Lim and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 170

Lim and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 170 (3 March 2025)
Applicant/s:  Benjamin Lim
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/10231

Tribunal:General Member S Evans
Place:Sydney
Date:3 March 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides the decision not to revoke the mandatory cancellation of the Applicant’s visa is set aside and the decision of 23 June 2020 to cancel the Applicant’s visa is revoked.

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...............................[SGD].....................................
General Member S Evans
Catchwords
Migration – visa cancellation – mandatory cancellation under s 501(3A) – applicant does not pass the character test – drug offences – whether there is another reason to revoke cancellation – Direction 110 considered – protection of the Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – English speaker – citizen of Malaysia – institutionalised – residential rehabilitation – reviewable decision set aside
Legislation
Migration Act 1958 (Cth)
Dangerous Drugs Act 1952 (Malaysia)
Cases
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
Secondary Materials
Migration Regulations 1994
Statement of Reasons

Benjamin Beng Jin Lim (Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (Respondent) not to exercise the discretion to revoke the mandatory cancellation of his Five Year Resident Return (Class BB)(subclass 155) visa (visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).
INTRODUCTION
The Applicant is a citizen of Malaysia who was born in September 1985. According to the Applicant’s movement history he first arrived in Australia on 28 May 1988 when he was three years old. He appears to have resided permanently in Australia since January 1989.[1]
[1] G18/175
On 23 June 2020 the Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he had a substantial criminal record, having been convicted of Possess unauthorised pistol-T2, Possess or use a prohibited weapon without permit-T2, Deal with property proceeds of crime <$100000-T2; and Supply prohibited drug >indictable & <commercial quantity-T1 (four counts) and was sentenced to an aggregate term of seven years and six months imprisonment (cancellation decision).[2]
[2] G20/184–188
On 6 July 2020 the Applicant wrote to the Respondent notifying his intention to appeal the cancellation decision.[3] On 1 February 2022 the Applicant was re-notified of the cancellation of his visa as it did not comply with the requirements of the Act.[4]
[3] G11/108
[4] G19/177-182
On 1 May 2024 the Applicant advised the Respondent that he had been released from prison and requested that the decision to cancel his visa be reconsidered.[5] On 18 August 2024 the Applicant made representations to have the cancellation decision revoked under s 501CA of the Act.[6]
[5] G11/109
[6] G12/110-133
On 3 December 2024 a delegate of the Respondent found the power under s 501CA(4) to revoke the cancellation under s 501(3A) was not enlivened (reviewable decision). On 7 December 2024 the Applicant sought review of the reviewable decision at the Tribunal.
For the reasons that follow, the reviewable decision will be set aside.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may revoke the original cancellation decision pursuant to paragraph 501CA(4) of the Act. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens 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 measurable 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.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the 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. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction 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; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
It is not controversial that the Applicant does not pass the character test by operation of s 501(6)(a) of the Act because he has a ‘substantial criminal record’ as defined in subsection 501(7) of the Act. As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
BACKGROUND AND EVIDENCE
The Applicant’s background is set out in a psychological assessment provided by forensic psychologist Bradley Jones in September 2015 when the Applicant was 29 years old.[7] As an adolescent the Applicant embarked on the use of illicit substances and by mid to late adolescence he was engaged in the abuse of illicit drugs including methamphetamine (ice). Early involvement with the judicial system did not deter his antisocial and delinquent behaviours and with continuing involvement with antisocial peers he was later incarcerated.
[7] S66/294-312
Incarceration provided stability and structure, but his return to society and association with past social groups resulted in a lapse into drug use. Continuing drug use behaviours resulted in further involvement with police and the judiciary. The Applicant’s drug abuse behaviours were reported as severe, and he was formally diagnosed with an adjustment disorder with mixed anxiety and depressed mood, and amphetamine-type substance use disorder, severe severity, in early remission in a controlled environment.
The Applicant and his mother maintained a close relationship and she remains supportive of him despite his drug use. The Applicant reported having a limited association with his father following his parent’s acrimonious separation when he was aged 11. He reported moving between living with his mother and then his father with limited adult supervision or discipline during his adolescence.
At age 14 he began smoking cannabis with friends and older peers. At age 15 he began smoking methamphetamine and his use progressively increased to daily abuse. He believes he became dependent on the drug at age 18. After he was incarcerated, he stopped using ice but upon his release he associated with his peers and relapsed.
