Livingstone and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 1213

Livingstone and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1213 (4 August 2025)
Applicant/s:  Benjamin Livingstone
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/3662

Tribunal:Senior Member D Thomae
Place:Brisbane
Date:4 August 2025

Decision:Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review made by the delegate of the Respondent dated 30 April 2025 to cancel the Applicant’s visa and substitutes that decision with a decision that the Tribunal does not exercise the discretion to cancel the Applicant’s visa conferred by s 501 of the Migration Act 1958 (Cth).
................[Sgnd]............................................

Statement made on 04 August 2025 at 12:35pm
Catchwords
MIGRATION – Discretionary cancellation of a Class TY subclass 444 Special Category (Temporary) Visa – where Applicant does not pass the character test – whether there is another reason to set aside the decision to cancel the visa – consideration of Ministerial Direction No. 110 – where applicant arrived as child – decision under review set aside and substituted decision made not to cancel visa
Legislation
Migration Act 1958 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Cases
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2019] 272 FCR 454

GKYW v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1543
Heathcote and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 131
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR
Minister for Immigration, Citizenship, Migrant Services v Thornton (2023) 276 CLR 136
Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

The Applicant is a 35-year-old citizen of New Zealand who came to Australia on a Subclass 444 Special Category (Class TY) visa in April 1999 when he was eight years old (the visa). His visa was cancelled on 30 April 2025 due to his criminal offending in 2012. There was no contest between the parties that the Applicant has resided in Australia on a permanent basis since 27 April 1999. The Applicant confirmed as much in his evidence and in cross-examination.
On 14 November 2024, a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent or the Minister) sent the Applicant a Notice of Intention to Cancel the visa pursuant to section 501(2) of the Migration Act 1958 (the Act). On 14 December 2024 the Applicant made written representations to the Respondent going to the issue of why the visa should not be cancelled.
The cancellation of the visa on 30 April 2025 was the exercise of a discretionary power by the Minister (the Reviewable Decision).
Section 501(2) of the Migration Act 1958 (Cth) (the Act) relevantly provides that the Minister may cancel a visa that has been granted to a person if:
· the Minister reasonably suspects that the person does not pass the character test; and
· the person does not satisfy the Minister that person passes the character test.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’[1].
[1] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
On 30 October 2012 the Applicant was convicted in the Magistrates Court of Queensland at Brisbane of ‘Enter premises and commit indictable offence’ and ‘Stealing’ for which he was sentenced to 12 months imprisonment (suspended).
Based upon his criminal convictions and sentences, the delegate found that the Applicant failed the character test pursuant to s 501(6)(a) of the Act. The Delegate then determined to cancel the Applicant’s visa via an application of Ministerial Direction 110 (the Direction)[2].
[2] Direction No. 110 – Migration Act 1958 – direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
On 21 May 2025 the Applicant lodged an application in the Administrative Review Tribunal (the Tribunal) seeking review of the Reviewable Decision pursuant to s 500(1)(b) of the Act.
The hearing of this application took place on 24 and 25 July 2025. The Applicant gave evidence in person. The Respondent required the following witnesses to be called for cross-examination:
(a)Mr John Hepi Te Hiua, father of the Applicant;
(b)Mrs Kelly Potter, mother of the Applicant;
(c)Mr Te Akato Potter, brother of the Applicant;
(d)Mr Ayden Kello, friend of the Applicant; and
(e)Mr Tristan Williams, direct work supervisor of the Applicant.
The Applicant was self-represented. The Minister was represented by Mr Nam, solicitor, Clayton Utz.
The Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, numbered G1 to G5 and paginated from pages 1 to 198 (Exhibit R1);
(b)a bundle of documents produced under summons, witness statements tendered by the Applicant, the Respondent’s Statement of Facts, Issues and Contention and Reply, described as the ‘Hearing Book’ and paginated from pages 1 to 103 (Exhibit R2);
(c)the oral evidence of the Applicant; and
(d)the oral evidence of the witnesses in paragraph 8 above.
HAS THE APPLICANT PASSED THE CHARACTER TEST?
