Jacomb and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 40

Jacomb and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 40 (28 November 2024)
Applicant/s:  John Peter Jacomb
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/6796

Tribunal:General Member Gallagher
Place:Perth
Date:28 November 2024

Decision:The Reviewable Decision, being the decision of the Delegate dated 5 September 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.

......................................[SGD]...............................
General Member Gallagher

CATCHWORDS
MIGRATION – decision of delegate of Minister to cancel visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 41 year old citizen of New Zealand – extent of impediments if returned to New Zealand – non-revocation decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499, 499(1), 499(2A), 500(1)(b), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Kanara and Minister for Immigration and Citizenship [2011] AATA 132
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Pavey and Minister for Home Affairs [2019] AATA 4198
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 2, 3, 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 7(3), 7.2, 8, 8(1), 8.1, 8.1(1), 8.1.1, 8.1.1(a), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.1(1)(b)(iv), 8.1.1(c), 8.1.1(d), 8.1.1(e), 8.1.1(f), 8.1.1(g), 8.1.1(h), 8.1.1(i), 8.1(2), 8.1(2)(b), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(1), 8.3(2), 8.4, 8.4(4), 8.4(4)(a)-(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a)-(f), 8.5(3), 9, 9.2, 9.2(1)(a)-(c), 9.3
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Delegate) dated 5 September 2024, not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (subclass 444) visa (the visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) (the Reviewable Decision).[1]
[1] R2, G3, pp 14-16.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal)[2] on 9 September 2024,[3] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with

