KTNH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 951

KTNH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 951 (10 December 2024)
Applicant/s:  KTNH
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/7390

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:Decision: 10 December 2024
Statement of Reasons: 17 December 2024

Decision:The Tribunal affirms the decision under review.

……………..[SGND]…………………..
Senior Member Kennedy
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by State and Commonwealth legislation concerning young offenders.
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – disregarding matters dealt with without conviction in South Australia - strength, nature and duration of ties to Australia – parents to accompany non-citizen if removed - best interests of children – best interests of children where grandparents will accompany non-citizen - expectations of the Australian community – extent of impediments if removed – Applicant is a 24 year old citizen of the United Kingdom with autism – extent of impediments if returned to United Kingdom – impact on Australian business upon departure of non-citizen’s father from employment - Non-Revocation Decision is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146
Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003
Arachchi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1311
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons

The Applicant, Mr KTNH, is a 24-year old citizen of the United Kingdom who first arrived in Australia on 18 March 2012, aged 11.
On 29 September 2022 Mr KTNH was convicted in the District Court of South Australia of aggravated serious criminal trespass, aggravated theft using force, possessing a firearm without a licence and failing to comply with a bail agreement. The circumstances of the offending essentially involve an armed home invasion. Mr KTNH was sentenced, concurrently, to 5 years, 2 months and 10 days imprisonment, and a further 1 month, 3 days in relation to failing to comply with the bail agreement. Mr KTNH was given a non-parole period of 2 years and 10 months.
On 5 April 2023, Mr KTNH’s visa, a Five Year Resident Return Class BB (subclass 155) visa, was cancelled as he had a substantial criminal record, and was serving a sentence of imprisonment on a full-time basis against a law of South Australia. On 1 May 2023, Mr KTNH applied to have the decision to cancel his visa revoked. On 16 September 2024, a delegate of the Respondent refused to revoke the decision to cancel Mr KTNH’s visa.
Mr KTNH applied to the Administrative Appeals Tribunal for review of that decision on 26 September 2024.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Migration Act 1958 (‘the Act’), the Minister must cancel a visa that has been granted to a person if, among other things:
(a)the person does not pass the character test because of a substantial criminal record; and
(b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
A person has a substantial criminal record in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (s 5AB of the Act).
If a visa is cancelled under subsection 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[1] If the person makes representations in accordance with the invitation, then under subsection 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[1] Migration Act s 501CA(3).
Ministerial Direction 110
Under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (subsection 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Tribunal in making a decision under section 501 or section 501CA of the Act, and the Tribunal must comply with the Direction.
An objective of Direction No 110 is to guide decision-makers in exercising powers under sections 501 or 501CA of the Migration Act.[2] In exercising the power under subsection 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 110 where relevant to the decision.[3]
[2] Direction No 110 para 5.1(4).
[3] Direction No 110 para 6.
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[4]
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’)
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[5]
[5] Ibid cl 7.
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
ISSUES
The issues before the Tribunal are therefore:
(c)whether the Applicant passes the character test, as defined by subsection 501(6) of the Migration Act; and
(d)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the decision to cancel the visa should be revoked.[6]
[6] See subsection 501CA(4) of the Migration Act.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in subsection 501(6) of the Migration Act. Paragraph 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by subsection 501(7). Relevant to Mr KTNH’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.
As Mr KTNH was sentenced to a term of imprisonment of 12 months or more, I find he has a substantial criminal record and he does not pass the character test.
I note Mr KTNH was serving a sentence of imprisonment against a law of South Australia on a full time basis when his visa was cancelled on 5 April 2023.
IS THERE ANOTHER REASON WHY THE DECISION TO CANCEL THE VISA SHOULD BE REVOKED?
Clause 8 of the Direction contains five primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Clause 9 of the Direction contains other considerations, which are:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
I have considered each one in turn, keeping in mind the principles in clause 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[7]
[7] The Direction cl 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[8]
[8] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[9]
[9] Ibid cl 8.1(2).
Nature and seriousness of the conduct
I must consider the nature and seriousness of Mr KTNH’s criminal offending or other conduct to date.[10] In doing so, paragraph 8.1.1(1) of Direction No 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be serious. I note that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[11]
[10] Direction No 110 para 8.1(1).
[11] Direction No 110 para 8.1.1(1)(a).
The index offending
I turn first to consider the ‘index offending’, being the convictions which are the foundations of the exercise of power in that they amount to Mr KTNH’s ‘substantial criminal record’.
The circumstances of the index offending were detailed in the sentencing remarks of her Honour Judge Davison’s decision in the District Court of South Australia:[12]
[12] R v [KTNH & Anor] [2022] SADC (Davison J, Sentencing Remarks, 7 October 2022, heard 29 September 2022, NO.DCCRM-22-578, NO.DCCRM-22-1002 and NO.DCCRM-22-1003); Exhibit G8
The circumstances of the substantive offending are that on 9 September 2021, the male complainant was at his home address with his sister, two children and a friend. Some time after 11 p.m., his sister heard her daughter calling out to her from a bedroom in the middle of the house. She went to speak to her. Whilst she was speaking to her, she heard the front door rattling and saw the wooden front door open slightly. She took several steps towards the front door and shouted 'Hello'.
The front door then swung open and she saw a man holding a sawn-off double barrelled shotgun. She started to scream. She recognised this man as you, Mr [KTNH]. She described you as being Caucasian, 5 foot 8, medium build with a thin plat to the left side of your head. You were wearing a dark face mask with white detailing and a Nike jumper. […]
The complainant was sitting in the lounge room of the house using his laptop when he heard his sister scream. His friend was in the backyard smoking a cigarette. The complainant then walked to the hallway and stood behind his sister. He saw the two males standing at the front door and you, Mr [KTNH], holding the sawn-off double barrel shotgun pointing it directly at them.
He and his sister then walked backwards down the hall to the bedroom where the children were sleeping. His sister stood with her back against the doorway facing out to the hall.
You, Mr [KTNH], walked towards them, pointing the gun towards his sister's chest and their faces. You yelled at them to get back. She yelled 'Don't' and told you that there were kids there. You then said 'I didn't realise that your kids were going to be here’ and ‘that wasn't in the plan'. With that, her daughter starting screaming.
[…]
The sister asked you, Mr [KTNH], why you were doing this and you responded 'I was told to'. She asked 'Who asked you to do this?', but you wouldn't respond. You then both asked where the drugs were and you were told that there weren't any. You both walked down the hallway, past the bedroom and out the front door.
The male complainant observed that you, Mr [co-defendant], were carrying his black laptop bag and the gun was pointed continuously at him as you walked.
The male complainant went out the front of the house and saw a white Mitsubishi Lancer. His friend who had been out the back came into the house whilst you were both still there. He saw the shotgun. He saw that it pointed at the male complainant. He then went and hid under a car and he called 000.
During the offending, numerous items were taken including the laptop, an Apple iPhone, a wallet, a MacBook Pro and a Bankcard.
The police were called. They saw the white Mitsubishi Lancer being driven in Gawler. They stopped the vehicle and approached the driver's side. You, Mr [co-defendant], were in the front passenger seat and you, Mr [KTNH], in the back seat. The car was being driven by another person. The police saw the shotgun in the rear passenger foot well. You, Mr [co-defendant], ran away from the vehicle. The police chased you before returning to the vehicle where you, Mr [KTNH], and the other person were arrested. They found the articles that had been stolen in the car.
[…]
The firearm was subsequently examined and determined to be a side-by-side double break action 12 gauge shotgun with external hammers. It was test-fired. It was determined to be operational.
I accept that at the time of the offending it was not loaded. Neither of you, of course, held a firearms licence.
At the time of your arrest you, Mr [KTNH], declined to answer any police questions.
[…]
Your breach of bond, Mr [KTNH], relates to two counts of aggravated theft, damaging a building or vehicle and failing to comply with a bail agreement.
Having taken into account the time that you spent in custody, the magistrate who was sentencing you, reduced the penalty to one month and three days and suspended it upon you entering into a bond to be of good behaviour and be under supervision. It was also noted at that time that you are a young person of 20 years, soon to be 21, unemployed, who had strong family support. It was also noted that you suffer from autism and ADHD and had limited literacy and numeracy.
[…]
I accept that at the time you entered the house with the sawn-off shotgun you did not know that there would be children present. However, the fact that you attended in company, with a shotgun and behaved in the way that you did shows a certain level of functioning and an intent to continue to commit the criminal offences, upon which you had embarked, even after you realised there were children in the house.
After that time you continued to wield the firearm and to steal the items from within the house. I accept the submission that was made that the firearm used was not loaded. Nevertheless, it was a prescribed firearm and it was used to threaten the occupants of the house and was continuously used throughout the course of these offences.
[…]
… I note that you appear to have been the prime mover in relation to this offending.
Other criminal offending
On 20 July 2021, Mr KTNH was dealt with in the Magistrates Court of South Australia, pleading guilty to two counts of aggravated theft on 10 October 2020, one count of damaging property (a police cell) on 11 May 2021, and breaching a curfew condition on his bail. Also on 10 October 2020, Mr KTNH provided false information to a second-hand dealer, and offence for which he was convicted on 10 November 2022 and discharged without penalty.

