Manu and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1850

Manu and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1850 (6 June 2025)
Applicant:Andrew Steven Manu
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/2491

Tribunal:  General Member T Eteuati
Place:Brisbane
Date of decision:                 6 June 2025
Reasons for decision:        19 September 2025
Decision:The reviewable decision is affirmed.

Statement made on 19 September 2025 at 12:20pm

Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 - Tribunal finding there is not another reason to revoke the mandatory cancellation decision - Reviewable decision affirmed
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons

This is an application by Andrew Steven Manu (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 13 March 2025 to refuse to revoke, under section 501CA(4) of the Migration Act 1958(Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category visa.
The Applicant, a New Zealand citizen, began residing in Australia as a 9-year-old in 2005. He has resided in Australia for about 18 of the 20 years since, with his most noticeable absence of almost 2 years between August 2017 and May 2019. The Applicant last entered Australia on 25 May 2019 and was granted a Class TY Subclass 444 on that occasion. That visa was mandatorily cancelled on 30 November 2023.
The Applicant’s was found guilty of two minor offences in 2017 for which no conviction was recorded, and I place no weight on these offences.
On 15 October 2021, the Applicant was convicted of assaults occasioning bodily harm and sentenced to 9 months imprisonment.
On 21 October 2021, the Applicant was then convicted of possess property suspected of having been used in connection with the commission of a drug offence and not further punished.
Finally, on 13 October 2023, the Applicant was convicted of attempted robbery – use/threaten violence armed/pretends to be armed or in company whilst armed with actual violence and sentenced to 4 years imprisonment.
On 30 November 2023, while the Applicant was still in prison, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of over 12 months and was serving a full-time term of imprisonment.
On 22 December 2023, the Applicant sought that the cancellation decision be revoked.
On 13 March 2025, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa and the Applicant was notified of that decision on 14 March 2025.
On 21 March 2025, the Applicant applied to the Administrative Review Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 29 and 30 May 2025. On 6 June 2025 , the Tribunal handed down its decision affirming the reviewable decision. Following are the reasons for that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(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.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a) Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test.
The weight of authority is that there is no discretion, in the strict sense, residual or otherwise, to be exercised in determining whether to revoke the cancellation of a visa under section 501CA: see discussion of the relevant authorities including Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 by O’Sullivan J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315.[1] Rather, as North ACJ stated in Gaspar v Minister for Immigration and Border Protection(2016) 153 ALD 337 at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
[1] Cf comments of Derrington J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315 at [55] to [61].
In Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548, Collier J (with whom Logan and Murphy JJ agreed) agreed with this interpretation of section 501CA(4) adding at [32]:
I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and the documents tendered into evidence by the Respondent. The evidence contained in these documents is discussed throughout this decision. The Tribunal has also carefully considered all of the evidence given at the hearing of the matter on 29 and 30 May 2025. The Tribunal has also reviewed the audio recording of the hearing.
DOES THE APPLICANT PASS THE CHARACTER TEST
Section 501(6) relevantly provides:
(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)); or
...
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
...
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission criminal history report for the Applicant dated 6 December 2023 shows the following convictions for the Applicant:

Date

Court

Offence

Sentence

13 October 2023

Southport District Court

Attempted robbery-use/ threaten violence armed/ pretends to be armed or in company while armed with actual violence (on 17/11/2022)

Conviction recorded: 4 years Imprisonment suspended for 4 years after serving 14 months imprisonment.

21 October 2021

Brisbane Magistrates Court

Possess property suspected of having been used in connection with the commission of a drug offence (on 22/08/2021)

Conviction recorded: not further punished

15 October 2021

Richland’s Magistrates Court

Assaults occasioning bodily harm (on 23/09/2021)

