Hollyman and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 850
•25 June 2025
Hollyman and Minister for Immigration and Citizenship (Migration) [2025] ARTA 850 (25 June 2025)
Applicant/s: Troy Douglas Ian HOLLYMAN
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3106
Tribunal:Senior Member De Villiers
Place:Perth
Date:25 June 2025
Date of Written Reasons: 25 June 2025
Decision:The Tribunal sets aside the reviewable decision dated 7 April 2025 not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa and, in substitution, decides that the decision to cancel the Applicant’s visa is revoked.
...........................[SGD].............................
Senior Member De Villiers
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct –- the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed - decision under review set asideLegislation
Migration Act 1958 (Cth), ss 500, 501
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
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
M1/2021 [2022] HCA 17
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076
Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth)
Statement of Reasons
BACKGROUND
1. The Applicant is a 28-year-old citizen of New Zealand who arrived in Australia at thirteen 13 years of age on 7 February 2010 as the holder of a Special Category (Class TY) (Subclass 444) visa (visa).[1] The Applicant was born on 18 December 1996 in Hastings, New Zealand.[2]
2. The immediate family of the Applicant in Australia consists of his parents who are separated, 2 brothers, his daughter of 8 years of age (AJH), and his partner. Except for his father, the other immediate family live in Perth.
3. The mother of the Applicant, his father and two brothers are New Zealand citizens. AJH and the partner of the Applicant are Australian citizens. The Applicant has family in New Zealand, including his grandmother, grandfather, 2 aunties, 2 uncles, and 3 cousins.[3] The Applicant has returned to New Zealand for vacation on 5 occasions since his arrival in Australia, ranging from 1 week to more than a month.[4] On one occasion the Applicant took AJH along to New Zealand to meet her great-grandparents.
4. The Applicant had a de facto relationship with Kirby-Louise Stubbs. AJH was born to the couple on 27 June 2017.[5] AJH and her mother are Australian citizens. They live in a suburb close to where the Applicant resided before his incarceration. The Applicant intends to return to the same suburb or close to the suburb in which AJH lives once he is released from prison. His current partner, Megan Louise Christie Thomas, lives in a suburb close to that of the AJH.
5. The Applicant completed year 12 in 2014 in Australia. He has since worked in various positions in Western Australia, including as a roof carpenter, in civil construction, and as a diamond driller. He has obtained a Certificate III in diamond drilling.[6]
6. On 23 January 2020, the index offence occurred when the vehicle driven by the Applicant crashed at high speed into another vehicle. The driver of the other vehicle subsequently died because of the injuries sustained in the crash. Other convictions arose from events associated with the index offence. The Applicant had no criminal record until these convictions.
7. On 22 February 2022, the Applicant was convicted and sentenced in the District Court of Western Australia on one count of Attempt To Obstruct//Prevent/Pervert or Defeat the Court of Justice and one count of Dangerous Driving Causing Death in Circumstances of Aggravation. The Court imposed a total effective sentence of six years and six months’ imprisonment, backdated to 15 February 2022 to account for time spent in custody on remand, and with a non-parole period of four years and six months (index offence). The Applicant’s driver’s license was also disqualified for a period of three years commencing from the date of his release from prison.[7]
8. On 13 June 2022 the Applicant was convicted in the Perth Magistrates Court of two counts of Reckless driving and one count of Reckless speed 45km/h or more. The Court imposed a global fine of $1,500 and a six-month driver’s license disqualification for each count, to run concurrently with the earlier disqualification period imposed by the District Court.
9. The Applicant is currently detained at Karnet Prison Farm on a minimum-security rating.[8] The Applicant becomes eligible for parole on 14 August 2026.
10. On 19 August 2024, a delegate of the Minister cancelled the Applicant’s visa under s 501 (3A) of the Migration Act 1958 (Cth) (the Migration Act) (Cancellation Decision).[9]
11. On 12 September 2024, the Applicant made representations seeking revocation of the Cancellation Decision.[10]
12. On 7 April 2025, the delegate decided not to revoke the Cancellation Decision (Reviewable Decision).[11] On 8 April 2025, the Applicant was notified of that decision.[12]
13. On 10 April 2025, the Applicant applied to the Tribunal for a review of the delegate’s decision not to revoke the Cancellation Decision.[13] The 84th day calculated for a decision in response to the review sought by the Applicant pursuant to s 500(6L) of the Migration Act, is 30 June 2025.
14. 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 I am satisfied that there is another reason why the Cancellation Decision should be revoked.[14]
15. In respect of the character test, I find for the reasons outlined below that the Applicant does not pass the character test.
16. Having considered all the circumstances of the Applicant’s case and having weighed the relevant matters in Direction no. 110, I find there is another reason why the Reviewable Decision should be set aside.
17. Accordingly, I have decided that the Reviewable Decision should be set aside and the Cancellation Decision in regard to the Applicant’s visa should be revoked.
VISA CANCELLATION ON CHARACTER GROUNDS
18. 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.
19. These powers generally involve consideration of whether a person passes the statutory character test and, if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
20. 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.)
21. 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: …
the person has been sentenced to a term of imprisonment of
12 months or more; …(Original emphasis.)
22. 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. 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.
23. 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.[15] 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.[16]
24. Sub-section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by section 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
THE HEARING AND THE EVIDENCE
25. The in-person hearing took place in Perth on 12 - 13 June 2025. The Tribunal constituted Senior Member De Villiers. Both parties were legally represented.
26. The following written materials were submitted by the parties:
(a)G-documents submitted by the Minister marked GD1 (pages 1 - 396) and GD2 (pages 1 - 72)
(b)Hearing books jointly submitted by the parties marked Hearing Book 1 and Hearing Book 2 (HB1 pages 1 – 490; HB2 pages 1 - 30).
27. The following persons gave oral evidence:
a. Troy Douglas Ian Hollyman (Applicant).[17]
b. Jeffrey Cummins, psychologist of the Applicant.[18]
c. Natalie Grace Birch, mother of the Applicant.[19]
d. Megan Louise Christie Thomas, partner of the Applicant.[20]
28. Several letters of reference were part of the hearing material in support of the Applicant.[21]
29. I have taken all the written and oral evidence as well as the letters of reference into account in my reasoning and decision.
DOES THE APPLICANT PASS THE CHARACTER TEST?
