Ives and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 42

Ives and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 42 (16 January 2025)
Applicant/s:  Benjamin William Ives
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/5519

Tribunal:General Member D Cosgrave (second review)
Place:Brisbane
Date:16 January 2025

Decision:The Tribunal affirms the decision under review.

..................... [SGND]....................
General Member D Cosgrave

Catchwords
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa cancellation –- failure to pass good character test – whether there is another reason to set aside the mandatory visa cancellation – dangerous driving – stolen goods – drug addiction – Ministerial Direction No. 110
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
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
INTRODUCTION

Mr Ives seeks review of the Minister’s (the Minister or the Respondent) delegate’s 31 July 2024 decision (the reviewable decision) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
[1] Exhibit R1: G4, page 29.
The hearing was held in Brisbane on 8 and 9 October 2024. Mr Nikjoo of Nikjoo Lawyers represented Mr Ives. Mr McLaren of Mills Oakley represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 23 October 2024. On 23 October 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Ives is a forty-one-year-old[4] New Zealand citizen who has resided in Australia since September 1984, arriving as an eighteen-month-old infant.[5]
[4] Exhibit R1: G6, page 46.
[5] Exhibit R1: G23, page 116.
On 19 August 2019, Mr Ives was sentenced to an eighteen-month (aggregate) sentence of imprisonment after his conviction for Goods in personal custody suspected being stolen.
On 25 July 2022, his Visa was cancelled under s 501(3A) of the Act. The notification letter stated that his Visa was cancelled on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than twelve months and was serving a sentence of imprisonment on a full-time basis in a custodial institution.[6]
[6] Exhibit R1: G27, pages 137–141.
On 22 August 2022, he made representations seeking revocation of the cancellation of his visa.[7]
[7] Exhibit R1: G10-G25, pages 89–129.
On 27 February 2023, he was convicted of Dangerous driving occasioning grievous bodily harm – drive manner dangerous -T1, sentenced to two years in jail and disqualified from driving for 12 months.[8]
[8] Exhibit R1: G6, page 47.
On 31 July 2024, a delegate of the Respondent decided, under s 501CA(4), not to revoke the cancellation decision (the reviewable decision).[9] Mr Ives was notified of the decision on 31 July 2024.[10]
[9] Exhibit R1: G4-G5, pages 28–45.
[10] Exhibit R1: G3, pages 25–27.
On 4 August 2024, he lodged an application with the Tribunal for review of the delegate’s decision.[11]
[11] Exhibit R1: G2, pages 4–24.
LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[12] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[13] or
(ii)there is another reason why the original decision should be revoked.[14]
[12] Pursuant to s 501CA(4)(a) of the Act.
[13] Pursuant to s 501CA(4)(b)(i) of the Act.
[14] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Ives made the representations required by s 501CA(4)(a).[15]
[15] Exhibit R1: G2, pages 4–10.
THE TRIBUNAL’S TASK
Mr Ives’s Visa was cancelled on the basis that he had failed the character test once the delegate considered section 501(2) and then applied sections 501(6)(a) and 501(7)(c). The Tribunal is satisfied, based on his criminal record, that he does not pass the character test set out in section 501(6).[16]
[16] Exhibit R1: G6.
The Tribunal’s task is set out in section 501CA(4).[17] When the Tribunal assesses and considers the factors weighing for and against whether there is another reason to set aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[18]
[17] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[18] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[19]
[19] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction provides the following primary considerations:
(1) the protection of the Australian community from criminal or other serious conduct.
(2) whether the conduct engaged in constituted family violence.
(3) the strength, nature and duration of ties to Australia.
(4) the best interests of minor children in Australia.
(5) the expectations of the Australian community.
Paragraph 9 of the Direction identifies the other considerations to be assessed where relevant:
(a)the legal consequences of the decision.
(b)the extent of impediments if removed.
(c)the impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[20] The weighing process is substantively left to the individual decision‑maker exercising the relevant power under section 501 of the Act.[21]
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[21] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. This includes the expert evidence from a psychologist, Mr Rababi.[22] The Tribunal also heard testimony from Mr Ives, his mother Ms Thompson, his sister Ms Sakar, his aunt Ms Ives, his former co-worker, Mr Joyce and his former employer, Mr Butler.
[22] Exhibit A3, pages 5 - 17; and R5, TB62
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, the Tribunal must keep in mind that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal should, and has, considered the nature and seriousness of Mr Ives’s conduct to date.
The Tribunal must also have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(c)the nature and seriousness of the non-citizen’s conduct to date; and
(d)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1: The Nature and Seriousness of Mr Ives’s Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must have regard to, where relevant, in considering the nature and seriousness of Mr Ives’ criminal offending or other conduct to date.
Mr McLaren’s contentions on this point follow:[23]
[23] Exhibit R2: Respondent’s SFIC, [32] – [38].
(a)In the circumstances of this case, factors (a), (c), (e)–(f) in paragraph 8.1.1(1) are relevant.
(b)Sub-paragraph (a) provides that violent crimes are viewed very seriously. The following conduct expressly falls into this category:
•    On 27 February 2023, Mr Ives was convicted of Dangerous driving occasioning grievous bodily harm – drive manner dangerous -T1 and sentenced to two years imprisonment. The sentencing remarks indicate that Mr Ives collided with the victim who was on a motorcycle. The victim was taken to hospital with multiple injuries including a crushed fracture of the T1 vertebrae and spinal cord injury at the level of T10. The victim received an amputation below the right knee. The victim passed away 11 days after the accident as a result of a pulmonary thromboemboli located in his left lung and right pulmonary arteries. The Crown did not allege any action of Mr Ives to be the cause of the death of the victim. The crash occurred in the morning while Mr Ives was driving home from work after a night shift. He claims that he thought the red traffic light had turned green. However, the sentencing judge noted that “It [was] accepted that the offender is pleading guilty as he accepts that he drove in a manner dangerous by driving contrary to a red traffic light and driving without keeping proper look out.” (G7).
•    On 8 December 2012, Mr Ives was convicted of common assault for which he was issued a section 9 bond and required to participate in drug or alcohol rehabilitation.
(c)Sentences involving terms of imprisonment are considered a last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved: Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration).[24]
[24] Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587 at [21] per Member Maguire.
(d)Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction provides that in considering the nature and seriousness of the non-citizen’s criminal offending, regard must be had to the sentence imposed by the courts for a crime or crimes. A clear indicator of the seriousness of Mr Ives’ offending is that he has received multiple sentences of imprisonment including:
i.   2 years imprisonment for Dangerous driving occasioning grievous bodily harm – drive manner dangerous -T1;
ii.     14 months imprisonment for Break & Enter house etc steal value <=$60,000-T1;
iii.    3 months imprisonment for Goods in personal custody suspected being stolen (not m/v);
iv.   8 months intensive correction order (ICO) for Larceny -T2;
v.     4 months imprisonment of Steal property in dwelling-house;
vi.   3 months imprisonment Armed w/i commit indictable offence-T1;
vii. 3 months imprisonment Larceny-T2 (Attempt); and
viii. 1 year imprisonment producing dangerous drugs.
(e)Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction states that the Tribunal must also have regard to the frequency of an applicant’s offending and whether there is a trend of increasing seriousness. Mr Ives’ offending is undeniably frequent. He has a criminal history spanning almost 20 years that began with producing dangerous drugs and culminated in driving occasioning grievous bodily harm.
(f)Pursuant to subparagraph (f) of paragraph 8.1.1(1) of the Direction, the cumulative effect of Mr Ives’ offending is also relevant. This is clearly not a case where his offending relates to a single incident: Short v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[25] The cumulative effect of the applicant’s repeated offending is that he has burdened the resources of the police system, the court system and corrective services.
(g)The Respondent submits that the nature and seriousness of Mr Ives’ offending must be viewed by the Tribunal as significant and serious. This factor weighs strongly in favour of not revoking the original decision to cancel his Visa.
[25] Short v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3037 at [71].
Mr Nikjoo contends that Mr Ives does not dispute the serious nature of his actions. In fact, he has expressed his sorrow and shame both to the court and the Respondent at the preceding stage of his case.[26]
[26] Exhibit A1: Applicant’s SFIC; Exhibit R1: G7, 65, and clause 8.1.1 of Direction 110.
Tribunal’s consideration: The nature and seriousness of Mr Ives’s conduct
When assessing the nature and seriousness of Mr Ives’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·the nature and seriousness of his criminal offending or other conduct to date;[27]
·the sentences imposed for his criminal offending;[28]
·the frequency of his offending and the trend of increasing seriousness;[29] and
·the cumulative effect of his repeated offending.[30]
[27] Paragraph 8.1.1(1)(a).
[28] Paragraph 8.1.1(1)(c).
[29] Paragraph 8.1.1(1)(d).
[30] Paragraph 8.1.1(1)(f) of the Direction.
Mr McLaren contends that the events of 2 September 2020 which led to Mr Ives’s conviction on the charge of Dangerous driving occasioning grievous bodily harm – drive manner dangerous -T1 constitute a violent crime under paragraph 8.1.1.(1)(a)(i). Mr Nikjoo was silent on this point, but his contentions are that Mr Ives’s actions were serious, rather than using the descriptor of ‘very serious’ that can also be applied here. On balance, acknowledging the violence done to the victim and the victim’s immediately resulting injuries (but not, it is emphasised, the victim’s death), the Tribunal considers that this crime can be considered to be violent and consequently that this offending should be viewed very seriously.
Mr Ives’s offending history is long and extensive. It commences in 2003 and continues until 2022. It includes, in addition to the dangerous driving conviction, convictions for larceny, stealing, breaking and entering, being armed with intent to commit an indictable offence, shoplifting, dishonestly obtaining financial advantage by deception, a breach of bail conditions and possessing dangerous drugs.[31]
[31] Exhibit R1: G6, page 46.
The Tribunal acknowledges Mr Ives’s multiple terms of custodial imprisonment summarised above in Mr McLaren’s contentions. The Tribunal views these terms as an objective measure of the seriousness of the offences involved.[32]
[32] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; paragraph 8.1.1(1)(c) of the Direction.
Having assessed Mr Ives’s criminal record, the Tribunal considers and characterises it as frequent between 2003 and 2012 and then between 2017 and 2022. The Tribunal further characterises his offending as increasing in seriousness, culminating with his last three convictions for dangerous driving, breaking and entering and armed with intent to commit an indictable offence.[33]
[33] Paragraph 8.1.1(1)(e) of the Direction.
The cumulative effect of Mr Ives’s repeated offending on others over this substantial period can be reasonably inferred and considered to be substantive and serious.
Tribunal’s finding: The nature and seriousness of Mr Ives’s conduct.