The circumstances of the aggravated theft involved the Applicant meeting a female at a night club and I infer accompanying the victim to her home. When the victim awoke in the morning she discovered two guitars had been stolen, one of them valued at $8000. The sentencing magistrate suspended a sentence of two months and 24 days, reduced to one month and three days given Mr KTNH had spent time in custody. Mr KTNH entered into a bond to be of good behaviour for 12 months. Mr KTNH breached that bond less than two months later when the index offending occurred.
On 1 December 2018 Mr KTNH was dealt with by the Port Adelaide Magistrates Court and convicted for committing an aggravated assault by use of an offensive weapon, and dishonestly taking property without consent. Mr KTNH was discharged without penalty. I have no further details about this offending and it was not explored in Mr KTNH’s evidence.
On 4 July 2018, as a juvenile, Mr KTNH appeared before the Youth Court. Convictions were recorded for “fail to comply with bail agreement” for which no penalty was ordered.
On 19 August 2016, Mr KTNH appeared before the Youth Court. Convictions were recorded for offences of “commit assault, dishonestly taking property without consent and carry offensive weapon” for which he was sentenced to two weeks detention, suspended for 3 months.
I take into account the two matters dealt with by the Youth Court by way of conviction. I note one of those offences, on its face, is an offence of violence, and the other, on its face, shows a failure to comply with orders that are supervisory in nature as to his conduct. When considering the seriousness of this offending, I take into account the sentence imposed by the court on each occasion: no penalty on 4 July 2018, and a suspended sentence of two weeks detention on the second.
At the conclusion of the hearing on 3 December 2024, I directed the parties to assist me concerning the application of the principle described by the Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton[13] (2023) 276 CLR 136[14] as it applied in South Australia, noting that Mr KTNH’s criminal antecedent report details matters dealt with by the Childrens Court and Youth Court without conviction. I am grateful to counsel for the parties for the assistance they have provided in this regard.
[13] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
[14] See also Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 475 in respect of New South Wales and WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465 in respect of Victoria.
The Respondent and Applicant both submit that sections 21 and 22 of the Youth Offenders Act 1993 (SA) (in relation to major indictable offences, and so considered for completeness only) and sections 23, 24 and 97 of the Sentencing Act 2017 (SA) and (as explained by the Applicant) prior to 30 April 2018, the Criminal Law (Sentencing) Act 1988 are laws of South Australia that provide for judicial discretion to deal with an offender without conviction. In this way, it is submitted that a person dealt with in such a way is to be taken never to have been convicted of an offence under a law of South Australia, and as such shall be taken never to have been convicted of the offence by any Commonwealth authority (in accordance with section 85ZR(2)(b) of the Crimes Act 1914 (Cth). It follows that I must not take account of the fact that a person was charged with or convicted of, an offence, in accordance with section 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth). In this regard, I note that the majority in the High Court in Thornton (when considering the Queensland scheme) conclude that the Minister could not take into account that Mr Thornton had been charged with offences committed as a child for which no convictions were recorded [36] per Gageler CJ and Jagot J and [74] per Gordon and Edelman JJ, and taking into account youth offending dealt with by the courts in this way is to take into account an irrelevant consideration.
I accept the contentions of the parties in this regard, and accept that I am bound not to take into account, for any purpose in connection with the Directions, matters that appear on Mr KTNH’s criminal antecedent report that are expressed do have been dealt with without conviction, or with no conviction recorded. Specifically, I accept that I must not take into account those matters for the purposes of considering the first primary consideration, 8.1.1(1)(e) and (f), the third primary consideration and the matters raised by paragraph 8.3(2)(a)(i) as contended for by the Applicant.
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[15] It provides that without limiting the range of conduct that may be considered very serious, violent crimes and crimes of a violent nature against women and children are viewed very seriously by the Australian Government and the Australian community.
[15] Direction No 110, cl 8.1.1(1)(a).)
I return to the index offending. The index offending is crime of a violent nature against women and children. In this regard, the sentencing Judge observed:
You were the person who brandished the firearm, the person who pointed the firearm directly at the residents and continued to do so knowing there were children there. I accept that you may have been influenced by others but not to the extent that the commission of such serious offences entails.[16]
[16] R v [KTNH & Anor] [2022] SADC (Davison J, Sentencing Remarks, 7 October 2022, heard 29 September 2022, NO.DCCRM-22-578, NO.DCCRM-22-1002 and NO.DCCRM-22-1003), page 10; Exhibit G8
The sentencing Judge observed the index offending to comprise of extremely serious offences. I note the index offending fits squarely and centrally within the descriptors of offending that is viewed very seriously under the Direction. In submissions, counsel for Mr KTNH appropriately recognised that the index offending must be viewed at the very serious end of the spectrum.
The Direction provides that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed. While I take note of that direction, and in that sense the sentence imposed is not required to be taken into account in assessing whether crimes of this nature are considered to be very serious I note, in any event, that the sentencing Judge considered that the index offending was extremely serious and imposed a corresponding penalty, finding that imprisonment was the only appropriate penalty after taking into account submissions about Mr KTNH’s psychological state and the risk of deportation. The head sentence was in excess of 5 years, and Mr KTNH was sentenced as a serious firearms offender.
In the course of cross-examination Mr KTNH was invited to indicate which part of the offence he most regretted. Mr KTNH identified the fact that a child was present as the aspect he most regretted. Certainly, the presence of a child and the trauma the event caused the child underscores the seriousness of the offending. Mr KTNH said that he was not aware the child was present, and as I understood it, said he would not have committed the offence if he had known the child was present.
I asked Mr KTNH directly why he did not cease his offending when he realised a child was present. Mr KTNH said that he did. He said that he told the female victim to take the child away, and then he left the premises.
My question however picked up on an observation that had been made by the sentencing Judge. Her Honour had observed that Mr KTNH had continued to commit the criminal offences upon which he had embarked, even after he realised there were children in the house. To the extent that Mr KTNH’s evidence suggested that he had attempted to abandon the offending upon realising the child was present, I reject his evidence. I remain of the view that the fact that the offending continued even after Mr KTNH realised a child was present renders the offending very serious indeed.
Mr KTNH’s evidence about the circumstances of the offending was unimpressive. In forming this view, I am mindful that Mr KTNH has been diagnosed with autism and ADHD, and has a very low level of education. I recognise that Mr KTNH’s unusual emotional reactions under the pressure of cross examination are likely to reflect a manifestation of his autism, and indeed when I asked Mr KTNH to answer a question put to him by the Respondent’s counsel about why he had appeared to be smirking or smiling when being asked about the offending, he ultimately said it was his response to the awkwardness of the situation. I consider it would be both inappropriate and would amount to a lack of understanding on my part as to the nature of autism spectrum disorders to place adverse weight on the demeanour of Mr KTNH in providing his responses under cross examination. I place no adverse weight on his reaction and accept it was a reaction to his discomfort at being asked about the offending.
Focusing on what he said however, rather than the way he said it, Mr KTNH’s response to questions asked about the circumstances of the index offending was that he was on drugs and there was no saying what he would or would not have done. His responses were entirely unhelpful in providing any further information about the circumstances of the offending. Similar responses were given to a line of questioning regarding how he had come to be in possession of a shotgun. The content of Mr KTNH’s responses to questions asked about how he knew the victim of the offending and the purpose of his arrival at the premises to commit the offence were evasive in my assessment. Mr KTNH said that he was at the premises ‘to rob the dude of his drugs’. Counsel for the Respondent asked if the home invasion was a debt collection event, and the foundation for that question is clearly established in the sentencing remarks. Mr KTNH’s responses to that line of questioning were unconvincing – to the effect that someone had told him that someone in the household owed a debt and so he assumed there would also be drugs. Mr KTNH reiterated he was there to get drugs.
Nothing in Mr KTNH’s evidence or cross examination addressing the wider circumstances of the offending detracts from the very serious nature of the offending that arises from the circumstances recounted in the sentencing remarks. My impression, based on the content of responses and not the demeanour in which the evidence was given, remains that the circumstances of the offending was very serious indeed.
I am to take into account the impact of the offending on any of the victims. In this regard, the sentencing Judge remarked:
A victim impact statement was provided to this court by the female complainant who was present on that night of 9 September 2021. It was read aloud in court. She described the events of that night as ones that she will never forget. It was a horrible night for her and her family and her life will never be the same again. It has put a strain on her once close relationship with her brother and affected her whole family to the extent that she cannot go into her brother's house again. Her four-year-old daughter witnessed the event and has gone from being a very independent, fun-loving girl to someone who is clingy and insecure. The event has caused the child to regress in her development and have constant nightmares.
There have now been bars placed on all the windows of this lady's home. She will not leave the front or back doors open any more during the day, even though she has security doors and locks. She has the curtains drawn at all times. A simple knock on her door sends her into a panic attack. What makes it even worse for her is that she used to call you, Mr [KTNH], a friend, someone with whom she says she had had conversations about how you were trying to get your life straightened out and wanted to do better for yourself.
It is not surprising that she now struggles to trust people and doesn't want to socialise any more. The conduct of both of you has had a significant impact upon her life and that of her children and her family. I will take this impact into account in sentencing you.
Counsel for the Applicant accepted that I may treat the victim impact statement recounted in the sentencing remarks as fact, and I do. I consider that the impact of the offending on the victims of the offending, which I consider includes the child referred to in the sentencing remarks, emphasise the very serious nature of Mr KTNH’s conduct.
I am to take into account the frequency of Mr KTNH’s conduct, whether there is any trend of increasing seriousness and the cumulative effect of repeat offending.
Mr KTNH is young. However, an analysis of Mr KTNH’s criminal antecedent report shows that since he attained adulthood he has been somewhat regularly before the courts facing charges and breaching bail agreements. I consider Mr KTNH to be a frequent offender in light of his criminal antecedent report, and consider also that as his violent offending has advanced from an assault for which he was convicted and a suspended sentence was imposed, to the index offending which the sentencing judge viewed as extremely serious and which, as I observed above, falls squarely within the nature of offending that is viewed as very serious under the Direction, it can be seen that his offending is increasing in seriousness. I am to take into account whether Mr KTNH has provided false or misleading information to the Department, including by not disclosing prior criminal offending. I also proceed with some caution in this regard.
The evidence before me contains an incoming passenger card.[17] The card poses the question ‘Do you have any criminal convictions’ to which the answer is marked “no”. The card is signed by Mr KTNH on 22 December 2017, at which time I note he was a juvenile under the age of 18.
[17] G10
Further information before me[18], which I accept, was that Mr KTNH was at that time returning to Australia from the United States unaccompanied by his parents. The family had attempted a holiday in the United States but Mr KTNH was not able to cope with a change in environment, crowds and social settings in the United States. The family made the difficult decision for Mr KTNH to abandon the holiday and return home alone. In these circumstances Mr KTNH completed the incoming passenger card alone, or indeed with the assistance of an unknown person as it is evident from the face of the document that two different hands completed it.
[18] Statement of [Applicant’s father] and [Applicant’s mother], exhibit G24
Having regard to the wording of the question on the card, Mr KTNH’s answer was almost correct. Although Mr KTNH had made regular appearances at the Adelaide Childrens Court between 2016 and as recently as two months prior to his overseas holiday (26 October 2017), almost all of his matters were dealt with without conviction - almost. It is not always completely clear from the antecedent report whether matters were dealt with by way of conviction or not (for example the reference to an offence being found ‘proved’ without express mention of conviction either way might indicate it was dealt with without conviction, while some entries clearly state ‘without conviction’. Similarly, one outcome records only the penalty without specifying with or without conviction. There is one entry however, on 19 August 2016, where Mr KTNH was convicted (as a juvenile) of assault, dishonestly taking property without consent and carrying an offensive weapon.
It follows therefore that the statement on the incoming passenger card was a false statement.
I am asked by counsel for the Applicant to place little to no weight on these circumstances given Mr KTNH was a juvenile at the time the false statement was made, and taking into account the unusual circumstances of his unaccompanied travel, and given most of his matters had been dealt with ‘without conviction’.
I am obliged to take the false statement into account, and while I place little additional weight on it in terms of assessing Mr KTNH’s criminal and other conduct as very serious indeed, I decline the invitation to place no weight on it. While he was a juvenile, Mr KTNH was 17 years of age. The question is not complex, and as mentioned above Mr KTNH had appeared regularly and recently in the Adelaide Childrens Court to be dealt with. Mr KTNH made a false statement in completing the card and this reflects adversely on him in accordance with the Direction.
Mr KTNH had not previously been formally warned, at least by the Department, prior to committing the index offence and so no further adverse weight is attracted by the circumstances mentioned in clause 8.1.1 (h) of the Direction.
Having regard to the nature of Mr KTNH’s index offending, other criminal offending and other conduct to which I am lawfully permitted to have regard, I find the nature and seriousness of Mr KTNH’s conduct to be very serious indeed.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[19]
(1)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.
(2)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 noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[19] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[20] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[21] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[22]
Nature of the harm
[20] The Direction, cl 8.1.2(2)(a).
[21] Ibid cl 8.1.2(2)(b).
[22] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Ovshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[23]
[23] The Direction, cl 8.1.2(2)(a).
As mentioned in considering the nature of Mr KTNH’s index offending, the harm to individuals and the Australian community should Mr KTNH reoffend is grave. I refer in this regard to the victim impact statement reproduced in the sentencing remarks for the index offence and the impact the home invasion had on the victim and her four-year old daughter, who is said to have regressed in her development and to face constant nightmares.

