Kurth and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1971
•2 October 2025
Kurth and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1971 (2 October 2025)
Applicant/s: Christopher Douglas Kurth
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4317
Tribunal:General Member J Papalia
Place:Perth
Date of decision: 2 October 2025
Decision:The reviewable decision, dated 9 July 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of Migration Act 1958 (Cth), is set aside. In substitution for that reviewable decision, the Tribunal revokes the decision to cancel the special category visa.
Statement made on 02 October 2025 at 1:59pm
CATCHWORDS
MIGRATION – visa cancellation – special category visa – mandatory cancellation under s 501(3A) of Migration Act 1958 – where Applicant does not pass the character test – Theft – simple drug offences – traffic offences – similar NZ criminal history - whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – whether the conduct engaged in constituted family violence – the strength, nature and duration of ties to Australia – best interests of minor children in Australia affected by the decision – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – impact on Australian business interests – Applicant is 38 year old citizen of New Zealand – reviewable decision set aside – cancellation revoked
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53
Re PGQM and Minister for Immigration and Citizenship [2025] ARTA 1245
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth)
Statement of Reasons
THE APPLICATION
The Applicant, Mr Kurth, is a New Zealand (NZ) citizen who seeks review of a decision not to revoke the mandatory cancellation of his special category visa.[1]
[1] See Exhibit 1, p 20.
The mandatory cancellation occurred in January 2025,[2] following a successful appeal against sentence made by Mr Kurth in the District Court of New South Wales, where he was re-sentenced to 13 months’ imprisonment for dishonesty-related and traffic offences.[3]
[2] See Exhibit 1, pp 108ff.
[3] See Exhibit 1, pp 62-65, 76-79
Mr Kurth was notified of the mandatory cancellation decision on 21 January 2025 and invited to make representations seeking that it be revoked.[4] He did so on the same day.[5]
[4] See Exhibit 1, p 648; see also Exhibit 1, pp 108-115.
[5] See Exhibit 1, pp 22 [3], 84-105.
On 9 July 2025, a delegate of the Respondent (Minister) refused to revoke the cancellation under s 501CA(4) of the Migration Act (reviewable decision).[6]
[6] See Exhibit 1, p 20.
The Applicant pursued merits review in this Tribunal. For the following reasons, the Tribunal has determined that the correct decision is to set aside the reviewable decision and, in substitution for that decision, decided to revoke the cancellation. In other words, the Tribunal has found that the special category visa should be restored to the Applicant.
BACKGROUND
The Applicant was born in NZ, where his mother and two brothers remain. In 2002, when he was 15 years of age, Mr Kurth’s father died suddenly and unexpectedly.[7] He commenced using illicit substances shortly thereafter.
[7] See Exhibit 1, pp 245, 249.
In 2004, the Applicant started appearing in the District Court of New Zealand for drug and dishonest offending.[8] He appeared to stabilise himself thereafter and successfully completed his carpentry apprenticeship in September 2009.[9]
[8] See Exhibit 1, p 52.
[9] See Exhibit 1, p 256.
Having obtained that trade certification, Mr Kurth decided to move to Australia. He did so on 30 November 2009, and was taken to have applied for a special category visa on presentation of his passport at Coolangatta Airport.[10]
[10] See Exhibit 1, p 107.
Mr Kurth first appeared before the Australian courts for simple drug offences in Queensland in February 2011.[11] He was dealt with by way of a good behaviour bond without conviction.
[11] See Exhibit 1, p 50.
Mr Kurth returned to NZ for a few months in mid-2012 and acquired a conviction for an obscene act in public whilst he was there.[12] He told the Tribunal that this was for walking down the street without underwear and his fly down.
[12] See Exhibit 1, pp 52, 107.
In November 2012, the Applicant met and commenced a relationship with his present partner, Ms LMS.[13] Ms LMS is a British national and Australian permanent resident.[14] She has three adult children from prior relationships. The Applicant’s daughter, Miss EKS, was born in September 2014.[15] One of the stepchildren, Ms CS, has an infant daughter, Miss LS.[16]
[13] See Exhibit 1, p 93.
[14] See Exhibit 1, p 495.
[15] See Exhibit 1, p 94.
[16] Evidence on 23 September 2025.
The Applicant made a series of return trips to NZ in 2013, 2014 and 2015, without incident.[17] He was granted the present special category visa (the subject of the mandatory cancellation decision) on 27 September 2015.
[17] See Exhibit 1, p 106
The Applicant’s main tranche of offending commenced in July 2016 in New South Wales (NSW).[18] It escalated from April 2020, with repeated thefts from businesses such as Bunnings Warehouse, and continued driving under the influence of methylamphetamine.
[18] See Exhibit 1, pp 494ff.
At some stage in June 2018, the Applicant commenced his own business – Aboard Above Flooring.[19] He was otherwise sub-contracting as a carpenter.
[19] See Exhibit 5; Evidence on 23 September 2025.
Between October 2020 and November 2024, the Applicant appeared before the Local Court of New South Wales on multiple occasions, where he was respectively sentenced to a series of escalating penalties, from community-based orders to an intensive correction order and then ultimately immediate imprisonment.[20]
[20] As to which see Sentencing Act 1995 (WA) s 39(2); Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 2.
As observed in the introduction to these reasons, in January 2025, the District Court reduced the initial sentence of 18 months’ immediate imprisonment which had been imposed by the Local Court in November 2024 to 13 months’ imprisonment.
There were two short periods of remand in July 2021 and April 2024, however Mr Kurth did not spend any substantial time in prison until June 2024.[21]
[21] See Exhibit 1, p 79.
The Applicant was released to parole on 19 February 2025,[22] and was taken into immigration detention pending the outcome of this review. The parole term expired on 19 July 2025.[23]
[22] See Exhibit 1, pp 652-653.
[23] See Exhibit 1, pp 76, 652.
The reviewable decision was made on 9 July 2025.[24] The applicant was notified of that decision by hand on 10 July 2025.[25] This notification package complied with the requirements of s 501G of the Migration Act and was the method of service prescribed by reg 5.02 of the Migration Regulations 1994 (Cth) (Regulations) for persons in immigration detention.
[24] See Exhibit 1, p 20.
[25] See Exhibit 1, p 38.
The Applicant sought review under s 500(1)(ba) of the Migration Act, within time on 12 July 2025.[26]
[26] See Exhibit 1, p 1.
In accordance with s 500(6L) of the Migration Act, the Tribunal must determine the review application by 2 October 2025.
THE HEARING
The parties appeared in-person before the Tribunal on 24, 25 and 30 September 2025 by video-link. The Applicant was represented by Ms Noeline Harendran (consultant) (first two days of hearing) and Ms Pritha Gurung of Sedaqa Lawyers Pty Ltd. The Minister was represented by Ms Qi Qi Ren of HWL Ebsworth Lawyers.
