Ingley and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2057

Ingley and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2057 (14 October 2025)
Applicant/s:  Kenneth Steven Ingley
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4422

Tribunal:Senior Member S Thode
Place:Sydney
Date:14 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the applicant's visa is revoked.

...............[SGD].........................................................
Senior Member S Thode
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Special Category (Temporary) (Class TY) (Subclass 444) visa – s 501CA(4) of the Migration Act 1958 (Cth) – where applicant convicted of possession of drugs with intent to sell or supply cannabis – low risk of reoffending established – strength, nature and duration of ties to Australia established – best interests of minor children in Australia established – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
FHHM v Minister for Immigration [2022] FCAFC 19
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration [2018] FCA 594
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

Mr Kenneth Steven Ingley (the applicant) seeks review of a decision by a delegate of the Minister for Immigration and Citizenship (the respondent) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (Subclass 444) visa (the visa).
The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act.
The application was heard on 2 and 3 October 2025. The applicant, who was unrepresented, appeared in the Perth Registry rooms. Ms S Black of Sparke Helmore Lawyers appeared for the respondent. The applicant and his lay witnesses gave evidence.
For the following reasons the Tribunal has decided to set aside the decision under review.
BACKGROUND
Applicant’s background
The applicant is a 46 year old New Zealand citizen who arrived in Australia in 2008 at age 29 with his wife and children. The applicant has 8 natural children and is the father of two stepchildren from his wife’s previous relationship. The applicant has three grandchildren. Six of his natural children are minors, as are his three grandchildren. Prior to his incarceration for the offence of “possession of drugs with intent to sell or supply (cannabis)” he and his wife were the primary caregivers for all six minor children and the applicant was the sole breadwinner for the family of 15 who reside in Perth.
The applicant’s offending history
On 3 October 2024, the District Court of WA at Perth convicted the applicant of the offences of possession of drugs with intent to sell or supply (cannabis) and cultivate a prohibited plant with intent to sell or supply and sentenced him to two periods of imprisonment to be served concurrently, being 15 months and 17 months. He was eligible for parole after having served half the term of imprisonment on 17 June 2025.[1]
[1] Joint Hearing Book (HB) p. HB 59
On 17 June 2025, at the conclusion of his period of imprisonment, the applicant was taken into detention and transferred to the Perth Immigration Detention Centre, Redcliff, where he remains.
Visa cancellation and review
On 29 October 2024 the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. On 27 November 2024 the applicant made representations seeking revocation of the cancellation.
On 21 July 2025 a delegate of the respondent made a decision not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4), and he was notified of the decision on the same day.
On 28 July 2025 the applicant applied to the Tribunal seeking merits review of the delegate’s decision.
JURISDICTION
The Tribunal has jurisdiction to review a decision under s 501(1), where the application for review is lodged within nine days after the decision is notified: s 500(6B). In this case, the application for review of that decision was lodged on 28 July 2025, seven days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.
EVIDENCE AND SUBMISSIONS
In deciding in relation to the application, the Tribunal has considered:
(a)The applicant’s bundle of documents including his submissions in chief dated 25 August 2025, and submissions in response to the respondent’s statement of facts issues and contentions dated 22 September 2025;
(b)The respondent’s bundle of documents;
(c)The “G documents”;
(d)The hearing bundle referred to as Joint Tender Bundle (JTB);
(e)The oral evidence given by the applicant and his witnesses; and
(f)The closing oral submissions made on behalf of the parties.
The following witness statements have been provided on behalf of the applicant:
·His employer, Dilma Lopez, Director, Lopez Transport Enterprises Pty Ltd dated 8 January 2025
·His employer, Brad Scanian, Fleet Controller McMahon Burnett Transport dated 30 September 2024
·His son in law, Alister Ryder, dated 7 January 2025
·His wife, Salena Wiwarena, undated
·His daughter, Nataasjaha Tipuna, dated 12 December 2024 and 25 August 2025
·His daughter, Awhina Ingley, dated 12 December 2024 and 25 August 2025
·His son, KJI (16) dated 7 January 2025
·His son, KI, (15) dated 8 January 2025
·His daughter, KI, (13) dated 8 January 2025
·His mother, Taku Reta Tautoko, dated 8 January 2025
·His relative, Parekura Walker dated 25 April 2025
·His cousin, Cumorah Walker dated 25 April 2025 and 25 August 2025
Relevant parts of the oral evidence and submissions are considered below.
LEGISLATIVE FRAMEWORK
Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:
(a)Section 501(2) states that the Minister may cancel a visa if the person does not satisfy the Minister that the person passes the character test.
