HVCC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 271

HVCC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 271 (26 March 2025)
Applicant:HVCC
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2025/0292

Tribunal: Senior Member Clues
Place:Hobart
Date:26 March 2025

Decision:The decision not to revoke the cancellation of the applicant’s Special Category (Class TY) (subclass 444) visa under section 501CA(4) of the Act is affirmed.

………[SGD]…………………………….
Senior Member Clues
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – fail character test – another reason to revoke cancellation decision -Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct – family violence - strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences - extent of impediments if removed – applicant is a 33 year old citizen of New Zealand – cancellation decision is affirmed
Legislation
Migration Act 1958(Cth)
Migration Regulations 1994 (Cth)
Cases
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023 FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Harrison v Minister for Immigration and Citizenship [2006] AATA 47
McQuillan and Minister for Immigration and Multicultural Affairs [2025] ARTA 10
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Pavey and Minister for Home Affairs [2019] AATA 4198
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
Secondary Materials
Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Statement of Reasons
INTRODUCTION

This is an application for review of a decision made on 7 January 2025 by a delegate of the respondent (the Minister) not to revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (subclass 444) visa (the visa), pursuant to s501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant is a 33 year old citizen of New Zealand. He commenced residing in Australia in 2007 when he was almost 16 years old and has resided in Australia since that time.
On 21 April 2023, the applicant was convicted in the County Court of Victoria, of the following offences and he was sentenced to a total period of three years and nine months imprisonment.
(a)one count of armed robbery; three years and two months imprisonment.
(b)one count of possession of a drug of dependence (methylamphetamine); four months imprisonment.
(c)one count of handle stolen goods; six months imprisonment,
(d)one count of commit indictable offence whilst on bail: seven days imprisonment.
On 4 July 2023, the visa was mandatorily cancelled under s 501(3A) of the Act because the applicant had a substantial criminal record as a result of being sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) and s 501(7)(c))(the cancellation decision).
The applicant was notified of the cancellation decision and was invited to make representations to the Minister requesting revocation of the cancellation decision. On 10 July 2023, the applicant made representations pursuant to s 501CA(4)(a) to have the cancellation decision revoked.
On 7 January 2025, the Minister refused to revoke the cancellation decision (the reviewable decision) on the basis that the Minister was not satisfied that the applicant passed the character test nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked (s 501CA(4)).
On 16 January 2025, the applicant applied to the Tribunal to review the reviewable decision. As the application was made within nine days after notification, it complied with the time limit set by s 500(6B) of the Act.
The hearing took place in the Tribunal on 17 and 18 March 2025 via Microsoft Teams video. Both parties were legally represented. The applicant appeared from prison.
The parties filed a hearing bundle comprising 517 pages. The applicant filed ‘Additional Material 2 – Applicant’. By consent the Tribunal admitted all of those documents into evidence. At the hearing the applicant, his partner and his mother gave evidence.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:
·the person does not pass the character test because of a substantial criminal record; and
·the person is 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 Territory.
A person has a substantial criminal record if they satisfy any of the criteria set out in s 501(7) of the Act. These criteria include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). On 21 April 2023, the applicant was sentenced to a total period of three years and nine months imprisonment
A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under 501CA(4) of the Act. This provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
As stated, the applicant made the representations required by subs 501CA(4)(a) on 10 July 2023. This was within 28 days prescribed by regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (the Regulations).
ISSUES
It is conceded (and the Tribunal also finds) that the applicant has a substantial criminal record and does not pass the character test.
As the applicant does not meet the character test the remaining issue is whether there is another reason for the cancellation decision to be revoked.
THE DIRECTION
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Tribunal must comply with the Direction.
Paragraph 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1]
[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
Paragraph 7 of the Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (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.
(3) One or more primary considerations may outweigh other primary considerations.
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
THE PRIMARY CONSIDIERATIONS
The Direction contains five primary considerations, which 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;
(5) expectations of the Australian community.[2]
[2] The Direction 8.
The Direction sets out three other considerations which must be taken into account. These considerations are:
(1)   legal consequences of the decision;
(2)   extent of impediments if removed; and
(3)   impact on Australian business interests.[3]
[3] The Direction 9.
As stated in CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023 FCAFC 138 (CRNL) at [35]:
Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
In CRNL the court also stated that in addition to identifying and considering each of the primary and other considerations mandated by the Direction, the Tribunal is also required to:
…evaluate the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion.[4]
[4] CRNL [37].
The applicant’s offending history
On 21 April 2023, in the Melbourne County Court, the applicant was convicted of the following:
·armed robbery - 43 months imprisonment
·handle/receive/retention stolen goods - 6 months imprisonment, 5 months of sentence concurrent.
·Possess methylamphetamine - 4 months imprisonment, 3 months of sentence concurrent.
·Commit indictable offence whilst on bail - 7 days imprisonment concurrent.
Total 3 years 9 months imprisonment.
On 31 January 2023, in the Ballarat Magistrates Court, the applicant was convicted of the following:
·Breach of Community Corrections Order – community corrections order for 12 months, commencing upon release from prison.
·Contravening a family violence interim intervention order - 2 months imprisonment concurrent.
Total 2 months imprisonment.
On 11 October 2021, in the Ballarat Magistrates Court, the applicant was convicted of the following:
·drive whilst authorisation suspended (2 charges) - aggregate 1 month imprisonment. Community correction order for 12 months, commencing upon release from prison.
·Unlawful assault and contravention of a family violence final intervention order - aggregate 3 months imprisonment. Period to be served part concurrently is 1 month. Community correction order for 12 months, commencing upon release from prison.
·Aggravated burglary- firearm; theft; commit indictable offence whilst on bail – aggregate 6 months imprisonment – cumulative. Community correction order for 12 months, commencing upon release from prison.
·Handle/receive/ retention stolen goods; contravene family violence interim intervention order; driver fail to wear seat belts-moving vehicle; drive whilst authorisation suspended; fail to answer bail; commit indictable offence whilst on bail. Community correction order for 12 months, commencing upon release from prison.
·Fail to give information as to driver - Community correction order for 12 months, commencing upon release from prison. Licence cancelled and disqualified for two years.
·Possess controlled weapons without excuse; possess cannabis; possess drug of dependence (not named). Community correction order for 12 months, commencing upon release from prison.[5]
Total 9 months imprisonment.
[5] HB 48 – 49.
In relation to the convictions of 21 April 2023, they related to offences that occurred in late July 2022, the most serious offence being armed robbery. In her reasons for sentence her honour Judge Dawes sets out a general summary of the facts:
·at the time the applicant was 30 years of age his co-offender was 22 years of age.
·The two victims of the armed robbery worked as cleaners. On 26 July 2022, they drove to work together in one car, arrived at around 6:35 am and parked in the car park. They waited in the car for their workplace to open at the start of their shift.
·At approximately 6:52 am, the applicant drove a car into the car park. The co-accused was seated in the rear passenger seat and there were two other passengers in the car who were not charged.
·The applicant parked in front of the victims’ vehicle. The co-accused asked the victims if they wanted to purchase cannabis or amphetamine which they declined. The applicant then asked if he could have a cigarette, one of the victims complied.
·The applicant drove away and returned around 30 seconds later. He parked directly in front of the victims’ vehicle, blocking it in.
·The applicant and the co-accused then got out of the car. The co-accused carried an axe and a shorn-off shotgun. They both stood alongside the front passenger side of the victims’ vehicle. The co-accused demanded that the victims hand over their mobile phones and provide access to them. This occurred. They subsequently demanded that the victims provide their Internet banking details. One victim acquiesced. Demands were then made for the victims to hand over their wallets which they did. The wallets included a driver’s licence, bank cards and approximately $60 in cash.
·Another cleaner then arrived at the car park. One of the victims jumped out of their car and yelled to call the police. The applicant and the co-accused then left in their car driven by one of the other passengers. One of the victims called 000 and the police soon attended.
·The police executed a search warrant at the applicant’s address, inside a black bag owned by the applicant the police located several items including: ID cards that was stolen from the victims of the armed robbery, two clear plastic bags containing methylamphetamine - weighing a total of 4.54 grams and an ID card and a bank card which had been stolen from a hospital at some time between 11 pm on 25 July and 7:40 am on 26 July 2022.[6]
[6] HB 53-55.
In relation to the offending Dawes J stated:
·The applicant initially denied his involvement in the armed robbery but admitted to possession of the methylamphetamine. The amount of methylamphetamine is in excess of a trafficable quantity, but it was accepted that it was for the applicant’s own use.
·Both the applicant and the co-accused were on bail for other matters at the time of this incident.
·The offence of armed robbery is serious.
·The selection of the victims was a random one.
·The offending was not sophisticated or protracted and the value of the stolen property was insubstantial.
·There was some premeditation for the armed robbery, although not extensive. It was not a sophisticated example of this offence.
·It appears that the motivation for offending was driven by drug addiction.
·There is no dispute that the victims would have been terrified. One victim described that she was ‘under duress the whole time. I was shitting myself’. The other victim said he was angry that the offending occurred.
·The applicant entered a plea of guilty on the second committal mention in January 2023. The fact that pleas of guilty were entered at an early stage was of significant utilitarian benefit which was enhanced by the fact that it was entered during the COVID-19 pandemic. This plea demonstrates an acceptance of responsibility for the offending.[7]
[7] HB 55 – 57.
Dawes J, made the following comments in relation to the applicant’s personal circumstances:
·A custodial sentence of 12 months or more will automatically cancel the applicant’s visa. His future upon release from custody is uncertain. He faced a substantial risk of deportation and that uncertainty would weigh heavily on him particularly as a number of his family members reside in Australia.
·The applicant’s parents, siblings, partner and other family members were present at his plea hearing both in person and on Webex. They remain supportive of him.
·He has been in a relationship with his partner for around 14 years and they have two sons together aged 4 and 10 years.
·In 2019 his relationship broke down which precipitated his use of methylamphetamine. His relationship had been on and off since that time but since incarceration he and his partner had recommitted to each other.
·He resided in Portland for several years and held full-time employment in the forestry industry. In 2020 he failed a drug test at work and lost his job. He moved to Ararat to be closer to his parents. His drug use increased which caused difficulties in his relationship.
·A limited family violence intervention order was taken out by his partner on 11 September 2020. This was later varied to a full order and included his sons is protected persons. His relationship with his partner ended and he became homeless in 2021.
·His criminal history consisted of a prior appearance on 11 October 2021 at the Ballarat Magistrates Court when he pleaded guilty to 17 offences that were committed between February 2020 and August 2021. He received a total effective sentence of 9 months imprisonment and a 12 month community correction order. The offending in July 2022 occurred in breach of the corrections order which is a further aggravating feature.
·Upon his release from custody in January 2022, the conditions of the family violence order were reduced and his relationship with his partner resumed. He initially engaged well with the corrections order and returned to employment in the demolition industry.
·In May 2022 his partner became unwell and was admitted to hospital. He was required to leave his job to care for the children. His capacity to comply with the corrections order was affected. When his partner returned home, his relationship broke down, his drug use resumed and his engagement with negative social peers increased. At the time of the offending in July 2022 he had again become homeless. He was using approximately half a gram of methylamphetamine daily as well as heroin and GHB.
·His partner remained in contact with him and supported him. She anticipated that when he was released from custody he would return to reside with her and their children because he is ‘a very loving father’. Since his incarceration, his partner has developed anxiety and depression. She says that he has expressed remorse for his behaviour and recognises that his time in custody has affected his family “dramatically”.
·In March 2022, his mother was diagnosed with metastatic breast cancer and given a prognosis of 12 – 24 months. She was concerned that she would not survive until he was released. The applicant was aware of his mother’s diagnosis at the time of his offending.
·On 31 January 2023, he pleaded guilty to the contravention of a family violence intervention order and was sentenced to a 2 month term of imprisonment.[8]
[8] HB 63 – 65.

