IIGA and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1918
•29 July 2025
IIGA and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1918 (29 July 2025)
Applicant:James IIGA
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3452
Tribunal: General Member T Eteuati
Place:Brisbane
Date of decision: 29 July 2025
Reasons for decision 29 September 2025
Decision:The reviewable decision is affirmed.
Statement made on 29 September 2025 at 11:59am
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – Reviewable decision affirmed
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
This is an application by James Iiga (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 5 May 2025 to refuse to revoke, under section 501CA(4) of the Migration Act 1958(Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category visa.
The Applicant, a New Zealand citizen, began residing in Australia as a 19-year-old in 1998. He has resided in Australia for about 27 years since. When the Applicant last entered Australia on 18 July 1998, he was granted a Class TY Subclass 444. That is the visa that was mandatorily cancelled on 23 May 2024.
The Applicant’s was first found guilty of an offence in 2000. He was then convicted or found guilty of offences in 2004, 2006, 2011, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2023 and 2024. Those offences included assault, domestic violence offences, offences of dishonesty, drug related offences, contravene direction offences and assault or obstruct police officer.
On 3 May 2024, the Applicant was convicted of 15 comes of stealing, 7 counts of selling after previous conviction and breach of bail condition for which he was sentenced to 12 months imprisonment on each count.
On 23 May 2024, while the Applicant was still in prison, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of over 12 months and was serving a full-time term of imprisonment.
On 17 June 2024 will, the Applicant sought that the cancellation decision be revoked.
On 5 May 2025, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa and the Applicant was notified of that decision on 6 May 2025.
On 9 May 2025, the Applicant applied to the Administrative Review Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 15 and 16 July 2025. On 29 July 2025 , the Tribunal handed down its decision affirming the reviewable decision. Following are the reasons for that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(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.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a) Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test.
The weight of authority is that there is no discretion, in the strict sense, residual or otherwise, to be exercised in determining whether to revoke the cancellation of a visa under section 501CA: see discussion of the relevant authorities including Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 by O’Sullivan J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315.[1] Rather, as North ACJ stated in Gaspar v Minister for Immigration and Border Protection(2016) 153 ALD 337 at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
[1] Cf comments of Derrington J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315 at [55] to [61].
In Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548, Collier J (with whom Logan and Murphy JJ agreed) agreed with this interpretation of section 501CA(4) adding at [32]:
I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and the documents tendered into evidence by the Respondent. The evidence contained in these documents is discussed throughout this decision. The Tribunal has also carefully considered all of the evidence given at the hearing of the matter on 15 and 16 July 2025. The Tribunal has also reviewed the audio recording of the hearing.
DOES THE APPLICANT PASS THE CHARACTER TEST
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
...
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
...
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission criminal history report for the Applicant dated 18 June 2024 shows the following convictions for the Applicant:
Date
Court
Offence
Sentence
3 May 2024
Brisbane Magistrates Court
15 counts of stealing
7 counts of stealing after previous conviction
Breach of bail condition
Conviction recorded
12 months imprisonment
3 counts of evasion offence at night
Conviction recorded: 50 days imprisonment
2 counts of possessing
dangerous drugs
Conviction recorded: 1 Month imprisonment t
3 counts of contravention of domestic violence order (aggravated offence)
2 counts of dangerous operation of a r vehicle
Conviction recorded
9 months imprisonment
Breach of order imposed on 23/12/2023
suspended sentence fully invoked
23 December 2023
Brisbane Magistrates Court
Three counts of failure to appear in accordance with
undertaking
Conviction recorded
7 days imprisonment
29 August 2023
Brisbane Magistrates Court
Contravention of domestic violence order (aggravated offence)
Conviction recorded
3 months imprisonment
Breach of order imposed on 20/04/2023
suspended sentence fully invoked
20 April 2023