I am satisfied that the Applicant has a ‘substantial criminal record’ as defined by s 501(7)(c) of the Act, as he was sentenced to a term of imprisonment of 12 months on 30 October 2012. He therefore does not pass the character test in s 501(6)(a) of the Act. The Applicant accepts that he does not pass the ‘character test’.
IS THE TRIBUNAL’S DISCRETION PURSUANT TO s501(2) ENGAGED
Section 499(2A) of the Act provides that in determining an application seeking to set aside the cancellation of a visa pursuant to s501(2) of the Act, the Tribunal must have regard to the Direction. For present purposes, the Direction, at:
·Part 1, contains certain Principles that must be considered by a decision maker in approaching the task of making a decision under s 501;
·Part 2 ‘Exercising the discretion’, contains guidance for decision-makers; and
·‘ANNEX A – Application of the character test’, makes plain that if a non- citizen does not pass the character test, s 501(2) of the Act is enlivened such that the non-citizen’s visa can be cancelled.
Part 1 of the Direction, specifically at paragraph 5.2 contains eight principles (Principles), which provide the framework within which decision-makers are required to approach the task of whether or not to exercise the discretionary power conferred by s 501(2) to cancel a visa that has been previously granted to a non-citizen. The Principles are as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
·The safety of the Australian Community is the highest priority of the Australian Government.
·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.
·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.
·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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
·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.
·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen'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.
·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.
Paragraph 6 of the Direction provides that, informed by the Principles in paragraph 5.2 of the Direction, I must take into account the considerations identified in sections 8 and 9, where relevant to my decision.
Paragraph 8 of the Direction sets out 5 ‘Primary Considerations’ that the Tribunal must take into account:
(1)the 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.
Paragraph 9 of the Direction sets out 3 ‘Other Considerations’ which I must take into account, which include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of the Direction says:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
IS THERE IS ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE SET ASIDE?
Primary Consideration 1: protection of the Australian community
For this primary consideration, paragraph 8.1(1) of the Direction says that decision-makers should keep in mind:
(a)the safety of the Australian community is the highest priority of the Australian Government;
(b)the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and
(c)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, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction says that decision-makers should give consideration to:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 6 August 2024 (Check Results Report).[3]
[3] Exhibit R1, pp 36-40.
As noted above, on 30 October 2012, the Applicant was convicted of ‘enter premises and commit indictable offence’ in the Brisbane Magistrates Court of Queensland and sentenced to 12 months imprisonment.
There are numerous other offences in the period from 2009 to 2016 that are considered further below.
Other matters listed in the records
There are other matters listed in the Check Results Report on 22 August 2006, 13 February 2007 and 10 October 2007 for which no conviction was recorded when the Applicant was dealt with by the Childrens Court of Queensland.
The Minister submitted, correctly, that the Tribunal should not have any regard to those offences, following the High Court’s decisions in Minister for Immigration, Citizenship, Migrant Services vThornton (2023) 276 CLR 136 (Thornton).
Deputy President Burford in Heathcote and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 131 (Heathcote), when the same submission by the Minister was made stated, at [40]:
In Lesianawai[4], the High Court explained that the effect of s 85ZR of the Crimes Act is that full force and effect is to be given by the Tribunal to a law of a state under which a person is ‘for any purpose’ to be taken never to have been convicted for an offence. The ‘corresponding purpose’ as referred to in s 85ZR(2) is therefore ‘any purpose’ and this includes the purpose of this Tribunal making a decision on review of a decision made under s 501CA(4) of the Migration Act. While the Court in both Thornton and Lesianawai were considering the treatment of juvenile offences, the High Court’s reasoning is applicable to any offending for which an Applicant received a finding of guilt but with respect to which no conviction was recorded.
[4] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 475 (Leisanawai).
The Tribunal accepts the reasoning of Deputy President Burford in Heathcote is the correct application of the decisions of Thornton and Lesianawai in the present circumstances of consideration of the Applicant’s criminal history, where he received a finding of guilt, but no conviction was recorded (the Excluded Criminal History). To be clear, the Tribunal has not had any regard to any of the matters in the Check Results Report for which no conviction was recorded in considering the Applicant’s conduct and offending, including in respect to determining whether the Applicant passes the character test and whether there is another reason why the cancellation of the visa should be set aside.