Dawes J accepted that the applicant’s prospects of rehabilitation were reasonable given that his criminal conduct commenced when he was 28 years of age and he was 31 at the time of sentencing. She noted he was most fortunate to maintain the support of his partner and his parents. He has a lengthy history of employment and aims to return to a non-criminogenic lifestyle.[9]
[9] HB 66.
On 31 January 2023, the applicant was convicted of contravening a community correction order and contravening a family violence final intervention order. The circumstances in relation to that offending are outlined in the transcript of proceedings from that date.[10]
·In relation to the breach of the community corrections order, which commenced on 27 January 2022, there was intensive compliance at the outset but there were failures to attend for supervision, treatment and rehabilitation as the matter proceeded.[11]
·On 3 May 2022, the applicant contacted corrections and advised “Look, I’ve got all these pressures”. Those pressures included his mother being diagnosed with breast cancer, his partner being admitted to hospital for over a month, having the sole care of his 2 children aged 12 and 4, taking his children to hospital to see their mother and trying to work but ultimately having to leave work. When his partner returned from hospital they started arguing, he was kicked out of home, he was homeless and returned to drug use, which is what the corrections order was trying to circumvent.
·The Magistrate convicted the applicant for breach of the community correction order, he confirmed the order for 12 months commencing upon the applicant’s release from prison.
·In relation to the breach of the family violence intervention order, the breach comprised telephone contact to his partner in the context of a limited order. It occurred in October 2021, two days after he was sentenced to 9 months in custody for prior offences. He threatened her safety, he threatened the safety of other people who were known to her and important to her.
·The Magistrate convicted the applicant of contravening a family violence final intervention order, he was sentenced to an immediate term of imprisonment of 2 months, to be served concurrently with any other state sentences which may be imposed. At that time, the applicant was in remand with respect to the matters dealt with by Dawes J on 21 April 2023.
[10] HB 74 – 81.
[11] HB 76.
On 11 October 2021, the applicant was convicted of 17 offences committed by him on 10 different dates between February 2020 and July 2021. The sentencing Magistrate noted that the applicant committed aggravated burglary and theft on 18 March 2021 while on bail. He was arrested on 26 April 2021, remanded in custody and bailed on 14 May 2021. After 14 May 2021, he was in the community until he was found driving with drugs in his possession on 22 July 2021. He was remanded again on that date. He served 99 days in pre-sentence detention.[12]
[12] HB 84.
The Magistrate said:
·These are serious matters across all facets of crime: driving offences, bail offences, family violence offences and dishonesty.
·It started with the theft of almost $3000 in solar panels in February 2020,
·In July 2020, you were found by police engaged in a verbal dispute with your [partner] which breached a family violence intervention order.
·In August 2020, you were found driving while suspended.
·In September 2020, you refused to identify a driver of a motor vehicle owned by you that sped away from police.
·In November 2020, you were driving without a seatbelt and driving during a period of suspension.
·In December 2020, there was an episode of family violence, involving an assault and breach of intervention order where you slapped, punched and grabbed your partner by the hair, in the presence of children.
·In January 2021, you were driving while suspended.
·In March 2021, you failed to appear at the Ballarat Court, failed to answer bail and engaged in aggravated burglary and theft of a chainsaw.
·You were arrested on 26 April 2021 and remanded in custody until bailed on 14 May 2021.
·In July 2021 you were found driving, in possession of drugs.
·You have not been charged with committing offences on bail on every occasion you did so. Offending while you are in the community on bail aggravates the seriousness of offending. This offending impacted “our system of justice”. Which imposes obligations; to treat bail as an alternative to being locked up on remand, to not reoffend and to come to court when required. To the extent that you committed the offences while given an opportunity to be in the community itself is a serious offence and it aggravates the seriousness of other offending committed while you were given that opportunity.
·The involvement of children in family violence is a serious matter. It is beyond argument that it destabilises children, it is harmful to them, it assists children to learn exactly the wrong way to go around dealing with family dispute and respecting the role of parents and leaders within families. It is an extremely serious case to aggravate any act of family violence by doing so when children are aware of it.
·Your conduct overall is persistent and the aggravated burglary was planned and premeditated. It’s a serious example of burglary. It is punishable by 25 years of imprisonment.
·You have no criminal prior convictions. I accept that problems with drug abuse have overtaken a number of positive aspects of your life. Drug abuse is not a defence to the offending and it does not excuse the criminality.
·The plea of guilty is interpreted by a sentencing court as acceptance of responsibility and some expression of remorse by you.
·Your very strong employment history, job prospects on release and very strong family support indicate to me that with drug abstinence you are quite likely to be able to be and remain in our community without further offending. These factors suggest that you have reasonable prospects of rehabilitation. However, the office of corrections, using their own standards and their own guidelines to undertake an assessment of you have determined that you are at a high risk of reoffending. You are the only one who’s going to determine whether corrections assessment my assessment is more correct.[13]
[13] HB 84 – 88.
The applicant was sentenced to a period of 9 months imprisonment of which he had already served 99 days. Upon his release he was required to commence and complete a community corrections order. The applicant was advised by the Magistrate that if he breached the community corrections order either by not turning up to appointments when required or by committing any further offences, he would be charged with an offence of breach which is punishable by imprisonment and could result in him being resentenced for the offending for which a corrections order was imposed.
As stated, the applicant was released from prison on 28 January 2022. By May 2022, he was breaching the corrections order and had fallen back into drug use. By July 2022, he committed 4 further offences including armed robbery for which he was sentenced to a total period of 3 years and 9 months imprisonment, which caused his visa to be mandatorily cancelled under s 501(3A) of the Act.
Primary consideration 1: Protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.[14]
[14] The Direction 8.1(1).
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[15]
[15] Ibid 8.1(2).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[16]
[16] Ibid 8.1.1(1)(a).)
Paragraph 8.1.1(1)(a) of the Direction sets out the three categories of offences which are viewed ‘very seriously’ by the Australian Government and the Australian community. The third category is:
acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed.
The applicant has been convicted for acts involving family violence that occurred on 6 July 2020, 13 December 2020 and 13 October 2021. The Tribunal finds that those acts were committed. The police reports refer to other incidents of family violence that were reported to the police and they refer to various intervention orders being put in place. The Tribunal makes no findings in relation to acts of family violence other than those that the applicant was charged and convicted of.
With respect to the offending on 6 July 2020, the sentencing Magistrate said that the applicant was found by police to have engaged in a verbal dispute with his partner which breached a family violence intervention order.[17] According to the police report, the applicant’s partner called her grandmother upset and told her that the applicant could not get his car going so he came inside and started verbally abusing her and telling her that it was her fault. The grandmother could hear yelling and screaming and the kids crying. The police were called and attended.[18]
[17] HB 84.
[18] HB 316 – 317.
With respect to the offending on 13 December 2020, the sentencing Magistrate said that this incident involved an assault and breach of intervention order, where the applicant slapped, punched and grabbed his partner by the hair and did so in the presence of children whilst he was on bail.[19] According to the police report:
·a Family Law Court order was made on 10 December 2024 for the children to live with the applicant’s partner and for the applicant not to contact the children.