The following documents were marked as exhibits:
(a)Joint Hearing Bundle, including the parties’ respective Statements of Facts, Issues and Contentions (913 pages) (Exhibit 1);
(b)Character reference from Mr Daniel Stay, Stay Active Group Pty Ltd t/as Fitmedia AU dated 16 September 2025 (one page) (Exhibit 2);
(c)Character reference from the Applicant’s mother dated 31 July 2025 (three pages) (Exhibit 3);
(d)Statutory declaration made by Ms LMS on 18 September 2025 (three pages) (Exhibit 4);
(e)ABN Lookup details for Aboard Above Flooring dated 23 September 2025 (two pages) (Exhibit 5);
(f)Letter from One80TC Limited dated 24 September 2025 regarding the Applicant’s suitability for their residential rehabilitation programme (two pages) (Exhibit 6); and
(g)Psychological Report authored by Mr Carlos Camacho dated 24 September 2025 (four pages) (Exhibit 7A);
(h)Letter of Instructions to Mr Camacho dated 18 September 2025 (three pages) (Exhibit 7B).
The Joint Hearing Bundle did not comply with the Tribunal’s directions regarding its preparation and contents. Unfortunately, this was not able to be rectified ahead of the hearing. The insufficient attention to the preparation of the Joint Hearing Bundle hindered the efficient conduct of the review. The Tribunal reiterates its earlier comments in Re PGQM and Minister for Immigration and Citizenship [2025] ARTA 1245 at [13]-[14]. Bundles of this kind are not a complete replication of any material received under summons; they are the compilation of the documentary evidence sought to be relied upon by the parties. Such hearing books are required to be prepared with the sound forensic judgment expected of experienced legal practitioners, including how that evidence is organised and presented.
At the hearing of the review, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[27] He was reminded of that right throughout the hearing.
[27] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].
The Tribunal took oral evidence from the Applicant, Ms LMS and Mr Camacho.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of Mr Kurth’s special category visa is the ‘correct or preferable decision’ on the material before the Tribunal.[28]
[28] ART Act, ss 9, 54, 56(1)(a).
Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, the majority of the High Court described this section of the Migration Act as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[29] The majority held that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[30]
[29] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [22].
[30] Ibid. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594, [6].
In reviewing decisions of this kind, the Tribunal must comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[31] given by the Minister under s 499(1) of the Migration Act.[32] This is a legislative constraint on the Tribunal’s process of reasoning.[33] However, as the Full Court identified in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582,[34] the principles stated in Drake (No 2)[35] regarding the application of governmental policy, and the Tribunal’s ability to depart from it where appropriate remain applicable.
[31] Direction, cl 1.
[32] Direction, cl 5.1(4); Migration Act s 499(2A).
[33] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, [33].
[34] Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, [23], [81].
[35] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must ‘take into account’ the factors identified in cls 8 and 9 of the Direction (where relevant) in deciding the application.[36] In this review, those relevant factors are:
[36] Direction, cl 6.
(a)the protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia;
(e)the expectations of the Australian community;
(f)the legal consequences of the decision;
(g)the extent of impediments if removed; and
(h)impact on Australian business interests.
CONSIDERATION
Representations in accordance with invitation
The Applicant was notified of the mandatory cancellation decision on 21 January 2025 by hand and whilst he was in NSW custody.[37] This notice complied with requirements of ss 501CA(3) and 501CA(3A) of the Migration Act, read with reg 2.55(3)(a) of the Regulations.
[37] See Exhibit 1, p 648.
Regulation 2.52(2)(b) provides that any representations seeking revocation of a decision of that kind must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation.
Regulations 2.52(3) to 2.52(6) set out the way representations are to be made, including that they are to be in English (or accompanied by translation) and that they must include specified information, such as personal identifiers and ‘a statement of the reasons on which the person relies to support the representations.’
The Applicant made representations seeking revocation of the cancellation decision within the specified timeframe, on the same day he was notified. These representations complied with the content requirements of the Regulations.[38]
[38] See Exhibit 1, pp 85-87.
Accordingly, the Tribunal is satisfied that Mr Kurth made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501 of the Migration Act.[39] Failure to pass the character test arises as a matter of law.[40]
[39] Direction, cl 5.1(3) and Annexure A; See also Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40] (not disturbed on appeal, [2025] FCAFC 78).
[40] See Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63].
Section 501(6)(a) of the Migration Act sets out that a person does not pass the character test if ‘the person has a substantial criminal record (as defined by subsection (7))’. The term ‘substantial criminal record’ includes when ‘the person has been sentenced to a term of imprisonment of 12 months or more’[41] and when they have been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.[42]
[41] Migration Act, s 501(7)(c).
[42] Migration Act, s 501(7)(d).
It was common ground that Mr Kurth did not pass the character test by virtue of the aggregate sentence immediate imprisonment imposed by the Local Court of New South Wales on 20 November 2024, which was then varied to 13 months’ imprisonment by District Court of New South Wales on 16 January 2025.[43] The Tribunal agrees.
[43] See ASFIC, [19]; RSFIC, [14]; see also Exhibit 1, pp 53-61, 62-65, 74-75, 76; Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(b).
The Tribunal finds that Mr Kurth does not pass the character test because he has a ‘substantial criminal record’ as defined in s 501(6)(a), read with s 501(7)(c), of the Migration Act.[44]
[44] See Migration Act, s 5AB; Pearson v Commonwealth of Australia (2024) 99 ALJR 110, [50], [61]-[62].
The Tribunal is therefore not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.
Is there ‘another reason’?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and to any relevant primary and other considerations contained within the Direction, there is ‘another reason’ why the Cancellation Decision should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[45] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the Applicant engages in other serious conduct.[46]
[45] See Direction, cls 8(1) and 8.1.
[46] Direction, cl 8.1(2).
It should be noted at this juncture that the Tribunal is not sentencing Mr Kurth for his past deeds. That has already happened. Rather, the Tribunal must assess whether Mr Kurth’s ‘continued presence here would be opposed to the safety and welfare of the nation’.[47]
[47] See Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [94].
The concept of ‘risk’, and whether it is ‘unacceptable’, under cl 8.1 of the Direction is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’.[48] For this purpose, an ‘unacceptable risk’ is a risk which the Tribunal considers to be ‘unacceptable’ having regard to a variety of considerations, including:
(a)the nature and seriousness of the Applicant’s criminal offending and other conduct to date (including the sentences imposed by the courts for a crime or crimes);
(b)the likelihood of the Applicant engaging in further criminal or other serious conduct; and
(c)the nature of the harm that could be caused by further offending.
[48] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471, [74].
The Direction informs the Tribunal’s risk assessment, at cls 5.2, 8.1(1), 8.1.1(1) and 8.1.2(1), by reiterating, amongst other things, that the Executive Government:
(a)is committed to ‘protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’;
(b)considers identified types of conduct to be ‘very serious’ or ‘serious’; and
(c)considers that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.’
It follows that the ‘risk’ referred to in the balancing exercise contemplated by those clauses of the Direction is not to any risk that an applicant may commit further criminal or other serious conduct but is calibrated towards the Tribunal’s assessment of the nature and degree of the harm said to be in prospect in the case at hand.