Despite the above, the Minister pressed in its written submissions and the opening that:
However in circumstances where this prohibition in s 85ZS(1)(d)(iii) of the Crimes Act relates taking into account the fact of a charge/conviction, the Respondent maintains that the Tribunal is not otherwise precluded from taking into account the underlying conduct pertaining to same. In the present case, the Respondent contends that such underlying conduct constitutes repeated, serious and harmful behaviour towards the Australian community.
The Minister did not lead any probative evidence in respect to the ‘underlying conduct’ and in the circumstances of a self-represented applicant, I directed that no cross-examination of the Applicant be conducted in relation to the Excluded Criminal History.
In closing submissions, without conceding that the Tribunal could not take into account ‘underlying conduct’, the Minister did not press, appropriately, that the Tribunal should take into account the ‘underlying conduct’ pertaining to the Excluded Criminal History. To be clear, I did not take into account the Excluded Criminal History in any respect in making this decision, nor do I make any finding in respect of the Minister’s contention in respect to ‘underlying conduct’.
In assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I have considered the following relevant matters listed in paragraph 8.1.1(1) of the Direction:
(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 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;
(d)the impact of the offending or other conduct on any victims and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia

I find the Applicant has committed the following very serious offences:[5]
·30 October 2012 – Enter premises and commit indictable offence, sentenced to 12 months imprisonment (suspended).
·29 March 2011 – Attempted robbery – actual violence – in company – conviction recorded, sentenced to imprisonment 18 months.
·12 November 2010 - Grievous bodily harm – conviction recorded, sentenced to imprisonment three years.
·12 November 2010 - Enter premises and commit indictable offence by break -conviction recorded, imprisonment six months.
[5] Exhibit R1, pp36-40.
I find the Applicant has committed the following serious offences:[6]
[6] Exhibit R1, pp36-40.
·15 March 2016 - Stealing – convicted, sentenced to three months imprisonment, restitution ordered of $18.69.
·15 February 2016 - Assault or obstruct police officer – convicted, sentenced to three months imprisonment (suspended for 6 months).
·24 July 2015 - Assault or obstruct police officer – fined $1,000.
·5 June 2015 – Stealing – convicted, sentenced to one month imprisonment, restitution ordered of $92.99 and $50.
·26 March 2015:
oStealing – convicted (2 counts), sentenced to three months imprisonment, restitution ordered of $43 and $200.
oAssault or obstruct police officer – convicted, sentenced to one month imprisonment.
·13 March 2014 – Breach of order imposed on 30 October 2012 – suspended sentence extended by three months.
·23 June 2010 – Assault or obstruct police officer – conviction recorded, fined $600.
·16 February 2010 – Stealing – conviction recorded, fined $500.
The Applicant also has a Traffic History in Australia as follows:[7]
[7] Exhibit R2, pp86-89.
·on 24 March 2023, he drove whilst over the mid-alcohol limit, but not over high-alcohol limit, and was disqualified from holding a driver licence for a period of seven months and fined $800.
·On 12 February 2022, he committed the offence of driver not wearing seatbelt properly fastened and driver with a passenger not wearing seatbelt properly fastened and fined cumulatively $900 and six demerit points.
·On 28 May 2019, he exceeded the speed limit interstate by less than 13km/h, incurring one demerit point.
·On 14 July 2018, he exceeded the speed limit interstate by less than 13km/h, incurring one demerit point.
·On 13 July 2018, he exceeded the speed limit interstate by less than 13km/h, incurring one demerit point.
·On 26 December 2016, he travelled with part of body outside window/door and fined $121.
·On 21 November 2016, he drove with a high-range alcohol reading, driving without due care and attention, failed to comply with duties of driver involved in crash, careless driving and he was disqualified from driving, incurred three demerit points and fined $2,000.
·On 14 June 2015, he drove unlicenced and was disqualified from driving for six months and fined $350.
·On 18 March 2015, he drove with an over general, but not over mid-alcohol limit, with a blood alcohol reading of 0.999 and failed to display legible P1 plates and was disqualified from driving for three months, incurred two demerit points and fined $1,000.
·On 23 February 2015, he failed to display legible P1 plated and incurred two demerit points and fined $182.
·On 10 August 2014, he drove with unrestrained passengers 16 years or older and incurred three demerit points and fined $341.