The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred to above, and after a holistic consideration of Mr Ives’s offending, the Tribunal finds that his conduct should be characterised as very serious.
Paragraph 8.1.2: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Summarising the relevant portion of paragraph 8.1.2 of the Direction:
(a) In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b) When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·     Evidence of how likely they are to re-offend.
·     Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)   The objective is to carefully weigh the seriousness of possible harm, the likelihood of re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
Mr Nikjoo contends that:[34]
(a)Mr Ives’ criminal history reflects a pattern of offences associated with his struggle with drug addiction and his past efforts to address his needs. However, this is the first occasion he is confronting the prospect of visa cancellation and removal from Australia after living in the country for over 41 years. He now fully comprehends the seriousness of his situation for the first time.
(b)This awareness has also reached his parents, family, and friends in Australia, all of whom are now fully informed about the situation. We respectfully submit that this understanding substantially reduces the risk of future recidivism.
(c)Mr Ives submits that while this primary consideration weighs against him, its weight should not individually or collectively outweigh other considerations in his favour.
[34] Exhibit A1: Applicant’s SFIC, [26]–[28].
Mr McLaren contends:[35]
[35] Exhibit R2: Respondent’s SFIC, [39]–[46].
(a)Paragraph 8.1.2(2) sets out two factors which the Tribunal must have regard to in considering the risk to the Australian community:
(i) the nature of harm caused should the applicant engage in further criminal or serious conduct; and
(ii) the likelihood of the applicant engaging in such conduct.
(b)If Mr Ives were to reoffend in a similar manner to that of his previous offence, there is a risk of direct harm to the community in the form of physical harm and financial loss. It is highly likely that it would involve physical, financial and psychological harm on members of the Australian community by reason of any repeat of his assault, intimidate and destroy property offending. Further, the numerous sentences of imprisonment have not deterred him from offending. The Tribunal ought to find that such offending, if it was to be repeated, would be serious.
(c)There is no evidence from Mr Ives that demonstrates his insight into the impact of his offending on the Australian community. Further, he referred to his offending following the motor vehicle accident as “a few stupid little crimes” (Applicant’s statement, undated).
(d)The sentencing remarks of Judge Herbert indicate that in the sentencing assessment report Mr Ives was assessed as “medium risk of reoffending”.[36]
(e)The Respondent submits that the Tribunal cannot be satisfied that Mr Ives will not re‑offend. He has a criminal history spanning almost 20 years. He has continued to reoffend despite sentences of imprisonment. He presents a serious and real risk of reoffending. As necessary to quantify this risk, the Respondent contends that there must be accepted to be at least a medium risk of reoffending.
(f)The risk to the Australian community should Mr Ives reoffend encompasses potentially catastrophic consequences in the community for persons who are subjected to his lack of regard for traffic rules, as well as the consequential cost of directing significant public services and resources to addressing his further serious conduct or offences. The protection of the Australian community and its members are best served by Mr Ives no longer being present in Australia.
(g)As outlined in paragraph 8.1.2 of the Direction, the Australian community’s tolerance for any risk of future harm reduces as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. The Respondent contends that this principle applies in the present circumstances.
(h)Primary Consideration 1 weighs significantly against revocation of the visa cancellation decision.
[36] Exhibit R1: G8, page 83.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Mr Ives to engage in further criminal or other serious conduct similar to that which he has done in the past, the Tribunal has considered the evidence, testimony and the parties’ submissions in relation to paragraph 8.1.2.
The Tribunal in particular has considered Mr Ives’s offending and conviction history to infer what forms his future conduct may take if returned to the Australian community.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Ives to engage in further criminal or other serious conduct
If Mr Ives is allowed to remain in Australia and then engages in further criminal or other serious conduct, the Tribunal finds that any future repetitions of criminal or serious conduct of the types that Mr Ives has previously engaged in could result in very serious and material physical and psychological harm to the potential individual victims and to the Australian community.
Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has holistically considered the totality of the testimony and evidence that is relevant to or addresses the likelihood or risk of Mr Ives engaging in further criminal or serious conduct.
The clear legislative intention regarding the likelihood’s threshold is whether there is ‘a’ risk.[37] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d), leaving it as ‘a’ risk.[38] On this occasion, the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[37] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52] and the Full Federal Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2].
[38] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under section 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn.[39]
[39] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Tribunal’s task is to ascertain the realistic level of risk posed by Mr Ives at the time of its decision,[40] with the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’[41], such that it would be considered an unacceptable risk.[42]
[40] Direction; paragraph 8.1.2(2)(b)(ii).
[41] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[42] Direction; paragraph 8.1.2(1).
When the Tribunal assesses this consideration, it acknowledges that the Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs,[43] the degree of risk that may be acceptable to the Australian community is “inversely related” to both the likelihood of reoffending occurring and the apprehended significance of the harm that may be caused by such further offending.
[43] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].
Paragraph 8.1.2(1) introduces the notion of an “unacceptable risk”; that is, a risk that the community should not be required to accept or tolerate regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection,[44] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, to determine whether there is an “unacceptable risk”, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
[44]Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, at [89]–[104].
Relevantly, in Minister for Immigration and Ethnic Affairs v Baker,[45] it was stated that the reference to ‘criminal conduct’ is:
[45] (1997) 73 FCR 187 at 194.
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’ (Emphasis added.)