(b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and
(c)Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
In this case, “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction) applies.
For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
These principles 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must take into account the relevant primary and other considerations set out in the Direction.
Section 7.1 of the Direction states that appropriate weight be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight over ‘other’ considerations.
The primary considerations are set out in section 8 of the Direction:
(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.
A non-exclusive list of other considerations is set out in section 9 of the Direction. These are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and
(3) The impact on Australian business interest.
FHHM v Minister for Immigration[2] considered [8.4] of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ (Derrington J) agreeing referred to remarks made by Colvin J in Suleiman v Minister for Immigration[3] stated at [34] that “particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one of more of the primary considerations”.
[2] [2022] FCAFC 19.
[3] [2018] FCA 594 at [23].
Issue
As noted above, s 501(6)(a) of the Act states that a person does not pass the character test for the purposes of s 501(1) if the person has a substantial criminal record, which relevantly to this application is defined in s 501(7)(c) as a term of imprisonment of 12 months or more.
The applicant concedes that he does not pass the character test.
Accordingly, the determinative issue for the Tribunal is whether there is another reason under s 501CA(4)(b)(ii) of the Act why the original decision should be revoked. In determining whether there is ‘another reason’, the Tribunal must have regard to the primary and other considerations set out in Direction 110.
CONSIDERATION
Primary considerations
Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community, the Tribunal has had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. The Tribunal has also considered 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.
As required by 8.1(2) of the Direction the Tribunal has considered:
(a)the nature and seriousness of the applicant’s conduct; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
The Tribunal has first considered the nature and seriousness of the applicant’s conduct being the offences outlined above. The circumstances of the offending are that, on 21 December 2023, police executed a search warrant at the applicant's house and seized cannabis weighing 4.77 kilograms, as well as drug distribution paraphernalia. On the same day, the applicant took police to a separate address to which the applicant had keys, and the police found a sophisticated hydroponic growing set-up with 158 active growing plants and sophisticated drug cultivation equipment.
The Minister contends that the applicant's offending should be viewed as very serious, noting that the matters set out in paragraph 8.1.1(1)(a) of Direction 110 are non-exhaustive. The sentencing judge also highlighted the seriousness of the index offending, stating that "Courts take a very serious view of the threat of the cannabis trade and the risk of a correlation between the use of cannabis and mental illness and a progression to harder drugs". Whilst the court observed that the applicant's involvement in the hydroponic operation was at the lower end of the syndicate, the court nonetheless sentenced the applicant to a significant period of incarceration for his involvement.[4]
[4] Respondent’s SFIC at paragraphs 10-21.
The Tribunal notes the respondent’s submissions. In the assessment of the nature and seriousness of the offending, the Tribunal also notes that the applicant was not considered to be the head of the operation. He took instructions from a person the court referred to as “the employer” who instructed the applicant to tend to the plants in exchange of the promise of accommodation for his family. The applicant stated to the Tribunal that he was under extreme housing pressure. He stated that he was, on a single occasion, instructed to store the drugs at his premises. He stored them in a storage shed at the rear of the premises for a period of six hours before the property was raided. He did not receive payment nor was his rent reduced, as had been held out to him.
The offender was sentenced to imprisonment of 17 months. The evidence states “Mr Ingley has no [other] criminal history in Western Australia”.[5]
[5] JTB HB p.171.
The sentencing remarks of the District Court include the following relevant factors:
·The applicant’s psychological report [which was not tendered before the Tribunal] stated that the applicant denied any intention to engage in drug dealing, and that he had agreed to a request to store the drugs at his house. The illegal behaviour was financially motivated by the promise that the employer would buy a house which would be suitable for members of the family to live in at a reduced rent and that was the financial aspect to the offending.
·The court accepted that the applicant was not the actual owner of the cannabis. He had agreed to store the drugs for future financial or monetary reward.
·He was promised by someone higher up in the syndicate that a home would be purchased for the applicant and his family to live in, but at the time of arrest he had received no financial reward of any kind for the services that he supplied.
·The court categorised the applicant’s involvement in the operation as being at the lower end of the syndicate.
·The court considered mitigating circumstances: the plea of guilty at the earliest opportunity for which the applicant received a discount of 25%, childhood trauma, exposure to family violence, excessive substance use, as well as the experience of emotional and physical abuse and neglect.
·The court considered the applicant’s 22 year relationship with his wife as a mitigating factor relevant to the issue of sentencing, as well as the fact that the couple have 10 children and three grandchildren. The court considered the applicant is “the head of a very significant household”.
·Throughout his adult life, the applicant displayed a strong work ethic.
