McElroy and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1750
•9 September 2025
McElroy and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1750 (9 September 2025)
Applicant/s: Cameron McElroy
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4180
Tribunal:Senior Member P Spender
Place:Canberra
Date:9 September 2025
Decision: The Tribunal sets aside the reviewable decision and makes a decision in substitution to revoke the cancellation of the applicant’s visa.
Statement made on 09 September 2025 at 1:24pm
.............................................
Senior Member P. Spender
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – other considerations – legal consequences of cancellation – extent of impediments if removed – applicant arrived in Australia as an infant – Non-Revocation Decision is set aside and substituted
Legislation
Migration Act 1985 (Cth) ss 197C, 198, 199, 499, 501, 501CA
Returning Offenders (Management and Information) Act 2015 (NZ)
Cases
Bowdler and Minister for Immigration and Border Protection [2018] AATA 347
Byers and Minister for Immigration and Multicultural Affairs [2024] ARTA 183
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FRH18 v Minister for Home Affairs [2018] FCA 1769
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nigro v Secretary to the Department of Justice [2013] VSCA 213
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Wallis and Minister for Immigration and Multicultural Affairs [2024] ARTA 624
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
1. In the reasons below a reference to ‘tribunal’ refers to the Administrative Review Tribunal generally whereas ‘Tribunal’ refers to the presently constituted tribunal.
Decision under review
2. On 6 December 2024, the applicant's Class TY Subclass 444 Special Category (Temporary) visa (Special Category Visa) was cancelled under s 501(3A) of the Migration Act 1985 (Cth) (the Act) (Cancellation Decision).[1] This was because the applicant had a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more, initially on 11 March 2024,[2] and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
[1] G9 HB120-126. In this decision a reference to ‘G’ refers to the G documents and ‘HB’ refers to the Hearing Book in the proceedings. ‘SFIC’ refers to a Statement of Facts and Contentions. The applicant’s SFIC was dated 29 July 2025 and the respondent’s SFIC was dated 1 August 2025.
[2] G7 HB95-115 see the Act, ss 501(6)(a) and 501(7)(c).
3. On 20 December 2024, the Minister's Department received representations from the applicant to have the Cancellation Decision revoked under s 501CA of the Migration Act.[3]
[3] G10 HB127-130
4. On 23 June 2025, the delegate found that the power under s 501CA(4) of the Act to revoke the Cancellation Decision made under s 501(3A) was not enlivened (Non-Revocation Decision or Reviewable Decision).[4] The applicant was notified of the Non-Revocation Decision by letter dated 23 June 2025.[5]
[4] G2 HB38-39
[5] G2 HB55
5. On 27 June 2025, the applicant applied to the tribunal for review of that decision.
Background
6. The applicant was born in New Zealand in June 1984. He is currently 41 years old. He first arrived in Australia as a 5-month-old infant on 30 November 1984.[6] Apart from some early trips between Australia and New Zealand in 1985 and a trip to Fiji in 2010, the applicant has remained in Australia.[7] Upon the applicant’s last entry to Australia on 11 March 2010, he was granted a Special Category Visa.[8]
[6] G22 HB223-224
[7] G22 HB223-224
[8] G9 HB120
7. The applicant completed his education up to year 10 in 1999 and obtained a certificate in flooring in 2002.[9] He met his wife, Alyce McElroy, around 2005 and their relationship began in about 2010.[10] Alyce McElroy has a son who was born in 2008, IP (currently 17 years old), and together they had 2 other children, a son, KM, born in 2015 (currently 9 years old)[11] and a daughter, IM, born in 2017 (currently 8 years old).[12] The applicant married Alyce McElroy in 2018.[13]
[9] G11 HB142
[10] G11 HB135
[11] G17 HB217
[12] G17 HB218
[13] G11 HB135
8. The applicant was employed for about 10 years in the flooring industry but lost work during COVID.[14] From 2020 the family suffered various separations due to COVID quarantine requirements.[15] In 2022 the family lost their home in the floods.[16] During this period the applicant developed an addiction to the drug ice and began selling drugs to support his addiction and to provide financial support.[17]
[14] Transcript 28 August 2025 page 21
[15] Transcript 28 August 2025 page 21
[16] G13 HB176
[17] G13 HB177
9. On 11 March 2024, the applicant was convicted in the Local Court for the supply of prohibited drugs on an ongoing basis (3 counts), drive motor vehicle during disqualification period (3 counts), supply prohibited drug <=small quantity (1 count), possess prohibited drug and deal with property proceeds of crime < $100000-T2 for which he was sentenced to an aggregate term of imprisonment of 4 years.[18]
[18] G4 HB70-72
10. On 4 June 2024, on appeal, the District Court varied the aggregate term of imprisonment to 3 years and 2 months.[19]
[19] G5 HB73-80
11. The applicant was eligible for parole from 10 January 2025.[20] On that day he was detained at Villawood Immigration Detention Centre[21] and remained in detention at the time of the hearing.
[20] G5 HB73
[21] G14 HB202
Criminal History
12. The applicant has an extensive criminal history, comprising over 20 offences largely relating to drugs and traffic offences. His full criminal record is set out at Annexure A.
13. The applicant’s traffic history included offences dating from 2006 up to and including 2024 with infringements ranging from driving whilst disqualified and driving under the influence of alcohol or drugs.[22]
[22] G3 HB60-69
14. The applicant's most serious offences are the 4 counts of supplying prohibited drugs, which involved the following facts:
(a)between 23 December 2022 and 18 January 2023, the applicant supplied methamphetamines on at least 41 occasions totalling 52.7 grams in weight;
(b)between 28 January 2023 and 21 February 2023, the applicant supplied cannabis on at least 4 occasions to a combined weight of 25 grams;
(c)between 19 January 2023 and 18 February 2023, the applicant supplied methamphetamines on at least 107 occasions totalling 97.75 grams in weight;
(d)between 19 February 2023 and 28 February 2023, the applicant supplied methamphetamines and Xanax on at least 33 occasions totalling 19.55 grams in weight.[23]
[23] Respondent’s SFIC [13] citing G3 HB66-68
THE HEARING AND THE EVIDENCE
15. The proceedings were heard by the Tribunal on 28 and 29 August 2025. The applicant was represented by Mr Nikjoo of Nikjoo Lawyers, and the respondent was represented by Ms Ren of HWL Ebsworth Lawyers. The documentary evidence consisted of the following material:
(a)Exhibit HB – the hearing book prepared by the respondent (HB) which contained the documents and other material provided by the parties including their statements of facts and contentions (SFIC) and the G documents.[24]
(b)Exhibit R1 – a 3 page extract of documents produced on summons by NSW Police on 28 August 2025.
[24] The Hearing Book was filed on 20 August 2025
16. The following people gave evidence at the hearing on 28 and 29 August 2025:
(a)the applicant
(b)Alyce McElroy
(c)Diane McElroy
(d)Dr Billel Rababi
(e)Tammy Harding
(f)Lee Hockey
(g)Sarah MacRae
(h)Chad Onley
(i)Jenna Onley
(j)Melissa Pepper.