In Guo, Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court clarified the extent to which past events are a guide to possible future events:[46]
[46] MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS V GUO WEI RONG (1997) 191 CLR 559 AT PAGES 574-575; QKVH AND THE MINISTER FOR HOME AFFAIRS (‘QKVH 2020’) [2020] AATA 4431 (2 NOVEMBER 2020) AT [5].
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’ (Emphasis added.)
Her Honour Justice Mortimer (as she then was) considered the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (Murphy) at [37], where Her Honour noted:[47]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
Applying the reasoning set out in Sabharwal to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of Mr Ives engaging in further future criminal or serious conduct, with one consideration being the extent to which the past events referenced in Guo can be relied upon, another consideration being Murphy on the seriousness of the risk and whether it should be tolerated, and a third consideration being the illumination that Mr Ives’s past criminal conduct throws on his character.
When considering whether Mr Ives poses ‘more than a minimal or trivial likelihood of risk,’ all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’ by him must be considered. [48]
As observed in GTPT,[49] the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence.’[50] The more time that passes without Mr Ives re‑offending, irrespective of his formal rehabilitation, is evidence that his recidivism risk has significantly reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’[51]
[47] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
[48] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’), Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’) and GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]–[52]; Roberts, (n 53) [27].
[49] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
[50] Ibid [67] citing the then current Direction.
[51] Ibid [94].
Placing these authorities together, the Tribunal’s consideration of the risk or likelihood of Mr Ives engaging in further criminal or serious conduct should encompass the factors that:
(e)facilitate the risk; or,
(f)conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’.
Factors that facilitate the risk
Mr Ives’s offending history indicates that his addiction to drugs is a major factor in much of his offending.[52] There are likely to be other factors, including his history of childhood sexual abuse, but his addiction issues appear dominant as a facilitative factor. The Tribunal qualifies this finding with respect to Mr Ives’s 2 September 2020 dangerous driving offence where drug use was not in issue.
[52] See Exhibit R1: G23.
His use of drugs appears from his history to be triggered by specific instances of stress.
Mr Rababi took the following history from Mr Ives in September 2024:[53]
“Mr. Ives advised that his drug use throughout his life had always been triggered by an emotional event that he was unable to process or manage. He advised growing up mental health was not a topic he was familiar with and therefore had learnt to ignore these feelings or use maladaptive strategies such as alcohol and drugs. Mr Ives advised all of his criminal convictions and traffic infringements were during his periods of drug use.”
[53] Exhibit A3: page 7.
Mr Rababi reported:[54]
“Mr. Ives is facing deportation following his criminal convictions, a situation compounded by his existing mental health and substance use issues. The interplay of Attention-Deficit/Hyperactivity Disorder (ADHD), Major Depressive Disorder (MDD) with anxiety, trauma, and substance abuse significantly increases the likelihood of criminal behaviour. Research indicates that ADHD is associated with increased risk‑taking and impulsive behaviours, which can contribute to criminal activity. Similarly, MDD, trauma and anxiety are linked to higher rates of substance abuse and criminal conduct, as individuals may use drugs to self-medicate and manage overwhelming emotional states creating a cycle of maladaptive coping mechanisms and continued criminal behaviour. Furthermore, while Mr. Ives himself does not connect his trauma to his drug use and poor decision-making, research indicates that oppressed memories of trauma can disrupt emotional regulation and decision-making by activating stress responses that influence cognitive processes, even when the trauma is not consciously recalled and that unresolved trauma can lead to maladaptive coping strategies, heightening vulnerability to anxiety and mood disorders.” (Emphasis added.)
[54] Op.cit.; page 9.
His aunt, Ms Therese Ives, wrote in her uncontested statement:[55]
“And then to see all of that hard work come undone so quickly after the car accident. I watched Ben crumble. He was so distressed, so emotionally distraught, full of guilt and full of anxiety. He wasn’t sleeping, he wasn’t eating. Ben’s communication reverted back to the “old Ben”. His choices and decisions were not in his best interest. Ben had reverted back to his old coping mechanisms.”
[55] Exhibit A2: page 21.
Mr Ives’s comments in his 2022 Personal Circumstances Form are also illustrative. In response to the query ‘Provide information on what you believe to be the risk of you offending in the future and your supporting reasons’, Mr Ives, assisted by his mother, wrote:[56]
Due to successfully remaining on my medication I believe I can maintain my sobriety with support (sic) my family & community programs resulting in low risk. With my qualifications, I strongly believe if I can relocate to WA or NT, I can secure stable employment, enabling me to support myself & stay off drugs.
[56] Exhibit R1: G23, page 123.
The High Court’s reasoning in Guo, referenced above, can be effectively applied here to assess Mr Ives’ past conduct and use it to consider what he may do in future. Mr Ives’s likelihood of engaging in criminal or other serious conduct increases when he uses drugs and his use of drugs is triggered by specific stressful events.
It is also relevant to observe that Mr Ives’s second sustained period of offending between 2017 and 2022 occurred between the ages of thirty-four and thirty-nine. His susceptibility to risk factors like drugs and stress did not diminish with age. Similarly, his sentencing assessment report rates him at “medium risk of reoffending.”[57]
[57] Exhibit R1: G8, page 83.
Factors that hinder or retard the risk – Rehabilitation and remorse
Mr Ives has clearly demonstrated a degree of remorse in his testimony and in his Revocation Request Form.[58]
[58] Exhibit R1: G22.
However, Mr McLaren identified Mr Ives’s comment in his undated statement:[59]
“After relapsing on the drugs having no work I ended up committing a few stupid crimes and going to jail…”
[59] Exhibit A2: page 9.
In his testimony, Mr Ives at times disassociated himself from his offending – for example:[60]
“I wasn’t brought up as a criminal. I don’t know how to be a criminal. If I go and break the law, even if it’s doing the stupidest thing, I’m going to get caught because I don’t know what I’m doing. You know what I mean? So when my money ran out, that’s when I started to get in trouble. Because you’ve got to try and afford it because it makes you sick if you don’t have it. And evidently I pretty much ended up going straight into jail because I don’t class myself as a criminal. You see people out there, they can break the law all the time. If I do anything wrong I get caught for it straight away. I don’t know. It’s just not me.”
[60] Transcript, page 28, lines 21–30.