s 500(1)(b) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.
[2] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[3] R2, G2.
BACKGROUND
The Applicant is a 41-year-old citizen of New Zealand. The Applicant first arrived in Australia on 18 August 2007,[4] at the age of 23.
[4] R2, G30.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, run on 14 October 2022,[5] a report by New Zealand Police produced on 30 March 2022,[6] and a History for Court Report by the Western Australian Police Force compiled on 18 September 2024.[7]
[5] R2, G6.
[6] R2, G7.
[7] R3, S1.
The Applicant’s offending history is compiled in Annexure A.
The Applicant’s offending commenced in Australia in 2008 and continued until 2021.
Notably, on 20 April 2020, the Applicant was convicted of:[8]
(a)16 counts of offering to sell or supply methylamphetamine;
(b)one count of conspiracy to sell or supply methylamphetamine;
(c)two counts of possession of methylamphetamine with intent to sell or supply; and
(d)two possession of firearms offences.
The Applicant was sentenced to a total effective sentence of eight years six months imprisonment.[9]
[8] R3, S1, pp 4-7.
[9] R2, G8, p 60.
Following an appeal to the Supreme Court of Appeal WA, on 11 May 2021, the Applicant was resentenced to eight years imprisonment.[10]
[10] R2, G9, p 84.
A timeline of the Applicant's convictions and incarceration is set out at Annexure B.[11]
[11] Reproduced from R1, Annexure A.
Present proceedings
On 18 August 2007, the Applicant was granted the visa.[12]
[12] R2, G33, p 200.
On 1 July 2020, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory[13] (the Cancellation Decision). The Applicant was notified by letter dated
[13] R2, G33, pp 200-201.
[14] R2, G33.
1 July 2020, which he received by hand delivery to Hakea Prison.[14]
On 3 March 2022, the Applicant:
(a)was re-notified of the Cancellation Decision;[15]
(b)made a request for revocation of the Cancellation Decision;[16] and
(c)made representations to the Delegate in support of his request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[17]
[15] R2, G34, p 207.
[16] R2, G11.
[17] R2, G12.
On 5 September 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[18] The Applicant was notified of the Reviewable Decision on the same day.[19]
[18] See [1] above.
[19] R2, G2, p 9 and G36.
On 9 September 2024, the Applicant lodged an application in the General Division of the Tribunal,[20] for review of the Reviewable Decision.[21]
[20] As it was then known.
[21] R2, G2.
The Applicant is currently detained at Yongah Hill Immigration Detention Centre.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[22]
LEGISLATIVE FRAMEWORK
[22] See s 501CA(4) of the Migration Act.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(a)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[23] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[23] Section 501CA(3) of the Migration Act.
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[24]
[24] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, p 136 at [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 6 November 2024 at the Tribunal’s Perth Registry. The Applicant was self-represented and appeared in person. The Respondent was represented by Ms Lucinda Taylor of Minter Ellison, who appeared by Microsoft Teams.
At the hearing, the Applicant gave evidence and was cross-examined. No other witnesses were called.
The Tribunal admitted the following documents into evidence:
(a)Bundle of assorted certificates, filed 15 October 2024 (Exhibit A1);
(b)Applicant’s written statement, dated and filed 15 October 2024 (Exhibit A2);
(c)Email from Man Up Australia, dated 24 September 2024 (Exhibit A3);
(d)Four photographs, filed 1 November 2024 (Exhibit A4);
(e)Certificate from Man Up Australia, dated 15 October 2024 (Exhibit A5);
(f)Five photographs, filed 1 November 2024 (Exhibit A6);
(g)Respondent’s Statement of Facts, Issues and Contentions, filed 2 October 2024, including Annexure A (Exhibit R1);
(h)Respondent’s Section 501G Documents, comprising 239 pages, filed 18 September 2024 (Exhibit R2);
(i)Respondent’s Supplementary Documents, comprising 389 pages, filed 2 October 2024 (Exhibit R3); and
(j)Respondent’s Further Supplementary Documents filed 29 October 2024 (Exhibit R4).
The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts.[25] At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110), in their oral closing submissions.
[25] See A3 and R2, various.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[26] Failure to pass the character test arises as a matter of law.[27]
[26] Migration Act, s 501(7)(c).
[27] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
On 20 April 2020, the Applicant was convicted in the Perth District Court of Western Australia of numerous drug related and firearm offences,[28] for which he was, following an appeal in May 2021, sentenced to eight years imprisonment.[29]
[28] See [7] above.
[29] See [8] above.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.[30]
[30] The parties accept this is the case.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[31]
[31] See Migration Act s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction no.110, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[32]
[32] s 501CA(4)(b)(ii) of the Migration Act.
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of section 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to section 499(1) of the Migration Act.[33]
[33] See [38] to [44] below.
Direction no. 110
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[34] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[34] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No. 99.[35]
[35] Direction No. 110, paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of the Migration Act.[36] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction
[36] Direction No. 110, para 5.1(4).
[37] Direction No. 110 at [6].
no. 110 where relevant to the decision.[37]
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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 [sic] risk of causing physical harm to the Australian community.
5Australia 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.
6With 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.
7Decision-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.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[38]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[38] Direction No. 110 at [8].
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[39]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed; and
(c)       impact on Australian business interests.
[39] Direction No. 110 at [9].
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The 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.
3One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In his application for review, the Applicant claimed that the Reviewable Decision is wrong ‘Because I can’t leave my family I have no one in new zealand [sic]’.[40]
[40] R2, G2, p 9.
From the Applicant’s written statements and his submissions at hearing, the Tribunal understands the Applicant’s position to be that the Cancellation Decision should be revoked for reasons of his low risk of reoffending following steps taken to rehabilitate, his strong and enduring family ties to Australia, the best interests of his two minor children and the significant impediments he would face in relocating to New Zealand.
The Respondent, however, contended that the Tribunal should not be satisfied that there is another reason why the Cancellation Decision should be revoked and the correct or preferable decision is to affirm the Reviewable Decision. The Respondent’s summary position is that, having regard to the Applicant’s circumstances as a whole, while there are considerations weighing in the Applicant’s favour,[41] the primary considerations of the protection of the Australian community and the expectations of the Australian community weigh significantly against revocation and outweigh any and all countervailing considerations.
