LVCR and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 406

LVCR and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 406 (20 December 2024)
Applicant:LVCR
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8264
Tribunal:Senior Member K Raif
Place:Sydney
Date:20 December 2024

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the visa is revoked.

.........................[SGD]...............................................
Senior Member K Raif
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class BB Five Year (Resident Return) (Permanent) visa – failure to pass character test – substantial criminal record – serious drug offending – whether another reason mandatory cancellation should be revoked – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth), s 501CA, 501(6)(a)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YBFZ v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 40
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Statement of Reasons
BACKGROUND

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BB Five Year (Resident Return) (Permanent) visa (RRV) previously held by the Applicant.
The Applicant is a national of Iran, born in April 1991. He travelled to Australia as an unauthorised maritime arrival in 2011 and was subsequently granted a permanent visa and an RRV. In September 2021, the Applicant was convicted of offences and was sentenced to a term of imprisonment of 7 years. On 27 October 2021 the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Migration Act’). The Applicant made requests to revoke the cancellation in March 2022 and on 15 October 2024 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 18 and 19 December 2024. For the following reasons, the Tribunal has concluded that the decision dated 15 October 2024 not to revoke the cancellation of the Applicant’s Resident Return visa should be set aside and, in substitution, a decision is made that the cancellation of the visa should be revoked.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(4)The Minister may revoke the original decision if:
(a)   the person makes representations in accordance with the invitation; and
(b)   the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
‘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 primary considerations which are set out in clause 8 of Direction 110 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, which are not exhaustive, are set out of clause 9 of Direction 110:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that 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.
Colvin J stated in Suleiman v Minister for Immigration and Border Protection:[1]
‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’”[2]
[1] [2018] FCA 594.
[2] Ibid, [23].
While these comments were made in relation to the earlier Direction, they apply equally in the present case, subject to the express direction as to the weight to be given to different considerations, offered in Direction 110.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report. Information before the Tribunal indicates that, relevantly, the Applicant had been convicted of the following offences in September 2021.

·     Conspiracy import / export commercial quantity of border control drugs / plants

·     Take part supply prohibited drug > indictable and < commercial quantity

·     Supply prohibited drug > indictable and < commercial quantity

Imprisonment 7 years (or 7,5 years)

Imprisonment 1 year 9 months

The Tribunal finds that in September 2021 the Applicant was sentenced to a term of imprisonment exceeding 12 months in relation to the conspiracy offence. (The Tribunal has not taken into account other offences for which no conviction was recorded, for the purpose of determining whether the Applicant passes the character test). The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The Applicant concedes that he does not pass the character test. The Applicant acknowledges the offending was serious but refers to the support he has in the community and the recent assessments of there being a low risk of reoffending. The Applicant refers to the supportive environment and the steps he has taken towards the rehabilitation, including since his release. The Applicant submits that he has removed himself from the factors that had led to past offending and has contributed to the community and supports his family.
The Respondent notes that irrespective of the Tribunal’s decision, the Applicant would remain in the community as there is no evidence of any arrangements being made that would enable the Applicant to be removed to another country. The Respondent submits the offending was ‘extremely serious’, having regard to the nature and amount of the drugs involved. The Respondent submits that the protection of the Australian community, which weighs in favour of the cancellation, should be given greater weight, and the fact that the Applicant will be able to remain in the community, irrespective of the outcome of this review, means that lesser weight can be given to other considerations that weigh in favour of the revocation.