17. The witnesses were cross-examined by Ms Ren. Following completion of the oral evidence, the parties’ representatives made oral submissions on 29 August 2025. I will refer to the evidence and submissions below.
LEGISLATIVE FRAMEWORK
18. Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph 501(6)(a) (substantial criminal record), on the basis of paragraph 501(7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
19. The character test referred to in s 501(3A) is set out in s 501(6). Notably, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7)). For the purposes of s 501(6)(a), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
20. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[25]
[25] Section 501CA(4)
21. Where the cancellation decision is not revoked, the applicant may apply to the tribunal for review of the non-revocation decision.[26]
[26] Section 500(1)(ba)
22. Therefore, the issues for determination by the Tribunal are as follows:
(a)whether the applicant passes the character test for the purposes of s 501 of the Act, as defined in s 501(6);[27]
(b)if not, whether there is another reason why the original cancellation decision should be revoked.[28]
[27] Section 501CA(4)
[28] Section 501CA(4)
23. The applicant properly conceded that he does not pass the character test under s 501(6)(a) because he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7).[29] Therefore the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Hence the question in issue is whether there is ‘another reason’ why the original cancellation decision should be revoked. As stated by Deputy President McMillan KC in Byers and Minister for Immigration and Multicultural Affairs:[30]
Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to examine the factors relevant to a decision to assess if there is ‘another reason’ why the Cancellation Decision should be revoked. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and to undertake an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked. Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[31]
[29] Applicant’s SFIC [10]
[30] [2024] ARTA 183
[31] Byers and Minister for Immigration and Multicultural Affairs [2024] ARTA 183 at [29] [footnotes omitted]
THE DIRECTION
24. The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) must be applied. The relevant provisions of the Direction are set out in Annexure B below.
25. The Tribunal’s task in applying the Direction was discussed by the Full Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL) [32]who stated:
[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction … is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.[33]
[32] [2023] FCAFC 138
[33] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28]
26. The Full Court’s comments in CRNL about the ‘balancing process’ involved are particularly important:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[34]
[34] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35]
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
27. In accordance with paragraph 8.1(2) of Direction two key factors must be taken into account when assessing whether a non-citizen should be permitted to remain in Australia:
(a)the nature and seriousness of the non-citizen’s past conduct; and
(b)the risk posed to the Australian community should the non-citizen reoffend or engage in further serious conduct.
8.1.1 THE NATURE AND SERIOUSNESS OF THE CONDUCT
28. The relevant factors that the tribunal must have regard to under this consideration are the following:
(a) and (b) whether the crimes fall into the category of “very serious” or “serious”
(c) the sentence imposed by the courts
(e) the frequency of the non-citizens offending and/or whether there is any trend of increasing seriousness
(f) the cumulative effect of repeat offending
(g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Applicant’s submissions
29. The applicant acknowledged the seriousness of his past offending, which includes drug supply and driving offences.[35] However, the applicant submitted that the Tribunal should focus on the substantial steps he has taken towards rehabilitation. This aspect will be discussed below when the Tribunal considers paragraph 8.1.2 of the Direction - the risk to the Australian community.
[35] Applicant’s SFIC [19]
Respondent’s submissions
30. The respondent noted the applicant’s extensive criminal history and made submissions about the seriousness of the latest offences which are set out above under the heading ‘Criminal history’. The Minister referred to the agreed facts in relation to each of the drug supply offences, which stated that ‘the sole basis of these supplies was to obtain financial gain to purchase prohibited drugs and satisfy his own addiction’.[36]
[36] Respondent’s SFIC [7] citing HB363
31. The Minister further argued that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.[37] For the applicant’s most recent drug and driving offences the Local Court imposed a 4 year aggregate sentence which was then varied on appeal to an aggregate term of 3 years and 2 months. Therefore, the Local and District Courts regarded the applicant's offending as serious as per paragraph 8.1.1(c) of the Direction.[38] The respondent noted that when sentencing the applicant on 11 March 2024, Magistrate Perry considered that each of the applicant's 3 counts of ongoing drug supply of methamphetamine were ‘above the low range’ and ‘at midrange’. Similarly, Judge Baker noted that there were around 180 individual supplies of drugs to the community and found that each of those offences was a serious offence.[39]
[37] Respondent’s SFIC at [8], citing Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
[38] Respondent’s SFIC [8]
[39] Respondent’s SFIC [8], citing G7 HB111 and G6 HB85
32. With respect to paragraph 8.1.1(e) of the Direction, the respondent submitted that.
The applicant's offending has been frequent and increasingly serious: His convictions evolved from driving offences to more serious offences for the supply of prohibited drugs. On 9 December 2011, the applicant was convicted of 'Supply prohibited drug>indictable quantity (no cannabis) SI' and sentenced to 300 hours of community service …. And yet, this conviction did not deter him. The applicant was again convicted of drug offences on 11 March 2024. His most recent conviction of drug supply offences were sustained over a period of time. These offences were prolific and frequent in which he supplied methamphetamines on at least 185 occasions over a period of over 2 months.[40]
[40] Respondent’s SFIC [9] citing G3 HB65-66, HB68
33. The respondent also made submissions about the cumulative effect of the applicant’s repeated offending, as per paragraph 8.1.1(f) of the Direction, commenting that the applicant has been convicted of driving offences no less than 17 times from 16 August 2006 to 11 March 2024, indicating a ‘high disregard for the law’. Further, said the respondent, the cumulative effect of his driving offences and egregious disregard of traffic law has the potential to cause significant harm to members of the public on the road and the applicant's repeated drug supply offences adds to the seriousness of his offending. The cumulative effect of these very serious offences is that they have caused significant physical and psychological harm to the Australian community.[41]
[41] Respondent’s SFIC [10]-[13]
34. The Minister argued, pursuant to paragraph 8.1.1(g) of the Direction, that the applicant's failure to disclose his three prior driving offences on his incoming passenger card on 11 March 2010 reflects his willingness to be dishonest and mislead the Department. This conduct reflects poorly on the applicant and is a factor against revocation of the cancellation decision.[42]
[42] Respondent’s SFIC [14] citing G21 HB222
35. During the hearing, the respondent adduced evidence of an incident that occurred in July 2012 where the police put the applicant in a headlock to stop him resisting police. The applicant was placed in the rear of a police vehicle where he kicked the side doors and swore at police.[43] The respondent said that this evidence is relevant to paragraph 8.1.1(b)(ii) of the Direction, that is, crimes committed against government representatives or officials due to the position they hold or in the performance of their duties. He was later convicted of the offences of ‘behave in offensive manner in/near public place/school and destroy or damage property <=42000 - T2’.[44]
[43] Exhibit R1 page 3
[44] See Annexure A, reference H48611950
36. When asked about this incident at the hearing, the applicant stated that he was drunk at the time of the incident and did not recall the details but said that he had never resisted arrest.[45] Mr Nikjoo argued that this explained the circumstances of the incident and pointed to the penalty imposed (a fine and section 9 warning) which goes to the subjective seriousness of the kind of offence that the applicant denied.[46] The applicant also testified that he did not disclose his driving offences on the incoming passenger card in 2010 because he did not think that driving offences were criminal convictions.[47]
[45] Transcript 29 August 2025 pages 227 - 228
[46] Transcript 29 August 2025 page 333
[47] Transcript 28 August 2025 page 73
37. Overall, the Minister submitted that nature of the applicant's offending to date includes drug supply and driving offences, which are viewed very seriously and are in addition to an entrenched disregard for the law, as demonstrated by the applicant's prolonged history of driving offences.[48]
[48] Respondent’s SFIC [15]
DISCUSSION OF 8.1.1: NATURE AND SERIOUSNESS OF THE CONDUCT
38. The Tribunal quotes at length from Judge Baker in the District Court regarding the seriousness of the offences as follows:
In that regard, it can be seen that, over those three months, there were around about 180 individual supplies of drugs into the community. Having regard to all of the circumstances, I find that each of those offences is a serious offence. It is certainly clear that whilst they are not sophisticated and in no way is it suggested that the appellant was in a sophisticated supply operation, nonetheless, they were a large number of supplies over that period and, in light of the circumstances, I find that the offences are serious. They are below the mid-range of objective seriousness, but certainly not at the lowest end of the spectrum.