The Applicant gave evidence that he was sexually assaulted while in juvenile detention. A psychological assessment and report provided in February 2007 by clinical psychologist Sam Borenstein makes no reference to the Applicant having been sexually assaulted.[8] A psychological report prepared by registered psychologist Hasan Cinar in August 2019 states the Applicant reported self-medicating for ADHD.[9] Mr Cinar considers the Applicant showed some risk of ADHD, but did not provide a diagnosis.
CONSIDERATIONS AND REASONING
[8] S56/244-252
[9] G14/137-153
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should 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.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the conduct to date
Paragraph 8.1.1 of Direction 110 provides that ‘in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following’:
a)     without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)     without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)   with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
The Applicant’s offending history is set out in a National Criminal History Check run on 4 September 2024.[10]
[10] G6/38-48
On 1 September 2006 the Applicant was convicted of Aggravated robbery in the Sydney District Court and sentenced to a term of six months imprisonment. The New South Wales Police fact sheet records that the Applicant was one of three offenders. In December 2003 the victim of the attack was struck in the face, resulting him to fall to the ground where he was kicked in the area of the head. One of the accused told the victim to give him his wallet. The victim’s bag which included a phone and digital camera were taken from him. The victim of the attack was diagnosed with a blowout fracture of the left eye socket extending to the bridge of his nose. The Applicant was 18 years-old at the time of the offending.
On 29 March 2007 the Applicant was convicted of Supply a prohibited drug being more than the commercial quantity and sentenced to a term of nine years and 10 months following a successful Crown appeal to the New South Wales Court of Criminal Appeal. The sentencing judge in the Sydney District Court sentenced the Applicant on the basis that he had entered into an agreement to supply 5000 tablets of ecstasy weighing between one and 2.5 kg with a purchase price of $70,000.[11]
[11] S59/280
On 4 September 2015 the Applicant was convicted of Supply a prohibited drug being more than the indictable quantity and sentenced to a term of three years and nine months imprisonment with a non-parole period of two years. At sentencing Judge Maiden considered the objective seriousness of the Applicant’s offending as being towards the bottom end of the scale. The Applicant was on parole at the time of the offending.[12]
[12] G8/94-99
On 13 December 2019 the Applicant was convicted of supply a prohibited drug being more than the indictable quantity but less than the commercial quantity, possessing an unauthorised pistol, possessing a prohibited weapon without a permit and dealing with proceeds of crime. In sentencing, Judge Traill said the Applicant was heavily involved in the drug supply network. In terms of the objective seriousness of the offending, Her Honour found that the Applicant’s possession of a Taser was towards the lower end, the Applicant’s possession of an unauthorised replica pistol was in the mid-range, as were the Applicant’s supply prohibited drug offences. The Applicant was on parole at the time of the offending.[13] Her Honour found the Applicant’s ‘lengthy criminal record’ was an aggravating factor, and in sentencing the Applicant observed:
In respect of the role of [Mr Lim], I find that he was a principal in the drug supply network, as he had access to and possession of drugs, cash and weapons in his home. He was intractably involved in the supply of drugs. He was an upline contact for [co-offender]. He intervened in supplies where there was an issue on 12 and 26 July. He took steps to conceal his identity, and never arranged the supply of drugs or communicated with customers. This indicates he was higher up in the notional hierarchy than others.[14]
[13] G7/49-93
[14] G7/72-73
The Applicant has previously been warned that his criminal offending may lead to his visa being cancelled. On 22 July 2011 the Applicant was notified that the visa may be liable for cancellation under section 501 of the Act on character grounds. A delegate of the Respondent decided not to cancel the Applicant’s visa and on 21 October 2011 the Applicant acknowledged that he could again be considered for cancellation of his visa should he commit further criminal offending.[15] The Applicant’s visa was again cancelled on 25 January 2017 and the cancellation was later revoked on 13 March 2018.[16] The Applicant was being detained on Christmas Island when he was notified of the revocation of that cancellation decision in March 2018. The 13 December 2019 convictions relate to offending which occurred in July 2018, shortly after being released from immigration detention.[17]
[15] G17/161
[16] G17/162-169
[17] G7/72
In summary, the nature of the Applicant’s offending to date is very serious and resulted in several significant terms of imprisonment. The Applicant’s offending has been frequent and includes a crime of violence. He has a history of offending whilst on bail. The Direction specifically states that reoffending since being formally warned about visa cancellation is considered serious, and his visa was cancelled on two previous occasions. The Applicant does not appear to have been deterred from continued offending by significant terms of imprisonment or the warnings issued by the Department. I consider the Applicant’s overall conduct very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Paragraph 8.1.2 of the Direction provides in part:
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.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
I accept the Respondent’s contention that any reoffending of a similar nature by the Applicant would have the potential to cause significant physical, financial and psychological harm to members of the Australian community.
