McQuillan and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 10

McQuillan and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 10 (8 January 2025)
Applicant/s:  Shane McQuillan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8417

Tribunal:Senior Member Lyford
Place:Perth
Date:8 January 2025

Decision:The Tribunal sets asides the decision of the Respondent, dated 15 October 2024, not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958, and substitutes that decision with the decision that the cancellation of the Applicant’s visa be revoked.

................................[SGD]...............
Senior Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other 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 – Applicant is a 37 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Minister’s decision not to revoke the cancellation of the Applicant’s visa is set aside and substituted with the decision that the decision to cancel the Applicant’s visa be revoked
LEGISLATION
Migration Act 1958 (Cth) ss 5, 15, 32(2)(a)(ii), 189, 196, 197C, 198. 499, 499(1), 499(2A), 500(6B), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3)(a)(i), 501CA(3)(a)(ii), 501CA(3)(b), 501CA(4), 501CA(4)(a), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hughes and Minister for Immigration, Citizenship, and Multicultural Affairs [2024] AATA 3158
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(3), 5.2(4, 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.1(1)(c), 8.1.1(1)(e), 8.1.2, 8.2, 8.3, 8.4, 8.4(4), 8.4(4)(e), 8.5(1), 8.5(2), 8.5(3), 9, 9.1, 9.2, 9.2(1), 9.3
Statement of Reasons
INTRODUCTION

The Applicant has sought review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), dated 15 October 2024, not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (the MigrationAct).
BACKGROUND
The Applicant is a 37-year-old citizen of New Zealand[1] who arrived in Australia on 19 June 1998 at age 10.[2]
[1] G-documents (Exhibit 15), page 34.
[2] Exhibit 15, page 45.
On 3 February 2014, the Applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa.[3]
[3] CB45.
Between 24 May 2017 and 23 April 2021, the Applicant was convicted of four drug related offences, all dealt with by way of fines.[4]
[4] Exhibit 15, page 20.
On 29 March 2021, the Applicant was arrested by the police and found to have in his possession two separate quantities of 3,4-Methylenedioxymethamphetamine (MDMA), weighing 55.5g and 411g respectively. The Applicant intended to sell both quantities of MDMA.[5] The Applicant has been in custody ever since this date.[6]
[5] Exhibit 15, page 23.
[6] Exhibit 15, page 29.
On 21 August 2021, half a tablet of a non-prescribed medication (quetiapine, an anti-psychotic) was found in the Applicant’s cell. No charges were incurred by the Applicant.
On 21 February 2022, the Applicant was fined in relation to possessing drug paraphernalia and pepper spray which were both seized by police during his arrest on 29 March 2021.[7]
[7] Exhibit 15, page 19-20.
On 8 December 2022, the Applicant was convicted by the District Court of Western Australia with two counts of possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another and sentenced, by Stewart J, to five years and nine months imprisonment.[8]
[8] Exhibit 15, page 29.
On 16 June 2023, the Applicant’s visa was cancelled, as required at law, by the Minister under s 501(3A) of the Migration Act.[9] On 21 June 2024, the Applicant acknowledged receipt of the notice of visa cancellation.[10]
[9] Exhibit 15, page 48.
[10] Exhibit 15, page 82.
On 7 July 2023, the Applicant requested revocation of the decision to cancel his visa.[11] The Applicant sent his request for revocation of the decision to cancel to the Minister before 18 July 2023 and therefore within the 28-day timeframe prescribed by regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth).[12]
[11] Exhibit 15, page 35.
[12] Exhibit 15, page 33.
On 15 October 2024, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa .[13]
[13] Exhibit 15, page 3.
On 16 October 2024, the Applicant applied to the Tribunal for review of the delegate’s decision not to revoke the mandatory cancellation of his visa.[14] As the application was made within nine days after notification, it complied with the time limit set by s 500(6B) of the Migration Act.
[14] Exhibit 15, page 1.
ISSUES
The issues to be decided by the Tribunal are whether:
(a)the Applicant passes the “character test” in s 501(6) of the Act; and, if not,
(b)the Tribunal is satisfied that there is “another reason” why the visa cancellation decision should be revoked under s 501CA(4) of the Act.[15]
[15] See s 501CA(4) of the Migration Act.
THE HEARING AND THE EVIDENCE
The Applicant attended the hearing, by Microsoft Teams (from Karnet Prison Farm, a minimum security facility managing male prisoners), on 19 December 2024 and gave evidence.
The Applicant’s father and mother attended the hearing in person and gave evidence in support of their son, the Applicant. This oral evidence was in addition to the written statements they each provided, in support of the Applicant, referred to immediately below.