…
It is clear that the appellant has had a serious addiction to ice, which escalated after 2020 to the point where, at the time that he was committing these offences, he was using up to a gram of drugs a week. It is clear, also, from the report that the corrective services officer has assessed Mr McElroy as being at a medium to low risk of re-offending.
…
The process of sentencing involves considering the objective seriousness which I have referred to and also the subjective circumstances of the individual offender to arrive at a sentence that best meets the purposes of sentencing in s 3A of the Crimes Sentencing Procedure Act.
…
I have separately and independently had regard to the objective seriousness. As I said, they are serious offences. It is certainly the case that it is not at the middle of the range, but equally, it could not be said that at the lower end of the range.
In this particular case, I have had regard to not only the objective seriousness but the purposes of sentencing that are necessary. They include the need for general deterrence and for punishment and denunciation of the offending. I find that in this particular case there is a need for general deterrence, these serious drug supply offences. The courts are required to consider imposing sentences that reflect the need to deter the supply of serious drugs into the community and that is an important consideration that I have had regard to.
I have also had regard to the subjective circumstances. I consider that personal deterrence has a lesser role to play given Mr McElroy’s insight, remorse and good prospects of rehabilitation.[49]
[49] G6 HB85-86, 87-88, 91-92
39. Although the applicant’s conviction in 2024 for the supply of a prohibited drugs on an ongoing basis -T1 (3 counts), drive motor vehicle during disqualification period - 2nd+off (3 counts) , supply prohibited drug <=small quantity-T2 (1 count), deal with property proceeds of crime < $100000-T2 (1 count) and possess prohibited drug (1 count) does not fall within the specific categories expressly identified in the Direction as ‘very serious’ or ‘serious’ offences, the Tribunal agrees with the Minister that the conviction, in combination with the applicant’s criminal history means that the applicant’s conduct is properly characterised as “serious”.
40. The Tribunal has also taken into account the sentence imposed by Judge Baker in District Court 2024 and notes that although his Honour found that the offences are serious, ‘they are below the mid-range of objective seriousness but certainly not at the lowest end of the spectrum’[50] and the judge took into account mitigating factors when imposing the sentence. The sentencing remarks stated:
There are two important aspects to the background of the appellant’s immediate history, and they are, firstly, the circumstances surrounding his family and living circumstances. What happened with that, and in relation to the floods that occurred in 2020, and the impact that that had on his family and on his work.
The second aspect of the report, which is also part of the evidence given by the appellant before me, relates to the appellant’s use of the drug ice, and his addiction, and how that escalated as a result of the stressors that he experienced during that part of his life.
The sentence assessment report sets out details which show that the appellant has accepted responsibility for the offending. He has verbalised the impact that that has had on him, and his family, and community. It is clear from the report, and from his evidence, that the appellant is deeply remorseful for the offending, and the impact that that has had on the community. It also sets out the background to his substance use and, as I said, the circumstances surrounding his home being damaged in the floods, and the loss of possessions, and how that impacted on his family, and his work, as well, was impacted by difficulties that he had, such that he was financially struggling at the time that he was selling the drugs.[51]
[50] G6 HB86
[51] G6 HB87
41. I am satisfied that the applicant provided satisfactory explanations for the incident that occurred with the police in 2012 and the failure to disclose his driving offences on his incoming passenger card in 2010. I do not consider that the latter incident supports the submission made by the Minister that I should infer that the applicant is willing to be dishonest and mislead the Department.
42. Based on the applicant’s oral testimony and the many witnesses who testified on his behalf, I am satisfied that the applicant has genuine remorse in relation to the drug offences.
43. In relation to the driving offences, the evidence was more equivocal. The applicant did not fully explain why he persisted with driving when he was disqualified and did mention that he drove for work reasons.[52] However, he stated that he accepted that he had done the wrong thing by driving when he shouldn't have[53] and in response to questioning by Ms Ren about his driving offences he answered ‘there's no excuse for what I did’.[54]
[52] Transcript 28 August 2025 page 67
[53] Transcript 28 August 2025 page 71
[54] Transcript 28 August 2025 page 67
44. Although the conduct is properly characterized as serious, the Tribunal agrees with the applicant that the overall question about the protection of the Australian community involves the further step of considering the risk to the Australian community should the applicant commit further offences. This is dealt with in the next section when discussing paragraph 8.1.2 of the Direction.
8.1.2 THE RISK TO THE AUSTRALIA COMMUNITY
45. The Direction requires decision-makers, when in considering the need to protect the Australian community from harm, to have regard to the government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would because, if it were to be repeated is so serious that any risk it may be repeated may be unacceptable. Further, 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 noncitizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the noncitizen reoffending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.