·The applicant had been living with them since the order was made however this was due to fear from the applicant’s partner that she would be further assaulted if she enforced this order.
·There are four reported incidents of family violence, one in 2012 and three times in 2020.
·A current and served final family violence IVO with limited conditions existed.
·On 13 December 2020, applicant and his partner had an argument because the applicant thought his partner was messaging other people. He slapped her on the face, he repeatedly punched her in the legs, he grabbed her hair and forced her to the ground. He attempted to take her phone. His partner fought back and sprayed the applicant with fly spray to get away from him. His partner and the children left the house. The applicant received petechiae of the eye and a small bruise to the right leg.
[19] HB 85.
With respect to the offending on 13 October 2021, the sentencing Magistrate said that the applicant contravened a family violence final intervention order that comprised telephone contact in the context of a limited order, which provided him with some flexibility in terms of his relationship with the affected family member [his partner]. He abused that. He threatened her safety. He threatened the safety of other people that were known to her and who were important to her.[20]
[20] HB 81.
In relation to the family violence the evidence of the applicant’s partner is:
·there was a protection order in place which was made in about 2020 due to an argument about messaging other people. The only time they argued was when the applicant was under the influence of drugs and he was never home to help with the kids or other household duties. She would get angry and upset with the applicant and start yelling at him saying things like “you always put others before us”, “you must be sleeping with other girls” and “you don’t deserve us in your life”. All this was said to try to make him stay home but he would just leave anyway.[21]
·The applicant is not a physically violent person. He did slap me once, but I do not believe it was intended because I had just sprayed him in the face with fly spray and he was trying to knock the spray can out of my hand. I sprayed him because I was trying to stop him from leaving, and to try to get him to stay home and help with our kids.[22]
·On one occasion I had been talking to the applicant over the phone. I told him I was seeing someone else. The relationship started in August 2021 and only lasted about a month. The applicant knew the person because his sister has a child with him. I said things to the applicant on purpose that provoked him and made him upset and angry like “I do not want to be with you anymore”. The applicant then said things that sounded like a threat to burn down the house of the person’s mother. That person made me report the threats to the police. I overreacted and over exaggerated what had happened. I said that I was afraid of the applicant even though I wasn’t. The applicant has never been a threatening or scary person and I have never been afraid of him.[23]
·Five months later I tried to withdraw my statement and the protection order so that the applicant and I could get back together. The police told me I would have to go to court if I wanted to do that. I went to court, but they would not withdraw the protection order. The court said we had to have no contact for at least three months.[24]
·A variation to the protection order was made on 15 February 2022 and the protection order itself expired on 17 August 2023.[25]
·The applicant has never said or done anything violent or threatening since that phone call and he has never forced me to do anything against my will nor have I ever felt afraid of him. I have no concerns about him being around me or our children.[26]
[21] Additional Material 2 – Applicant pp 14 – 15.
[22] Ibid p 15.
[23] Ibid.
[24] Ibid.
[25] Additional Material 2 – Applicant p 15
[26] Ibid p 16.
To the extent that the evidence of the applicant’s partner attempts to provide an excuse for the acts of family violence or suggest that the applicant was provoked into committing acts of family violence or accept blame for the acts of family violence, the Tribunal rejects that evidence. Victims cannot be blamed for family violence; they do not provoke acts of family violence and there is no excuse for family violence. The Tribunal is prepared to accept the submission that the relationship between the applicant and his partner has been complex and difficult.[27] The Tribunal accepts the evidence given by the applicant that he has been physically violent with his partner one or two times that he recalls and that one time of being violent is too many times. The Tribunal also accepts the evidence of the applicant that his children saw him being violent and raising his voice with their mother and that is “upsetting and disgusting”.
[27] HB 232.
The Tribunal finds that the applicant has engaged in acts of family violence. These acts are viewed as very serious and as stated by the sentencing Magistrate, the involvement of children in family violence is a very serious matter.[28]
[28] HB 85.
Paragraph 8.1.1(1)(b) of the Direction outlines the range of conduct (without limitation) that is considered to be ‘serious’ by the Australian Government and the Australian community. Whilst the Tribunal accepts that the applicant’s offending does not strictly fall within the range of conduct listed in that paragraph, the Tribunal notes that on 11 October 2021, the sentencing Magistrate described the applicant’s 17 offences committed on 10 different dates between February 2020 and July 2021 as ‘serious matters across all facets of crime’.[29] He specifically mentioned the serious nature of the applicant’s involvement in aggravated burglary and his offending whilst on bail.[30] On 21 April 2023, the sentencing judge referred to the offence of armed robbery as being serious which was aggravated because the applicant was on bail for other matters at the time of the incident and the manner of offending was an additional aggravating feature.[31]
[29] HB 84.
[30] HB 85.
[31] HB 55
The Tribunal finds that the applicant’s offending involving armed robbery, aggravated burglary and offending whilst on bail are considered to be serious.
Paragraph 8.1.1(1)(c) of the direction requires an examination of the sentences imposed on the applicant as a guide for the assessment of his offending.
On 21 April 2023, the applicant was convicted of 4 offences and sentenced to 3 years and 9 months imprisonment. On 31 January 2023, the applicant was convicted of 2 offences and sentenced to 2 months imprisonment. On 11 October 2021, the applicant was convicted of 17 offences and sentenced to 9 months imprisonment.[32]
[32] HB 48 – 49.
The Tribunal accepts the Minister’s submission that sentences involving terms of imprisonment are a last resort in the sentencing hierarchy.[33] Further, that where a court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.[34]
[33] Harrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63].
[34] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
The Tribunal also accepts the applicant’s submission that the sentences imposed for his criminal offending falls within the lower end of the available sentences.[35] However, given that the applicant had not regularly appeared before the courts, has a good employment history and family support, the Tribunal finds that the sentences reflect the serious nature of the applicant’s offending.
[35] HB 232.
Paragraph 8.1.1(1)(d) of the direction refers to the impact of the applicant’s offending on any victims and their family. There was no direct evidence about this.
On 18 March 2021, the applicant committed aggravated burglary and theft of a chainsaw.[36] His counsel described that offence as ‘a rather serious one where he and some people attended a house with a gel blaster that looked like an assault rifle.’ He further submitted ‘Very fortunately, the victim wasn’t aware that they were there until he reviewed CCTV after the event. But nevertheless, very serious incident.’[37]
[36] HB 85.
[37] HB 79.
In relation to the armed robbery that the applicant committed on 26 July 2022, the sentencing judge stated:
There is no dispute that the victims would have been terrified. While there is no evidence that the firearm was operative or loaded, its mere presence must have created a sense of extreme fear. In the statement provided by one of the victims, she described that she was, ‘Under duress the whole time. I was shitting myself.’ The other victim described that when looking back, he is angry that this offending occurred.”[38]
[38] HB 56 – 57.
In relation to family violence, on 11 October 2021 the sentencing Magistrate made the following comments in relation to the involvement of children in family violence. He described it as:
… A very serious matter… Undoubtedly it is beyond argument that it destabilises children. It is harmful to them, and it assists children to learn exactly the wrong way to go around dealing with family dispute and respecting the role of parents and leaders within families.
The Tribunal accepts (as did the applicant) that as a general concept the applicant’s acts of family violence would impact negatively upon his children.