30. The character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[22] Failure to pass the character test arises as a matter of law.[23]31. As indicated at [7], the Applicant was sentenced by the District Court of Western Australia to a total effective sentence of six years and six months imprisonment. The Applicant has been sentenced to a term of imprisonment of 12 months or more, therefore he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
32. The Applicant accepts that he does not pass the statutory character test.[24]
33. Accordingly, I find that the Applicant does not pass the character test.[25]
CONSIDERATION OF REVOCATION OF CANCELLATION DECISION
34. As I have found that the Applicant does not pass the character test, I 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.[26] The task involves an assessment of the propriety of a revocation decision, balancing factors both in favour and against revocation.[27]
35. I am 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.[28] In doing so I 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.[29]
Direction no. 110
36. 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. Direction no. 110 commenced operation on 21 June 2024, replacing the previous Direction no. 99.[30]
37. An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[31] 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, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[32]
38. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal must be:[33]
(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; and
(e)the expectations of the Australian community.
39. The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[34]
(a)the legal consequences of the decision;
(b)the extent of impediments if removed; and
(c)the impact on Australian business interests.
40. I 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.
41. 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.[35] They stress that entering or remaining in Australia is a privilege conferred on those individuals in the expectation that they 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 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.[36]
42. Direction no. 110 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 for a short period of time, Australia 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.
43. 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.
44. 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:(a)Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)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; and
(c)One or more primary considerations may outweigh other primary considerations.
45. The Applicant submits that there are, on balance, several other considerations why the Cancellation Decision should be revoked.[37]
46. The Minister says that, on balance, there is not another consideration why the Cancellation Decision should be revoked since the primary interest of the protection of the Australian community should prevail.[38]
47. The Minister says it is a finely balanced case in which the parties basically agree on the assessment of the respective primary and other considerations, but they differ on the weight to be attributed to some of the considerations as well as the overall assessment of the primary and other considerations. In the course of these reasons, I address the contentions put forward by the Applicant and Minister.
48. In his request for revocation the Applicant states by way of summary that the reasons why the Cancellation Decision should be revoked is that:
(a)he poses a ‘negligible’ risk of reoffending;
(b)he has serious remorse for what he has done and the hurt he has caused to the family of the deceased person;
(c)he has undertaken various voluntary rehabilitation steps whilst in prison;
(d)he is keen to become a role model for other young persons about the potential disastrous effects of speeding and hoon driving;
(e)the nature and duration of him being in Australia show that he regards his life entirely as Australian;
(f)the best interest of AJH and his other family relationships in Australia is for him to remain in Australia; and
(g)although he has family in New Zealand, he would face various impediments if he had to relocate in New Zealand.[39]
49. In oral and written submissions and statements made by the Applicant he details why he considers there is another consideration why the Cancellation Decision should be revoked regardless of the primary consideration of protection of the Australian community.[40] The Applicant also provided detailed oral and written responses to submissions from the Minister.
50. In essence, the key representations in support of the revocation of the Cancellation Decision raised by the Applicant are that:
(a)The Applicant has no criminal record prior to the index offence. He is generally a law-abiding, hard working person with close family bonds, and a responsible father to AJH. He admitted during oral evidence that prior to the index offence he had engaged in speeding and reckless driving occasionally. He says this was as he was a show-off and egoistic, and suffered from ‘toxic masculinity’,[41] but he now regrets it. He suffers guilt as he understands he cannot turn back what happened, and he has grown to be a more mature person.
(b)The Applicant fully acknowledges his wrongdoing and the hurt it has caused to the deceased person’s family. The Applicant says he is on the way to full rehabilitation, that he is seriously and deeply remorseful for the harm he had caused, and that he is highly motivated to return to a normal life as a father, family member, and responsible member of society.
(c)The Applicant says he has attended various courses about new skills of coping with challenges on a voluntary basis and he has attended in-prison counselling to enhance his process of rehabilitation. Added thereto he has also gained insight about the importance of self-control, positive thinking, conflict resolution mechanisms, and consequential thinking and reasoning.[42]
(d)The Applicant says he is seriously concerned about the welfare of AJH who currently lives with her mother, but who misses him intensely. He had a close relationship with her prior to incarceration and they continue to have close contact albeit he is in prison. The impact on her if he is deported would be devastating and is likely to cause her lasting trauma.
(e)The Applicant has never had any issues with alcohol or drug use. The index offence and events surrounded by it were deeds of stupidity for which he is deeply ashamed and remorseful. He finds it difficult to speak about the events due to shame and remorse. The Applicant says he has also severed links with some of the people with whom he used to associate, and he will be under a driver suspension upon release.
(f)The Applicant says all his principal family, friendship, recreational, and social ties are in Australia. He does have extended family in New Zealand, and he has visited the country,[43] but those links are not so close and supportive as with those in Australia. He says it would be highly traumatic for him and his family, particularly to AJH, if he is deported.
(g)The Applicant says he has close family ties with his mother, siblings, and their children in Australia. He says all those in his family shared in his trauma, they continue to be affected by it, and they are committed, together, to restore their family relationships.
(h)The Applicant says that his progress to rehabilitation has been acknowledged by prison authorities, for example, him being in shared accommodation in prison where he can prepare his own meals, him working in a responsible position, and the positive reports he has received for his attitude, responsibility, and work culture.[44] The Offender Notes prepared by the prison authorities speak about him as having ‘high work ethics’, being ‘reliable’, an ‘absolute asset’, ‘very thorough’, and working ‘above and beyond the call of duty’. [45]
(i)The Applicant is hopeful that he would be regarded as eligible for parole in 2026. He has already made enquiries if parole conditions could accommodate a FIFO-type work arrangement, and he hopes to take up co-parenting of AJH.
(j)The Applicant says the risk he would constitute to the Australian community is negligible. There are no patterns in his conduct, behaviour, social groups, or medical conditions that indicate a likelihood of re-offending. The Australian community would acknowledge his remorse; would be supportive of the rehabilitation programmes he has been engaged in; would give him the chance to restore his life; to connect again with his family; to be a loving and supportive father to AJH; to be employed; to be an example to other young persons; and to become a fully rehabilitated member of society.
(k)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 AJH who is highly vulnerable, his close family ties in Australia, the negligible likelihood of reoffending, and the hardship he would experience if deported to New Zealand.[46]
51. In oral and written submissions and statements the Minister explains why the correct and preferable decision, on balance, is that the Cancellation Decision should be affirmed.[47]
52. The submissions of the Minister are dealt with in detail below, but by way of background the Minister’s key representations are:
(a)The safety of the Australian community outweighs all other considerations that may support the revocation of the Cancellation Decision. Protection of the Australian community is the highest priority of the Australian government. The conduct of the Applicant in respect of the index offence as well as speeding, removal of the dashcam, and making false statements about the dashcam, were reckless, calculated, in complete disregard to the law, and very serious.
