Martin and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1272
•1 August 2025
Martin and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1272 (1 August 2025)
Applicant:David Ngatokotoru Martin
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3609
Tribunal:General Member R. West
Place:Melbourne
Date:1 August 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 13 May 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.
.................................[SGD].......................................
General Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass the character test – conviction for murder - whether discretion to revoke mandatory cancellation should be exercised – Direction 110 – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Returning Offenders (Management and Information) Act 2015 (New Zealand)Cases
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
SZSS and Minister for Home Affairs (Migration) [2018] AATA 4079
ZTGP and Minister for Home Affairs (Migration) [2018] AATA 3518
R v Way [2004] NSWCCA 131Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Statement of Reasons
This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa (‘the Visa’) under section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The Applicant is a citizen of New Zealand. He first arrived in Australia in March 1988 at the age of eight[1].
[1] G10, 91.
On 12 October 2011, the Applicant was convicted in the Supreme Court of NSW of Murder-SI, Recklessly wound any other person - T1 and Common assault-T2 for which he was sentenced to a terms of imprisonment of 20 years, 2 years and 6 months respectively.
On 7 July 2020, the Applicant’s Visa was cancelled under section 501(3A) of the Act (‘Cancellation Decision’) and the Applicant was notified of the cancellation and invited to make representations about revocation[2].
[2] G6, 64-69.
On 14 July 2020, the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked[3].
[3] G8, 72-75 and G9, 76-90.
On 13 May 2025 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (‘Reviewable Decision’)[4] and notified the Applicant of the decision on 14 May 2025[5].
[4] G2, 16.
[5] G2, 14-15.
On 16 May 2025, the Applicant applied to the Tribunal for review of the Reviewable Decision (‘Application’)[6].
[6] G1, 1-13.
HEARING
The Tribunal conducted a hearing of the Application on 23 July 2025 by video-conference. The Applicant was self-represented. The Respondent was represented by Ms Claire Campbell, a solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G12 and paginated from pages 1 to 124 (‘G Documents’),
(b)documents produced under summons sequentially numbered TB1 to TB3 and paginated from pages 1 to 449 (‘TB Documents’);
(c)a Statement of Facts, Issues, and Contentions produced by the Respondent (‘RSFIC’);
(d)a Statement of Facts, Issues, and Contentions produced by the Applicant (‘ASFIC’);
(e)letters of support tendered by the Applicant from:
i.Joshua Boyd (‘Exhibit A1’);
ii.Lisa Mackett (‘Exhibit A2’);
iii.Malisa Martin (‘Exhibit A3’); and
(f)the oral evidence of the Applicant.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a) the Applicant passes the character test (as defined by section 501); or
(b) there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a ‘substantial criminal record’, which is defined in section 501(7)(c) to include having been ‘sentenced to a term of imprisonment of 12 months or more’.
On 12 October 2011, the Applicant was convicted in the Supreme Court of NSW of Murder-SI, for which he was sentenced to a term of imprisonment of 20 years. As a result, the Applicant has a ‘substantial criminal record’ as defined in section 501(7)(c). He, therefore, fails the character test under section 501(6)(a).
Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked. That reason:
... must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[7]
[7] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [64] per Colvin J.
DIRECTION 110
On 7 June 2024, the Minister issued Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[8]
[8] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [17].
Paragraph 6 of Part 2 of Direction 110 provides that decision-makers must take into account the considerations identified in paragraphs 8 and 9 where relevant to the decision within the framework provided by the principles stated in paragraph 5.2.
Paragraph 8 of Part 2 sets out the 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;
(5) expectations of the Australian community.
Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of Part 2 of Direction 110 requires decision-makers to 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.
Nature and Seriousness of the Applicant’s Conduct to Date
Nature of the Conduct
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 18 May 2020 was included in the G Documents.[9]
[9] G3, 37-40.
The Applicant has an extensive criminal history as an adult beginning in September 1995, including multiple convictions for break and enter in June 2002 for which he was sentenced to 2 years in prison and in August 2003 for which he was sentenced to 6 months in prison.
The Applicant’s most serious offending occurred in October 2007, for which he was convicted on 12 October 2011 of:
a.Murder – SI (20 years imprisonment, minimum parole period of 15 years)
b.Reckless wounding – T1 (2 years imprisonment, minimum parole period of 18 months); and
c.Common assault – T2 (6 months imprisonment).
The circumstances resulting in the Applicant’s convictions on 12 October 2011 were set out in the sentencing remarks of Justice Kirby of the NSW Supreme Court as follows:
In October 2007, David Martin and Lisa Mackett were living together in a rented house in Bateau Bay. They owned a red Ford Telstar motor vehicle. On Saturday 20 October 2007 at 5.00pm or thereabouts, they drove to the Bateau Bay Hotel, entering a large car park attached to the hotel via the Lumby Street gates. They parked their vehicle close to the hotel.
David Martin and Lisa Mackett then spent the evening in the beer garden of the hotel. They met with friends and were described as being in good spirits. During the course of the evening, and especially towards the end of the evening, there were fights inside and outside the hotel. An experienced hotel manager described the hotel as having an "odd feeling", which he ascribed to testosterone. There were significantly more males than females. Neither Luke Hankey nor David Martin was involved in the fighting inside the hotel before the hotel closed at midnight.
Patrons began leaving the hotel shortly before midnight. As recorded on CCTV footage, a brawl erupted approximately five minutes before midnight. At 12.12am, David Martin and Lisa Mackett passed through the exit doors into the car park. Luke Hankey and his group had gone through the same doors approximately three minutes before them.