In relation to the applicant’s partner there is some evidence of physical injury that occurred as a result of the incident that occurred on 13 December 2020. The police reported that the applicant received petechiae of the eye and a small bruise to the right leg. There is evidence in the police report that the applicant’s partner was fearful of him when the police attended on 6 July 2020 and 13 December 2020. There is no doubt that her experience of the family violence incidents would have been negative. However, the Tribunal accepts her evidence that the incidents were contributed to by his drug addiction and she does not fear his behaviour in the future.
The applicant’s victims have included members of the public, his partner and his children. He gave evidence that he was upset about how his victims would have felt, they would now be traumatised too and this is the ‘ripple effect’ of his bad decisions. The Tribunal finds that the applicant’s offending would have a negative impact upon his victims.
Paragraph 8.1.1(1)(e) of the Direction looks at the frequency of the applicant’s offending and/or whether there is any trend of increasing seriousness. The applicant’s history of offending is not extensive. It did not commence until after he had been in Australia for some 13 years. His criminal history runs from February 2020 until July 2022. During this period, he has been convicted of 23 offences.
In the S21 Forensic Intervention Services report dated 29 February 2024 conducted by Urban Psychology,[39] under the heading “Violent Lifestyle (VRS) Past Assault of Strangers and Acquaintances (SARA), the psychologist states:
His first conviction was in 2021, aged 30 years for possess controlled weapon. He received further convictions in 2021 for contravene Family Violence Intervention Orders (FIVIO), aggravated burglary - firearm, and unlawful assault. In 2023 he was further convicted of contravene FIVIO and armed robbery. The victims of these offences include his partner, strangers, prisoners and an acquaintance.[40]
[39] HB 463 – 470.
[40] HB 467.
Under the heading “Criminal Attitudes (VRS)” the psychologist notes that the applicant:
Had committed various offences including driving, weapon, violence and substance use offences. He had breached orders and conditions set by the court.[41]
[41] HB 467.
Under the heading “Violence During Institutionalisation (VRS)” the psychologist records:
According to the PIMS incident report (22/11/2023) [the applicant] had several violent incidents recorded whilst in prison. In August 2021, he was involved in assaulting a prisoner over money. In November 2021 it was found with a weapon, a sharpened paint brush. In October 2021 [the applicant] breached a current FVIVO by calling the protected person and using threatening language. In October 2022, he was identified as assaulting another prisoner. In December 2022, he engaged in family violence breaching a current FVIVO by instructing his partner and child to traffick (sic) substances into prison.[42]
[42] HB 468.
The applicant moved to Australia when he was 15 almost 16 years of age. He gave evidence that his parents let him leave New Zealand to live in Australia with family friends because he would be better off in Australia rather than being on the streets of New Zealand possibly getting involved in gang scenes. According to the S22 AOD-C Intervention Report prepared by Forensic Intervention Services dated 12 September 2024,[43] when the applicant arrived in Australia, he started drinking alcohol on the weekends. At the age of 18 he used cannabis on occasions and methamphetamine (ICE). He also used gamma hydroxybutyrate (GHB). The Tribunal accepts that despite his use of drugs from a young age he had a limited criminal history and first appeared in the Ballarat Magistrates Court on 11 October 2021 when he was 30 years of age for the following offences that he committed between February 2020 and July 2021: drive whilst authorisation suspended, unlawful assault, contravene – family violence final intervention order, aggravated burglary – firearm, theft, commit indictable offence whilst on bail, handle/receive/retention stolen goods, contravene – family violence interim intervention order, driver fail wear seatbelt – moving vehicle, drive whilst authorisation suspended, fail to answer bail, commit indictable offence whilst on bail, fail to give information as to driver, possess controlled weapon without excuse, possess cannabis, possess drug dependence. The applicant appeared again in the Ballarat Magistrates Court on 31 January 2023 for contravening a family violence final intervention order and breaching his community corrections order. He appeared in the Melbourne County Court on 21 April 2023 for the index offences of armed robbery, handle/receive/retention stolen goods, possess methylamphetamine, commit indictable offence whilst on bail. Whilst in prison he committed further offences including assault, possession of a weapon, breaching a current FVIVO and instructing his partner and child to traffic substances into the prison.
[43] HB 471 – 480.
The Tribunal finds that the applicant’s offending has been frequent since February 2020 until December 2022 and there has been a trend of increasing seriousness over that time.
Paragraph 8.1.1(1)(f) concerns the cumulative effect of repeated offending. As stated, the applicant committed a considerable number of offences over a period of 2 years and 9 months. His acts of violence have exposed his partner, children and members of the Australian community to a real risk of injury or worse. The applicant’s offending has consumed a significant amount of time and money associated with resources required from the police, corrective services, the courts and the prison system. The Tribunal finds that this adds to the serious nature of the applicant’s offending.
The Tribunal notes that none of the applicant’s offending or other conduct falls within paragraphs 8.1.1(1)(g), (h) and (i). Accordingly, they are given neutral weight in this case.
Having regard to the evidence to which paragraphs 8.1.1 are relevant, the Tribunal considers the applicant’s offending conduct to be very serious and weighs heavily against revoking the cancellation decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must also consider the risk to the Australian community should the applicant commit further offences. Paragraph 8.1.2 of the Direction states, in part:[44]
(1)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 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.
(2)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; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[44] The Direction 8.1(2)(b).
This requires an assessment of the nature of the harm should the applicant engage in further criminal or other serious conduct.[45] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[46] 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.[47]
[45] The Direction 8.1.2(2)(a).
[46] Ibid 8.1.2(2)(b).
[47] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
In order to determine the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[48] The nature of the harm to individual victims or the Australian community resulting from the applicant committing further offences, similar to or identical to those he has already committed would be substantial.
[48] The Direction 8.1.2(2)(a).
If he was to commit armed robbery, aggravated burglary involving a firearm or possession of a controlled weapon, this would place the community at direct physical and potential catastrophic risk. Also, depriving lawful owners of their property causes them material loss. If the applicant was to again perpetrate family violence against his partner or children, such conduct could result in physical, psychological or potentially worse harm. This is in addition to any such harm associated with his previous offending. The commission of further drug offending places himself at significant risk of harm and it places significant pressure on the healthcare system. Motor vehicle offences of the type committed by the applicant waste the community’s policing and court resources.
The Tribunal finds that the harm resulting from the applicant committing further offences of armed robbery, aggravated burglary involving a firearm or family violence is so serious that any risk of its re-commission would be unacceptable to the Australian community.
The applicant submitted that the following factors support his position that there is a low likelihood that he will reoffend:
·His short but significant time period of criminal offending occurred in the context of significant personal and medical issues including: the development of a severe methamphetamine addiction, his mother’s diagnosis of metastatic breast cancer, the breakdown of his long-term relationship and the subsequent loss of employment and homelessness.[49]