(b)The nature of the harm should the Applicant engage in further criminal activity of the nature of which he was convicted, is very serious. The likelihood of reoffending is assessed as low, but there is also concern that the Applicant lacks insight into his offending and that the rehabilitation in which he has been engaged has been within a controlled environment.[48]
(c)The Minister accepts that the strength, nature and duration of the ties of the Applicant to Australia weigh strongly in favour of revocation of the Cancellation Decision.[49]
(d)The Minister accepts that the Applicant has a close relationship with AJH, but the Minister says that relationship is not of a primary parental role since she resides with her mother. Low weight should therefore be given to this consideration.[50]
(e)The Minister says the expectations of the Australian community is that the government would not allow a non-citizen who engages in serious conduct in breach of Australian laws, to remain in Australia. The Australian community has a higher level of tolerance for the Applicant to remain in Australia due to the time that the Applicant has spent in the country but, overall, the tolerance for the conduct of the Applicant is low and hence he should be deported.[51]
(f)The Minister acknowledges that the Applicant may experience some hardship if he is deported to New Zealand, but the skills acquired by the Applicant may sustain him to start a new life. The Applicant also has family in New Zealand that could assist with the transition. Similar social support for which the Applicant is eligible in Australia is also available in New Zealand.[52]
(g)In short, the Minister says the Cancellation Decision should be affirmed because the cumulative weight to be assigned to the primary considerations concerning safety of the Australian community should outweigh the cumulative weight to be assigned to all countervailing considerations.[53]
53. In my examination of the primary and other considerations, I assess the evidence in respect of each consideration and then weight the consideration on a scale of the following categories: very low, low-moderate, moderate, moderate-serious, very serious, and neutral.
Primary Consideration 1: Protection of the Australian Community
54. 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.[54]
55. Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[55]
56. Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to the:
(a)nature and seriousness of the non-citizen’s conduct to date; and
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
57. I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[56] In doing so, para 8.1.1(1) of Direction no. 110 provides that I 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’. I 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.[57]
58. In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to para 8.1.1(1)(a)-(i) of Direction no. 110 relevantly:
(a)The frequency of the Applicant’s offending and/or whether there is any trend of increasing seriousness;
(b)The cumulative effect of repeated offending;
(c)whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(d)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).
59. In addition, Direction no. 110 introduced a requirement under this paragraph that I 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.[58]
60. A summary of the Applicant’s convictions is included at Annexure A.
61. In the following paragraphs a brief overview is given of the criminal record of the applicant:
62. The facts of the Applicant’s index offending are summarised as follows in the Statement of Issues, Facts and Contentions of the Minister:[59]
(a)On 22 February 2022, the Applicant was convicted and sentenced in the District Court of Western Australia on one count of Attempt To Obstruct//Prevent/Pervert or Defeat the Court of Justice and one count of Dangerous Driving Causing Death in Circumstances of Aggravation. The Court imposed a total effective sentence of six years and six months’ imprisonment, backdated to 15 February 2022 to account for time spent in custody on remand, and with a non-parole period of four years and six months. The Applicant’s driver’s license was also disqualified for a period of three years commencing from the date of his release from prison.[60] The circumstances of the offending are that the Applicant was travelling in his vehicle on 23 January 2020 at around 128 kilometres per hour in a 70 kilometre per hour zone. The deceased was driving a vehicle and was stationary at an intersection while waiting to turn right. The deceased pulled out slowly to cross the intersection and the Applicant was driving so fast that he had little to no opportunity to brake. As a result, the Applicant’s vehicle collided with the door of the deceased’s vehicle. The Applicant’s airbag control module indicated that he was travelling at 129 kilometres per hour 2.5 seconds prior to the crash. The victim later passed away after the life support had been turned off.
(b)On 13 June 2022, the Applicant was convicted in the Perth Magistrates Court of two counts of Reckless driving and one count of Reckless speed 45km/h or more. The Court imposed a global fine of $1,500 and a six-month driver’s license disqualification for each count, to run concurrently with the earlier disqualification period imposed by the District Court.
63.After the index offence, the dashcam that had been in the vehicle of the Applicant at the time of the crash became the subject of a police search. Police began investigating the whereabouts of the dashcam and spoke to the Applicant about the location of the dashcam, but he denied any knowledge. The circumstances are agreed to by the parties,[61] but in essence the Applicant denied any knowledge about the whereabouts of the dashcam; the Applicant was assisted by friends and family to hide the dashcam;[62] and only after an extensive investigation that included the installation of listening apparatus by the police,[63] the dashcam was recovered. The dashcam contained evidence of the index offence and of speeding and reckless driving by the Applicant in the month or so before the index offence.
64.The sentencing judge Burrows DCJ found that the Applicant had lied to the police about the location of the dashcam to deflect the police investigation and to avoid responsibility of the offending. The judge categorised the conduct of the Applicant as serious. Judge Burrows stated that the initial removal of the dashcam by the Applicant was a spur of the moment decision, however the deception to conceal the dashcam was repeated and persistent involving another person or an accomplice, and made the police investigation prolonged and intensive.[64] Judge Burrows said as follows:
You were the beneficiary of the continued concealment of the dashcam and the footage from police over an extended period of time, which I calculate to be about 16 months.[65]
65.In sentencing remarks, the seriousness of the index offence and the failure to disclose the dashcam was commented on as follows by Judge Burrows:
You deliberately chose to drive it that day because you said to her you liked driving it and you perceived there to be less chance of the police pulling you up during the day. You told Ms Stubbs that you would have to borrow her car that night when you were planning to go out to a friend’s. The car was a high performance vehicle which you had in the preceding eight months regularly driving in the same area in excess of the posted speed limit. On the day in question, you can be seen to accelerate rapidly when driving to and from your friend’s home. Your driving on the day of the incident was not an isolated incident, nor an aberration in your driving behaviour. The driving as detailed in the facts in the minute preceding the crash when the black vehicle comes onto Warnbro Sound Road can only be described as deliberate risk taking by driving on a suburban street at excessive speed.
…..