The Tribunal’s considerations are set out below with regard to Direction 110.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(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… 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.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequently of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the sentencing remarks of Judge Bourke SC made in September 2021. His Honor outlined the agreed facts in relation to the conspiracy offence as follows.
The conspiracy offence… involved a plan to smuggle methamphetamine inside fresh coconuts to be imported from Thailand… However, after conducting a ‘dry run’ import of coconuts containing no drugs this plan was abandoned and an alternate plan was hatched to import methamphetamine in dishwashing tablets from Turkey...
His Honour stated that the ‘knowingly take part in supply’ offence involved 200 grams of methamphetamine which was supplied in January 2019. His Honour has outlined in considerable detail the circumstances leading to the offence and the Applicant’s involvement in planning and executing the actions that constituted the offending conduct.
With respect to the seriousness of the offending, Bourke J stated that the conspiracy offence must be treated as a serious offence given that the plan did not involve a one-off import but a plan for the imports to be on a continuing basis once any hurdles had been overcome. His Honour found that the Applicant played ‘the most significant, most senior role in the conspiracy’. He was the one who had contacts overseas and gave the ‘go-ahead’ to the operation. His Honour assessed the offence as approaching, but being just below, the mid-range of objective seriousness. His Honour found the conspiracy to import drugs in the dishwasher tablets to be a serious matter and the objective seriousness of the supply offence was said to be ‘considerable’, as the offence involved 200 grams of methylamphetamine of high level of purity. It was noted that the Applicant was the source of the drugs, placing him at the highest point in the known hierarchy of the supply. (The Applicant told the Tribunal that he obtained the drugs from a source who was a connection of his uncle.) His Honour assessed the objective seriousness of this offence as being close to mid-range.
The Tribunal accepts the Respondent’s submission about the seriousness of the offending having regard to the nature and volume of drugs. The Tribunal considers drug related offending to be serious, given the potential harm drugs can cause to the community. This is consistent with the fact that the Applicant has been given a substantial custodial sentence. The Tribunal notes that Bourke J found the offending to be mid-range or just below mid-range of objective seriousness. The Applicant seems to concede that his offending was serious.
The Tribunal finds that the offending was serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
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; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The offending in question involved the importation of drugs. The Respondent submits (by reference to a report) that drugs can have significantly adverse impact on the community. It is without doubt that drugs can have significantly adverse impact on users and general members of the society. In the Tribunal’s view, the harm to individual users of drugs or the Australian community, should drugs be made available, would be very significant.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Applicant offered several explanations for his conduct. He previously sought to explain his offending conduct by his concern for the safety and well-being of his mother overseas, stating that he had been pressured to engage in the offences by his uncle, as he feared consequences from his uncle if he did not. However, Bourke J noted that the Applicant did not give evidence and this claim remained untested and, ultimately, His Honour was nor satisfied of the Applicant’s claim to have acted under duress.
In his revocation request the Applicant stated that it has taken him a long time “to get to know himself” and to realise what is important in his life. He refers to traumatic and ‘terrifying’ upbringing in his country and the risks of leaving Iran to come to Australia. The Applicant states that he cannot imagine himself being outside of Australia which is his home. The Applicant refers to his marriage and states that the situation is hard for him and has had a huge impact on his wife and he refers to the stress and devastation due to his separation from his partner. The Applicant states that he is remorseful for his actions and would “do anything to live by the law” and next to his wife in Australia.
The Applicant states in his revocation request that he is remorseful for his actions but claims the reasons behind these were ‘total unintentional’ as he was under the influence of wrong decisions that were forced on him coming by wrong people. The Applicant states that he understands and feels responsible how his actions affected his family, and he will do whatever it takes to change and prove to be a better person.