David Martin said that he and Lisa Mackett had intended to walk home. Their house was only a short distance from the hotel. However, as they entered the car park there was yelling and shouting. There were groups of people. They became concerned that their car might be damaged, were it left over night. They therefore determined that they would drive home. Lisa Mackett occupied the driver's seat, with David Martin as the passenger. The car was driven through the car park towards the Lumby Street gates. People, including Luke Hankey and his group, were walking towards the same gates. The gates provided a shared exit. Members of the group became aware of a car behind them, which they described as being driven erratically.
Ultimately, the path of the car was blocked by pedestrians. Luke Hankey was directly in front of the vehicle when it stopped. He apparently turned his back on the vehicle, putting plant material down his trousers and, as described by his sister, "wiggled his bum".
The horn of the car did not work. The female driver, Lisa Mackett, was heard to yell out, perhaps with expletives: "Get out of the way; you'll get yourself killed". The path of the car, however, remained blocked. Members of the crowd yelled at the occupants of the car.
In these circumstances, David Martin and Lisa Mackett both got out of the vehicle. David Martin picked up a blunt implement as he did so. The implement had a steel shaft at least 10 centimetres in length. The wounds later inflicted by this implement had a star shaped pattern, suggesting that it was probably a Phillips Head screwdriver. David Martin passed behind the vehicle, moving swiftly. He approached a group at the side of the vehicle, which included Beau Janson.
Using the steel implement, he struck Beau Janson twice on the left side of his neck. He inflicted wounds which penetrated the various layers of the skin. Fortunately, however, the wounds were relatively superficial. They did not require suturing. Beau Janson has been left with no residual disability (count 1).
The attack was unprovoked. Beau Janson had neither spoken to David Martin nor made any gestures towards him before the attack. After he was struck, he stumbled as he tried to get away. David Martin then moved towards the front of the vehicle and confronted Luke Hankey. With a thrusting motion, requiring moderate to severe force, he struck Luke Hankey twice in the chest. The blunt implement, on one of these occasions, penetrated eight centimetres through to the heart and aorta. The other wound was relatively superficial. Again the attack was unprovoked. Within a short time, Luke Hankey collapsed. Death followed rapidly (count 2).
David Martin then confronted a third man, Danny Andrews, a member of the group. Danny Andrews backed away, holding both palms up, saying words to the effect: "Go away, I don't want anything to do with you". David Martin then returned to the driver's seat of the vehicle.
As this was happening, Lisa Mackett assaulted Luke Hankey's sister, Eva Hankey, and later Kellie Marshall. She then returned to the vehicle, occupying the passenger seat.
The whole episode took seconds rather than minutes. The vehicle then left at some speed, driven by David Martin. As it drove away, it was attacked by the crowd.
The vehicle, at the time of purchase, had a crack to the windscreen on the driver's side. As it sped off, someone in the crowd threw a blunt metal pole or similar object at the vehicle. It hit the already weakened windscreen, causing a number of additional cracks. The windscreen, however, did not shatter. The damage occasioned to the vehicle was an important aspect of the Crown case, providing a link between the vehicle of David Martin and Lisa Mackett and the incident in the car park.
Having left the hotel, David Martin drove the short distance to Rays Road, a connecting road that ultimately led to his home. The assault, the subject of count 6, occurred in Rays Road a minute or so after they had left the car park. David Withers, the victim of the assault, had spent the evening at the Bateau Bay Hotel. He left the hotel at about midnight. He was significantly affected by alcohol. He and a friend were walking home. Their journey took them along Rays Road. Once in Rays Road, they saw a parked vehicle belonging to a friend. As they crossed the road, approaching their friend's vehicle, the red vehicle of David Martin turned the corner. As it did so, David Withers and his friend were standing in the middle of the road. David Martin slammed on the brakes. He managed to stop the vehicle about two metres from them. As David Withers moved to the side of the road, he wave a wave to the driver of the vehicle, as if to say he was sorry. It was apparent to David Martin that they were very much affected by alcohol.
David Martin got out of his vehicle. He yelled abuse at David Withers and his companion. He then pushed David Withers in the chest and punched him in the right eye. David Withers was thrown back onto the bonnet of his friend's car. However, he was not seriously injured.
Lisa Mackett, meanwhile, slid across to the driver's seat of the vehicle. As she did so, she yelled out: "We need to get out of here, we need to get the fuck out of here, we've got to go". David Martin got back into the vehicle, occupying the passenger seat. The vehicle then drove off[10].
[10] G5, 49-52.
The Applicant plead guilty to the common assault charge and was found guilty of the other two offences after a lengthy trial.
Seriousness of the Conduct
Paragraph 8.1.1(1) of Part 2 of Direction 110 provides a description of what is considered ‘very serious’ and ‘serious’ conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes which are to be regarded as ‘very serious’ and include crimes of violence.
The descriptions of serious crimes given in paragraphs 8.1.1(1) are not exhaustive, and paragraphs 8.1.1(1)(c)-(i) set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the courts for a crime or crimes;
(b)the impact of the offending on victims and their family;
(c)the frequency of the Applicant’s offending; and
(d)the cumulative effect of any repeated offending.
The Applicant’s overall offending involved frequent criminal conduct with the serious offences committed in October 2007 representing an escalation in the nature of the offences.
Justice Kirby accepted that the offence of reckless wounding should be characterised for sentencing purposes as well below the mid-range and described the common assault as an aggressive burst of anger, which fortunately had no lasting consequences. His Honour described the seriousness of the Applicant’s murder offence stating:
…murder involves the felonious taking of a human life. It violates the sanctity of human life, which is the foundation of our community. It is the most serious crime in the criminal calendar….Here, the stabbing of Luke Hankey was a brutal and senseless act. Mr Hankey was a much-loved young man of great promise. His murder not only extinguished his young life but substantially robbed his family of their peace of mind and happiness. His mother and his partner, Ms Kellie Marshall, read victim impact statements (exhibits B and C). Each was a poignant reminder of the heart-ache and endless pain occasioned by Luke Hankey's death[11].