Conviction recorded nine months imprisonment

As the Applicant has been sentenced to a term of imprisonment of at least 12 months on 13 October 2023, the Applicant does not pass the character test.
Is there another reason to revoke the mandatory cancellation of the Applicant’s visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act, the Tribunal must comply with a direction made under section 499(1) of the Act: section 499(2A) of the Act. The relevant direction is Direction 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110 or the Direction).
The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five primary considerations:
(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.
Paragraph 9 of the Direction provides for other considerations and sets out the following non exhaustive list of other considerations:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of the Direction provides:
(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.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of the direction provides:
When considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction provides:
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
When considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The nature and seriousness of the Applicant’s conduct
The Applicant’s most serious offence was committed on 17 November 2022. The sentencing remarks of Judge Rosengren in sentencing the Applicant on 13 October 2023 contain the following passages which describe the nature and seriousness of the Applicant’s conduct on that day and for his previous violent offence for which he was sentenced on 15 October 2021:
In short, one of the complainants was the manager of a fish and chip store at Coomera called Fish on Finnegan, and the other complainant was working there. On the evening of the 17th of December 2022, they were both working with two others. The store had closed at 8 pm, but the side door was still open.
One of the other workers was counting the cash in the register while another worker had taken the rubbish out. The worker was mopping the floor while the manager was completing his checklist, the two of you entered through the side door. You walked to the back where the manager was standing. You both had hoods covering your heads, although your faces were not covered. [co-offender], you were also wearing a bum bag over your shoulder. When it was pointed out to you the obvious and that is that the store was closed, you both pushed the manager backwards and demanded to know where the safe was. When he told you that there was not one, [co-offender], you pulled a gun out from your bum bag and you held it to your side.
One of you asked the manager whether he was Japanese and when he said no, one of you punched him to the face causing his glasses to fly off to the floor. [Co-offender], you noticed a security camera which you ripped off and threw on the ground. When the worker tried to run from the store, Mr Manu, you told her to stop and you pointed with your hand and told her to go back to the corner. You then punched the manager to the face, causing him to stumble back onto a bench. You then motioned for the worker to move further back into the store before continuing to demand money from the manager.
[Co-offender], you then punched the manager with your left fist while the gun was in your hand. He fell backwards into some milk crates, and it is then, Mr Manu, that you picked up one of the milk crates hitting the manager to the back of his head.
[Co-offender], you spoke to him again before punching him to the face again, and, Mr Manu, you then punched him to the face another two times and also to his body causing him to stumble onto some nearby trolleys.
One of the workers eventually went outside and called the police. [Co-offender], you then asked the worker if she was Japanese, but she did not speak English. As you were walking out, you grabbed the iPhone off the counter and Mr Manu, you were ripping supplies off the shelves and you were throwing furniture around the store.
The manager ended up with swelling and bruising to his face and a laceration to the back of his head, which was glued. About 10 minutes after the offending you were pulled up in a vehicle you were travelling in. It was then that you were searched, [co-offender], and the police found an MDMA tablet, a glass vial containing 14.461 grams of GBL in a syringe. These are the subject of the summary charges. And the gun was located and found to be a gel blaster.
The maximum penalty for count 1 is 14 years’ imprisonment, which shows how seriously the community through Parliament regards such offending. The sentence that is imposed upon both of you must punish you in ways that is just in the circumstances. It must be proportionate to your offending and deter you and others from committing this sort of offence and make it clear that the community acting through the Courts absolutely denounces this sort of conduct. Given that the offence involved the use of violence that resulted in physical harm, the principle that imprisonment is a last resort does not apply.
I have read the victim impact statement, which has been tendered as exhibit 6. The poor lady. She talks of the fact that your offending meant that she could not keep working at the fish and chip shop. This meant that she had a period out of work. She can no longer work at night. She does not feel secure. She finds it difficult to go anywhere alone and sometimes she has nightmares and she feels severely anxious.
Issues of parity arise. As between you, there is some disparity in terms of your culpability. [co-offender], you, of course, were holding the gun. Otherwise, your offending is indistinguishable. [Co-offender], you ripped the security camera off. You punched the manager multiple times to his face, took the iPhone as you were leaving and that, of course, has never been found. Mr Manu, you were directing the worker where to stand. You were demanding money. You also punched the manager to the face multiple times and you hit him over the back of the head with a milk crate. As you were leaving, you were ripping supplies off the shelves and throwing furniture around the shop.
Both of you have deportation issues. There is no dispute that the head sentence ought to be greater than 12 months. You, therefore, face deportation at the conclusion of your period of imprisonment unless you are able to get a revocation of the Minister’s decision cancelling your visa. You could then be held in immigration detention for an unknown period pending the outcome of any such application. The fact that you have both been living here since your young ages and your extensive family support here means that deportation will be a hardship for you. This does not mean that the sentence should be lessened for the purpose of defeating, avoiding or circumventing the operation of the provisions of the Migration Act, but I do consider it to be a relevant factor to be considered in mitigation here. It will make your time in custody for both of you more onerous and it may well deprive you of the opportunity to permanently reside in Australia.
…
Thank you. Mr Manu, you were 27 at the time; you are 28 now.
You have a criminal history. It is limited to the three entries. Most relevantly, on the 15th of October 2021, you were sentenced to imprisonment for nine months for an assault occasioning bodily harm committed in September 2021. I am told that this arose out of a neighbourhood dispute. There had been a previous incident involving the complainant and your mother. They were neighbours. The complainant walked to the fence on this occasion to return some balls. You were being abusive. The complainant then referred to the previous incident. You thought it was being disrespectful to your mother, so in response, you jumped the fence and you punched the complainant causing facial fractures. You made admissions to the police. You were released on parole after three months, so that order expired about six months before you committed this offending.