·On 15 July 2014, he drove with an over alcohol limit, but not over general-alcohol limit, with a blood alcohol reading of 0.02, without a licence and failed to display legible P1 plates and was disqualified from driving for three months, incurred two demerit points and fined $400.
·On 22 September 2013, he exceeded the speed limit by at least 13km/h but not more than 20km/h, incurring three demerit points and fined $220.
·On 10 August 2013, he drove with a passenger not immediate family and incurred three demerit points and fined $330.
·On 27 June 2010, he failed to display L plates, failed to stop at stop sign, drove without person with open licence and incurred cumulatively six demerit points and fined $620.
·On 23 July 2009, he failed to display L plates, drove without person with open licence and incurred cumulatively three demerit points and fined $320.
·On 13 January 2009, he failed to display L plates, drove without person with open licence and incurred cumulatively three demerit points and fined $320.
The Applicant committed a violent offence, grievous bodily harm (GBH), in 2008 as a 17 year old. The circumstances of the GBH were a brawl at a tavern between the Applicant, with a group of other men of Samoan or Māori descent, with a group of men of Serbian descent. The Applicant joined the brawl and ‘stomped and kicked and punched the complainant a number of times’. His actions led to the complainant suffering ‘fractures to his nose and his right cheekbone. He underwent surgery, a metal plate was installed and he still suffers numbness’.
The sentencing judge, in November 2010, took into account that there was a degree of provocation on part of the group of men of Serbian descent, however objectively, the GBH was a serious offence. The Applicant accepted his actions were inappropriate and he was ashamed of what he did, he cooperated with police and accepted a custodial sentence was required. He subsequently no longer associates with the people with whom he associated at the time of the GBH. The Applicant was sentenced to three years imprisonment for the GBH with the sentencing judge remarking that he strongly encourages the defendant to undertake dealing with alcohol and ending offending courses because he considered that the Applicant had ‘started to turn the corner in your life’.[8]
[8] Exhibit R2, pp94-103.
The Applicant committed an attempted armed robbery in company in July 2010 (he was 19 at the time). The Applicant and his co-accused entered a McDonalds. His co-accused punched the manager twice in the face whilst demanding money from the cash register. The Applicant stood behind the co-accused ‘wearing a hooded jacket with the hood over his head and his hand concealing his face’.
The sentencing judge, in March 2011, took into account the Applicant’s guilty plea, that he was on bail at the time and that he had no active involvement, ‘save for standing behind him’. The Applicant was sentenced to 18 months imprisonment.[9]
[9] Exhibit R1, pp41-49.
Another very serious offence committed by the Applicant was the conviction on 30 October 2012, relied on by the Minister to cancel the visa, of ‘enter premises and commit indictable offence’ for which he was sentenced to 12 months imprisonment (suspended). The sentencing magistrate stated ‘I take those matters into account. It is an early plea of guilty, I accept that, and you have cooperated in that regard, and for that the Courts must give a significant discount in penalty. Although this is a low-level offending it is aggravated by the fact that you were on parole at the time’.[10]
[10] Exhibit R1, pp50-52.
The Minister in their written submissions contended that there was further evidence of violence arising from the ‘assault or obstruct police officer’ convictions in the Applicant’s criminal history. That contention fell away at the hearing because the evidence showed that the Applicant had obstructed the police by refusing to answer questions as to his identity and in fact never been violent to police.
That does not lessen the Applicant’s poor conduct in dealing with authorities, but it does not show that his conduct amounts to a pattern of escalating or persistent violence over time.
In the period from February 2009 (when the Applicant was 19) to August 2016 (when the Applicant was 26), the Applicant sustained numerous convictions for enter premises and commit indictable offence, stealing, public nuisance, obstructing police, contravening directions and being intoxicated in a public place.
The Applicant’s criminal history for that period displays a complete disregard for authority and the expectations of the community. The Applicant says that during that period he was using drugs and alcohol and was stealing to support his habits during periods of homelessness. The amounts of restitution ordered for each of the Applicant’s stealing convictions are supportive of the Applicant’s evidence, they are for small sums indicating the replacement costs for items stolen.