With respect to the risk of reoffending, the Applicant claims in the revocation request that there is no further risk. He states that his actions were based on some ‘naïve’ decisions, and he understands that he has risked his life and future and his status as an Australian citizen. The Applicant states that he appreciates his life in Australia and hopes to get a second chance. The Applicant states that he wants to stay, work hard and pay taxes, build a family and be a role model to his future children.
In his communication dated 4 March 2022, the Applicant concedes that his offending is serious, although he states that his offending was not violent, did not involve domestic violence, forced marriage and was not against vulnerable members of the community. The Applicant notes that no drugs were disseminated into the community, and he states that his offending can be categorised as ‘haphazard and lacking in any sophistication’. The Tribunal considers these comments problematic because that statements suggests that the Applicant lacks any appreciation of the serious nature of drug supply offending and despite admitting that the offending was serious, he immediately seeks to minimise the seriousness of the offending and seemingly claims that there was no harm done since no drugs were disseminated into the community. The Tribunal notes that the sentencing judge Bourke J did not consider the offending to be haphazard or lacking sophistication. As noted above, His Honour referred to the objectively serious nature of offending and the Applicant’s important role in the actions that led to the offending. The fact that the Applicant sought to minimise the seriousness of the offending in 2022 suggests to the Tribunal that, despite his express claims, he may not have been genuinely remorseful for his conduct, at least when those comments were made.
The Applicant refers to having completed a number of courses during his incarceration (he presented evidence of having undertaken such courses and a Positive Lifestyle program), as well as psychological counselling. He stated in his revocation request that he has been attending a ‘mood management program’ and refers to completion of cooking courses but states he has not been able to study due to his visa status.
The Applicant refers in his submission of 4 March 2022 to being assessed as having low risk of reoffending and positive prospects of rehabilitation. The Applicant states that he has had a supportive partner since 2013 and they have been trying to have children and the Applicant also refers to strong community ties and his past employment as a painter. (To the extent the Applicant claims these are protective factors, the Tribunal does not consider this to be the case, noting that the offending conduct took place when all of the above factors were present.) The Applicant states that he has not committed any offences while on bail and has been compliant while in custody and his refers to his help to other inmates. The Applicant states that the offending was ‘an aberration’ on his character. He refers to his records of good behaviour while in prison, being housed in a minimum-security environment and given positions of trust.
The Tribunal has been provided, and had regard to, the NSW Department of Corrective Services program notes. These show that the Applicant had engaged in counselling sessions. The Tribunal has also had regard to the multiple statements of support. These include statements from the Applicant’s partner, his mother-in-law, former employer and several friends. The Tribunal acknowledges that those who provided statements have expressed the view that the Applicant is a person of good character who will not reoffend. The Tribunal also notes the statement from the Applicant’s partner Ms FM who refers to the Applicant’s good behaviour since the commission of offences and states that he does not pose a risk to the community on release.
The Tribunal has had regard to the psychological report by Alison Cullen, prepared in June 2021 for the purpose of sentencing. (The applicant submits hat Ms Cullen’s qualifications are unknown and the report should be given limited weight.) Ms Cullen reports that the Applicant referred to his fear for his mother’s well-being as the motivating factor for his offending. Ms Cullen’s report refers to the Applicant experiencing mild depression, anxiety and stress. The report refers to protective factors including the Applicant’s spouse and her family, the absence of other criminal history, remorse, absence of drug misuse and willingness to seek professional help, absence of any personality disorders, stable accommodation, etc. Ms Cullen refers to a promising prognosis and reduced risk of recidivism.
The Respondent submits that this report should not be given weight as the Applicant claimed false reasons for the commission of his offence, since his present claim is that he was motivated by greed. The Tribunal acknowledges these discrepancies but considers that Ms Cullen’s assessment should be given some weight.
The Tribunal also notes that in the absence of drug misuse, personality disorders, and despite the presence of other protective factors, the Applicant did commit serious offenses and that would indicate that his engagement in such conduct was calculated and intentional (rather than impulsive) while Bourke J describes somewhat complex arrangements that the Applicant and others had made to enable the importation of drugs.
When sentencing the Applicant, Bourke J considered the risk of reoffending, taking into account a number of factors. His Honour noted that the psychological report assessed the Applicant as having a low risk of reoffending and noted that while the Applicant had expressed remorse, the genuineness of that remorse is untested. His Honour assessed the prospects as being uncertain but reasonable.
In her report Ms Cullen refers to the Applicant’s perception of his conduct. The Applicant stated that his co-accused made contact with the Applicant’s uncle in Iran, but the uncle did not trust that person and had ordered the Applicant to become involved. The Applicant is reported to have stated that ‘he had to [get involved]. I can’t say no to my uncle because of my mum’. The Applicant is reported to have stated that he held genuine concerns for his mother’s safety if he failed to comply with the requests his uncle made of him. The Applicant is also reported to have stated that he had no choice and didn’t want to do what he had done. Ms Cullen states that the Applicant acknowledged that his motivation to protect his mother remains a risk for future recidivism.
