Kofe De Courcey and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 77

Kofe De Courcey and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 77 (7 February 2025)
Review Applicant:               Christina Kofe De Courcey
Visa Applicant  Sahba Alasti-Faridani
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9524
Tribunal:General Member J Cipolla
Place:Sydney
Date:7 February 2025

Decision:The decision under review is set aside and in substitution the refusal of the Applicant’s Visitor visa on character grounds is revoked.

………………[SGD]……………………………..
General Member J Cipolla
CATCHWORDS
MIGRATION – refusal of visa Applicant’s Visitor (Class FA) visa – not meet character test-substantial criminal record – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving V Minister (1996) FCA 663
SECONDARY MATERIALS
Direction No. 110, Visa refusal under section 501(1) failure to meet character test under section 501(6)(a)
STATEMENT OF REASONS
BACKGROUND

The Applicant was born in Iran, a country he and his family fled when he was an infant. They sought and were granted refugee protection in Canada. The Applicant is a Canadian citizen. The Applicant is now 40 years old. He has been in a long-term relationship with an Australian citizen and he and his partner have 3 Australian citizen children aged 13, 3 and 2.
In January 2011 whilst in Australia, the Applicant engaged in serious offending for which he was charged, and in due course imprisoned. Upon his release from prison in November 2015, the Applicant returned to Canada.
The Applicant applied for a Visitor (Subclass 600) visa 20 July 2022.
During the processing of the visa application the Department sent the Applicant a Notice of Intention to Consider Refusal of the Visitor visa application on the basis that the Ministers delegate had formed a view that the Applicant may be a person that does not pass the character test.
The Applicant responded to the Notice on 25 April 2023. The Minister after considering the response proceeded to refuse the Applicant’s visa on 19 November 2024 under s 501(1) of the Migration Act (the Act) on the basis that the Applicant did not satisfy the character test as defined by s 501(6)(a) as he had a substantial criminal record.
Dissatisfied with the delegates decision, the Applicant’s partner Ms Kofe De Courcey sought merits review with the Administrative Review Tribunal. The Tribunal finds that Ms Kofe De Courcey is a person with standing to apply for review.
OFFENDING HISTORY AND APPLICANTS’ MATERIAL
The evidence before the Tribunal indicates that prior to the incident of offending by the Applicant in December 2010 and early January 2011 the Applicant had no criminal antecedents in Australia or in any other country including his country of residence Canada.
With respect to the Applicant’s offending, between December 2010 and January 2011 the Applicant was intercepted by New South Wales police whilst conversing with a number of co-offenders and an unidentified male with a Canadian accent on a Canadian mobile telecommunications service discussing the importation of a border-controlled drug of a commercial quantity.
As a consequence of the interception of these conversations, a search warrant was executed on premises in Sydney and the Applicant was found to be in possession of the commercial quantity of a border-controlled drug, namely cocaine.
The Applicant was charged with respect to the offending. He plead guilty to the offending at the first available opportunity to do so. The Applicant was remanded in custody from 11 January 2011, and he was sentenced in the District Court of New South Wales to a term of imprisonment on the 10 February 2012.
The sentencing comments of Judge McLoughlin in the District Court of New South Wales note that:
“the offender is a 27-year-old Canadian citizen unemployed, has a girlfriend and a young child in Australia and has no previous criminal history. The charge is of utmost gravity carrying life imprisonment and I have stated the street value of the cocaine has a figure of between $250-$400 per gram, being between $2,266,357 and $2,538,320 with a wholesale value of $933,883”. (G11 page 60 Joint Tender Bundle)
Judge McLoughlin stated that:
“whilst the evidence does not disclose that the offender was the principal, there is no doubt he had a significant managerial role in the attempted importation. The offence is one which must result in a lengthy prison sentence. The offender was born on 3 July 1984 being aged twenty six at the time of the commission of this offence and has no criminal convictions in Australia and none that the court is aware of in Canada, although his mother has given evidence of some minor criminal matters on a low scale in that country. It is a record that would allow the court to extend some leniency, having regard that these matters are often committed by persons with good records. The size of the attempted importation is of relevance in sentencing as is the offender’s middle level of responsibility. The difficulty of detecting and importation and the social and criminal consequences that follow require a sentence of imprisonment to satisfy the requirements of general and specific deterrence and as I have indicated, in my view the offender’s criminal involvement in this crime is of mid-range. The offender’s very early guilty plea demonstrated a willingness to facilitate the course of justice and I accepted as a mitigating factor and discount the sentence that I propose to give by twenty-five per cent for that purpose. Assistance has been given by the offender and such assistance is correctly rated high by the authorities, with an undertaking having been given by the offender to give evidence should that need arise for that assistance and I propose to increase the discount from twenty-five to forty percent because of that assistance”. (G11 page 61 of JTB)
Judge McLoughlin notes that the Applicant was born in Iran a country in which he and his family were subject to persecution, and as a consequence this led to the family fleeing to Pakistan and eventually being resettled in Canada as refugees. (G11 page 62 JTB)
The Applicant’s connection to Australia was attributable to the fact that his mother had a brother in Sydney and the visa Applicant would regularly travel to Sydney to visit his Australian relatives from his late teen years. The sentencing report notes that as a consequence of the Applicants offending, that he would be likely deported from Australia upon completion of his sentence.
The sentencing report notes that as a young child the Applicant had some symptoms of attention deficit hyperactivity disorder. The Applicant had hyperactive traits and had engaged in some minor (unspecified) offending in Canada as a juvenile. The Applicant was assessed by a psychologist, Dr Doult, for the purposes of his District Court matter who documented the visa Applicant’s history in Iran, Canada, and his travel to Australia in his late teens to visit his uncle. The sentencing comments note that the Applicant resided with his partner Mrs Christina Kofe De Courcey in Australia and that at the time of sentencing on 10 February 2012, they had been together for some 30 months, and had a daughter Aries who was aged 7 months. (G11 pages 62-63 JTB)
Judge Mc Loughlin noted that whilst an inmate at the Long Bay Correctional Centre in Sydney the Applicant had completed a number of courses including attending Narcotics Anonymous on a 5-month course focussed on learning about drug addiction and coping and dealing with drugs. The Applicant also enrolled in and completed the SMART Recovery program, which was an eight-week course, focused on narcotic prevention. (G11 page 64 JTB) The sentencing report also noted that the Applicant commenced a long relationship with drugs whilst he was in grade 7 in Canada which was often used as a form of self-medication to deal with his attention deficit hyperactivity disorder (ADHD). (G11 page 65 JTB) The Applicant was sentenced to serve a period of 7 years and 4 months with a non-parole period of 4 years and 10 months and the sentence was to commence from the date that the Applicant was taken into custody 11 January 2011. (G11 page 68 JTB)
The Tribunal has had regard to a number of statements submitted by the Applicant with respect to his offending history and his current circumstances. In an e-mail dated 3 January 2023 at G13 page 70 of the JTB the Applicant states that:
“I really miss my partner and 3 young children. My youngest was born in September and I haven’t even seen him yet, and it’s been nearly 11 months now I haven’t seen any of them. I understand what I did back in January 2011 was shameful and wrong. I have served my sentence and paid for my crimes. I have not been in any trouble since as I am not that person anymore. I have taken many steps to better myself as a human, and am extremely remorseful for my actions over 10 years ago. As you can see by my Canadian Criminal record check I have been a model citizen. I am just a partner and a dad that desperately wants to see my family. I hope that you guys can find it in your hearts to give me that chance. I am full time employed as a painter right now and are no longer associated with anything to do with my offending behaviour. Thank you for your time in reading this and I hope to hear back from you soon.”