Brisbane Magistrates Court
Contravention of domestic violence order
Conviction recorded
3 months imprisonment
15 March 2023
2 counts of contravention of domestic violence order (aggravated offence)
Conviction recorded
1 month imprisonment
15 October 2020
Brisbane Magistrates Court
Contravention of domestic violence order
Conviction recorded
6 months imprisonment
5 December 2019
Brisbane Magistrates Court
Common assault
Conviction recorded
6 months imprisonment
4 counts of stealing
Conviction recorded
5 months imprisonment
Failure to appear in accordance with undertaking
Conviction recorded
3 weeks imprisonment
Commit public nuisance
assault or obstruct police officer
Conviction recorded
2 months imprisonment
Attempted stealing
wilful damage
possessing dangerous drugs
Conviction recorded
4 months imprisonment
Contravention of domestic violence order
Conviction recorded
11 months imprisonment
Contravene direction or requirement
conviction recorded
4 April 2019
Brisbane Magistrates Court
Stealing
conviction recorded community service 50 hours
28 March 2019
Holland Park Magistrates Court
3 counts of stealing
Conviction recorded
6 months imprisonment
Trespass
conviction recorded
5 December 2018
Brisbane Magistrates Court
2 counts of breach of bail condition
Conviction recorded fined $250
16 October 2018
Brisbane Magistrates Court
Stealing
Conviction recorded fined $350
27 September 2018
Holland Park Magistrates court
Breach of probation order imposed on 28/4/2017
Conviction recorded resentenced for original offences:
Stealing
3 months imprisonment
evade fare
2 months imprisonment
evade fare
1 month imprisonment
possess utensils or pipes et cetera that had been used, unlawful possession of suspected stolen property, failure to appear in accordance with undertaking times three, evade fare
on all charges conviction recorded
Stealing
Conviction recorded
4 months imprisonment
Stealing
Conviction recorded
4 months imprisonment
Unauthorised dealing with shop goods
conviction recorded
Unauthorised dealing with shop goods
conviction recorded
16 January 2018
Brisbane Magistrates Court
Three counts of stealing
Failure to appear in accordance with undertaking
Possess dangerous drugs
Conviction recorded fined $440
7 August 2017
Beenleigh Magistrates Court
Contravene direction or requirement
Conviction recorded fined $400
18 July 2017
Brisbane Magistrates Court
Contravene direction or requirement
No conviction recorded fined $400
13 June 2017
Holland Park Magistrates Court
Stealing
Conviction recorded fined $160
Stealing
Conviction recorded fined $250
Stealing
Conviction recorded fined $125
Stealing
Conviction recorded fined $200
28 April 2017
Brisbane Magistrates Court
Possess utensils or pipes et cetera that had been used
Stealing
Unlawful possession of suspected stolen property
3 counts of failure to appear in accordance with undertaking
Conviction recorded nine months probation
Unauthorised dealing with shop goods
3 counts of contravene direction or requirement
Conviction recorded
5 December 2016
Pine Rivers Magistrates Court
Possess dangerous drugs
possess utensils or pipes et cetera for use
No conviction recorded fined $450
29 November 2016
Beenleigh Magistrates Court
contravene direction or requirement
no conviction recorded $750 recognisance good behaviour period 6 months
24 November 2016
Brisbane Magistrates Court
Unauthorised dealing with shop goods
Conviction recorded fined $110
14 September 2015
Beenleigh Magistrates Court
Contravene direction or requirement
Conviction recorded fined $400
Stealing
Conviction recorded fined $500
4 September 2015
Brisbane Magistrates Court
Possessing dangerous drugs
Possess utensils or pipes et cetera for use
possess tainted property
Conviction recorded fined $500
2 December 2014
Beenleigh Magistrates Court
Contravene direction or requirement
no conviction fined $200 recorded
19 September 2014
Brisbane Magistrates Court
Possessing dangerous drugs
Conviction recorded fined $600
9 October 2013
Beenleigh Magistrates Court
Two counts of possess dangerous drugs
fail to properly dispose of needle and syringe
No conviction recorded fined $450
8 January 2013
Taree Local Court
Drive on road et cetera while license suspended
Fined $850
8 April 2011
Beenleigh Magistrates Court
Contravene direction or requirement
No conviction recorded fined $600
25 September 2006
Beenleigh Magistrates Court
Stealing
Two counts of evade fare
Convicted and fined $500
20 April 2006
Brisbane District Court
Breach of intensive correction order imposed on 19/8/04
Resentenced for original offences on all charges
conviction recorded
9 months imprisonment
26 August 2004
Beenleigh Magistrates Court
Possessing dangerous drugs
Convicted
19 August 2004
Brisbane District Court
Accessory after the fact to crimes
Receiving
Conviction recorded
12 months imprisonment to be served by ICO
5 June 2000
Beenleigh Magistrates Court
Possession of knife in a public place
No conviction recorded fined $150
As the Applicant has been sentenced to a term of imprisonment of at least 12 months on 3 May 2024, the Applicant does not pass the character test.