It is notable that the Applicant’s evidence to the Tribunal is substantially different to the evidence that he provided to his various counsellors previously. The Applicant told the Tribunal that in committing the offence, he was motivated by money and greed, rather than any other factors, and that he previously sought to shift the responsibility to his uncle. In relation to the claims he made to Ms Cullen, the Applicant told the Tribunal that at the time he did not want to accept the responsibility for his wrong-doing and wanted to shift the blame on his uncle. The Respondent submits that the claims made by the Applicant to Ms Cullen are untrue (and that it can be more accurately said that the Applicant was motivated by greed) and as such, little weight should be given to Ms Cullen’s report.
The Tribunal has also had regard to the treatment reports by Ms Nadine Galloway, noting Ms Galloway’s comment that the first report prepared in early November 2024 is not intended to serve as an expert witness evaluation but is a summary of treatment sessions, diagnostic assessment and clinical observations. Ms Galloway notes the limitations of the report, including the number of sessions attended by the Applicant (4 at the time the report was prepared) and the fact that the report is predominantly based on the Applicant’s self-reporting. (Given that the report seems to have been arranged for the benefit of the Parole assessment, the Tribunal might consider that such self-reporting may be self-serving and not necessarily reliable.) Ms Galloway states that she has been providing psychological services to the Applicant for issues relating to mood, anxiety and trauma symptoms. It is stated that the Applicant has good insight, which was evidenced by his understanding of how his historic decisions making contributed to his offending behaviour. It is stated that the psychometric assessment indicated the Applicant’s symptoms were in the mild range for depression, anxiety and stress but above clinical cut-off for PTSD symptoms. Ms Galloway refers to the past assessment by Ms Cullen and states that based on his current presentation, the Applicant currently meets the criteria of PTSD, major depressive disorder with mild anxious distress and alcohol use disorder in sustained remission. Ms Galloway recommends future interventions in the form of psychological intervention, GP, community support and financial counselling.
Ms Galloway prepared a further report dated 28 November 2024 and she confirmed in oral evidence that this report is also based primarily on the Applicant’s self-reporting. In that report, Ms Galloway also refers to the Applicant displaying symptoms of PTSD, major depressive disorder with mild anxious distress, alcohol use disorder in remission. The report also outlines recommendations for future intervention.
The Tribunal also received oral evidence from Ms Galloway. Ms Galloway accepted that the Applicant had presented different explanations for his offending, either greed and desire for money, or financial hardship and concern for his mother. Ms Galloway also accepted that the Applicant’s explanation of his motivations for offending may be relevant to the assessment of the risk of reoffending. Ms Galloway agreed that her assessment that the Applicant had a passive role may have been inconsistent with the Applicant’s self-reporting that he participated with his uncle in making decisions about offending. With respect to the assessment of risk, Ms Galloway states that it is a qualitative assessment (she is not trained in conducting quantitative assessments concerning risk of recidivism) and no standardised tests had been used. With respect to the current assessment of risk of reoffending being low, Ms Galloway identified protective factors such as that the Applicant does not use alcohol, does not associate with anyone involved in crime, has a newborn child and has better mental health.
The Tribunal has had regard to the pre-release report prepared by Olivia Warner, dated 11 July 2024. The report sets out the factors related to offending, noting that the Applicant admits he did not refrain from supporting his uncle and claims he was driven by the prospect of earning a disposable income, partially attributing his wrongdoing to adherence to cultural norms and reluctance to disrespect the elders. It is noted that at the time of offending, the Applicant ad a stable financial status but found the potential financial gain enticing. It is stated that the Applicant reported he had recognised the impact of his behaviour in the community and has expressed willingness to participate in community programs and psychological support. It is noted that while in custody, the Applicant was initially assessed as minimum-security inmate in 2021 but in August 2022 he was classified as medium security inmate due to his behaviour in custody. He was assessed as minimum security in March 2023 and February 2024. It is stated that during his incarceration, the Applicant has one offence in custody relating to having illegally copies information on a CD, but he has been polite and respectful towards staff. (In his statement the Applicant states that he was allowed to possess music CDs but was not aware the CDs in question were illegal.) The report refers to Positive Lifestyle program completed by the Applicant while in custody, as well as educational programs. The report sets out the supervision plan. It states that the Applicant has shown significant improvement in his behaviour while in custody, has shown commitment to regular employment, but has not participated in behaviour change intervention due to ineligibility.
The Tribunal has been provided with notes relating to the Applicant’s incarceration including case note reports. There is before the Tribunal a statement from Maaz Abdelkader, the Muslim Chaplain at the Corrections Centre, who states that the Applicant has expressed his regret for the ‘mistake’ he has done and is remorseful and expressed repentance and has taken full responsibility. It is stated that the Applicant wants to support his family, has been of good character in jail and deserves another chance. The Applicant also presented evidence of employment offers.
There is before the Tribunal a copy of the Applicant’s communication with the prison authorities, dated 7 November 2024. The Applicant states that his remorse is genuine and has deepened over time, he states that his actions were driven by a combination of financial pressure and a sense of obligation to his uncle, but he takes full responsibilities for his choices. (The Applicant’s evidence to the Tribunal is that he did not have financial hardship when the offences took place and when asked if his statement is untrue, the Applicant suggested that at the time he was trying to shift the blame on his uncle and he now accepts full responsibility. The Tribunal notes that the communication was prepared as recently as November 2024.) In that communication the Applicant refers to his efforts at self-improvement, the courses he had completed while in detention and the support he had provided to other inmates. The Applicant states that he has severed ties with his co-offenders and his uncle in Iran. He states that his wife and child are now the central focus of his life. The Applicant refers to his residence and employment options upon release. The Applicant has addressed his behaviour while in custody.