At G14 page 71 of the JTB the Applicant provided a statement to the Department with respect to his January 2011 arrest by the Australian Federal Police for attempting to possess a commercial quantity of a controlled drug. The Applicant notes that he entered a guilty plea at the earliest possible stage in the Local Court. The Applicant stated that he was sentenced on 10 February 2012 to 7 years and 4 months in prison with a non-parole period of 4 years and 10 months and that he was released on 15 November 2015. The Applicant explained that at the time of his offending he was heavily addicted to cocaine and was hanging around with the wrong kinds of people. The Applicant stated that he used his time in prison effectively to complete Narcotics Anonymous courses and anger management courses and that he also learnt metalwork and did other educational courses in prison. The Applicant stated that he had been in the long-term relationship with an Australian citizen, Ms De Courcey, and that at the time of writing the statement the Applicant had an 11 year old daughter, a one year old son and his partner was expectant with their third child. The Applicant noted that the offending for which he was imprisoned was committed 11 years ago and that he had served his sentence and was fully rehabilitated in the eyes of the law. The Applicant stated that since the offending he had not engaged in any criminal activity and did not take drugs and had been sober since his release from prison the Applicant stated that he wished to be able to travel to Australia to visit his children and to see his new baby. The Applicant stated that he is now a father of three children, that in the intervening years he has matured and that he does not intend doing anything criminal in the future or anything that would impact the Australian community in an adverse way.
The Tribunal has had regard to a document at G15 page 72 of the JTB from the Applicant’s partner. She notes that the Applicant was applying for a Visitor visa to see his children noting that their newborn child River, was nearly 5 months old. Ms De Courcey in the statement notes that she was studying in Australia and hence could not travel to Canada to visit. She noted that the Applicant and her 12-year-old and 2-year-old children were missing their father terribly. She noted that the Applicant “is a changed man with no more convictions or criminal activity since being released he deserves a second chance he is backed by so many people including my family and anyone I tell his story too”.
Ms Kofe De Koucey’s parents provided a statement at G19 page 76 of the JTB in support of the Applicant’s visitor visa application which notes that:
“Myself and my wife, Paul De Courcey and Hicku De Courcey are writing to you today in support of our future son in-law Sahba Alasti-Faridani, he and our daughter Christina have been together for years and have three beautiful children together. We are well aware of his past indiscretion and have fully supported him while he was incarcerated and when he was released. Sabha is a great person and we are in full support of him in our daughter’s relationship. We are very hopeful he can come for a visit to see not only his newborn River but his two children Aries and Theodore. Sabha has shown great growth since his release not only has he obtained a realtor licence he has had steady gainful employment and supported his children and our daughter, we would like for you to take into consideration his current conduct today as we believe it outweighs his past and that he deserves a second chance to come visit his children and partner”.
The Applicant completed a Personal Particulars Form (PPF) on 22 April 2023 which can be found at G20 pages 77-90 of JTB. This was provided in response to the Notice of Intention to Consider Cancellation of his visa under s 501 of the Act. As part of his response to the PPF the Applicant advised that he met his partner online when he was residing in Canada and that they met on one of his visits to Australia when he stayed with Australian relatives. The Applicant advised that he and his partner commenced dating and had their first child in 2011, their daughter Aries. In the interim they have had two further children together Theodore and River, and that they plan to raise their family together and marry in the future.
The Applicant advised that in the event his Visitor visa was refused, it would put incredible strain and stress on their relationship, noting that at the time of the completion of the PPF he and his partner had not seen each other in over a year, and that two of his children were under the age of 3 which caused considerable stress in their relationship. The Applicant advised that his absence from the family unit had taken a “huge toll” on his partners mental health.
In the PPF, the Applicant describes the closeness of the relationship with his 3 children and that he has a close relationship with his eldest child Aries, who at the time of completing the form was 12 years old and that he missed all of his children. The Applicant advised that he also had 4 nieces and 2 nephews in Australia, the eldest of whom he met when they were babies, but with whom he communicated via video phone calls and messages. The Applicant advised that it appeared strange to his Australian nieces and nephews why he had been precluded from visiting them in person.
In the PPF the Applicant makes reference to his criminal offending history in Australia. The Applicant states that he does not believe there would be any risk of him re-offending in the future. The Applicant stated that in the intervening period he has taken his responsibilities to his family and to the community very seriously. The Applicant stated that he has not re-offended since January 2011, and that he does not associate with any criminal elements whatsoever. The Applicant states “that was my one and only time in prison. I recognised my flaws and have taken measures to avoid such behaviour again. I am just a normal person a partner and father and son”.
The Applicant provided copies of certificates for courses he had completed whilst he was in prison in Australia which included courses in anger management, managing emotions, problem gambling, a positive parenting program, the SMART recovery program. The Applicant also provided a number of documents pertaining to his employment in Canada including with EZ Eye Care and Esposito’s Painting. (G28-30 pages 98-100 of JTB)
The Applicant also provided the Department with copies of the birth certificates for his three children.
The Tribunal received some additional material from the Applicant on 13 January 2025. This included a statement from the Applicant which replicates information provided by him in the email dated 3 January 2023 (referred to above) and in his personal particulars form.
The Applicant also provided an undated reference from Ms Israel Peni a family friend of the Applicant. Ms Peni states that the Applicant made a mistake and paid the price. He was dedicated to his partner and his 3 children and that she believed he would not re-offend in the future.
The Applicant also provided an undated reference from Belinda (no surname provided) who provided a personal statement on behalf of the Applicant advising that she had known the Applicant for 10 years and found the Applicant to be a person of honesty, kindness and to be a devoted partner and parent to his 3 children.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)
The Respondent’s representative provided a SFIC to the Tribunal dated 28 January 2025 which the Tribunal has duly considered. The SFIC makes reference to the relevant law with respect to the refusal of the Applicant’s Visitor visa on character grounds pursuant to s.501(1) of the Migration Act and posits that the correct exercise of discretion in this case is to refuse the visa.
The submission notes that the Applicant does not pass the character test on the basis of his ‘substantial criminal record’ having been sentenced to a term of imprisonment of 12 months or more.
The submission notes that the key issue for determination is whether to exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant the visa, having regard to the other considerations contained in Part 2 of Direction 110.
Having regard to the primary considerations in Direction 110 the submission notes the following. With respect to the protection of the Australian community that decision-makers are required to keep in mind that the safety of the Australian community is the highest priority of the Australian government. The submission notes that the Applicant’s offending involved the importation of illicit drugs into Australia with the Minister contending that this offence is serious in nature. The submission notes that the Applicant was convicted of a single offence being one of possessing a commercial quantity of an imported border- controlled drug or plant, for which the Applicant was sentenced on 10 February 2012 to a term of imprisonment of 7 years and 4 months. The submission notes that the Applicant between December 2010 and January 2011 engaged in telephone conversations with respect to the importation of border-controlled drugs and that on 5 January 2011, Australian customs officers seized 4 boxes containing 3.17 kg of cocaine with a street value of between $2.2 million and $2.5 million. The submission notes that the sentencing judge found that the Applicant had a significant managerial role in the attempted importation and that his offending was in the ‘mid-range’.
With respect to risk to the Australian community the submission notes that it was the Minister’s contention that the nature of harm to the Australian community should the Applicant engage in further and similar offending is ‘incredibly serious’.
The submission notes that the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct. The Minister contends that the Applicant’s previous offending involved the importation of drugs from Canada into Australia and the Applicant was now seeking a Visitor visa to travel from Canada to Australia and the Minister contends that the Tribunal should not exclude the possibility that this travel is linked to further crimes of a similar nature.

The Minister contends that with respect to the risk and likelihood of the Applicant engaging in further criminal or other serious conduct that this factor weighs extremely heavily against revocation.
With respect to the strength, nature, and duration of ties to Australia, the submission notes that the Applicant was in Australia for approximately 10 years, comprised of a number of periods including the period of his imprisonment. The submission notes that it is the Minister’s contention that the Applicant has not spent his formative years in Australia. The submission acknowledges that the Applicant has several immediate family members in Australia being his Australian citizen de facto partner, the review Applicant in these proceedings, along with his three Australian citizen children aged 13, 3 and 2. The Minister notes that the evidence indicates that the Applicant and the review Applicant have resided together in Canada, and this is evidenced by the birth certificate of their second child Theodore, who was born in Toronto, Canada. The Minister contends that it would be possible for the review Applicant and her children to visit the Applicant in Canada which would achieve largely the same outcome as the Applicant travelling to Australia.
The submission notes that the Applicant has a number of non-immediate family members in Australia that include aunts, an uncle, and cousins who were all Australian citizens. The submission notes that overall, the Minister accepts that this consideration weighs in the Applicant’s favour, however, the Minister contends that this consideration should not attract significant weight.