Additionally, the Applicant’s traffic history discloses four driving under influence of alcohol (DUI) convictions over a nine-year period.
The most serious of these occurred in 2016 where he caused a motor vehicle accident and admitted in his evidence to fleeing the scene. The Applicant’s evidence was this incident was ‘a near death experience’ and the catalyst for him to stop taking drugs, move to Sydney to be with his parents and commence employment working in the construction of road tunnels. This DUI was the only high range offence in his traffic history.
The most recent (2023) DUI conviction was a mid-range alcohol limit offence. The Applicant gave evidence that he was sleeping in his car across the road from his residence and then woken by police and told to leave the car. He subsequently drove across the road to his residence where the police then breath tested him.
The rest of the Applicant’s traffic history is not remarkable, most recently showing low range speeding offences and failure to wear a seat belt on one occasion.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The Direction says that in considering the need to protect the Australian Community from harm, I 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.[11]
[11] Paragraph 8.1.2(1) of the Direction.
I have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.[12]
[12] Paragraph 8.1.2(2)(c) of the Direction.
The Applicant has not been assessed by a professional to ascertain risk of reoffending and risk factors. Whilst preferable such evidence was before the Tribunal, I am satisfied that sufficient evidence was available to the Tribunal to make a considered decision on the risk of reoffending and risk factors.
The Applicant has not been convicted of a criminal offence since August 2016, some nine years ago. The Applicant’s most serious criminal offences of GBH and attempted robbery in company, occurred approximately 15 years ago, ending when he was about 19 years old.
There is no controversy that the Applicant’s criminal history does not show a pattern of escalating violence or increasing seriousness of offending.
53.The Respondent’s written submissions contend that the Applicant having ‘repeatedly engaged in serious and violent offending’ and the nature of harm to the community if the Applicant should re-offend ‘is so serious that any risk that it may be repeated is unacceptable’.[13] The Respondent in closing, conceding that such violent offending was limited to the GBH and not assault of police as contended in the written submissions, urged the Tribunal to consider the cumulative impact of the Applicant’s offences and the serious physical harm caused by his conduct in the GBH.
54.There is weight to the Respondent’s contention of the risk of the Applicant using violence in the future.[14]
55.I accept there is some risk of the Applicant being violent in the future, but on the evidence, that is a low risk because, other than the GBH, the Applicant has not otherwise demonstrated violence during his offending period and not at all for 17 years. His evidence was that he was remorseful for the GBH and committed at a time that he was immature and ‘stupid’.
56.The Respondent relied on the Applicant’s non-compliance with parole and court order during his offending period as well as the Applicant continuing to offend after the 2011 notification by the Respondent’s decision not to cancel the visa as evidence of his ‘flagrant disregard for authority towards the Department’s administration of its visa program and law enforcement including police, and orders of the court’.
57.I accept this is a relevant consideration for me to consider, but I am not minded giving it significant weight because of the historical nature of the Applicant’s criminal offending and the drivers of that offending, namely his drug and alcohol addictions.
[13] Exhibit R2, pp15-36; see also paragraph 8.1.2(1) of the Direction.
[14] See Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (Tanielu), at [88]-[104].
The Minister contends, and I agree, the key risk factors to the Applicant re-offending are his use of drugs and alcohol, his association with the people he offended with and, at the time of his offending, his youth, immaturity and naivety.
The Applicant was a truthful and convincing witness, honest to a fault. He answered questions that he was not obliged to, with candour and against self-interest. He had a tendency to be over-accommodating to the questions of the Minister’s representative when clearly, he did not know the answer to the question. This did not detract from his credit as a witness, but rather as a relatively unsophisticated and basically educated person, caution had to be applied to his acceptance of matters put to him that required a level of sophistication or use of language beyond his experience.
The Applicant’s uncontested evidence was that he stopped using drugs in 2016 and he no longer is associated with the people he committed offences with. He admitted to the recent use of cannabis on one occasion, taking a ‘couple of drags’.
He fully accepted that his behaviour in his youth was inappropriate, and he has ‘grown up’ and matured. He says that his consistent employment, ownership of a car, reliable housing, connection to family and social network of friends from work, are evidence of his break from his previous criminal associations and behaviour.