[41] Being the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children in Australia and the extent of impediments if removed.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community.
Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[42]
[42] See also Direction no. 110, para 8(1).
Paragraph 8.1(2) of Direction no. 110 then provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[43] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[44]
[43] For completeness, the Tribunal notes there is no ‘other conduct’ to date that falls for consideration in this matter.
[44] Direction no. 110, para 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction no. 110 provides:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In relation to the nature and seriousness of the Applicant’s conduct, the Applicant was directed to his conviction in July 2001 of driving with a breath alcohol level over the limit[45] and disagreed with the proposition that he drank alcohol excessively during his life.
[45] R2, G7, p 42.
As to his driving offending, the Applicant accepted that his offence of Unlicensed Vehicle (Owner/Driver) on 2 June 2008[46] occurred within less than a year of him arriving in Australia.
[46] R3, S3, p 12.
When taken to his record of having been convicted of a further eight traffic offences between December 2013 and July 2015,[47] and then to his explanation for this in his statement that:[48]
A lot of these charges were connected to my fixing up cars and motorbikes. For example, I would finish building or fixing one up and stupidly I would test drive some of them and ultimately in most cases. It would result in being pulled over by police and then charged and fined.
The Applicant said that this was an accurate explanation for his offending.
[47] R2, G6, pp 40-41.
[48] A2, p 2.
When taken to the facts of some of these traffic offences, the Applicant:
accepted that in relation to his offence of Unlicensed Vehicle (Owner/Driver) on 18 December 2013,[49] he was the owner of the vehicle.
(b)accepted that in relation to his offence of No Authority to Drive (Fines Suspended) offence on 8 April 2014,[50] he was aware that the offence was subject to a fines suspension.
(c)could not recall in relation to his offence of No Authority to Drive (Fines Suspended) on 28 June 2014,[51] whether he was the owner of the vehicle involved or whether he was test driving a vehicle he was fixing that was owned by a friend.
(d)accepted that in relation to his offence Unlicensed Vehicle (Permit Use) on 3 August 2014,[52] that he owned the vehicle involved, although he could not recall the facts of the offence.
[49] R3, S3, p 14.
[50] R3, S3, p 15.
[51] R3, S3, p 16.
[52] R3, S3, p 18.
As to why the Applicant continued to drive when he had committed driving-related offences, the Applicant said that it was due to his carelessness and stupidity and that in some cases, he had a clear intention to drive knowing that he would commit an offence by doing so.
When taken to the record of his having been convicted of 12 further driving offences in 2016,[53] and further driving offences in 2018 and 2019,[54] the Applicant agreed that his driving offences occurred frequently, that these crimes were serious and that his driving history shows a disregard for Australian traffic laws. The Applicant said that he also accepts that of the vehicles that he drove that he owned (as opposed to the vehicles he drove that were owned by friends), it was his responsibility to licence and register those vehicles.
[53] R2, G6, p 40.
[54] R2, G6, p 40.
The Applicant gave evidence that the circumstances of his leg injury were that he was victim of a home invasion on 8 March 2015, where he suffered the loss of his leg. The Applicant said it was a horrible experience, that his children were also shot at, and he continued to receive threats from those involved after the event. The Applicant said ‘he couldn’t tell you’ what motivated the attack, it was a random attack, that he had never met the attackers and the police had told him that the offenders were on a crime spree.
In his statement, the Applicant said of the attack:[55]
12In April 2015 I was shot in a violent home invasion which resulted in the loss of my leg
13After losing my leg I struggled to accept reality I started self-medicating with meth which eventuated into a habit
14My first day out of hospital my partner was burned in a fire and went to hospital for 8 weeks
15Struggling to get by and now in a wheelchair I took the easy way out and started selling meth to help cater for my habit and also help me out financially as I couldn’t work or make money to provide for my family
16In late 2015 my partner and I received threats of violence from the men that shot me about not testifying against them in court and one of the men had been given bail was threatening to pay a visit to my family
17I obtained two firearms for my partner and I to protect our family in case of another home invasion
[55] R2, G13, p 112. See also A2, p 2.
The Applicant was taken to the following entries of his interview following sentencing:[56]
[The Applicant] stated that he has issues with the current alertees (Rebels) on TOMS since they shot his leg due to drug debts.
…
On 12/05/2020, [the Applicant] was again interviewed for a possible placement at Casuarina prison to facilitate visits. He informed the writer that he will speak to his Unit Manager and Security to reactivate a previous alert since the alertee is currently residing in Casuarina prison and he shot him at his leg along with the current active alert members on TOMS due to drugs. He informed that his life with be in danger in placed at Casuarina Prison.
The Applicant denied the matters in these entries, denied that he ever made these comments, has no idea why these matters had been mentioned and said that he always maintained that he did know the offenders. The Applicant also said that he met the offenders in prison, where they had a mediation and following which a lifetime VRO was imposed on them by the courts.
[56] R4, FS1, pp 4 and 7.
When asked, the Applicant also denied engaging in the commercial sale of drugs in 2015 just prior to the home invasion and shooting and said that he was working at the time and selling drugs was not a part of his income.
The Applicant admitted to the personal use of methylamphetamine in 2014, however did not agree with the proposition that the scales and transaction lists found in his home by police on 24 November 2014 were for the sale of prohibited drugs.[57] The Applicant said that rather, the scales were used to track the weight of the drugs for personal use and disagreed that any lists kept were records of transactions as such.
[57] See R3, S3, p 21.
The Applicant was taken to a further record dated 24 November 2014 :[58]
Whilst searching the master bedroom occupied by the accused detectives located a loaded .410 calibre double barrel sawn off Shotgun within the bedroom cupboard. This area included clothing owned by the accused.
During the search warrant recording the accused made full admissions in relation to owning the firearm.
The Applicant said that he had been in possession of a shotgun because he had refurbished it for his landlord and locked it in his cupboard for the safety of his children. The Applicant also said that it was definitely not his own gun (contrary to his indication in the police record) and at the time it was found by police he had ‘literally just finished it’.
[58] R3, S3, p 21.
As to the three metal knuckle dusters and hand held electronic shock device (stun gun) reported to have been found by detectives at the Applicant’s home on the same day,[59] the Applicant said he actually had 50 knuckle dusters and had been polishing them for a friend ‘for paid work’. The Applicant agreed he had told detectives that he had made the knuckle dusters and possessed them for his own protection, however this did not reflect the actual situation.
[59] R3, S3, pp 25-26.
When the Respondent conveyed its intrigue that the Applicant was dishonest with police and detectives regarding these matters at the time, but honest with the Tribunal at hearing, the Applicant said he was a different person now.