There is no doubt that this offending is the type of violent offending that is considered very serious by the Australian Government and the Australian community under the Direction and I have found that the violent conduct of the Applicant was very serious. The sentences of imprisonment for these offences are also indicative of the seriousness of the offences.
I note that I also considered the applicant’s offence for which he was convicted on 21 October 2021 and not further punished. This offence was much less serious and the Tribunal is prepared to give this offence no weight.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
39.Paragraph 8.1.2(2) of Direction 110 provides:
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
The Applicant provided a report from a psychologist. 5 May 2025. The report relevantly concluded:
There are some key areas of risk – namely risk of relapse, negative social influence, poor mental health and or emotional dysregulation and or inadequate coping. Relapse to drug use is most likely to occur if Mr Manu starts associating with others who are a negative influence (either people he used drugs with previously or others he encounters); or fails to utilize adaptive coping mechanisms to face the inevitable stressors (e.g. adjustment back to community, finding and keeping employment, coping with his mother’s deteriorating health, managing money and various life challenges).
If Mr Manu effectively manages re-entry to community by ensuring that he has continuity in his rehabilitation and care (particularly smooth transition of the OST and programs such as Smart Recovery), maintains his prosocial support and continues to use newly learnt strategies to cope with his emotions, then the risk is relatively low.
At the hearing the psychologist was asked whether the Applicant’s risk of reoffending remained low if he did not effectively manage re-entry to community by ensuring that he had continuity in his rehabilitation and care, maintained his prosocial support and continued to use newly learnt strategies to cope with his emotions. The psychologist said that the Applicant’s risk of re-offending if he did not do these things was moderate and could be high. She indicated that the central factor determining the Applicant’s risk of re-offending was whether he returned to drug use. If he returned to drug use, his risk of re-offending was at least moderate. The psychologist could not say definitively whether she considered either path was more likely.
I note that the psychologist had before her almost all of the material that I have by the time she gave evidence before the Tribunal and appears to have considered almost all of the significant evidence which is relevant to the Applicant’s risk of re-offending (the obvious exception being the other oral evidence given during the hearing). That evidence included the evidence of rehabilitative courses the Applicant had taken and other rehabilitative steps the Applicant had taken.
I accept the psychologist’s findings as outlined above. I do so after considering all the evidence before me including evidence of rehabilitative steps and courses the Applicant has taken and the evidence of witnesses.
In closing submissions, the Applicant’s representative submitted that much turned on whether the Applicant undertook the steps which the psychologist had indicated would lead to a relatively low risk of reoffending, or returned to drug use which psychologist had indicated would lead to a moderate or perhaps even high risk of reoffending. I accept that submission which was, in effect, a summary of the conclusion which the psychologist explained at the hearing. The difficulty in this case, is that although pressed on the issue, the psychologist could not provide an answer as to whether one or the other path was more likely for the Applicant.
The evidence before the Tribunal is that, at present, the Applicant has not organised appointments with medical professionals or counsellors to assist with his mental health and rehabilitation. His plan is to return to live with his father and in Inala. His father was said to have contributed significantly in the past to the Applicant’s poor mental health and Inala is the area where Mr Munn had previously lived and where he had previously formed negative associations including near where he had purchased drugs. In addition, as the psychologist said he would face inevitable stressors of adjustment back to the community, finding and keeping employment and coping with his mother’s deteriorating health.
In those circumstances, my view is that there remains a real risk that the Applicant will return to drug use and therefore at least a moderate risk that he will reoffend.
I note that even if I had accepted that the Applicant only presented a relatively low risk of reoffending, given the serious violent nature of the Applicant’s offending, I would have still considered a relatively low risk is a real risk. After considering all of the considerations and coming to a conclusion on the basis that the Applicant presented at least a moderate risk of reoffending, I went through the same exercise on the assumption that my finding was that the Applicant presented a low risk of reoffending and arrived at the same overall result.