The tragic consequences of your actions also constitute a serious feature of the offending…. In this case [concealing of the dashcam], the nature of the consequence that you sought to avoid was serious.[66]…In this case [concealing the dashcam], there was no threat or violence involved, nor was the deception carried through to the extent of deceiving a court or the creation of false public records, which is a factor which significantly increases the gravity of such offences.(emphasis added)[67]
….
It has been said many times the loss of life and personal injury caused by dangerous or negligent driving on our roads is one of the most serious social problems facing the Australian community. It is in this type of case that the courts rank general deterrence high on the list of relevant considerations.[68]
66. The Minister submitted that the Applicant’s offending should be viewed as very serious.[69] The Minister says the road traffic violations of the Applicant showed a ‘clear escalation’, and his reckless behaviour increased. Added thereto, the cumulative effect of the repeated offending ‘should not be overlooked’.[70]
67. The Applicant concurs with this proposed assessment of the offending as being very serious.[71]
68. I note it is required, pursuant to Direction no. 110, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’, or ‘serious’.
69. I find that the conduct of the Applicant giving rise to the index offence and the associated convictions are to be regarded as very serious. The reasons for this finding by reference to paragraphs 8.1.1(1)(a) to (i) of the Direction (as relevant) are:
(a)The index offence caused the death of an innocent person. The Applicant wilfully and repeatedly disobeyed road traffic rules, drove dangerously and at high speed, showed no or little regard to other road users, and he appeared after the crash to be more concerned with the state of his car and removal of the dashcam than with the wellbeing of the seriously injured person.
(b)The Applicant admitted that him speeding and reckless driving were not isolated incidents. He admitted that at the time he engaged in speeding and reckless driving occasionally. He had two speeding fines prior to the index offence. His then partner as well as his mother had cautioned him about the risks of reckless driving and speeding.
(c)The conduct of the Applicant after the crash, whereby he removed the dashcam and then conspired for a long period of time to keep it hidden, was very serious. Although he could explain that immediately after the crash he panicked, that panic later became deliberate and consistent misleading of the police. He had ample opportunity to hand the dashcam to the police, but he persisted until another family member admitted to their role in hiding the dashcam. The conduct of the Applicant is regarded as indicative of lacking remorse and being very serious.
(d)The speeding of the Applicant prior to the index offence is regarded as very serious because he did so regardless of cautions, he drove a high-performance car in a reckless manner, he drove a car that had been yellow-stickered by the police, and the dashcam showed that he repeatedly exceeded the speed limit in the month or so prior to the occurrence of the index offence.
(e)The impact of the index offence on the family of the deceased person was devastating, traumatic, and ongoing in hurt. The victim impact statements reflect the deep anguish and pain of the father and brother.[72] I note the effort that the Applicant has made to get in touch with the family of the deceased person,[73] but I also note that those efforts were only made after he had been incarcerated and not earlier.
70. The conduct of the Applicant giving rise to the index offence and associated offences are regarded as very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
71. I am 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.[74] 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.[75] The Tribunal must consider the likelihood and consequences of further offending.[76]
72. 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 with respect 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 reoffending. 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.
73. The Applicant maintains that, while he accepts that the harm that would be caused if he were to reoffend would be serious, the likelihood of him causing such harm is extremely low or negligible. Accordingly, the Applicant says that the likelihood of him reoffending is negligible and therefore the risk to the community is low. The Minister says the nature of the harm is very high and the tolerance of the community towards such harm is very low. This weighs according to the Minister significantly against revocation of the Cancellation Decision.
74. The Applicant submits in short as follows:[77]
(a)There is no evidence of drug use or mental health illness or social links that suggests the Applicant has a likelihood of reoffending. The Applicant suffers depression as a result of his offending, but that does not increase his likelihood of reoffending because the depression is likely to return to the state the Applicant was in prior to incarceration. The Applicant is a young man with an excellent employment record, close and loving family, being a responsible father, and having secure accommodation and high likelihood of employment upon discharge. The Applicant made a terrible mistake for which he is deeply remorseful, but the likelihood of him reoffending is negligible.
(b)The observation in the Treatment Assessment Report about the lack of insight of the Applicant should be accorded little if any weight due to the purpose of the report. It had been completed in May 2023, and the Applicant has taken various remedial steps, demonstrated remorse, and other evidence including letters of reference and the expert opinion of Mr Cummins contrast with the Report.
(c)The term of imprisonment has fundamentally changed the Applicant as a person. He has attended rehabilitation courses and counselling voluntarily, he is assessed by the prison authorities and psychologist, Mr Cummins, of being at low risk of reoffending,[78] he is a reliable worker and role model in prison, and he has shown deep remorse. Mr Cummins expresses the opinion that the Applicant was at the time of the index offence ‘psychosocially immature’ and could be described at the time as a ‘hothead’.[79] His past conduct cannot be assumed to be a predictor of future conduct.[80] The sentencing judge noted that the Applicant was a ‘loving and devoted father’,[81] that he has a ‘strong work history’, that he did not have a criminal conviction, that he had been treated for depression as a result of the index offence, and that he has no ‘drug or alcohol issues’.
(d)The experience the Applicant has had in prison together with his newly acquired skills, rehabilitation and commitment to his family and particularly to AJH, makes him reoffending unlikely. It is accepted that the rehabilitation of the Applicant has not been applied or tested in society, but account must also be taken that he had no criminal convictions until the index offence and he is some 7 years older and more mature. It must also be noted that between the index offence and incarceration the Applicant was in society and no other convictions or any other road traffic offences arose during the time.
75. The Minister submits as follows about the nature of the harm and the risk of reoffending:
(a) The nature of the harm should the Applicant engage in further criminal activity of the crime of which he was convicted, is very serious. The index offence led to the death of an innocent person and deep trauma to his family. The tolerance of the Australian community for this risk is very low since, as remarked by the sentencing judge, loss of life and personal injury caused by dangerous and negligent driving is one of the ‘most serious social problems facing the Australian community.’[82] The nature of the harm is thus very high, and the tolerance of the community for such harm, is very low.
(b) The Applicant has submitted expert evidence about the risk of him unlikely to reoffend, but that risk has not been tested outside the context of prison. Notable is that the Applicant admitted in evidence that from time to time he had engaged in speeding, reckless driving, and burn-outs on public roads. Added thereto the conduct of the Applicant after the crash, his concealment of the dashcam, his ongoing lack of assistance to the police for around 15 months, and the lateness of his plea of guilty, are factors that highlight the risk of impulsive behaviour and selfishness as well as the lack of remorse.[83]
(c) The Minister acknowledges, however, that the likelihood of reoffending is low.