It is difficult to understate the harm to be faced by particular victims or the community as a whole by drug-fuelled and drug-motivated violent home invasion offending. The Direction suggests that there may be some conduct or harm that would be caused, were it to be repeated, that is so serious that any risk that it may be repeated may be unacceptable. In my view offending of the nature demonstrated by the index offending is such harm. The use of the term ‘unacceptable’ in clause 8.1.2(1) does not divert me from the overall scheme of the Direction and my task in weighing all the considerations.
Likelihood of the non-citizen engaging in further criminal or serious conduct
The Applicant’s contention is that he is at low risk (in the sense of likelihood) of reoffending. The case advanced on behalf of the Applicant points primarily to Mr KTNH’s family’s observations of changes within him during the course of his imprisonment, and the availability of a comprehensive and structured support package, for the first time, to assist Mr KTNH with his disability addressing particular aspects of his disability that may have contributed to his offending.
The Respondent contends that Mr KTNH remains at serious risk (in the sense of likelihood) of re-offending, relying on his offending history, bad behaviour while in prison and the assessment contained in a parole report that he is at very high risk of general reoffending and at high risk of violent reoffending[24].
[24] Exhibit S10, page 18.
The Applicant’s counsel points to Mr KTNH having completed a Violence Prevention Program on 15 February 2023 at the Port Augusta Prison. Other than the fact of completion, I know little about the syllabus, duration or outcome of the course.
From the Parole Report[25], it can be inferred that on at least one occasion Mr KTNH would have preferred not to attend the course, having been documented to have called a corrections officer a ‘c##t’ in the course of being instructed to attend the course over eight times.
[25] Exhibit S10, page 26.
Other information about Mr KTNH’s engagement with the course can be gleaned from the Parole Report. It is not positive, mentioning that Mr KTNH ‘was regressed’ (perhaps intended to convey that he had regressed or perhaps was reserved or some other term) although it recognises (as do I) that Mr KTNH’s Autism and ADHD were barriers to his effective participation. The Parole Report refers to some other 'treatment report’ which is not before me. The discussion of Mr KTNH’s participation in the Violence Prevention Program concludes by observing that the VRS actuarial risk tool[26] was used after his participation, by way of reassessment, and his risk of violent offending was estimated to be within a high range in comparison to normative samples.
[26] Violence Risk Scale.
I place no favourable weight on the question of likelihood of reoffending on the mere fact of Mr KTNH’s documented completion of the course in these circumstances.
Returning to the Parole Report, I have taken it into account after careful consideration. I restate two concerns about the document as raised with counsel at the hearing. The first is that the report reaches a conclusion that does not necessarily appear to flow logically from observations made along the way. In this regard, the report refers to a very high risk of general recidivism and a high risk of violent reoffending before and after participation in the rehabilitation course undertaken. The report documents instances of poor responses to supervision in the community previously (and I acknowledge counsel for Mr KTNH did draw my attention to an instance of supervision that was concluded without incident), substance abuse incidents while in prison and adverse violent incidents in prison.
There are further documentary records identifying poor responses to community supervision in the material before me, but it suffices to observe again that Mr KTNH committed the index offending within 2 months of entering into a good behaviour bond in order to have a sentence of imprisonment suspended.
In relation to behaviour in prison, Mr KTNH declined to answer questions about allegations of assault on other prisoners on the appropriate objection of his counsel, and I attach no adverse inference to Mr KTNH exercising his legal rights in this regard. I do however take into account the records of the incidents such as those referred to in the Parole report.
In these circumstances, the ultimate conclusion of the report to recommend parole is surprising to me. The author refers to different tiers of supervision in the course of the document and suggests a tier that has onerous reporting and monitoring conditions, noting the restrictions will be applicable only if Mr KTNH’s visa is restored. The nature of the tiers of supervision is not explained.
The second concern I have about the Parole Report is that while the author is identified by name, there is no information in the report or elsewhere as to the qualifications and experience of the author. No party argued that I should treat the observations and recommendations in the report as expert opinion evidence, and I do not view the report through that lens.
However, other than the observation I have made about the rationale leading to the ultimate recommendation in the report, I consider the report is detailed with observations supported by specific examples. The author has demonstrably taken into account and synthesised a wide source of evidence in preparing the report. On further reading of the conclusion of the report, and contrary to the observation I made during the hearing that it did not appear to have been reviewed, the document does appear to have been endorsed by an unidentified ‘delegate’.
The document in its terms does not support the Applicant’s submission that I should find that Mr KTNH has a low risk of recidivism. To the contrary, the document suggests that the risk of general recidivism is very high, and the risk of violent recidivism is high. Intensive restrictions and supervision are recommended, and this is not consistent with a low likelihood of reoffending. While the conclusions as to a high risk of violent reoffending and very high risk of general reoffending is reached via the application of an actuarial tool, the conclusion and description is in my view also supported by the historical poor response to supervision and the breach of the good behaviour bond, poor engagement in the Violence Prevention program and instances of poor behaviour in prison involving substance abuse and violence. I take all of those matters into account.
Other documentary evidence before me relevant to assessing the likelihood of the conduct being repeated includes the report of the clinical psychologist Ms Susan Heinrich of 31 May 2022, prepared for Mr KTNH’s sentencing.
Ms Heinrich recognised that Mr KTNH’s presentation was consistent with a person with Autism Spectrum Disorder who was having difficulty managing sensory input, had difficulty concentrating and was easily distracted. Ms Heinrich referred to the letter of Dr Jasti of January 2007, which is also before me,[27]confirming the diagnosis. I note Ms Heinrich’s remarks re ADHD.
[27] Exhibit G44.
Ms Heinrich noted that Mr KTNH had told her that he had used many illicit substances, and had a problem with methamphetamine and Xanax, and in the future did not want to continue using them. Ms Heinrich noted Mr KTNH had acknowledged that he had high functioning autism and ADHD, and at the time of his incarceration had been applying for support under the National Disability Insurance Scheme.
Mr KTNH had told Ms Heinrich that he attributed getting into legal trouble to the area in Adelaide where he lived. He confirmed he had been in trouble for breaching supervision orders on multiple occasions.
Ms Heinrich observed that Mr KTNH’s current offending (i.e. the index offending and a further vandalism offence) appeared to be consistent with previous offending. Ms Heinrich stated that while Mr KTNH’s disability appears to have had a profound impact on his behaviour and offending, such that his circumstances are not typical of the average person, he did not meet the threshold for a legal impairment defence.
Ms Heinrich observed that Mr KTNH struggled with social interactions, and did not understand social cues, observing him to have a very low frustration tolerance and to be highly anxious.
Ms Heinrich observed the strong body of literature finding persons with autism being more likely to come into legal conflict and when they do, their behaviour can at least partially be attributed to the disability. Ms Heinrich observed that people with autism, find themselves with increasing trouble with little understanding of how they came to be in that trouble, and observed that this appeared to be the case with Mr KTNH.
Ms Heinrich observed that people such as Mr KTNH can be much more susceptible to the suggestion and influence of others.
Ms Heinrich predicted Mr KTNH would experience a greater burden of incarceration than the average person, and noted that Mr KTNH was already having difficulty navigating relationships with prison staff. Ms Heinrich also predicted Mr KTNH would require special support to effectively engage in a prison-based treatment program, and I observe that this prediction has proved to be completely accurate.
Ms Heinrich stated that upon Mr KTNH’s release , the NDIS would be the most appropriate body of support. Ms Heinrich considered Mr Buyan required psychological support, drug counselling sensitive to his disability and support to engage in prosocial community activities such as employment.
Ultimately, Ms Heinrich concluded by noting that Mr KTNH’s autism was a significant factor in his offending, he had been unable to disengage from negative influences such as antisocial peers and using substances. Ms Heinrich observed that Mr KTNH would find it challenging to engage in a prosocial life, but with appropriate funding for his autism he could be supported and his risk of recidivism will decrease. If he were not so supported, he was at real risk of his behaviour and risk escalating should he remain engaged with antisocial peers.