There were no aggravating facts noted in the sentencing remarks and the applicant entered guilty pleas. His expression of remorse was accepted by the court. Overall, given the significant amount of drugs located at the applicant’s premises, and the applicant’s role in the operation and the seriousness with which his offending was viewed by the court, the Tribunal considers the applicant’s offending serious.
The applicant has also been convicted of a number of offences in New Zealand, including a domestic violence assault, common assault, traffic offences, a drug offence and a hinder/obstruct police offence. As there was some uncertainty about the offender’s New Zealand record, the respondent withdrew reliance on the charge Male Assaults Female (Manually) dated 7 December 2012. Further, the respondent, correctly with respect, withdrew reliance on the charge entitled “Person Under 20 Exceeded Breath Alcohol Limit Blood Breath” dated 23 October 1996 because the offence occurred while the applicant was a minor.
The remaining relevant offences for which the applicant has been convicted in New Zealand are also classified as offences in Australia: paragraph 8.1.1(1)(i) of Direction 110. The respondent submitted in its SFIC that the applicant's offending history in New Zealand should be viewed by the Tribunal as very serious, because the offences include an act of family violence against a woman and a crime against a government official in the performance of their duties: paragraph 8.1.1(1)(a) and (b) of Direction 110.
The Tribunal has considered the cross-examination of the applicant in respect of the family violence offending described as Common Assault (Domestic) (Manually).[6] The offence was reported on 15 July 2005 in Hutt Central, New Zealand. The applicant stated that it was 20 years ago and whilst he does not recall the circumstances, he does not deny the offence occurred. He expressed remorse. The Tribunal accepts the respondent’s submission that the offence should be taken as having occurred, because a conviction was recorded. The applicant was issued a fine. The stated offence was described in a case summary report as follows:
Couple involved in argument, Ingley physically tries to prevent her getting inside. The defendant had been drinking heavily and began abusing the victim [at about 6.45am]. The abuse continued until about 8.15am when the victim and the defendant were in a vehicle travelling to Lower Hutt to take the victim’s children to childcare. The victim was driving and decided to go to Lower Hutt police station to complain about the defendant’s behaviour. When they arrived at the police station the defendant tried to prevent the victim getting out of the vehicle by holding her down in her seat. The children began crying and screaming and the defendant told the victim to get out of the car. The victim got out of the car and began walking to the Police station however the defendant kept walking in front of her to prevent her getting inside. The victim opened the back door of the car to get the children out, but the defendant slammed the door. He grabbed the victim by both shoulders and spun her around. Police intervened and arrested the defendant. “
[6] JTB HB p.235

In relation to the 2020 family violence offence, perpetrated in Western Australia, the relevant documents state that officers attended a domestic dispute. The domestic dispute was reported by the couple’s 15 year old son. The incident was described as having occurred after the applicant and Mrs Wiwarena arrived home from a house party, and the applicant began punching the victim to her face, after being accused of attracting female attention. The police issued a 48 hour restraining order. The attending officers noted “no injuries seen to the victim’s face” and recorded Mrs Wiwarena stating she “may have bitten the offender to get him to stop punching her”. The applicant said “that the victim pulled his hair and he tried to protect himself to get the victim off him”. The details of the Restraining Order were not to communicate, approach or otherwise contact his wife. He stayed at a relative’s house and returned to the matrimonial residence 48 hours later. In the section entitled “is the abuse happening more often” the attending officers wrote “nil”. In the section entitled “ is the victim frightened” the officers wrote “nil”.
No conviction was recorded in respect of this offence.
The Tribunal is satisfied that the applicant was convicted for a single offence of family violence more than 20 years ago and that he perpetrated a further family violence offence in respect of which he was issued with a 48 hour restraining order in 2020. Having regard to the details concerning each of the family violence offences, and although they occurred 20 years apart, the Tribunal considers the family violence offences very serious.
The Minister contends that the applicant failed to declare his criminal offending in two incoming passenger cards. The applicant stated in evidence to the Tribunal that he thought the authorities were already aware of his offending because he had declared it when he first arrived in Australia in 2008 and he was afraid of being subjected to many hours of interrogation as he had been upon his initial arrival if he declared his criminal record at subsequent arrivals. The Tribunal concurs with the respondent’s submission that the explanation for his failure to declare his criminal record at subsequent arrivals is unsatisfactory.
Separately and cumulatively the Tribunal considers the applicant’s offending very serious.
Risk to the Australian community – 8.1.2
In considering the need to protect the Australian community from harm, the Tribunal has had 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. In this regard, the Tribunal notes 8.1.2(1), which states that “[s]ome 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”.