The Applicant’s relationship with alcohol is the presently most concerning risk factor. He candidly admitted that his use of alcohol was impacting on his life, particularly in his ability to maintain a driver’s licence. He gave evidence of the negative impact on his ability to maintain his work and family commitments arising from his licence suspensions. He considered that, other than his use of alcohol, he presented no risk to the Australian community.
The Applicant’s evidence was that his period of immigration detention had made him reflect that his current predicament was of his own making and was largely because his use of alcohol, particularly with his traffic history, and he needed to take action.
The evidence of his family members (father, mother and brother) was that they all accepted that they needed to provide him support in his endeavours to manage his alcohol dependency but provided positive evidence of his recent behaviour around his family, particularly his nephews and nieces.
The key risk is the Applicant resuming a drug and alcohol dependency leading him to commit the type of offences, particularly DUI and less likely stealing.
I accept that there is little evidence, prior to the hearing, of the Applicant making any serious attempts to engage in formal programs for rehabilitation for his drug and alcohol addictions. No weight can be given to those he undertook while on parole as he admitted he only undertook them to meet the conditions of parole and did not take them seriously.
At the hearing the Applicant was convincing in his evidence that he had ceased taking drugs from 2016 and the lack of criminal convictions from that point is corroborative of his evidence.
As to his use of alcohol, it seemed that the threat of imminent deportation and the exposure to him of his full criminal and traffic history has had a positive impact on the Applicant accepting that he has a problem with alcohol and on his evidence has taken some early steps to seek help with this issue.
If the Applicant did re-offend there would be harm to the community, in particular the risk of the Applicant committing DUI and the very dangerous consequences that can arise to other road users and pedestrians.
This is consistent with the Respondent’s written submission that ‘the Applicant poses at least a moderate risk of reoffending’ and in closing a ‘substantial weight’ to cancelling the visa.
Other than the Applicant’s GBH and attempted robbery in company almost 15 years ago, the Applicant has no criminal history of violence or a pattern of escalation in his criminal offences that ceased nine years ago. His risk of re-offending is low.
The Applicant has shown that from 2016 he has made a significant change to his life by stopping his drug use, no longer associating with those he offended with and being gainfully employed for a long period, making a positive contribution to society.
Primary Consideration 1 weighs moderately against setting aside the cancellation of the Applicant’s visa.
Primary Consideration 2: family violence
The Direction defines ‘family violence’ to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence.
There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence.
This Primary Consideration is not relevant.
Primary Consideration 3: strength nature and duration of ties to Australia
Paragraph 8.3 of the Direction says I must consider any 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 should also 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 Applicant has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where the Applicant began offending soon after arriving in Australia; and
omore weight should be given to time the Applicant 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 lived the majority of his life in Australia, arriving at the age of eight with his immediate family, and never returning to New Zealand.
The Applicant did not commence his offending soon after arriving in Australia.
It was uncontroversial that the Applicant’s immediate family, his mother, father and eight brothers and sisters, all of whom live in Australia, and all of whom would be negatively impacted by his removal.
The Applicant’s father, mother and brother gave evidence on their limited capacity for work and family reasons to travel to New Zealand to see the Applicant if he was removed.
The Applicant provided details of the type of contact and connection he has with his immediate family and how largely he maintains that contact through electronic means. He accepted that he would be able to maintain contact if removed to New Zealand but not to have the in-person contact he has with the various members of his family, particularly those who reside in Brisbane.
The Applicant provided various letters of support from 10 other members of the community, such as friends, employers and from his church in support of his retention in Australia[15].
[15] Exhibit R2, pp1-14.
They variously described the Applicant’s good character, work ethic, support to others and kindness.
For primary consideration three, the Respondent only required the Applicant’s mother, father, one brother, his direct supervisor and one friend to be subject to cross-examination.
Nothing of significance came from that cross-examination that would impugn the contents of their respective statements and I otherwise have considered the contents of the remainder of the statements relied upon by the Applicant.
The Applicant provided his employment history, and his current direct supervisor gave evidence.
His employment history discloses an increase in qualifications and skills over time in the construction industry. He is currently employed as a permanent full-time ‘rigger’ working with cranes on construction sites. His direct supervisor gave positive evidence of the Applicant’s commitment to his work and support to his workmates. Further, he stated that if the Applicant were to remain in Australia he would continue to be employed on a permanent full-time basis.