·He has expressed clear remorse in relation to his criminal offending. He pleaded guilty to the offences he was charged with.[50]
·On 21 April 2023, the sentencing Judge for his most recent offending, found that his prospects of rehabilitation were reasonable given that his criminal conduct commenced when he was 28 (he was 31 at the time of sentencing), he maintained the support of his partner and parents, he had a lengthy history of employment and he aimed to return to his non-criminogenic lifestyle.[51]
·He has undertaken rehabilitation for his substance use whilst in prison which is evidenced by a letter dated 20 February 2025 from Mr Peter Wroblewski, Area Coordinator Victorian Prisons Intergroup - Alcoholics Anonymous (AA) and Narcotics Anonymous (NA). He consistently and voluntarily attends the AA/NA meetings at Barwon prison.[52]
·In that letter, Mr Wroblewski confirms that the applicant has a genuine commitment to recovery and has gained understanding and insight in relation to his addiction to both alcohol and drugs. He believes the applicant will continue to undertake further rehabilitation and abstinence from alcohol and drugs in the Australian community and he will connect the applicant with AA and NA groups upon his release from prison.[53]
·His family, all of whom have the right to reside in Australia permanently, are significant protective factors.
·He has good prospects of employment upon his release from prison.
·He has reconciled with his partner and they are seeking to create an ongoing and stable environment to raise their children.[54]
[49] HB 234.
[50] HB 234.
[51] HB 235.
[52] HB 245 - 248
[53] HB 235 -236.
[54] HB 237.
The Minister submits that material produced under summons from Corrections Victoria demonstrates that the applicant has taken some limited steps towards rehabilitation during his most recent term of imprisonment, including completing the ‘AOD Foundations’ and ‘Wised Up’ programs in September 2024.
The applicant was interviewed by Forensic Intervention Services on 28 February 2024 to assess his violence risk and to identify future treatment needs. The resulting clinical report concluded that the applicant fell into the moderate risk category both for general and spousal violence recidivism and recommended that the applicant participate in the Talking Change Program and Moderate Intensity Violence Intervention Program.[55] The applicant gave evidence that he recently completed the Moderate Intensity Violence Intervention program.
[55] HB 273.
The Minister contends that the applicant’s evidence is that his offending arose from drug use caused by specific stressors and that he has not demonstrated an ability to abstain from criminal behaviour when met with these risk factors. The applicant was subject to a community corrections order in connection with his 11 October 2021 convictions, which required him to undergo treatment for drug abuse and mental health issues, amongst other programs. The applicant gave evidence that he was unable to fully comply with this order due to his partner’s hospitalisation in May 2022. The applicant informed correctional services of his inability to comply but then continued to commit offences. The Minister contends that the applicant’s subsequent offending demonstrates that there is a significant risk that the applicant will cease to engage with rehabilitation programs outside of a custodial setting and there is a likelihood that this will lead to a resumption of offending.[56]
[56] HB 274.
The Minister notes that an incident report prepared during the applicant’s incarceration in 2022 provides details of discussions between the applicant and his partner regarding visitor screening processes and plans to traffic contraband into Port Philip prison with the assistance of their children. The Minister contends that the applicant’s willingness to engage in this conduct whilst incarcerated demonstrates that his expressions of remorse arise from a desire to remain lawfully within Australia and do not demonstrate any understanding of the impact his offending on the Australian community.[57]
[57] HB 274.
Under the heading “Increased Readiness to Change” in the S22 AOD-C Intervention Report dated 19 September 2024, it was noted that the applicant ‘initiated conversation around how it was unrealistic to be in the action or the maintenance stages of change whilst incarcerated, due to being an artificial environment and it has not been tested in the community’.[58] According to that report, the applicant ‘reported a desire for employment, to maintain positive relationships with his family and to lead a substance free lifestyle upon his release to the community. These appear to be protective factors, although remains untested when he returns to the community’.[59]
[58] HB 475.
[59] HB 475.
It is clear from the evidence that the applicant has had chronic problems with illicit substance abuse. The applicant has, at least to some extent, engaged in rehabilitation whilst in prison. The evidence of two psychologists from Urban Psychology in the S21 Forensic Intervention Services Report is that the applicant was assessed as falling into the moderate-risk category for both general violence and spousal violence recidivism.[60] The state of the evidence leaves the Tribunal with concerns about the applicant’s claimed insight into substance abuse issues and his further claim of remaining substance abuse free if returned to the community. There is evidence from supportive family members and some other people in the applicant’s life who believe that the applicant will remain substance abuse free if returned to the community and that they will support him in his ongoing rehabilitation. However, whilst the Tribunal has no doubts that these people will use their best endeavours to keep the applicant substance abuse free, these supports have not prevented the applicant from offending in the past.
[60] HB 470.
When the applicant was first before the court with respect to the 17 offences he committed between February 2020 and July 2021, the sentencing Magistrate disclosed to the applicant that the office of corrections determined that he was a high risk of reoffending. The Magistrate considered that because of the applicant’s absence of prior convictions, his strong work history and family support, he was a low risk of reoffending. The Magistrate said:
you are the only one who knows that, and you are the one who is going to determine whether corrections assessment or my assessment is more correct or not.
The corrections assessment was accurate. He breached the family violence intervention order against him, two days after he was sentenced to 9 months imprisonment. He was released from prison on 28 January 2022 and by May 2022, when his partner was in hospital, his children were reliant upon him for their care and his mother was diagnosed with metastatic breast cancer, his drug use resumed and his engagement with negative social peers increased.[61] On 26 July 2022 he committed armed robbery. This indictable offence occurred whilst he was on bail and subject to a community corrections order. The following day he was found in possession of stolen goods and methylamphetamine.
[61] HB 65.
On 21 April 2023, the sentencing Judge did accept that the applicant’s prospects of rehabilitation were reasonable. However, based on the evidence the Tribunal finds that the applicant poses a real risk of committing further criminal offences if returned to the Australian community whose safety is regarded by the direction as ‘…the highest priority of the Australian Government’.[62]
[62] The Direction 5.2(2).
Conclusion for Primary Consideration 1
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs heavily against revoking the cancellation decision.
Primary Consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[63]
[63] The Direction 8.2(1).
The evidence is that the applicant was convicted of three contraventions of family violence intervention orders, one contravention included unlawful assault. The episode of family violence that involved an assault and breach of an intervention order occurred on 13 December 2020. According to the sentencing Magistrate, in his sentencing comments made on 11 October 2021, at this time the applicant slapped, punched and grabbed the applicant by the hair and did so in the presence of their children.[64] According to the same Magistrate, another episode that occurred on 6 July 2020 involved a verbal dispute between the applicant and his partner.[65] The police report states that the children were present at the time.[66]
[64] HB 85.
[65] HB 84.
[66] HB 317.
The third conviction relates to an episode that occurred on 13 October 2021 when the applicant called his partner from prison, threatened her safety, the safety of other people who were known to her and important to her.[67]
[67] HB 81.