The applicant’s position is that the risk of the applicant re-offending is low. In relation to this, the applicant gave evidence to the Tribunal that the applicant is remorseful, aware of his alcohol abuse problems and intends to seek treatment for those issues if released into the community. The applicant gave compelling evidence that he has no intention to mix with former associates and that he has no intention to return to the work place that put him into contact with his ‘employer’, the head of the drug syndicate. The evidence is supportive of a finding that the applicant has strong protective measures, being his family and continued assured employment as a truck driver in the event he is released into the community.
Particularly relevant in respect of the likelihood of the applicant re-offending are the applicant’s medical records of the Parole in reach Program (PiP) of the Government of Western Australia Department of Justice Offender Services.
In relation to this issue, the Tribunal has considered:
·The applicant’s statements and submissions contained in the Personal Circumstances Form dated 25 January 2025, 27 March 2025, 12 December 2024;
·Statement by Selena Wiwarena, dated 12 December 2024;
·Statement by KJI (16), dated 12 December 2024;
·Statement by Nataashaja Tipuna, dated 12 December 2024;
·Statement by Awhina Ingley dated 12 December 2024;
·Statement of KI (11), dated 8 January 2025;
·Statement of KI (6), dated 8 January 2025;
·Statement of Lovey Punitia, dated 13 January 2025;
·Statement of Alister Ryder, dated 7 January 2025;
·Statement of Parekura Walker, dated 25 April 2025;
·Statement of Cumorah Walker, dated 25 April 2025;
·Statement of Dilma Lopez, employer, dated 30 September 2024;
·The Parole Review Report dated 3 April 2025;
·The Parole in reach Program (PiP) Assessment Report dated 10 December 2024;
·The Parole in Reach program (PiP) Treatment and Risk Management TRM Plan(s) dated 12 June 2025;
·The Level of Service Risk Need Responsivity dated 9 December 2024;
·The oral evidence given by the applicant, and all witnesses given at the hearing;
The applicant and his witnesses gave evidence in a frank and forthright manner without prevarication or exaggeration.
Relevant to the issue of the applicant’s chance of reoffending, is the applicant’s wife’s and children’s evidence which is in summary, that the applicant acted out of character and has shown deep remorse. The family is of the view that he has been rehabilitated and that he is not likely to reoffend. Two issues are of particular relevance. First, the applicant has had some insight into his alcohol abuse and he no longer drinks. He says that he can communicate better with his children and has a clarity of insight he did not have before. There is no evidence of any other relevant substance abuse issues. He abused methamphetamine when he was younger. Second, he has substantial family and employment support which provides significant protective factors. All witnesses confirm that the applicant will be housed and financially supported until he is able to obtain employment, most likely as a truck driver with substantial income earning capability. He states, and his family confirm, that as soon as practicable, the applicant, his wife and six minor children and two of his grandchildren plan to find accommodation to enable the family to live together again. It is Mrs Wiwarena evidence that, following a mental health episode, she has returned to Australia to once again care for her children which she states she can only do in the presence of and with the income support of the applicant. His employer asserts that a position will be waiting for him should he be released into the community.
Taking each of the Parole in reach Program Assessment reports in turn, the applicant is reported as having no prior criminal history in Australia, and no criminal history relevant to the index offending in New Zealand. The initial 10 December 2024 report describes the applicant’s Risk Need Profile as ‘High’ in terms of leisure and recreational pursuits and ‘Very High’ in terms of the companions with whom he associated. The applicant gave evidence under cross-examination that the association with criminals occurred in his former work place, (not the employer who offers him a position as a truck driver, should he be released into the community) and that he has had no contact with members of the drug syndicate since his arrest.
In that initial report contained in the Western Australian Department of Justice Parole assessments, the Parole in Reach report states that the applicant’s offending behaviour is likely as a result of his “entrenched substance use patterns, pro-criminal attitudes and justifications, compounded by his difficulties in managing hardships and propensity to engage in risk taking behaviours.” The parole authority also reports that “Mr Ingley’s offending behaviour occurred in the context of drug use. He is deemed suitable for the inclusion of the ‘Parole in reach Program (PiP) Alcohol and other drugs’. The reports states “He presented as motivated to engage in the treatment intervention and understood the attendance requirements. Should he be granted parole, Mr Ingley intends to reside in Spearwood and has access to transport to attend the community group”.[7]
[7] JTB HB p.174
In the Parol in reach Program (PiP) dated 12 June 2025, it is reported that the applicant attended 16 group and two individual counselling sessions and was deemed eligible for parole. A noticeable shift in his attitude to alcohol was observed. He described motivation for maintaining sobriety and he demonstrated a proactive and structured approach as reported. He had no institutional misconduct report.