In relation to the principal offending,[60] the Applicant said that the offences were correctly reflected in the check results report.[61] The Applicant said that his drug use escalated after his leg was amputated and after his partner’s accident. When taken to the sentencing judge’s comment that he did not accept that the Applicant was not relying on the sale of drugs as a source of income,[62] the Applicant said he accepted that he was selling drugs to generate income to support his family and to support and maintain his own ‘heavy habit’.
[60] See [7] above.
[61] R2, G6, p 39.
[62] R2, G8, p 50.
As to the sentencing judge’s remark that:[63]
Evidence gathered during this investigation demonstrated that you had an established network of people to whom you would supply drugs, again methylamphetamine. Furthermore, discussions between you and others regarding weights and price have demonstrated that you were capable of selling or supplying large quantities, including trafficable quantities, of drugs on a regular basis.
The Applicant said that while that information is correct, he disagrees with some parts of it. The Applicant said that some of the ‘code talk’ was in relation to drugs but some of it was not.[64] The Applicant emphasised that not all of his charges were drug related, but accepted that he was selling drugs at that time.
[63] R2, G8, p 46.
[64] See A2, p 3, where the Applicant states some of these conversations were in relation to car parts he had been selling at the same time.
The Applicant also accepted that he committed drug offending while on bail and that this demonstrates a disregard for his bail conditions. As to the sentencing judge’s remark that:[65]
The aggravating features of this offending is that they involved particularly large quantities of drugs that you were able to source and supply. The duration of your offending supported the conclusion that you were a significant dealer in drugs at a high level with the capacity to source drugs in large quantities if required to do so.
The Applicant said that while he agrees with this ‘in a nutshell’, he disagrees with some of the specifics such as he was not a ‘high end drug dealer’ and was not trying to minimise his offending.
[65] R2, G8, p 50.
When asked, the Applicant said he agreed that he had a persistent defiance and disregard for the law. The Applicant also accepted that the firearm he was found in possession of was his weapon.
The Applicant agreed ‘in a nutshell’ with the sentencing judge’s remark that:[66]
The drug use since 2014, for the period that you lost your leg, is obviously significant. But you do have a number of offences in your criminal history that evidence the use of drugs prior to that incident occurring, so it can’t be said that it was a trigger for the incident.
The Applicant added, however, that he only had one drug charge prior to the home invasion, in circumstances where the drugs were for his personal use.
[66] R2, G8, p 51.
In relation to the nature and seriousness of the Applicant’s conduct, the Respondent submitted that the Applicant's conduct should be viewed very seriously for the following reasons:[67]
[67] R1 [20]-[27].
the Respondent submitted that the Applicant's criminal history ‘demonstrates a high frequency of offending, including drug and weapon possession, supply and selling of drugs and various driving offences committed in Australia and New Zealand’;
(b)the circumstances of the Applicant’s principal offending are very serious in nature, being:
(i)on 20 April 2020, the Applicant was sentenced to 15 counts of offering to sell or supply prohibited drug, namely methamphetamine, one count of possessed an altered firearm whilst not being the holder of a firearms license, one count of possess unlicensed firearm, one count of conspiracy to sell or supply a prohibited drug, and two counts of possession of a prohibited drug, namely methamphetamine, with intent to sell or supply;[68]
[68] R2, G8, p 44.
(ii)between January and March 2016, police intercepted the Applicant's mobile telephone communications, including calls and text messages, which indicated that the Applicant engaged in several offers to sell various quantities of drugs, and had an established network of people to whom he would supply methylamphetamine on a regular basis;[69]
[69] R2, G8, p 46.
(iii)the Applicant offered to provide weapons to his affiliates, including a handsaw, and a long rifle and a homemade submachine gun were later discovered by police;[70]
[70] R2, G8, pp 46-47.
(iv)the Applicant committed the second offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply[71] while on bail;[72]
(v)the sentencing judge considered there were several aggravating factors in relation to the applicant's crimes, including that the Applicant was a 'significant dealer in drugs at a high level with the capacity to source drugs in large quantities if required'.[73] Further factors included that the Applicant's crimes were commercially motivated, he was willing to source various firearms, he committed crimes while on bail twice and the duration of the offending was extensive;[74] and
(vi)on appeal to the Supreme Court of Western Australia, the Court held that the District Court had failed to properly discount time served by the Applicant. Notwithstanding, the Court held that 'a total effective sentence of 8 years imprisonment properly reflects the applicant's criminality in all its circumstances.’[75]
(c)the Applicant's drug offending regarding the sale and supply of methylamphetamine is particularly serious. The Tribunal has previously recognised that methylamphetamine 'cause[s] real and serious harm to the Australian community. To profit from its sale is to live off that harm, with little or no regard for others';[76]
(d)the Applicant's criminal history reveals a pattern of regular offending. Relevantly, having regard to the Applicant's prior criminal behaviour, the sentencing judge noted that it indicated 'a persistent defiance and disregard to the law over the past six years, particularly, in respect of drugs and traffic matters'.[77] There is a cumulative effect of the Applicant's repeated conduct over time, demonstrating an enduring tendency towards offending and a flagrant disregard for the laws and values of Australia and, furthermore, has resulted in a cost to the community in terms of law enforcement and judicial resources;[78]
(e)the Applicant's lack of respect for the law is particularly demonstrated by his lengthy history of traffic offences including a conviction in New Zealand in 2001 for driving with a blood alcohol level of over 400mcgs[79] and multiple traffic infringements in Australia from 2008-2019. As noted by the sentencing judge, despite receiving multiple fines and spent convictions, the Applicant was not dissuaded from continuing to offend;[80]
(f)further, offending while on bail was considered by the sentencing judge to be an aggravating feature of the Applicant's offending, as the Applicant was dealing in drugs a week after being released on bail in 2016 and committed further offences while on bail again in 2019. The sentencing judge noted that this highlighted 'that the offences to which [the Applicant] pleaded guilty are not out of character and just an example of [the Applicant's] readiness to break the law';[81]
(g)the Applicant's offending has been increasing in seriousness with the offending which led to the cancellation of the visa;[82] and
(h)the seriousness of the Applicant's offending is further reflected in the fact that the Applicant received a custodial sentence of eight years.[83]
[71] Referred to at [70(b)(i)] above.
[72] R2, G8, p 50.
[73] R2, G8, p 50.
[74] R2, G8, p 50.
[75] R1, G9, p 84.
[76] Kanara and Minister for Immigration and Citizenship [2011] AATA 132 at [32] per SM Toohey.
[77] R1, G8, p 52.
[78] Referring to Direction no. 110, para 8.1.1(f).
[79] R1, G7, p 42.
[80] R1, G8, p 52.
[81] R1, G8, p 53.
[82] Direction no. 110 para 8.1.1(e).
[83] Direction no. 110 para 8.1.1(c) and referring to Pavey and Minister for Home Affairs [2019] AATA 4198 per SM Tavoularis at [44].