I find that this primary consideration weighs very heavily against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The Tribunal places no weight on this consideration as it is accepted that it is not relevant in this case.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) 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.
Paragraph 8.3(2) provides that in considering the strength, nature and duration of any other ties a non-citizen has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community during that time.
(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 strong and long-standing ties to Australia having arrived in Australia in 2004 at the age of nine years. His parents, two brothers and sister live in Australia as do his brothers’ wives and their children. The Applicant also has many extended family members and friends in Australia. The Tribunal considered all statements and oral evidence from the Applicant’s family, friends and acquaintances. The Applicant has repeatedly placed emphasis on the impact to his terminally ill mother if he were removed from Australia. In one such statement he stated:
A refusal decision would devastate my family. The impact would be profound, especially on my immediate family—my mother in particular. I am not just a son to her; I am her physical and emotional support; the person she relies on daily.
If I were released, I would be her full-time carer, ensuring she gets the medical attention, comfort, and dignity she deserves in her final years. Without me, she will suffer—not just physically, but emotionally. She constantly asks for me, and the thought of her enduring this struggle alone fills me with unbearable guilt and shame.
As a family man, a protector, and a provider, my presence is essential to those who love me. My removal would not just punish me—it would deeply wound my family and friends, leaving them without the support I have always given.
The weight of knowing that my actions have put them in this painful situation is something I carry with immense remorse. I only ask for the chance to be there for them, to make amends, and to fulfill my duty as a son, a brother, and a loved one.
The Applicant provided the following specifically regarding his mother:
The Applicant’s close and special relationship with his mother was also confirmed in the evidence heard by the Tribunal at the hearing.
The Tribunal has considered the Applicant’s extensive employment history including working as a store person, a labourer and a forklift operator.
The Tribunal has also considered the Applicant’s community involvement including his volunteering for Salvation Army, his involvement with religious institutions and involvement with sports especially with rugby where he played at a representative level.
The Tribunal finds that many Australians, Australian permanent residents and those with a right to remain in Australia indefinitely would be greatly negatively impacted if the Applicant were removed permanently from Australia. Most obviously and greatly impacted would be the Applicant’s family members, and in particular his ailing mother. The Tribunal notes that owing to the Applicant’s detention and incarceration in recent years his ability to spend in-person time with his mother and other family members has been severely limited, as has the assistance that he has been able to provide his mother and other family members. At least since his imprisonment in 2022, other family members have, and continue to care for the Applicant’s mother.
The Tribunal has no doubt that the Applicant’s family, especially his mother, his friends and his acquaintances will be very upset by the Applicant’s permanent absence from Australia. For many of them, including his ailing mother, it will mean the end of any in-person contact with the Applicant. The Tribunal accepts that while the Applicant could continue to have meaningful contact with his family in Australia by electronic means but accepts that this is a poor substitute for in-person contact.
The Tribunal has also, considered the hardship to the Applicant of a non-revocation decision, including his permanent separation from Australia and his family and friends here.
The Tribunal accepts that the Applicant has spent much time contributing positively to Australia through his work and community involvement and has deep ties to Australia forged since he arrived in Australia as an 9-year-old child.
The Tribunal considers that this primary consideration weighs heavily in favour of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration necessitates a determination to be made about whether non-revocation under section 501CA is, or is not, in the best interests of each child under the age of 18 in Australia affected by the decision.
In considering the best interests of a child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. 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);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant does not have any children of his own.
The Applicant has five nephews and four nieces. Five of the Applicant’s nieces and nephews are the children of his elder Brother A. They are
·     a 15-year-old boy;
·     a 12-year-old girl;
·     a 4-year-old girl;
·     a 2 year-old boy and ;
·     a boy under a year old.
The remaining four nieces and nephews are the children of his elder Brother B. They are
·     an 8 year-old girl
·     a 7 year-old boy