Considering the above, the Tribunal assesses Mr Ives’s remorse and insight as qualified and occasionally situational.
Mr Ives has undertaken rehabilitation, including the SMART Tools program in detention.[61] The fact that he was diverted into the Drug Court program in NSW is also in his favour.
[61] Exhibit A4: Page 1.
Risk Management Factors
The evidence and testimony identify some static risk management factors for Mr Ives.
Mr Rababi’s 2024 report indicates that remote work or work such as mining involving drug and alcohol tests help Mr Ives manage the risk. Mr Ives’s use of buprenorphine is also a risk management factor.
While members of his immediate family have given evidence and testimony, the role of their support as a risk management factor is problematic. Based on her testimony and evidence, Ms Sakar, Mr Ives’s sister, is a clear supporting risk management factor along with her children, but this is attenuated by the apparent difficulties she and Mr Ives face in achieving regular face‑to‑face contact.[62] It is less clear to what extent his parents are risk management factors, as suggested by Ms Thompson’s testimony:[63]
“Mr McLaren: Okay. Yes. Yes. And appreciating that there’s been difficulties over a number of years between Benjamin being in detention and, of course, COVID and the like, when was the last time you saw Benjamin in person?
Ms Thompson: The last time was, God, sorry, my mum died, and I think that was six years ago. I went to New Zealand for her funeral, and when I came back, I flew through Sydney and I met Ben then – met up with Ben then.
Mr McLaren: Right?
Ms Thompson: So, but, yes, it’s been a long time.
Mr McLaren: So you maintain contact by telephone. Do you use other methods like – what do you call it – you know, FaceTime?
Ms Thompson: Telephone.”
[62] Transcript, page 87, lines 36–44.
[63] Transcript, page 66, lines 36–46.
Risk Analysis and Consideration
The Tribunal has considered the evidence above and especially the patterns of Mr Ives’s offending. In doing so, it has applied Guo, Murphy and Baker as described above.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that the risk to the Australian community should Mr Ives commit further offences or engage in other serious conduct exists and that it is a material risk, even after his remorse, his rehabilitation efforts and his risk management factors are considered.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs very strongly and substantially in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The parties contend that this consideration is not enlivened.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen
This consideration carries neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
In terms of this consideration, the Tribunal should consider any impact of the decision about Mr Ives’ Visa on his 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.
The Tribunal should also consider the strength, nature and duration of any other ties that Mr Ives has to the Australian community, having regard to:[64]
(g)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to time the Applicant has spent contributing positively to the Australian community
(h)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.
[64] Direction; paragraph 8.3(2).
Summarising Mr McLaren’s contentions on this consideration for the Respondent:[65]
(a)In respect of Mr Ives’ immediate family ties, his daughter, mother, father, sister, brother and nephews reside in Australia.
(b)His father has stated he will be “heartbroken” if Mr Ives is removed.
(c)This consideration weighs in favour of setting aside the reviewable decision and may be given a reasonable amount of weight. However, this should not, individually or cumulatively, outweigh the weight afforded to Primary Considerations 1 and 5.
[65] Exhibit R2: Respondent’s SFIC, paragraphs [49] – [53].
Summarising Mr Nikjoo’s contentions on this consideration for Mr Ives:[66]
(a)Mr Ives has lived in Australia for over 40 years, arriving as an infant and spending his entire life there.
(b)He has a strong family network in Australia, including his daughter, parents, siblings and extended family members, and has no close ties in New Zealand.
(c)The Tribunal is required to consider the potential adverse impact on his family members if he were removed, as outlined in paragraph 8.3(1) of Direction 110.
(d)His family members have voiced their support and concerns, expressing anxiety over his wellbeing if he were sent to New Zealand, a country he is unfamiliar with.
(e)His long-term contributions to Australia’s community and economy, along with the expected impact on his family, weigh heavily in favour of setting aside his visa cancellation.
(f)It is submitted that all these family members would be adversely impacted if the applicant were removed from Australia. This primary consideration weighs substantially in favour of revoking the cancellation of his visa.
[66] Exhibit A1: Applicant’s SFIC, [30] – [34].
The Tribunal also had the benefit of statements and testimony from Mr Joyce and Mr Butler.
The Tribunal now considers these contentions and evidence through the lens of each subparagraph in paragraph 8.3.
Paragraph 8.3(1)
Mr Ives’s immediate family are in Australia. The Tribunal considers that Mr Ives’s father, mother, sister and his paternal aunt, as well as Mr Ives’s brother and nephews, are all Australian citizens, permanent residents or have the right to remain in Australia indefinitely.
Based on the evidence[67] and testimony of Mr Ives’s father, mother, sister, daughter and his paternal aunt[68] before the Tribunal, a decision to affirm the reviewable decision will more likely than not have adverse and long-lasting emotional, psychological and financial impacts on each of these members of Mr Ives’s immediate family.
[67] Exhibit R1: G10, G11 and G12.
[68] Exhibit A2: page 21.
Paragraph 8.3(2)(a)
Mr Ives arrived in Australia at the age of eighteen months and has resided here since then. His first conviction occurred some 20 years later. The Tribunal does not consider that Mr Ives began offending soon after arriving in Australia.
Mr Ives’s testimony, and the statements and testimony of his former co-worker, Mr Joyce and his former employer, Mr Butler, demonstrate that Mr Ives has contributed positively to the Australian community in both paid work and volunteering for conservatively at least half his life.
Paragraph 8.3(2)(b)
Subject to Mr Joyce and Mr Butler being Australian citizens, permanent residents or having the right to remain in Australia indefinitely, then the strength and duration of Mr Ives’s ties to Australia are made out, as well as the apparent positive regard that they have for him as a co-worker and employee. Mr Joyce has in both his evidence and testimony offered Mr Ives future employment.
Tribunal’s Consideration
The Tribunal considers that a decision leading to Mr Ives’s removal will have an adverse and persistent emotional and psychological impact on his immediate family.
The same impact, tempered by a lesser degree of propinquity than his immediate family, applies to his social links.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this consideration substantive weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Under this consideration, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of a child affected by such a decision. This only applies if the child is under eighteen years old when the decision to set aside or affirm is made.
This paragraph is enlivened by Mr Ives’s nephew, Child A (born in 2012).[69]
[69] Exhibit R1: G23, page 120.
When deciding what is in the child’s best interests, the Tribunal must consider how close the child is to the non-citizen, the non-citizen’s role as a parent, the impact of the non‑citizen’s past and future behaviour on the child, how separation would affect the child and whether the child has been hurt or abused by the non-citizen. The Tribunal should also consider the child's own views, depending on their age and maturity.
Mr Nikjoo contends:[70]
(a)Mr Ives does not have any minor child of his own.
(b)However, he does have a minor nephew, Child A.[71]
(c)Although his nephew is autistic and prefers not to speak over the phone, Mr Ives shows considerable care for him and has actively assisted his sister in looking after both his nephew and her other child. [72]
(d)It is in Child A’s best interests for Mr Ives to remain in Australia. This Primary Consideration supports Mr Ives’s case.