Turning to the risk that Applicant may reoffend, the Applicant has identified his addiction drugs, and in particular methylamphetamine, as the key driver of his offending. He gave evidence that he started using ice as a 16-year-old. Although he was able to stop using ice when he was incarcerated, he has not been provided an opportunity to attend rehabilitation.
In the August 2019 report prepared by psychologist Hasan Cinar, he writes that the Applicant identified peer pressure as the catalyst for his substance use.[18] Mr Cinar also reports the Applicant had a gambling problem with negative consequences and possible loss of control. He opines that maintaining his sobriety will be central to his rehabilitation and the risk of reoffending.
[18] G14/137-153
A pre-release report prepared by Community Corrections on 5 January 2024 states that the Applicant ‘acknowledges the link between his substance use, social influences and finances and his motivation to commit crime’. [19]
[19] S4/56-64
The Applicant is confident he will not return to using drugs should he be released into the community. He identifies his advancing age, the overall state of his life, time spent in jail, obligations towards his mother, support from his family and partner and Opioid Substitution Treatment (OST) as significant protective factors. He has also secured a placement in the Restoration Centre’s 12-month residential rehabilitation program.
Then Applicant’s partner Mrs N said that she had experience dealing with substance abuse in her family and identified a need for the Applicant to identify ‘triggers’ for his drug use and process ‘trauma’.
Regarding the Applicant’s conduct whilst in prison, NSW Corrective Services records indicate that he failed a drug test in 2023. He told me that he did not fail the test, but he could not do the test was recorded as a fail, which appears consistent with Corrective Services records.[20] The Applicant is currently receiving monthly injections of Buprenorphine through the OST. He said the injections help him manage his addictions. He gave evidence he has not used illicit drugs since June 2022, but later told me he had not used drugs since 2019.
[20] S3/51
The pre-release report records that the Applicant had previously participated in the OST between August 2021 and June 2022. He disengaged from the program because he believed it would increase his opportunities for external employment. Despite the inconsistencies in the Applicant’s account, based on the pre-release report, I am satisfied the Applicant has not used illicit substances for two or more years.
Andrew Byrne and the Applicant met while they were inmates at the same correctional facility and remain close friends. Mr Byrne has maintained regular contact with the Applicant throughout his incarceration. Mr Byrne has been in full-time residential rehabilitation at the Restoration Centre and the Applicant has spoken to him extensively about his interest in joining the program. The Applicant gave evidence he had observed significant change in Mr Byrne since his participation in residential rehabilitation.
Mr Byrne gave evidence at the hearing. He is currently 11 months into residential rehabilitation at The Restoration Centre. He says his experience of drug abuse, depression, anxiety and criminal offending is similar to the Applicant’s. Mr Byrne is confident residential rehabilitation has enabled him to turn his life around and will help ensure he maintains his sobriety. In his opinion, the Applicant has reached a turning point in his life and would similarly benefit from residential rehabilitation.
Mr Byrne provided a frank account of the challenges he has faced in sobriety. The Recovery Centre provides a full-time residential rehabilitation program specifically targeting drug users who have been incarcerated and have a desire to change sufficient to make a 12-month commitment to do so. The program is run by qualified counsellors. He said rehabilitation and sustained sobriety is a slow, difficult, and challenging process. He said social security benefits were sufficient to meet the ongoing cost of participating in the program.
Forensic psychologist Bradley Jones prepared a report on the Applicant dated 2 September 2015 when the Applicant was 30 years old. He wrote in part:
Whilst it is generally acknowledged that adolescents are unable to consider long term consequences of their actions, and display deficits in their impulse control, risk factors surrounding a propensity to offend have been found to include inconsistent parenting, alcohol and substance abuse and involvement with delinquent peers. To function prosocially [sic] at an adult level, young adults must gain the ability to accurately attain impulse control and understand the ramifications of their behaviour. The difficulty, however, is psychosocial maturity, is variable depending on a range of psychological and social factors, and can occur between the ages of sixteen (16) and nineteen (19) years. This is consistent with Mr. Lim's offending history and engagement in substance abuse behaviours during his adolescence and early adulthood. This period of adolescence and associated offending behaviour became an influential factor as he entered adulthood.