Applicant’s Submissions
46. The applicant acknowledged that the risk of him reoffending is a matter for the Tribunal to consider and assess in determining whether the protection of the Australian community requires the applicant’s ongoing exclusion. [55]
[55] Applicant’s SFIC [21]
47. However, the applicant submitted that the Tribunal can be comfortably satisfied that the risk of recidivism in this matter is low, when considered in light of all the circumstances. The applicant stated that he is now acutely aware of the consequences of his past offending. The cancellation of his visa and the potential for permanent separation from his children and extended family have had a profound deterrent effect. He has demonstrated remorse, insight into his offending, and has actively engaged in rehabilitation programs, including anger management, alcohol awareness, and thinking skills courses while incarcerated.[56] These factors, coupled with his ongoing parole supervision until 10 July 2026, provide strong external and internal incentives to remain offence-free.[57]
[56] Applicant’s SFIC [23] citing G11 HB141 and G13 HB160-166
[57] Applicant’s SFIC [24]
48. In light of these factors, the applicant submitted that the risk he poses to the Australian community is low and manageable. The applicant pointed to the following factors and evidence in support of this contention:
·he has strong family support and has secured an offer of employment upon release, both of which are critical protective factors that reduce community risk[58]
·Judge Baker noted his good prospects of rehabilitation, highlighting that his risk of reoffending is low[59]
·Judge Baker’s assessment is supported by the Corrective Services risk assessments, which have rated his risk of reoffending as “medium … to low”[60]
·the report of the clinical psychologist Dr Billel Rababi assessed his risk of reoffending as low, based on the mitigating factors that have been mentioned above.[61]
[58] G20 HB221
[59] G6 HB89-90
[60] Sentencing assessment report dated 24 January 2022 HB565, Sentencing assessment report dated 14 June 2023 HB558, Sentencing assessment report dated 19 February 2024 HB553
[61] Dr Billel Rababi report dated 14 August 2025, HB657, HB666
49. During the hearing, Mr Nikjoo referred to Judge Baker’s sentencing comments on the question of rehabilitation as follows:
Mr McElroy, in his evidence, described the fact that he has attempted to and has addressed his drug addiction whilst in custody. He also gave evidence that at the time at which he was arrested, he was seeking to address that as well, and that was only interrupted when he was arrested. In addition, Mr McElroy has given evidence that he has not taken drugs whilst in custody, that he is a member of Narcotics Anonymous and he is committed to staying drug-free both in custody and when he is released into the community. Mr McElroy gave evidence that his primary focus when he is released is to support his family and to be there for his family and his children.
Having heard Mr McElroy’s evidence, I found him to be a persuasive witness. I do accept that he is remorseful and committed to his rehabilitation and staying drug-free. It is clear that he has been able to achieve that over the course of his time in custody. How he goes once released into the community, of course, will be a matter for him. He will experience further difficulties, no doubt, when he is released. But on his evidence today, I found him to be persuasive in his evidence that he is committed to rehabilitation.
…
In terms of an assessment of his prospects of rehabilitation and risk of reoffending, in light of what I said, I do find that Mr McElroy has good prospects of remaining drug-free. I find that he has good prospects of rehabilitation in that respect and his risk of re-offending is lowered as a result of that. I find that the pro-social and supportive family structure that exists will assist Mr McElroy. But equally, I also find that he is committed to his rehabilitation. Those matters are to his credit and in favour in terms of the subjective assessment in this matter.[62]
[62] G6 HB89-90 (emphasis added)
Respondent’s Submissions
50. The respondent discussed the nature of the harm in paragraph 8.1.2(2)(a) of the Direction, arguing that the nature of the applicant’s offending, if repeated, would cause significant physical and psychological harm to members of the community. The respondent provided data from the Australian Institute of Criminology which shows that the impact on the Australian community in terms of lost productivity, healthcare and drug attributable crime arising from methamphetamine use is higher than that arising from the use of other illicit drugs.[63]
[63] Respondent’s SFIC [18] citing S Goldmid et al, ‘Australian amphetamine users outcomes’, Statistical bulletin 03, Australian Institute of Criminology, May 2017, HB 446, 463
51. The respondent further argued that the applicant has been repeatedly convicted of driving while disqualified. The tribunal has previously noted the disastrous impact on the Australian community of a rising road toll.[64] The applicant has shown contempt for those laws, and in doing so has placed others at risk of harm. The respondent noted that on 21 June 2023, the applicant was convicted of multiple driving offences and sentenced to terms of imprisonment of 1 to 2 months. Despite the imposition of a custodial sentence for driving offences, this did not deter him from further offending on 11 February 2023 and 14 March 2023 for which he was convicted on 11 March 2024.[65]
[64] Respondent’s SFIC [19], citing Bowdler and Minister for Immigration and Border Protection [2018] AATA 347 at [53]
[65] Respondent’s SFIC [19] citing HB362-363
52. Referring to paragraph 8.1.2(2)(b) of the Direction (regarding the risk of reoffending and the evidence of any demonstrated rehabilitation) the respondent contended that although the applicant had expressed remorse for his offending and has engaged in some drug and alcohol counselling the Tribunal ought to be guarded about the applicant’s risk of reoffending.[66] The respondent noted that the applicant has a lengthy criminal history showing repeated and frequent offending. While the applicant states that he has been clean from drugs for two years, the applicant has been in custody during this period. As the applicant has been in custody or in immigration detention from 17 March 2023 to present the applicant’s ability to abstain from drugs in the community remains untested. Although the applicant has engaged in some drug rehabilitation while in custody by engaging in Narcotics Anonymous, the extent of his rehabilitation appears to have been limited. While the applicant may claim that he is supported by family and friends, these protective factors were in existence at the time of his offending as well.[67]
[66] Respondent’s SFIC [21]
[67] Respondent’s SFIC [22]
53. The respondent acknowledged that the report of Dr Rababi assessed the applicant’s risk of reoffending as low, but said this does not mean no risk.[68] Moreover, the respondent noted that Dr Rababi’s risk assessment was contingent upon the applicant’s continued engagement in key rehabilitative activities such as Narcotics Anonymous, Alcoholics Anonymous, the completion of the safe driving course and ongoing psychological treatment for a minimum period of 12 months.[69] Dr Rababi’s report stated: ‘[s]hould he maintain these commitments, the likelihood of reoffending is expected to remain low’.[70]
[68] Transcript 29 August 2025 page 327
[69] Transcript 28 August 2025 page 188
[70] Dr Billel Rababi report dated 14 August 2025, HB657, HB666
DISCUSSION OF 8.1.2: RISK TO THE AUSTRALIA COMMUNITY
54. In Tanielu v Minister for Immigration and Border Protection[71] Mortimer J (as she then was) referred to the judgment of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice[72] as follows:
[95] The Court summarised the task in determining “unacceptable risk” in this way (at [111]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[96] At [124]-[125], the Court described the difficulty inherent in prediction of risk:
Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have.
[71] [2014] FCA 673
[72] [2013] VSCA 213
55. The Tribunal notes her Honour’s observation that the prediction of risks is in a large part a matter for expert opinion. The Tribunal was provided with the expert opinion of Dr Rababi which assessed the applicant as having a low risk of recidivism provided the applicant continues to engage in key rehabilitative activities.