At the hearing, the following documents were marked as exhibits:
·Applicant’s Statement of Facts, Issues and Contentions, dated 20 November 2024 and filed by the Respondent on 21 November 2024 (Exhibit 1);
·Respondent's Statement of Facts, Issues and Contentions, dated and filed by the Respondent on 4 December 2024 (Exhibit 2);
·Letter of the Applicant, dated 16 October 2024 and filed by the Applicant on 29 October 2024 (Exhibit 3);
·Personal Circumstances Form, filed by the Applicant on 29 October 2024 (Exhibit 4);
·Statement of Reasons for Decision, dated 15 October 2024 and filed by the Applicant on 29 October 2024 (Exhibit 5);
·Statement of GM (Applicant’s brother), dated 2 December 2024 and filed by the Applicant on 3 December 2024 (Exhibit 6);
·Statement of MGM (Applicant’s uncle), undated and filed by the Applicant on 3 December 2024 (Exhibit 7);
·Statement of NM (brother), undated (unsigned version filed by the Applicant on 3 December 2024 and signed version filed by the Applicant on 16 December 2024) (Exhibit 8);
·Statement of JM and AM McQuillan (Applicant’s father and mother) undated, (unsigned version filed by the Applicant on 9 December 2024 and signed version filed by the Applicant on 16 December 2024) (Exhibit 9);
·Child support assessment letter, dated 27 May 2024 and filed by the Applicant on 9 December 2024 (Exhibit 10);
·Child support letter, dated 8 June 2024 and filed by the Applicant on 9 December 2024 (Exhibit 11);
·Statement of the Applicant, undated and filed by the Applicant on 9 December 2024 (Exhibit 12);
·Statement of MJM (Applicant’s brother), undated and filed by the Applicant on 16 December 2024 (Exhibit 13);
·Statement of TM (Applicant’s brother), undated (signed with attachment) and filed by the Applicant on 16 December 2024 (Exhibit 14);
·G-Documents, labelled G1-G7 (comprising 162 pages), filed by the Respondent on 6 November 2024 (Exhibit 15); and
·Tender Bundle, labelled TB1-TB3 (comprising 163 pages), filed by the Respondent on 2 December 2024 (Exhibit 16).
Where relevant, the above evidence will be referred to in the Tribunal’s consideration of the issues below.
LEGISLATIVE FRAMEWORK
Mandatory visa cancellation – “character test”
Under s 501(3A) of the Migration Act, the Minister must cancel the visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph 7(1), (b) or (c); or
…
(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 Territory.
(Emphasis added)
The “character test” is set out in s 501(6) of the Migration Act and provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7));
(Original emphasis & emphasis added)
“Substantial criminal record” is defined in s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis & emphasis added)
Power to revoke visa cancellation decision
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice of the decision setting out the original decision (s 501CA(3)(a)(i)), particulars of the relevant information (s 501CA(3)(a)(ii)) and invite the person to make representations to the Minister about revocation of the original decision (s 501CA(3)(b)).[16]
[16] Migration Act s 501CA(3).
Section 501CA(4) of the Migration Act provides that, the Minister may revoke the original decision if:
· representations have been made by the applicant for review in accordance with an invitation to the applicant to make such representations about revocation of the cancellation: s 501CA(4)(a) of the Migration Act; and
· the Minister is satisfied that:
(i) the person passes the “character test”: s 501CA(4)(b)(i) of the Migration Act; or
(ii) there is “another reason” why the original decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.
Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the “character test” under s 501CA(4)(b)(i) of the Migration Act and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) of the Migration Act if there is “another reason” why the original decision should be revoked.[17]
[17] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
A decision under s 501CA(4) of the Migration Act involves an evaluation of the factors for and against revoking the cancellation.[18]
[18] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338.
Direction No 110
As stated above, the Tribunal is required to form a state of satisfaction as to whether there is “another reason” why the original decision should be revoked, reasonably and on a correct understanding of the law.[19] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[19] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 7 June 2024, the Minister made Direction No 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No 110). Direction No 110 replaced the previous Direction No 99.[20]
[20] Direction No 110 paras 2-3.
The purpose of Direction No 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[21]
[21] Direction No 110 para 5.1(4).
Objectives
Paragraph 5.1 of Direction No 110 sets out the objectives of the Migration Act. Specifically, paragraph 5.1(3) of Direction 110 provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Principles
Paragraph 5.2 of Direction No 110 sets out the “principles” which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA” and are expressed as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
(Emphasis added)
Informed by the principles set out in paragraph 5.2 of Direction No 110, the Tribunal must consider the “primary considerations” listed in paragraph 8 of Direction No 110, and the “other considerations” listed in paragraph 9 of Direction No 110, where relevant to the decision.[22]
[22] Direction No 110 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 110, which includes the Tribunal.
Primary considerations – paragraph 8 of Direction No 110
In making a decision under s 501CA(4) of the Migration Act, the five “primary considerations” the Tribunal must take into account are:[23]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[23] Direction No 110 para 8.