The Tribunal has considered the parties submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.
The Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed. The Tribunal also notes the Applicant has been sentenced to a term of imprisonment of eight years and the related sentencing remarks.
In relation to para 8.1.1(1)(a) of Direction no. 110, the Tribunal finds that the Applicant’s offending is very serious. It is not in dispute that the Applicant’s criminal history is lengthy, that his offending commenced soon after his arrival in Australia and that his term of imprisonment is significant.
The Tribunal notes that some of the conduct it regards as very serious does not fall squarely within the conduct referred to in para 8.1.1 of Direction no. 110. It is not strictly required to. Indeed, para 8.1.1(1)(a) of Direction no. 110 makes clear that the range of conduct that may be considered ‘very serious,’ is not limited to the types of crimes or conduct expressly referred to in that paragraph.[84]
[84] Direction no. 110, para 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious,’ using the same prefix ‘without limiting the range of conduct that may be considered serious…’
Namely, the Tribunal has regard to the fact that the Applicant’s history of driving and traffic offences are serious crimes against other road users,[85] and drug related offences, which the Tribunal has also often cited as serious.[86] The repeated nature of the Applicant’s driving and drug offences further demonstrates the seriousness of the offending and the increased potential for catastrophic harm.
[85] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51] to [54].
[86] See for example Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753 at [75].
The Applicant’s offending involved conduct for which he was ultimately sentenced to eight years imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[87] and is, in the Tribunal’s view, probative of the overall seriousness of that offending conduct.[88]
[87] Direction no. 110, para 8.1.1(1)(b)(iii).
[88] Direction no. 110, para 8.1.1(1)(c).
In considering para 8.1.1(1)(b) of Direction no. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage,[89] whether the crimes were committed against vulnerable members of the community or government representatives or officials[90] and any crime committed while in immigration detention.[91] None of the Applicant’s offending or other conduct falls within these categories, nor have the parties made claims in this regard.
[89] Direction no. 110, para 8.1.1(1)(b)(i).
[90] Direction no. 110, para 8.1.1(1)(b)(ii).
[91] Direction no. 110, para 8.1.1(1)(b)(iv).
The Applicant’s offending has been frequent in the Tribunal’s view, particularly since 2013,[92] and marked with a trend of increasing seriousness in the sense that his principal offending attracted an eight year term of imprisonment because the nature of the offending was so serious that no other sentence in the circumstances would be justified.
[92] Direction no. 110 para 8.1.1(1)(e).
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent the Applicant committed a considerable number of offences) is a significant feature of the offending, culminating in sentence of eight years imprisonment .[93]
[93] Direction no. 110 para 8.1.1(1)(f).
For completeness, the Tribunal notes that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(d), 8.1.1(1)(g), 8.1.1(1)(h) or 8.1.1(1)(i) of Direction no. 110.
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has engaged in a range of drug and traffic offending. The Applicant has a substantial criminal record, involving considerable drug and traffic offending, which has escalated over time as evidenced by the terms of imprisonment ordered and the total effective sentence imposed.
Therefore, having regard to the evidence which paras 8.1.1 of Direction no. 110 are relevant and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[94]
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[94] See also Direction no. 110, para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[95] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[96]
[95] Direction no. 110, para 8.1.2(2)(a).
[96] Direction no. 110, para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[97]
[97] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[98]
[98] Direction no. 110, para 8.1.2(2)(a).
The Applicant gave evidence that he accepted that firearms can cause immense harm, that methylamphetamine use can also cause significant harm to members of the community and that he personally has been impacted by significant methylamphetamine use.
As to the sentencing judge’s remark that he did not accept that the Applicant was truly remorseful in circumstances where he defended and accepted no responsibility for his offences until his guilty plea four years later[99] and the sentencing judge’s perception that the guilty plea was entered into out of self-preservation and self-interest, the Applicant said he could understand why the sentencing judge would hold that opinion, however he was following his lawyer’s directions at the time.
[99] R2, G8, pp 52 and 54.
When asked why the Tribunal should accept the Applicant’s claims of remorse for his offences in their entirety in circumstances where he has sought to qualify or explain his offending (for example, that he was test driving a car he didn’t own, that he owned the car but was fixing it or that he took the blame for his friends) the Applicant said he was never trying to minimise his offending.
In relation to the nature of the harm to individuals or the Australian community should the Applicant reoffend, the Respondent contended that:[100]
further drug offences would expose the Australian community to harm arising from the commercialisation and consumption of illicit drugs and any further driving offences would expose the Australian road users, and police who are tasked with apprehending dangerous drivers, to potential physical harm.
[100] R1 at [33].
The Tribunal remains somewhat unconvinced of the Applicant’s remorse in circumstances where the Applicant still sought to explain or qualify some aspects of the facts of his offences as recorded by the police and where the Applicant continued to drive knowing he was unlicensed to do so.
As such, the Tribunal views that rather, the Applicant’s remorse is tied to the consequences that would flow should he be removed, in relation to him being unable to see his family, friends and community contacts in the future.
In the Tribunal’s view, should the Applicant commit further similar offences, in particular driving and drug-related offences,[101] this would clearly result in further very serious harm that may cause considerable and widespread physical, psychological, emotional and economic harm to members of the Australian community, including the Applicant’s children and other family members.
[101] See Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]-[54].
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[102]
[102] Direction no. 110, para 8.1.2(2)(b).
The Applicant claims he will not reoffend because he has taken the necessary steps to address his offending behaviour by completing rehabilitation programs and courses while in prison and detention.[103] The Applicant said:[104]
I have learned a lot about myself through these courses and have taken on board a lot of valuable information and learned about accountability and responsibility and ownership of my actions in order to rehabilitate myself and how to deal with life’s curve balls in a more constructive and positive manner. I can’t change the past or take back mistakes all I can change is myself and how I deal with these things in the future.
[103] See R2, G24 and G25; A1; and A5.
[104] A2, p 5.
At hearing, the Applicant gave evidence that drugs did play a part in his offending, however his mental health was poor following the home invasion. When asked, the Applicant said he had not undergone any medically supervised drug rehabilitation because this was not available to him in prison or detention and that he has completed whatever courses and programs were available to him. The Applicant said he ceased using drugs when he was locked up, was not currently using drugs and has passed every drug test in prison.
The Applicant said he has met with psychologists in the past but has never had a mental health diagnosis, hence his never having had mental health treatment or medication.
The Respondent contended that there is insufficient evidence on which to be satisfied that the Applicant's risk of recidivism is low, having regard to the following:[105]
(a)in sentencing remarks dated 20 April 2020, the Court noted that it had difficulty accepting that the Applicant was genuinely remorseful, stating that the Applicant's 'previous criminal behaviour indicates a persistent defiance and disregard to the law over the past six years, particularly, in respect of drugs and traffic matters'.[106] The Court further noted that the Applicant's conduct and criminal history provided the court with 'no confidence that [the Applicant] truly [has] much capacity for remorse';[107]
(b)in relation to the Applicant's rehabilitation, the Court noted that the Applicant had 'been given the opportunity to achieve rehabilitation in the past' and that the Applicant's 'response to the chances that have been offered and the leniency that's been extended has been most unsatisfactory';[108] and
(c)in respect of the Applicant's earlier offending and the fines he had previously received, the Court stated that it 'clearly didn't dissuade [the Applicant] from continuing to reoffend and to offend then in a more serious way as [he] did at the commencement of 2016'.[109] The Court further highlighted the need for personal deterrence due to the fact that the Applicant continued to deal in illicit drugs after being released on bail.[110]
[105] R1 at [30].
[106] R2, G8, p 52.
[107] R2, G8, p 54.
[108] R2, G8, p 52.
[109] R2, G8, p 52.
[110] R2, G8, p 57.
The Respondent also contended that:[111]
(a)it understands that the Applicant claims to have begun his drug habit after a 2015 home invasion incident which resulted in the loss of his leg.[112] However, there is evidence before the Tribunal that the Applicant was involved in drugs prior to this incident, and, in addition to this, that the incident itself involved the Applicant's drug dealing activities, as it was noted by Judge Birmingham that the home invaders demanded drugs prior to shooting the Applicant;[113]
(b)while it acknowledges that the evidence before the Tribunal indicates that the Applicant completed certain rehabilitation programs and courses whilst in prison, the Applicant has been in controlled environments in prison and subsequently in immigration detention, such that, given the Applicant's significant criminal history, any capacity to abstain from drugs or criminal offending is untested in the community; and
(c)as such, given the Applicant's significant criminal background, history of recidivism and lack of being tested in the community, the Tribunal should not be satisfied that the risk of the Applicant reoffending is such that the protection of the Australian community should be given anything less than heavy weight in favour of not revoking the Cancellation Decision.
[111] R1 at [31], [32] and [34].
[112] R2, G13, p 112.
[113] R3, S5, pp 206 and 213; S13, p 383.
The Applicant is asking the Tribunal to accept his claims of rehabilitation and that he won’t reoffend given his claims of remorse, completion of rehabilitation courses, and his desire to be reunited with his family should he be released.[114]
[114] A2, p 5.
As there is no expert report regarding the risk of the Applicant reoffending for the Tribunal to consider, the Tribunal is tasked with considering risk based on the lay evidence available to it.
The Tribunal considers that the weight to be placed on the Applicant’s claims of rehabilitation should be mitigated by the following:
(a)the link between likelihood of reoffending and remorse is well accepted. As noted above,[115] the Tribunal remains somewhat unconvinced of the Applicant’s remorse. In any event there is no justification for the Applicant’s behaviour;
(b)the Applicant claims to have never used alcohol excessively and that he ceased drug use upon entering prison. The Applicant accepts he had a substance use disorder, however has not completed a rehabilitation program targeted at substance use. The Applicant said that his rehabilitation has come from course work and programs he has completed. The Tribunal is without an expert opinion regarding the likelihood of the Applicant refraining from these behaviours in the future, when undoubtedly he will face stressful situations should he return to the community;
(c)the evidence regarding the Applicant’s mental health is somewhat inconsistent. The Applicant maintains that his mental health may have contributed to his offending, however gave evidence that he has never been diagnosed with a mental health condition; and
(d)the Applicant did not call any of the witnesses who provided letters of support to appear before the Tribunal. As such, their evidence and views as to the Applicant’s risk of reoffending is untested and the Tribunal therefore treats this evidence with caution.
[115] See [92].
Having considered all of the evidence, the Tribunal is of the opinion there is a real risk that the Applicant will reoffend in a similar manner. Given the significant risk of harm from driving offending and drug offending, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community in general.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community weighs heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence.[116] Accordingly, the Tribunal considers that this consideration is not relevant to the Applicant’s case and weighs neutral.
[116] The Respondent is of the same view: R1 [36].
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
1Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As to his claimed strong and enduring ties to Australia, the Applicant gave evidence that his family is ‘everything’ to him and he cannot lose them:[117]
[m]y children need their father as well as my sisters [sic] children [sic]
I couldn’t imagine not being part of their lives, as I stated in my revocation they are have been the driving force behind my rehabilitation. I speak to them everyday [sic] and hopefully one day I can return home to them and be a positive figure in their lives as I believe children need their fathers especially my young boys [sic]
I could not imagine being them growing up without me they have been through a lot already.
[117] A2, p 5.