Nature and seriousness of the conduct to date
The Applicant’s criminal history is summarised in Annexure A. The Tribunal has not had regard to any offence dealt with under the NSW ‘Form 1 procedure’,[49] or to any of the criminal charges that were withdrawn by the State or for which the Applicant was acquitted. There was insufficient evidence before the Tribunal to support adverse findings about the discontinued charges or to go behind any acquittal.
[49] See Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866, [117].
It is fair to say, as both parties contended,[50] that the Applicant has a relatively ‘extensive’ criminal history in NSW, Queensland and NZ. This occurred over distinct periods:
(a)between April 2020 – June 2024;
(b)between July 2016 – October 2018;
(c)July 2012;
(d)February 2011;
(e)July 2008; and
(f)between April – May 2004.
[50] See ASFIC, [11], [26]; RSFIC, [4], [19].
Mr Kurth’s record consists primarily of simple drug offences, dishonesty-related offences and several traffic offences, including driving with prescribed illicit drugs in his system (six times) and careless driving. The offences committed in NZ are classified as offences in Australia.[51]
[51] See e.g. Criminal Code (WA), ss 70A(2), 143, 202(1)(a), 371, 378, 409; Misuse of Drugs Act 1981 (WA), ss 7(2), 7B(6); Road Traffic Act 1974 (WA) s 62.
The parties agreed that the Applicant’s criminal offending and other serious conduct to date could properly be classified as being ‘serious’.[52]
[52] See ASFIC, [27]; RSFIC, [19]-[20]; closing subsmissions.
The Minister highlighted the frequency of the offending, the trend of repeated offending between 2020 and 2024, which was often in contravention of community-based orders, and the cumulative effect of such offending on the Australian community.[53] The Minister sought to place emphasis on the remarks made by Magistrate Bartley in November 2024, to the effect that the Applicant had been ‘given leniency in the [previous Community Correction Orders] and squandered it.’[54] However, considering the successful appeal to the District Court, where it was found that the sentence imposed by the Magistrate was manifestly excessive and that there had been error in the assessment of the objective seriousness of the conduct (particularly the simple drug offences and also some of the larceny offences),[55] the Tribunal must respectfully approach most of his Honour’s sentencing remarks with some caution.
[53] See RSFIC, [20]-[21].
[54] See RSFIC, [19]; Exhibit 1, p 59 line 36.
[55] See Exhibit 1, pp 62-63 [4]-[6], [9]-[10], [15]
The Applicant sought to highlight the mitigating factors involved with the Applicant’s offending to date, and to emphasise the remarks made by Baly SC DCJ in the District Court to the effect that there was ‘nothing particularly remarkable about any of the offences for which [Mr Kurth] was sentenced by the magistrate [in November 2024] and for which [her Honour] was to re-sentence [the Applicant by way of re-hearing]’ and that the offending did not appear to be ‘overly serious examples of offences of their kind’.[56]
[56] See ASFIC, [28]-[29]; Exhibit 1, p 62 [2].
The Tribunal agrees with the assessment made by the NSW Courts that the Applicant’s breach of multiple community-based orders between 2020 and 2024 is significant. The Applicant’s overall history to date is indicative of a general disregard for the law.
For the reasons outlined below in respect of risk, the Applicant’s history to date is inextricably linked to his drug addiction.
For the above reasons, the Tribunal finds the nature and seriousness of the Applicant’s criminal offending and other serious conduct to date to be serious.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to have regard to the future risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[57]
[57] Direction, cls 8.1.2(2)(a)-(b).
There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[58]
Nature of harm
[58] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].
The Applicant accepted that if he were to re-offend the harm that could be caused could be serious.[59] He did not identify what kind of harm this would involve. The primary thrust of his argument was that his risk of recidivism was linked to drug addiction and unresolved grief, that he had been abstinent since June 2024, which was the first time since he was a teenager; and that he had now taken steps to deal with these issues.
[59] See ASFIC, [44].
The Minister identified in closing submissions the potential for serious harm to arise from continued driving under the influence of methylamphetamine. It was put that this potential for harm was serious and unacceptable. It was also submitted that the larceny offences were not victimless crimes and that they did, in fact, cause harm to the businesses or persons involved. It was said that these offences go to ‘social cohesion’.
Dealing first with the nature of the harm associated with larceny (in more recent terms, stealing), the Tribunal accepts that the assessment of the seriousness of such conduct does not involve a singular focus on the amount stolen, and that attention must be given to all of the relevant facts and circumstances, including the reasons for the offending, the use to which the offender puts what has been stolen, the effect of the offending on the victim and whether the offending involved a breach of trust.[60] The harm that can be caused by such conduct is fact dependent. The primary victims of the Applicant’s theft in the past were commercial businesses such as Bunnings and the Meriton Suites Hotel. The harm caused in those circumstances was relatively low-level economic harm. The harm associated with further offending of that kind has similar potential.
[60] See Dutton v State of Western Australia [2017] WASCA 169, [49].
Turning to harm caused by driving under the influence of alcohol or drugs, in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266, McKerracher J observed that:
[48] It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. It is clear that child pornography and drink-driving offences fall into the former category. However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. … In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users.
For the above reasons, the Tribunal finds that the nature of the harm to individuals or to the Australian community should the Applicant re-offend is variable, ranging from relatively minimal impact on individuals or businesses, to potentially catastrophic impact (so far as driving under the influence of drugs is concerned).
Likelihood of re-offending
The Applicant argued that he posed a low risk of re-offending given his demonstrated abstinence from drugs, his participation in available programmes[61] and strong family support.[62] This was said to be supported by the opinion of Mr Camacho, to which the Tribunal will return.
[61] As to which see Exhibit 1, pp 104-105, 259-261
[62] Closing submissions.
The Minister argued that the Tribunal should find that the Applicant posed a low to medium risk of re-offending considering the Applicant’s past behaviour and the fact that his abstinence had not been tested in the Australian community beyond the confines of prison or immigration detention.[63]
[63] Closing submissions.
The Tribunal was provided with the last available Sentencing Assessment Report (SAR) authored by Corrective Services NSW, dated 30 April 2024 and in respect of one of the Applicant’s larceny convictions.[64] The comments made in that SAR generally accord with the Applicant’s evidence and presentation before the Tribunal, including the difference between remorse and regret.[65] The Applicant was relevantly assessed by Corrective Services against the ‘Level of Service Inventory – Revised’ actuarial instrument, which produced a risk rating of ‘medium-low’ risk of re-offending.[66]
[64] See Exhibit 1, pp 337-342.
[65] As to which see State of Western Australia v Rayapen [2023] WASCA 55, [141].
[66] See Exhibit 1, p 340.
The Applicant previously completed the Magistrates Early Referral into Treatment (MERIT) Programme in 2020.[67] However, the Applicant’s participation in the MERIT Programme proved to be ineffectual, and the Applicant testified that it was not until he went to prison for a substantial period in June 2024 that he sobered up and began to realise the impact of his drug use on his life and choices.
[67] See Exhibit 1, pp 439-446.