[70] Exhibit A1: Applicant’s SFIC, [36] – [38].
[71] Exhibit R1: G23, page 120.
[72] Exhibit R1: G12, pages 91-92, G23, page 121.
Summarising the Respondent’s contentions:[73]
(a)Mr Ives has identified his nephew, Child A, as a minor child affected by the decision.[74] Mr Ives stated that while living in Queensland, he saw his nephew weekly, and for a period lived with his sister and her children. Currently, he contacts his nephew once a month by phone.
(b)The relationship between Mr Ives and Child A is non-parental such that less weight should be given; per Paragraph 8.4(4)(a) of the Direction.
(c)The Respondent accepts that the best interests of Child A, the minor child in Australia who may be affected by the decision, weighs in favour of revocation. However, the nature of the relationship, as described in the evidence, is such that the weight should be moderated.
(d)Primary Consideration 4 weighs slightly in favour of revocation of the visa cancellation decision. However, this should not, individually or cumulatively, outweigh the weight afforded to Primary Consideration 1 and 5.
[73] Exhibit R2: Respondent’s SFIC, [54] – [57].
[74] Exhibit R1: G23, pages 120 –132.
Mr Ives gave the following testimony in relation to Child A:[75]
“Mr Nikjoo: How about your sister’s children? How close are you with them?
Mr Ives: I’m very close with them, and especially my sister’s youngest son. He’s autistic, so he has a few struggles, and even though his father’s pretty supportive, like, with financial support, things like that, as, like, a father figure, he’s not very supportive, and he’s getting permanent care from like – he lives with my sister, but every day from NDIS and that sort of things, the caseworker to take him out and do things, and he always asks me to go up and take him camping and go fishing and do things like that, because he’s got no one else that can do it. My dad’s too old – or not too old, but not the – not the best age to be taking a young person camping, so. And my brother, he doesn’t give my sister any support at all. I’m pretty much the only one.
Mr Nikjoo: So you are saying that you’ve been in close relationship and take him or her to doing fishing, did you say?
Mr Ives: That’s my plan, like, when we go – when I – obviously, if I get released, to do a lot of things with him that needs to be done, because there’s no one else that can do it, really. There’s only so much a support worker can do.
Mr Nikjoo: I meant in the past. In the past, how often you’ve been in touch with these children?
Mr Ives: I’m in touch with them every second day, but last time I seen them was from before COVID, because COVID came and then I was in jail. You know what I mean? I was in a position where I couldn’t leave, couldn’t go up there. (Indistinct).”
[75] Transcript, page 14, line 45 – page 15, line 20.
Mr Ives previously stated in his Personal Circumstances Form that as Child A is autistic and does not enjoy talking on the telephone, their relationship is not as close as Mr Ives enjoys with his older, non-minor nephews.[76] This statement is somewhat inconsistent with his testimony.
[76] Exhibit R1: G23, page 121.
Ms Sakar, Mr Ives’s sister, gave the following testimony:[77]
“Ms Sakar: … And then my baby, he’s 11 now. He’s only met Ben in person a couple of times, just from living in different states, no other reason beyond that. And he has got some major communication struggles. So he doesn’t like talking on the phone. But to him, Ben’s the lovely uncle who will call him and tell him a funny joke and then let him go. You know, he’ll not force him to stay on the phone and chat. And he’s really excited by the prospect, specifically of going fishing with Ben. That’s what he talks about all the time. Because we’re actually, we’re vegetarians so I won’t take my child fishing. But Ben will. And he’s just like, I want Ben to be here, not to be on the phone.”
[77] Transcript, page 83, lines 37–47.
Ms Thompson, Mr Ives’s mother, gave the following testimony:[78]
“Mr Nikjoo: How much you know about the relationship between your son and your daughter’s children?
Ms Thompson: Well, we’re all very close, so, yes, I mean, he has a good relationship with them. He’s like the fun uncle. They have fun times together, and I know, like, Ben would take them fishing and, you know, those sort of activities. They’re all into football, so they’d go to football together and, you know, things like that. I mean, we’re very close. I know – I know the relationship that Ben has with the boys.
Mr Nikjoo: How old are they?
Ms Thompson: Well, the oldest one, [Child B], he’s now 21, [Child C]’s 18, and the youngest one, [Child A] he’s 11.
Mr Nikjoo: Have you ever observed they were close or their relationship? Have you been somewhere they have some contacts in person?
Ms Thompson: Yes. Yes. A lot of times. A lot of times. I mean, when living – when I was living on the Sunshine Coast – because, obviously, I’ve moved now – we all lived in the same area and, you know, all the kids used to come to my house, I’d go to their house. Yes. I’ve observed they’ve got a close relationship.”
[78] Transcript, page 63, line 43–page 64, line 12.
There is no direct evidence from Child A before the Tribunal.
Tribunal’s consideration
In considering this paragraph, the Tribunal should give individual consideration to the best interests of each child to the extent that their interests may differ.
Acknowledging the evidence and testimony before it in addition to the Respondent’s contentions, the Tribunal makes the following points in its assessment of this consideration relative to paragraph 8.4(4) of the Direction.
Child A
The relationship between Mr Ives and Child A is non-parental, which tempers the weight attributable to this consideration.
The evidence suggests Mr Ives has had meaningful, though sporadic and limited, contact with Child A. Currently, contact appears to be limited to monthly phone calls due to Mr Ives’s circumstances. There is also an inconsistency between Mr Ives’s written statements and his testimony on how close the relationship between Mr Ives and Child A is.
Mr Ives has expressed prospective plans to take an active role in Child A’s life upon release, particularly by engaging in activities like camping and fishing.
There is no indication that Mr Ives’s conduct has negatively impacted Child A. The evidence instead suggests that he is a positive influence and that his future conduct, particularly his plans for shared activities, may be beneficial for Child A.
Although Child A’s autism affects his communication preferences, the evidence suggests that he values his interactions with Mr Ives, seeing him as a “fun uncle” who calls and tells jokes.
Mr Ives appears to be one of the few close male figures actively interested in engaging with Child A in meaningful ways.
There is no evidence suggesting any abuse, neglect or exposure to family violence by Mr Ives toward Child A.
There is no indication that Child A has suffered any trauma due to Mr Ives’s conduct.
While Mr Ives’s relationship with Child A is non-parental, he appears to be a caring, supportive figure in Child A’s life.
Weighing all relevant factors, Child A’s best interests support Mr Ives’s presence in Australia. However, the relationship’s non-parental and sporadic nature means this consideration should be tempered.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration supports setting aside the reviewable decision. It carries a moderate weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘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.’
In addition to the above, paragraph 8.5(2) of the Direction directs that a 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 in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) also provides that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct, in Australia or elsewhere, of the following kinds:
(d)acts of family violence;
(e)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(f)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;
(g)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(h)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;
(i)worker exploitation.
Paragraph 8.5(3) provides that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(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.’
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[79]
[79] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).