In oral evidence to the Tribunal the Applicant stated that the main reason for his offending is greed and money, although he also conceded that he did not experience financial hardship at the time. (Notably, he seems to have informed Ms Galloway that he was experiencing financial difficulties and he is also reported to have informed Ms Cullen that he was motivated by concern for his mother while Ms Warner’s report suggests that the Applicant explained he was motivated by greed). The Applicant referred to having some fear for his mother, who was alone in his home country, but he concedes that he could have ‘walked away’ from what his uncle suggested. The Applicant told the Tribunal that when he previously referred to his uncle, he tried to shift the blame for his uncle, but he now takes full responsibility for his offending. The Applicant submits that his present circumstances are different as his mother now lives independently and has her own funds (which he left for her before he came to Australia) and is ‘a grown woman who can defend herself’. The Tribunal is mindful that the same circumstances existed when the Applicant decided to engage in criminal conduct, citing his fear for his mother as a reason for the offending conduct. That is, at that time his mother already had access to funds, was living away from the family home, and was a ‘grown woman’. If the Applicant is truthful in his claim that he decided to commit the offences partly because of his concern for his mother, the Tribunal is not convinced that these factors have been removed. The Applicant’s present evidence that his main motivation was greed and money seems to be more truthful. As such the Tribunal does not consider that the changes in his mother’s circumstances (i.e. removal of the uncle’s influence) remove or reduce the risk of reoffending. The Applicant told the Tribunal that he did not experience financial hardship at the time he decided to engage in criminal conduct, and he also concedes that at the time of offending he was in a better financial situation than he is now. As such, the Tribunal is not convinced that the motivations of money and greed have necessarily been removed in the present circumstances, even if the applicant claims his attitude now is different.
The Applicant’s spouse, Ms FM has provided a statement in which she states that she will support her husband, and believes there is no chance of him reoffending as he has changed significantly. She refers to the family support that would be available to him. In oral evidence Ms FM also spoke about her support for the Applicant and stated that the family would break up if the Applicant was ever to commit another offence as she would divorce him, would not live with the Applicant in another country and would remove the child from him.
The Tribunal has had regard to the statement from the Applicant’s mother, MBG, who states that she has cut ties with members of her family and lives alone in Tehran. She refers to regular phone contact with the Applicant, and states that the Applicant has recognised his wrong-doing and has worked to better himself. As noted above, there are also before the Tribunal a number of character references, including from family members and community leaders, and the Tribunal accepts that those who prepared the references believe the Applicant to be of good character. The Applicant told the Tribunal that he now has a different perspective on life and values his freedom and wants to be with his family.
The Applicant had been granted Parole on 18 November 2024 and the Applicant presented a copy of his Parole Reporting Arrangements. The Tribunal has been provided with the correspondence from the Applicant’s criminal lawyer in support of the application for parole. In that submission, Ms Khan states that the Applicant acknowledged the seriousness of his offending and had expressed remorse and had pleaded guilty. He has cut ties with his uncle (his mother had relocated) and wants to move on with his life, has taken responsibility for his offending. Ms Khan submits that the Applicant does not pose a risk to the community due to the strong release plan, established history of compliance and engagement in rehabilitation and Centre routine. It is stated that the Applicant has shown a significant insight into his offending and does not intend to associate with people who use drugs. He is willing to engage in intervention programs, has been employed and has re-engaged with his religious faith. It is stated that the Applicant has not drank alcohol since he was charged, including the period when he was on bail, and tested negative for illicit substances while in prison. Ms Khan submits that the Applicant had engaged in treatment for the mental health diagnosis and will continue treatment upon release. He has cut ties with his uncle in Iran, his mother has relocated, the Applicant has no contact with his co-accused and has community support including his wife, her family, young child, family friends, employment opportunities (there is evidence of two employment offers), professional and spiritual support. There is reference to the Applicant’s employment while in custody.
The Applicant also provided to the Tribunal evidence that his application for Centrelink payment has been unsuccessful and that he has made enquiries with TAFE NSW but was advised that he requires an application for a substantive visa. The Tribunal accepts that if the Applicant has made attempts to reintegrate into the community since his recent release.
The Applicant submits that there were three main risk factors that led to his behaviour. The Applicant refers to the influence of his uncle, and the difficult dynamic of their past relationship. The Applicant submits that the circumstances now have changed as he no longer ‘fears’ his uncle and both he and his mother have removed themselves from that relationship. The Applicant submits that he no longer has any contact with ‘criminal elements’ either in Australia or overseas. (While the Respondent submits that the applicant has connections to the criminal world, there is little evidence in the Tribunal’s view to support such a finding.) Secondly, the Applicant refers to the actual or perceived financial pressure at the time of offending. The Applicant’s present evidence is that financial considerations are no longer an issue, and he appreciates these factors. The Applicant also refers to greed that caused his behaviour but he states that his present attitude to greed and money has changed and his ‘values have matured’ so that a greater priority for him is his family. The Applicant states that his present circumstances are different as he has a newborn son and there is a risk of marriage breakdown if he reoffends.