In November 2024, Magistrate Bartley considered the Applicant to be more than a low risk of re-offending.[68] However, his Honour was prepared to accept that the Applicant had been abstinent from illicit drugs since June 2024 and that Mr Kurth meant what he said in terms of insight, regret and motivation to change.[69] Judge Baly SC reached similar conclusions in January 2025.[70] The Tribunal generally agrees with their Honours’ assessments about the Applicant’s risk of recidivism.
[68] Exhibit 1, p 57 lines 25-26.
[69] See Exhibit 1, p 60.
[70] See Exhibit 1, p 63 [7].
The Applicant’s primary motivation to change seems to be the impact his incarceration has had on his daughter. The Applicant presented as being genuine in this respect. He also undertook to complete the six-month residential drug rehabilitation programme with One80TC in Yarramundi (NSW), starting Monday, 6 October 2025, if the Tribunal was to restore his visa.[71]
[71] As to which see Exhibit 6.
The Applicant did have a prison charge history between July 2024 to January 2025, however these prison offences appeared to relatively low level in nature and the Minister did not materially challenge his explanations for that misconduct.[72] Moreover, there was no evidence of any incidents of that kind being repeated in immigration detention since February 2025.
[72] See Exhibit 1, p 653.
The Tribunal adjourned the hearing of this matter to accommodate the evidence provided late in the piece about the One80TC programme, and for a report to be provided by Mr Camacho after the first two-days of hearing and for him to then be made available for cross-examination.[73]
[73] This adjournment cured the preclusive effect of the two-day rule: see Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, [69]-[77].
Mr Camacho is a registered psychologist in NSW. He was not briefed by the Applicant appropriately, including because he was not appraised with Mr Kurth’s criminal history or the facts pertaining to it. The letter of instruction contained a series of assumptions which did not identify the evidential sources for those propositions, and the letter at times suggested the answers to the questions that had been posed. This should not be repeated.[74]
[74] As to which see: The Practitioner’s Guide to Briefing Experts (1st Edn, 2017) accessible at >
Mr Camacho’s written opinion was missing key content requirements set out in Pt 3 of the Tribunal’s Expert Evidence Practice Direction. The Tribunal accepts that this may have been a consequence of the speed within which it was prepared. For example, the Tribunal was told on 30 September 2025 that interviews were done on 24 and 25 September 2025. The report itself was dated 24 September 2025, but Mr Camacho testified that this was when he started to draft it. There was not an adequate explanation for the basis of Mr Camacho’s written opinions in the report, including any indication of whether they were the consequence of ‘structured professional judgment’,[75] which the Tribunal was told orally on 30 September 2025 they were not (rather, the opinion was said to be a consequence of Mr Camacho’s experience and intuition).
[75] As to which see Re Scott and Minister for Immigration and Citizenship [2025] ARTA 997, [94].
Mr Camacho’s oral evidence was more helpful. The effect of his evidence was that he considered that Mr Kurth posed a low risk of recidivism. This was grounded on an assessment of genuine insight and regret for his past actions, particularly with respect to the consequences associated with having been separated from his partner and daughter. Mr Camacho considered that the Applicant had the capacity for consequential thinking, particularly after he had been abstinent from drugs for some time. This was said to be based upon the Applicant’s previous completion of his carpentry apprenticeship in NZ and the previous periods in which he appeared to have been law-abiding. Mr Camacho considered that there was a need for Mr Kurth to deal with his addiction issues in the community and recommended both psychological and psychiatric support for this. The Minister accepted the force of those general propositions but otherwise sought that Mr Camacho’s opinion be given limited weight by reason of the deficiencies identified above.
For the above reasons, the Tribunal finds, on the evidence before it, that Mr Kurth poses a low to moderate likelihood of re-offending. In particular, he has ongoing treatment needs relating to addiction. Steps have been taken to address those issues (especially, forced sobriety), but Mr Kurth requires further supervision and support, particularly in a community setting.
Conclusion on the protection of the Australian community
The Tribunal finds the Applicant to pose a risk to the Australian community. It has found that:
(a)further involvement in driving under the influence of methylamphetamine has potential for serious harm;
(b)further involvement in property and dishonesty-related offending has the potential for financial harm; and
(c)the Applicant poses a low to moderate likelihood of committing such conduct in the reasonably foreseeable future notwithstanding that he has developed some insight into his offending behaviour and has been attending the rehabilitative courses available to him in prison or immigration detention.
The question that arises then is whether that risk is ‘unacceptable’?
The Minister argued that the risk was unacceptable because of the potential for serious harm and the fact that the Applicant has long-standing drug addiction issues, had previously been non-compliant with court orders, and because his recent abstinence had not been tested in the community.
The Tribunal found the Applicant’s evidence about the impact of his imprisonment and detention has had on his daughter to be compelling. The Applicant’s abstinence from illicit drug use over the past 12 to 18 months has appeared to produce genuine insight into his underlying motivations and triggers, and a real desire to change.
The Tribunal is prepared to accept the proffered undertaking to engage in the One80TC residential rehabilitation programme, commencing next week. Mr Kurth is aware that a second chance of this kind is unlikely to be afforded to him again. Subject to successful completion of that programme, the Tribunal considers that the risk to the Australian community is likely to be low.
Noting the policy guidance contained in the Direction (at cls 5.2, 8.1(1) and 8.1.2(1)), the Tribunal finds on the evidence before it that the risk posed by the Applicant in the reasonably foreseeable future is tolerable.
The Tribunal finds this primary consideration to weight against revocation but not determinatively.
Whether the conduct engaged in constituted family violence
The parties endorsed the Tribunal’s summary of principles in Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [80]-[86].
The Minister identified that the Applicant had been found guilty on 11 April 2018, at a hearing before Magistrate Maiden in the Local Court of New South Wales, of one count of intentionally or recklessly causing criminal damage in circumstances considered to be ‘domestic abuse’ (breaking a glass window on or about 16 December 2017).[76] The window appears to have been broken by the Applicant in the early hours of the morning either during or following an argument between the Applicant and Ms LMS. Mr Kurth was otherwise acquitted of a related charge of aggravated common assault at that hearing. He was sentenced to a good behaviour bond without conviction.[77]
[76] See Exhibit 1, pp 286-329; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 6A.
[77] See Exhibit 1, p 290.
The Tribunal accepts that this conduct amounts to ‘family violence’ within the meaning of cl 8.2(2)(a) of the Direction (namely a finding of guilt). The related definition of family violence in cl 4(1) of the Direction includes as an example ‘(e) intentionally damaging or destroying property’.
A series of restraining orders were made in the Local Court in 2018 following this incident,[78] and the Applicant and Ms LMS entered into a written agreement in May 2018 about ongoing contact for the purposes of caring for their child.[79] These orders have now been revoked and Ms LMS has stated that she has no concerns with the Applicant returning to live with her and Miss EKS. In fact, this is what both Ms LMS and Miss EKS seek happen.
[78] See Exhibit 1, pp 581-604.
[79] See Exhibit 1, p 597.
There was other material before the Tribunal suggestive of involvement in further acts of family violence in 2024.[80] However, Ms LMS testified, contrary to her interests, that these allegations were in fact false and that they were the consequence of her ‘going out of [her] way to be vindictive’.