(d) On balance the Minister says that the seriousness of the offending by the Applicant, and the harm that would result from reoffending even if the likelihood is low, weigh significantly against revocation of the Cancellation Decision since the Australian community has low tolerance towards the seriousness of the index offence.
76. I find that the nature of the index offence, the other convictions associated with the index offence, and the evidence of reckless road behaviour of the Applicant to be considered very serious. This finding is consistent with the evidence and submissions of the Applicant and the Minister. The sentencing judge had noted the following about the conduct of the Applicant:
(a)he engaged in reckless driving evidenced from data extracted from the dashcam even though the Applicant had not been formally charged for those offences;
(b)he had been cautioned by his then partner in December 2019 against speeding and received a similar caution by his mother;
(c)he drove a vehicle that had been deemed by the police as not road compliant;
(d)he caused the death of an innocent road user; and
(e)he removed and hid the dashcam.
77. In respect of the likelihood of reoffending, I find that it is very low. Psychologist Cummins says that the risk of ‘low’ is to be interpreted as no higher than an ordinary law-obeying member of society and being at the lower end of the scale of low. I adopt that categorisation of the likelihood of reoffending being no more than any other law-abiding person in society.
78. I find for the following reasons that the risk of reoffending is very low:
(a)The actions of the Applicant, both those that led to convictions and those noted by the sentencing judge, do not necessarily imply that the risk of reoffending in future is high. I must take into account evidence of rehabilitation, remorse, insight, contrition, age, and the general conduct and demeanour of the Applicant. I must also take into account the absence of a criminal record other than the convictions that are the subject of this proceeding as well as the letters of reference and the oral evidence.
(b)The Applicant is deeply remorseful, which is confirmed by psychologist Cummins, his mother, and his partner together with those who provided written letters of support. There is a persistent theme from all those who gave evidence and submitted written letters of reference that the Applicant is deeply remorseful and ashamed for what he had done and the hurt he has caused.
(c)The Applicant does not have any social links or a mental, medical, or health condition that may indicate an elevated likelihood of reoffending, he does not have any gambling habits or other risk behaviour indicators, and he does not use any substances that may increase the likelihood of reoffending. I accept the evidence of his mother than the Applicant grew up in a stable and loving household, that he was a son of whom she was proud, that he was a loved member of the family, that he was well integrated at school, that he was on a good career path, and that his conduct leading to the index offence came as a total surprise and devasted them as a family.
(d)I accept that reckless youth may have contributed to the conduct of the Applicant and although this is not an excuse for this conduct, it does show a reduced likelihood of reoffending due to the increased maturity of the Applicant, the insight he has shown in his wrongdoing, and the steps he has taken to rehabilitate. Psychologist Cummins explained how in his opinion the conduct of the Applicant at the time of the index offence should be assessed in the context of him being relevant to his peer group and finding identity through his vehicle. Whilst that does not excuse his conduct it does mean that the risk or likelihood of reoffending is reduced due to age, maturity, insight, and remorse. I accept that the courses such as the Plan for Personal Management, the counselling attended by the Applicant while being in prison, the efforts he has made to reach out to the parents of the deceased person, the willingness he has expressed to become a role model as speaker at schools under the auspices of the Paraplegic Benefit Fund,[84] combine for me to conclude a very low likelihood of reoffending. Mr Cummins added that the risk of reoffending is at the lowest possible level and hence negligible or ‘no appreciable risk’. He added that the Applicant does not suffer from any personality or delusional disorder.[85]
79. I find that although the harm that could be caused by reoffending is very serious, the likelihood of the Applicant engaging in further criminal or other serious conduct is very low, taking into account the evidence about the risk of reoffending and the evidence of rehabilitation.
80. 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, I find that this primary consideration weighs moderately-seriously against revocation.
Primary Consideration 2: Family violence committed by the non-citizen
81. 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.
82. There is no evidence before the Tribunal to find that the Applicant has engaged in acts of family or domestic violence.
83. I agree with the parties that this consideration should be given neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
84. I am required to consider any impact of the Cancellation Decision on the Applicant’s immediate family members in Australia.[86] I must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to how long they have lived in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[87]
85. I note that the parties agree that this consideration weighs in favour of the revocation of the Cancellation Decision, but they disagree on the weight. The Applicant saying it ought to be weighted very strongly for revocation, whilst the Minister says it ought to be weighted strongly in support of revocation.
86. The Applicant has lived in Australia for most of his life and wants to rebuild his life here. He arrived at the age of 13 and is now 28, turning 29 in December 2025. He submits that he wants to develop an even closer relationship with AJH who is 8 years of age, and who needs him in her life as support, love, and guidance. The Applicant submits he has committed to personal reform in prison, that he will continue rehabilitation and being a role model for young people upon his discharge, that he is likely to be subject to parole conditions, and is positive to find employment. In this respect psychologist Cummins says that he regards the rehabilitation of the Applicant as being complete.[88] The Applicant says he has a strong network of family and friends in Australia since this is the only place he calls home. The Applicant acknowledges that he has family in New Zealand, but he says those family members are remote and not nearly as close to his daily living as the family in Australia.
87. The Minister accepts that the Applicant has substantial ties to Australia, that he has limited family ties to New Zealand, and that his immediate family, and in particular AJH, will suffer emotional hardship if the Cancellation Decision is not revoked.[89] The Minister submits this consideration weighs strongly in favour of revoking the Cancellation Decision.[90]
88. I have had regard to the various submissions and letters of reference by members of the Applicant’s family and friends[91] and accept that due to the nature, strength and duration of the Applicant’s ties to Australia, a non-revocation of the Cancellation Decision would have an adverse effect on them, and a potentially very serious adverse impact on AJH. His referees speak consistently of their close ties with him, his supportive and kind nature, the close relationship with AJH, and him regarding Australia as his home.
89. I find that the Applicant has close ties with his immediate family, being his mother, father, and two brothers. Added thereto I also find that he maintains a good relationship with his ex-partner. The Applicant is currently in a new relationship. The evidence points towards a person who finds himself in a loving family with ties predominantly in Australia as well as in a personal relationship. These weigh very seriously in favour of revocation of the Cancellation Decision.
90. I find that AJH needs the support, guidance, and love of her father and those needs are likely to increase as she grows older. The ties between the Applicant and AJH are very strong, they have ongoing daily and weekly contact, she is keen for him to return to her life to perform practical parental duties, and he has in effect some co-parental responsibilities for her albeit that she lives with her mother.