With respect to the best interests of minor children the submission notes that the Applicant has three Australian citizen children under the age of 18, a daughter born on 26 May 2011, a son born on 16 June 2021, and a son born on 15 September 2022. The submission notes that the Applicant claims to have a strong relationship with all of his children, despite the fact that he has been residing in Canada. The submission acknowledges that the Applicant has not met his youngest child in person. The submission notes that the Applicant’s eldest child, his daughter, Aries, has provided a letter of support with respect to the Applicant. The Minister also notes that the Applicant has a number of nieces and nephews in Australia who are Australian citizens and who range in age from between 3 to 13 years. The Minister contends that with respect to this consideration slight weight against refusal of the visa should be given.
With respect to the expectations of the Australian community the submission notes that in the circumstances where a non-citizen has engaged in serious conduct in breach of community expectations that the Australian community expects the government not to allow such a non-citizen to enter and remain in Australia. The Minister contends that this primary consideration weighs in favour of non-revocation.
With respect to other considerations set out in paragraph 9 of Direction 110, the submission notes that in circumstances where the Applicant is offshore and seeks a temporary stay visa, the Minister contends that none of these other considerations are relevant and should be afforded neutral weight.
In conclusion, the submission notes that the Minister’s contention is that the considerations that favour the refusal of the Applicant’s visa, outweigh the considerations against refusing the Applicant a visa and that the correct and preferable decision is to affirm the Departmental decision under review.
REVIEW HEARING
The Tribunal conducted a review hearing on the 4 February 2025.
The Applicant appeared at the hearing via video-conferencing facilities from Toronto Canada. The Applicant was unrepresented. Ms Kofe De Courcey also attended the hearing and gave evidence via video-conferencing facilities.
The Minister was represented by Mr James Fyfe, solicitor from Minter Ellison who also appeared via video conferencing facilities.
At the outset of the review hearing the Tribunal went into detail about the process of merits review, the respective issues in the review and outlined details about how the hearing would be conducted, particularly given the fact that the Applicant was unrepresented.
As the Applicant was not represented the Tribunal suggested that it could take the Applicant through his evidence and Mr Fyfe was supportive of this approach.
The Applicant advised that he was born in Iran, and that his family fled Iran when he was two years old and travelled to Pakistan. The Applicant stated that the family left Iran because they were Bahai and faced persecution by the Islamic authorities in Iran. The Applicant stated that his family were granted refugee protection in Canada and that he arrived in Canada in 1988 when he was 4 years old. The Applicant stated that he completed his primary and secondary schooling in Canada and that he also studied to become a licensed real estate agent in Canada undertaking a two-year college course to do so. The Applicant stated that he currently worked across three employment positions noting that he was a painter by trade, that his mother was an optician and he assisted her in the operation of her business and that he also worked in real estate from time to time.
The Tribunal asked the Applicant about his relatives in Australia. The Applicant stated that his partner Ms Kofe De Courcey resided in Australia as did his three Australian citizen children. The Applicant stated that he had an uncle in Sydney and an aunt in Sydney. The Applicant advised that he had two aunties resident in Canberra, one of whom was married, and the other who was not. He advised that his aunt in Canberra had two children, his cousins. The Applicant stated that he had two great aunties resident in Sydney, who had approximately 10 children between them. The Applicant also stated that he had one cousin residing in Melbourne from his father’s side of the family.
The Tribunal asked the Applicant about his travel history to Australia and the first time that he travelled to Australia. The Applicant stated that he came to Australia in 1995 when he was 11 years old to visit relatives with his mother. The Applicant stated that between 1995 and November 2015, the last time that he departed Australia, that he had visited Australia on a number of occasions holding a range of different visas that included Visitor visas, Student visas and one Working Holiday visa which was valid for one year. The Applicant stated that he had always complied with the conditions attached to these visas and never breached visa conditions. The Applicant stated that he had been residing in Australia on Visitor visas when his partner fell pregnant with their daughter Aries.
The Applicant stated that around the time that his partner was pregnant with his daughter that he was a habitual user of cocaine and that he fell in with the wrong crowd of people. The Applicant stated that as a consequence of these associations and financial pressures compounded by his partner being pregnant that he got caught up in the situation that led to his criminal offending. The Applicant stated that he took full responsibility for his offending and pleaded guilty at the first available opportunity to do so in the Local Court of New South Wales.
The Applicant stated that after his arrest for his offending for possession of a commercial quantity of imported border-controlled drugs that he was remanded in custody from 11 January 2011. The Applicant stated that he was sentenced in the District Court of New South Wales for this offence a year later and imprisoned for a period of 7 years and 4 months with a non-parole period of 4 years and 10 months. The sentence was backdated to the date in which the Applicant was taken into remand, namely, 11 January 2011. The Applicant stated that he served 4 years and 10 months in prison before he was paroled. The Applicant stated that prior to the end of his term of imprisonment immigration authorities attended the prison and asked the Applicant whether he wished to remain in Australia or to return to Canada and the Applicant decided at that time to return to Canada.
The Tribunal took evidence from the Applicant with respect to his visa history in Australia. The Applicant advised the Tribunal that he held a number of visas including Visitor visas, and Student visas, under which he pursued a private pilot’s licence at Bankstown Airport with the Aero Space Academy. The Applicant stated that apart from the Visitor visas and Student visas he had also held a Working Holiday visa for one year, however he did not seek an extension of that visa as he had not engaged in the requisite three months of remote work which would have entitled him to lodge a further application for a second Working Holiday visa. The Applicant stated that to the best of his memory he held Student visas in Australia between 2005 and 2007 and that he held a Working Holiday visa around 2007 or 2008. The Applicant stated that his Visitor visas, his Student visas and his Working Holiday visa all came with a number of conditions attached to them. The Applicant stated that he had always complied with the conditions attached to his temporary visas.
The Tribunal asked the Applicant how he had managed the long-term relationship with his partner given that he had returned to Canada in November 2015. The Applicant stated that he and his partner and his children communicated regularly by video and by telephone and the Applicant stated that his partner lived with him in Toronto for almost 5 years from 2017 to 2022. The Applicant advised that his partner resided in Canada with him during the global pandemic at which time it was difficult for anybody to engage in international travel. The Applicant stated that he had not seen his children in the flesh since March 2022 at which time his wife returned to Australia from Canada and that he had not met his youngest son, River, since he his birth.
The Applicant stated that he intends to visit Australia because it is easier for him to visit Australia rather than his wife and three children which included two infants travelling to Canada at considerable cost.
The Tribunal asked the Applicant to describe his current circumstances in Canada. The Applicant stated that he has full-time work in Canada as a painter, as a realtor and assisting his mother in her optical business. The Applicant stated that his proposed visit to Australia is both genuine and legitimate. The Applicant stated that he has always complied with migration rules in the past and the conditions that had been attached to the visas that he had previously held in Australia. The Applicant advised the Tribunal that he had savings and would be able to meet the cost of any expenses during his proposed visit to Australia.
The Tribunal noted that the decision that it was reviewing was based on a finding by a Departmental delegate that the Applicant, if he was to travel to Australia, posed a risk to Australia and to the safety of the Australian community. The Applicant was invited to comment on this.
The Applicant stated that his offending which occurred between late December 2010 and early January 2011 was the only offending he had ever engaged in and that he had not re-offended. The Applicant stated that prior to this offending he had no criminal antecedents in Canada and no criminal antecedents in Australia. The Applicant stated that since he was remanded in custody in January 2011 that he has not reoffended and that he has not engaged in drug use since that time. The Applicant advised that he does not drink alcohol, and that his only vice is that he smokes cigarettes.
The Applicant stated that he spent 4 years and 10 months in prison which was a sobering experience. The Applicant stated that he deserved a term of imprisonment for the criminal conduct that he engaged in. The Applicant stated that he made the best of his time whilst he was in prison and undertook a lot of self-help courses to assist in his rehabilitation. The Applicant described the period of his imprisonment as an “eye-opening experience”. The Applicant stated that it showed him the true value of life and that he never wants to go back to prison and that since his offending in January 2011 that he has made a firm decision that he wishes to live a normal life and that he does not want to be a ‘bad person’. The Applicant stated that he believes that the period of incarceration and the courses that he engaged with during that period have effectively rehabilitated him. The Applicant stated the very fact that he has not reoffended since being remanded in custody in January 2011 and since his release into the community in November 2015 is indicative of his rehabilitation. The Applicant stated that “the proof is in the pudding”.