In sentencing, the judge took into account the report and recognised that prison may be more difficult for Mr KTNH, particularly in light of his reaction to sensory stimuli, but also observed that contrary to the submissions made in respect of his sensitivity to sensory stimuli, the offence with which her Honour was dealing ran counter to that, and the victims were exposed to a chaotic, noisy and frightening experience that Mr KTNH had created. In sentencing, the judge took into account that Mr KTNH had made some efforts towards rehabilitation and to placing himself in the NDIS scheme from which he would receive some benefits.
I accept the evidence before me regarding Mr KTNH’s diagnosis and the impact of the condition on his behaviour, including the references to the condition as a criminogenic explanation (in part) in Mr KTNH’s circumstances. I understand the Applicant’s heavy reliance on information and evidence regarding the planned support in the future for Mr KTNH through the NDIS in relation to the assessment of the likelihood of Mr KTNH reoffending. I turn to that evidence now.
Ms Lindi Erasmus provided a statement and gave oral evidence to the Tribunal. Ms Erasmus operates the business ‘Around the Well Pty Ltd’, a registered NDIS provider providing specialist support coordination. Mr KTNH appointed Ms Erasmus’ firm on 16 April 2024 in consultation with the Department for Correctional Services. Ms Erasmus’ firm is one of only a few NDIS providers recommended by the Department of Corrections for prisoners.
Ms Erasmus has developed a portfolio of support services to be offered to Mr KTNH under his NDIS plan, after she obtained specialist advice from an Occupational Therapist, Mr Adcock. An extensive report from Mr Adcock is before me[28]. I am mindful that neither Ms Erasmus nor Mr Adcock purport to give expert opinion on the likelihood of reoffending, but I can see the link between the matters referred to in Ms Heinrich’s report as the criminogenic relationship between Mr KTNH’s condition and his offending, the risk of him reoffending escalating if he is not supported, the potential for support to assist Mr KTNH into a prosocial life and the detailed evidence of the supports planned under the NDIS.
[28] Exhibit D.
I queried during the hearing how it was that a non-visa holding non-citizen such as Mr KTNH had been accepted for participation in the NDIS and received funding under the scheme. Counsel assisted with an explanation to the effect that residency is assessed upon acceptance into the scheme, and that occurred prior to the visa cancellation, and there is discretionary power for participation in the scheme to be ended upon loss of residential qualification that has not been exercised (yet) in Mr KTNH’s case. I proceed on the basis that for the purposes of my analysis of the likelihood of reoffending under the Direction that Mr KTNH is and remains a participant in the scheme and the supports and funding identified in the evidence will be made available in the event that I revoke the decision to cancel his visa.
During her evidence, Ms Erasmus took me through Mr KTNH’s support budget and the various therapies and supports proposed. I do not recount the detail of those supports and the budget, but I do observe it to be substantial and directed not only at the interventions proposed by Mr Adcock in his report but also directed to addressing matters mentioned by Ms Heinrich as matters that ought to be addressed in order to avoid Mr KTNH’s high risk of reoffending and avoid its further escalation. Supports include community mentors and group social activities, workshops and vocational training opportunities, including obtaining a driver’s license and developmental education. Ms Erasmus also explained that Mr KTNH will be assisted to develop a relationship with a regular General Practitioner and through that mainstream support may access a mental health plan and psychological support through Medicare.
I have studied Mr Adcock’s report, but again do not recount it in all its detail other than to note it identifies limitations in Mr KTNH’s functional capacity. Mr Adcock identifies moderate to severe difficulties with understanding and communication, severe difficulties attending to domestic tasks and participation, adaptive behaviours in the extremely low range and issues with independent functioning around feeding, bathing and grooming, for which Mr KTNH needs help. Mr Adcock’s recommendations reflect these findings and are proposed to be implemented by Ms Erasmus through Round the Well.
In a letter to Ms Erasmus[29] of 22 November 2024, Mr Adcock observed, among other matters, that Mr KTNH’s ability to make independent choices, exhibit self-control and take responsibility when appropriate is in the extremely low range. Mr Adcock observed there to have historically been a notable lack of support provided for Mr KTNH, and he had never developed basic skills of independence. Mr Adcock observed that Mr KTNH was at elevated risk of falling back in with the “wrong crowd” due to difficulties reading social cues. Mr Adcock concludes that the provision of targeted 1:1 services working together with Mr KTNH and his family supporting him through the transition (which I take to mean from prison to the community) provides a significantly increased likelihood of success.
[29] Ibid.
I turn to consider the evidence of Mr KTNH’s family in relation to their perceptions of Mr KTNH’s development in prison.
Mr [Applicant’s father] father gave evidence that he viewed Mr KTNH’s imprisonment as a circuit breaker, and having observed him to mature to the point that it was like there were two different people – developing ambition. Mr KTNH’s mother gave similar evidence, also explaining how she felt Mr KTNH had never previously had as extensive support available as would be available under the NDIS, and that she found the potential impact of the support to be exciting.
Ms [Applicant’s Sister 1], Mr KTNH’s sister, gave evidence that she had perceived him to have had his head pulled in. Ms [Applicant’s sister 3], also Mr KTNH’s sister, gave evidence that she had perceived Mr KTNH saw his imprisonment as a massive wake up. It was submitted that the evidence of Mr KTNH’s own self-reflection and development, as attested to by his family, should not be underestimated. I note also that Mr KTNH, in his own way, gave evidence that he had changed and that he now ‘gave a s**t’ (about his life). Mr KTNH also gave evidence that he had cut out people who had been a bad influence on him.
As to remorse, Mr KTNH expressed remorse that his conduct had involved children. I take note of the remorse expressed by Mr KTNH in his evidence in the Tribunal. I primarily base my assessment as to the likelihood of reoffending on matters other than expressions of remorse.
Overall, and as to my assessment on the likelihood of Mr KTNH reoffending after taking into account all the evidence available to me on this topic, I can understand the expressed hope and optimism of Mr KTNH’s family that there have been positive changes within Mr KTNH, but also that the interventions proposed through the NDIS plan will support Mr KTNH with his disability in ways that may address particular aspects of his disability that Ms Heinrich identified as contributing to his offending. The NDIS plan is clearly impressive, and arrived at with careful thought and evidence of Mr KTNH’s functional needs. The nexus with aspects of Mr KTNH’s disability that have caused him to fall in with the wrong people, fall into substance abuse and struggle with prison can readily be seen.
However, I am obliged to take into account all the evidence on this topic, and to assess the likelihood of Mr KTNH reoffending. On careful reflection of all the evidence, the potential for positive therapeutic intervention under the NDIS plan, and the observations of Mr KTNH’s family that they have perceived a meaningful change innate to Mr KTNH simply does not overcome the tangible and overriding concerns I have arising from the parole report, relying as it does on Mr KTNH’s conduct in prison and other observations supportive of the high risk of violent reoffending and the very high risk of general reoffending it identifies.
On reflection, I cannot accept the submission that the evidence points to Mr KTNH’s risk of reoffending as being low. The availability of therapeutic interventions under the NDIS are persuasive in some senses, in that they can be seen to address the very aspects of autism that Ms Heinrich identified as contributing to Mr KTNH’s offending, but the interventions have not taken place, Mr KTNH’s engagement with the interventions has not been tested for durability, and the evidence in the parole report demonstrates that the manifestations of Mr KTNH’s autism that have been identified as contributing to his criminal behaviour remain operative and impactful. Mr KTNH’s involvement in violent incidents in prison suggest he continues to struggle with social interactions, and has a very low frustration tolerance. I am not satisfied that Mr KTNH has overcome his propensity towards substance abuse in light of references in the parole report Mr KTNH’s admitted use of illicit buprenorphine within the months prior to the report being completed.
I reject the submission that Mr KTNH’s risk of reoffending may be assessed as low based on the changes innate to him as perceived by his family, and the availability of a high quality and comprehensive therapeutic intervention package under the NDIS. Instead, I consider that the offending, the failure to engage with supervision, instances of poor behaviour in prison including involvement in violent incidents and substance abuse all support the conclusion in the parole report that Mr KTNH presents a high risk of violent reoffending, and a very high risk of general reoffending. I ultimately cannot escape those conclusions and that is the finding I reach.