Mr. Lim turns thirty (30) years on … September, 2015, and since the age of twenty (20) years he has been incarcerated in Corrective Services institutions for approximately eight (8) years. This period of incarceration has prevented Mr. Lim from engaging in conventional roles or activities that a transition from adolescence to adulthood involves, specifically the establishment of self-sufficiency, pro-social interpersonal relationships, self-definition and self governance. Moreso it is possible Mr. Lim is becoming 'institutionalised'. The effects of prisonisation carry a significant psychological cost, and are often not easily relinquished when prisoners are released. When Mr. Lim has left an institutionalised environment, that was confined, slow paced, and regimented, he walks out into· the world at the same emotionally developed stage he was when he entered. When Mr Lim entered incarceration his emotional growth stopped as prisoners experience a 'behavioural deep freeze' that store outside behaviours until release. It comes as little surprise that he subsequently returns to his previous drug abuse and poorly controlled behaviours.
Given the relatively significant proportion of his early adulthood years Mr. Lim has lived in custody, his inevitable further period of incarceration may continue to impede his ability to resume his pro-social roles within society and family, and further impact the subtle effects of institutionalisation/prisonisation. Regrettably, further incarceration of Mr. Lim is likely to solidifying a personal identity that runs counter to the prosocial identity he will need to successfully navigate his re-entry into society.
[Emphasis added and footnotes omitted]
Following this report, the Applicant has spent approximately one year in the community.
The Applicant intends to continue with OST if he is allowed to return to the community. He intends to enter residential rehabilitation. Before the Tribunal is a letter from the Restoration Centre General Manager Mitch Sanderson confirming the Applicant has been accepted into the Centre’s 12-month residential rehabilitation program.
In evidence is a statement from Alicia Stater who resides in the United States and is the secretary of Narcotics Anonymous (NA). She says that the Applicant has been participating in district 30 NA meetings since June 2004 via video conferencing. She writes that his participation has been exemplary and his dedication to separating willingness to share his experience and insights with fellow members have made a significant and positive impact on their community group. She says that his presence has been uplifting and motivational, creating an atmosphere of hope and progress for all members.
The Applicant said that his participation in NA meetings had taught him that his use of drugs caused the loss of friendships and that he had people. Asked how it would prevent him relapsing he said that he now understands both the broader implications of his drug use and the reason he uses drugs. He said having group support has been helpful.
When asked about his participation in NA, the Applicant said he and another detainee participated in online meetings and spoke about their problems and issues together. The meetings were held about once a week at no set time, and he, Ms Slater and the other detainee were the sole participants. The Applicant’s account of his participation in NA meetings with two other participants was vague. It is also inconsistent with Ms Slater’s account, which implies the meetings are larger than the Applicant stated. I place limited weight on the Applicant’s participation in NA or Ms Slater’s statement.
Should he be released into the community, the Applicant claims to have friends who can provide him with a job, but conceded it has been many years since he held paid employment. The Applicant completed short courses in custody including forklift training and clothing production, and a Certificate III in Fitness.
The Applicant has also undertaken courses addressing drug and alcohol abuse, and anger management.[21] He has provided evidence of having attended these courses which he said were completed online. In 2020 he completed the EQUIPS program. The Applicant explained, and I accept, that he had limited opportunity to attend or undertake rehabilitation while in prison owing to his immigration status.
[21] G15/154-155
The Applicant has expressed remorse for his offending and pled guilty at the first available opportunity in relation to the 4 September 2015 on 13 December 2019 convictions.[22] However the sentencing judge for the 2019 conviction found the Applicant had demonstrated little contrition or remorse.[23]
[22] S4/65
[23] G7/78
The Community Corrections pre-release report of 5 January 2024 did not recommend parole, with the officer noting the Applicant had demonstrated little insight into his offending and was unwilling to engage in programs. The Applicant claimed not to have seen the report until he was taken to it during the hearing. He recalled speaking to the officer who completed the report while incarcerated. He took issue with some aspects of the report, including that he was refused participate in employment in custody and denied not taking full responsibility for his actions. He said he spoke to the correctional services officer ‘as a friend’ and was unaware she was preparing a report. He recalled she asked questions that seemed innocuous and indicated they had an informal rapport.