The evidence contains police reports of two other alleged incidents of family violence that occurred on 29 September 2020 and 18 October 2020 and counsel for the Minister referred those reports to the applicant and asked him whether he recalled the incidents. The applicant was provided with a warning in relation to self-incrimination and declined to answer questions about the incidents. He did say that the police reports were not an accurate reflection of what occurred on those dates. The Tribunal makes no findings in relation to the alleged incidents of 29 September 2020 and 18 October 2020 referred to in the police reports.
Paragraph 8.2(3)(a) requires the Tribunal to consider the frequency of the applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. The applicant has committed three breaches of family violence intervention orders. His offending occurred between 6 July 2020 and 13 October 2021. The Tribunal finds that this is frequent offending but is not satisfied that the applicant’s family violence conduct evidences a trend of increasing seriousness. Of the three breaches, one involved the perpetration of actual violence in the presence of children, another involved a verbal dispute in the presence of children and the third involved threats of a violent nature.
Paragraph 8.2(3)(b) requires consideration of the cumulative effect of repeated acts of family violence. The Tribunal has no doubt that the applicant’s partner would have been frightened at the time the acts of family violence occurred. The evidence of the applicant’s partner is that he has never said or done anything violent or threatening since the phone call of 13 October 2021. He has never forced her to do anything against her will nor has she ever felt afraid of him. She says she has no concerns about him being around her or their children.[68] On behalf of the applicant it was submitted that these acts of family violence occurred in the context of reciprocal bad behaviour. That submission is rejected. There are no circumstances in which family violence can be tolerated in any context. Both the applicant and his partner agreed with that proposition. The applicant gave evidence that he thought that there were one or two times where he had been ‘physical’ with his partner. He said it was upsetting and disgusting that the children saw him being violent and raising his voice with their mum. As stated by the sentencing Magistrate on 11 October 2021, the involvement of children in family violence is a very serious matter, it is beyond argument that it destabilises children, it is harmful to them, it assists them to learn the wrong way to go about dealing with family disputes and respecting the role of parents and leaders within families. He further stated that it is an extremely serious case to aggravate any act of family violence by doing so when children are aware of it.[69] Witnessing the applicant’s family violence would have been traumatising to the children. At a minimum, it would have been frightening to his partner at the time. In addition to these effects on the applicant’s partner and children, the Tribunal also finds that the applicant’s family violence has unnecessarily consumed the resources of the community’s police, courts and prisons. These cumulative effects highlight the very serious nature of the applicant’s family violence conduct.
[68] Additional Material 2 – Applicant p 16.
[69] HB 85.
Paragraph 8.2(3)(c) requires consideration of any rehabilitation achieved by the applicant since his last known act of family violence. Paragraph 8.2(3)(c)(i) requires consideration of the extent to which the applicant accepts responsibility for his family violence related to conduct. In his written statement dated 12 March 2025 he says:
I am aware that I have been violent with [my partner] on a few occasions. I don’t remember clearly at all because I was affected very by ice at that time. I remember one time a little better, because she sprayed me with fly spray in the face, but I don’t really remember much of the details at all.[70]
It is the Tribunal’s view that in this statement the applicant attempts to attribute some of the blame for his family violence upon his partner. Accordingly, the Tribunal is not satisfied that the applicant has accepted full responsibility for his family violence related conduct. In the same statement the applicant also says:
The fact that I have been violent with [my partner] is very upsetting to me. I am very ashamed about it. It wasn’t a normal part of our relationship before I was using drugs.[71]
It is the Tribunal’s view that in this statement the applicant attempts to attribute some of the blame for his family violence conduct on his drug abuse. This is not a defence to family violence and it does not excuse this very serious conduct.
[70] Additional Material 2 – Applicant p 5.
[71] Additional Material 2 – Applicant p 5.
In summary, the Tribunal is not satisfied that the applicant has fully accepted responsibility for his family violence related conduct.
Paragraph 8.2(3)(c)(ii) requires consideration of the extent to which the applicant understands the impact of their behaviour on the abused and any witnesses of that abuse (particularly children). In his oral evidence the applicant said that his drug addiction was causative of his criminal offending and it ‘destructed’ his life and the lives of his loved ones who he was supposed to love and care for. As stated, he also gave evidence that the fact that his children saw him being violent with and raising his voice to their mother was upsetting and disgusting. The Tribunal cautiously finds that the applicant does have some measure of understanding of the impact of his behaviour on his partner and particularly his children who witnessed the abuse.
Paragraph 8.2(3)(c)(iii) requires the Tribunal to identify efforts made by the applicant to address factors which contributed to their conduct. As stated by the sentencing Magistrate on 11 October 2021 the applicant’s drug abuse is at the heart of offending and at the heart of a really bad change of direction in his life.[72] Whilst in prison the applicant has been regularly participating in the AA and NA 12 Step Program of Recovery meetings. Mr Wroblewski conducts those meetings and he provided a reference dated 20 February 2025 in relation to the applicant.[73]
[72] HB 86.
[73] HB 245 -248.
In his reference, Mr Wroblewski says he has discussed with the applicant his past experiences with addiction, the consequences of his offending, his genuine remorse for his offending and the regret he has for the harm caused to his victims and his desire to recover. Mr Wroblewski noted that the applicant had been involved with other programs whilst incarcerated such as Karraneesh, Atlas, A&OD and Anger Management. Mr Wroblewski is of the opinion that the applicant is serious about an abstinence-based recovery and wants to continue his involvement with AA and NA once he leaves prison which he is willing to assist the applicant with.
The Tribunal accepts that the applicant has made some efforts to address the causative factors behind his family violence conduct. However, it remains of some concern to the Tribunal that after the applicant was released from prison after being incarcerated for the first time for nine months, he commenced taking drugs again within approximately three months after his release. He said this occurred because he was faced with certain challenges including his partner becoming ill, her admission to hospital, having to leave work and take care of his children. The Tribunal accepts the respondent’s submission that if the applicant was released into the Australian community and met with similar challenges there is a real risk of him taking drugs again and engaging in family violence and other offending.
Paragraph 8.2(3)(d) requires the Tribunal to look at whether the applicant has reoffended since being formally warned about the consequences of further acts of family violence. The applicant gave evidence that he was not warned about potentially losing his migration status should he engage in further acts of family violence. The Tribunal accepts that evidence and notes that the direction specifically states that the absence of such a warning should not be considered to be in the applicant’s favour.
Conclusion for Primary Consideration 2
This consideration confirms the Tribunal’s view about the very serious nature of the applicant’s family violence conduct. Having regard to all of the various components of paragraph 8.2(3) the Tribunal finds that primary consideration 2 weighs heavily against revoking the cancellation decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of the Direction provides that:
(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 whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
100.In relation to the applicant’s family, in his statement dated 12 March 2025 he gave the following evidence:[74]
[74] Additional Material 2 – Applicant pp 1 and 2.
I have a partner, two kids, parents (mother and father) and four siblings. My immediate family members are listed below:
a. Partner – She is 33 years old. She is an Australian citizen. She is currently living in Ballarat, Victoria. We have been in a relationship for 15 years since 2010.
b. Son – He is 6 years old. He is an Australian citizen and lives with his mother, my partner in Ballarat, Victoria.
c. Son – He is 13 years old. He is an Australian citizen and lives with his mother, my partner in Ballarat, Victoria.
d. Mother – She is 60 years old. She is a New Zealand citizen. She lives in Ararat, Victoria.
e. Father – He is 64 years old. He is a New Zealand citizen. He lives in Ararat, Victoria.
f. Sister – She lives in New Zealand. I have not had contact with her since I’ve been in prison, and I am not very close to her.
g. Brother – He is 40 years old. He is a New Zealand citizen and lives in Hillston, New South Wales. He has 7 children.
h. Brother – He is 35 years old. He is a New Zealand citizen and lives in Ararat, Victoria. He has four children.
i. Sister – She is 22 years old. She is a New Zealand citizen and lives in Ararat, Victoria. She has one child who lives with my parents.
I also have a number of nieces and nephews in Australia:
a. Niece – She is 17 years old and is the daughter of my 40 year old brother.
b. Nephew – He is 20 years old and is the son of my 40 year old brother.
c. Nephew – She is 18 and is the daughter of my 40 year old brother.
d. Niece – She is 13 and is the daughter of my 40 year old brother.
e. Niece – She is 7 or 8 and is the daughter of my 40 year old brother.
f. Nephew – He is 5 or 6 years old. He is the son of my 40 year old brother.
g. Nephew – He is around 3 years old. He is the son of my 40 year old brother.
h. Niece – She is 14 years old. She is the daughter of my 35 year old brother.
i. Nephew– He is 12 years old He is the son my 35 year old brother.
j. Nephew – He is 7 years old. He is the son of my 35 year old brother.
k. Niece – He is 5 years old. She is the daughter of 35 year old brother.
l. Nephew – He is 7 years old. He is the son of my 22 year old sister.
m. Nephew - He is 8 years old. He is the son of my partner’s brother.
I also have a large amount of extended family who live in Australia,
including aunts, uncles, and cousins.
The applicant submits that the strength, nature and duration of his ties to Australia weighs heavily in favour of the revocation of the cancellation decision. The Minister submits that this consideration weighs moderately in favour of revocation.
The evidence contains a number of written statements from family members that are very supportive of him. They variously describe him as a family man, a dedicated father, a good provider for his family, hard-working, respectful, as well as loving and caring to all of his family. They describe his offending as out of character.
The applicant gave evidence that prior to being incarcerated he saw his family often. He said that his parents would visit every second week and when the weather was good, they would stay with him for weeks because they lived near the beach. He worked with his younger brother and saw him regularly. Since he has been in prison, his younger brother calls and visits him regularly, he speaks to his parents 2 to 3 times per week and he has had approximately 4 to 5 zoom calls with his older brother in New South Wales.
The applicant has resided in Australia for over 17 years. He has now resided in Australia longer than he resided in New Zealand. From 2007 until 2019 he contributed positively to the community through his regular employment in various industries including; construction, scaffolding, earthwork, slaughterman, driller/plant operator and forestry plant supervisor.
Whilst there have been periods of separation, he has been in a de facto relationship with his partner for around 15 years. They have two children aged 13 and 6 and they had a close and supportive family in Australia comprising his mother, father, two brothers, one sister and 13 nieces and nephews. He also has a good relationship with his partner’s mother. His strong ties to Australia are of a substantial duration and it would be very difficult for his family if he was required to leave Australia. There is no evidence of the applicant having any social links with anyone outside of his family. In fact, the evidence is that the applicant will attempt to remove himself from the people he was socialising with at the time of his drug use and offending. He regrets ‘hanging around with the wrong people’.[75]
[75] Additional Material 2 – Applicant p 16.
The applicant was born in New Zealand in 1991. He arrived in Australia in 2007. He has resided in Australia for over 17 years. He first started using ice (methamphetamine) after his second child was born in 2018. His first record of offending is in February 2020. He had lived in Australia for nearly 13 years before he began offending. He lost his job in August 2019 after he was drug tested at work. Up until that time he had worked in different areas of employment consistently from 2007 until 2019. The applicant has a strong employment history in Australia and has contributed to the Australian community through his employment.
The applicant submits that there are two key persons who will be significantly negatively affected by a determination not to revoke the cancellation decision, they are the applicant’s partner and his mother.
In her statement dated 12 March 2025,[76] and in her oral evidence the applicant’s partner said that if the applicant’s is removed from Australia, she and their two children will move to New Zealand to be with him but currently there is a lot of uncertainty associated with this including:
[76] Ibid p 17.
·how they will support themselves. The applicant has prospects of employment in Australia upon his release from prison but not in New Zealand. His partner would lose her entitlement to Centrelink benefits.
·finding the right schools and health care for their children. The 13 year old has ADHD and is refusing to go to school. He is hoping to be enrolled in the NDIS and a program through the police which helps pay for paediatrician appointments and school. The 6 year old has ADHD and potential autism spectrum disorder (ASD). He struggles with learning and requires extra support at school.[77]
[77] Additional Material 2 – Applicant pp 10 -11.
·finding the appropriate health care for her medical conditions which include type 1 diabetes, thyroid disease, anxiety and depression.
The applicant’s mother was diagnosed with breast cancer in March 2022. She is undergoing treatment for that and her life expectancy is unknown. The applicant has expressed a desire to remain close to his mother during this period. He will not act in a carer capacity for her. His mother gave evidence that because of her treatment she has not been able to visit the applicant is in prison for about five months. She would not be able to fly to New Zealand to see him. She would like the applicant together with all of her children and grandchildren to be with her at the time she passes away and at her cremation.
Conclusion: Primary Consideration 3
The applicant has strong and extensive ties in Australia to his immediate family but lesser social links to the community. The Tribunal does take into account that the applicant has lived in Australia for most of his life. If removed to New Zealand, his partner and children will move with him, his mother will be significantly adversely impacted and the rest of his family will be moderately negatively impacted. Having considered the components of this consideration the Tribunal finds that the strength, nature and duration of the applicant’s ties to Australia weigh moderately in favour of revoking of the cancellation decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. The Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, 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.
Paragraph 8.4(4) of the Direction 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:[78]
[78] The Direction 8.4(4)(a)-(h).
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