Other considerations – paragraph 9 of Direction No 110
The “other considerations” the Tribunal must consider, insofar as they are relevant, include (but are not limited to):[24]
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
[24] Direction No 110 para 9.
Primary & other considerations – further guidance
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 110 can be found in paragraph 7, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
APPLICANT’S CONDUCT AND OFFENDING
Between 24 May 2017 and 23 April 2021, the Applicant was convicted of the following four drug related offences, all dealt with by way of fines[25]:
·     24 May 2017 (Bunbury Magistrates Court) – Possess drug paraphernalia in or on which there was a prohibited drug or plant: s 7B of the Misuse of Drugs Act 1981 (WA) (Fine: $200);
·     24 May 2017 (Bunbury Magistrates Court) – Possess a prohibited drug (Cannabis): s 6(2)B of the Misuse of Drugs Act 1981 (WA) (Fine: $200);
·     25 June 2018 (Broome Magistrates Court) – No authority to drive (expired) (Fine: $100); and
·     23 April 2021 (Perth Magistrates Court) – Failed to comply with requirements (MDL Disqualified 3 months concurrent, Fine: $300).
[25] Exhibit 15, page 20.

As stated above, on 29 March 2021, the Applicant was arrested by the police and found to have in his possession two separate quantities of 3,4-Methylenedioxymethamphetamine (MDMA), weighing 55.5g and 411g respectively. The Applicant intended to sell both quantities of MDMA.[26] The Applicant has been in custody ever since his arrest on 29 March 2021.[27]
[26] Exhibit 15, page 23.
[27] Exhibit 15, page 29.
The incident which occurred on 29 March 2021, is described in the Amended Statement of Material Facts, dated 6 April 2022, as follows:[28]
[28] Tender Bundle (Exhibit 16), page 45-46.
1.At about 4.20pm on Monday 29 March 2021 accused [the Applicant] was driving a silver Toyota Prado, [registration omitted] in a northerly direction along Great Northern Highway, near Broome Highway in Roebuck. The vehicle belonged to co-accused [name omitted] who was sitting in the passenger seat.
2.Police conducted a targeted vehicle stop and both accused were arrested on suspicion of possession of a prohibited drug with intent to sell or supply. The vehicle was conveyed back to Broome Police Station where police conducted a search of it.
3.Located in the front, passenger side footwell was a plastic guard underneath the glove box. Police removed the plastic guard and located a black toiletries bag secreted behind it containing 387.90 grams of methylamphetamine and 55.50 grams of MDMA, about half of which had been separated into ounce quantities.
4.Located on the floor of the footwell was a green notebook containing names and numbers and a metal baseball bat. In a small zip-up bag on the back seat police located a set of digital scales, numerous unused clipseal bags and a can of pepper spray.
….
5.As a result of the vehicle stop in Roebuck, Broome Detectives requested Joondalup Detectives execute a Misuse of Drugs Act search at [address omitted] where [the co-accused] and [the Applicant] live together.
6.Around 9.20pm on 29 March 2021 Joondalup Detectives executed a search warrant whist [the co-accused] and [the Applicant] were in custody in Broome. [The co-accused’s] daughter [name omitted] was present at the time.
7.Located under the bed in a locked bedroom which contained paperwork in [the Accused’s] name, police located a clack bag containing 411 grams of MDMA, empty clipseal bags and a handgun. Located inside a safe in the bedroom were several smoking implements and a set of digital scales with traces of white powder on them.
8.Located in the office areas of the house, police located a further 27.70 grams of MDMA in a small wooden box.
9.The accused were not interviewed in relation to the search of [address omitted].
10.Police seized and later downloaded the contents of an[sic] Oppo Reno mobile phone which [the co-accused] admitted was his and located messages on the encrypted messaging application ‘Signal’ showing offers to sell MDMA and methylamphetamine in the days leading up to the vehicle stop.
On 21 August 2021, half a tablet of a non-prescribed medication (quetiapine, an anti-psychotic) was found in the Applicant’s cell. However, no charges were incurred by the Applicant.[29]
[29] Exhibit 16, page 132.
On 21 February 2022, the Applicant was fined for:
two separate counts of Possessed drug paraphernalia in or on which whether is a prohibited drug or plant under s 7B of the Misuse of Drugs Act 1981 (WA) (Total fine: $500); and
(b)one count of Possessed of a controlled weapons under s 7(1)A of the Weapons Act 1999 (WA) (Fine: $500).[30]
[30] Exhibit 15, page 20.
The above fines both relate to the to the drug paraphernalia and pepper spray seized by police during the Applicant’s arrest on 29 March 2021, as described above.[31]
[31] Exhibit 15, page 20.