The Applicant stated that he wants to set the right example for his daughter and his two sons. The Applicant stated that he wants to be a good role model for his children. The Applicant stated that he was 26 years old at the time of his offending behaviour and that his partner was pregnant with their first child and that he had engaged in the offending as a mechanism to ease his poor financial situation and feed his drug habit. The Applicant stated that he is now 40 years old and is drug and alcohol free and has been since January 2011 and that he has greater life experience and maturity behind him. The Applicant stated that he accepted what he did was wrong. The Applicant stated that he wished that the offending never happened but unfortunately, he does not have the power to undo it.
The Applicant’s partner advised that after the Applicant was released from prison that he returned to Canada. The Applicant’s partner advised that her entire family resided in Australia and that in recent years she had been focusing on her career and her studies in early childhood education. She advised the Tribunal that she lived with the Applicant and her daughter for an extended period in Canada and that their son, Theodore, was born in Canada.
The Tribunal invited the Applicant to make further submissions with respect to any risk he would pose to the Australian community if he was granted a Visitor visa and with respect to the safety of the Australian community if he was granted a Visitor visa. The Applicant asked the question “why would I reoffend, it is not on my mind, I learnt my lesson, the proof is there that I was rehabilitated by that experience. I have been clean since my offending all the results of drug testing in prison were negative which led to a lower classification whilst in prison, I do not drink alcohol at all.”
Mr Fyfe cross-examined the Applicant. Mr Fyfe advised the Applicant that he wanted to talk to him about his offending. Mr Fyfe made reference to the sentencing comments of Judge McLoughlin in the District Court. Mr Fyfe noted that the sentencing comments made reference to one of his co-defendants Elva Karan. Mr Fyfe noted that the sentencing comments seemed to indicate that the Applicant provided direction to Mr Karan with respect to the offending behaviour. The Applicant advised that he was passing on instructions from an individual in Canada and that he was the middleman between the supplier in Vancouver and the person in Australia. The Applicant stated that he was only going to be paid a fee for his involvement in this criminal enterprise of $20,000-$25,000. The Applicant stated that he was going to distribute money to other people involved in the offending such as $10,000 to Mr Karan. The Applicant once again stated that at the time that he engaged in the offending he got mixed up in the wrong crowd. The Applicant stated that on a night out in Toronto in 2009, he was introduced to somebody by a friend of a friend, and they pitched the potential of the importation of steroids. The Applicant stated that he was given a Blackberry that was encrypted and that enabled him to contact a person in Vancouver. The Applicant stated that at the time of the offending he was heavily into the cocaine scene and that reflecting back on the offending, the Applicant stated that he was ‘freaking out’ as his partner was pregnant, he had a baby on the way, and that due to these combined circumstances he did not make the right judgement call. Mr Fyfe asked whether the plan around the offending was hatched in Canada. The Applicant stated that it was not hatched in Canada, that he was given a Blackberry in 2008 and did not contact the person in Canada until the end of 2010. The Applicant stated that his memory with respect to the details of the offending was not completely clear because it happened 13 years ago. Mr Fyfe suggested that the Applicant could have backed out of the offending and the Applicant restated that he was a heavy cocaine user at the time and that his head was ‘not in a good space’ and that he had problems and was heavily involved in the cocaine scene in Canada and in Australia. The Applicant stated that he did not facilitate the importation of cocaine into Australia but was tasked with finding somebody to receive a package from Canada. The Applicant stated that he asked Mr Karan whether he knew anybody that may be willing to be involved in this enterprise. Mr Fyfe asked the Applicant whether Mr Karan was a drug dealer and the Applicant stated that he did not know whether he was a drug dealer, and that Mr Karan found a person to receive the package and that he met a girl that was going to be involved in this. Mr Fyfe asked the Applicant whether he recalled what this girl was going to be paid and he advised that that decision was up to Mr Karan. The Applicant stated to the best of his recollection her name was Naomi.
Mr Fyfe noted that the Applicant engaged in telephone calls with a person in Canada and the Applicant stated that he contacted his acquaintance via text messages on the encrypted Blackberry. The Applicant confirmed that he talked to the contact and source person in Canada however he had not met this person because he did not want to get involved with people like this. Mr Fyfe put to the Applicant that what he was involved with was ‘organised crime’. The Applicant stated that what he did was wrong. The Applicant stated that he was involved to the extent of his involvement. The Applicant stated that he was tasked with finding someone to put their name down on a package and he gave instructions to Mr Karan with respect to that. Mr Fyfe made reference to the G documents at G 11 page 52. Mr Fyfe noted that this document seemed to suggest that the Applicant had previously been involved in the importation of drugs. The Applicant was warned before he responded to the question about the risk of self-incrimination. The Applicant stated that his only involvement was with respect to what he had been charged with. The Applicant stated that at the time of the offending he was unemployed, he was short of money and he had a baby on the way.
The Applicant stated that since that time he has re-established his life in Canada after returning there in late 2015 and that he has worked as a licensed painter, as a licensed realtor and assisting his mother in her optical business. The Applicant stated that he provides financial support to his partner and children of between $1000 and $2000 a month and that on average he earns between $4000- $6000 a month in Canada. Mr Fyfe put to the Applicant that he had previously been involved in ‘organised crime’ and that he currently made between $4000 and $6000 a month. Mr Fyfe put to the Applicant whether there was an underlying temptation to offend again. The Applicant stated that he has a long-term partner, that he has three dependent children, that he never wants to go back to jail, that what he did was wrong, and that he paid a heavy price for his offending. The Applicant stated that he would be ‘insane’ to repeat the offending. The Applicant stated that anything to do with drugs is not right and his previous involvement with drugs caused him to make the wrong choice. The Applicant stated that he would be ‘crazy’ to do this again.

Mr Fyfe asked the Applicant about his three children. The Applicant stated that he had a daughter Aries, born on 26 May 2011, and that he had not lived with her in the Australian community but had lived with her for a period of time in Canada between 2017 and 2022.
Mr Fyfe noted that shortly after the Applicant’s partner returned to Australia from Canada in 2022 that the Applicant applied for a Visitor visa. The Applicant stated that he wanted to travel to Australia to be present for the birth of his youngest son River. The Applicant stated that his partner had not seen her own family for the five-year period she resided in Canada and that she missed them greatly and needed their support.
Mr Fyfe asked the Applicant what type of visas his partner resided in Canada on. The Applicant stated that she held a number of Visitor visas and he advised that they discussed the prospect of lodging a Partner visa, however the global pandemic hit, the Applicant stated that he lost his job during the pandemic, that his partner had no work rights in Canada and it was a difficult time for them on a number of fronts. The Applicant added that despite these significant stressors he did not revert back to using drugs or alcohol.
Mr Fyfe asked the Applicant whether he and his partner had any long-term plan of living in either Australia or Canada. The Applicant stated that they had not discussed options at this point in time. Mr Fyfe asked the Applicant whether Australia was an option. The Applicant stated that it was not an option at the moment. The Applicant stated that his main objective in seeking a Visitor visa to Australia is to visit his partner and his three children and to get an opportunity to see his youngest child in the flesh for the first time. The Applicant stated that at this point in time Canada would be the more likely option for he and his partner and children to reside in because he has stable employment in Canada. The Applicant stated that the cost of submitting a partner visa application in Canada was expensive and cost between $5000 and $10,000. Mr Fyfe asked the Applicant whether he and his partner had pursued a permanent visa for his partner in Canada. The Applicant stated that he and his partner were awaiting the outcome of these proceedings. The Applicant stated that if his wife was to lodge a permanent residence application for Canada that she would need to be in Canada at the time of lodgement because if she was outside Canada, she would not be able to enter Canada until such time as the application had been determined which could take years and lead to an extended period of forced separation.
Mr Fyfe asked the Applicant why between 2022 and 2024 his partner had not returned to visit him in Canada. The Applicant stated there are a number of reasons for this, firstly, because of the expense of travelling with three children and the difficulty of travelling with two infants. Secondly, because his partner was studying in Australia and wished to complete her qualifications in childcare education. The Applicant stated that with respect to a place of permanent residence for his family that he and his partner are still talking about options.