In summary, the Applicant has a long offending history spanning his entire adult life. His offending is serious, and includes aggravating elements such as possession of a weapon and offending on parole. He has not been deterred from offending by the punishments imposed upon him or having had his visa cancelled.
His offending is almost entirely related to his drug use. The Applicant is focused on breaking his addiction to drugs. He recognises the power his addiction the destructive effect on his life. He accepts that without overcoming his addiction he will continue in the cycle of offending and imprisonment. The 2015 report prepared by a forensic psychologist stated the Applicant had been institutionalised for most of his adult life and has proven incapable of successfully finding his way in society when he has been released from prison. This pattern was duly repeated following his release from prison in 2018. Having regard to this observation, I consider the 12-month placement the Applicant has secured at the Restoration Centre central to his prospects of rehabilitation and reducing the risk he may reoffend.
Absent a structured return to the community, I would anticipate the Applicant was at high risk of reoffending. The Applicant has identified additional protective factors– notably the OST and his partner. These are new supports which were not available to him when he was last released from prison. In the circumstances I am satisfied that risk is significantly reduced, such that there is a medium chance he will reoffend.
Conclusion as to the protection of the Australian community
The Applicant’s offending is very serious and the harm that may be caused by further offending of a similar nature is significant. The Applicant has not been deterred by the punishments imposed upon him to date. He has spent most of his adult life in custody, and his conduct is consistent with someone who is ill equipped to function lawfully in the community. I accept he is genuine in wishing to change the direction of his life. He has a credible plan to address his addiction which is the primary cause of his offending. He will leave detention with a considerable period of sobriety. Although his resolve is untested, he will re-enter the community with support he has not previously had access to. His risk of reoffending is substantially lowered as a result. While this primary consideration weighs against revocation of the cancellation decision, it is afforded less weight for the reasons I have outlined.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The Applicant has not committed family violence, and this consideration weighs neutrally.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having 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.
The Applicant has resided in Australia from age three and has spent almost his entire life in this country. He maintains Australia is the only place is ever called home, has deep and meaningful relationships in Australia and he claims to have contributed to the community.
The Applicant’s immediate family in Australia include his mother Mrs C and his partner Mrs N. The Applicant gave evidence they are his primary support; they have been instrumental in his rehabilitation and removing him from Australia would affect them profoundly. The Applicant claims that his mother is deeply reliant on his presence and the thought of his being removed would cause her to immeasurable distress.
The Applicant’s mother provided a statement and gave evidence at the hearing. In the statement she writes she has an unspecified chronic illness that makes her dependent on the Applicant for emotional and practical support. As she ages, her health is deteriorating, and she fears she will struggle to manage her health conditions without her son. She writes that removal of the Applicant would cause severe hardship for both her and her family.
The Applicant is in a committed long-term relationship with Mrs N. The Applicant claims Mrs N is deeply involved in his rehabilitation and central to his well-being, and his removal would be emotionally detrimental and impact her mental health. Mrs N gave evidence that she had known the Applicant for 10 years, and they began their relationship about a year ago. They speak on the phone every day, and she visits the Applicant regularly in detention.
Ms N has a chronic illness and is receiving regular treatment for another health condition. The Applicant’s removal from Australia would have practical consequences for her as she is required to arrange assistance when she receives treatment for both conditions - which is often. Her medical conditions also make her tired, and she will benefit from the support the Applicant could provide should he return to the community. The Applicant’s presence and capacity to provide assistance would also improve her mental health. Mrs N told me the Applicant is well regarded by her circle of friends, but conceded he had very limited exposure to them.
As well as his relationship with Mrs N, the Applicant remains married to Mrs L. In the personal circumstances form dated 18 August 2024, the Applicant identified Mrs L as his partner. He wrote he and Mrs L had known each other for 10 years, were happily married, and looking forward to their future together and having children. According to the Applicant, his removal would have a serious effect on Mrs L.
When questioned about the inconsistency between his relationship with his partner and the information provided about his wife, the Applicant explained that he and Mrs L separated in 2019 but remain married as he lacked the financial means and opportunity to finalise their separation. He said he and Mrs L maintain an amicable relationship and hold a joint bank account. He expressed concern that divorcing Mrs L would have negative consequences that he was reluctant to set in train. The Applicant’s evidence was equivocal, but the unspecified consequences he referred to appear to relate to Mrs L’s visa status.