The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation of a visa, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine’.[80]
[80] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[81]
[81] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm contained in paragraph 8.5, the Tribunal has also considered the guidance provided by the principles set out in paragraphs 5.2(1) to (8) of the Direction. In summary these are:
(a)The Australian government’s highest priority is the Australian community’s safety.
(b)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(c)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.
(d)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 measurable risk of causing physical harm to the Australian community.
(e)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.
(f)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally 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.
(g)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.
(h)Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.
Subparagraph 5.2(4) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas.
Tribunal’s consideration
Mr Ives’s Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. Although a temporary visa, his Visa allowed him to remain in Australia indefinitely if he remained a New Zealand citizen and cannot be classified as a limited stay visa.[82] This implies that subparagraph 5.2(5)’s low tolerance does not apply.
[82] Clause 444.411, Migration Regulations 1994.
Arriving in Australia at the age of eighteen months, Mr Ives has resided here for approximately forty years. This enlivens paragraph 5.2(6)’s higher tolerance.
The Tribunal has found Mr Ives’s offending conduct to be very serious.
The Tribunal is satisfied that Mr Ives has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the higher tolerances assessed above.
Mr Nikjoo raises Waits and Minister for Immigration and Multicultural and Indigenous Affairs[83] and Dang and Minister for Home Affairs (Migration)[84] as approaches to assessing this consideration, but also acknowledges that this primary consideration is also against Mr Ives. He submits however that it should not be given such weight, either individually or collectively, to outweigh the other considerations that support setting the reviewable decision aside.
[83] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 (23 December 2003).
[84] Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 (4 July 2018) at [90]–[91].
Mr McLaren contends that that Mr Ives has failed to meet the expectation of the Australian community that he would obey its laws. Having regard to the serious nature of Mr Ives’s convictions and his repeated and prolonged offending, the Tribunal ought to conclude that the Australian community would expect that the applicant should not hold a visa and that this consideration weighs significantly against setting aside the reviewable decision.
The Tribunal, having assessed the evidence and testimony before it in terms of paragraphs 5.2(1) to (8) and paragraph 8.5 of the Direction, considers that this consideration supports affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries a substantive weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled under section 501 of the Act is barred from applying for any visa other than a Protection visa or a Bridging R visa while in the migration zone.[85]
[85] Section 501E of the Act.
Further, Criterion 5001 of schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
Mr Nikjoo has not argued that Mr Ives engages Australia’s protection obligations, nor does the information before the Tribunal suggest that non-refoulement obligations arise in relation to him.
It follows that a legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia.
Mr Ives’s Visa was not a protection visa, and he is not barred from applying for a protection visa.
The Respondent contends that this consideration should be given neutral weight.
Tribunal’s consideration
The logical consequence of the Direction and the Act in regard to this consideration is that where the revocation of an applicant’s visa is affirmed, the applicant is liable to be removed from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with section 501E of the Act.[86]
[86] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 at [209].
There are no claims of protection or of non-refoulement in this matter.
When the Tribunal considers whether to affirm a decision to cancel a visa under section 501CA(4) of the Act, it must consider the legal consequences of that decision as stated in paragraph 9.1 of the Direction. In this matter, this includes assessing the implications of Mr Ives being removed from Australia as soon as reasonably practicable, such as the possibility of further detention and being precluded from returning to Australia.
In NBMZ v Minister for Immigration and Border Protection,[87] the Full Federal Court held that while the Respondent has broad discretion under the Act, the decision must still follow the legal framework set by the law. The Respondent – and the Tribunal – must consider the legal consequences referred to in the preceding paragraph when making their respective decisions.
[87] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ) at [8], [9] and [153].
The Tribunal must approach this consideration in a logical and rational way, based on a correct understanding of the law, as the High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs.[88]
[88] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [25].
The Full Federal Court in Taulahi v Minister for Immigration and Border Protection[89] stated that the Tribunal’s obligation is to take into account “the direct and immediate statutorily prescribed consequences of the decision in contemplation”.[90] In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision. These statutory consequences are that Mr Ives will be liable to be removed from Australia as soon as reasonably practicable and precluded from returning to Australia, as well as possible further detention in the interim. However, the Tribunal has the discretion to decide how much weight these consequences should carry in its decision-making process.[91]
[89] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146.
[90] Op.cit, at [84].
[91] See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [33] and [38].
The Tribunal has considered the evidence and testimony before it in assessing the legal consequences arising from either affirming or setting aside the reviewable decision as well as attributing weight to this consideration.
Tribunal finding
This consideration carries a small weight in favour of setting the reviewable decision aside.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2(1) of the Direction provides:
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.
Summarising Mr McLaren’s contentions:[92]
(a)Mr Ives is 41 years old and has no health issues aside from substance abuse and mental health challenges. He receives buprenorphine injections for opioid dependence, which can also be accessed in New Zealand.
(b)Having moved from New Zealand to Australia as an infant, he will likely have no language or cultural difficulties in New Zealand, where the lifestyle and language are similar to Australia.
(c)He expresses concerns about the validity of his licenses and qualifications in New Zealand and uncertainties around housing and employment, though no evidence supports these concerns.