Mr Fyfe asked the Applicant if he was to obtain a Visitor visa to Australia what he would do. The Applicant stated that his plan is to come to Australia and visit his partner and three children. After the visit he plans to return to Canada where he has stable and secure work. The Applicant stated that when he is in Australia that he and his partner can talk about their respective options. The Applicant stated that there is ‘no way’ that he would overstay his Visitor visa if he was granted one.
Mr Fyfe asked the Applicant whether he was thinking of applying for a Partner visa in Australia. The Applicant once again stated that he would not be doing so as the holder of a Visitor visa and that he needed to talk to his partner about their future prospects. The Applicant stated that he believed that Mr Fyfe was trying to “push an answer out of me” the Applicant stated that ultimately, he and his partner will have to decide about their future, however they did not know what the outcome of that discussion will be.
Mr Fyfe noting that the Applicant’s youngest child was born in 2022, asked why his partner had not travelled to Canada to visit him. The Applicant re-stated that it was difficult for his partner to travel to Canada with two young children and due to the inherent cost of travelling with three children. The Applicant stated that he merely wants to travel to Australia to have an opportunity to see his children, to spend time with his partner, to visit with his aunties and uncles and his nieces and nephews. Mr Fyfe noted that the Applicant would not have seen his nieces and nephews since his arrest and remand in custody in December 2011. The Applicant confirmed that that was the case, but advised that he regularly spoke to them via video at least once or twice a week.
The Applicant’s partner Ms Kofe De Courcey gave evidence to the Tribunal with respect to why she believed the Applicant did not pose a risk to safety of the Australian community or would likely reoffend. The Applicant’s partner advised that she believed the Applicant was not a threat to the Australian public. She advised that he has not committed any offending since the offending of January 2011. She advised that the Applicant has a real estate licence in Canada, that he works as a painter and that he assists his mother in her optical business. She advised that he does not hang around with the wrong crowd. She advised that if the Applicant came to visit Australia that she believed, indeed her entire family believed, and indeed anybody that knew the Applicant believed, that he would not engage in any criminal conduct. The Applicant’s partner stated that the Applicant was not a bad person and that she knew him ‘inside and out’. The Applicant’s partner advised that the Applicant’s offending had affected their lives and their children’s lives considerably. She advised that at the time that the Applicant engaged in the offending that he believed that it was his only option and she further advised that she was not aware of the Applicant’s drug use at that time. She advised that the Applicant made a mistake and that he paid for it and that he is a good person.
The Applicant’s partner stated that the Applicant was a good father and that when their daughter Aries, was about 5 years old, she went to Canada and resided with the Applicant for five years and she described the Applicant as a hands-on father who provided financial and emotional support to his children and stated that he is very committed to the welfare of his children. The Applicant’s partner advised her period of residence in Canada coincided with the global pandemic. She advised that after five years in Canada that she missed her family in Australia and that it was difficult not having familial support in Canada, apart from that provided by her partner. The Applicant’s partner advised that living in Canada took a toll on her mental health. She advised that she gave birth to her son, Theodore, in Canad, with none of her immediate family able to provide support and that they were precluded from visiting Canada because of the global pandemic. The Applicant stated that when she returned to Australia that she learnt that she was pregnant with her third child, River. The Applicant’s partner advised that she was close to completing her childhood education studies and that she should be finished in February 2025. The Applicant’s partner advised that she disagreed with the respondent’s statement of facts issues and contentions. She asked the question “why would somebody wait this long to reoffend and why would he wait this long to want to apply for a visa”. The Applicant’s partner advised that she believed that the Applicant posed no risk to the Australian community and described him as a shining example of rehabilitation.
The Applicant’s partner advised that during her time in Canada that due to the global pandemic that the family suffered financial problems because the Applicant could not work, and she was not able to work because of her visa status. Despite this, she stated that the Applicant did everything that he could do to provide support to his family, including working as an Uber delivery bike rider in bitterly cold conditions in Toronto. The Applicant’s partner stated that she believed that the object of rehabilitation was to stop a person from reoffending and to break the criminal cycle and that she believed that the Applicant’s history was indicative of the success of his rehabilitation.
Mr Fyfe asked Ms Kofe De Courcey a number of questions. Mr Fyfe asked the Applicant’s partner whether she was aware of his drug use in 2008 and 2009. She advised that she was not aware of the extent of his drug use and that she was surprised when he was arrested. She advised that his arrest was totally out of character. She advised that she was only 19 when the offending occurred and there were now, in retrospect, signs that were evident in the relationship that she was not picking up on at the time because of her young age.
Mr Fyfe asked the Applicant’s partner whether she could travel to Canada and she advised that she could potentially travel to Canada and live in Canada if she had to, however she would be removed from her family in Sydney and that they had limited financial means to visit Canada. The Applicant’s partner advised that it was financially much easier for the Applicant to travel to Australia to visit his family than for her and the three children to travel to Canada. The Applicant’s partner advised that her immediate family had a good relationship with the Applicant and that she had nieces and nephews who want to be part of the Applicant’s life. She advised that she hoped that the Applicant would be able to come to visit her family in Australia, restating that they are not in a position to afford to travel to visit him in Canada. Mr Fyfe asked the Applicant’s partner whether she had given thought of applying for a Partner visa in Canada and she advised ‘not at this point in time’. The Applicant’s partner advised that she was currently being paid trainee wages in childcare and there were significant cost limitations in the family travelling to Canada. She advised that the Applicant had a number of relatives in Australia, with whom he was close.
The Tribunal asked Ms Kofe De Courcey what emotional impact the separation of the Applicant and his daughter Aries had upon her. Ms De Courcey advised that Aries was affected by the separation and that she was sad and could not understand why the Applicant was not able to join the family in Australia. She advised that her daughter has a number of connections in Australia, but less connections in Canada.
With respect to closing submissions Mr Fyfe advised that the Minister was reliant on the contents of the respondents SFIC.
Mr Fyfe submitted that the Applicant does not pass the character test and that this is not in dispute. Mr Fyfe stated that the issue for determination before the Tribunal was the correct and preferable exercise of discretion, namely, whether or not to set aside the decision under s 501(1) having regard to Direction 110.
Mr Fyfe made reference to the five primary considerations contained in Direction 110. In summary Mr Fyfe stated that with respect to the safety of the Australian community that this consideration weighed heavily against the revocation of the visa refusal. Mr Fyfe noted that family violence was not relevant in these proceedings. With respect to the strength, nature and duration of the Applicant’s ties to Australia that some weight should be apportioned to this consideration. Mr Fyfe submitted that with respect to the best interests of minor children that some weight should be apportioned to this consideration. Mr Fyfe stated that with respect to the expectations of the Australian community, that this consideration weighed against the revocation of the refusal of the Applicant’s visa and Mr Fyfe stated that the ‘other considerations’ were not relevant in this case.
Mr Fyfe stated that with respect to safety and risk that these considerations required both a backward assessment and a forward assessment. With respect to this assessment Mr Fyfe noted that the Applicant’s offending in 2011 was very serious. He noted that it was not on the list of examples of significant offending outlined in Direction 110, however the significant term of imprisonment was indicative of the seriousness of the offending. Mr Fyfe noted that the Applicant was described in the sentencing comments in the District Court as being a ‘middleman’ in the proceedings, involved in the importation of 3 kilograms of cocaine. Mr Fyfe described the Applicant’s involvement as being a part of ‘organised crime’ and that this was an organised criminal enterprise. Mr Fyfe noted that the Applicant was to be paid between $20,000 and $25,000 for his role in the offending. Mr Fyfe noted that the tolerance of risk is lowered when the offending is of a serious nature. Mr Fyfe noted that the Applicant is seeking to travel to Australia from Canada on a Visitor visa. Mr Fyfe noted that given the Applicant’s criminal history from 2011 that these plans are not dissimilar to his previous criminal conduct.
Once again, with respect to family violence, Mr Fyfe noted that this was to be given neutral weight as it was relevant for the purpose of these proceedings.
With respect to strength and nature of ties to Australia Mr Fyfe stated that the Minister was reliant on his SFIC. Mr Fyfe noted that the Applicant had an extensive travel record and that he had not lived in Australia for an extended period of time since his release from prison in November 2015. Mr Fyfe also described the periods that the Applicant had resided in Australia as being temporary in nature, with the longest period being the 4 years and 10 months that he served in prison. Mr Fyfe noted that the Applicant had not grown up in Australia but conceded that he has an Australian citizen partner and three Australian citizen children and that some weight should be apportioned to that consideration. However, Mr Fyfe argued that this weight should be tempered by the fact that the Applicant’s partner and children can travel to Canada to visit him, and it is a matter of choice as to who visits who. Mr Fyfe conceded that it may be more expensive for his partner to visit with the children, however, the assessment of impact is a matter of choice and that this is the approach that the Tribunal should take.