·      a 4 boy; and
·     a 2 year old girl
It should be noted at this point that the Applicant has been in prison or immigration detention since 2022 and was also living outside of Australia, in New Zealand for about two years between 2017 and 2019. Thus, he has not been in the community in Australia for five of the last eight years.
The Applicant stated that he was particularly close to the elder two children of both Brothers A and B. He said that with the eldest two children for Brother A, they had come with their mother to live with the Applicant and his parents for a period of around two years when brother A was imprisoned in the late 2000s. The Applicant also indicated that Brother A had some physical impairments which meant that he had limited ability to undertake physical activities with his children. The Applicant indicated that as a result he would take the elder two children to the park and to sporting events. He indicated that he was particularly close to Brother A’s eldest boy who he would mentor especially in regards to rugby given the Applicant’s experience and talent with that sport. The Applicant indicated that he had some involvement with Brother A’s third child, a four-year-old girl, but less so with the youngest two children. The Tribunal also heard from the mother of Brother A’s children, who confirmed that the Applicant was particularly close with her eldest two children and that each of her children will be negatively affected if the Applicant was permanently absent from Australia.
The Applicant indicated that he was also close with Brother B’s children especially the eldest two, as they had spent much time visiting with the Applicant’s parents where the applicant had resided. The Applicant indicated that this was because the eldest two children were named after his mother and his father respectively. The Tribunal also heard from Brother B who confirmed that the Applicant was close with his children.
In a written statement by the Applicant he stated:
If I am deported, the impact on my nephew and three nieces will be profound and heartbreaking. These children have grown up with me as a constant presence in their lives—more than just an uncle, I have been a role model, a protector, and a source of love and guidance since the day they were born. They look up to me, not just as family but as someone they trust and rely on.
I have been there for every milestone—helping with school, cheering them on in their activities, teaching them life lessons, and simply being the person they can turn to for support, encouragement, and comfort. I have shared in their joys and wiped away their tears. To them, I am more than just an uncle; I am a safe space, a role model, and someone who makes them feel loved and valued.
If I am forced to leave, they will be left with a painful void that cannot be filled. The loss of a loved one, especially at their young age, can leave emotional scars that last a lifetime.
I fear what my absence will mean for their sense of stability and emotional well-being. I have always tried to set an example for them—to teach them the importance of family, resilience, and love.
The thought of not being able to see them grow, to celebrate their achievements, to guide them through life, is unbearable. I want to be there for them—to continue to support them, to help shape them into strong, kind, and confident individuals. Losing me would not only break my heart but would deeply affect their lives in ways I can’t even begin to measure.
The Tribunal accepts that the Applicant has a non-parental relationship with each of his nieces and nephews. The Tribunal accepts that the relationship between the Applicant and each of the elder two children of brother A and B is a strong non-parental relationship.
The Applicant also has a close childhood friend who has five children including a goddaughter who is eight years old. These children have been living in New South Wales and it had limited contact with the Applicant. The Applicant’s friend indicated that although the children know that the Applicant is not his biological brother that he calls the Applicant has brother and is very close with the Applicant. The Applicant’s friend indicated that he and the children would be moving back to Brisbane imminently and that the children, and especially the Applicant’s 8-year-old goddaughter are looking forward to further developing their relationship with the Applicant.
While the Tribunal accepts that each of the Applicant’s nieces and nephews could continue to have contact with the Applicant by electronic means as they have while the Applicant has been in immigration detention, the Tribunal accepts that this is no substitute for the possibility of having regular in person contact with the Applicant. The removal of the Applicant from Australia will mean that the Applicant’s nieces and nephews will lose the opportunity to spend regular in-person time with the Applicant in Australia. For the older nieces and nephews this will be more difficult as they will remember having regular in-person contact with the Applicant which they will no longer be able to have. For the younger nieces and nephews in the Applicant’s friend’s children including his goddaughter, it will mean that they will not have the opportunity in the future to further develop an in-person relationship with the Applicant.