I find that Mr KTNH poses a high risk of repeating violent offending, and a very high risk of repeated general offending. When this high degree of likelihood is considered against the very serious nature of the harm to the Australian community, I consider the risk is unacceptable.
I consider the nature and seriousness of Mr KTNH’s conduct to be very serious indeed, and the risk to the Australian community should further offences or other serious conduct committed to be unacceptable. I find that this primary consideration weighs very heavily against revoking the cancellation of the visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. Mr KTNH has not committed offences or engaged in acts that meet the description of family violence in the Direction. This consideration is not relevant.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
The non-revocation of the decision to cancel the visa will have a highly adverse impact on Mr KTNH’s family in Australia. In this regard, and generally speaking, I observed that Mr KTNH’s parents and three siblings in Australia attended the hearing in person and spoke to their written statements in support of Mr KTNH. I have summarised their evidence in these reasons, but emphasise I have read their detailed written statements with care. I acknowledge the presence of the family during the proceedings.
Mr [Applicant’s father], KTNH’s father explained in his statements that he and his family had migrated to Australia in March 2012. They had enjoyed watching a television programme about families migrating to Australia and this family activity had planted the seed. Mr KTNH’s mother’s qualification as a hairdresser enabled the family to secure visas, and Mr [Applicant’s father]Mrs [Applicant’s mother] selected Adelaide as the place of settlement. Mr [Applicant’s father] explained that the move to Australia proved to be the best decision for the betterment of his family.
At that time KTNH (Mr [KTNH], the Applicant) was 11 and had been diagnosed with autism. Following relocation to Australia Mr KTNH had found it difficult to settle at school, regularly getting into trouble and finding it difficult to make friends. The difficulties grew as Mr KTNH grew older, and ultimately Mr KTNH left school at the age of 14. Both Mr [Applicant’s father] and Mrs [Applicant’s mother] gave further detail about the difficulties faced in raising Mr KTNH to which I have had regard.
Both Mr [Applicant’s father] and Mrs [Applicant’s mother] have made it crystal clear that they hold the view that there is no way KTNH would be able to survive living in the United Kingdom by himself given his disability, and they have decided that they will follow him back to the United Kingdom if his visa remains cancelled, and this has been openly discussed within the family. This position has been stated and restated in the proceedings, and at no time was the assertion that Mr [Applicant’s father] and Mrs [Applicant’s mother] would relocate to the United Kingdom referred to in any way equivocally or as a mere potential consequence of a decision not to revoke the cancellation of the visa. It was conceded that I may proceed on the basis that it is fact. I find as a fact that Mr [Applicant’s father] and Mrs [Applicant’s mother] will relocate to the United Kingdom with Mr KTNH if I refuse to revoke the visa cancellation, and I consider the impact of the decision on Mr KTNH’s immediate family members, including the minor children in Australia in that context.
All members of Mr KTNH’s immediate family in Australia have given evidence in these proceedings. His parents, sister Ms [Applicant’s sister 1], sister Ms [Applicant’s sister 2], and brother Mr [Applicant’s brother] have each provided multiple written statements and gave oral evidence to the Tribunal.
The theme of their evidence is constant. They identify that the impact on the family of Mr KTNH’s visa remaining cancelled, and the consequential relocation from Australia to the United Kingdom of Mr KTNH and Mr [Applicant’s father] and Mrs [Applicant’s mother] will be devastating for the family as a whole, with the consequence that their close family will end up split between Australia and the United Kingdom. Mr [Applicant’s father] and other witnesses have given evidence to the effect that the wider family will be split between the United Kingdom and Australia in these circumstances while at present only their daughter Ms [Applicant’s sister 2] and her family are in the United Kingdom, and in any event had intended to return to Australia prior to the prospect of immediate Mr KTNH’s removal from Australia arising. Their other children [Applicant’s sister 3], [Applicant’s brother] and [Applicant’s sister 1] will remain in Australia along with Ms [Applicant’s sister 2]’s two children.
Further to this, Mr [Applicant’s father] has given evidence that he and Mrs [Applicant’s mother] will need to sell their family home in order to return to the United Kingdom, with consequences for [Applicant’s sister 1] discussed below.
He also explained in his evidence that he would need to leave his employment as the Site Operations Manager for Compass Group at Olympic Dam. I take into account both these matters as examples of the significant adverse impact on Mr [Applicant’s father] and Mrs [Applicant’s mother].
Mrs [Applicant’s mother] explained in her oral evidence that Mr KTNH’s removal from Australia will change their lives completely. She worries about getting employment in the United Kingdom at her age, and has a sense of having to start over again.
Ms [Applicant’s sister 3] gave evidence about the impact of the decision on her two children, which I will address under the next primary consideration, but in respect of the impact of the decision on her, she told me that she is very close with Mr KTNH as they lived together for about 12 months. Ms [Applicant’s sister 3] was upset at the thought of Mr KTNH leaving Australia, explaining hers is such a close family. She was also upset at the prospect of her parents returning to the United Kingdom as she sees her mother every day when she is not in Roxby Downs, and she and her children often sleep at the family home.
Mr [Applicant’s brother] gave evidence confirming he has remained close to his parents and Mr KTNH, and for him the impact of not revoking the decision to cancel the visa would be bad because it would mean his parents would leave and his family would not be together. His fiancée’s family live interstate, and they would then be on their own. Mr [Applicant’s brother] confirmed that he is close with his father as they work at Roxby Downs together. I note from Mr [Applicant’s brother]’s written statement that he has also pointed to his wedding to his fiancée being put on hold pending resolution of this matter.
Ms [Applicant’s sister 1] also gave oral evidence in addition to her written statements to which I have had regard. She is the youngest, and resides in the family home with her parents. She explained that she was particularly close to Mr KTNH, and the two had often been mistaken for twins when they were younger. Ms [Applicant’s sister 1] wants to have her sibling at home again, and also points out that if he were to be removed from Australian her whole life would change. She had been back to England recently and does not want to live there. She is concerned about losing her parents, in the sense of them returning to the United Kingdom. Also, Mr [Applicant’s father] gave evidence that he was concerned about [Applicant’s sister 1] losing the home she resides in given the current state of the rental market. I note that [Applicant’s sister 1] also works with Mr [Applicant’s father] at Roxby Downs. To avoid doubt, I do not accept the construction that a decision refusing to revoke the decision to cancel the visa will render [Applicant’s sister 1] ‘homeless’ in the sense that she will be unable to secure any accommodation, but do accept the sale of the family home in which she resides will be highly disruptive for her.
Ms [Applicant’s sister 2] is not in Australia, and so the impact of the decision on her does not fall within the scope of clause 8.3 of the Direction. The Direction does not limit the matters that may be taken into account, and it is appropriate that I also take into account the impact of the decision on her and her children, albeit not within the framework of the primary consideration at clause 8.3 of the Direction. For convenience, I set out my considerations now.
Ms [Applicant’s sister 2] is an Australian citizen. She is the eldest of the [Applicant’s siblings]. She and her husband returned to the United Kingdom in 2016. In her statement she has described her helplessness at the events leading to Mr KTNH’s imprisonment and the impact it had on her parents, with whom she remains close.
Ms [Applicant’s sister 2] explained that her move to the United Kingdom was never intended to be permanent, and she had intended to return to Australia by June 2025 once she had met financial obligations associated with her study to be a teacher. Ms [Applicant’s sister 2] explains that if Mr KTNH and her parents return to the United Kingdom, she and her family may reluctantly abandon their dreams of returning to Australia, even though she no longer wants to live in the United Kingdom.
I accept that there will be an adverse impact on Ms [Applicant’s sister 2] and her family should I decline to revoke the decision to cancel Mr KTNH’s visa in that it would complicate her choices and upset the longer term plans she had to return to Australia. There is some amelioration in the impact in circumstances where Mr [Applicant’s father] and Mrs [Applicant’s mother] will return to the United Kingdom and be closer to Ms [Applicant’s sister 2], but I appreciate that is not what Ms [Applicant’s sister 2] had planned or what she had hoped for. I place mild weight in favour of revoking the decision to cancel the visa on the adverse impact on Ms [Applicant’s sister 2], outside the framework of the primary consideration at clause 8.3 of the Direction.
Returning to the primary consideration of the strength nature and duration of ties to Australia at clause 8.3 of the Direction, I find that the impact of a decision to refuse to revoke the cancellation of the visa on Mr KTNH’s family members in Australia will be highly adverse. As described by all members of the family, the consequence of the decision will be to split the close family between the United Kingdom and Australia, and force the sale of the family home with particular adverse consequences for [Applicant’s sister 1]. I accept that for Mr [Applicant’s father] and also Mrs [Applicant’s mother] there will be some short term adversity associated with return to the United Kingdom in terms of finding employment and resettling, and very substantial adversity associated with physical separation from the children and grandchildren who will remain in Australia. I consider however there is some amelioration in that regard as Mr [Applicant’s father] and Mrs [Applicant’s mother] will be able to maintain contact with their family in Australia by other means and will be permitted to return to Australia as and when their circumstances permit.
I am to have regard to how long Mr KTNH has resided in Australia, including whether he arrived as a young child, noting that less weight is to be given If Mr KTNH began offending soon after arriving in Australia and more weight given to the time Mr KTNH has spent contributing positively to the Australian community. I disregard all matters dealt with by the courts in South Australia without conviction.
I find that Mr KTNH arrived in Australia when he was 11, and take into account that he arrived in Australia as a young child. However, Mr KTNH’s first recorded conviction was for an assault, dishonestly taking property without consent, and carrying an offensive weapon on 19 August 2016 as a juvenile. This was four years and five months after his arrival. Taking into account that conviction, I find Mr KTNH commenced offending soon after arriving in Australia, albeit as a juvenile (but also note the offending continued in Mr KTNH’s adulthood).
It was conceded in submissions, and correctly so, that there is no evidence of Mr KTNH having ever contributed positively to the Australian community. This is a harsh observation in many respects, but one for which there is foundation. Mr KTNH has not maintained employment.
Although I recognise Mr KTNH arrived in Australia as a young child, the combination of these matters leads me to apply less weight to the strength nature and duration of his ties to the Australian community.
I have no evidence addressing the strength, nature and duration of any social links with Australian citizens, permanent residents or other people who have an indefinite right to remain in Australia, outside of Mr KTNH’s immediate family.
However, in relation to the strength, nature and duration of Mr KTNH’s ties to the Australian community overall, I take into account the highly adverse impact of declining to revoke the decision to cancel the visa on Mr KTNH’s immediate family members in Australia. I attach heavy weight in favour of revoking the decision to cancel Mr KTNH’s visa to this primary consideration, reduced only somewhat by the observations I have made regarding the adverse impact being ameliorated by Mr [Applicant’s father] and Mrs [Applicant’s mother]’s capacity to travel to Australia and maintain contact with their family in Australia by other means, and by applying slightly less weight to this consideration because Mr KTNH commenced offending soon after arriving in Australia and has not contributed positively to the Australian community.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[30]
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·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;
·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;
·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;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[30] The Direction, cl 8.4(4)(a)-(h).
I observe that the factors set out in clause 8.4(4) of the Direction are focussed on the relationship between the child and the non-citizen. In the circumstances of this matter however, and accepting the submission that I must consider the best interests of the child affected by the decision from the child’s perspective, it is important that I consider not only the relationship between the children and the non-citizen, but also the relationship between the children and their grandparents in light of my finding that Mr [Applicant’s father] and Mrs [Applicant’s mother] will relocate to the United Kingdom if Mr KTNH’s visa remains cancelled. In this regard, the considerations in clause 8.4(4) are mandatory but not exhaustive. I will address clause 8.4(4) in respect of the children’s relationship with Mr KTNH, and then repeat the analysis, insofar as it is applicable and recognising the value of clause 8.4(4) as a template of matters to which I should turn my mind, in respect of the children’s relationship with their grandparents.
The minor children in Australia affected by the decision are “M” (female, 10 years old) and “G” (female 9 years old). These are the children of Ms [Applicant’s sister 3]. I am not satisfied that there is evidence demonstrating that their individual interests differ in any material way, and so I give consideration to their best interests jointly.
Ms [Applicant’s sister 3] gave evidence to the Tribunal about her daughters, their living and parenting arrangements, and their relationship with Mr KTNH and with their grandparents. Ms [Applicant’s sister 3] and the children’s father are separated and share in their care 50/50. The children’s father care for them when Ms [Applicant’s sister 3] is working at Roxby Downs, and she cares for them when she returns to Adelaide.
I accept Ms [Applicant’s sister 3]’s evidence that she and Mr KTNH once lived together, and during that time they formed a close relationship with him. I accept that she would leave the children in Mr KTNH’s care from time to time. I understand that the children miss Mr KTNH, and while they understand that he is in prison they do not know the finer details as to why.
The children have visited Mr KTNH in prison on a number of occasions, but the experience has been overwhelming, and their father does not want them going to the prison.