Is there another reason to revoke the mandatory cancellation of the Applicant’s visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act, the Tribunal must comply with a direction made under section 499(1) of the Act: section 499(2A) of the Act. The relevant direction is Direction 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110 or the Direction).
The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. The principles that are found in paragraph 5.2 of the Direction are as follows:
(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 noncitizen poses a measurable 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 noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction provides for other considerations and sets out the following non exhaustive list of other considerations:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of the Direction provides:
(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 at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of the direction provides:
When considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction provides:
Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The nature and seriousness of the Applicant’s conduct to date
When considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The nature and seriousness of the Applicant’s conduct
As can from the Applicant’s criminal record, the Applicant has history of repeated criminal offending. The Applicant was found guilty of offences of offences in 2000, 2004, 2006, 2011, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2023 and 2024. Those offences included assaults, domestic violence offences, offences of dishonesty, drug related offences, contravene direction offences and assault or obstruct police officer. The Applicant has been sentenced to a period of imprisonment on 10 occasions.
The Applicant has been convicted of multiple offences which can be described as violent offending, including against women, and acts of family violence (per paragraph 8.1.1(1)(a)(i)-(iii) of the Direction). Such offences are viewed very seriously by the Australian Government and I consider that this offending is very serious.
On 5 December 2019, the Applicant was convicted of assault and stealing. The relevant facts are that on 1 June 2018, the Applicant approached the victim, a stranger, sitting in his car, and asked for a cigarette. When the victim refused, the Applicant began to rock the car back and forth and kicked the vehicle driver’s side door while yelling, “give me a cigarette”. He then took the victim’s car keys. When the victim grabbed him by the sleeve of his jumper and asked for his keys back, the Applicant punched him in the face and then in the stomach causing the victim to buckle over.
On 5 December 2019, the Applicant was also convicted of Contravention of domestic violence order. That involved the offender verbally abusing his former partner saying he was “going to rape her, bash her head against the wall, called her a slut and started to her that he was going to get her killed”. He was then observed kicking and punching the victim while she was on the ground in the carpark.
On 15 October 2020, the Applicant was convicted of contravention of domestic violence order. On this occasion in September 2019, the Applicant’s former partner was woken by the Applicant verbally abusing her and he then threatened to stomp on her throat and kill her. The Applicant then grabbed hold of the victim’s hair, hit her with an open hand to the face, ripped open her shirt and pushed her backwards into the couch.
Throughout 2022 and 2023 there were numerous contraventions of domestic violence order where the Applicant simply ignored the prohibition on having contact with his former partner, the victim of his domestic violence offences.
The Applicant has also committed an offence against police officers of assault or obstruct police officer. On 5 July 2018, the Applicant was intoxicated and behaving in a disorderly manner. When approached by police he was “immediately aggressive and belligerent” and twice said one of the police officers, “I’ll smash you”. When advised he was under arrest, he said, “shut your fucking hole up. I fucking mean it cunt”. He resisted arrest and multiple officers were required to use physical force to affect the arrest and handcuff him.
There has been a concerning increase in the seriousness of the offending by the Applicant. Up until 2018, it appears that the Applicant’s offending was largely consistent with that of a serious drug addict including repeated drug, property, contravene direction, stealing and other dishonesty offences. From 2018 the Applicant has committed more serious violent offences including assault and multiple breaches of domestic violence orders.
The Tribunal notes that the Applicant has always had difficulty in complying with directions, orders and sentences. He has been resentenced for breach of an intensive correction order and for breach of probation and had suspended sentences fully involved and contravened orders, directions and requirements throughout his time in Australia.