[80] See Exhibit 4, p 2.
The Minister properly accepted that there was an isolated incident of family violence, committed in December 2017. It was, however, put by the Minister that the Tribunal should find that this conduct engaged the Australian Government’s ‘serious concerns’ about conferring on non-citizens who engage in such conduct the privilege of remaining in Australia and that this should therefore be weighed heavily against revocation.
In assessing the seriousness of the family violence engaged in by Mr Kurth, the Tribunal notes that it appears to have been a one-off incident and that it was committed some eight years ago. The time which has elapsed, and the strength of the ongoing relationship between the Applicant and Ms LMS (and their daughter) suggests rehabilitation.
The Australian Government’s concerns are stated to be ‘proportionate’ to the seriousness of the family violence engaged in (cl 8.2(1)). The Tribunal finds that there was a relatively minor incident of family violence committed in December 2017. It has not been repeated. Accordingly, the Government’s ‘serious concerns’ are engaged but only to a slight degree. This consideration weighs against revocation but not determinatively.
Strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[81] The Tribunal must also consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community, having regard to how long he has resided in Australia,[82] and 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’.[83]
[81] Direction, cl 8.3(1).
[82] Direction, cl 8.3(2)(a).
[83] Direction, cl 8.3(2)(b).
The Applicant’s ‘immediate family members’[84] in Australia comprise:
(a)His partner, Ms LMS;
(b)His daughter, Miss EKS; and
(c)Ms LMS’ three adult children:
(i)Mr BS (24), who works as a panel beater on the Central Coast of NSW and there is reportedly limited contact; the Applicant described him as having ‘gone his own way’;
(ii)Ms CS (22) and her daughter, Miss LS (2), who each live in Sydney. The Tribunal was told that they were previously living with the Applicant and his partner and daughter, but have now moved out, and that Ms CS views the applicant as her father and that her child calls the Applicant ‘poppy’; and
(iii)Mr JS (18), who lives in Far North Queensland with his father and is undertaking an apprenticeship. The Tribunal was told that that he speaks with the Applicant every couple of weeks.
[84] As to which see Re Anane and Minister for Immigration and Multicultural Affairs [2025] ARTA 822, [82]-[85].
Each of these family members are either permanent residents or Australian citizens.
The Tribunal was told that Ms LMS and Miss EKS live in government housing and that Ms LMS is presently unemployed and in receipt of social security benefits.
Ms LMS testified that the Applicant had previously been the family breadwinner and that he had been heavily involved in raising their daughter, and her other children. She told the Tribunal that their daughter’s moods had been up and down since the Applicant had been in custody and that they were both ‘missing the security of a having a male on the premises’. Ms LMS referred to the financial stress of losing the Applicant’s employment income and she described the bond between the Applicant and their daughter as ‘inseparable’ and ‘unbreakable’. They considered the Applicant to be the head of their family unit and Ms LMS stated that her other children, especially Ms CS, had also been affected by his absence. For example, Ms LMS referred to the Applicant as providing support and assistance when Miss LS was born, including picking out her first outfit and running things to/from the hospital.
In cross-examination, Ms LMS accepted that they would contemplate moving to NZ should the Applicant not be successful in this proceeding but indicated that this would not be her preference (particularly because of her adult children resident here). She was asked whether she had noticed a change in the Applicant since his incarceration and she indicated that this had been ‘across the board’.
Miss EKS provided the Tribunal with a letter dated 14 September 2025.[85] She wanted the Tribunal to know how important her dad was in her life and how much the thought of him not being allowed to stay in Australia hurt. She said her dad made her feel safe and loved and that without him physically present she felt empty, sad and incomplete.
[85] Exhibit 1, p 202.
The Applicant otherwise advanced a case to the effect that he was a long-term resident, who had established his life, home and family in Australia. The Tribunal was provided with a series of references from former colleagues and even clients, which spoke highly of his skill and work ethic as a carpenter.[86] This included an offer of employment.[87]
[86] See Exhibit 1, pp 251-255; Exhibit 2.
[87] See Exhibit 1, pp 251-252.
The Minister conceded in closing submissions that the Applicant had reasonably significant ties to Australia (including his partner and daughter) and that this primary consideration should be given some weight in favour of revocation. That concession was appropriate.
The Tribunal finds that this primary consideration, including the impact of a decision on the Applicant’s immediate family and the strength, nature and duration of the Applicant’s other ties to Australia, weighs moderately in favour of revocation.
Best interests of minor children in Australia
The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision.[88] As there are two relevant minor children in this application, the Tribunal is required to give their interests separate consideration to the extent that their interests may differ.[89] Clause 8.4(4) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision.
[88] Direction, cls 8.4(1), 8.4(2).
[89] Direction, cl 8.4(3).
The Tribunal has already summarised some of the evidence before it concerning both children in the context of the Strength, nature and duration of ties primary consideration. It was accepted by the Minister that the best interests of each child weighed in favour of revocation, and, in respect of Ms EKS, powerfully so.
Miss EKS
In considering the best interest of Miss EKS, the Tribunal has had regard to:
(a)The nature and duration of the father-daughter relationship, including that this has continued whilst the Applicant has been in immigration detention or prison;[90]
(b)Miss EKS is 11 years old, and the Applicant is likely to play a positive parental role into the future if he remains abstinent.
(c)Miss EKS misses her father and feels lost without him.[91] Whilst she could travel to NZ, her half-siblings remain resident here and her home has always been here. There is no substitute for physical presence on a regular basis and this would be preferable as Miss EKS achieves various milestones, such as transitioning to high school.
(d)Ms LMS is fulfilling a parental role for Miss EKS (as her mother); But she is reportedly struggling to raise Miss EKS in Mr Kurth’s absence;[92]
(e)There is no evidence of any risk of Miss EKS being exposed to abuse or neglect from the Applicant or that she has suffered or experienced any physical or emotional trauma arising from Mr Kurth’s conduct.
[90] See e.g. Exhibit 1, pp 203, 240-242, 243-244, 246.
[91] See Exhibit 1, pp 200, 202.
[92] See Exhibit 1, pp 200, 246.
Miss LS
In considering the best interests of Miss LS, the Tribunal has had regard to:
(a)The nature and duration of the Step-grandfather-granddaughter relationship, with noticeable absences from an early age due to the Applicant’s incarceration and detention.
(b)Miss LS is 2 years of age, and the Tribunal accepts that there is a prospect that the Applicant may play a positive grandparental role in the future, depending on whether he abstains from further illicit drug use.
(c)There are other persons fulfilling a parental role, particularly the child’s mother, Ms CS. However, there is reportedly no father figure in the child’s life beyond the Applicant.
(d)There is potential for ongoing contact by telephone and other remote means, and by occasional travel to NZ, however there is no substitute for physical presence on a regular basis.
(e)There is no evidence of any risk or previous trauma/neglect.
For the above reasons, the Tribunal finds that revocation would be in the best interests of both Miss EKS and Miss LS. Miss EKS’ interests are more pressing than Ms LS’ interests. Cumulatively, the best interests of relevant minor children weigh heavily in favour of revocation.