The Applicant’s explanation as to why he remained married to Mrs L was not convincing, and I do not accept the nature of his relationship with her was as he claimed in the personal circumstances form. While Mrs N’s interests would be affected by his removal, I take into consideration that they have been in a relationship for a relatively brief period, during which the Applicant has been in prison or detention.
The Applicant’s father resides in Sydney. They last met in person prior to the Applicant’s arrest in 2019 and their most recent contact was at his grandmother’s funeral two years ago. Although they do not speak, the Applicant said they communicate though his sister. In any event, the Applicant maintains his father is ‘there for him’ because he is his father’s only son.

The Applicant’s sister is a permanent resident. In his written statement the Applicant claims she has been an important support for him and his removal from Australia would cause ‘unnecessary hardship’ for her. At the hearing he confirmed that his sister in fact resides in Malaysia. He explained that his sister returned to Malaysia and lived with their grandparents because she had experienced the first signs of drug abuse when she was young. As she resides in Malaysia, the Applicant’s sister’s interests are not relevant to this primary consideration.
The Applicant has identified other relatives in Australia including an aunt he had once lived with and an uncle.[24] He has two adult cousins he spent time with when he was young. The Applicant claims to have been influential in his cousin’s lives when they were younger but confirmed having had limited contact with extended family even before serving his most recent term of imprisonment.
[24] G12/128
I accept the Applicant’s lack of contact with his father aunt, uncle and cousins is partly because he has been in prison and is reluctant to engage with his family owing to his circumstances and feelings of shame. In summary, the Applicant has a limited interaction with his extended family in Australia, but I acknowledge they may be affected by his removal.
Outside his family, the Applicant claims to have built strong friendships and social ties with people who have supported him in his rehabilitation. He claims to have contributed to the Australian community through his participation in Narcotics Anonymous meetings. He also participated ‘a few times’ at Malaysian and Australian community and family events and volunteered at the Cancer Council.[25]
[25] G12/131
There is limited evidence to support the Applicant having more broadly contributed to the Australian community. The Narcotics Anonymous meetings the Applicant claims to have attended were run out of California and included just one other participant in Australia. However, I acknowledge and give some weight to Mr Byrne’s evidence that the Applicant supported him while they were in prison together. The Applicant does not appear to have held paid employment for most of his adult life.
I accept the evidence of the Applicant’s mother and partner that his removal would be detrimental to them. Overall, having particular regard to the interests of the Applicant’s mother and partner, and his having arrived in Australia as a child, I afford this consideration very significant weight in favour of revocation.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision.
As the Applicant has not identified any minor children who would be affected by this decision, this consideration weighs neutrally.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Through his repeated offending, the Applicant has placed members of the Australian community at risk, and his interactions with the criminal justice system have been at the expense of the Australian community. I accept the Respondent’s contention that the Australian community would expect that a person with his criminal history presents serious character concerns and should not continue to hold a visa.
Having regard to the Direction and the Applicant’s offending, this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1(2) of the Direction defines a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 9.1.2(2) of the Direction provides that where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement obligations to the same level of detail as those type of issues are considered in a protection visa application. However, I am required to ‘read, identify, understand and evaluate’ the representations.[26]
[26] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]-[25].
The Applicant submits that Malaysia has strict laws regarding drugs and as he has been convicted of drug related offences, he contends that returning to Malaysia poses significant risk to his safety and well-being. He directs the Tribunal to Malaysia’s Dangerous Drugs Act 1952, where section 15 sets out penalties for the self-administration of dangerous drugs and the possession of utensils for use in connection with the smoking of opium.
Section 15 of the Dangerous Drugs Act provides that people who are guilty offences are liable on conviction to a fine not exceeding 5000 ringgit or a term of up to two-years imprisonment. Despite being drug-free for over two years, the Applicant contends that his past addiction or consumption could expose him to further punishment under these laws. He also fears that absent his support network and the general circumstances he can expect to encounter in Malaysia, he may be subject to exploitation or return to using drugs. The Applicant has not provided any information to substantiate these claims.
It is open for the Applicant to make a protection visa application where any non-refoulement claims can be fully considered and assessed and it can be determined if a protection finding ought to be made.