With respect to the best interests of minor children Mr Fyfe noted that the Applicant had never lived in Australia with his children. Mr Fyfe noted that the Applicant’s eldest child spent five years living with him in Canada, that Theodore was born in Canada and that his youngest child River was born in Australia and that the Applicant’s relationship with his family in recent years has been via video conferencing facilities. Mr Fyfe submitted that only moderate weight should be given to this consideration with respect to the revocation of the refusal of the Applicant’s visa.
With respect to ‘other considerations’ Mr Fyfe noted that none of these factors were relevant, he noted that there were no non-refoulement issues engaged or other legal consequences that fell under the umbrella of this consideration.
In summary, Mr Fyfe argued that with respect to the protection of the Australian community that this weighed very heavily against the revocation of the Applicant’s visa refusal. Mr Fyfe also argued that expectations of the Australian community also weighed very heavily against the revocation of the Applicant’s visa refusal. With respect to the strength and duration of ties to Australia and the best interests of minor children that some weight should be given to these considerations with respect to the revocation of the Applicant’s visa refusal. Mr Fyfe noted that given that the safety of the Australian community should be given paramount consideration, that the correct and preferable decision is to affirm the refusal of the Applicant’s visa application.
In his closing submission the Applicant stated that he agrees with the proposition that safety should be a paramount concern of the Australian government. However, the Applicant re-stated that he is not a risk to Australia. The Applicant stated that if he was going to reoffend, he would have reoffended. The Applicant stated that “it is insanity to think that I would come to Australia and reoffend”. The Applicant stated that it had been almost 15 years since his offending. The Applicant questioned at what point in time is somebody considered to be reformed. The Applicant stated that he had a clean record in prison and that he took every rehabilitation course that he could possibly engage in. The Applicant stated that he agreed 100% that safety of the Australian community should be a paramount consideration, however, the Applicant stated that he does not intend on doing anything wrong and that he will abide by the conditions of his Visitor visa. Once again, the Applicant stated given the history of no criminal antecedents prior to his January 2011 offending and no criminal offending since then that “the proof is in the pudding”. The Applicant stated that this was his one and only offence. The Applicant restated that he wished he did not commit the offence and that he is glad that he got caught, as it stopped the drugs getting into the community and forced him into rehabilitation. The Applicant stated that he was sorry for what he did.
The Applicant stated that he has learned from the experience and that his criminal offending in January 2011 has affected his family and created ongoing uncertainty. The Applicant stated that there is no doubt his children would be affected and that a child should have the love of both parents and not be subjected to parents living in separate countries. The Applicant stated that it is wrong to suggest that one parent is enough for a family and stated that his children were innocent victims in all of this. The Applicant stated that he had not engaged in drug use or alcohol since he was remanded in custody in January 2011. The Applicant stated that he has well and truly learned from his mistakes.
Ms Kofe De Courcey advised that she agreed with all the points made by the Applicant. She advised that the grant of a Visitor visa to the Applicant is a chance for him to prove his doubters wrong. She advised that the Applicant would visit his family, and he will comply with the conditions attached to his visa. She submitted that the Applicant is not a threat to the Australian public and that he has paid for his criminal offending. She advised that she understood the objective of the Ministerial Direction, however people should be given the chance to prove themselves going forward.
CONSIDERATION AND FINDINGS
With respect to the Applicant’s offending the Tribunal has made extensive reference to the Applicant’s criminal history in Australia.
THE CHARACTER TEST AND DIRECTION 110
The Applicant applied for a Subclass 600 Visitor visa on 20 July 2022. The Department decided to refuse the Applicant’s application for a Visitor visa on 19 November 2024, pursuant to s 501(1) of the Migration Act, as the Departmental delegate could not be satisfied that the Applicant passed the character test.
To revoke the refusal of the Applicant’s visa under s 501(1) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 110, to revoke the cancellation.
Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Nature and Seriousness of the Applicant’s Conduct to Date

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
As summarised in the Respondent’s SFIC the Applicant has been convicted of 1 offence during the aggregate 10-year period he had been in Australia a period which included his period of imprisonment. The evidence indicates that the Applicant was arrested on 11 January 2011 for attempting to possess a commercial quantity of a controlled drug, in this case cocaine.
After he was arrested the Applicant was remanded in custody and on 10 February 2012 the Applicant was sentenced to a term of imprisonment of 7 years and 4 months with a non-parole period of 4 years and 10 months. The Applicant was released from prison on 15 November 2015 after serving 4 years and 10 months.
Judge McLoughlin when sentencing the Applicant in the District Court of New South Wales noted the following. The Applicant was born in Iran and that his family fled Iran after the Shah of Iran was overthrown. The family initially fled to Pakistan, and eventually to Canada where they sought asylum and were granted protection. The Applicant’s father committed domestic violence offending against his mother which had an impact on the Applicant when he was about 10 years old.
The Applicant exhibited signs of attention deficit hyperactivity disorder (ADHD) when he was a child, and this impacted the Applicant when he was in his teenage years. Judge McLoughlin refers to the report prepared by a psychologist for the purpose of the District Court proceedings which noted that the Applicant had suffered with ADHD from his early years which was diagnosed by a psychiatrist in Canada, Dr Hoffa. Further to this that the Applicant also suffered with Kawasaki disease, a heart condition which impacts the vessels of the body and the blood vessels of the heart. The Applicant as a consequence of this condition suffered a mild heart attack at age 23. The report notes that the Applicant was prescribed Ritalin for his ADHD, however this drug was contraindicated by the Applicant’s heart condition and because of this the ADHD had been largely left untreated. The report also indicates that the Applicant had long history of drug abuse from grade 7 in high school and that his drug use was more than likely a mechanism for controlling his ADHD. The sentencing report noted that evidence existed that indicated that the Applicant’s ADHD led him to act irrationally and without foresight.
When sentencing the Applicant to a term of imprisonment Judge McLoughlin acknowledged that the Applicant “has cooperated with the law enforcement agencies. The sentence is designed to adequately punish him, to have a deterrence effect upon him and others. I have considered all the matters personal to the offender which I have already set out and I accept that the offender is capable of rehabilitation. I have considered the probable effect upon his family. I have regard to s 16G and the matters I have set out above and have reduced by forty percent the term of imprisonment that otherwise would have been imposed. The offender, as I have said, has assisted police in the matters set out. Had the matter gone to trial the offender would have been sentenced to twelve years imprisonment. I have reduced that by forty percent to 7 years and 4 months, because of the earlier plea and assistance. I set a non-parole period and in doing so I determine the minimum term to be served in accordance with Pt 1B of the Commonwealth Crimes Act being of the view that justice requires the offender to serve a minimum time of four years and ten months before release on parole”. Judge McLoughlin backdated the sentence to the date on which the Applicant was remanded in custody namely 11 January 2011.
Considering the Applicant’s offending in late 2010 into early January 2011 the Tribunal finds that the serious nature of this offending weighs against the revocation of the refusal of his Subclass 600 Visitor visa.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[1]
(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;
(i)   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));
(ii)     where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
[1] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant was imprisoned for 7 years, 4 months with respect to his drug importation offending. Judge McLoughlin imposed a 4 year and 10 month minimum non-parole period, and the Applicant was paroled after serving his non-parole period. The full-time custodial sentence clearly reflects the objective seriousness of the Applicant’s offending.
The evidence indicates that Judge McLoughlin when sentencing the Applicant with respect to the drug importation offending, imposed a 4 year and 10 month non-parole period on the basis that he accepted that the Applicant was “capable of rehabilitation”. He also noted that the Applicant had been co-operative with the authorities and had entered an early guilty plea.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
Given the nature of the offending of the Applicant there is no evidence with respect to the “impact of offending on any victims”.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s offending history consists of the only one offence that occurred in December 2010 into early January 2011 prior to his arrest and to the Applicant being remanded in custody on 11 January 2011.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
As noted, the Applicant has only one offence in his offending history in Australia. There is no offending history in Canada.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence that the Applicant has provided false or misleading information to the Department.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence that the Applicant has offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
There is no evidence that the Applicant has committed an offence, or other serious conduct, in another country.