Expectations of the Australian Community
This primary consideration is a ‘kind of deeming provision’,[93] which requires the Tribunal to consider the Minister’s articulation of community expectations.[94] 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:[95]
[w]here 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 such a non-citizen to enter or remain in Australia.
[93] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].
[94] Direction, cl 8.5(4).
[95] Direction, cl 8.5(1).
Clause 8.5(2) then adds to that first ‘norm’ and indicates that non-revocation may be appropriate in a particular case ‘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’. It specifies identified kinds of conduct, committed in Australia or elsewhere, as attracting that further expectation,[96] including ‘acts of family violence’.[97]
[96] Direction, cls 8.5(2)(a)-(f).
[97] Direction, cl 8.5(2)(a).
The norms identified in the Direction ‘apply regardless of whether the [Applicant] poses a [measurable] risk of causing physical harm to the Australian community’.[98]
[98] Direction, cl 8.5(3).
The Tribunal is also specifically commanded to ‘proceed on the basis of the Government’s views as articulated’ in the Direction, ‘without independently assessing the community’s expectations in the particular case’.[99]
[99] Direction, cl 8.5(4).
The Tribunal adopts the approach to this primary consideration identified by Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [50]-[59].
The Tribunal finds that this primary consideration weighs against revocation and will weigh this against the other relevant considerations.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of its decision.[100] That is, the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power (including any decision under s 105 of the ART Act).
[100] Direction, cl 9.1(1). See also NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [3], [9]-[10]; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, [84], [88].
There are three major consequences of visa refusal or cancellation under s 501 and related provisions:
(a)
a prohibition, within the migration zone, on applying for other types of visas under
s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[101]
(b)refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and
(c)the possible application of periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A.
[101] See also Migration Act s 46(1)(d).
These adverse consequences can each be avoided by a positive decision to revoke the cancellation decision, and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[102]
[102] See Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143, [36].
When the Applicant’s special category visa was cancelled, he became an ‘unlawful non-citizen’.[103] That is, a non-citizen in the migration zone that did not hold a visa that is in effect.[104] This status conferred liability to be detained under s 189(1) of the Migration Act and this occurred on 19 February 2025. The Applicant is relevantly required to be detained until he is either removed from Australia under s 198 or he is granted a visa (including having his special category visa restored to him under s 501CA(4)).[105]
[103] Migration Act s 15.
[104] See Migration Act ss 13-14.
[105] Migration Act ss 196(1)(a), 196(1)(c), 196(4)-(5), 501C(6)-(7).
Sections 198(1) and (2B) of the Migration Act provide for removal either at written request or where there has been a mandatory cancellation and a subsequent decision made not to revoke that cancellation, respectively. The duty to remove an unlawful non-citizen arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[106] However, s 198 of the Migration Act does not require or authorise a non-citizen’s removal to a country if, during the course of a protection visa application, there has been a protection finding made for the person with respect to that country.[107]
[106] See Migration Act, s 197C(2).
[107] See Migration Act, s 197C(3).
The Applicant did not advance any non-refoulement obligation for consideration and none arises on the material before the Tribunal.
There is no reason to suppose that any required removal to the NZ would not be practicable in the reasonably foreseeable future and the Applicant has previously returned there on multiple occasions.[108]
[108] See Exhibit 1, pp 106-107.
It was accepted by the parties that a likely consequence of a decision to affirm the reviewable decision would be that the Applicant would be excluded from Australia and from the members of his Australian family into the foreseeable future, and that this would be a factor that would favour revocation.[109]
[109] See Closing submissions.
The legal and other consequences of the Tribunal’s decision weigh in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to NZ, in establishing himself, and in maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical, and/or economic support available to him in NZ.[110]
[110] Direction, cl 9.2(1).
The Applicant is 38 years old and in generally good health.[111] He has outstanding treatment needs with respect to substance use.
[111] See Exhibit 1, pp 652-653.
The Applicant left NZ as an adult. Accordingly, the Tribunal does not accept that there are any language or cultural barriers to the Applicant’s return to NZ. Mr Kurth also has a NZ trade qualification, extensive work experience in Australia and extended supportive family resident in NZ.[112]
[112] See Exhibit 1, pp 247, 251-254, 256.
NZ has a comprehensive health, education and social security network.[113] Mr Kurth will be able to register and access those services as required. Support to deal with his drug addiction will be available to him through providers such as Narcotics Anonymous (as it was in Australia).[114]
[113] See
[114] See
Moreover, on any return to NZ, the Applicant may be subject to supervision by NZ authorities under the Returning Offenders (Management and Information) Act 2015 (NZ) (Returning Offenders Act).[115] This includes the potential for court-imposed drug or alcohol conditions.[116]
[115] See Exhibit 1, pp 880-903, 911-913.
[116] See Returning Offenders Act, s 26(5)(c).
Community organisations such as the Prisoners Aid and Rehabilitation Services[117] and Te Pa[118] in NZ also provide support to people in the Applicant’s position.
[117] See See
The Applicant argued that being made subject to parole/supervision regime created by the Returning Offenders Act in NZ would potentially ‘create additional burdens and restrictions that would impede rather than support [his] reintegration’.[119] The Tribunal does not accept that proposition to be correct. The benefits of supervision and mandated requirements far outweigh the negatives of it. However, it must be said that, in that event, the Applicant would be potentially exposed to criminal sanction if he did not comply with any orders or directions made under that Act.[120] There are rights of review under that Act,[121] and any such orders are generally to be made by an NZ court, which the Tribunal respectfully considers to be an appropriate safeguard.
[119] ASFIC, [85].
[120] See e.g. Returning Offenders Act, ss 13, 31.
[121] See e, g. Returning Offenders Act, s 22.
The Tribunal considers that the Applicant will be personally and deeply affected by permanent removal to NZ. This potential emotional and psychological hardship can be withstood, but this potential removal and subsequent adjustment should not be easily dismissed.
The Tribunal finds that the Applicant could likely re-establish himself in NZ and maintain basic living standards. Nevertheless, removal is a potentially devastating consequence, including associated negative impacts on his immediate family (particularly his daughter and partner). This weighs in favour of revocation.
Impact on Australian business interests
The Applicant advanced a series of business interests in support of revocation. The first of which is his own business, Aboard Above Flooring. This business was cancelled between 30 June 2022 and 14 May 2024[122] and has not been registered for Goods & Services Tax purposes from 1 July 2022.[123] The Tribunal was told that the Applicant previously employed up to four persons in this business and that he otherwise subcontracted his labour with other businesses, such as Bullant Building and Rob Toby’s Flooring.[124]
[122] And between 10 September 2015 and 20 June 2018.
[123] See Exhibit 5.
[124] See ASFIC, [91]; Exhibit 1, pp 251-254.