56. As regards the use of illicit drugs, the Tribunal notes that the applicant testified during the tribunal proceedings that he has ceased using illicit drugs and has been ‘clean’ since he was arrested in March 2023.[73] This testimony is supported to some extent by the pre-release report made by NSW Corrective Services on 22 October 2024 which stated that the applicant was subject to a urinalysis test on one occasion while housed at Clarence CC and produced a negative sample.[74] The Tribunal also notes that it is a condition of the applicant’s parole that he is prohibited from drugs unless prescribed.[75] Judge Baker’s comments in the District Court that the applicant was seeking to address his drug addiction at the time of his arrest was corroborated in the present proceedings by Chad Onley who testified that the applicant had approached him at this time about drug and alcohol rehabilitation services.[76]
[73] See for example, transcript 28 August 2025 pages 128-129
[74] Corrective Services NSW, Pre-Release Report dated 22 October 2024 HB542, HB546
[75] Corrective Services NSW, Pre-Release Report dated 22 October 2024 HB542, HB550
[76] Transcript 29 August 2025 page 260
57. Other witnesses testified[77] or provided statements[78] that they had offered the applicant employment upon his release from detention, and this is a key protective factor for his rehabilitation. He has very strong support from his family and friends. I acknowledge the respondent’s comments that this support was also present during his offending, but I observe that his family and friends continued to support him through the new challenge created by his immigration detention.[79]
[77] Mellisa Pepper transcript 29 August 2025 page 300
[78] Matthew Jones G20 HB221
[79] See for example Alyce McElroy transcript 28 August 2025 page 129, Diane McElroy transcript 28 August 2025 page 157-158
58. The applicant was very emphatic about his commitment to rehabilitation in his testimony.[80] Like Judge Baker in the District Court, I found the applicant to be persuasive in his evidence that he is committed to rehabilitation. The commitment was also supported by other witnesses called by the applicant.[81]
[80] See for example transcript 28 August 2025 page 100
[81] For example, Sarah MacRae at G15 HB207 and transcript 29 August 2025 page 249 and Alyce McElroy transcript 28 August 2025 page 129-130
59. Overall, I am satisfied that the applicant will take the necessary steps to engage in the stipulated rehabilitation programs including the safe driving course.
CONCLUSION ON 8.1.2 RISK TO THE AUSTRALIA COMMUNITY
60. I accept the respondent’s submission that it cannot be said that there is no risk of reoffending, but I find that the risk of reoffending at this stage is low based on Dr Rababi’s report in combination with the evidence led by the applicant. For the purposes of paragraph 8.1.2 of the Direction, I therefore find that the risk to the Australian community is low.
CONCLUSION ON PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
61. The applicant conceded that this primary consideration weighs against him but submitted that the weight assigned should not be so significant as to outweigh, either individually or cumulatively, the other considerations in his favour.[82] The respondent submitted that the Tribunal ought to find that nature and seriousness of the applicant's offending weighs heavily against revoking the cancellation decision.[83]
[82] Applicant’s SFIC [25]
[83] Respondent’s SFIC [23]
62. Taking into account the serious nature of the applicant’s previous offending but that the risk to the Australian community is low because the risk of reoffending is low the Tribunal concludes that primary consideration 1 – protection of the Australian community – weighs moderately against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
63. No allegations of family violence were made in the proceedings before the Tribunal, so this consideration is neutral.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
64. Paragraph 8.3(1) of the Direction requires the Tribunal to consider any impact of the decision on the non-citizen’s immediate family members in Australia where those family members are Australian citizens. Paragraph 8.3(2) requires the decisionmaker to have regard to how long the non-citizen has resided in Australia and the strength, duration and nature of any family or social links with Australian citizens.
Applicant’s submissions
65. The applicant emphasised that he has lived in Australia for approximately 40 years, having arrived as an infant. This significant period of residence has allowed him to establish deep and enduring familial and social ties including his spouse, three children, two minor nieces, and a nephew, his mother, brother and extended family.[84] He contended that his strong and consistent work history from 2013 to 2022 (with disruption only occurring during the COVID-19 pandemic)[85] demonstrates a commitment to lawful and productive participation in Australian society over many years.[86] Further, his voluntary involvement in community activities, including coaching and supporting his son’s soccer team, highlights his positive engagement and integration within his local community.[87] He pointed to his broad network of community support, as evidenced by many letters of support.[88] He submitted that these strong, long-standing family and community ties weigh heavily in favour of revocation.
[84] For details, see G11 HB134, HB136, HB138, HB140
[85] Applicant’s SFIC [29] citing G11, HB141–142, HB146
[86] Applicant’s SFIC [29]
[87] Applicant’s SFIC [29]
[88] Applicant’s SFIC [30] citing G14 HB200–210; G15 HB211–213; G16 HB 214–215
Respondent’s submissions
66. The Minister accepted that these circumstances weigh moderately in favour of revocation but do not outweigh the considerations against revocation.[89]
[89] Respondent’s SFIC [28]
CONCLUSION ON PRIMARY CONSIDERATION 3 STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
67. As stated above, paragraph 8.3(2) requires the Tribunal to take into account how long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child. In this case the applicant left New Zealand for the last time to come to Australia when was 15 months old[90] and has never returned.[91]
[90] G22 HB223
[91] Transcript 28 August 2025 page 53
68. The applicant presented as a person who is very involved with his community. This was substantiated by the letters of support by family and friends that were provided to the delegate.[92] Many of the authors of the letters attended the hearing to give evidence about their connection with the applicant and his activities in the community.[93] All the witnesses gave evidence about relationships that were long term, often going from childhood and his willingness to ‘step up’ for the community.
[92] G14 HB200–209; G15 HB210–213; G16 HB 214–215
[93] The Tribunal notes the evidence of Alyce McElroy, Diane McElroy and Tammy Harding on 28 August 2025, and Lee Hockey, Sarah MacRae, Chad Onley, Jenna Onley and Melissa Pepper on 29 August 2025
69. The Tribunal notes in particular the evidence given by the applicant’s mother, Diane McElroy, who is in close contact with the applicant and currently travelling fortnightly to visit him in immigration detention.[94] She testified that her health would preclude her from travelling to New Zealand[95] and this testimony was supported by Dr Jenna Onley.[96]
[94] Transcript 28 August 2025 page 155
[95] Transcript 28 August 2025 page 167
[96] Transcript 29 August 2025 page 285
70. The Tribunal considers that the applicant has established strong and enduring links with Australian citizens in his immediate and extended family and community.
71. Taking into account the length of time that the applicant has resided in Australia and the strong and enduring nature of his family and social links with Australian citizens, the Tribunal concludes that this consideration weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN
72. The applicant is the father of three minor children, all of whom are Australian citizens: IP (17), KM (9) and IM (8). The applicant has nieces and nephews who reside in Australia with his brother Lee Hockey: JH (11), CH (8), AH (6) and AMH (5).[97]
[97] Lee Hockey, Letter to the Minister dated 29 July 2025, HB640. During the hearing Lee Hockey testified that he has three children, referring to JH, CH and AMH (transcript 29 August 2025 page 236). The applicant at G11 HB138 refers to Lee Hockey’s children as CH, AH and AMH. These differences were not reconciled, and the Tribunal infers that there are at least three children for whom Lee Hockey has parental responsibility.