The Respondent submits that the Applicant has changed his evidence regarding his motivations to suit his needs, and this brings into question his expression of remorse and the risk of reoffending. The Respondent submits that the Applicant was not in the financial difficulties at the time the offences were committed (noting that some luxury items were found in his possession at the time) raising concerns as to the Applicant’s motivations in claiming financial difficulties as a motivating factor in his past dealings. The Respondent submits that the Applicant made false representations to secure a positive outcome in relation to his parole. The Respondent submits that the Applicant is a ‘risk taker’ and may still be motivated by greed, particularly as his present circumstances are worse than they were when the offences were committed, and his ongoing expenses and financial pressure may motivate the Applicant to commit further offences.
The Tribunal accepts the Respondent’s claim that the Applicant has presented inconsistent explanations for his offending conduct. He variously referred to financial hardship, influence of his uncle, his fear for his mother and greed. The Tribunal accepts that these inconsistencies do suggest that the Applicant has not always been truthful in his dealings with others. In the Tribunal’s view, such lack of candour, while it reflects poorly on the Applicant’s credit, does not necessarily establish that the Applicant lacks remorse at present or that he lacks insight into his conduct.
The Tribunal has formed the view, having particular regard to the assessment by Ms Cullen and Ms Galloway and the remarks of the sentencing judge and other evidence presented by the Applicant as discussed above, that there is a low risk of reoffending. In the Tribunal’s view, that risk has been reduced by the Applicant’s present circumstances, incarceration, engagement in programs and counselling and the knowledge that his visa may be cancelled and the family unit would break up if he was to commit any other offence.
Nevertheless, the Tribunal does not consider the risk to be negligible or non-existent. This is because, firstly, many or all of the protective factors (such as the support of his partner and others in the community, employment, friendships, etc) had been present before when the Applicant engaged in the offensive conduct. The presence of such factors on their own will not preclude the Applicant, in the Tribunal’s view, from reoffending. Secondly, and this is significant for the Tribunal, the Tribunal has formed the view that the Applicant has not been truthful in outlining the reasons for his engagement in the offending conduct and that he had been opportunistic in his explanations. The Applicant consistently claimed earlier that he engaged in the offending conduct at the behest of his uncle as he was concerned for his mother’s safety and well-being. He also suggested in 2021 that he was motivated by greed but later continued to blame his uncle. The Applicant’s evidence to the Tribunal is different again, as the Applicant suggested that he engaged in offending conduct due to greed. As noted above, the Tribunal is not convinced that the Applicant has been entirely truthful in his dealings with various counsellors and in oral evidence Ms Galloway conceded that these factors may be relevant to the assessment of the risk of reoffending.
The Tribunal notes that if the Applicant’s claims to have been acting “under the influence” of his uncle and out of concerned for the safety of his mother are true, the Applicant has not satisfied the Tribunal that similar circumstances will not be repeated in the future. If the Applicant acted out of greed, as he now suggests, such motivation may also continue to be present.
The Tribunal finds that there is a low risk of reoffending but has formed the view that that some degree of risk remains, and it is not a negligible risk.
The Tribunal has found that, should the Applicant reoffend, there may be significant harm to the Australian community. The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
There is no evidence that the Applicant had committed family violence. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant has been residing in Australia since 2011. He did not arrive as a young child. There is no evidence to indicate that the Applicant began offending soon after arriving in Australia. The Tribunal accepts that the Applicant may have contributed to the community through his past employment.
The Applicant’s partner and child reside in Australia and are Australian citizens. His partner’s family also resides in Australia and there is evidence to indicate that the Applicant has provided some care to his mother-in-law.
The Tribunal has had regard to the statement from the Applicant’s partner Ms FM. She refers to her past pregnancies and miscarriages, stating that having the Applicant away from her and her family has had a negative impact on them. She refers to daily stress and anxiety due to his visa status. Ms FM states that she has minimal support. She states that the Applicant would be a good father, he is remorseful and ashamed of his past wrong action. He would support the family. Ms FM states that she would not be able to raise their child alone without the Applicant’s support and could not live separately from him. She refers to the couple’s desire to have more children, stating that they would both be devastated if this was not possible. Ms FM states that the Applicant would be at risk of a death penalty for a drug offence in Iran. The Applicant provided to the delegate some media reports concerning the situation in Iran, as well as a copy of a media report relating to the Applicant himself. (The Tribunal is mindful that as a person who is the subject of a protection finding, the Applicant cannot be returned to Iran.) In another statement, Ms FM describes the Applicant’s upbringing and family circumstances and her own relationship with him.
In her statement dated 7 November 2024, Ms FM, refers to the family’s past attempts to have a child and the future plan to have two more children. She states that she needs the support of the Applicant and will also support him in the community. There are before the Tribunal medical certificates relating to Ms FM and other medical records.
Ms FM provided a further declaration to the Tribunal sworn on 11 December 2024 outlining her life at home with the Applicant and the support he provides to her and her mother who is unwell. Ms FM refers to the family’s plans to have another child. She also refers to the psychological help that the Applicant will require. The Applicant also provided a declaration sworn on 11 December 2024 referring to his support for his family and the devastating effect the separation would have on him. The Applicant refers to his PTSD, anxiety and depression and his ongoing treatment by a psychologist.