In terms of the applicant’s ongoing rehabilitation and future treatment the report of 3 April 2023 states that he has participated in rehabilitative group sessions and intends to continue with protective psychological counselling if released into the community. The applicant states that he will be subject to the reporting conditions imposed upon him by the Parole Board and that this will continue for some time into the future. The applicant was deemed suitable for release into the community and was recommended for continued attendance in MRT programme upon his release.[8]
[8] JTB HB p.179
The applicant has also given compelling evidence that he has engaged in psychological counselling of his own volition, seeking treatment in immigration detention, although counselling is difficult to access. He sought counselling on four separate occasions. The medical records indicate that the applicant would ‘like the opportunity to see the psychologist. Feels overwhelmed and anxious most days. Does not want medications and seeking the opportunity for talk therapy’.[9]
[9] Full Medical record, Immigration detention, tendered by respondent after hearing on 8 October 2025.
In his overall assessment of the Risk of Reoffending the report of 3 April 2024 stated that “Prison Version (RoR-PV) was administered by Hakea Treatment Assessor. Mr Ingley is not recommended for criminogenic programs at this time due to low risk of reoffending”.
Conclusion in relation to protection of the Australian community
It is not in dispute that the offence of possession of drugs with intent to sell or supply (cannabis) and cultivate a prohibited plant with intent to sell or supply is serious. There is no doubt that should the applicant again engage in conduct similar to the offence or in other serious conduct, the resulting harm to an individual and more broadly to the Australian community is likely to have serious consequences.
The Tribunal has considered all of the applicant’s offending, as set out above. In relation to the risk of the applicant re-offending, the Tribunal accepts that the applicant feels remorse for the crimes he committed and that he is very intent on not re-offending. The Tribunal accepts that in terms of the index offence, this was a singular offence and that he has gained insight since he was incarcerated and that his state of mind in 2025 is not the same as his state of mind was in 2023. The court commended on the fact that the applicant was not the head of the syndicate and although he was motivated by financial gain, he had received no remuneration at the time of sentencing. The Tribunal accepts that the applicant currently does not drink alcohol or take drugs and no longer has contact with co-offenders or former employers who were a bad influence on him and has a positive attitude towards receiving ongoing treatment through the parole authorities if released into the community. The Tribunal further accepts that the applicant has family support, including from his extended family and adult children, who are committed to supporting him until he himself is able to obtain accommodation and employment.
There is evidence before the Tribunal that the extreme housing stress that caused the applicant to offend, has somewhat lessened because he would not return to being the sole breadwinner for a family of 15. His elder children have obtained accommodation of their own and the applicant will only be responsible to provide accommodation and food for his six minor children, easing some of the substantial burden that led to his offending. The Tribunal also accepts the evidence of Mrs Wiwarena and eldest daughter Nataashaja that the applicant is committed to reunite his family and to provide for his dependants and that he will be able to do so because he has realistic prospects of regaining his position as a truck driver. Based on the evidence given by the applicant, his family as well as the medical records produced by the Prison Version (ROR-PV), the Tribunal accepts that the applicant’s commitment to rehabilitation and to not re-offending is genuine and not reactive to the applicant’s current visa status. The Tribunal accepts the opinion expressed by the PiP reports that the risk of the applicant reoffending is low.
In assessing the likelihood of the applicant engaging in further criminal or other serious conduct, 8.1.2(2) of the Direction requires the Tribunal to take into account not only information and evidence on the risk of the applicant re-offending, but also evidence of rehabilitation achieved by the time of the decision. In doing so, the Tribunal is to give weight to time spent in the community since the applicant’s most recent offence. In this case, the applicant was transported to immigration detention after being released from prison. He was not tested in the community. However for the reasons set out above, the Tribunal finds that the applicant has sought psychological support whilst in immigration detention and is willing to continue counselling, initially under the supervision of the Parole Board, should he be released into the community. He requires ongoing counselling and he is willing to pursue it, with a recommendation by the parole authorities that he continue MRT community treatment. The applicant has demonstrated that the chance of recidivism is low and that he is drug free, currently alcohol free and that he is actively pursuing rehabilitative measures.
The Tribunal has taken into account the genuineness of the applicant’s commitment to not reoffend and the strength of the personal, familial and employment factors which are present to assist him to achieve this goal. On the available evidence the Tribunal is satisfied that there is a low risk of the applicant’s conduct being repeated.
In light of the low risk of reoffending, the Tribunal finds that the protection of the Australian community weighs against the revocation, but only slightly so.