There are several thousand registered builders, including carpenters, in most States/Territories.[125] Whilst the Tribunal accepts that there is a skills shortage in the construction industry in Australia,[126] the Tribunal does not accept that the prospect of Aboard Above Flooring being resurrected (or not) meaningfully weighs in favour of revocation. The Applicant’s skills and experience are not such that they are irreplaceable. His business was relatively modest in size and does not appear to have trading for very long period of time.
[125] See e.g.
[126] As to which see
The Applicant otherwise sought to press his offers of employment or support from both Bullant Building and Rob Tob’s Flooring. However, there was no evidence before the Tribunal of any meaningful impact on either of these businesses if they were not able to employ the Applicant.
Noting the guidance in cl 9.3(1) of the Direction, to the effect that the Tribunal should generally only give weight to an employment link where there is evidence that an adverse decision ‘significantly compromise the delivery of a major project, or the delivery of an important service in Australia’, the Tribunal gives the potential impact on an Australian business interest of its decision in this matter very limited weight in support of revocation. It is little more than a prospect and the presence of one carpenter is unlikely to make any meaningful difference.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.[127]
[127] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160, [8].
Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is ‘generally to be given greater weight than other primary considerations’, and that, otherwise, the relevant ‘primary considerations should generally be given greater weight than the [relevant] other considerations.’ This guidance is consistent with the principle articulated at cl 5.2(2), that ‘the safety of the Australian community is the highest priority of the Australian government’.
The Tribunal considers there to be good reason to depart from that policy in this case.[128] First, the Applicant poses an acceptable risk. Further, the above policy guidance does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[129]
[128] See Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276, [25]-[26].
[129] See Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545.
The Tribunal has found that the Applicant poses an acceptable risk of re-offending. His previous conduct was serious, but the risk of its repetition is low. The protection and expectations of the Australian community primary considerations weigh against revocation, and the Government’s concerns about conferring the privilege to remain here on the perpetrators of family violence are enlivened though they are proportionate to the seriousness of the conduct engaged in. These considerations collectively weigh moderately against revocation. Against this, it was clear that an adverse decision would detrimentally impact the Applicant’s daughter, partner and their extended family. There are also reasonably established ties in Australia. These two primary considerations, when taken together, point strongly in favour of revocation. The other relevant considerations weigh marginally in favour of revocation and add to that positive weight in favour of revocation. The Tribunal, after considering each of the relevant considerations identified within the Direction, is satisfied that there is ‘another reason’ to revoke that cancellation decision.
In summary, the Tribunal has considered the relevant considerations in this matter and determined that there is ‘another reason’ to revoke the cancellation. The correct decision is therefore to set aside the reviewable decision and substitute it with a decision to revoke the mandatory cancellation.
DECISION
The reviewable decision, dated 9 July 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of Migration Act 1958 (Cth), is set aside. In substitution for that reviewable decision, the Tribunal revokes the decision to cancel the special category visa.
I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia
...................[SGD].....................................................
Associate
Dated: 2 October 2025
Date of hearing: 24, 25 and 30 September 2025 Solicitors for the Applicant: Ms N Harendran (consultant) and Ms P Gurung, Sedaqa Lawyers Pty Ltd Solicitor for the Respondent: Ms Q Q Ren, HWL Ebsworth Lawyers Court Court Date Offence(s) Offence Date(s) Result Parole period expired 19 Jul 2025
Applicant detained under s 189(1) of the Migration Act on 19 Feb 2025
District Court of New South Wales at Sydney Downing Centre
(appeal against sentence)
16 Jan 2025 As below Severity appeal allowed
Aggregate sentence of 13 mths’ imprisonment from 20 Jun 2024
Indicative sentences:
Face blackened – 9 mths
Drive motor vehicle – 6 mths
Larceny – 6 mths
Goods in personal custody (Seq 9) – 2 mths
Goods in personal custody (Seq 1) – 1 week
Larceny (re-sentence) – 1 week
Possess prohibit drugs (x 3): conviction with no other penalty
MDL disqualification confirmed
Local Court of New South Wales at Sydney Downing Centre 20 Nov 2024 Possess prohibited drugs (x 3) (Seq 6-8)
Drive motor vehicle during disqualification (2nd + offence) (Seq 5)
Goods in personal custody suspected of being stolen (not motor vehicle) (x 2) (Seq 1 and 9)
Larceny (value ≥ $2,000 & ≤ $5,000) (Seq 10)
Face blackened/disguised with intent to commit an indictable offence (Seq 2)
20 Jun 2024
20 Jun 2024
20 Jun 2024
8 Jun 2024
8 Jun 2024
Aggregate sentence of 18 mths’ imprisonment, with NPP of 12 mths, from 20 Jun 2024
Previous Community Correction Order (CCO) imposed for offences (seq 1 and 2) revoked
MDL disqualified for 12 mths from 20 Nov 2024
Court Court Date Offence(s) Offence Date(s) Result Local Court of New South Wales at Sydney Downing Centre 3 Oct 2024 Drive vehicle, illicit drug present in blood – etc (2nd + offence)
Larceny (value ≤ $2,000)
Dishonestly obtain property by deception
28 Feb 2024
28 Nov 2023
$500 fine
MDL disqualified for 7 mths from 3 Oct 2024
CCO 12 mths, commencing 3 Oct 2024, with supervision and programme requirements (on each)
Applicant in NSW custody between 21 Jun 2024 to 19 Feb 2025 Local Court of New South Wales at Gosford 2 May 2024 Larceny
Shoplifting (value ≤ $2,000)
Drive licence suspended (2nd + offence)
Knowingly make false/misleading statement
Enter prescribed premises of any person without lawful excuse
Drive licence suspended (2nd + offence)
Call up breaches on:
Shoplifting
Larceny (value ≤ $2,000)
Enter building/land with intent to commit an indictable offence
Owner not disclose identity driver/passenger
Possess prohibited drug
Goods in personal custody suspected of being stolen (not motor vehicle)
18 Jul 2023
12 Ma 2024
8 Mar 2024
12 Mar 2024
12 Mar 2023
12 Mar 2023
28 Mar 2023
11 Aug 2022
23 Jul 2022
23 Jul 2022
28 Mar 2023
3 Jan 2023
Intensive Correction Order (aggregate), 15 mths, commencing 2 May 2024 with supervision and community service work requirements
Conviction with no further penalty