The Respondent made the following observations and submissions regarding the strength, nature and duration of ties consideration:[118]
(a)the Applicant arrived in Australia in 2007 aged 23 and has been in Australia for 17 years. Accordingly, his childhood, adolescence and early adulthood were spent in New Zealand;
(b)the Applicant’s partner is a citizen of New Zealand and resides in Australia on a special category visa. The Applicant and his partner have been in a relationship for 19 years and have four children together, who all live in Australia. If the Applicant were removed from Australia, his partner’s evidence is that she intends to remain in Australia;[119]
(c)the Applicant began offending with the traffic offence of driving an unlicensed vehicle in 2008, shortly after arriving in Australia, and began offending frequently from 2013;
(d)the Applicant has a partner in Australia and four children aged 5-19 years who are all New Zealand citizens;[120]
(e)the Applicant's parents also live in Australia but are not permanent residents and the Applicant's siblings, uncles and multiple cousins also reside in Australia;[121]
(f)in addition to his family members and partner, the Applicant has provided support letters from friends Emma-lee Pascov and Damian Seroka,[122] however, it is unclear whether they are permanent residents or citizens of Australia or have a right to remain in Australia indefinitely;
(g)the Applicant appears to have a limited work history in Australia. It is understood that since a 'run through' of the Applicant's house in 2015 in which he was shot in the leg and lost his leg as a result, he has not had any legitimate employment;[123] and
(h)while the Applicant has links to the Australian community through his family members, the weight given to this consideration should not outweigh the countervailing considerations that weigh against revocation.
[118] R1, [38]-[41].
[119] R2, G16, p 121.
[120] R2, G12, pp 101-102.
[121] R2, G12, p 106.
[122] R2, G15, p 119; G19, p 124.
[123] R1, G9, p 69.
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal is required to consider any impact of the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to remain in Australia.[124] The Tribunal is also required to consider the strength, nature and duration or any other ties that the Applicant has to the community.[125]
[124] Direction no. 110, para 8.3(1).
[125] Direction no. 110, para 8.3(2).
The Applicant has presented limited evidence regarding his family and social ties to Australia and the importance of him being present in Australia to care for his family members. The Tribunal has had regard to a number of matters pertinent to this evidence being:
(a)the Applicant arrived in Australia in 2007 at 23 years of age;
(b)the Applicant spent his childhood and adult life and employment in New Zealand;
(c)the Applicant began offending in Australia in 2008, within a year of his arrival. The Applicant accepts this;
(d)in the years that followed, other than between 2009 and 2012, the Applicant offended continuously, consistently and seriously;
(e)the Tribunal accepts that in the years the Applicant has lived in Australia, he has been employed in various roles and hence has made positive contributions to the community;
(f)however, the Applicant’s offending conduct has necessitated significant resources and expenditure in law enforcement, including police and the justice system more broadly;
(g)while the Applicant has claimed family and social links in Australia and has provided letters of support in that regard,[126] no witnesses were called to attest to these relationships or the impact those persons would experience if the Applicant were removed from Australia. As such, the Tribunal treats this evidence with caution; and
(h)at hearing, the Applicant accepted that while it would not be his preference, his relationships with family could continue by electronic means if he were removed.
[126] See R2 (various) and A3.
Having considered the available evidence and the parties submissions, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia consideration weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 is, or is not, in the best interests of children who are under the age of 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors are:[127]
[127] Direction no. 110, paras 8.4(4)(a)-(h).
(a)the nature and duration of the relationship between the child and the non-citizen, [noting] less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has identified the following minor children who will be affected by the decision:
(a)his two minor sons, who are five and 16 years of age, respectively;[128] and
(b)his two minor nieces (being the children of his late sister), aged seven and 15 respectively.[129]
[128] The Applicant and his partner also have two daughters who are 18 and 19 years of age, respectively. Both of these children were over 18 years of age at the time the matter was heard, therefore their interests are not relevant to this consideration.
[129] The Applicant also has a minor age nephew, who is 13 years old (R2, G12, p 104).
The Applicant claims being apart from his children would have a ‘huge impact’ on their lives,[130] that he has a close relationship with his children and that they visit him every weekend.[131] He adds:[132]
I couldn’t imagine not being a part of their lives, as I stated in my revocation they are and have been the driving force behind my rehabilitation. I speak to them everyday and hopefully one day I can return home to them and be a positive figure in their lives as I believe children need their fathers especially my young boys [sic]
I could not imagine them growing up without me they have been through a lot already.
[130] R1, G12, p 103.
[131] R1, G12, p 103.
[132] A2, p 5.
At hearing, the Applicant gave evidence that he has been unable to play the same parental role to his children since he was incarcerated and communicates with them via visits, phone calls, letters and cards. The Applicant said he speaks to his children numerous times each day and while it is not is preference, he could continue to do so if he were removed to New Zealand.
The Applicant also claims to have a close relationships with the two minor children of his late sister,[133] that he treats his nieces and nephews as his own children and that he speaks to, and sees them, regularly. At hearing, the Applicant said he has been a father figure to his nieces since their births and is particularly close to his youngest niece.
[133] R1, G12, p 104.
Limited further information has been provided in respect the Applicant’s minor nieces and the Applicant's role in their lives.[134] Broadly speaking, the Applicant’s removal would deprive these children from having a direct relationship with him.
[134] R1, G12, p 105.
When considering the relevant factors in Direction no. 110, the Tribunal makes the following observations and findings:
(a)the Applicant’s relationship with his minor children (his sons and nieces) is non-parental, marked with long periods of absence and with limited meaningful contact;[135]
(b)the Applicant will not necessarily play a positive role in the minor children’s lives (his sons and his nieces) given the nature and frequency of his criminal history and the objective seriousness of his offending.[136] The Applicant’s minor age children are currently five and 16 years of age and his nieces are aged seven and 15. The Applicant’s son, in particular, has several years until he turns 18 years of age. While the Applicant has intentions of playing a parental role to these children, he expresses no realisation of the magnitude of this task and the fact that his ability to do so is directly related to his ability to abstain from drugs and not reoffend (which is yet to be tested in the community);
(c)regarding the impact of the Applicant’s prior conduct,[137] while the Tribunal accepts the Applicant’s separation from his children and minor nieces would have had a negative impact on them, that separation was brought about as a consequence of his repeated offending conduct. For the Applicant to be at risk of exposure to drug use is clearly not in their best interests going forward;
(d)should the Applicant’s separation from his minor children and nieces continue indefinitely if the Applicant were removed, the negative impact would remain, despite the ability of the Applicant and his minor children to maintain contact electronically.[138] Further, whilst maintaining relationships by electronic means presents challenges, removal of the Applicant to his country of origin would not prevent the Applicant from communicating with his children and nieces through video calls and other means. The Tribunal accepts that this form of communication would not be the same as the Applicant being physically present in the children’s lives. However, it is not inconceivable that the children and nieces could see the Applicant in New Zealand; and
(e)both of the Applicant’s minor children currently have a parental figure in their lives, being the Applicant’s partner, and would not be left without a parental figure if he were removed.[139] This is also the case for the Applicant’s minor age nieces, with the parental role being filled by his sister.
[135] Direction no. 110, para 8.4(4)(a).
[136] Direction no. 110, para 8.4(4)(b).
[137] Direction no. 110, para 8.4(4)(c).
[138] Direction no. 110, para 8.4(4)(d).
[139] Direction no. 110, para 8.4(4)(e).
For completeness, there is no evidence regarding the matters addressed in paras 8.4(4)(f), 8.4(4)(g) and 8.4.4(4)(h) of Direction no. 110.
Overall, the Tribunal finds that the best interests of the Applicant’s minor children weighs slightly in favour of revocation of the Cancellation Decision.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Direction no. 110 goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[140]
[140] Direction no. 110 para 8.5(1).
Paragraph 8.5(2) of Direction no. 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction no. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very serious’ or ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.[141]
[141] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 at [86]-[87].
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction no. 110.
paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government;
(b)paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia; and
(c)paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
The Applicant’s offending history is lengthy and he has been convicted of serious drug offence and traffic offending and offences involving weapons.
In light of the extent and seriousness of the Applicant’s criminal offending, the expectations of the Australian community should weigh heavily against revocation of the Cancellation Decision.
Other considerations
Paragraph 9 of Direction no. 110 states:
1In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[142]
[142] Direction no. 110, para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
(a)unlawful status;
(b)the likelihood of becoming subject to detention and/or removal;[143]
(c)refusal of other visa applications and cancellation of other visas;[144]
(d)a prohibition on applying for other visas;[145] and
(e)periods of exclusion and special return criteria may apply.[146]
[143] Migration Act, ss 189, 196, 197C, 198.
[144] Migration Act s 501F.
[145] Migration Act s 501E.
[146] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[147] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[148]
[147] Migration Act, s 15.
[148] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Applicant has not raised claims based on Australia’s non-refoulment obligations.
In the Tribunal’s view, the Applicant’s circumstances are not such that a non-refoulement claim would arise with respect to the Applicant’s return to the New Zealand.
The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501. The Tribunal acknowledges these legal consequences.[149]
[149] See [134] above.
As the effect of cancellation is considered under the third and fourth primary considerations and the ‘extent of impediments if removed’ consideration, the Tribunal considers this consideration carries neutral weight in the Applicant’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in paras 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under paras 9.2(1)(a), (b) and (c) of Direction no. 110 are:
(a)the [Applicant’s] age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in their country.
As to his plans if removed to New Zealand, the Applicant said that he had ‘no clue’ as to where he would live as he has no family ties there. Regarding work in New Zealand, the Applicant said he had no real plans and ‘hasn’t got that far’ as the idea of it is horrible.