The Applicant has made a positive contribution to the Australian community by his steady employment and payment of income tax.
The Respondent accepted that the Applicant has developed substantial ties with Australia and ‘submits this Primary Consideration weighs considerably against cancellation’. I agree.
Considering the impact of any non-setting aside decision on the Applicant’s immediate family members, age at arrival in Australia, his contribution to the Australian community, I give this Primary Consideration significant weight in favour of the setting aside of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4 of the Direction requires me to determine whether a decision to affirm is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include:
·     the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
The Applicant does not claim to have any minor biological children in Australia or at all. He has five nephews/nieces whose best interests the Applicant says are affected by a non-setting aside decision. They are:
(a)Minor 1, younger brother of the Applicant, aged 16 (date of birth (DOB) 2009);
(b)Minor 2, nephew, aged 12;
(c)Minor 3, niece, aged seven;
(d)Minor 4, niece, aged six (DOB 2019);
(e)Minor 5, nephew, aged six (DOB 2019); and
(f)Minor 6, nephew, aged two (DOB 2023).
For the Applicant’s younger brother, Minor 1, the Applicant gave evidence that he mainly keeps in contact through social media and by calling him. He gives Minor 1 limited financial support by way of money for presents and occasionally for him to purchase a specific item. As Minor 1 lives in Sydney, he only sees him once or twice a year for birthdays, Easter or Christmas at family gatherings.
For the Applicant’s niece and nephew, Minor 2 and 3, his evidence was that he saw them more regularly as they lived in the adjoining suburb and as he often went fishing on weekends with his brother-in-law, he saw them then and also at birthdays, Easter or Christmas at family gatherings. He accepted that he did not financially support them or have caring obligations, although he has ‘babysat’ them from time to time.
For the Applicant’s niece and nephew, Minor 4 and 5, his evidence was that he saw less regularly as they lived two suburbs away and he saw them on their birthdays, Easter or Christmas at family gatherings. He accepted that he did not financially support them or have caring obligations.
101.For the Applicant’s nephew, Minor 6, his evidence was that due to his young age and as he lives in Sydney, he only occasionally spoke to him on the phone or saw him at family gatherings once or twice a year. He accepted that he did not financially support him or have caring obligations.
The Respondent contended that as the relationships with these minor children are non-parental and with limited contact this Consideration should only weigh moderately against cancellation.
I am of the view that a non-setting aside decision is not in the best interests of the Applicant’s nephews/nieces, in that it will prevent the possibility of person to person contact between the Applicant and his nephews/nieces in Australia and maintaining a positive relationship with them.
Considering the best interests of the children mentioned above cumulatively, this Primary Consideration weighs moderately in favour of the setting aside of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction says that 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 he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[16]
[16] Paragraph 8.4(1) of the Direction.
Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.[17]
[17] Paragraph 8.5(2) of the Direction.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[18]
[18] Paragraph 8.5(3) of the Direction.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[19]:
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.
[19] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791, at [17]; Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, at [51]-[52]; DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3.
The Applicant has not engaged in any acts of family violence, causing a person to enter into a forced marriage, serious crimes against women, children or other vulnerable members of the Australian community, human trafficking or crimes that are of serious international concern or worker exploitation.
He has obstructed the performance of the police in carrying out their duties, but such conduct was in the low range of such offences and is historical in nature. Importantly, the Applicant was never violent to any government representative or official.
As found above, the Applicant’s risk of re-offending is low and he has shown that from 2016 he has made a significant change to his life by stopping his drug use, no longer associating with those he offended with and being gainfully employed for a long period, and making a positive contribution to society.
That is not to understate his historical demonstration for disregarding the laws regulating the community that he seeks to re-enter, but there is a clear break from that historical criminal offending and resultant reasonable optimism that he has changed for the positive in his attitude to abiding by the laws of Australia and the expectations of the community.
The Applicant’s ongoing issues with alcohol remain a risk, particularly in respect to the potential to commit DUI offences. He has demonstrated a capacity for self-reflection and rehabilitation in this regard, an undertaking his immediate family have attested to supporting him in.