Family Violence – 8.2
Paragraph 8.2 of Direction 110 refers to the Government having serious concerns about conferring the privilege to remain in Australia on non-citizens who engage in family violence. Those concerns are proportionate to the seriousness of the family violence engaged in.
Paragraph 4 of Direction 110 provides the following relevant definitions. Family violence means ‘violent’, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Member of a person’s family includes a person who has, or has had, an intimate personal relationship with [the applicant].
The Tribunal is satisfied that the applicant has been convicted of one count of domestic assault in 2000. The offence of ‘assault (male assaults female)’ recorded in the applicant’s criminal antecedents was not relied upon by the respondent for reasons set out above. The Tribunal further finds that the applicant was issued with a restraining order for 48 hours following a domestic dispute with his wife. The details of the offending are set out elsewhere in these reasons and the Tribunal considers the offending pursuant to 8.2(2)(b) of the Direction. The applicant does not deny that the offending occurred and he is remorseful.
The Tribunal considers the offending very serious. The Tribunal finds that the first offence occurred 25 years ago, and the penalty for the second incident of family violence was that the applicant was issued with a restraining order for 48 hours, in circumstances where the victim was reportedly not fearful of the applicant. For these reasons the Tribunal finds that the family violence offending, although very serious, weighs only slightly against revocation.
The strength, nature and duration of ties to Australia – 8.3
In accordance with 8.3(1) of the Direction, the Tribunal has considered any impact of the decision on the applicant’s immediate and extended 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. As this decision concerns the decision whether to revoke the mandatory cancellation of a visa or, the Tribunal is also obliged to consider the strength, nature and duration of any other ties that the applicant has to the community.
The applicant has resided in Australia for around 17 years since arriving in 2008 at about 29 years of age.
The applicant’s wife and children and extended family members who have a right to remain indefinitely in Australia are listed as follows:
(1) Lovey Ingley – the applicant's sister;
(2) Salena Cara Wiwarena – the applicant's wife;
(3) Nataasjaha Tipuna – the applicant's step-daughter;
(4) Rico Wiwarena – the applicant's step-son;
(5) Tyler Ingley – the applicant's daughter;
(6) Awhina Ingley – the applicant's daughter;
(7) KJI (16) – the applicant's son;
(8) KI (15) – the applicant's son;
(9) HI (14) – the applicant's son;
(10) KI (13) – the applicant's daughter;
(11) RI (8) – the applicant's son;
(12) KI (7) – the applicant's daughter;
(13) AW (3) – the applicant's granddaughter;
(14) ER (13) – the applicant's grandson; and
(15) AI (9 months)- the applicant’s granddaughter.
During the hearing, it was the evidence of the applicant that his wife and children, and the members of his extended family, would be very badly affected if the applicant were forced to leave Australia. Mrs Wiwarena stated that without the applicant she is unable to care for the minor children because she has been a stay at home mother and has not been able to earn income. She suffers from health issues that culminated in a breakdown when the applicant was incarcerated and Mrs Wiwarena, unable to cope with the emotional and financial pressure of a 15 head household, left the children behind in Australia to reside with her parents in New Zealand. She states that she feels extremely distressed about leaving her children behind, but was unable to support the family without her husband. She has since returned to Australia to resume care of her children, some of whom are currently residing with her daughter Nataasjaha and in part with a cousin, Cumorah Walker. It is the applicant’s wife’s evidence that she regrets leaving the children in the care of family members but that without the support of the applicant she was unable to look after the children and sought respite with her parents. The applicant’s eldest step daughter, Nataasjaha gave evidence about the difficulties she has faced, as a 23 year old mother, with two children of her own, to care for four more of her siblings in the absence of the applicant who was the sole breadwinner.
The evidence of the applicant’s wife, and one of his daughters, who has attained her majority, that they may have to accompany their father to New Zealand if he were deported in order for the family to remain together. It is the evidence of Awhina that in the event of his deportation, this would necessitate the relocation of Selina Wiwarena, six of the applicant’s children KJI (16), KI (15), HI (14) , KI (13), RI (8), KI (7), and at least one of the applicant’s granddaughters AI, as they would have no means to sustain themselves in Australia without the applicant. This would necessarily mean educational disruption for all minor children. It is the evidence of Nataasjaha that she would not uproot her children AW (3) and ER (13) and the applicant would be separated from two of his three grandchildren. The applicant stated that he is impecunious and that he does not know how he would obtain and pay for 12 passports and airline tickets. The respondent submitted that the costs of relocation of the entire family may be paid for by the Australian government but was unable to present evidence in support of the proposition and the Tribunal makes no findings in that regard.