The Tribunal accepts that if the Applicant remains in Australia he will have a close non-parental relationship with each of his nieces and nephews and also have a relationship with each of his friend’s 5 children including a godfather/ goddaughter relationship with his goddaughter.
Application of factors appearing at paragraph 8.4(4) of the Direction to the seven relevant minor children
·     Sub-paragraph (a): The Applicant would not play a parental role in relation to any of the children. He has spent more time in person with the elder nieces and nephews as described. There have been prolonged absences as the Applicant has been in prison or immigration detention since 2022 and prior to that was absent from Australia for about 2 years from 2017 to 2019. There was less meaningful contact with the children during periods of absence.
·     Sub-paragraph (b): whether the Applicant will play a positive role in the future, very much depends upon whether the Applicant continues to offend, and the Tribunal has found that there is a real chance that he will continue to offend. If he does not offend, the Tribunal considers that he will play a positive parental role at least until the children turn 18 and there are currently no orders in place which would affect the Applicant’s access to his children.
·     Sub-paragraph (c): there is limited direct evidence of the impact of the Applicant’s conduct on each of the children and nothing which I would place weight on which would weigh against the Applicant. If the Applicant continues to offend, there will be further separation from the children and possible removal from Australia.
·     Sub-paragraph (d): The Applicant has been separated from the children since 2022 and the Tribunal consider that the Applicant and his children will be able to maintain contact through electronic means, but that, of course, is no substitute for real in-person contact.
·     Sub-paragraph (e): Each of the children have their own parents who fufil parental roles for each of them.
·     Sub-paragraph (f): The Tribunal accepts that each of the 2 eldest children of Brother A and B wish for the Applicant to remain in Australia so that they can re-establish an in person relationship with the Applicant.
·     Sub-paragraphs (g) and (h): these paragraphs do not apply directly. The Tribunal has indicated above how the Applicant’s absence from the children’s lives due to his offending has affected each of them.
Paragraph 8.4(1) of the Direction provides:
Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
The Tribunal finds that non-revocation under section 501CA is not in the best interests of each of the Applicant’s 9 nieces and nephews. To a lesser extent the Tribunal finds that non-revocation under section 501CA is not in the best interests of each of the Applicant’s friend’s children including his god-daughter.
The Tribunal places moderate weight on this primary consideration in the Applicant’s favour.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. 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:
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.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) 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.
Most relevantly in the current case, the Applicant breached the statement of Australian community expectations set out in 8.5(1) of the Direction when he failed to obey Australian laws. By engaging in very serious crimes in breach of this expectation, paragraph 8.5(1) expresses the Australian community expectation, as a norm, that Government not allow the Applicant to remain in Australia.
The Tribunal notes that the wording of the Direction does not appear to allow for any subjective evaluation by the Tribunal of what the expectations of the Australian community are. Rather, the Government has provided a statement of policy in relation to community expectations which decision-makers must comply with and consider as a primary consideration.
The weight to be given to this primary consideration is of course a matter for the Tribunal, and I place weight on this consideration primarily by considering the nature and seriousness of the Applicant’s offending which informs severity of the breach of the community expectation to obey the law: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344 per curium at [53] to [64]. I will of course consider the relative weight of all considerations at the conclusion of my decision-making process.
The Tribunal places heavy weight on this primary consideration in favour of non-revocation.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
It may well be, that this other consideration is only strictly relevant where there is a protection finding in an Applicant’s favour or when there is an issue as to whether international non-refoulement obligations are owed in respect of an Applicant. No such issues arise in this case and in that sense, it is not relevant.
However, I have also considered the legal consequences of affirming the non-revocation decision on the Applicant and his family. If the decision is affirmed, it will result in the Applicant remaining an unlawful non-citizen and remaining in immigration detention until he is removed from Australia or regains his visa or in the very unlikely circumstance that he is granted a visa or if circumstances become such that there is no real prospect of removal of the Applicant from Australia becoming practicable in the reasonably foreseeable future (see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005).