[11] G5, 59-60.
A clear indicator of the seriousness of the Applicant’s offending is that he received an aggregate sentence of 22 years and 6 months for the three offences. Custodial sentences reflect the objective seriousness of the offences involved and are generally a last resort in the sentencing hierarchy[12].
[12] See PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 at [46]; Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63]; see also BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023) at [80].
Having regard to these matters, the Tribunal is satisfied that the Applicant’s past criminal conduct was very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Paragraph 8.1.2(2) of Part 2 of Direction 110 requires the decision-maker, in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, to have regard, cumulatively, to:
(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 available information and evidence on the risk of the applicant reoffending.
Nature of the Harm
The offending for which the Applicant was convicted on 12 October 2011 was very serious, particularly murder, which had fatal consequences for the murder victim and physical and emotional consequences for the other victims. In addition, the offending caused emotional and psychological harm to members of the victims’ families and others involved. His earlier convictions for break and enter offences were also serious and inflicted financial harm on members of the Australian community.
If the Applicant were to engage in further criminal or other serious conduct of the kind for which he was convicted, and especially those on 12 October 2011, he would risk inflicting significant and possible life-threatening physical, psychological and financial harm on members of the Australian community.
Likelihood of reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court of the Federal Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future ‘must be based on a logical process of reasoning based on the known facts’.[13]
[13] (2022) 293 FCR 634 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5.
In sentencing the Applicant Justice Kirby had regard to a psychological assessment presented to the Court by a psychologist Dr Katie Seidler. In referring to that report His Honour noted:
a.The Applicant’s parents separated and he moved to Australia with his mother. The Applicant was largely estranged from his father and had no contact with his New Zealand family. The Applicant’s mother suffered from schizophrenia and agoraphobia. The Applicant’s childhood was described as difficult and likely traumatic.
b.The Applicant began using drugs and alcohol from an early age, perhaps 11 or 12 years. He did not complete year 9 at school and at the age of 15 ran away from home, initially sleeping in abandoned trains and later lived in shared rental accommodation. Since leaving school he had worked only occasionally and supported himself on social security benefits.
c.The Applicant began committing crimes in 1992 and was dealt with by the Children’s Court. He was arrested in 2001 and charged with breaking and entering offences, a manifestation of his continuing drug use, and placed on a two-year bond. He was again arrested in 2002 and convicted of offences of break and enter and stealing and sentenced to four years imprisonment with a two-year non-parole period. He was released on parole in February 2004.
His Honour summed up the assessment of Dr Seidler as follows:
Dr Seidler, having interviewed Mr Martin for a number of hours, saw no sign of significant psychopathological symptomatology. Mr Martin was in good physical health. He presented as a strong able-bodied individual. Dr Seidler arranged for him to undergo psychological testing. He was of normal intelligence. A personality test, however, suggested quite a disorganised state, which Dr Seidler thought may be a "cry for help" from a disordered individual. He was pervasively prone to negativity and depression. He had a history of self harm, including attempts at suicide. He suffered from anxiety. His consumption of drugs and alcohol was clearly a problem. At the time of her interview he was taking a mood stabilising drug[14]
[14] G5, 58.
The offending committed in October 2007 involved three separate individuals two of whom were physically assaulted and one was murdered. Justice Kirby noted in his sentencing remarks that the Crown had acknowledged in relation to the murder charge there was no intention to kill and that the trial was run upon the basis of an intention to cause grievous bodily harm. The Crown conceded that there was an absence of pre-meditation and planning, although His Honour noted that counsel for the Applicant had also acknowledged that the use of a weapon was a circumstance of aggravation. The Court accepted, in applying the test in R v Way[15] that the murder offence fell just below the mid-range of seriousness for murder offences.
[15] [2004] NSWCCA 131.
The Applicant's motive in relation to his convictions for break and enter was financial gain. He told officers of NSW Corrective Services that he had offended ..due to having no money. He said that when his Centrelink payments ceased, he ..had no other choice but to do what he knows best and that is crime[16].
[16] TB, 74.
The Applicant’s revocation application and ASFIC do not contain any meaningful expressions of remorse for his offending, nor any acknowledgment of the harm caused to the victims or the broader community.
The Applicant pleaded not guilty at trial to the murder and reckless wounding charges and was convicted after a lengthy trial. Justice Kirby noted in his sentencing remarks that:
There has been no acknowledgement, since the jury verdict, of his involvement in the offences, nor any expression of remorse[17].
[17] G5, 59.
Case Note Report by NSW Corrective Services indicate a lack of remorse.
a.In a report dated 3 November 2009, it was reported that the Applicant ..strongly denies any responsibility for the offence which occurred in 2007; he maintains that his sister who made the statement is problematic because she is a junkie and her father is not his biological father[18].
b.On 7 April 2020, it was reported that ..he did not express remorse for the victims[19].
c.On 7 February 2025, a Pre-Release Report noted that the Applicant ..appeared to minimise his behaviour by claiming his actions were to protect his partner" and he "displayed minimal insight towards any of the victims of the index offences….[he] was unable to articulate the impact his offending had on the victim's families despite the loss of life, and serious injuries inflicted upon the other two victims[20].
[18] TB, 96.
[19] TB, 124.
[20] TB, 236.
In his oral evidence to the Tribunal, the Applicant stated that he is ashamed of his behaviour and that he regrets the damage he has caused for the victims of his crimes and their families. Even so the Applicant sought to minimise his culpability in relation to the murder, reckless injury and assault offences by stating that he did not have the chance to state his version of events at trial. While admitting his guilt, he denied that the murder was unprovoked. He claimed that there was no argument with the people present in the carpark on the night and he was acting to protect his partner who was attacked. The court record indicates that the Applicant plead not guilty to the murder and reckless injury charges and was convicted after a lengthy trial. The findings of the court do not support the Applicant’s claims.