On the basis of this evidence, the Tribunal finds that a decision adverse to the applicant would have a devastating effect on the applicant’s family and the applicant’s wife and children in particular. The applicant states that he wishes to remain in Perth with his family where the children are at primary school and TAFE and where they have made their home and have the support of extended family. The applicant remains the sole breadwinner in respect of the minor children. It is the applicant’s evidence that he will not be able to support his family in New Zealand. In the event of a relocation to New Zealand, the applicant assumes he would be homeless and unable to house the children as he is unsure if he can sustain himself even with a truck driving license due to the high cost of living in New Zealand. In addition it is noted that the children are currently in primary school and TAFE and it is the evidence of their relatives who have housed them since that they would be detrimentally effected if their father would not remain in Australia.[10] Ahwina deposes:
The cancellation of his visa has already caused immense distress, heartache, and uncertainty for our family. Without him, we face not only financial hardship but also profound emotional pain. The youngest children, in particular, are struggling with his absence, and the thought of permanent separation is unbearable.
[10] Statement of Ahwina dated 25 August 2025
The Tribunal finds that if the applicant were removed from Australia [and in the event his children remain in Australia], his family would be negatively affected emotionally and financially. In these circumstances, the Tribunal concludes that the impact on the applicant’s family would be significant.
In terms of ties to the community the Tribunal has considered that the applicant has been gainfully employed since his arrival in 2008.
The Tribunal considers that this factor weighs strongly in favour of revocation of the cancellation.
The best interests of minor children in Australia - 8.4
In accordance with 8.4(1) of the Direction, the Tribunal has considered whether the cancellation of the applicant’s visa is in the best interests of the applicant’s children who are minors. The applicant’s three grandchildren are considered separately in these reasons. The Tribunal has considered the interests of the applicant’s minor children:
(1) KI (16) – the applicant's son;
(2) KI (15) – the applicant's son;
(3) HI (14) – the applicant's son;
(4) KI (13) – the applicant's daughter;
(5) RI (8) – the applicant's son;
(6) KI (7) – the applicant's daughter;
(7) AW (3) – the applicant's granddaughter;
(8) ER (13) – the applicant's grandson; and
(9) AI (1) – the applicant’s granddaughter;
It is not controversial that the applicant is the primary carer of his six minor children and that although his wife has returned to Australia, she is by reason of her mental health, unable to house or care for them without the financial and emotional assistance of the applicant. There is a plethora of evidence to suggest that applicant has strong familial bonds and that his sole motivation is to care for his family. The Tribunal is satisfied that the family has resided together for the entirety of the minor children’s life and that they were traumatised by the applicant’s absence and that “their safety has been compromised; they have become fractured in many ways; and the best thing for these children is to have their father home again”. [11]
[11] JTB HB p. 112
The Tribunal has addressed the interests of the applicant’s grandchildren separately, as the grandchildren’s circumstances have changed. It is the evidence of the applicant’s daughter Ahwina Ingley that the applicant was the sole breadwinner in respect of two of the three grandchildren who were born before the applicant was incarcerated and that the applicant has a strong bond with his granddaughter AW (3) and with ER (13), the son of Nataashaja. A third grandchild AI, was born in 2025, daughter of Ahwina. His daughter Ahwina deposes that the applicant previously provided financial and emotional support to his grandchildren and that if he was deported she and her daughter may relocate with him.[12] The Tribunal accepts that his wife and seven of the applicant’s minor dependants may be financially and emotionally compelled to relocate with him. It is the applicant’s evidence that they have no means to relocate, have no family support in New Zealand, and according to the applicant, would be homeless. Overall the deportation of the applicant, whether or not accompanied by six minor children and at least one of the grandchildren, would be to the financial and emotional detriment of the minor children.[13]
[12] JTB HB p. 353.
[13] It is the applicant’s evidence that he has no intention to relocate to live with his sister in New South Wales.
The Tribunal does not consider, and there is no evidence to support the contention, that the applicant’s past conduct has had a negative effect on minor children, although there could be an adverse impact if the applicant reoffended.
Overall, the Tribunal concludes that it would be in the best interests of the 9 concerned minor children if the applicant were not removed from Australia. This primary consideration weighs strongly in favour of revocation.
Expectations of the Australian community – 8.5
In relation to this consideration, 8.5(1) of the Direction states:
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 remain in Australia.
The applicant has failed to obey Australian laws. He would therefore be expected to be removed from the community, as his offending was serious.
The Tribunal has considered the principle expressed in 5.2(6) of the Direction; that is, that the Australian community 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. The applicant was an adult when he and his wife and four eldest children arrived in Australia. The Tribunal does not consider that the applicant was a young person when he arrived.