(d)The Respondent argues that Mr Ives’s work as a concreter provides transferable skills that could help him find employment in New Zealand, even if his qualifications are not recognised there.
(e)While Mr Ives may face practical and emotional hardship due to limited support networks in New Zealand, these challenges are not insurmountable and only slightly support setting aside the reviewable decision, to an extent that does not outweigh the Primary Considerations.
[92] Exhibit R2: Respondent’s SFIC, [65] – [69].
Summarising Mr Nikjoo’s contentions on behalf of Mr Ives for this consideration:
(a)Mr Ives was brought to Australia at eighteen months of age.
(b)He suffers from PTSD, ADHD, anxiety and drug dependency, the latter managed by monthly buprenorphine injections.
(c)Although New Zealand has healthcare systems comparable to Australia, his rehabilitation relies heavily on his motivation, mindset and the support available in Australia.
(d)Moving to New Zealand, a country he has not known since infancy, may lead to a loss of motivation, leaving him vulnerable to hopelessness and hindering his recovery.
(e)Mr Ives lacks a meaningful support network in New Zealand. His only known connection in New Zealand is an elderly aunt he does not know and who is unable to provide him with any meaningful support.
(f)His employment prospects are limited, as his qualifications and licenses are Australian, with uncertain options for recognition in New Zealand.
(g)This consideration substantially favours setting the reviewable decision aside.
Ms Thompson, Mr Ives’s mother, testified:[93]
“Mr Nikjoo: And you said also you have sincere concerns about his potential deportation. What are your concerns about his deportation?
Ms Thompson: Well, I suppose, mainly, he doesn’t have any family or friends to support over there. All his qualifications that he’s got here aren’t recognised in New Zealand, so if he was wanting to do that type of work again, he’d have to get all new qualifications. He’d have no financial support to help him pay for these things. Like, where would he live? Housing is terrible in New Zealand. It’s very unaffordable. I just – I just don’t know how he’d survive.”
[93] Transcript, page 62, lines 11–18.
She also testified that her sister, Mr Ives’s aunt, lived at Paraparaumu in New Zealand and was approximately seventy. Ms Sakar, Mr Ives’s sister, added in testimony that was not challenged that the aunt in question had Parkinson’s Disease and is not able to take care of herself.
The Tribunal has evidence and testimony before it that establishes that Mr Ives has received training in carpentry and has worked as a concreter, steel fixer, form worker, truck driver and road line marker, as well as having other work qualifications.[94]
[94] Transcript, page 9, lines 8-10, page 23, line 45 – page 24, line 3, page 56, lines 33-34, page 73, lines 25–28, Exhibit A4, page 116, IHMS Drug and Alcohol Recovery Plan, and Exhibit A3, report of Mr Rababi, page 2, ‘Employment History’.
In terms of his physical health, the International Health and Medical Services (IHMS) reports indicate that Mr Ives is of good health.[95]
[95] Exhibit A4.
In terms of his mental health, Mr Rababi’s 15 September 2024 report indicates that Mr Ives suffers from Attention-Deficit/Hyperactivity Disorder (ADHD) and Major Depressive Disorder (MDD), as well as Opioid Use Disorder (in sustained remission) and unspecified trauma and stressor-related disorder.[96]
[96] Exhibit A3, pages 5–17.
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Ives, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
The phrase “(in the context of what is generally available to other citizens of that country)” in paragraph 9.2(1) is of significance because it sets the measuring stick by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Ives is forty-one.
Mr Ives appears to be in good physical health.
In assessing Mr Ives’s mental health, the Tribunal has regard to the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[97] and particularly paragraphs [12]–[14]. From its reading of Mr Rababi’s 15 September 2024 and 10 February 2023 reports,[98] the Tribunal considers, based in part on its analysis of his risk of reoffending assessed under Primary Consideration 1 above, that Mr Ives faces a similar risk of mental health issues and risks to his sobriety whether he is in New Zealand or Australia and also has similar options in New Zealand compared to those in Australia for treatment for his mental health.
[97] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
[98] Exhibit R5: page 388.
In addition, the Tribunal considers it likely that Mr Ives can continue to access Buvidal (buprenorphine) treatment for his drug addiction in New Zealand.[99]
[99] Exhibit A4: IHMS records.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Ives, based on his oral testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to New Zealand.
The Tribunal also considers that Mr Ives is unlikely to face significant cultural issues for the same reason.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence before it, Mr Ives would have access to the same medical, social and economic support as that available to other New Zealand citizens.
Tribunal’s finding
The Tribunal has considered above the extent of any impediments that Mr Ives, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that Mr Ives would likely face emotional, practical and financial hardships if he was returned to New Zealand, as well as risks to his sobriety and his mental health.
These hardships and risks are tempered by his extensive work qualifications and experience in concreting, carpentry and truck driving that, while acknowledging Mr Nikjoo’s concerns, the Tribunal considers will more likely assist Mr Ives in finding employment in New Zealand than not.
This consideration carries moderate weight in favour of setting aside the reviewable decision.
Other Consideration (c): Impact on Australian business interests
There is no evidence before the Tribunal to enliven this consideration and neither party pressed this consideration.
Tribunal finding
It carries neutral weight.
FINDINGS
The Tribunal now summarises the respective weights it has allocated to each of the relevant Primary and Other Considerations (specified in the Direction) in this matter:
Primary Consideration 1 – protection of the Australian community from criminal or other serious conduct:
This consideration weighs very strongly and substantially in favour of affirming the reviewable decision.
Primary Consideration 2 – Family Violence committed by the non-citizen:
This consideration carries neutral weight.
Primary Consideration 3 – the strength, nature and duration of ties to Australia:
This consideration carries substantive weight towards setting the reviewable decision aside.
Primary Consideration 4 – best interests of minor children in Australia affected by the decision:
This consideration carries a moderate weight towards setting the reviewable decision aside.
Primary Consideration 5 – expectations of the Australian community:
This consideration carries a substantive weight in favour of affirming the reviewable decision.
Other Consideration (a) – legal consequences of the decision:
This consideration carries a small weight in favour of setting the reviewable decision aside.
Other Consideration (b) – extent of impediments if removed:
This consideration carries moderate weight towards setting the reviewable decision aside.
Other Consideration (c): Impact on Australian business interests:
This consideration carries neutral weight.
ADDITIONAL CONSIDERATIONS