91. I find that if the Cancellation Decision remains unrevoked, the impact of the deportation of the Applicant to New Zealand would be severe on his family in general, but particularly detrimental to AJH.
92. I find that the Applicant has close ties with his family and friends who have remained in contact with him and who have maintained a commitment to supporting him on release.
93. I find it is likely that the Applicant will secure employment in light of his previous experience, the support expressed to him by previous supervisors, and the new skills he has acquired.[92] Their evidence speaks to the Applicant’s positive personal qualities which are valued by those who are close to him, and I consider this is to his favour in assessing his ties to the community.
94. Overall, I find that the strength, nature and duration of the Applicant’s ties to Australia weigh very seriously in favour of revocation of the Cancellation Decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision
95. Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
96. Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include, in summary:[93]
(a)the nature and duration of the relationship;
(b)the extent to which the Applicant is likely to play a positive parental role in the future;
(c)the impact of the Applicant’s prior conduct, and any likely future conduct, on the child;
(d)the likely effect that any separation from the Applicant would have on the child;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child;
(g)evidence that the child has been, or is at risk of being exposed to family violence by the Applicant or has otherwise been abused or neglected by the Applicant; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
97. The Applicant identified the following children whose best interest is that the Cancellation Decision is revoked:[94]
(a) AJH who is 8 years of age.
(b) LDB, his nephew of 4 years of age.
(c) HJDT, MIDT and RDT ages 10, 7 and 1 years of age respectively who are the children of a close friend.
98. The Applicant submits that the best interests of the identified children are that the Cancellation Decision be revoked, and that significant weight should be given to this consideration having regard to his close relationship with AJH and the negative impact his removal would have on all the children, particularly on AJH.
99. The Applicant says that his relationship with AJH is very close, that he has had co-parental responsibilities for her, that they have maintained daily and weekly contact regardless of his incarceration, that he wants to live close to her for co-parenting, and that the impact on her would be devastating if he were to be deported to New Zealand.
100. The Applicant says his relationship with the other listed children is very close as an uncle and friend. He is the Godparent for HJDT, MIDT and RDT albeit that they are family of his ex-partner.[95]
101. Natalie Grace Birch, mother of the Applicant, speaks of his close relationship with AJH and how she misses him.
102. Megan Louise Christie Thomas also speaks of how close the Applicant is to AJH and how they are planning to settle somewhere close to her after discharge.
103. Kirby-Louise Stubbs, mother of AJH and his previous partner, speaks about his co-parenting of AJH, the ‘strong bond’ with her, that she missed her father ‘dearly’, and it breaks her mother’s heart to imagine he may be deported.[96]
104. The Minister says that the relationship between the Applicant and AJH should be given strong weight and the relationship between the Applicant and the other listed children should be given low weight.[97]
105. I find that the Applicant has a very close parental relationship with AJH and that it is in her best interest if that relationship is maintained upon release of the Applicant. Although the relationship can be maintained from New Zealand, I accept the opinion of Mr Cummins that the quality of the relationship is likely to suffer if the Applicant is deported. AJH is a pre-teen and the importance of her father being close to her is accepted. The best interests of AJH weighs very seriously in favour of revocation of the Cancellation Decision.
106. I find that the Applicant has close ties with the other children listed. He is an uncle to them, a friend, and someone whose company they enjoy. Although the Applicant does not have a parental relationship with them, the role of the Applicant within their context of family and being an uncle is high. The risk of the Applicant reoffending is low and therefore he can be a positive role model to them. The Applicant does not have a parental role in respect of those children. The best interests of those children weighs moderately-serious in favour of revocation of the Cancellation Decision.
107. On balance, I find that the weight given to the best interests of minor children in Australia, particularly in respect of AJH, weighs very seriously in favour of revocation of the Cancellation Decision.
108. For the above reasons, I consider that revocation of the Cancellation Decision would be in the best interests of all the minor children identified: (a) particularly so in respect of AJH with whom he has a close fatherly relationship and in whose best interest it is for the relationship to be maintained at a personal level; (b) LDB of whom he is the uncle and maintains a close relationship; and HJDT, MIDT and RDT of whom he is the godfather and with whom he maintains a close and loving relationship. I consider those interests carry very serious weight in respect of the totality of relations with the minor children in Australia.
Primary Consideration 5: Expectations of the Australian Community
109. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that 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.
110. 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.
111. 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’.
112. 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 person’s conduct or offending.
113. 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.
114. The list of the types of conduct identified in paragraphs 8.5(2)(a)-(f) is not exhaustive.
115. The Applicant says that this consideration should weigh against revocation of the Cancellation decision.[98] The Minister says the consideration should weigh heavily against revocation of the Cancellation Decision.[99]
116. I have found that the Applicant’s offences are very serious for the reasons outlined above. I have also found that the Applicant is committed to rehabilitation and that he has made positive progress in that journey, and finally I have found there is a low likelihood of the Applicant reoffending.
117. I accept the submission of the parties that the expectation of the Australian community is that a non-citizen who engages in serious conduct in breach of the expectations of the community that they ought to obey Australian law, ought not to be allowed to remain in Australia.[100]
118. In weighing this consideration, I am also 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.
119. 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 spent his late teens in Australia and has lived here all his adult life.
120. I find the community would afford the Applicant some limited additional tolerance for his offending behaviour consistent with the Direction in this regard. However, I consider overall that the serious nature of his offences would lessen that tolerance and the weight to be placed on it.
121. The nature of the character concerns and offences for which the Applicant has been convicted is such that the Australian community would not expect the Cancellation Decision to be revoked. Accordingly, the expectation of the Australian community weighs heavily against revocation.
122. Overall, I consider this primary consideration weighs very seriously against revocation.
Other considerations
123. 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
Other Consideration 1: Legal consequences of decision under section 501 or 501CA
124. 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.[101]
125. 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 consequences of a visa refusal or cancellation under s 501 or related provisions include:
(a)Unlawful status;
(b)The likelihood of becoming subject to detention and/or removal;[102]
(c)Refusal of other visa applications and cancellation of other visas;[103]
(d)A prohibition on applying for other visas;[104] and
(e)Periods of exclusion and special return criteria may apply.[105]
126. Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[106] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[107]
127. Nevertheless, the obligation to remove an unlawful non-citizen under s 198 does not arise if a ‘protection finding’ has been made in respect of a finally determined protection visa application.[108] In this case there is not a protective finding.