The Correctional Services records provided to the Tribunal[21] indicate that the Applicant has repeatedly breached prison rules regarding illicit drug use and has been subject to some disciplinary action for relatively minor breaches of prison discipline. The records otherwise indicate that he has generally conducted himself appropriately while in custody.
[21]TB2, 44-418.
The Applicant has a chronic alcohol and polysubstance abuse history, dating back to when he was 12 years of age, including daily use of cannabis and the use of ecstasy and amphetamines[22]. The Applicant acknowledged in his oral evidence that his consumption of drugs and alcohol was a factor in his offending, including affecting his judgement in the assaults and murder for which he was convicted in October 2011.
[22] TB, 349.
The Applicant has been incarcerated continuously since May 2009 yet he has engaged in continuing drug use. This is confirmed in reports from NSW Corrective Services. On 17 March 2014 a report noted in relation to the Applicant that .. inmate is using drugs in an addictive pattern of use[23]. The Applicant’s in custody substance abuse was noted in a report of 14 May 2015[24]. In a questionnaire completed by the Applicant on 19 December 2018, he nominated his drug use as a behaviour he was "unsure" if he wanted to change[25]. The Applicant's returned 32 positive results for non-prescribed substances (buprenorphine, amphetamine and methamphetamine) out of 87 urinalysis tests during his incarceration up to January 2024[26].
[23] TB, 104.
[24] TB, 106-108.
[25] TB, 118.
[26] TB, 237 and 367.
The Applicant confirmed in his oral evidence that he continued to use buprenorphine, amphetamine and methamphetamine while in prison including throughout the period he was engaged in the IDAPT program.
It is clear that the Applicant has needed professional counselling support to address the issues underlying his offending.
As early as June 2002 Justice English of the NSW District Court commented in her sentencing remarks that:
..a clinical psychologist who assessed him at the request of his solicitor, recommends counselling to help the offender deal with his levels of stress and inability to deal with authority. She says he has few emotional resources and when drawn back into peer culture quickly reverts. There are issues which need to be addressed to minimise his risk of re-offending[27].
[27] TB, 82-83.
The Applicant was assessed by a prison psychologist shortly after being imprisoned in 2009 who commented:
..presents with difficulties coping at present. Stressed, anxious, displaying poor coping skills. Would benefit from contact with Psychology, however inmate is refusing contact at this stage. Wishing to be assessed by Mental Health Team to be commenced on medication, and states that he will self refer to Psychology in the future when he feels he is better able to engage in counselling. Refused to have contact with Psychology in the meantime- although acknowledges he can see how it could be beneficial, does not feel capable/willing to engage in counselling at present. Currently assessed as being at low risk of self harm/suicide[28].
[28] TB, 93-95.
Justice Kirby noted in his sentencing remarks in October 2011 that there is ..no question that Mr Martin has a number of issues that must be addressed whilst he is in gaol and after his release on parole, including drugs and alcohol as well as anger management[29].
[29] G5, 62.
The Applicant claimed in his ASFIC that he has made significant efforts toward rehabilitation, including successful completion of the IDAPT program, anger management, and other courses focused on self-development and behavioural change. Prison records confirm that the Applicant engaged in one-on-one therapy with an IDATP psychologist in prison between August 2022 to March 2025 on the basis of a self-referral.[30]
[30] TB, 303-323.
The Respondent asserted that the Applicant needs to participate in further individualised and sustained interventions designed to support emotional regulation and address the unique underlying psychological and behavioural drivers of his violent and impulsive behaviour.
The Pre-Release Report for the Applicant dated 7 February 2025 recommended several further rehabilitation initiatives as part of the Applicant's supervision plan, including a referral to a psychologist for assessment and case management, a referral to Langton Centre for assessment and drug and alcohol relapse prevention and a referral to Pathways Maroubra for ongoing alcohol and drug counselling[31].
[31] TB, 239-240.
If the Applicant were now released into the community he would be subject to ongoing supervision. He was released from prison on parole on 8 May 2025 and taken into immigration detention. If he were now to be released from detention he will be subject to parole until 8 May 2030[32]. The special condition upon which he has been granted parole include that he:
a.abstain from alcohol;
b.not contact victims or their families;
c.not communicate with co-offenders without approval of a parole officer; and
d.not frequent the Central Coast local government area
[32] TB, 395.
The Applicant has now been in custody for over 16 years and he has demonstrated limited support in the community.
He made it clear in his oral evidence that his intention is to principally rely on support from his family if released into the community. He indicated that he dissociated himself from his friends following his release from prison in 2003 and has not had any contact with them since he was taken into custody in May 2009. As evidence of his family support the Applicant provided the Tribunal with three letters of support from his sister (Malisa Martin), brother-in-law (Joshua Boyd) and de factor partner (Lisa Mackett)[33].
[33] Exhibits A1, 2 and 3.
Ms Mackett asserted in her letter that she and the Applicant ..have been in a committed relationship for over 19 years. Our relationship began prior to his incarceration, and despite the challenges of separation, we have remained closely connected and supportive of one another throughout. We raised two daughters together—who, although not biologically his, consider David their dad in every sense of the word[34].
[34] Exhibit A2.
Ms Mackett acknowledged in her letter that the terms of the Applicant’s parole would provide some difficulties in relation to her support of the Applicant because she is a co-offender. She acknowledged in her letter of support that:
Although current parole conditions prevent us from having direct contact, we will be submitting a formal request for a variation. In the meantime, David will reside with his sister and her family upon release, in a safe and supportive home[35].
The Applicant admitted that Ms Mackett currently lives in Queensland and that he has not spoken to her about arrangement if he is released since May 2025 when he was released from prison and the parole conditions came into effect.