The Applicant also has a lengthy traffic history. In addition to his convictions for two counts of dangerous operation of a motor vehicle he has twelve instances of speeding (two of which were more than 20km/h), disqualified driving, unlicensed driving and driving under the influence of alcohol (0.152 blood alcohol content).
There is no doubt that the Applicant’s violent offending, including family violence offences, is considered very serious by the Australian Government and the Australian community under the Direction and I have found that the violent conduct of the Applicant was very serious.
The Applicant’s other offending is less serious, but the volume and repetition of the offending, including of multiple dishonesty offences, nonetheless makes the balance of the Applicant’s offending serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
46.Paragraph 8.1.2(2) of Direction 110 provides:
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 non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community including female partners, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including potentially actual or grievous bodily harm with potential lifelong physical and mental consequences.
If the Applicant were to engage in criminal conduct similar to his past offences of dishonesty, that would likely continue to deprive a number of Australians of their property or of money.
If the Applicant were to engage in criminal or other serious conduct similar to his past offences and instances of dangerous or unlawful driving, that could result in serious injury or death to other road users.
A psychological report was prepared on 26 November 2019 by a Clinical psychologist for the purposes of sentencing. That psychological report concluded:
If appropriately diagnosed and treated, with appropriate ongoing alcohol abstinence, with ongoing therapeutic support, and psycho social support, he is likely to pose a mild risk of committing further offences in the community, but low risk of violent offending. He does not currently pose a serious or immediate risk of harm to himself or others.
It is noted that despite this assessment the Applicant went on to commit numerous offences including serious violent offences.
The Applicant has undertaken a number of rehabilitative courses over the years, including again recently while the Applicant has been detained. This included an inpatient Salvation Army detox program, individual and group-based drug and alcohol counselling with Drug Arm, Anglicare and Alcoholics Anonymous and psychological counselling.
The Applicant has indicated that he began consuming alcohol and cannabis in his mid-teens and methamphetamine when he was about 19 or 20. He has admitted that he has undertaken extensive rehabilitation courses in the past and that these have not prevented him from consuming drugs and alcohol. The Applicant also admitted that despite receiving a formal warning letter in 2007 that any further offending could result in the cancellation of his visa, he continued offending.
The Applicant gave evidence that his recent period of incarceration and immigration detention, and the recent courses that he has undertaken have had a salutary effect on him such that he will never reoffend.
The Applicant indicated that a strong motivating factor for him was that he has a strong relationship with his 17-year-old son. His evidence was that he wished to continue to have an in-person relationship with his son in Australia. The Applicant son also gave evidence indicating that he had a strong relationship with his father and wished dearly for this father to be able to remain in Australia so that they could continue an in-person relationship here.
During sentencing on 5 December 2019 both the Applicant’s barrister and the Applicant himself directly addressed the Court indicating that there would be no more offending.
The Applicant has been offending for over 20 years despite being warned in 2007 that further offending could result in the cancellation of his visa. He has continued to offend despite repeated rehabilitative courses and promises not to reoffend. He has offended despite having had family support including having children and having been repeatedly punished by the courts. In those circumstances, it is very difficult for the Tribunal to accept the evidence of the Applicant and his family members and acquaintances, that the Applicant is unlikely to reoffend.
It appears to the Tribunal the Applicant has had a serious illicit drug addiction for effectively his whole adult life, has been unable to permanently quit his addiction, despite rehabilitation and having long periods where he has abstained from drugs. In those circumstances, the Tribunal considers that there remains a real risk that the Applicant will return to taking illicit drugs and return to the types of crimes that he has committed in the past.
I find that this primary consideration weighs very heavily against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The Applicant has committed serious acts of family violence and is still currently subject to Apprehended Violence Orders in respect of his former partner and his father, sister and niece.
This primary consideration weighs very heavily against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) provides that in considering the strength, nature and duration of any other ties a non-citizen has to the Australian community having 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 during that time.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant began residing in Australia as a 19-year-old in 1998. He has resided in Australia for about 27 years since.