The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against the revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Minister argues that despite the fact that the Applicant had no criminal antecedents in Canada and the fact that he has only engaged in one offence in Australia, that due to the seriousness of that offence, namely possession of a commercial quantity of a border-controlled drug in January 2011, that the risk of future offending still exists. The Minister argues that this type of offending has been found by previous Tribunal’s to inflict devastating effects on the community. The Minister contends that any future offending of a similar nature would have the potential to cause considerable physical, psychological and economic harm.
The Minister also raised the fact that the Applicant is now seeking to travel from Canada to Australia a place that he previously organised the importation of drugs from and which the Minister contends is itself a factor that should be considered with respect to risk.
The evidence before the Tribunal indicates that the Applicant served his sentence in prison in Australia and then returned at the end of his sentence to Canada in November 2015 when he was released after serving his 4 year and 10 month non-parole period.
The evidence before the Tribunal indicates that the offending behaviour occurred when the Applicant was 26 years old and was a heavy drug user, he had been diagnosed with ADHD but was not being medically treated for the conditions due to an underlying heart condition, Kawasaki disease, leading to a contraindication for ADHD treatment with Ritalin. The evidence from an assessment of a psychiatrist in Canada, Dr Hoffa, indicates that the Applicant in 2008, was found at that time to have an “impulsive style and lack of capacity”. Judge McLouchlin notes that the Applicant had been the subject of psychometric testing in Canada when he was in high school which found that his ADHD ‘leads him to act irrationally and without foresight”.
The Applicant gave evidence to the Tribunal that he is a very different person to the person he was at the time of his offending behaviour. He is now 40 years old, he has a solid 10 year work history in Canada since he returned to Canada in November 2015. He has been able to maintain his relationship with his partner and has 3 dependent children with his Australian citizen partner. The Applicant stated that his own sense of self and his commitment to his partner and his children are indicative of a very different iteration of himself than the person who engaged in the offending behaviour in January 2011.
There is no evidence before the Tribunal that indicates that the Applicant was the subject of any infringements whilst he was in prison. The evidence before the Tribunal indicates that the Applicant was subject to drug testing whilst in prison and the results of the drug testing were negative. Judge McLouchlin in his sentencing report notes that in the 12 months that the Applicant had been in prison on remand prior to his sentencing that he had not engaged in any drug use and was feeling much better for that. The evidence indicates that the Applicant engaged in a number of self-improvement courses whilst in prison addressing drug use and anger management and confirmation of the Applicant’s attendance and participation in these courses has been provided to the Tribunal.
The sentencing report of Judge McLoughlin in the District Court of New South Wales notes that “while an inmate at the Long Bay Correctional Centre he has completed the Enough is Enough, one day stage of development course and Narcotics Anonymous attending a five month course, learning about drug addiction and coping and dealing with drugs. He also enrolled in the SMART program, an eight-week course focussed on narcotics prevention”. The evidence indicates that the Applicant completed the SMART recovery program.
The Applicant believes that he has well and truly reformed since his criminal offending in January 2011 as indicated by his clean criminal record since 2011, his work history, his abstinence from drug and alcohol usage and his ongoing commitment to his relationship with an Australian citizen and with respect to his 3 Australian citizen children.
The Applicants partner has remained committed to her relationship with the Applicant and this commitment is evidenced by their decision to have 2 more children together after the Applicants offending and term of imprisonment with their youngest child River, being born in September 2022.
The evidence indicates that since the offending in January 2011 that the Applicant upon returning to Canada has not engaged in any offending in that country over a period of close to 10 years since his release from prison. The Tribunal finds this is a strong indicator with respect to the Applicant not being a risk of engaging in further criminal offending going forward.
The Applicant has been engaged in work in Canada since he returned to his home country and since the birth of his first Australian citizen child Aries who is now 13 years of age and the Applicant has two more Australian citizen children with his long-term partner, Theodore and River who are now 2 and 3 years old respectively.
The Tribunal finds on the basis of the evidence before it that there are a number of significant factors that collectively satisfy the Tribunal that the Applicant would not engage in further criminal or other serious conduct if he was issued with a Visitor visa to Australia. These factors in the view of the Tribunal mitigate the risk of future offending behaviour.
In summary the evidence before the Tribunal indicates that the Applicant has no criminal record in Canada. The evidence indicates that the Applicant committed one serious offence in Australia in January 2011 more than 14 years ago. As discussed, the Applicant was sentenced to a term of imprisonment of 7 years and 4 months with a non-parole period of 4 years and 10 months. The evidence before the Tribunal indicates that during his term of imprisonment the Applicant was a model prisoner and was not involved in misconduct or other infractions. The evidence before the Tribunal indicates that the Applicant was drug tested in prison and was found to be drug-free. The evidence indicates that the Applicant met relevant parole conditions that led to his release after serving 4 years and 10 months imprisonment, the specified non-parole period imposed by Judge McLouchlin in the District Court.
The evidence before the Tribunal indicates that whilst the Applicant was in prison that he undertook a number of self-help courses with respect to drug use and abuse.
The direction requires a decision-maker to look at evidence of rehabilitation achieved by the time of the decision, giving weight to the time that a person has spent in the community since their most recent offence.
As discussed, the evidence before the Tribunal indicates that the Applicant has spent in excess of 10 years living in the community in Canada and has not engaged in further offending. The evidence is that the Applicant has abstained from drug use since January 2011 at which time he was remanded in custody with respect to his one incidence of offending in Australia. The evidence indicates that the Applicant has been gainfully employed in Canada since his return to that country in November 2015. The Applicant has worked as a licensed painter, as a realtor, and has assisted his mother in her business as an optician. The evidence indicates that the Applicant has been providing regular financial support to his partner and three children since returning to Canada. The evidence indicates that the Applicant’s partner resided with the Applicant in Canada for a 5-year period between 2017 and 2022 and that the Applicant provided financial support to his partner, his daughter and in due course his second child Theodore, whilst they were residing as a family in Canada and that he has continued to provide financial support since his partner returned with the family to Australia in 2022.
The Tribunal finds that the period that the Applicant has spent in the community in Canada without engaging in any criminal offending is extensive and demonstrative of the fact that the Applicant has achieved rehabilitation with respect to both further offending and with respect to drug use. The Applicant provided evidence to the Tribunal that he has been drug and alcohol free since he was remanded in custody in Australia in January 2011 and has no desire to engage in alcohol use or drug use going forward. The Applicant gave evidence that his only vice is cigarettes.
The evidence before the Tribunal indicates that the Applicant is wanting to obtain a Visitor visa to enable him to travel to Australia to visit his long-term partner and his three Australian citizen children. The evidence indicates that the Applicant has not seen his youngest child in the flesh since his birth in September 2022. The Tribunal accepts the evidence of both the Applicant and his partner that it is easier for the Applicant to travel to Australia from Canada to affect a visit both financially and physically than the Applicant’s partner having to travel solo to Canada with three young children including two infants in her care. The Tribunal accepts that the costs associated with this travel are prohibitive and that travelling with two infants for a considerable distance to Toronto would be challenging without the support of another adult.

The Tribunal has had regard to a range of statements provided by the Applicant’s family members, family members of the Applicant’s partner, statements from the Applicant and statements from his partner and indeed his employers that attest to his good character and his reformation since his criminal offending in 2011. The references address the commitment of the Applicant to remain drug and alcohol free and the commitment of the Applicant not to engage in further offending going forward, the Applicant’s work ethic and his commitment to his family.
The Tribunal found that the Applicant gave evidence to the Tribunal in an honest and forthright manner. The Applicant consistently refers to the fact that he had not engaged in any further offending since the offending in January 2011 and that prior to this offence he had no criminal antecedents and no interaction with the criminal justice system since that time. The Tribunal accepts the Applicant’s evidence that it would be “insane” for him to engage in further criminal activity in the event that he was issued with a Visitor visa to Australia. The Applicant stated that he never wishes to return to prison, that he never wishes to engage in further offending, that he wishes to provide support to his young family and to continue to discuss the prospects of the unification of the family in the future. The Applicant also stated that he wishes to be a good role model to his children going forward.
