imposed in July 2019	Convicted and sentenced 4 years
17/01/12	· Aid / abet / make counterfeit money · Possess counterfeit money · Utter counterfeit money · Breach of bail conditions · Stealing (2 charges) · Attempted fraud – dishonestly obtain property from another · Making counterfeit money or counterfeit securities	2 years imprisonment 2 months imprisonment 1 month Imprisonment 8 months
15/07/09	Trafficking in dangerous drugs	5 years imprisonment (suspended)
17/08/06	Possess >3 unregistered firearms	12 months imprisonment
03/08/05	Knowingly obtain payment not payable / only part payable (2 charges)
17/12/04	· Possess prohibited drug (2 charges) · Possess /use prohibited weapon without permit
22/10/04	· Possess prohibited drug · Unlawfully possess etc a prescribed restricted substance · Possess ammunition without holding license / permit / authority · Possess >3 unregistered firearms	8 years imprisonment
31/10/01	· Escape police custody · Drive vehicle recklessly / furiously or speed / manner dangerous	Imprisonment 6 months imprisonment 3 months (Convictions confirmed 3/12/01)
03/05/99	· Imposition · Receiving · Obtain financial advantage by deception (multipole counts)	2 years imprisonment
04/03/99	Obtain money by deception (multiple counts)
05/03/96	Steal with circumstances of aggravation	2 years imprisonment
14/01/94	· Imposition on Commonwealth · Open account / false name (multiple counts) · Obtain credit by pretences	Community service 12 months imprisonment
18/08/93	· Escape lawful custody	15 months imprisonment
04/09/92	· Imposition on commonwealth · Make false instrument (2 counts) · Receiving (8 counts) · Possess prohibited drug · Intent to defraud	2 years imprisonment Various terms
02/11/90	Break, enter and steal	Fine
30/03/90	Resist arrest (2 counts)	Fine
12/10/89	· Mid PCA · Cancelled driver · State false name and place of abode · Fraudulently use license	Fines
21/03/88	· Steal · Receiving · accessory after the fact
07/03/88	FTA
29/02/88	Low PCA	Fine
29/05/87	Stealing	Periodic detention
10/11/86	Stealing
22/10/84	Imposition	Fines

Date(s) of hearing:	17 March & 30 June 2025
Solicitors for the Applicant :	Mr F. Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr J. Hutton, Australian Government Solicitor