The Applicant’s removal from Australia having had his visa cancelled under section 501, will almost inevitably mean that he will never be able to return to Australia (because of the operation of special return criterion 5001 in Schedule 5 to the Migration Regulations 1994). I have considered these legal consequences of affirming the non-revocation decision. I have also considered the practical consequences for the Applicant, his family and others of affirming the decision. I consider that the fact that the Applicant will, in all likelihood, be removed from Australia, never to return to Australia and that he could be detained for some time in immigration detention before removal, weigh in the Applicant’s favour and I give this consideration low weight.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country
The Applicant is 29 years of age and does not have any relevant health conditions other than that he previously had an addiction to illicit drugs including methamphetamine. The Tribunal accepts that having previously been addicted to drugs would present an impediment to establishing himself in New Zealand as there is a real chance that the Applicant could revert to drugtaking and crime with the consequential difficulties which that may entail including to his health and wellbeing and the chance of being imprisoned.
The Applicant was born in New Zealand and lived there until he was 9 years old. There is no evidence that there would be any substantial language or cultural barriers on return to New Zealand.
There is no evidence that the Applicant would not be able to access any government medical or economic support available to other New Zealand citizens.
The Applicant has some extended family members in New Zealand but the evidence before the Tribunal was that those relatives would be not be able to provide any significant support to the Applicant.
The Applicant has been employed for much of his life in Australia including working as a store person, a labourer and a forklift operator. This work experience would assist him in finding and maintaining work in New Zealand.
The Tribunal acknowledges that it would be difficult for the Applicant to re-establish himself in New Zealand and weighs this consideration moderately in his favour.
Other Consideration (c): Impact on Australian business interests
The parties submit that this consideration is not relevant and the Tribunal agrees.
Conclusion: Is there another reason to revoke the cancellation of the Applicant’s visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs very heavily against revocation of visa cancellation. The Tribunal has found that the Applicant’s offending was very serious, that there could be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs heavily against revocation of visa cancellation.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia (and hardship to the Applicant) weighs in favour of revocation of the cancellation decision and attributed heavy weight to this consideration.
The Tribunal has found that the primary consideration of the best interests of minor children, weighs moderately in favour of revocation of the cancellation decision.
The Tribunal has found that while there are no protection issues which arise, the consequences of affirming the decision especially regarding the Applicant’s permanent removal from Australia and possible prolonged detention before that weigh in the Applicant’s favour as does the consideration of the extent of impediments if removed. The former is given low weight and the later moderate weight.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 5.2 of the Direction, I have decided that the primary considerations of the protection of the Australian Community and the expectations of the Australian community outweigh all of the considerations which weigh in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the original decision should be revoked.
The Tribunal has decided to affirm the Minister’s delegate’s decision not to revoke the cancellation of the Applicant’s visa. The Tribunal considers that this is the correct decision in this case.
DECISION
The Tribunal affirms the reviewable decision.

Date of hearing: 29 and 30 May 2025

Solicitor for the Applicant:

Jennifer Samuta

Solicitor for the Respondent:

Samuta McComber Lawyers

Sarah Black
Minter Ellison Lawyers

Date	Court	Offence	Sentence
13 October 2023	Southport District Court	Attempted robbery-use/ threaten violence armed/ pretends to be armed or in company while armed with actual violence (on 17/11/2022)	Conviction recorded: 4 years Imprisonment suspended for 4 years after serving 14 months imprisonment.
21 October 2021	Brisbane Magistrates Court	Possess property suspected of having been used in connection with the commission of a drug offence (on 22/08/2021)	Conviction recorded: not further punished
15 October 2021	Richland’s Magistrates Court	Assaults occasioning bodily harm (on 23/09/2021)	Conviction recorded nine months imprisonment