The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
Primary Consideration 5 weighs moderately against setting aside the cancellation of the Applicant’s visa.
Other Consideration 1 – legal consequences of the decision
There is no claim, and otherwise nothing on the material to suggest that Australia’s non-refoulement obligations are enlivened in relation to the Applicant.
The consequence of affirming the non-revocation decision would be that the Applicant:
(a)will be liable to be removed from Australia as soon as reasonably practicable[20];
(b)must remain in detention until removal[21];
(c)will be prohibited from applying for another visa while in Australia, except for a Protection visa[22]; and
(d)will be indefinitely excluded from Australia[23].
[20] See 198 of the Act
[21] See s 189 of the Act
[22] See s 501E and s 48A of the Act
[23] See Special Return Criteria 500(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth),
The Applicant does not make any further claims with respect to this Other Consideration.
I give this Other Consideration neutral weight.
Other Consideration 2 – extent of impediments if removed
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand, taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in New Zealand.
The Applicant is a 35-year-old man who is able bodied and who has:[24]
· Obstructive sleep apnoea (OSA)
· Obesity
[24] Exhibit R2, pp39-65.
The Applicant gave evidence that whilst in detention he has been provided medical support for his OSA, first by diagnosis and secondly a plan to provide him with a medical device to treat his OSA.
The evidence was that the Applicant had limited family support available if he was removed to New Zealand. At its highest the Applicant has a maternal aunt who might theoretically be able to provide the Applicant somewhere to live for a short period. Mrs Potter in her evidence said that she had not discussed that possibility with her sister and was unsure of her capacity to provide support.
The Applicant has no present social support network available in New Zealand.
The Applicant has extensive qualifications, skills and experience in the construction industry. He is currently employed as a ‘rigger’ working with cranes on construction sites. The Minister, appropriately, did not contend that his qualifications would necessarily be immediately transferable to employment in New Zealand and asked the Applicant if he would be generally employable in New Zealand using his qualifications, skills and experience. The Applicant said ‘yeah’ to that question but when asked details about what that means it was clear that in fact, he did not know whether he would be employable in New Zealand as a ‘rigger’.
This Other Consideration weighs moderately in favour of setting aside the cancellation of the Applicant’s visa.
Other Consideration 3 - impact on Australian business interests
The Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision. However, Direction 110 makes clear that this consideration should only be given weight where a decision to cancel the Applicant's visa ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
The Applicant accepted that his removal would not compromise the delivery of a major project or an important service in Australia. His direct work supervisor agreed that this was correct.
I give this Other Consideration neutral weight.
Any new Other Considerations
No new considerations outside of those listed in the Direction were raised by the Applicant.
CONCLUSION
Bearing in mind the principles outlined in paragraph 5.2 of the Direction, I am required to weigh all of the Considerations in accordance with the Direction.
This was a finely balanced matter. The seriousness of the Applicant’s offences, including his traffic history and his ongoing issues with alcohol weighed against him moderately in respect of primary considerations 1 and 5.
However, the historical nature of his criminal behaviour, his stopping his drug dependency and removing himself from the negative association with people he offended with as well as his commitment to family, employment and alcohol rehabilitation ultimately weighed in his favour.
Further, the lack of violence in any capacity for over 15 years and the Applicant’s candour and self-reflection about the impacts on his criminal offending on the community and his family weighed in his favour.
I am satisfied that there is another reason why the original decision should be set aside.
Application of the Direction therefore favours the setting aside of the cancellation of the Applicant’s visa. Consequently, I do not exercise the power conferred by s 501(2) of the Act to cancel the Applicant’s visa.
DECISION
Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal decides to set aside the decision under review made by the delegate of the Respondent dated 30 April 2025, to cancel the Applicant’s visa, and substitutes that decision with a decision that the Tribunal does not exercise the discretion to cancel the Applicant’s visa conferred by s 501(2) of the Migration Act 1958 (Cth).

Date(s) of hearing: 24 and 25 July 2025

Date final submissions received: 25 July 2025

Solicitors for the Applicant: Applicant was self-represented

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	24 and 25 July 2025
Date final submissions received:	25 July 2025
Solicitors for the Applicant:	Applicant was self-represented
Solicitors for the Respondent:	Clayton Utz