Ms FM gave oral evidence to the Tribunal. She told the Tribunal that she believed the Applicant committed the crimes because he was ‘under influence’ and later motivated by greed. She felt upset and betrayed by his behaviour. Ms FM said that she feels confident her husband will not reoffend as he would otherwise lose his family as she has no intention of leaving Australia.
There is before the Tribunal a psychological report by Mr Massoud Amani dated 20 May 2024 in relation to FM. Ms Amani states that the prognosis of FM’s recovery and the safety of her baby is linked to the outcome of her husband’s visa status. The Tribunal accepts the evidence of FM and other information and accepts that the decision not to revoke the cancellation of the Applicant’s visa may have a significant detrimental effect on Ms FM.
The Tribunal accepts that the Applicant has strong family, social, employment and other ties in this country. This factor weighs in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has a child, born in August 2024 and the evidence before the Tribunal is that the Applicant and his partner plan to have more children and intend to seek fertility treatment in the immediate future. The Tribunal accepts that the Applicant has a minor child and has played a parental role in relation to that child since his release. The Tribunal accepts that it is in this child’s best interests to maintain that relationship with the Applicant.
In his revocation request the Applicant also refers to nieces and nephews, aged around 7 and 5, and states that his absence has negatively impacted the children who are missing his presence in their lives. The Applicant states that he wants to be home and support these children in every way. There is some evidence before the Tribunal about the Applicant’s interactions with these children, however, there is nothing to suggest the Applicant had any parental responsibilities in relation to these children or, indeed, that he had a meaningful relationship with them. The Tribunal is not satisfied that the best interests of these children would be adversely affected if the Applicant’s visa remains cancelled.
The Tribunal has formed the view that the cancellation of the visa would be contrary to the best interest of the Applicant’s child. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
‘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 the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[3] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]
[3] [2019] FCAFC 185 (‘FYBR’).
[4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52], the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community.
The Tribunal has formed the view that, given the seriousness of the Applicant’s conduct, the community expectations weigh very heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) 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 in the circumstances specified in that section, 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 noncitizen…
In his revocation request the Applicant states that he fears going back to his birth country as he has been ordered to serve 4 years in jail and receive 80 lashes (he told the Tribunal it was one year rather than 4 years) and he ran away and risked his life to come to Australia. The Applicant states that due to his position and circumstances of leaving Iran and due to the media coverage of his case, he would face death by hanging. (He provided a copy of the media article from Daily Mail which referred to his offending.)
The Applicant is a person who is covered by a protection finding. That means that the Applicant may not be removed from Australia to his home country. If the Applicant is an unlawful non-citizen, he may be subject to detention. However, the High Court ruled in NZYQ [2023] HCA 37 that immigration detention becomes unlawful once the point has been reached that there is no real prospect of a detainee’s removal becoming practicable in the reasonably foreseeable future. As such, the Applicant is unlikely to face indefinite detention.
The Applicant provided to the Tribunal evidence that he has been released on parole on 18 November 2024 and was granted a Class WR Bridging R visa which came into effect on 18 November 2024. That is, the Applicant is not in detention while his Bridging visa remains in effect. The Applicant refers to stringent reporting and other conditions of his Bridging visa. The conditions of the Applicant’s release would be subject to the high Court’s findings in YBFZ v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 40.
The Migration Amendment Act (Cth) 2024 and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 provide that a BVR may cease to be in effect once a mandatory notice is given to a visa holder by the Minister that s. 76AAA applies to the visa holder. This may occur where permission by a third country for the BVR holder to enter and remain in that country. This would provide a removal pathway for non-citizens such as the Applicant and would require the Applicant to cooperate with efforts to ensure his prompt and lawful removal. The Applicant may face a mandatory sentence of imprisonment if he does not cooperate with the Minister’s direction. That means that there is a possibility that the Applicant might be removed to a third country and would have to comply with the directions of the Minister to facilitate his removal, or face imprisonment.
Should the Applicant be removed to another country, the Tribunal accepts that this may cause considerable hardship to the Applicant and his partner and child, if such removal would result in the separation of the Applicant from his immediate family in Australia. Ms FM’s evidence to the Tribunal is that she has no intention to leave Australia. The Tribunal also accepts that the possibility of future removal and the uncertainty associated with such a possibility may themselves cause hardship. These matters weigh in favour of revocation.
If the Applicant’s visa is cancelled, and if he remains in Australia as a holder of a bridging visa, the Applicant will also lose the entitlements he may have acquired as a permanent resident. These include the opportunity acquire Australian citizenship.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
As the Applicant is the subject of a protection finding, he may not be removed to his home country. That is, irrespective of the present decision, there is no prospect of the Applicant being removed to his home country unless he consents to such removal. The issues relating to the possibility of the Applicant being removed to another country are addressed elsewhere.