Regarding the Applicant’s statement that:[150]
…I am still going thru [sic] a health plan of rehabilitation for my leg as I have just had corrective surgery and I am currently getting my new leg built and rehab to help me walk better again God willing this one works and I can try to get back to a somewhat normal life again.
[150] A2, p 5.
The Applicant said that he has not made any plans or spoken to anyone regarding if he will need specialist treatment for his leg in New Zealand, because he is planning to remain in Australia. The Applicant said that his last corrective surgery for his leg took place in June 2024 and that he needs further surgery for a bone spur. The Applicant said he has no other health conditions.
When asked if he could reintegrate into his old social networks in New Zealand from when he was a young adult, the Applicant said he has not been or spoken to anyone in New Zealand for almost 20 years.
The Applicant also confirmed his partner intends to remain in Australia and agreed that should she and his children wish to visit him if he were removed, it would be a relatively straightforward process given they are New Zealand citizens.
The Respondent accepts that the extent of impediments consideration should be given limited weight in favour of revocation, relying on the following matters in support of its position:[151]
(a)the Applicant will be able to establish himself and maintain basic living standards;[152] Direction no. 110;
(b)the Applicant is 41 years of age and, aside from a prosthetic leg, does not have any known health conditions;[153] Direction no. 110;
(c)the Applicant lived in New Zealand until he was 23, and will not face substantial language or cultural barriers;[154]
(d)the Applicant is likely to face emotional hardship and a period of readjustment on return to New Zealand given the separation from his partner and extended family; however, there is no evidence that the Applicant's family are unable to re-locate to New Zealand if they so choose; and
(e)the Applicant will also have access to the same level of medical and economic support as what is generally available to other citizens of New Zealand.[155]
[151] R1, [51].
[152] Direction no. 110, para 9.2(1).
[153] Direction no. 110, para 9.2(1)(a).
[154] Direction no. 110, para 9.2(1)(b).
[155] Direction no. 110, para 9.2(1)(c).
As noted above, the Applicant is 41 years old. It is unclear what further ongoing medical treatment the Applicant requires in relation to his leg, however there is no evidence that whatever treatment the Applicant may require in the future would not be available to him in New Zealand. The Applicant gave evidence that he is not suffering from any physical or mental health conditions.[156] Having lived in New Zealand as a child and a young adult, and in any event, there is no evidence before the Tribunal that any language or cultural barriers exist in New Zealand should the Applicant be removed.[157]
[156] Direction no. 110, para 9.2(a).
[157] Direction no. 110, para 9.2(b).
The Tribunal accepts that the Applicant has retained no social connections with any friends, family or other contacts in New Zealand and that his support network is entirely in Australia.[158]
[158] Direction no. 110, para 9.2(c)
While the Applicant may encounter some difficulties establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, if he were to return to New Zealand, the Tribunal regards these difficulties as temporary.[159]
[159] Direction no. 110, para 9.2(c).
The Tribunal also accepts, however, that the Applicant’s removal, in particular his separation from his partner and children would see him face emotional and psychological hardship due to this separation.[160] If removed, the Applicant could maintain family contact by electronic means (although this is not his preference) and his family could visit him in New Zealand.
[160] Direction no. 110, para 9.2(c).
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3(1) of Direction no. 110 states:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact Australian business interests.
There is also no evidence the Applicant is involved in the delivery of a major project or important service in Australia.
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION – THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.[161]
[161] See [42] above.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[162]
[162] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[163] While the Court was considering Direction No. 90, it’s observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[164]
[163] [2023] FCAFC 138.
[164] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation of the Cancellation Decision and affords the consideration heavy weight in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case and weighs neutral.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds moderate weight should be afforded to that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision weigh in favour of revocation. Overall, the Tribunal considers slight weight should be afforded this consideration in the Applicant’s circumstances.
The expectations of the Australian community weigh against revocation and the Tribunal finds this consideration should be afforded heavy weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction No 110, the Tribunal finds that the legal consequences of the decision weighs neither for nor against revocation and should be afforded neutral weight in the Applicant’s case. The extent of impediments if removed weigh moderately in favour of revoking the Cancellation Decision. The impact on Australian business interests weighs neutrally in the Applicant’s circumstances.
Having weighed the considerations, the Tribunal finds that:
(a)The first and fifth primary considerations weigh heavily against revocation of the Cancellation Decision.
(b)The third primary consideration and extent of impediments consideration weigh moderately in favour of revocation of the Cancellation Decision.
(c)The fourth primary consideration weighs slightly in favour of revocation of the Cancellation Decision.
(d)The second primary consideration and two remaining ‘other considerations’ weigh neutral.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case.
The Tribunal also emphasises that the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[165]
[165] Direction no. 110, para 7(3).
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied that the circumstances of the Applicant’s case warrant the heavy weight placed on the first and fifth primary considerations. Those circumstances being:
(a)the serious view taken by the Australian Government and the Australian community in relation to drug-related offending and driving offending;[166] and
(b)that the Australian community expects the Australian government to cancel visas of those persons who raise serious character concerns through conduct expressly including acts of family violence, commission of serious crimes against women or other vulnerable members of the community.[167]
[166] Direction no. 110, para 8.1.1(a).
[167] Direction no. 110, para 8.5.
Therefore, despite the considerations weighing in favour of revocation of the Cancellation Decision, the Tribunal is satisfied that the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community consideration, outweighs any and all considerations weighing in the Applicant’s favour.
In summary, having regard to all of the primary considerations, and other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
The correct or preferable decision is to affirm the decision under review.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 5 September 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.