As to the nature and duration of the relationship between the children and Mr KTNH, I find that the relationship is avuncular in nature and is non-parental. I note less weight should generally be given where the relationship is non-parental, and while I accept that the relationship between Mr KTNH and the children is very close, I do afford it less weight as a non-parental relationship.
I accept that the relationship is continuing, and while visits have been limited during Mr KTNH’s incarceration, I do not consider that reduces the nature or significance of the relationship for the children.
I consider that Mr KTNH may play a positive avuncular role for the children in the future, and that is to be appropriately valued, but it will not be a parental role prior to the children turning 18. The children have two people, their mother and their father, that fulfill a parental role in respect of them.
In light of Ms [Applicant’s sister 3]’s evidence that the children are aware that Mr KTNH is in prison but do not know the fine details as to why, I do not consider that there is evidence that Mr KTNH’s prior conduct has had a negative impact on the children. Although I have found that Mr KTNH presents a high risk of violent re-offending, and the index offence involved a child as a victim, there is no sense that the children are likely to be impacted by any recidivist conduct.
The likely effect of any separation from Mr KTNH will be adverse, but ameliorated by the children’s ability to maintain contact with Mr KTNH in other ways including by telephone and video, and by travel (probably infrequently) to the United Kingdom.
I do not have any evidence directly from the children, but accept Ms [Applicant’s sister 3]’s evidence that the children miss Mr KTNH very much, and I infer that they would wish me to revoke the decision to cancel his visa so he may remain in Australia.
There is no evidence that the children have been or are at risk of being exposed to any of the forms of harm referred to in clause 8.4(4) of the Direction.
I find that the children’s best interests are served by revoking the decision to cancel the visa, as to do so would permit Mr KTNH to remain in Australia and build upon the positive avuncular relationship he has developed with them through more regular physical contact. However, I place only mild weight on the best interests of the children in this regard because the relationship is avuncular in nature and non-parental, the children have people fulfilling a parental role in respect of them, and contact may be maintained consistent with a positive avuncular relationship by other means including electronic communication and infrequent visits to the United Kingdom by the children.
In relation to Mr [Applicant’s father] and Mrs [Applicant’s mother]’s relocation to the United Kingdom in the event that Mr KTNH’s visa remains cancelled, I consider this will have a direct impact on the children and it is appropriate that I consider their best interests in this regard.
The relationship between the children and their grandparents is very close. I accept that a close and positive grandparental relationship is important to the wellbeing of children generally, and this relationship is very important to these particular children. While I give less weight to the relationship between the children and their grandparents as it is non-parental in nature, I nonetheless consider the relationship to be particularly important to the children. It is clear from Ms [Applicant’s sister 3]’s evidence that the children have enjoyed and benefited from a very close relationship with their grandparents throughout their childhood to date. I accept that the fundamental change to the nature of this relationship from its current level of close contact will be traumatic for the children and quite contrary to their best interests.
As the children already have their mother and father fulfilling the parental role in respect of them, I consider it unlikely that their grandparents will fulfill a parental role during their childhood.
As mentioned above, I consider the impact of the separation from their grandparents will be highly adverse to the children, but this is ameliorated through the ability of contact being able to be maintained in other ways. In particular, Mr [Applicant’s father] and Mrs [Applicant’s mother] will remain free to travel to Australia as frequently as their financial and other circumstances will permit. I have no basis to assume that such travel would be infrequent. Maintaining electronic communication between children and grandparents further ameliorates the adverse impact.
In light of the evidence of the close relationship between the children and their grandparents, and in light of Ms [Applicant’s sister 3]’s evidence, I infer that the views of the children are that any decision that will have the practical consequence of their grandparents relocating to the United Kingdom is unwanted, and I take that into account.
I find that it is not in the children’s best interest for me to make a decision that will have the practical consequence that their grandparents will relocate to the United Kingdom. I place moderate weight on this consideration having regard to the nature of the relationship, with some amelioration in weight due to the capacity of contact to be maintained in other ways.
Overall, taking into account the best interests of the children in Australia affected by the decision, I find that their best interests are served by revoking the decision to cancel Mr [KTNH]’s visa. Overall, I consider that this weighs moderately in favour of revoking the decision to cancel Mr KTNH’s visa.
I have also taken into account the best interests of Ms [Applicant’s sister 2]’s children, “C” (male, 11 years old) and “O” (male, 9 years old). These children are Australian citizens, but they do not reside in Australia and are not in Australia. Therefore, consideration of their circumstances falls outside the terms of clause 8.4 of the Directions, and are not a primary consideration. The Direction does not limit the matters that may be taken into account, and it is appropriate that I also take into account the impact of the decision on these children, albeit not within the framework of the primary consideration at clause 8.4 of the Direction. It is convenient to take into account their circumstances now.
These children reside in the United Kingdom with their parents, who I infer from the evidence of Ms [Applicant’s sister 2] perform a parental role in respect of them. Having departed Australia in 2016, I further infer that they have had no physical contact with Mr KTNH for many years, and have not been impacted by his conduct, and nor is there any basis to consider they would be impacted by any repeat conduct in the future.
Given the entire family is close, notwithstanding Ms [Applicant’s sister 2]’s family is in the United Kingdom and planned to return to Australia, I also infer that “C” and “O” had a somewhat close avuncular relationship with Mr KTNH. The precise nature of that relationship is not addressed in detail in the evidence.
Ms [Applicant’s sister 2] states she is particularly close with her mother. I infer that the children have a somewhat close relationship with their grandparents, limited from what it otherwise would be due to separation by some distance since 2016.
As to whether the best interests of these children would be served either by revoking or refusing to revoke Mr KTNH’s visa cancellation, I consider that it is not in the children’s best interests. While on the one hand the evidence is that Mr [Applicant’s father] and Mrs [Applicant’s mother] would relocate to the United Kingdom if the visa remains cancelled, and this will take them closer to these children in light of their current living arrangements, I accept that continued residence in the United Kingdom was not what Ms [Applicant’s sister 2] had planned for her family, including these children, and the family (including the children) would prefer to be united in Australia. In that regard, maintaining an avuncular relationship with Mr KTNH in Australia, as part of a united wider family in Australia is also in these children’s best interest.
As to weight however, I attach little weight to this consideration. The children are currently separated from both their grandparents and Mr KTNH, and have been for many years. They may continue to maintain contact with both their grandparents and Mr KTNH either by electronic means, visits or residency in the United Kingdom (in the case of the grandparents if the family decides to stay). Furthermore, as mentioned above, as the children are not in Australia, this consideration to which I attach little weight is not a primary consideration.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
In my view, Mr KTNH’s case is no exception to this general observation. I have found that Mr KTNH poses an unacceptable risk of very serious harm to the Australian community through my analysis of the first primary consideration. In line with the Government’s expression of the expectation of the Australian community, I find that the Australian community would expect that the visa remains cancelled.
This consideration weighs heavily against revoking the decision to cancel Mr KTNH’s visa.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[31]
[31] Direction No 110 para 9.1.
While this consideration in Direction No 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[32]
·Refusal of other visa applications and cancellation of other visas;[33]
·A prohibition on applying for other visas;[34] and
·Periods of exclusion and special return criteria may apply.[35]
[32] Migration Act ss 189, 196, 197C, 198.
[33] Ibid s 501F.
[34] Ibid s 501E.
[35] Ibid s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[36] Under section 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198.
[36] Ibid s 15.
If the cancellation of the visa is not revoked, Mr KTNH will be transferred from the custody of the South Australian corrections system to immigration detention, and will continue to be detained under section 189 of the Act to be removed from Australia to the United Kingdom as soon as practicable under section 198 of the Act.
In Mr KTNH’s case, as his country of nationality is the United Kingdom, there are no non-refoulement claims raised and there is no evidence of any practical difficulty in effecting removal to the United Kingdom, I am satisfied that the legal consequences of a decision not to revoke the visa cancellation is that Mr KTNH will be removed to the United Kingdom.
Section 501E of the Act operates to very substantially restrict Mr KTNH’s ability to apply for another visa while in the migration zone. Furthermore, certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for ‘permanent’ exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.
At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, I mention the decision of Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003.
I understand that Rano has been appealed by the Respondent, but at the time of my decision it relevantly binds me. In that matter, the Court concluded that the applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa…and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.
As the practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account, and indeed do so because the consequences loom large in the way described by the court in Rano. I observe that I have attached weight to Mr KTNH’s concerns regarding maintaining contact with his immediate family, including minor children in the course of considering the applicable considerations, and I have also taken into account the impact on Mr KTNH’s immediate family in Australia of the effect of splitting the family between Australia and the United Kingdom that removal of Mr KTNH will produce. I attach no further weight to those matters under the ‘other’ consideration of ‘legal consequences’, but do recognise the way section 501E and special return criterion 5001 would operate in relation to Mr KTNH.
Extent of impediments if removed
Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
- The Applicant’s age and health;
- Whether there are substantial language or cultural barriers; and
- Any social, medical and/or economic support available to the Applicant in their country.
Age and health
Mr KTNH is young, but suffers from the disabilities discussed in detail elsewhere in these reasons. As is evident from the information before me about the proposed NDIS package, optimal support for his disabilities requires complex interventions across multiple therapeutic disciplines. I consider this issue further below.
Language or cultural barriers
I do not consider Mr KTNH will face any language or cultural barriers in the United Kingdom.
Any social, medical and/or economic support available to the Applicant in their country
I take on notice that the United Kingdom, generally speaking, enjoys a commensurate general standard of living to that in Australia and has a well-established social security system and a public health system of a standard at least similar to that in Australia.
Nothing has been put into evidence regarding how adults with high functioning autism and possibly ADHD might be supported in the United Kingdom, or whether there is an equivalent or approximately equivalent government programme to the NDIS. To the extent that there is, I recognise that accessing any such program and securing support will involve, effectively, starting again in that regard for Mr KTNH and his parents.
Despite those observations, I do not consider that Mr KTNH’s disability means he will face an impediment in establishing himself and maintaining basic living standards in the context of what is generally available to citizens of the United Kingdom. I accept that Mr KTNH has always faced barriers in successfully living independently due to his disability, and will continue to do so regardless of where he lives.
In this regard, as mentioned above, it has been made unequivocally clear in these proceedings that upon removal to the United Kingdom, Mr KTNH will not be living independently but will be accompanied by his parents. Although I have noted Mrs [Applicant’s mother]’s concerns about securing employment in the United Kingdom given her age, having regard to both Mr [Applicant’s father] and Mrs [Applicant’s mother]’s curricula vitae that have been placed into evidence, and their financial resources through their home in Australia which they intend to sell, I do not consider that any difficulty in that regard would amount to an impediment to Mr KTNH maintaining basic living standards or establishing himself.
Nonetheless, given that Mr KTNH has resided in Australia since the age of 11, and that relocation to the United Kingdom of himself and his parents is not something that anyone in his extended family wants, he will inevitably face distress and a psychosocial shock upon removal from Australia. I give some weight to this consideration in favour of revoking the decision to cancel Mr KTNH’s visa. The consideration however attracts only mild weight in favour of revoking the decision to cancel Mr KTNH’s visa.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant submits that I should take into account the impact on Mr [Applicant’s father]’s employer, Compass Group, of Mr [Applicant’s father] leaving his role to return to the United Kingdom with Mr KTNH if I decline to revoke the decision to cancel Mr KTNH’s visa. As mentioned above, I accept that Mr [Applicant’s father] would return to the United Kingdom, and it follows that I also accept that he would necessarily leave his current employment in these circumstances.