Because the Applicant has not yet applied for a protection visa, section 197C(3) of the Act is not presently engaged, and consequently the immediate legal effect of the Tribunal’s decision to affirm the cancellation of the Applicant’s visa would be that he is liable for removal to Malaysia pursuant to section 198 of the Act. I take into consideration that if the cancellation is not revoked, the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 of the Migration Regulations 1994.
Having regard to the legal consequences set out above, I afford this consideration very limited weigh in favour of revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1)   Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)   the non-citizen's age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
At 39 the Applicant is relatively young and in good physical health, but will require assistance to maintain his sobriety. In Australia the Applicant has a credible plan to continue his rehabilitation, central to which is the support of his mother and partner, both of whom gave evidence they will remain in Australia should he return to Malaysia.
Although the Applicant would have access to the same level of medical care as what is generally available to other citizens in Malaysia, he is currently receiving OST, requiring medication that is not available in Malaysia.
Should he return to Malaysia, the Applicant fears he will not have a support network or any meaningful ties in that country. Although his sister lives in Malaysia, she recently started a family and has problems of her own. The Applicant does not expect she would be able to provide him with either practical or financial support.
The Applicant speaks English, and has a limited understanding of Malaysian culture. The emotional impact of his removal to a foreign environment where he does not speak the official language, is unsupported and socially isolated would be profound. The circumstances support the Applicant’s contention removal to Malaysia would be detrimental to his mental health.
The Applicant contends that Malaysia’s mental health care system is underdeveloped and there is widespread stigma surrounding mental health conditions. In his written statement he submits that access to mental health services in Malaysia is limited. Where mental health treatment is available, services are often underfunded and there is a lack of specialised care. Having endured significant trauma, anxiety, and depression, the Applicant contends being unable to access adequate treatment or support would put his mental health and rehabilitation at serious risk.
The Applicant says he has no meaningful connection to Malaysia and the challenges he would face should he be removed to Malaysia would be profound and multifaceted. I accept it would be extremely difficult for him to establish or maintain basic living standards.
The Applicant has resided in Australia since he was three years old. He would be expected to face a challenging period of readjustment should he be removed to Malaysia. I accept he would face substantial barriers securing employment and accommodation in an unfamiliar environment, where he does not speak the official language and is unfamiliar with the local culture. These challenges will need to be managed in the context of the Applicant requiring continued treatment for his drug addiction, financial constraints and profound social isolation.
Having particular regard to the substantial language and cultural barriers the Applicant would be expected to face in Malaysia, I find this consideration weighs very heavily in favour of revoking the cancellation of the Applicant’s visa.
CONCLUSION
This is a finely balanced decision. The Applicant’s offending is sufficiently serious and regular for him to have spent most of his adult life in prison. Through his conduct he has demonstrated a disregard for the law or the prospect of having his visa cancelled. The primary consideration of the protection of the Australian community weighs heavily in favour of not revoking the cancellation decision. If not for the Applicant having established a credible plan to re-integrate into the community without relapse and reoffending, this consideration would be assigned considerably more weight against revoking the visa cancellation. The primary consideration of the expectations of the Australian community also weigh heavily against revoking the cancellation of the Applicant’s visa.
The Applicant has resided in Australia since he was three years old. His removal would have a substantial impact on his mother and partner, who are both emotionally dependent on him and anticipate requiring his assistance to help manage their medical conditions. The strength, nature and duration of his ties to Australia are afforded significant weight in favour of revocation.
The Applicant does not speak Malay. He has a limited work history and obtaining employment in Malaysia would be difficult. He would also be socially isolated. He will find establishing himself particularly difficult in these circumstances and not speaking the local language. The impediments he would be expected to face are afforded significant weight in favour of revocation. The legal consequences of the decision are afforded nominal weight in favour of revocation.
On balance, I find there is another reason to revoke the cancellation of the Applicants visa, and the reviewable decision will be set aside.
DECISION
For the reasons outlined above, the decision not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution, the decision of 23 June 2020 to cancel the Applicant’s visa is revoked.

Date(s) of hearing: 17, 20 and 25 February 2025

Applicant: In person

Solicitors for the Respondent: J. Djasmeini, Minter Ellison

Date(s) of hearing:	17, 20 and 25 February 2025
Applicant:	In person
Solicitors for the Respondent:	J. Djasmeini, Minter Ellison