179. I certify that the preceding 178 (one hundred and seventy eight) paragraphs are a true copy of the reasons for the decision herein of General Member Gallagher

...........[SGD]...........................................................
Associate
Dated: 28 November 2024

Date of hearing: 6 November 2024

Applicant’s Representative: Self-represented

Respondent’s Representative: Ms Lucinda Taylor, Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY

Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 14 October 2022[168] and a New Zealand Police In Confidence report dated 30 March 2022.[169]

[168] R2, G6.

[169] R2, G7.

Conviction Date	Court	Offence	Court Result
1.	11 May 2021	Perth Court of Criminal Appeal	Conspiracy to possess a prohibited drug with intent to sell/supply	Imprisonment: 6 Months Cumulative from 27 February 2018
2.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 6 Months Concurrent from 27 February 2018
3.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 7 Months Concurrent from 27 February 2018
4.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 10 Months Concurrent from 27 February 2018
5.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 7 Months Concurrent from 27 February 2018
6.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 7 Months Concurrent from 27 February 2018
7.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 7 Months Concurrent from 27 February 2018
8.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 3 Years Concurrent from 27 February 2018
9.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 10 Months Concurrent from 27 February 2018
10.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 2 Years 6 Months Concurrent from 27 February 2018
11.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 4 Years Cumulative from 27 February 2018
12.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 7 Months Concurrent from 27 February 2018
13.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 6 Months Concurrent from 27 February 2018
14.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 10 Months Concurrent from 27 February 2018
15.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 9 Months Concurrent from 27 February 2018
16.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 6 Months Concurrent from 27 February 2018
17.	11 May 2021	Perth Court of Criminal Appeal	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: 1 Year Cumulative from 27 February 2018
18.	11 May 2021	Perth Court of Criminal Appeal	Possess Unlicensed Firearm	Imprisonment: 2 Years Concurrent from 27 February 2018
19.	11 May 2021	Perth Court of Criminal Appeal	Possessed an altered firearm whilst not being the holder of a firearms license	Imprisonment: 9 Months Concurrent from 27 February 2018
20.	11 May 2021	Perth Court of Criminal Appeal	Possession of a prohibited drug with intent to sell or supply (Methylamphetamine)	Imprisonment: 7 Months Concurrent from 27 February 2018
21.	11 May 2021	Perth Court of Criminal Appeal	Possession of a prohibited drug with intent to sell or supply (Methylamphetamine)	Imprisonment: 2 Years 6 Months Cumulative from 27 February 2018
22.	3 December 2019	Armadale Magistrates Court	Unlicensed person possess firearm/ammunition	Fine: $300
23.	22 October 2019	Armadale Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fine: $500
24.	26 February 2019	Armadale Magistrates Court	Driver fail to wear a seatbelt	Fine: $550
25.	26 February 2019	Armadale Magistrates Court	No authority to drive (fines suspended)	Fine: $800
26.	4 December 2018	Armadale Magistrates Court	No authority to drive (fines suspended)	Fine: $600
27.	3 November 2017	Perth Magistrates Court	Possess a prohibited drug (MDMA)	Fine: $300
28.	13 December 2016	Armadale Magistrates Court	Exceed speed limit in a speed zone; Between 20 and 29 km/h	Fine: $400
29.	13 December 2016	Armadale Magistrates Court	Drove or permitted vehicle with false plate to be driven	Fine: $400
30.	13 December 2016	Armadale Magistrates Court	Used an unlicensed vehicle	Fine: $100
31.	13 December 2016	Armadale Magistrates Court	No authority to drive (fines suspended)	Fine: $500
32.	13 December 2016	Armadale Magistrates Court	Used an unlicensed vehicle	Fine: $100
33.	28 November 2016	Fremantle Magistrates Court	Used an unlicensed vehicle	Fine: $400
34.	28 November 2016	Fremantle Magistrates Court	No authority to drive (fines suspended)	Fine: $600
35.	4 October 2016	Armadale Magistrates Court	No authority to drive (fines suspended)	Fine: $400
36.	10 August 2016	Fremantle Magistrates Court	Drove or permitted vehicle with false plate to be driven	Fine: $400
37.	19 July 2016	Rockingham Magistrates Court	No authority to drive (fines suspended)	Fine: $500
38.	8 July 2016	Armadale Magistrates Court	Used an unlicensed vehicle	Fine: $300
39.	8 July 2016	Armadale Magistrates Court	Drove or permitted vehicle with false plate to be driven	Fine: $300
40.	25 August 2015	Rockingham Magistrates Court	Possess a prohibited drug (Cannabis)	Fine: $4000 (global)
41.	25 August 2015	Rockingham Magistrates Court	Unlicensed person possess firearm/ammunition	Fine: $4000 (global)
42.	25 August 2015	Rockingham Magistrates Court	Possess a prohibited drug (Methylamphetamine)	Fine: $4000 (global)
43.	25 August 2015	Rockingham Magistrates Court	Possessed a prohibited weapon	Fine: $4000 (global)
44.	25 August 2015	Rockingham Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fine: $4000 (global)
45.	25 August 2015	Rockingham Magistrates Court	Possessed a prohibited weapon	Fine: $4000 (global)
46.	25 August 2015	Rockingham Magistrates Court	Unlicensed person possess firearm/ammunition	Fine: $4000 (global)
47.	25 August 2015	Rockingham Magistrates Court	Stealing	Fine: $4000 (global)
48.	1 July 2015	Fremantle Magistrates Court	Used an unlicensed vehicle	Fine: $400
49.	1 July 2015	Fremantle Magistrates Court	Drove or permitted vehicle with false plates to be driven	Fine: $250
50.	19 September 2014	Rockingham Magistrates Court	Unlicensed vehicle (permit use)	Fine: $200
51.	19 September 2014	Rockingham Magistrates Court	Drove a vehicle with number plate not issued to that vehicle	Fine: $350
52.	25 July 2014	Rockingham Magistrates Court	No authority to drive (fines suspended)	Fine: $500
53.	30 April 2014	Rockingham Magistrates Court	No authority to drive (fines suspended)	Fine: $400
54.	10 February 2014	Rockingham Magistrates Court	Unlicensed vehicle (owner/driver)	Fine: $250
55.	23 December 2013	Rockingham Magistrates Court	No authority to drive (fines suspended)	Fine: $300
56.	25 July 2008	Armadale Magistrates Court	Unlicensed vehicle (owner/driver)	Fine: $200
57.	10 July 2001	Auckland DC	Breath alcohol level over 400 mcgs/Litre of breath Blood/Breath = 576	Fine: $550 Disqualification from driving: 6 months

ANNEXURE B

Date	Event	Reference
10 July 2001	The applicant is convicted in the Auckland District Court of the offence: 'breath alcohol level over 400 mcgs/litre of breath blood/breath = 576'. The applicant is fined a total of $550.00 and disqualified from driving for a period of 6 months.	R2, G7, p 42.
22 January 2016	The Applicant is arrested for a firearms offence and released on bail to appear in the Armadale Magistrates Court on 19 February 2016	R2, G6, p 67; R3, S6, p 219.
29 January 2016 – 19 February 2016	The Applicant committed various drug offences while on bail.	R2, G6, p 67; R3, S6, p 220.
19 February 2016	The Applicant appeared in the Armadale Magistrates Court in relation to firearm charges. His bail was extended to 8 April 2016.	R2, G9, p 67.
19 February 2016 – 17 March 2016	The Applicant committed various drug offences while on bail.	R2, G9, pp 67-68; R3, S6, pp 220-221
21 March 2016	The Applicant was arrested and questioned in relation to the 2016 offences and then released on bail.	R2, G9, p 70; R3, S3, p 73.
7 December 2016	The Applicant was remanded in custody while awaiting trial for the 2016 offences.	R2, G9, p 70, R3, S3, p 87..
13 March 2018	The Applicant was released on bail, having spent 462 days in custody.	R2, G9, p 70; R3, S3, p 232.
6 June 2019	The Applicant was arrested for drug offending and was remanded in custody until 20 April 2020, amounting to 320 days in custody.	R2, G9, p 70; R3, S12, p 339.
20 April 2020	The Applicant was convicted on two indictments in the District Court of Western Australia for the following offences committed in 2016 and 2019: 1. Offer to sell/supply a prohibited drug to another (methylamphetamine) (16 counts); 2. Possession of a prohibited drug with intent to sell or supply it to another (methylamphetamine) (two counts); 3. Conspiracy to possess a prohibited drug with intent to sell/supply (one count); 4. Possession of an unlicensed firearm (one count); and 5. Possession of an altered firearm whilst not being the holder of a firearms licence (one count). The Applicant was sentenced to a total term of imprisonment of eight years and six months, backdated to commence on 19 November 2018.	R2, G8, pp 43-62.
11 May 2021	The Applicant successfully appealed the sentence in the Supreme Court of Western Australia. The sentence was amended to a total term of imprisonment of eight years, backdated to commence on 27 February 2018.	R2, G9, p 84.
26 February 2024	The Applicant was placed in immigration detention.	Nil

Date of hearing:	6 November 2024
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Ms Lucinda Taylor, Minter Ellison