[35] Exhibit A2.
Applicant’s brother-in-law Mr Boyd provided a letter of support stating:
My family and I are fully supportive of David’s release. We are committed to helping him reintegrate into the community and rebuild his life. Should he be granted release, we are able to provide him with long-term accommodation at our family home in Catherine Hill Bay, NSW. We can offer a stable and supportive living environment that will help him stay on the right path. Additionally, I am in a position to offer David immediate employment in my own business A & A Property Main Pty Ltd, which provides Property Maintenance and Commercial lawn services. I believe that stable housing, meaningful work, and strong family support are crucial to successful reintegration, and we are ready to provide all of these to David[36].
[36] Exhibit A1,
The Applicant’s sister Malissa Martin confirmed the offer of support by Mr Boyd in her letter of support.
The Respondent noted that the offer of support from the Applicant’s sister and brother-in-law had only recently emerged, having been lodged and served on 6 July 2025, two weeks before the hearing. His sister stated in her letter that:
..After some years without contact—mainly due to my own focus on raising a family and managing the challenges of our upbringing—David and I have reconnected over the past year. Through regular phone calls and in-person visits, our relationship has grown stronger. My husband and our two children have also formed a close and positive bond with David during this time[37].
[37] Exhibit A3,
The Applicant admitted in his oral evidence that he did not speak to his sister for over ten years and only recently made contact in the last year. The Applicant said that his sister had met Mr Boyd after the Applicant went to prison and Mr Boyd had only known him in the last year. The Applicant also confirmed that the offer of accommodation was to share a three-bedroom house with his sister, her partner and two children. He explained that this would involve the Applicant using the bedroom of his sister’s autistic son whom it was claimed always slept with his parents. Mr Boyd’s offer of employment was not accompanied by any meaningful detail and the Applicant said he could not confirm details such as the specific role, hours, duration or contractual terms of his proposed employment.
The Applicant gives little weight to these letters of support. The letters were unsigned and unsworn statements and the authors were not made available for cross-examination.
The Applicant offered no other evidence of the nature of his family’s support. In the absence of supporting evidence there is good reason to suspect that the Applicant’s family are ill-qualified to support the Applicant to live a pro-social life and avoid further offending. His mother suffers from severe schizophrenia and agoraphobia. His step-father is her primary carer. Most of the members of the Applicant’s family he identified have criminal histories. His partner Ms Mackett was a co-offender in the same violent incident that led to the Applicant's murder conviction. Sentencing remarks indicate that she assaulted two individuals whilst the Applicant fatally struck the victim[38]. She was also convicted of a concealing offence related to the Applicant’s murder charge as was the Applicant’s step-father. The Applicant admitted in his oral evidence that two of his sisters have been deported to New Zealand and were now involved with crime gangs. He also confirmed that his biological son was currently in prison having been convicted of murder.
[38] G5, 51.
The risk of the Applicant re-offending has not been the subject of a comprehensive psychological assessment, although he has been subject to testing which indicates a continuing risk. A Violence Risk Scale screening dated 24 July 2018 recorded a total score of 21 comprising a static variable score of 13 and a dynamic variable score of 8[39]. In a Pre-Release Report dated 7 February 2025, the Applicant was assessed at a T3 Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R)[40].
Consideration
[39] TB, 367-373.
[40]TB, 239.
The Applicant has been in prison and immigration detention continuously since May 2009. Prior to his incarceration the Applicant had a limited employment history and primarily survived on social security benefits[41].
[41] G5, 58.
The Applicant’s childhood was described as difficult and likely traumatic. He began using drugs and alcohol from an early age, perhaps 11 or 12. He has a long history of criminal offending leading ultimately to a conviction for the very serious offence of murder and related convictions for reckless wounding and assault. His murder conviction was on the basis of an intention to cause grievous bodily harm to the victim and was aggravated by his use of a weapon.
While the Applicant has taken some steps to address his drug and alcohol use and his need for anger management he has not engaged in rehabilitation to the extent recommended by the courts or prison psychologists. His ongoing pattern of drug use even within the controlled environment of a correctional facility, raises serious concerns about his capacity or willingness to address his substance use issues as well as his responsiveness to any future rehabilitative efforts.
The Applicant has limited support in the community. While he would be subject supervision under the terms of his parole until 2030, he principally relies on the expressions of support from his sister and brother-in-law to provide him with accommodation and employment. Their statements of support lack specificity and raise questions of genuine commitment which were not able to be tested in the Tribunal. The Applicant’s partner Ms Mackett, herself a co-offender, would require parole officer approval in order to make contact with the Applicant if he were released and she currently lives in Queensland. In any event it is not certain that she would necessarily be a positive influence on the Applicant given her past involvement in his offending. Similarly, there can be no confidence that other members of the Applicant’s family would provide positive support.
The Tribunal is not satisfied that the Applicant limited expressions of remorse for his offending or the harm he has caused for his victims and their families would act as a strong deterrent to further offending.
Taking these matters into account the Tribunal is satisfied that the Applicant represents a substantial risk of re-offending, including resort to violence.
This risk must be weighed against the nature of his past offending which was very serious and if repeated would threaten significant physical, psychological and financial harm to members of the Australian community.
The protection of the Australian community is a primary consideration under Direction 110, and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. Accordingly, the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
Family Violence
Paragraph 8.2(1) of Direction 110 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in any family violence as defined in paragraph 4(1) of Direction 110, and accordingly this consideration is not relevant.
The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of Part 2 of Direction 110 requires that decision-makers:
(1)… 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)… 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 resided in Australia continuously for over 36 years and has never returned to New Zealand. He has spent approximately eighteen of those years in prison or detention.