Conviction with no further penalty
Conviction with no further penalty
Conviction with no further penalty, save for MDL disqualified for 3 mths
Each part of the aggregate ICO
No action on breach (for each)
Court Court Date Offence(s) Offence Date(s) Result Applicant arrested on 6 Apr 2024
Released to bail by the Parramatta Local Court on 7 Apr 2024
Local Court of New South Wales at Mt Druitt 3 Apr 2024 Enter prescribed premises of any person without lawful excuse
Knowingly make false/misleading statement
Shoplifting (value ≤ $2,000)
Drive licence suspended (2nd + offence)
12 Mar 2024 Convicted in absence, warrant issued under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Local Court of New South Wales at Newcastle 28 Sep 2023 Goods in personal custody suspected of being stolen (not motor vehicle)
Owner not disclose identity driver/passenger
Enter building/land with intent to commit an indictable offence
Call up breach on:
Larceny
3 Jan 2023
23 Jul 2022
23 Jul 2022
29 Jul 2021
CCO 18 mths, commencing 28 Sep 2023, with supervision, programme and community service work requirements (on each) Local Court of New South Wales at Penrith 25 Jul 2023 Shoplifting
Possess prohibited drug
Possess/attempt to, prescribed restricted substance
28 Mar 2023 CCO 12 mths, commencing 25 Jul 2023, with supervision and programme requirements (on each of Seq 1 and 2)
$250 fine
Local Court of New South Wales at Newcastle 2 Mar 2023 Larceny (value ≤ $2,000)
Call up breach on:
Larceny
Larceny
11 Aug 2022
7 Feb 2020
1 Apr 2020
$750 fine & CCO, 12 mths, commencing 2 Mar 2023, with supervision requirements
No action on breach
Court Court Date Offence(s) Offence Date(s) Result Local Court of New South Wales at Wyong 15 Dec 2022 Drive licence suspended (1st offence) 31 Mar 2022 $300 fine
MDL disqualified 3 mths
Local Court of New South Wales at Wyong 8 Sep 2022 Possess prohibited drug
Drive vehicle, illicit drug present in blood etc (2nd + offence)
Enter prescribed premises of any person without lawful excuse
Larceny
Call up breach on:
Larceny
Larceny
Larceny
2 Mar 2022
10 Nov 2021
6 Jun 2021
6 Jun 2021
29 Jul 2021
7 Feb 2020
1 Apr 2020
$150 fine
$400 fine; MDL disqualified 12 mths
$250 fine
$400 fine
No action on breach
Local Court of New South Wales at Toronto 6 Jun 2022 Drive vehicle, illicit drug present in blood etc (2nd + offence)
12 Feb 2022 $1,000 fine; MDL disqualified 12 mths Local Court of New South Wales at Wyong 19 Jan 2022 Enter premises of any person without lawful excuse
3 Apr 2021 $400 fine Local Court of New South Wales at Wyong 23 Dec 2021 Enter premises of any person without lawful excuse
3 Apr 2021 Convicted in absence, warrant issued under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Court Court Date Offence(s) Offence Date(s) Result Local Court of New South Wales at Gosford 11 Nov 2021 Fail to appear in accordance with bail undertaking
Larceny
Enter premises of any person without lawful excuse
Call up breach on:
Drive vehicle, illicit drug present in blood etc (2nd + offence)
Larceny
Larceny
23 Sep 2021
29 Jul 2021
29 Jul 2021
27 Feb 2020
1 Apr 2020
7 Feb 2020
Conviction with no further penalty
$250 fine and CCO, 12 mths, commencing 11 Nov 2021
$350 fine
Conditional Release Order, without conviction, to continue
CCO, 12 mths, commencing 11 Nov 2021
CCO, 12 mths, commencing 11 Nov 2021
Local Court of New South Wales at Newcastle 23 Sep 2021 Larceny
Enter premises of any person without lawful excuse
29 Jul 2021
Convicted in absence, warrant issued under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Applicant arrested on 29 Jul 2021
Released to bail by the Newcastle Local Court on 30 Jul 2021
Local Court of New South Wales at Wyong 7 Oct 2020 Drive vehicle, illicit drug present in blood etc (2nd + offence)
Larceny
Larceny
27 Feb 2020
1 Apr 2020
7 Feb 2020
Conditional Release Order without conviction, 12 mths, with programme requirements
CCO, 12 mths, with programme requirements (on both seq)
Court Court Date Offence(s) Offence Date(s) Result Local Court of New South Wales at Wyong 24 Jun 2020 Resident 3 months not obtain NSW licence – prior offence
Enter premises of any person without lawful excuse
1 Apr 2020 Conviction with no further penalty
$250 fine
Local Court of New South Wales at Toronto 11 Dec 2018 Drive vehicle whilst disqualified 28 Oct 2018 $400 fine; MDL disqualified 6 mths Local Court of New South Wales at Gosford 14 Sep 2018 Drive vehicle, illicit drug present in blood etc (2nd + offence)
Call up breach on:
Destroy or damage property (value ≤ $2,000)
(DV)
6 May 2018
16 Dec 2017
$1,000 fine; MDL disqualified 12 mths
No action on breach
Local Court of New South Wales at Gosford 11 Apr 2018 Destroy or damage property (value ≤ $2,000)
(DV)
16 Dec 2017 Section 10, Good Behaviour Bond, 6 mths Local Court of New South Wales at Waverley 7 Jun 2017 Possess/attempt to, anabolic or androgenic steroidal agent 6 Aug 2016 $550 fine Local Court of New South Wales at Waverley 21 Sep 2016 Drive vehicle, illicit drug present in blood etc (1st offence) 29 Jul 2016 $800 fine; MDL disqualified 6 mths On 27 Sep 2015, Applicant travels to NSW from NZ (via Norfolk Island)
On 14 Sep 2015, Applicant travels to NZ from NSW
On 18 Feb 2014, Applicant travels to NSW from NZ
On 11 Feb 2014, Applicant travels to NZ from NSW
On 21 Jul 2013, Applicant travels to NSW from NZ
On 17 Jul 2013, Applicant travels to NZ from NSW
On 10 Aug 2012, Applicant travels to NSW from NZ District Court of New Zealand at Hamilton 25 Jul 2012 Obscenely exposes person in public 18 Jul 2012 $600 fine On 3 May 2012, Applicant travels to NZ from NSW Court Court Date Offence(s) Offence Date(s) Result Magistrates Court of Queensland at Southport 25 Feb 2011 Possess dangerous drugs
Possess utensils or pipes etc for use
Possess property suspect of having been acquired for the purpose of committing a drug offence
11 Feb 2011 Without conviction; Good Behaviour Bond, 4 mths, with recognizance $450; drug diversion (on counts 1 and 2)
Without conviction, no further punishment
On 30 Nov 2009, Applicant moves to Queensland from NZ District Court of New Zealand at Hamilton 31 Oct 2008 Operated a vehicle carelessly 11 Jul 2008 $300 fine District Court of New Zealand at Hamilton 4 Mar 2005 Obtain by deception (≥$1,000) 21 Apr 2004 70 hrs’ Community Work;
Reparation $1,445.25
District Court of New Zealand at Hamilton 24 Sep 2004 Obtains by deception
Obtains by deception
Unlawfully in enclosed yard or area
Obstruct/pervert/defeat course of justice
24 May 2004
23 May 2004
2 May 2004
28 Apr 2004
110 hrs’ Community Work; Reparation $66.15/ Final warning
110 hrs’ Community Work; Reparation $172.97/ Final warning
110 hrs’ Community Work; Final warning
180 hrs’ Community Work; Final warning
District Court of New Zealand at Hamilton 9 Jun 2004 Shoplifts (≤ $500) 4 Jun 2004 To come up for sentence if called upon, 6 mths District Court of New Zealand at Kaikohe 28 Apr 2004 Possess pipe or utensil for cannabis
Possess cannabis
16 Apr 2004 $150 fine
$100 fine
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