The Respondent contends that this consideration may relevantly only be engaged in relation to the impact on an Australian business of the former visa holder not being able to engage in employment, and cites Arachchi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1311 at [70] in support of this submission, contending Mr [Applicant’s father]’s employment link is not a relevant employment link.
Having examined the entirety of the reasons in Arachchi, I consider that the remarks of his Honour are binding on my approach to this question in the context of clause 9.3 of the Direction. Specifically, the Court said:
The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa.
I find that the “employment link” between Mr [Applicant’s father] and Compass Group is not a relevant employment for the purposes of clause 9.3 of the Direction.
However the Direction does not limit the matters that may be taken into account, and I am to take into account the impact on Compass Group generally in circumstances where that matter has been clearly articulated in the evidence before me. It was submitted that I should take into account the circumstances of Mr [Applicant’s father] leaving his employment with Compass Group, and give it weight in favour of revoking the decision to cancel the visa, and I accept that I am to consider that matter.
Mr [Applicant’s father] fulfills an important and high level role for Compass Group at the Olympic Dam mining site and Roxby Downs township, working as the site operations manager. From [Applicant’s father]’s evidence, I understand him to be the second most senior employee at this large and complex site it is appropriate that I also take into account the impact of the decision on this business.
Mr [Applicant’s father] explained that the firm is responsible for various service deliveries at the site, including catering, accommodation, and maintenance. The sites for which [Applicant’s father] is responsible cater for 4000 to 5000 people.
Mr [Applicant’s father] believes that his employer would have considerable difficulty replacing him should he leave. I explored that issue with [Applicant’s father] in relation to his immediate superior, and the people who report directly to him, and understand that [Applicant’s father] considers it is unlikely that these people would be able to either step up or step down into his role. It was put to [Applicant’s father] in cross examination that no one is irreplaceable, and it was submitted that there was no evidence from any other source within the company about the impacts on it of any departure by Mr [Applicant’s father].
However, having regard to the very significant role Mr [Applicant’s father] performs in the business, and taking on notice the significant importance of the Olympic Dam and Roxby Downs sites to Australia’s business interests, where Compass Group provides its services, I accept that should Mr [Applicant’s father] leave his employment it will have an adverse impact on Compass Group and in that way an adverse impact on Australian business interests.
The extent of that adversity is difficult to measure in circumstances where I only have evidence from Mr [Applicant’s father]. I am not satisfied to find that the extent of the adverse impact will be so great as to be insurmountable or that Compass Group will be unable to continue to provide its services effectively at the site such that the operations of the Olympic Dam mine will be adversely affected. In one sense, on the evidence before me, and certainly not intending any disrespect or devaluation of his important role, I am not satisfied that Mr [Applicant’s father]’s departure will produce such an adverse impact on the company’s operations that anything beyond nominal mild weight in favour of revoking the visa cancellation should be attached to this consideration.
CONCLUSION
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[37]
[37] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said
‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[38]
[38] [2023] FCAFC 138, [23].
In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[39] In the circumstances of this case I consider the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations.
[39] Ibid [27].
I have found that the nature and seriousness of Mr KTNH’s conduct to be very serious indeed, and the risk to the Australian community should further offences or other serious conduct committed to be unacceptable in circumstances where I have found Mr KTNH presents a high risk (in the sense of likelihood) of violent reoffending and a very high risk of general reoffending. I find that this primary consideration weighs very heavily against revoking the cancellation of the visa.
I have also found that the expectations of the Australian community are that the visa cancellation not be revoked, and this weighs heavily against revoking the decision to cancel the visa.
The evidence and arguments from Mr KTNH’s family about the impact of the decision on them has been heard and understood. I agree that the impact will be highly adverse, particularly as it will inevitably lead to Mr [Applicant’s father] and Ms [Applicant’s mother] relocating to the United Kingdom and the close family being split between the United Kingdom and Australia. I accept this weighs heavily in favour of revoking the decision to cancel the visa. I have also accepted that the best interests of “M” and “G” are served by revoking the decision to cancel the visa, and have accorded this moderate weight, particularly in light of “M” and “G”’s close relationship with their grandparents who will also depart Australia. I have also placed mild weight on the extent of the impediments Mr KTNH will face if removed from Australia.
I have taken into account the best interests of “C” and “O” and the impact of the decision on Ms [Applicant’s sister 2]. I accept these matters weigh in favour of revoking the decision to cancel the visa, as does, albeit nominally, the impact on Compass Group of Mr [Applicant’s father] leaving his employment to relocate to the United Kingdom with Mr KTNH.
Overall however, my decision turns on my assessment that the protection of the Australian community and the expectations of the Australian community outweigh all other considerations, including the impact on Mr KTNH’s immediate family in Australia.
I therefore do not find another reason to revoke the decision to cancel Mr KTNH’s visa and affirm the decision under review.
This decision was delivered to Mr KTNH, and I presume his family, on 10 December 2024 without these detailed reasons. I understand that this is not the outcome that was hoped for, and suspect that to deliver the decision in the absence of any reasons would exacerbate the distress accompanying the outcome. I regret that it was not possible to complete the task of preparing these reasons to the standard necessary for publication within the 84-day timeframe.
DECISION
The decision not to revoke the cancellation of visa under section 501CA(4) of the Act is affirmed.