He had a limited employment history having relied primarily on social security benefits before being taken into custody. There is no evidence that he made a positive contribution while living in the Australian community. He conceded in his Personal Circumstances Form that the "Australian community would not be impacted" if he were removed from Australia[42].
[42] G9, 87.
The Applicant’s immediate family comprises his mother and step-father, three sisters, who migrated with him to Australia and two younger brothers both born in Australia. The Applicant gave no evidence of his relationship with his brothers or the extent of his contact with them over the 16 years he has been in custody. He stated in his oral evidence that he was too ashamed to ask his brothers for support in relation to his revocation application. In his oral evidence he also stated that two of his sisters have been deported to New Zealand and have now become involved with gangs. He said that he had not spoken to his third sister, Malisa, for over ten years until re-establishing contact with her in the last year. Malisa and her husband indicated in their letters of support that they were prepared to support the Applicant with accommodation and employment if he is released but the Tribunal gives their expressions of support limited weight. The Applicant’s mother suffers from schizophrenia and agoraphobia and the Applicant stated that he did not speak to her or his step-father for over ten years because he was too ashamed. He said he re-connected with them in around 2022. The Applicant produced no evidence from members of his immediate family regarding the impact of his removal to New Zealand. The letter of support from his sister Malisa[43] did not address the issue.
[43] Exhibit A3.
The Applicant claims to have an extended family in Australia comprising 2 uncles and 2 aunts[44] but provided no evidence regarding the nature of his relationship or the extent of his contact with them, especially over the 16 years of his incarceration.
[44] G9, 84.
The Applicant claims to have been in a committed relationship with his partner Ms Mackett for over 19 years, including throughout his period of incarceration, maintaining regular contact and emotional support. This was confirmed by Ms Mackett in her letter of support[45] and from case worker notes in prison[46]. He also claims to have a strong relationship with Ms Mackett’s two daughters aged 29 and 27 whom Ms Mackett claims regard him as their father, even though he is not their biological father. The Applicant also claims to have a relationship with the oldest daughter’s two children aged 9 and 7 whom he refers to as his grandchildren. The Applicant claims to maintain a relationship with his daughters and granddaughters while in prison and detention via electronic means and infrequent visits (Ms Mackett and her children live in Queensland).
[45] Exhibit A2.
[46] TB, 114.
The Applicant also identified a son now aged 26 from another relationship and his son’s 2 years old daughter (whom he did not name) as evidence of his ties to Australia. He admitted in his oral evidence that he has not had much contact with his son as he has been prevented from seeing him by the son’s mother but he recently contacted his son who is in prison serving a sentence for murder. He also acknowledged that he has never seen his son’s daughter who was born while he was in custody and lives in Queensland in the custody of her mother.
The impact of the decision on the Applicant’s immediate family members in Australia is unclear. The Applicant has been isolated from his immediate family for over 16 years. To the extent he has maintained contact it has been through telephone and other electronic means with some limited personal visits. Such contact could easily be maintained if he were located in New Zealand. The evidence does not demonstrate that his removal from Australia would have any notable impact on any of the family members he has identified.
The Applicant has not demonstrated that he has strong and enduring social links with other Australian citizens or that he has the support of other Australian citizens, permanent residents or individuals with an indefinite right to remain in Australia. Prior to his incarceration for break and enter convictions in 2002 he mixed with peers involved in drugs and crime when living in the community[47]. He claimed in his oral evidence that he broke off contact with these friends when released from prison in 2004 and has had no contact with anyone other than his family since that time, including throughout his incarceration since May 2009.
[47] TB, 81.
On the basis of this evidence, the Tribunal is satisfied that the Applicant has ties to the Australian community but it is not established that these are strong and enduring ties warranting significant weight in assessing whether to revoke the cancellation of his Visa.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) of Part 2 of Direction 110 requires that decision-makers must make a determination about whether 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.
In considering the best interests of the child, paragraph 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
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 has identified three minor children whose interests warrant consideration under paragraph 8.4(4).
a.K (aged 9) and S (aged 7) the daughters of Malisa, the elder daughter of his partner Ms Mackett; and
b.Z, his biological grand-daughter (aged 2).
In his Personal Circumstances Form, the Applicant conceded that his minor grandchildren were "conceived whilst I've been in custody and nearly all live in another state so my contact is limited[48].
K and S
[48] G9, 82.
K and S are the daughters of Malisa, whom the Applicant describes as his step-daughter. The Applicant confirmed that K and S live with their mother and Ms Mackett in Queensland. He stated in his oral evidence to the Tribunal that he has contact with K and S by telephone and K visited him in custody once or twice.
Ms Mackett said in her letter of support that the Applicant:
..has also built and maintained a strong and loving relationship with our grandchildren. He created a bond with them through phone calls, letters, and video visits while incarcerated, and since his release from prison into immigration detention, this bond has grown even stronger through more frequent and meaningful contact, especially via video calls.[49]
[49] Exhibit A2.
Malisa, the children’s mother, did not provide any evidence to the Tribunal.
Z, whom the Applicant did not identify by name, is claimed to be the daughter of the Applicant’s biological son, also not identified by name. The Applicant claims his son was born in Australia, is 26 years old and is currently in prison having been convicted of murder. The Applicant said he has had no contact with his son until recently when the Applicant contacted him by telephone in prison. He said that Z is currently living with her mother in Queensland and the Applicant has had no contact with her.
The Applicant has presented no independent evidence regarding Z.
The Tribunal accepts the Applicant’s evidence that he has maintained some relationship with K and S while he has been in prison and detention, but it is not satisfied that there is sufficient evidence to establish that the Applicant has an existing relationship or has had any meaningful contact with Z whom he claims to be his biological grand-daughter.