The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[100]
[100] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has two issues to address:
(a)character test: whether there is a reasonable suspicion that Mr Ives does not pass the character test in terms of section 501(6)(b), and whether Mr Ives satisfies the Tribunal that he passes the character test,[101] and, if not,
(b)exercise of discretion: whether the Tribunal should not exercise its discretion conferred by section 501(2) to cancel Mr Ives’s visa.
[101] Section 501(2) of the Act.
In determining whether there is ‘another reason’ to set aside the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the weights it has identified under the relevant considerations, adopting the guidance and process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[102]
[21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision‑maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).
[102] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
In applying this process, the Tribunal has regard to the Direction and specifically paragraph 7(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.” (Emphasis added.)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[103] sets out a line of higher authorities that substantiates the existence of a discretion in section 501CA(4) to set aside a reviewable decision.[104]
[103] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[104] Ibid at [37] – [39].
Two further authorities offering guidance are the decision of His Honour Justice Dowsett in Aksu v MIMA[105] at [10]–[13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and the decision of His Honour Justice Sackville in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[106] at [54].
[105] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[106] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
Additionally, paragraph 5.1(2) of the Direction refers to the discretion:
“(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.” (Emphasis added.)
Taken together these points imply that the Tribunal retains a discretion to determine whether ‘greater weight’ should be given to Primary Consideration 1 in a specific matter. The Tribunal considers that in this matter, Primary Consideration 1 should be accorded this greater weight.
Having conducted and considered a comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations in this matter leads this Tribunal to a finding that it is not satisfied that there is another reason to set aside the reviewable decision.
DECISION
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent.

Dates of hearing: 8 & 9 October 2024

Date final submissions received: 3 October 2024

Solicitors for the Applicant: Mr Nikjoo of Nikjoo Lawyers

Solicitors for the Respondent: Mr McLaren of Mills Oakley

AATA 3246, [67] (Senior Member Bellamy) (‘GTPT’).

Dates of hearing:	8 & 9 October 2024
Date final submissions received:	3 October 2024
Solicitors for the Applicant:	Mr Nikjoo of Nikjoo Lawyers
Solicitors for the Respondent:	Mr McLaren of Mills Oakley