In relation to minor children the applicant has two sons aged 13 and 6. He has 11 nieces and nephews of varying ages from around 3 to almost 18.
In relation to his sons, the evidence is that if the cancellation decision is affirmed, the applicant’s partner and his sons will move to New Zealand to live with him. Accordingly, these children will not be separated from their father. The Minister accepts as does the Tribunal that it is generally in the best interests of minor children to remain with their biological parents.
The evidence is that prior to the applicant’s drug abuse he was a good father and played an active parental role in his children’s lives. He has had periods of separation from their mother, they have witnessed family violence and he has been in prison for lengthy periods since he commenced offending in February 2020. He is currently in prison. He gave evidence that his children visit him in prison on a regular basis and he calls them daily. He has had an ongoing parental relationship with his children since their births in 2012 and 2018. There is no family violence intervention order in place at the moment. If the applicant does not relapse into drug use, he is likely to play a positive role in the lives of his children. They did witness the applicant committing acts of family violence on their mother and that would have had a negative impact upon them. Their mother has fulfilled the main parental role in their lives since birth. If they were separated, she would continue in that role and if they had the necessary financial resources, the children could visit the applicant in New Zealand and they could remain in contact with him via phone or video calls.
The applicant gave evidence that his youngest son recently told him that he did not want to leave Australia because he was enjoying his current school and felt he was getting better with his hand writing and reading. His oldest son is not currently attending school and he is resentful of the applicant because of his criminal conduct.
The Tribunal finds that whilst the applicant’s two children will go with him if the cancellation decision is affirmed, they will be adversely impacted by being separated from their grandparents, their uncles and aunties as well as their cousins. They would also be adversely impacted by the unsettling nature of having to move from Australia to New Zealand. The children can remain in contact with their extended family by way of phone and video calls and they will be entitled to travel back to Australia to see their extended family. This weighs slightly in favour of revoking the cancellation decision.
In relation to the remaining eleven minor children, being the nieces and nephews of the applicant. The written evidence from the applicant’s 35 year old brother is that his four children (biological and step children) love the applicant and even his step sons call the applicant ‘uncle’.[79] In relation to these four minor children, the Tribunal allocates slight weight in favour of revoking the cancellation decision.
[79] HB 261 – 262.
The applicant gave evidence that in 2017 the four youngest children of his 40 year old brother were uplifted and put into the care of himself and his partner for a few months. The applicant and his partner were the primary carers for those children for that period of time. The applicant gave evidence that they now reside in New South Wales and that he does not currently see or speak to his older brother’s five minor children. The Tribunal finds that for a few months in 2017, the applicant played a parental role in the lives of the four youngest children of his 40 year old brother but that has not been enduring and they are not in close contact now. There is no evidence of the applicant maintaining any current contact with his oldest brother’s five minor children. They are now cared for by their parents. In relation to these five minor children, the Tribunal allocates very slight weight in favour of revoking the cancellation decision.
The applicant’s younger sister has a seven year old son who is the applicant’s nephew. He currently resides with the applicant’s parents. He has lived with the applicant’s parents since he was three months old. The applicant’s sister had him when she was fifteen years of age, she was not in a good relationship with the father and she was not able to cope with looking after him. Due to the applicant’s mother being ill, with a limited life expectancy, steps are being taken to help his sister get back on track and get her son back into her care. If the applicant is removed to New Zealand, his mother will be very sad and this is likely to have an adverse impact upon his sister’s son. There is no evidence that the applicant would play a parental or carer’s role in relation to this nephew. In relation to this minor child, the Tribunal allocates slight weight in favour of revoking the cancellation decision.
The applicant has a further nephew, he is the 8 year old child of his partner’s brother. There is no evidence about his relationship with that nephew. The evidence of his partner is that she has four brothers and she is not in contact with any of them.[80] In relation to this minor child, the Tribunal allocates neutral weight.
[80] Additional Material 2 – Applicant p 8.
Conclusion: Primary Consideration 4
Considering the weight attached by the Tribunal to all the minor children as a group, the Tribunal determines that particularly given that the applicant’s two sons will travel to New Zealand to be with the applicant only a slight weight should be allocated to this consideration in favour of revoking the cancellation decision.
Primary Consideration 5: Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[81]
[81] The Direction 8.5(2).
Paragraph 8.5(3) of the Direction 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.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Tribunal has found that the applicant has engaged in very serious breaches of Australian laws and it has found that there is a real risk of the applicant reoffending. Accordingly, ‘as a norm’, the community expects the government to not allow the applicant to remain in Australia.[82]
[82] The Direction 8.5(1).
The applicant has committed serious crimes including acts of family violence. The nature of family violence is such that the Australian community expects that his visa should be cancelled.[83]
[83] Ibid 8.5(2)(a).
The applicant accepts that it is likely the Tribunal will find that this consideration weighs against revocation of the cancellation decision but submits it should be guided by the principles in paragraph 5.2 of the Direction.[84] Taking into account the principles in paragraph 5.2, the Tribunal accepts that the applicant has lived in Australia since he was 15 years old for a period of almost 18 years, which is more than half his life.[85] However, the Tribunal rejects the submission that paragraph 5.2(6) of the Direction would apply and that as a result of these factors the Australian community would afford a higher level of tolerance for the applicant. The Tribunal has found that the nature of the totality of the applicant’s offending is very serious and he poses a real risk of recidivism. Accordingly, Tribunal finds that the Australian community’s expectations are not modified and it does not have a higher than usual tolerance of the applicant’s conduct. As a result, this consideration compels a finding that the Australian government can and should cancel the applicant’s visa.
[84] HB 241.
[85] The Direction 5.2(6).
Conclusion: Primary Consideration 5
The Tribunal finds that the serious nature of the applicant’s offending and his risk of reoffending has not been mitigated and this consideration weighs heavily against revoking the cancellation decision.
Other consideration 1: Legal consequences of decision
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.[86] The applicant does not claim that Australia’s non-refoulment obligations apply in his case.
[86] The Direction 9.1.
There are a range of legal consequences of a decision not to revoke the cancellation of the applicant’s visa. A determination by the Tribunal not to revoke the cancellation decision would mean that he will remain an unlawful non-citizen, he will be liable for removal from Australia as soon as reasonably practicable[87] and he will be precluded from returning to Australia.[88] Once removed, the applicant will be subject to exile from Australia by operation of Special Return Criterion in cl 5001(c) of Schedule 5 to the Regulations which is criterion that must be satisfied in order for the applicant to be granted any visa that he might might reasonably be eligible to apply for and be granted. Further the applicant will no longer be eligible to be granted a special category visa as he is now a “behaviour concern non-citizen.”[89]
[87] Migration Act 1958 (Cth) ss 196(6), 198.
[88] Ibid s 503(1).
[89] Ibid ss 5 and 32(2)(a)(ii).
The Tribunal accepts that these consequences which would result from a determination not to revoke the cancellation decision are intended consequence of the operation of s 501 of the Act and are not a matter of speculation.[90]
[90] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273.
The applicant made no submission in relation to legal consequences and the respondent submits that the Tribunal should have award negligible weight in favour of revocation.
Conclusion: other consideration 1
The Tribunal concludes that the legal consequences carry very slight weight in favour of the revocation of the cancellation decision.
Other consideration 2: Extent of impediments if removed
Paragraph 9.2 of the Direction provides that 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 paragraph 9.2(1)(a), (b) and (c) are:
- The applicant’s age and health;
- Whether there are substantial language or cultural barriers; and
- Any social, medical and/or economic support available to the applicant in their country.
The applicant has no close family in New Zealand. He has been resident in Australia since 2007.[91] His parents moved from New Zealand to Australia in 2008.[92] He has two brothers and one sister who are also residents in Australia. He has an older sister who lives in New Zealand, but he has not had contact with her since he’s been in prison and he is not very close to her.[93]
[91] Additional Material 2 – Applicant p 2.
[92] Ibid p 3.
[93] Ibid p 1.
In the applicant’s written statement, he says:
If I have to go back to New Zealand, I will be devastated. [My partner] and my kids will come with me, but this is hugely disruptive to their lives and their routines, especially for [my oldest son] with his ADHD.
It will also separate [my partner] from the rest of her family and her support network.
It will also be devastating for my mother given her prognosis.[94]
[94] Ibid p 7.
139.The applicant will no doubt face some short term impediments in establishing himself upon returning to New Zealand. His partner and children will go with him, but he will leave behind his extended family whom he is close to. However, there is no evidence that he would face any insurmountable impediments in establishing himself in the context of what is generally available to the citizens of New Zealand. Any impediments faced by the applicant would be temporary. If removed, the applicant could maintain contact with his extended family by phone and video calls. Further, his extended family could visit him in New Zealand. He may resume contact with his older sister is he was living in New Zealand.
As stated in McQuillan and Minister for Immigration and Multicultural Affairs [2025] ARTA 10 at [140] and [141]:
It has been accepted by the Tribunal, and is relevant in this case, that the Applicant would have the same access as other citizens to support in New Zealand and that those supports are likely to be of a similar kind to those available in Australia.
…there are organisations such as Te Pa (formerly known as PARS), which provide assistance to people who are removed from Australia to New Zealand. In this regard, the Tribunal has commented previously, in relation to Te Pa, that ‘[t]here is no reason to think that the Applicant would not receive the assistance that is available if he needed it’. (footnotes omitted).
The applicant is a 33 year old man who is apparently in good physical and mental health. He has a very good working history. As submitted by the Minister, the applicant has transferable skills and work experience which could lead to employment and a productive life in New Zealand.[95] He would not face any language or cultural barriers. He would be able to access the same social, medical and/or economic supports as other citizens of New Zealand.[96]
[95] HB 281.
[96] The Direction 9.2.
The Minister referred to the decision of VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649 at [248] where Deputy President Sosso said:
Australians and New Zealanders both speak the English language and are culturally almost indistinguishable. The legal and political structures of both societies are similar as are the medical and social welfare systems.
The Tribunal finds that any medical or allied health support which the applicant may require to remain drug free, or which the applicant’s partner and children may require for their various medical conditions, would be available to them in New Zealand.
Conclusion: other consideration 2
The Tribunal concludes that whilst the applicant will initially face some impediments if he was removed to New Zealand, they would be temporary and not significant. Accordingly, this consideration weighs very slightly in favour of the revocation of the cancellation decision.
Other consideration 3: Impact on Australian business interests
Paragraph 9.3 of the Direction 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.
There is no evidence of and the applicant has made no submissions concerning the impact on Australian business interests if he was to be removed to New Zealand or in regard to any major project or important service that would be compromised by a determination not to revoke the cancellation decision.
Conclusion: other consideration 3
The Tribunal concludes that there is no impact on Australian business interests and therefore this consideration weighs neutrally in the applicant’s case.
CONCLUSION
The applicant does not pass the character test under s 501(6) of the Act. Consequently, the central issue before the Tribunal is whether there is another reason why the cancellation decision should be revoked, having regard to the primary and other considerations in the Direction.
Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[97]
[97] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[98]
[98] CRNL [23].
In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[99] There is nothing before the Tribunal in this case that causes the Tribunal to find that the general approach should not apply in the applicant’s case.
[99] Ibid [27].
The Tribunal has weighed the primary and other considerations against each other and assigned appropriate weight to each of them, summarised as follows:
·primary consideration 1; protection of the Australian community, weighs heavily against revocation.
·primary consideration 2; whether the applicant engaged in family violence, weighs heavily against revocation.
·primary consideration 3; the strength, nature and duration of ties to Australia, weighs moderately in favour of revocation.
·primary consideration 4; the best interests of minor children, weighs slightly in favour of revocation.
·primary consideration 5; the expectations of the Australian community, weighs heavily against revocation.
·Other consideration 1; the legal consequences of the decision, weighs very slightly in favour of revocation.
·Other consideration 2; the extent of impediments if removed, weighs very slightly in favour of revocation.
·Other consideration 3; impact on Australian business, weighs neutrally in this case.
The Tribunal has placed very heavy weight on the first, second and fifth primary considerations. The Tribunal is satisfied that the heavy weight afforded to the first, second and primary considerations against revocation carries much greater weight than the weight given to the remaining primary and other considerations in favour of revocation.
In summary, having regard to all the primary considerations and other considerations in the Direction, the Tribunal is not satisfied that there is another reason why the cancellation decision should be revoked. As a result, the correct or preferable decision is to affirm the reviewable decision.
DECISION

The decision not to revoke the cancellation of the applicant’s Special Category (Class TY) (subclass 444) visa under section 501CA(4) of the Act is affirmed.

Date(s) of hearing:

17 and 18 March 2025

Applicant:

Solicitors for the Applicant

HVCC

V. Lenton, Lenton Migration Law

Solicitors for the Respondent:

C. Dietrich, Minter Ellison