The Applicant’s father, sister and brother live in Australia. The Applicant also has a large number of extended family members living in Queensland and New South Wales, many of whom have put on statements in support of the Applicant. The Applicant also has two biological children in Australia. The elder is, a 24-year-old daughter who has a one-year-old female child, the Applicant’s granddaughter. The Applicant also has a 17-year-old son.
The Applicant has quite a scattered employment history of mostly casual work. More recently the Applicant was a lift driver.
The Applicant has also undertaken volunteer work with the Salvation Army for a number of years.
The Tribunal is willing to find the Applicant has strong ties to Australia, having lived here for so long and with extensive family ties to Australia. The Applicant’s family situation is complicated by the fact that there is currently a domestic violence order preventing the Applicant from contact with his sister, niece and father without prior written permission. That has arisen because of family violence towards the Applicant’s niece. The Tribunal accepts that the Applicant’s father is elderly and ill and would benefit from the Applicant’s assistance if you are allowed to remain in Australia.
The Tribunal is willing to accept that some of the Applicant’s family, especially his father, his friends and his acquaintances will be upset by the Applicant’s permanent absence from Australia. For many of them, it will mean the end of any in-person contact with the Applicant. The Tribunal accepts that while the Applicant could continue to have meaningful contact with his family in Australia by electronic means, it accepts that this is a poor substitute for in-person contact.
The Tribunal has also, considered the hardship to the Applicant of a non-revocation decision, including his permanent separation from Australia and his family and friends here.
The Tribunal accepts that the Applicant has spent time contributing positively to Australia through his work and community involvement and has ties to Australia.
The Tribunal considers that this primary consideration weighs heavily in favour of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration necessitates a determination to be made about whether non-revocation under section 501CA is, or is not, in the best interests of each child under the age of 18 in Australia affected by the decision.
In considering the best interests of a child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is estranged from his 24-year-old daughter and her infant daughter. He has not met his granddaughter and has not spoken with his daughter in many years. The Tribunal is willing to accept that non-revocation of the Applicant’s visa is not in the best interests of the Applicant’s infant granddaughter as it removes the possibility of the Applicant establishing an in-person relationship with that granddaughter in Australia.
The Applicant is and has always been very close with his 17-year-old son. The Applicant admitted that his son was the child who would be most affected by a decision resulting in the Applicant’s removal from Australia. Indeed, the Applicant expressed that the main reason for this application was so that he and his son could continue an in-person relationship in Australia. The Applicant’s son currently lives with his mother and is employed.
The Tribunal heard evidence from the Applicant’s son at the hearing. The Tribunal accepts that non-revocation of the Applicant’s visa is not in his son’s best interests. The Tribunal accepts that the Applicant and his son have a very close relationship and that this would be greatly affected by the Applicant’s permanent removal from Australia.
While the Tribunal accepts that the Applicant will continue to have a relationship with his son by electronic means, and that the Applicant’s son may visit the Applicant in New Zealand if he has the opportunity and means, the Tribunal accepts that this is no substitute for an in-person relationship in Australia.
The Applicant also has a number of nieces and nephews in Australia. The Applicant has indicated that he has four nephews aged 17, 16, 15 and 6. He also said that he has two nieces who may be under the age of 18.
The Applicant admitted that his relationship with these children was as an uncle and that the Applicant does not have a parental relationship with any of these children. The Applicant also indicated that he has not had contact with any of these children for a number of years. However, the Tribunal is willing to accept that non-revocation of the Applicant’s visa is not in the best interests of any of these children as it will effectively prevent any in-person relationship between the Applicant and the children in Australia.
The Tribunal places moderate weight on this primary consideration in the Applicant’s favour.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Most relevantly in the current case, the Applicant breached the statement of Australian community expectations set out in 8.5(1) of the Direction when he failed to obey Australian laws. By engaging in very serious crimes in breach of this expectation, paragraph 8.5(1) expresses the Australian community expectation, as a norm, that Government not allow the Applicant to remain in Australia.
The Tribunal notes that the wording of the Direction does not appear to allow for any subjective evaluation by the Tribunal of what the expectations of the Australian community are. Rather, the Government has provided a statement of policy in relation to community expectations which decision-makers must comply with and consider as a primary consideration.