The Tribunal finds that this consideration is neutral.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence that if the Applicant cannot remain in Australia, this would significantly compromise the delivery of a major project or important service in Australia. This consideration is neutral.
OTHER MATTERS
As noted above in relation to the legal consequences of removal, there is a possibility of the Applicant being removed to a third country. The Tribunal has determined that the Applicant cannot be removed to his home country as he is the subject of a protection finding. However, the Tribunal has considered the consequences of the Applicant being removed to another country.
The Applicant is 33 years of age. He claims to have suffered from PTSD, alcohol use disorder (in remission) and, in the past, depression. In his revocation request the Applicant states that he has no home but Australia and no family other than his current [family]. The Applicant states that he cannot manage his life outside of Australia as he only knows and trusts Australia to live peacefully and free from fear and danger. He cannot return to Iran. The Applicant states that Australia is his home. As noted above, the Tribunal is of the view that there is no possibility of the Applicant being removed to Iran (other than through voluntary return).
The Applicant’s partner, Ms FM, resides in Australia. In his revocation request the Applicant stated that he has known her since 2013 and their plan is to start a family. The Applicant states that a negative decision would impact his wife ‘severely mentally and emotionally’, and he refers to his wife’s miscarriages due to “distress of this matter”. The Applicant submits that he may be removed to another country where he does not know the language and knows no one and he could be removed without his partner and child. The Applicant has other relatives in Australia, including his wife’s parents and siblings.
In oral evidence the Applicant spoke about the family’s financial commitments and his desire to be present in his son’s life. The Applicant does not seem to claim that his partner is financially dependent on him.
The Respondent submits that the applicant will be able to remain in the community irrespective of the Tribunal’s decision, and that it is not for this Tribunal to anticipate what the government’s actions might be in the future. The Tribunal accepts that the applicant is able to remain in the community for what is likely to be foreseeable future. However, with the passage of the legislation that would enable the removal of the applicant, the possibility of future removal is real and is a relevant consideration.
The Tribunal accepts, as is noted above, that considerable hardship could be caused to the family if the Applicant is removed to another country, particularly as it may lead to potentially permanent separation from his partner and child, noting Ms FM’s evidence that she has no intention of leaving Australia. Alternatively, there is a possibility of imprisonment if the Applicant does not comply with the Minister’s direction or does not cooperate. In the Tribunal’s view, these factors weigh in favour of the revocation.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant has committed a serious offence as reflected in the significant custodial sentence. The Tribunal accepts that the Applicant had taken steps towards rehabilitation, and that he has strong protective factors, but the Tribunal has formed the view that there remains a risk, albeit a low risk, of the Applicant reoffending in the future. There could be a significant detriment to the community if the Applicant did commit further offending. The Tribunal finds that these factors, as well as the expectation of the community, weigh heavily in favour of the cancellation.
The Tribunal has formed the view that it is in the best interests of the Applicant’s minor child that the cancellation is revoked, noting that the Applicant is actively involved in the caring for the child and plays a parental role. This consideration weighs heavily in favour of the revocation.
The Tribunal has found that the Applicant has extensive ties to Australia, most significantly his Australian citizen partner and young child. He has other family members in this country and has formed close relationships with them. The Tribunal accepts that the Applicant’s family, social and employment ties weigh somewhat in favour of the revocation.
The Applicant has not committed family violence. He will not be removed to his home country so there would not be an impediment in relation to that. There is no impact on an Australian business. These considerations are neutral.
The Tribunal accepts that there may be significant legal consequences to the decision not to revoke the cancellation, as there is a possibility that the Applicant may be removed to a third country and thus be separated from his wife and child. Whether or not these arrangements can be made in the foreseeable future, or at all, the Tribunal is of the view that the possibility and the uncertainty of the process may on their own cause hardship to the Applicant and the family. The Tribunal has also formed the view that considerable hardship could be caused to the Applicant’s partner if the Applicant’s visa remains cancelled, given the possibility of her, and the young child’s, separation from the Applicant. These factors weigh in favour of the revocation.
Having carefully considered all the evidence, and in the particular circumstances of this case, the Tribunal has decided to give greatest weight to the primary consideration of the best interest of the Australian child, and the other considerations such as the extent of the Applicant’s ties to Australia and the legal consequences of the decision. In the particular circumstances of this case, the Tribunal has decided to give these considerations greater weight than to other considerations.
In reaching this conclusion the Tribunal acknowledges the submission of the Respondent that, irrespective of the outcome of this review, the Applicant will be able to remain in the community in the foreseeable future. The Tribunal is of the view, however, that with the recent legislative amendments, the intention of which is to facilitate the removal from Australia of persons such as the applicant,[5] there is a real possibility that in the future, arrangements may be made to remove the Applicant to another country. It is not possible to determine whether that will take place and, if so, how long the Applicant may remain the community. The fact that there is a possibility of the Applicant’s removal and thus separation from his family in the future, and the uncertainty of that future while the Applicant does remain in the community, are factors that weigh in favour of the revocation.
[5] Migration Amendment (Removal and Other Measures) Bill 2024.
The Tribunal has decided that the cancellation of the Applicant’s visa should be revoked.
DECISION
The Tribunal sets aside the decision not to revoke the cancellation of the Applicant’s Class BB Five Year (Resident Return) (Permanent) visa and in substitution, decides that the cancellation of the visa is revoked.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for the decision herein of Senior Member Raif.

............................[Sgnd]...................................
Associate

Date(s) of hearing: 18 and 19 December 2024

Solicitors for the Applicant: A. Battisson, Heretic Law

Solicitors for the Respondent: M. Gao, HWL Ebsworth

Date(s) of hearing:	18 and 19 December 2024
Solicitors for the Applicant:	A. Battisson, Heretic Law
Solicitors for the Respondent:	M. Gao, HWL Ebsworth