The Applicant has been described by his general practitioner in Canada, Dr Kalpin, in a document at G32 page 102 of the JTB as being “very stable for seven years. He uses no drugs and he works daily at a responsible job. He has no legal problems”.
The evidence when it is cumulatively considered is strongly suggestive of the successful rehabilitation of the Applicant due to his period of imprisonment, and his engagement in a number of drug rehabilitation programs and courses whilst in prison.
The Tribunal finds that these factors when cumulatively considered act to mitigate the risk of the Applicant re-offending going forward.
Consideration of the sub-paragraphs of paragraph 8.1.2 of the Direction leads the Tribunal to find that some limited weight should be given to this consideration with respect to the refusal of the Applicants visa.
Conclusion: Primary Consideration 1
With respect to Primary Consideration 1 limited weight is given to this consideration with respect to the refusal of the Applicant’s visa. The Tribunal finds that the weight apportioned to this consideration is diminished by a number of factors that strongly suggest mitigation of risk.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
“Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening, or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful.
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
There is no evidence that the Applicant has ever engaged in family violence and hence this consideration is not relevant.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.
As stated there is no evidence that the Applicant has committed family violence and this consideration is not relevant.
The Tribunal accordingly gives no weight to this consideration with respect to the cancellation of the Applicant’s visa.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
The above sub-paragraphs do not apply as the Applicant based on the evidence before it has not engaged in family violence.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant and hence no weight has been apportioned to this consideration.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
The Applicant spent a collective period in Australia of 10 years, and this included the 4 years and 10 months that he spent in prison due to his offending in January 2011. The Applicant as discussed has held a range of visas and this includes Visitor visas, Student visas (through which he completed his private pilot’s licence) and a one year Working Holiday visa. During the time that the Applicant was in Australia a relationship developed with his current partner that initially commenced online. The evidence indicates that the relationship between the Applicant and his partner has been in existence for 15 years and that there are 3 Australian citizen children of the relationship to whom the Applicant is committed to and to whom he provides financial support.
As noted, the Applicant has provided statements from his partner and her parents and brother and sister-in-law, from colleagues and friends and other relatives who have attested to his work ethic and his good character. The recurrent theme in these character references is that the Applicant has been effectively rehabilitated through his imprisonment and that this is evidenced by the fact that in the 10 years he has been living back in the community that he has not engaged in any offending. The references also speak to his commitment to his partner and to his young dependent family.
An inescapable fact in the review before the Tribunal is that the Applicant will always be tied to Australia by virtue of the fact that his long-term partner is an Australian citizen as are his three Australian citizen children.
In the view of the Tribunal the strength and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the refusal of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs strongly in favour of the revocation of the refusal of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has three Australian citizen children his daughter Aries who is 13 years of age and his sons, Theodore aged 3 and River aged 2.
The Applicant’s daughter Aries has expressed her view about why she believes her father should be able to visit Australia (see G18 page 75). Aries asks in her letter that her father be able to travel to Australia to visit her and her two brothers. In the letter she states that “I know he was in jail and now he’s out, I don’t want him to miss out seeing us we miss him a lot and wish he can come to Australia”.
The Applicant has a number of nieces and nephews with whom he maintains an ongoing relationship and the evidence indicates that the Applicant is close to his partner’s sibling’s children.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact).
The Applicants relationship with his children is described by both the Applicant and his partner as a close one. The Applicant’s relationship with his daughter Aries is particularly close as they spent the period 2017-2022 living together In Canada. The Applicant’s second child Theodore was born in Canada on 16 June 2021 and the Applicant was present in Theodore’s life until his partner returned to Australia in 2022. The Applicant has not met his youngest son River in the flesh, as River was conceived in Canada and was born in Australia in September 2022. The evidence of both the Applicant and his partner are that the Applicant has maintained regular video contact with his children since his partner and eldest two children left Canada in 2022. The evidence indicates that the Applicant has a number of nieces and nephews in Australia and that he maintains contact with them, and this is confirmed in a number of statements that have been provided to the Tribunal. The Applicant’s sister-in-law in a statement at G33 page 103 of the JTB states that the Applicant “has rebuilt relationships with his family that include myself and my children over the past 6 years from Canada” and that “my children have grown very close to Sabha over the last 6 years, they speak weekly and love sharing their milestones with him”.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of 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.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
These sub-paragraphs are directly applicable to the Applicant as his children are aged 13, 3 and 2 and it is a number of years before the children turn 18 and the Applicant has in the past, currently does, and will continue to have a positive parental role in the lives of his children.
For the reasons that have been articulated the Tribunal finds that there is no risk that the Applicant’s prior conduct, and any likely future conduct, has had or will have a negative impact on his children. The Applicants daughter was an infant at the time of the Applicant’s offending and the Applicant’s two sons were not born at the time of the Applicant’s offending. The evidence as discussed indicates that the Applicant has not engaged in any offending conduct since he was released from prison in November 2015, he has maintained consistent full-time employment and abstained from both drug use and alcohol use since he was remanded in custody in January 2011. The passage of time without any adverse interaction with the criminal justice system and abstinence from drug and alcohol usage is in the view of the Tribunal a positive indicator of the Applicant’s rehabilitation and diminished risk of re-offending in the future.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any 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.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Considering the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia should be given strong weight with respect to the revocation of refusal of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 should be given strong weight in favour of the revocation of refusal of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct in January 2011.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
As has been extensively discussed in this decision record the Applicants offending in January 2011 which grounded the refusal of his Visitor visa was serious in nature.
Upon consideration of the evidence before it with respect to the Applicant’s criminal offending in January 2011, the Tribunal is satisfied that the expectations of the Australian community would that the Applicant had engaged in serious offending at that time and that the Australian community’s expectation is that the Government would not allow such a non-citizen to enter or remain in Australia.
Conclusion: Primary Consideration 5
On balance with respect to Primary Consideration 5 the Tribunal gives some weight to this consideration against the revocation of the refusal of the Applicant’s Visitor visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
(b) Extent of impediments if removed
(c) Impact on Australian business interests
The Ministers representative conceded in his SFIC on behalf of the Minister and in submissions at the review hearing that ‘other considerations” are not a relevant set of considerations in the case of the Applicant. This fact was conceded to by the Applicant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the refusal of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal accordingly finds as follows:
(a)Primary Consideration 1 is given limited weight against the refusal of the Applicant’s Visitor visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 is not relevant and hence no weight is given to this consideration.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the refusal of the Applicant’s Visitor visa.
(d)Primary Consideration 4 weighs strongly in favour of the revocation of the refusal of the Applicant’s Visitor visa.
(e)Primary Consideration 5 is given some weight with respect to the refusal of the Applicant’s Visitor visa.
(f)The Other Considerations are not relevant and hence no weight has been apportioned to these considerations with respect to the refusal of the Applicant’s Visitor visa.

For the extensive reasons provided the Tribunal gives limited weight to Primary Consideration 1 and the protection of the Australian community with respect to the revocation of the refusal of the Applicant’s Visitor visa. No weight is apportioned to Primary Consideration 2 as it is not relevant. Strong weight is given to Primary Consideration 3 with respect to the revocation of the refusal of the Applicant’s visa. Strong weight is given to Primary Consideration 4 with respect to the revocation of the refusal of the Applicant’s visa. Primary Consideration 5 is given some weight with respect to the revocation of the refusal of the Applicant’s visa. The Tribunal gives no weight to ‘other considerations’ with respect to the revocation of the refusal of the Applicant’s visa as these considerations are not relevant in this case.
The Tribunal has given careful consideration the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. Other Considerations as noted are not a relevant set of considerations in this case. The Tribunal finds that having regard to the totality of the evidence and with respect to the above considerations, that the refusal of the Applicant’s Visitor visa on character grounds should be revoked.
DECISION
The decision under review is set aside and in substitution the refusal of the Applicant’s Visitor visa on character grounds is revoked.

Date(s) of hearing: 4 February 2025

Solicitors for the Applicant: Self-Represented

Solicitors for the Respondent: James Fyfe, Minter Ellison

Date(s) of hearing:	4 February 2025
Solicitors for the Applicant:	Self-Represented
Solicitors for the Respondent:	James Fyfe, Minter Ellison