128. In M1/2021,[109] the High Court considered the following question:
In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
129. The High Court found that in deciding whether there was ‘another reason’ to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, where the plaintiff remained free to apply for a protection visa under the Migration Act:[110]
(1)the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;
(2)Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3)to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
130. The Applicant’s request for revocation of the Cancellation Decision, his personal circumstances, or any other information provided to me did not raise any claims he would have harm in return to New Zealand such that would give rise to a non-refoulment obligation arising from his return.
131. The parties agree that this consideration should be afforded neutral weight.
132. In conclusion, I find that this consideration weighs neutrally against revocation of the Cancellation Decision.
Other Consideration 2: Extent of impediments if removed
133. 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:
(a)The Applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the Applicant in their country.
134. The Applicant says this consideration should weigh strongly in favour of revocation of the Cancellation Decision,[111] whilst the Minister says it weighs no more than moderately in favour of revocation.[112]
135. The Applicant was born in New Zealand and resettled in Australia when he was 13 years old. He is now 28 years old. He has visited New Zealand five times for short periods. He is for all practical purposes an integrated member of Australian society. He does have extended family in New Zealand. His paternal grandfather recently passed away, his paternal grandmother is in elderly care, his paternal grandmother is of poor health, and his maternal grandmother is likely to relocate to Australia. The other family members are remote and not in close contact with him.[113]
136. The Applicant says he is in good physical health and this is supported by the documents before me. The Applicant is of sound mental health albeit that Mr Cummins raised the possibility of the Applicant suffering of depression. This diagnosis is supported by the partner of the Applicant who is a nurse and who has worked in a mental health capacity. The Applicant does not receive any medication for depression, and he has not been referred by the nurse he had seen in prison for a mental health assessment or for any anti-depressants. Mr Cummins expressed the opinion that the depression is likely associated with incarceration and that the resilience of the Applicant may help him to overcome it upon release, be it in Australia or New Zealand. Mr Cummins cautioned however, and I accept his opinion, that the ability of the Applicant to overcome depression may be undermined if his social circumstances are such that he struggles to adjust in a new country, being away from AJH, struggling to find work in his trained profession, and facing financial challenges.[114]
137. I find there is nothing in the information before me 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 is no evidence the Applicant would suffer any significant cultural barriers on return to New Zealand, albeit that I do not diminish the practical, social, and personal challenges of resettlement.
138. I find that the Applicant is likely to face significant emotional hardship with respect to his separation from family members in general and AJH in particular if returned to New Zealand. This may, as opened by Mr Cummins, be a serious impediment on his ability to settle in New Zealand.
139. I find that while AJH may in theory be able to travel to New Zealand, the mother of AJH would have to give approval for such travel. The mother did not commit herself in the hearing to grant such approval. I find that the separation from AJH is likely to be significant and that the Applicant and AJH are likely to suffer serious emotional and mental hardship and trauma as a result.
140. I find that the Applicant has comparable prospects for employment in New Zealand given his skills and employment history, albeit that he may not be able to find employment as a diamond driller. However, the Applicant has other skills that could also be utilised in New Zealand.
141. Overall, I find that the Applicant may encounter some difficulty establishing himself were he to return to New Zealand but I do not regard those difficulties as significant impediments if removed.
142. On balance, I find that this consideration weighs moderately in favour of revocation of the Cancellation Decision.
Other Consideration 3: Impact on Australian business interests
143. Paragraph 9.3 of Direction no. 110 states:
(1)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.
144. The parties agree that this consideration should be afforded neutral weight.
145. I find that the impact of deportation would have a negligible influence on Australian business.
146. I find that this consideration weighs neutrally concerning the proposed revocation of the Cancellation Decision.
CONCLUSION
147. The Applicant does not pass the character test under s 501 of the Migration Act.
148. I 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.
149. Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
150. I 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 Decision should be revoked.
151. In determining the weight to be applied to each consideration, I 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. I have gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
152. In my examination of the primary considerations and other considerations, I have assessed the evidence in respect of each consideration and then weight the consideration on a scale of the following categories: very low, low-moderate, moderate, moderate-serious, very serious, and neutral.
153. I have considered all the primary considerations, including the protection of the Australian community. I find that the protection of the Australian community weighs against revocation and I afford the consideration moderate-serious weight against the revocation of the Cancellation Decision.
154. I find that the consideration of family violence weighs neutrally in respect of the Cancellation Decision.
155. I find that the strength, nature and duration of the Applicant’s ties to Australia weigh very seriously in favour of revocation of the Cancellation Decision.
156. I find that the best interests of the children identified as being impacted by the decision weigh very seriously in favour of revocation of the Cancellation Decision.
157. I find that the expectations of the Australian community weigh against revocation and I find this consideration should be afforded very serious weight against revocation of the Cancellation Decision.
158. In relation to the relevant ‘other considerations’ identified in Direction no. 110, I find that the legal consequences of the decision is afforded neutral weight.
159. I find that the extent of impediments if removed is afforded moderate weight in favour of revocation of the Cancellation Decision.
160. I find that the impact on Australian business interests is afforded neutral weight.
161. 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 this general principle should not apply in the Applicant’s case.
162. Having weighed the considerations in favour of the revocation of the Cancellation Decision and the considerations against revocation, I find that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community are outweighed by those considerations weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia, the best interests of minor children, and extent of impediments if removed. The considerations of family violence and legal impediments are given neutral weight.
163. In summary, having regard to all the primary considerations, and the relevant other considerations in Direction no. 110, I am satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
164. The decision of the delegate of the Minister dated 7 April 2025 not to revoke the cancellation of the Applicant’s Subclass 444 visa on 19 August 2024 under section 501CA(4), is set aside and, in substitution, the decision to cancel the Applicant’s visa is revoked.
I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B de Villiers
...................[SGD].....................................................