I certify that the preceding 206 (two-hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Kennedy.

…..................[SGND]..............................
Feng J, Associate
Dated: 17 Dec 2024

Date of hearing

Counsel for the Applicant

Solicitor for the Applicant

2 & 3 December 2024

Ms Molly Scanlon

Mr Matthew Thompson

Counsel for the Respondent:

Solicitor for the Respondent

Mr Paul d’Assumpção

Ms Sophie Edmondstone

EXHIBIT REGISTER

Exhibit Number

Description

G1 – G47

G-Documents

S1 – S15

Respondent’s Supplementary Documents

A

Home Detention Compliance Report, SA Correctional Services

B

Statutory Declaration of [Applicant’s father] dated 22/11/2024

C

Statutory Declaration of [Applicant’s mother] dated 22/11/2024

D

Statutory Declaration of Lindi Erasmus dated 22/11/2024

E

Letter of support of [Applicant’s sister 2] dated 25/11/2024

F

Letter of support of [Applicant’s brother] dated 25/11/2024

G

Statutory Declaration of [KTNH] dated 25/10/2024

H

Statutory Declaration of [Applicant’s father] dated 27/10/2024

I

Statutory Declaration of [Applicant’s mother] dated 27/10/2024

J

Letter of Support of [Applicant’s sister 3] dated 25/10/2024

K

Letter of support of [Applicant’s sister 1] dated 25/10/2024

L

Curriculum vitae of [Applicant’s mother]

Exhibit Number	Description
G1 – G47	G-Documents
S1 – S15	Respondent’s Supplementary Documents
A	Home Detention Compliance Report, SA Correctional Services
B	Statutory Declaration of [Applicant’s father] dated 22/11/2024
C	Statutory Declaration of [Applicant’s mother] dated 22/11/2024
D	Statutory Declaration of Lindi Erasmus dated 22/11/2024
E	Letter of support of [Applicant’s sister 2] dated 25/11/2024
F	Letter of support of [Applicant’s brother] dated 25/11/2024
G	Statutory Declaration of [KTNH] dated 25/10/2024
H	Statutory Declaration of [Applicant’s father] dated 27/10/2024
I	Statutory Declaration of [Applicant’s mother] dated 27/10/2024
J	Letter of Support of [Applicant’s sister 3] dated 25/10/2024
K	Letter of support of [Applicant’s sister 1] dated 25/10/2024
L	Curriculum vitae of [Applicant’s mother]