Applicant’s submissions
73. The applicant submitted that his three children have been deeply affected by his separation from them.[98] His son KM is particularly vulnerable, with suspected autism and fragile mental health that has been further destabilised by his father’s absence.[99] The applicant said that historically he has been an active and present parent, involved in his children’s sporting activities and day-to-day lives and continued separation poses a significant risk to their emotional stability and overall well-being.[100]
[98] Applicant’s SFIC [32] citing G11 HB136–137; G12 HB153; G17 HB217–219
[99] Applicant’s SFIC [32] citing G13 HB168–169.
[100] Applicant’s SFIC [33]
74. In addition to his children, the applicant states that he shares a strong and nurturing bond with his nieces and nephews and these children would also suffer profound emotional harm from losing direct and meaningful contact with their uncle.[101] Further, when these relationships are collectively considered, the adverse effects on his children, nieces and nephews would be devastating and potentially irreparable. Denying them the physical presence, guidance and support of their father and uncle risks long-term harm.[102]
[101] Applicant’s SFIC [34]
[102] Applicant’s SFIC [34]
75. The applicant referred to the evidence that had been led in the proceedings to argue that this primary consideration weighs heavily in favour of revocation and, in and of itself, constitutes “another reason” justifying a favourable outcome in this review.[103]
[103] Applicant’s SFIC [35], transcript 29 August 2025 page 318
Respondent’s submissions
76. The Minister accepted that this consideration weighs somewhat in favour of the applicant but submitted it does not outweigh the heavy weight of the protection and expectations of the Australian community which weigh in favour of cancellation.[104]
[104] Respondent’s SFIC [35]
77. The Minister acknowledged that if applicant is removed to New Zealand, and his wife and children choose not to join him there, the children will be separated from the applicant for long periods of time, and this is likely to cause significant negative emotional impact. However, the respondent submitted that the applicant's wife and children will be able to return to New Zealand to visit the applicant and maintain regular contact with the applicant from Australia.[105]
[105] Respondent’s SFIC [32]
78. As regards the applicant’s avuncular role to his nieces and nephews, the Minister argued that the applicant has already been away from his nieces and nephews for a lengthy period of time whilst he was in custody and now in immigration detention, and any separation is unlikely to affect them to the same extent as if he had continued contact. The respondent accepted that the applicant's removal from Australia may negatively impact his nieces and nephews’ emotional wellbeing, but any impact will be ameliorated both by the children's ability to remain in contact with the applicant in New Zealand if they choose to, and by the fact that the applicant does not have a parental role in relation to the care of the children.[106]
[106] Respondent’s SFIC [34]
DISCUSSION OF PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN
79. The Direction requires the decision-maker to give individual consideration to the best interests of each child to the extent that their interests may differ. I will note aspects of the best interests of individual children in commenting on the evidence led in the proceedings, but I do not consider that the interests of the individual children differ apart from obvious differences such as whether they are the applicant’s children or his nieces and nephews.
80. As regards the applicant’s children, the Tribunal is satisfied (pursuant to paragraph 8.4(4)(b) of the Direction) that the applicant is likely to play a positive parental role in the future. This is based on the statements and oral testimony of several witnesses,[107] including the applicant, Alyce McElroy and Diane McElroy. All three witnesses expressed positivity about the applicant assuming greater parental responsibility in the future. Similarly, all three witnesses expressed their view that the interaction between the applicant and each of the three children is beneficial to the children and being separated from him would be detrimental to each of the children (pursuant to paragraph 8.4(4)(d) of the Direction) even considering the time that he has spent in prison and immigration detention.
[107] See for example, Tammy Harding transcript 28 August 2025 pages 206-207; Jenna Onley transcript 29 August 2025 pages 283-284
81. Pursuant to paragraph 8.4(4)(e) of the Direction in relation to each of the applicant’s three children there is currently another person who plays a parental role, that is their mother, Alyce McElroy. However, the evidence establishes that applicant has been very involved with his children in the past[108] and anticipates playing a pivotal role in their lives in the future, for example by assisting IP as he learns to drive,[109] supporting KM[110] and being present for IM, who ‘wants her daddy home’.[111]
[108] See for example, Alyce McElroy transcript 28 August 2025 pages 126-127
[109] Applicant transcript 28 August 2025 page 90. “Elves” in the transcript refers to “Ls” in human speech.
[110] Applicant transcript 28 August 2025 pages 44-46
[111] Daine McElroy transcript 28 August 2025 page 163
82. As regards the applicant’s nieces and nephews, their father, Lee Hockey, is a single parent therefore clearly fulfills a primary parental role. However several witnesses, including Lee Hockey, testified about the support that applicant has provided to Lee Hockey and his children.[112]
[112] Transcript 29 August pages 236-237
83. I note the Minister’s arguments that the minor children can stay in contact with the applicant (either remotely or by visiting him) if he is removed to New Zealand. Several witnesses challenged this assertion but, in any case, I infer that the best interests of the children will be served by the applicant continuing in a firsthand role as a parent and uncle by being physically present in the lives of the children.
CONCLUSION ON PRIMARY CONSIDERATION 4 – BEST INTERESTS OF MINOR CHILDREN
84. The Tribunal concludes that this consideration weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF AUSTRALIAN COMMUNITY
85. Paragraphs 8.5(1) and 8.5(2) of the Direction state the Australian community's expectation that non-citizens should obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter and remain in Australia. The Tribunal must give effect to this norm.[113]
[113] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]–[93], [100]–[104] per Stewart J and Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52]
Applicant’s submissions
86. The applicant acknowledged that this primary consideration weighs against him. However, he submitted that it should not outweigh the strong considerations in his favour.[114]
[114] Applicant’s SFIC [38]
Respondent’s submissions
87. The principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act. The respondent acknowledged that the applicant has lived in Australia from a young age and referred to paragraph 5.2(6) of the Direction which provides that 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.[115]
[115] Respondent’s SFIC [43]
88. The respondent argued that the Australian community would expect the Australian Government to cancel the applicant's visa considering the serious, recidivist nature of the offending and the term of imprisonment imposed. In giving effect to the norm, the Tribunal should give significant weight to the expectations of the Australian community in favour of cancellation.[116]
[116] Respondent’s SFIC [44]
DISCUSSION AND CONCLUSION ON PRIMARY CONSIDERATION 5
89. The Tribunal agrees with the respondent that the applicant has committed a very significant breach of Australian law. As discussed above, the applicant’s criminal conduct was serious. However, the Tribunal must also consider the principle stated in paragraph 5.2(6) that Australia may afford a higher level of tolerance of criminal or other serious conduct where the non-citizen has lived in Australia from a very young age. The safety of the Australian community takes the highest priority under paragraph 5.2(2) of the Direction and in the discussion above the risk to the Australian community has been assessed as low. Taking these considerations into account, I find that this primary consideration weighs moderately against revocation.