The Tribunal finds that the Australian community expects that the Australian government should not grant the applicant a protection visa.
The Tribunal considers that this factor weighs against the revocation but only moderately so.
Other considerations
A non-exclusive list of other considerations is set out in section 9 of the Direction. These are:
Legal consequences of the decision – 9.1
As noted above, the applicant is a citizen of New Zealand. The visa that was cancelled was not a protection visa.
Paragraph 9.1 of Direction 110 states that decision makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under s 189, noting also that section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant if Australia has non refoulement obligations in respect of an unlawful non-citizen.
Should the visa be cancelled, the applicant would be prohibited from applying for other visas by operation of s501E of the Act. The applicant’s removal and future exclusion from Australia would be the legal consequence of a decision to cancel the visa which flows from the intended operation of the Act. However, having regard to Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Tribunal finds this consideration weighs at least to some extent in favour of revoking the cancellation of the visa.[14]
[14] [2024] FCA 1273.
Extent of impediments if removed – 9.2
This consideration refers to impediments a 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.
The applicant is 46 years of age and has lived in Australia since he was 28 years old. The evidence supports a finding that he has no financial means to relocate or reestablish himself in New Zealand, particularly in light of the fact that he may be accompanied by six or more minor dependants. His mother resides in an aged care facility and he has no contact with his sister. There is no extended family to assist with housing. The applicant would not be in a position to obtain employment immediately, there is no evidence that his truck license is transferrable. He states that truck drivers earn considerably less than their Australian counterparts and petrol is considerably more expensive. His contention is that by reason of the very high living standards and as the family has no income or savings he and his family would be homeless.
The Tribunal finds that the applicant would face more than significant difficulty establishing himself in New Zealand because of his large number of dependants.
Overall, this consideration is given great weight in favour of revocation.
Impact on Australian business interests – 9.3
Paragraph 9.3(1) provides that the Tribunal must consider any impact of its decision on Australian business interests. If the applicant’s visa were reinstated, he intends to return to his employment as a truck driver. The Tribunal finds no evidence that any Australian business interests would be impacted if his visa remained cancelled, and that this consideration should be given neutral weight.
There is no evidence of impact on Australian business interests. This factor is neutral.
CONCLUSION
The Tribunal has considered the applicant’s circumstances in relation to the various considerations set out in the Direction. The Tribunal must carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion under s 501(1) of the Act to revoke the cancellation of the applicant’s visa.
The Tribunal made the following findings concerning the relevant primary considerations in the Direction, other considerations being neutral:
(a)The protection of the Australian community weighs only slightly against revocation.
(b)The family violence offending weighs only slightly against revocation.
(c)The strength, nature and duration of ties to Australia weigh strongly in favour of revocation.
(d)The best interests of minor children weighs strongly in favour of revocation.
(e)The expectations of the Australian community weighs moderately against revocation.
The Tribunal has made the following findings about the other consideration in the Direction:
(a)In respect of the Legal Consequences, the Tribunal finds this consideration weighs at least to some extent in favour of revocation.
(b)In respect of the impediments if removed, this consideration is given great weight in favour of revocation.
The Tribunal concludes that the primary considerations which weigh against the applicant, namely the protection of the Australian community, which weighs only slightly against revocation; the family violence offending which weighs only slightly against revocation and the expectations of the Australian community which weighs moderately against the revocation, do not outweigh the strength, nature and duration of ties to Australia which weigh strongly in favour of revocation or the best interests of minor children, which weighs strongly in favour of revocation. The Tribunal has also considered the legal consequences, which weigh at least to some extent in favour of revocation and the extent of impediments if removed, which are given great weight in favour of revocation.
The Tribunal is satisfied that the conclusion in this regard accords with the weight of the evidence and the principles set out in 5.2 of the Direction. In relation to this, 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government and the principles otherwise emphasise the interests of the community rather than those of the individual. In this case, the primary factors that weigh against revocation are the safety of the Australian community; the family violence offending and the expectations of the Australian community but only slightly and moderately so. However, they are outweighed by the primary considerations which weigh strongly in favour of the applicant this being the strength, nature and duration of ties to Australia and the interests of minor children.
For these reasons, the Tribunal sets aside the decision under review and in substitution decides that the cancellation of the applicant's visa is revoked.

Date(s) of hearing: 2 and 3 October 2025

Applicant: Self-represented

Advocate for the Respondent: Ms S Black

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	2 and 3 October 2025
Applicant:	Self-represented
Advocate for the Respondent:	Ms S Black
Solicitors for the Respondent:	Sparke Helmore Lawyers