Further, the evidence is insufficient to satisfy the Tribunal that the Applicant’s separation from K and S would have a negative impact on them. He has been incarcerated or in immigration detention for the entirety of their lives and has not played an active role in their upbringing. Ongoing contact of the kind he has had with the children could be maintained from New Zealand through electronic communication.
To the extent that any of K, S or even Z wished to establish a relationship with the Applicant in the future it would be preferrable for the Applicant to be in Australia. In this limited respect it would be in their best interests for the cancellation of the Applicant’s Visa to be revoked. However, even though the best interests of minor children who may be affected by the decision is a primary consideration under Direction 110, the Tribunal gives this consideration little weight in favour of revocation in this case.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 110 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 measurable [sic] risk of causing physical harm to the Australian community.
Paragraph 8.5(4) 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.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court said regarding paragraph 8.4 in the former Direction 90, which mirrors the wording of paragraphs 8.5(1) and (2) of Direction 110:
[51] 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".
[52] 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. That norm, as applicable by reference to the terms of para 8(1)- (3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.[50]
[50][2024] HCA 2 at [51]-[52]; See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75]–[76]; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [31]–[35].
The Applicant has engaged in murder and other serious criminal conduct. It was conduct raising serious character concerns.
The deemed expectation of the Australian community as expressed in paragraph 8.5 of Part 2 of Direction 110 is that a non-citizen who engages in such conduct should not be allowed to remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: paragraph 8.5(3). The Tribunal is satisfied that the expectation of the Australian community is that the cancellation of the Applicant’s Visa should not be revoked.
The expectation of the Australian community is a primary consideration under Direction 110. Whether or not it is appropriate to act in accordance with that expectation is a matter to be determined having regard also to each of the other considerations. In weighing each of the considerations, the Tribunal attributes substantial weight to the expectation of the Australian community in favour of not revoking the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2 OF DIRECTION 110
Legal Consequences of the Decision
If the cancellation of the Applicant’s Visa is revoked he will be able to remain in Australia and will be released into the community. If the cancellation is not revoked, Paragraph 9.1(1) requires decision-makers to 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 non-citizen.
In this case, the Applicant has not made any claim that his circumstances enliven Australia’s non-refoulement obligations and the circumstances do not suggest such a claim.
On the current facts, the immediate consequence of a decision not to revoke the cancellation of the Visa is that the Applicant will be liable for removal from Australia as soon as reasonably practicable and pending removal, will remain in immigration detention under section 198 of the Act. The Tribunal also notes that once removed, the Applicant will be subject to indefinite exclusion from Australia.[51]
[51] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]–[14] per Feutrill J.
The consequences of removal for the Applicant are matters which form the subject of other considerations under Direction 110. However, the legal consequences of deciding not to revoke the cancellation of the Applicant’s Visa do carry their own adverse impact on the Applicant. The Applicant will be subjected to a continuing period of immigration detention depriving him of his liberty and deportation is likely to exact a significant emotional toll.
These matters are considerations which favour revocation but they are an expected consequence of the application of the law and warrant limited weight.
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
(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 relatively young (45), and there are no language or cultural barriers for him to overcome in relocating to New Zealand.
As a convicted criminal who has been out of the workforce for some sixteen years it can be expected that he will experience difficulties in securing employment in New Zealand but there is no evidence to suggest that his employment prospects in New Zealand would be any less favourable than in Australia.
The Applicant described his own general health as "quite good" in his Personal Circumstances Form[52]. However, paragraph 9.2(1) requires a consideration of all aspects of the Applicant’s physical wellbeing, including ‘... the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury’.[53] In this respect the Tribunal notes that he has a history of substance abuse and has been recommended for psychological treatment to address his issues with substance abuse, anger management and symptoms of depression and anxiety. There is no evidence indicating that the Applicant would be unable to access appropriate mental health and rehabilitation services in New Zealand.
[52] G9, 87.
[53] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
As a citizen of New Zealand, the Applicant would have access to the social, medical and financial support available to other citizens in that country, which is accepted as comparable to the support available in Australia[54].
[54] See Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at [44] and [68]-[69]; and Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301 at [101].
The Applicant claims that because his immediate family has relocated to Australia he has no family, housing, or support network in New Zealand. He does have two sisters who have returned to live in New Zealand[55], but the Applicant claims that they were deported from Australia and have become involved with gangs in New Zealand and he doesn’t want to be associated with them. The Tribunal accepts that a lack of family support would create some initial difficulties for the Applicant in establishing himself in New Zealand.
[55] G9, 84.
However, it is appropriate to take into account the support likely to be available to the Applicant as a returning prisoner to New Zealand under the Returning Offenders (Management and Information) Act 2015 (New Zealand) (‘ROMI Act’)[56].
[56] SZSS and Minister for Home Affairs (Migration) [2018] AATA 4079 at [240], and ZTGP and Minister for Home Affairs (Migration) [2018] AATA 3518 at [148]-[149].
The Respondent submits that the Applicant appears to meet the criteria for a determination that he is a “returning prisoner” under section 17 of the ROMI Act. The ROMI Act provides for New Zealanders who have been sentenced to more than one year in an overseas prison and who have been recently released from detention before returning to New Zealand to be subject to supervision and structured assistance in accessing benefits, finding employment and obtaining suitable short-term accommodation under what is called a Returning Offenders Order.
The legislative intention of the ROMI Act was stated in the following excerpt from the Third Reading of the Returning Offenders (Management and Information) Amendment Bill :
The bill confirms that the Act continues to apply to offenders who are deported to New Zealand or have been deported for offending that occurred before the Act came into force in November 2015. This means that returning offenders such as the section 501 deportees from Australia will continue to be managed on parole-like conditions when they return to New Zealand after being deported following release from prison in, normally, Australia. Consequently, the bill, in our view, achieves the aim of putting returning offenders in the same general position they would have been had they offended in New Zealand or, indeed, had they continued to be in Australia after release rather than been deported.