OTHER CONSIDERATIONS
90. The Tribunal must take into account the 'other considerations' set out in paragraph 9 of the Direction, where relevant. These considerations include
(a)the legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
LEGAL CONSEQUENCES
91. Paragraph 9.1 of the Direction states that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable in circumstances specified in that section, and in the meantime, detention under s 189. The paragraph further notes that s 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of that person.
Applicant’s submissions
92. The applicant submitted that the Tribunal must consider the ‘legal and practical’ consequences of the Tribunal’s decision under paragraph 9.1 of the Direction.[117] While no international non-refoulement obligations are engaged, the applicant contended that the legal consequence of the Tribunal’s decision would be the applicant’s removal to a country from which he would be permanently barred from returning to Australia. Such removal would inevitably sever his ability to maintain a direct and meaningful relationship with his family, which is likely to result in long-term or permanent family separation.[118]
[117] Applicant’s SFIC [39] citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; FRH18 v Minister for Home Affairs [2018] FCA 1769 at [44], [60]
[118] Applicant’s SFIC [40]-[41]
Respondent’s submissions
93. The respondent accepted that, in accordance with Special Return Criteria 5001, the consequence of any removal after a visa cancellation is such that the applicant cannot be granted any visa to enter and remain in Australia.[119] The respondent noted that because the applicant had not made any claim for protection from New Zealand the question of whether Australia's non-refoulement obligations are engaged is not relevant to this review.[120]
[119] Respondent’s SFIC [47]
[120] Respondent’s SFIC [47]
94. Relying on Stoneley v Minister for Immigration and Multicultural Affairs[121] (Stoneley), the Minister contended that in circumstances where the applicant’s removal and indefinite exclusion from Australia are intended purposes of the statutory scheme, and these consequences underlie and are subsumed in the Tribunal’s evaluation of other considerations in the Direction, the Tribunal should afford neutral weight to this consideration.[122]
[121] [2025] FCA 143 at [37]; application for review from Stoneley v Minister for Immigration and Multicultural Affairs [2024] AATA 1591
[122] Respondent’s SFIC [47]
CONCLUSION ON LEGAL CONSEQUENCES
95. The Tribunal agrees with the Minister’s interpretation of Stoneley and considers that the applicant’s contentions about the legal consequences of the removal are subsumed in the Tribunal’s evaluation of other considerations in the Direction. The Tribunal also agrees with the Minister’s submission that the applicant’s removal and indefinite exclusion from Australia are intended purposes of the statutory scheme. Therefore, the Tribunal affords neutral weight to this consideration.
EXTENT OF IMPEDIMENTS IF REMOVED
96. Paragraph 9.2(1) of the Direction requires decision-makers to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country (in the context of what is generally available to other citizens of that country), taking into account the non-citizen's age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
Applicant’s submissions
97. The applicant submitted that he has no ties, support network, or familiarity with life in New Zealand, having never lived there as an adult. He has no family, relatives, or meaningful connection to New Zealand. He would likely face severe hardship if removed, including homelessness, financial instability, and emotional distress arising from permanent separation from his children. These difficulties would be compounded by his mental health vulnerabilities, which have been exacerbated by prolonged detention and family separation.[123]
[123] Applicant’s SFIC [43]
98. In summary, the applicant argued this consideration weighs heavily in favour of revocation.[124]
[124] Applicant’s SFIC [45]
Respondent’s submissions
99. Relying on paragraph 9.2(1)(b) of the Direction, the respondent argued that the applicant is unlikely to experience significant cultural or language barriers in New Zealand given the similarities between the two countries. The applicant is 41 years of age and has an extensive employment history, which will equip him in finding a job in New Zealand. While the applicant may some difficulty finding employment in New Zealand, these obstacles are not insurmountable.[125] Further, regarding paragraph 9.2(1)(c), the Minister said that New Zealand has a comparable system of social, medical and economic supports to Australia.[126] In particular, the Minister noted that applicant appears to meet the criteria for a determination that he is a ‘returning prisoner’ under section 17 of the Returning Offenders (Management and Information) Act 2015 (NZ) (Returning Offenders Act) that would place him in the same position as he would be in when released back into the Australian community. The framework established under the Returning Offenders Act would enable the applicant to access structured assistance and relevant services such as accommodation.[127] Therefore, he is unlikely to face significant impediments on return.
[125] Respondent’s SFIC [49]-[50]
[126] Respondent’s SFIC [51]
[127] Respondent’s SFIC [52]-[56]
100. On balance, the respondent conceded that this consideration weighs in favour of revocation of the visa cancellation, but only to a limited extent.[128]
[128] Respondent’s SFIC [57]
DISCUSSION AND CONCLUSION ON IMPEDIMENTS TO REMOVAL
101. The applicant is a relatively young man and appears to be in good physical health although I note the evidence led in the hearing that he has several mental health conditions that may be exacerbated by removal.[129] The Tribunal accepts the Minister’s submission that there are not substantial language or cultural barriers in New Zealand and that support may be available to the applicant via the framework established under the Returning Offenders Act. However, I accept that the applicant is likely to face severe hardship if removed because he has no social supports or familiarity with life in New Zealand.
[129] Dr Billel Rababi report dated 14 August 2025, HB662
102. The respondent properly conceded that this consideration weighs in favour of revocation and the Tribunal finds that this consideration weighs moderately in favour of revocation.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
103. Under paragraph 9.3 of the Direction, decision-makers must consider any impact on Australia business interests if the non-citizen is not allowed to remain in Australia noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or an important service in Australia.
The parties’ submissions
104. The applicant made no submissions regarding this consideration.
105. The respondent noted that the applicant had established his own business that appears to have employed several people, but the applicant had acknowledged he was no longer able to run his business due to being in custody.[130] The respondent therefore argued that if the applicant's visa remains cancelled and the business cannot be continued, the impact on Australian business interests would be minimal because the evidence does not suggest that the cancellation of the applicant's visa would significantly compromise the delivery of a major project or important service in Australia.[131]
[130] Respondent’s SFIC [59] citing G11 HB146
[131] Respondent’s SFIC [60]
106. The respondent contended that the consideration of the impact on Australian business interests therefore ought to be given neutral weight.
CONCLUSION ON IMPACT ON AUSTRALIAN BUSINESS INTERESTS
107. The Tribunal agrees with the submissions made by the respondent and notes that no evidence was led in the hearing in support of a proposition that cancellation of the applicant's visa would significantly compromise the delivery of a major project or an important service in Australia. I therefore conclude that this consideration should be given neutral weight.
CONCLUSION ON OTHER CONSIDERATIONS
108. I conclude that the consideration of the extent of impediments if removed weighs moderately in favour of revocation and find that the considerations of the legal consequences of removal and the impact on Australian business interests are both neutral.