The weight to be given to this primary consideration is of course a matter for the Tribunal, and I place weight on this consideration primarily by considering the nature and seriousness of the Applicant’s offending which informs severity of the breach of the community expectation to obey the law: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344 per curium at [53] to [64]. I will of course consider the relative weight of all considerations at the conclusion of my decision-making process.
The Tribunal places heavy weight on this primary consideration in favour of non-revocation.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
It may well be, that this other consideration is only strictly relevant where there is a protection finding in an Applicant’s favour or when there is an issue as to whether international non-refoulement obligations are owed in respect of an Applicant. No such issues arise in this case and in that sense, it is not relevant.
However, I have also considered the legal consequences of affirming the non-revocation decision on the Applicant and his family. If the decision is affirmed, it will result in the Applicant remaining an unlawful non-citizen and remaining in immigration detention until he is removed from Australia or regains his visa or in the very unlikely circumstance that he is granted a visa or if circumstances become such that there is no real prospect of removal of the Applicant from Australia becoming practicable in the reasonably foreseeable future (see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005).
The Applicant’s removal from Australia having had his visa cancelled under section 501, will almost inevitably mean that he will never be able to return to Australia (because of the operation of special return criterion 5001 in Schedule 5 to the Migration Regulations 1994). I have considered these legal consequences of affirming the non-revocation decision. I have also considered the practical consequences for the Applicant, his family and others of affirming the decision. I consider that the fact that the Applicant will, in all likelihood, be removed from Australia, never to return to Australia and that he could be detained for some time in immigration detention before removal, weigh in the Applicant’s favour and I give this consideration low weight.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country
The Applicant is 46 years of age and does not have any significant health conditions other than that he previously had an addiction to illicit drugs including methamphetamine. The Applicant also has gout and some back pain. The Tribunal accepts that having previously been addicted to drugs would present an impediment to establishing himself in New Zealand as there is a real chance that the Applicant could revert to drugtaking and crime with the consequential difficulties which that may entail including to his health and wellbeing and the chance of being imprisoned.
The Applicant was born in New Zealand and lived there until he was 19 years old. There is no evidence that there would be any substantial language or cultural barriers on return to New Zealand.
There is no evidence that the Applicant would not be able to access any government medical or economic support available to other New Zealand citizens.
The Tribunal accepts that the Applicant will not have any significant family support tin New Zealand.
The Applicant has been employed for some of his time in Australia including more recently a forklift operator. However, the Applicant indicated that he has had difficulties in maintaining employment in Australia. This is not surprising given the Applicant’s significant drug addiction in the past. The Tribunal accepts that the Applicant may also find it difficult to find employment in New Zealand especially if he returns to illicit drugs.
The Tribunal acknowledges that it would be difficult for the Applicant to re-establish himself in New Zealand and weighs this consideration moderately in his favour.
Other Consideration (c): Impact on Australian business interests
This consideration is not relevant.
Conclusion: Is there another reason to revoke the cancellation of the Applicant’s visa?
The Tribunal has found that the primary considerations of the protection of the Australian community and family violence weigh very heavily against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there could be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs heavily against revocation of visa cancellation.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia (and hardship to the Applicant) weighs in favour of revocation of the cancellation decision and attributed heavy weight to this consideration.
The Tribunal has found that the primary consideration of the best interests of minor children, weighs moderately in favour of revocation of the cancellation decision.
The Tribunal has found that while there are no protection issues which arise, the consequences of affirming the decision especially regarding the Applicant’s permanent removal from Australia and possible prolonged detention before that weigh in the Applicant’s favour as does the consideration of the extent of impediments if removed. The former is given low weight and the later moderate weight.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 5.2 of the Direction, I have decided that the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community outweigh all of the considerations which weigh in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the original decision should be revoked.
The Tribunal has decided to affirm the Minister’s delegate’s decision not to revoke the cancellation of the Applicant’s visa. The Tribunal considers that this is the correct decision in this case.
DECISION
The Tribunal affirms the reviewable decision.
Heard on: 15 and 16 July 2025 Applicant: Self-represented Advocate for the Respondent: Jarvis Kirstenfeldt Solicitors for the Respondent: Sparke Helmore Lawyers
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