Having regard to these matters, the Tribunal is satisfied that the Applicant may face some difficulty in re-establishing himself in New Zealand initially, but such difficulties would be temporary, and he is likely to be able to establish himself and maintain basic living standards consistent with what is generally available to other citizens of New Zealand. These initial difficulties warrant the Tribunal giving this consideration moderate weight in favour of revocation.
Impact on Australian Business Interests
Paragraph 9.3(1) of Part 2 of Direction 110 requires:
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.
The Applicant has a limited employment history prior to his imprisonment in 2009 and has not been employed in the community for over sixteen years. His removal from Australia would have no material impact on Australian business interests.
There is no evidence that a decision not to revoke the cancellation of the Applicant’s Visa would compromise the delivery of a major project or important service in Australia.
Accordingly, the Tribunal gives this consideration no weight.
Other Considerations
The considerations specifically referred to in paragraph 9 are not exclusive and the Tribunal is not limited in considering other relevant matters.
The Applicant has not raised any other specific consideration, and the Tribunal is satisfied that all of the matters relevant to the Applicant’s application have been considered in the context of the considerations specified in Direction 110.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[57] His Honour North ACJ elaborated on how to approach the exercise of the discretion under section 501CA(4)(b)(ii) of the Act:
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.
[57] [2016] FCA 1166 at [38].
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations ‘appropriate weight’.[58] Paragraph 7 of Part 2 of Direction 110 provides guidance on how relevant considerations are to be assessed. It states that primary considerations should generally be given greater weight than the other considerations, but one or more primary considerations may outweigh other primary considerations.
[58] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
There are two primary considerations weighing in favour of revocation.
a.There is insufficient evidence to show that the removal of the Applicant from Australia would have a significant negative impact on the minor children he has identified, being the grandchildren of his partner Ms Mackett and the daughter of his biological son. However, the Tribunal accepts that it would be preferrable for the Applicant to remain in Australia so as to give any of the minor children he identified the opportunity to establish a relationship with him in the future. In this limited respect it would be in the best interests of the children for the cancellation of the Applicant’s Visa to be revoked but it attracts little weight in favour of revocation even though a primary consideration under Direction 110.
b.The Applicant has ties to the Australian community but it has not been established that these are strong and enduring ties warranting significant weight in assessing whether to revoke the cancellation of the Applicant’s Visa.
In addition, there are two other considerations which weigh in favour of revocation.
a.the Applicant may face some initial difficulty in re-establishing himself in New Zealand which represent limited impediments to his removal from Australia. These initial difficulties warrant the Tribunal giving this consideration moderate weight in favour of revocation.
b.a decision not to revoke the cancellation of the Applicant’s Visa will result in the Applicant being subjected to a continuing period of immigration detention depriving him of his liberty pending deportation which in turn is likely to exact a significant emotional toll. These matters are considerations which favour revocation but they are an expected consequence of the application of the law and warrant limited weight.
There are two primary considerations strongly weighing against revocation.
a.The Applicant has committed very serious crimes including murder and there is a significant risk the Applicant could resort to further offending of a violent nature if he is released into the community. Repeated offending would threaten significant physical, psychological and financial harm to members of the Australian community. The protection of the Australian community is a primary consideration under Direction 110, and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. Accordingly, the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
b.The expectation of the Australian community is that non-citizens will obey Australian laws while in Australia. The Applicant has engaged in very serious conduct including the serious offence of murder in breach of this expectation and there is a significant risk he may do so again. The Australian community, as a norm, expects that he not be allowed to remain in Australia.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in paragraph 5.2 of Direction 110 which provide the framework for decision making under section 501CA of the Act. These include that:
(a)the safety of the Australian community is the highest priority of the Australian Government;[59]
(b)non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia; and
(c)the Australian community expects the Australian Government to cancel the visas of non-citizens, if they engaged in conduct that raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
[59] See also paragraph 8.1(1).
The Tribunal has had regard to the principle in paragraphs 5.2(5) and (6) which suggest that the Applicant warrants a higher level of tolerance because he has lived in Australia for most of his life and came to Australia at a young age. However, Principle 5.2(7) contemplates circumstances in which the nature of the non-citizen’s conduct is so serious or the harm that would be caused if it was repeated is so serious that even strong countervailing considerations may be insufficient to justify revocation. Principle 5.2(8) also contemplates circumstances where the inherent nature of the conduct is so serious that even strong countervailing considerations may be insufficient to justify revocation even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Tribunal is satisfied that the nature of the Applicant’s offending raises serious character concerns about the Applicant. Murder is offending of the highest seriousness. The Applicant was convicted on the basis that he had acted with the intention of inflicting serious injury on his victim. It was an offence aggravated by the use of a weapon. It was associated with other violent conduct. It is to be viewed in the context of a long history of offending including convictions for breaking and entering. The nature of the Applicant’s offending and the harm that would result if it were repeated are so serious that the countervailing considerations are insufficient to outweigh considerations of the protection of the Australian community and the expectations of the Australian community so as to justify revoking the cancellation of the Applicant’s Visa.
Having regard to these principles and the relative strengths of the considerations for and against revocation the Tribunal is satisfied that the considerations in favour of revocation are outweighed by those against and there is not another reason why the discretion under section 501CA(4)(b)(ii) of the Act should be exercised to revoke the cancellation of the Applicant’s Visa.
Accordingly, the correct and preferable decision is to affirm the decision under review.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 13 May 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.
1. I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of General Member R. West
..............................[SGD].......................................
Tribunal Officer
Dated: 1 August 2025
Date of hearing: 23 July 2025 Solicitors for the Applicant Self-represented
Advocate for the Respondent Claire Campbell Solicitors for the Respondent HWL Ebsworth Lawyers
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