CONCLUSION
109. As conceded by his legal representative, the applicant does not pass the character test under s 501(6) of the Act. Therefore, the task of the Tribunal is to synthesise the relevant considerations to reach a single dispositive finding[132] as to whether there is ‘another reason’ why the mandatory Cancellation Decision ought to be revoked.
[132] Byers and Minister for Immigration and Multicultural Affairs [2024] ARTA 183 at [95] and Wallis and Minister for Immigration and Multicultural Affairs [2024] ARTA 624 at [106]-[108] per DP McMillan KC, citing CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] and [35]
110. In doing so, I have had regard to all the primary and other considerations, and I am now required to carry out the evaluative exercise of weighing up the considerations within the overarching framework provided by the Direction.
111. The primary consideration of the protection of the Australian community weighs moderately against revocation of the Cancellation Decision.
112. The primary consideration of family violence is neutral.
113. The primary consideration regarding the strength, nature and duration of the applicant’s ties to Australia weighs very heavily in favour of revocation of the Cancellation Decision.
114. The primary consideration regarding the best interests of minor children weighs very heavily in favour of revocation of the Cancellation Decision.
115. The primary consideration regarding the expectations of the Australian community would be that the visa ought to be cancelled, and this consideration weighs moderately against revocation of the Cancellation Decision.
116. Of the ‘other considerations’ identified in the Direction; the Tribunal finds that the legal consequences of his removal and impact on Australian business interests are neutral and the impediments to removal weigh moderately in favour of the revocation of the Cancellation Decision.
117. Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) should generally be given greater weight than other primary considerations.
118. Having regard to all primary considerations and other considerations in the Direction, I am satisfied that there is ‘another reason’ to revoke the Cancellation Decision.
119. The decision of the Tribunal is to set aside the Reviewable Decision and to substitute a decision to revoke the Cancellation Decision.
Dates of hearing: | 28 – 29 August 2025 |
Solicitors for the Applicant: | Mr F. Nikjoo Nikjoo Lawyers |
Solicitors for the Respondent: | Ms Q Q. Ren HWL Ebsworth Lawyers |
120.
ANNEXURE A
TABLE OF APPLICANT’S OFFENDING HISTORY
| Charge number | Date | Offence | Result |
| H28644016 | 16/08//2006 | Drive on road while licence suspended | Fine: $400 Disqualification: 12 months commencing 16/08/2006 |
| H34519308 | 25/07/2008 | Drive with low range PCA | Fine: $250 Disqualification: 3 months |
| H36837651 | 09/04/2009 | Drive on road etc while licence suspended | Fine: $600 Disqualification: 12 months |
| H37520732 | 08/07/2009 | Drive while disqualified from holding a licence Drive middle range PCA | Community service order: 150 hours Bond s9: 2 years supervision |
| 03/02/2010 (Call up) | Drive middle range PCA | Bond s9: 2 years commencing 08/07/2009 | |
| H42948476 | 02/02/2011 | Destroy or damage property | Bond s10: 2 years |
| 29/10/2012 (Call up) | Destroy or damage property | Bond s9: 12 months supervision | |
| H44176878 | 09/12/2011 | Supply prohibited drug>indictable quantity (no cannabis) SI | Community Service Order: 300 hours |
| H48611950 | 29/10/2012 | Fail to appear in accordance with bail undertaking Destroy or damage property <=42000 - T2 | Bond s9: 12 months supv NSW prob service s10A conviction with no other penalty |
| H70385281 | 02/07/2018 | Drive vehicle, illicit drug present in blood etc - 1st off | Fine: $800 |
| H71060059 | 29/04/2019 | Drive while licence cancelled - 2nd+off | fine: $750 |
| H71183203 | 20/06/2019 | Drive motor vehicle during disqualification period - 2nd+off | fine: $1,500 |
| H70770224 | 02/09/2019 | Drive motor vehicle during disqualification period - 2nd+off | Community correction order: 12 months commencing 02/09/2019 concluding 01/09/2020 |
| H70952736 | 02/09/2019 | Drive motor vehicle during disqualification period - 1st off | Community correction order: 6 months commencing 02/09/2019 concluding 01/03/2020 |
| H596766291 | 02/09/2019 | Drive motor vehicle during disqualification period - 2nd+off | Community correction order: 9 months commencing 02/09/2019 concluding 01/06/2020 |
| H84647744 | 24/01/2022 | Drive, licence suspended under s 66 Fines Act - 1st off | Intensive correction order (aggregate) : 9 months commencing 24/01/2022 concluding 23/10/2022 Community service work: 80 hours |
| H85202834 | 24/01/2022 | Drive motor vehicle while licence suspended - 2nd+off | Intensive correction order (aggregate): 9 months commencing 24/01/2022 |
| H88341716 | 14/06/2022 | Drive vehicle, illicit drug present in blood etc - 2nd+off | Fine: $500 |
| H89757328 | 21/06/2023 | Drive motor vehicle during disqualification period - 2nd+off | Imprisonment: 1 month commencing 21/06/2023 concluding 20/07/2023 Disqualification - driver: 6 months commencing 21/06/2023 |
| H93001372 | 21/06/2023 | Drive motor vehicle during disqualification period - 2nd+off | Imprisonment: 2 months commencing 21/06/2023 concluding 20/08/2023 Disqualification - driver: 6 months commencing 21/06/2023 |
| H78230047 | 23/10/2023 | Drive vehicle, illicit drug present in blood etc - 2nd+off | Fine: $400 |
| H76478111 | 11/03/2024 | Supply prohibited drugs on an ongoing basis-T1 (3 counts) | Imprisonment (aggregate): 4 years commencing 11/05/2023 concluding 10/05/2027 |
| 04/06/2024 (Appeal) | Same as above | Order varied: imprisonment (aggregate): 3 years and 2 months commencing 11/05/2023 concluding 10/07/2026 Non parole period with conditions: 1 year and 8 months commencing 11/05/2023 concluding 10/01/2025 |
ANNEXURE B
DIRECTION 110 - EXTRACTS
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations into account
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
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.
One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are 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.
8.1. Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. 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.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
8.1.1. The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
[Violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children acts of family violence]
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 Australia community to be serious: …
ii.crimes committed against … government representatives or officials due to the position they hold, or in the performance of their duties; …
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). …
8.1.2. The risk to the Australian community should the non-citizen commit
further offences or engage in other serious conduct
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
8.2. Family violence committed by the non-citizen
[This consideration is not relevant to the present case]
8.3. The strength, nature and duration of ties to Australia
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.
Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
8.4. Best interests of minor children in Australia affected by the decision
Decision-makers must make a determination about whether cancellation or a 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.
This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
In considering the best interests of the 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
8.5. Expectations of the Australian Community
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.
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:
[None of the examples apply in this case] …
…
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.
9. Other considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests
9.1. Legal consequences of decision under section 501 or 501CA
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(l) 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.
9.2. Extent of impediments if removed
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.
9.3. Impact on Australian business interests
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.
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