Associate
Dated: 25 June 2025
Date of hearing: 12, 13 June 2025 Representative for the Applicant: Mr L Martin, Estrin Saul Lawyers Solicitor for the Respondent: Mr M Scott, Australian Government Solicitor ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY
| COURT | RESULT DATE | OFFENCE | COURT OFFENCE DATE | CHARGE NO. | RESULT |
| PERTH MAGISTRATES COURT | 13 JUN 2022 | RECKLESS DRIVING ; ROAD TRAFFIC ACT | 12 DEC 2019 | 1986517-2 | MDL DISQUALIFIED: 6 MTHS - CONCURRENT FINE: $1500 (GLOBAL) |
| PERTH MAGISTRATES COURT | 13 JUN 2022 | RECKLESS DRIVING ; ROAD TRAFFIC ACT | 12 DEC 2019 | 1986517-2 | MDL DISQUALIFIED: 6 MTHS - CONCURRENT FINE: $1500 (GLOBAL) |
| PERTH MAGISTRATES COURT | 13 JUN 2022 | RECKLESS SPEED 45 KM/H OR MORE ; | 12 DEC 2019 | 1986517-2 | MDL DISQUALIFIED: 6 MTHS - CONCURRENT FINE: $1500 (GLOBAL) |
| PERTH DISTRICT COURT OF WESTERN AUSTRALIA | 22 FEB 2022 | ATTEMPT TO OBSTRUCT/PREVENT/PERVERT | 23 JAN 2020 | MCROC 204669 | IMPRISONMENT: 2 YEARS CUMULATIVE FROM 15-FEB-2022. - CUMULATIVE |
| PERTH DISTRICT COURT OF WESTERN AUSTRALIA | 22 FEB 2022 | DANGEROUS DRIVING CAUSING DEATH CIRCUMSTANCES OF AGGRAVATION; ROAD TRAFFIC ACT 1974; S. 59(1)(B) | 23 JAN 2020 | 1986517-1 | MDL DISQUALIFIED: 3 YRS - CONCURRENT IMPRISONMENT: 4 YEARS 6 MONTHS CUMULATIVE FROM 15-FEB-2022. - CUMULATIVE |
[1] HB1, p 38.
[2] HB1, p 95.
[3] HB1, pp 81-83.
[4] GD, pp 353-354.
[5] HB1, p 229.
[6] HB1, p 343.
[7] HB1, pp 62-63.
[8] HB1, p 131.
[9] HB1, pp 358-363.
[10] HB1, pp 66-87.
[11] HB1, pp 18-21.
[12] HB1, p 396.
[13] HB1, pp 4-17.
[14] See s 501CA(4) of the Migration Act.
[15] Migration Act s 501CA(3)(b).
[16] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
[17] HB1, pp 189-194; HB2, pp 18-19.
[18] HB2 pp9-17.
[19] HB1 pp347-351; HB2 pp20-21.
[20] HB2 pp22-25.
[21] HB1 pp322-355; HB2 pp20-30.
[22] Migration Act s 501(7)(c).
[23] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
[24] HB1, p 399.
[25] See Migration Act, s 501CA(4)(b)(i).
[26] Migration Act, s 501CA(4)(b)(ii).
[27] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [32]; Gaspar v
Minister for Immigration and Border Protection [2016] FCA 1166 at [38]-[39].
[28] 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].
[29] Migration Act, s 499(2A).
[30] Direction no. 110, para 2-3.
[31] Direction no. 110, para 5.1(4).
[32] Direction no. 110, para 6 referring to paras 8 and 9. See also Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076 at [15].
[33] Direction no. 110, para 8.
[34] Direction no. 110, para 9.
[35] Direction no. 110, paras 5.2(1) –(8).
[36] Direction no. 110, para 5.2(7) and 5.2(8).
[37] HB1, pp 397-404; HB2, pp 1-7.
[38] HB1, pp 408-417.
[39] HB1, pp 399-403; HB2, pp 2-7.
[40] HB1, pp 13, 89-94, 397-404.
[41] HB1, p 90.
[42] The Applicant has undertaken the following courses: Certificate I in Entry to General Education; Certificate I in General Education for Adults; Certificate II in Supply Chain Operations; Certificate III in Cleaning Operations; Certificate I in Hospitality as well as other training such as to prepare and service Espresso coffee and operating a forklift; HB1, pp 90, 211-222.
[43] GD, pp 353-354.
[44] HB1, p 131.
[45] HB1, pp 135-141.
[46] HB1, p 403.
[47] HB1, pp 408-417.
[48] HB1, p 413.
[49] HB1, p 415.
[50] HB1, p 415.
[51] HB1, p 416.
[52] HB1, pp 416-417.
[53] HB1, p 417.
[54] See also Direction no. 110, para 8(1).
[55] Direction no. 110 para 7(2).
[56] Direction no. 110 para 8.1(1)(a) and 8.1(1)(b).
[57] Direction no. 110 para 8.1.1(1)(a).
[58] Direction no. 110 para 8.1.1(1)(d).
[59] HB1 p406. The facts of the Applicant’s offending are not in dispute. The Applicant accepted in his submissions the summary of offending at set out by the Delegate. GD pp21-23.
[60] HB1 pp62-63.
[61] GD, p 22.
[62] HB1, pp 52-53.
[63] HB1, p 58.
[64] HB1, pp 50-54.
[65] HB1 p54.
[66] HB1, p 57.
[67] HB1, p 58.
[68] HB1, p 59.
[69] HB1, p 411.
[70] HB1, p 411.
[71] HB1, p 400.
[72] GB, pp 51-52.
[73] HB2, p 18.
[74] Direction no. 110, para 8.1.2(2)(a) and (b).
[75] 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.
[76] Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673 at [95].
[77] HB1, pp 400-402; HB2, pp 4-6.
[78] HB2, p 15.
[79] HB2, p 15.
[80] Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [575].
[81] HB1, p 55.
[82] HB, p 59.
[83] HB, p 413.
[84] HB2, p18.
[85] Evidence on 13 June 2025.
[86] Direction no. 110, para 8.3(1).
[87] Direction no. 110, para 8.3(2).
[88] Evidence on 13 June 2025.
[89] HB1, p 414.
[90] HB1, p 415.
[91] HB1, pp 322-355.
[92]HB1, p 343.
[93] Direction no. 110, para 8.4(4)(a)-(h).
[94] HB1, pp75, 78.
[95] HB1, p 331.
[96] HB1, pp 341-342.
[97] HB1, p 415.
[98] HB1, p 403.
[99] HB1, p 416.
[100] HB1 p416.
[101] Direction no. 110, para 9.1.
[102] Migration Act, ss 189, 196, 197C, 198.
[103] Migration Act, s 501F.
[104] Migration Act, s 501E.
[105] Migration Act, s 503, special return criteria (SRC) 5001.
[106] Migration Act, s 15.
[107] 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].
[108] Migration Act, s 197C(3).
[109] M1/2021 [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).
[110] M1/2021 at [9].
[111] HB1, p 403.
[112] HB1, p 417.
[113] HB1, p 403.
[114] HB2, p 16.
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