On 8 December 2022, the Applicant was convicted by the District Court of Western Australia with two counts of Possession of a Prohibited Drug (i.e. MDMA) With Intent to Sell or Supply and sentenced by Stewart J to 5 years and 9 months imprisonment.[32] It was this conviction that led to the mandatory cancellation of the Applicant’s visa by the Minister under s 501(3A) of the Migration Act on 16 June 2023.
[32] Exhibit 16, page 49.
ISSUE 1 – DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the “character test” is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record”, as defined by s 501(7)(c) of the Migration Act. Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[33]
[33] Migration Act s 501(7)(c).
Failure to pass the character test arises as a matter of law.[34]
[34] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
As stated above, on 8 December 2022, the Applicant was convicted of convicted by the District Court of Western Australia with two counts of Possession of a Prohibited Drug (i.e. MDMA) With Intent to Sell or Supply and sentenced by Stewart J to 5 years and 9 months imprisonment.[35]
[35] Exhibit 16, 49.
Accordingly, the Applicant does not pass the “character test” in s 501(6) of the Migration Act.[36]
[36] See Migration Act s 501CA(4)(b)(i).
ISSUE 2 – IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Since the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must determine whether, having regard to the primary considerations and other considerations contained in paragraphs 8 and 9 of Direction No 110, respectively, there is “another reason” why the visa cancellation decision should be revoked. That is, the statutory power to revoke is only enlivened if there is “another reason” why the visa cancellation decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.
Primary considerations – paragraph 8 of Direction No 110
(i) Protection of the Australian Community
The first primary consideration, in paragraph 8.1(1) of Direction No 110, focuses on the protection of the Australian community. Direction No 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm caused by criminal activity or other serious conduct by non-citizens. 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.[37]
[37] See also Direction No 110 para 8(1).
Paragraph 8.1(2) of Direction No 110 provides that 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.
Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) of Direction No 110 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending and other conduct to date, decision-makers must have regard to the following:
….
c)….the sentence imposed by the courts for a crime or crimes;
d)the impact of offending on any victims of offending or other conduct and their family,….
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;
….
(Emphasis added)
The Applicant concedes that this consideration weighs in favour of non-revocation.[38]
[38] Applicant’s SFIC (Exhibit 1), [19].
The Applicant concedes that he has been convicted of serious offences.[39] As noted by the Applicant, this is also reflected in the sentence imposed on the Applicant for his crimes, being five years and nine months: paragraph 8.1.1(1)(c) of Direction No 110.
[39] Exhibit 1 at [20].
As contended by the Respondent,[40] the Tribunal considers that the Applicant’s offending should be viewed as not just “serious”, but “very serious”. This is particularly so in circumstances where the offending spans a five-year period, with a trend of increasing seriousness: paragraph 8.1.1(1)(e) of Direction No 110.
[40] Respondent’s SFIC (Exhibit 2) at [17].
It is not in dispute that the Applicant was convicted of two counts of possession of MDMA with intent to sell or supply, respectively in the amounts of 55.5g and 411g respectively and that the total effective prison sentence imposed on the Applicant was for a period of five years and nine months.[41]
[41] Exhibit 1 at [11].
The “seriousness” of the Applicant’s offending is highlighted by the following sentencing remarks of Judge Stewart:
… [T]he seriousness of your offending is demonstrated by the following factors, in my view. The damage, the dangerous drugs, like MDMA, have done and continue to do to Australian society is well known, and I do not need to repeat it to you this morning.
MDMA is a harmful, prohibited drug which has the same high level of seriousness as methylamphetamine, cocaine and heroin. You were in possession of a significant quantity of MDMA, this places you at a higher level of culpability.
You were engaged in a commercial drug dealing activity at a higher level in the drug distribution network than a low-level street dealer. There can be no doubt that, given the quantity of the MDMA, it would have been distributed within the community for profit, and on any assessment, your motivation was commercial.[42]
[42] Exhibit 15, page 24.
For the above reasons, the Tribunal considers that the nature of the Applicant’s was “very serious” and that this consideration weighs against revoking the cancellation of his visa.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No 110 states, in part:[43]
[43] See also Direction No 110 para 8.1(2)(b).
(1)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.
(2)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 noncitizen 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). …
(Emphasis added)
There is no statutory constraint on the way that “risk” is assessed by the decision-maker, other than that there must be a rational and probative basis for the assessment.[44]
Nature of the harm to individuals or the Australian community
[44] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
It is not in dispute that the harm that the Applicant could cause should he reoffend by distributing drugs into the community could be serious.[45]
[45] Exhibit 1 at [21] and Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171 at [54] – [58].
As contended by the Respondent,[46] the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and physical, financial and psychological harm to members of the Australian community. This is consistent with the Tribunal’s findings in Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]-[54], on the nature of potential future harm involved in the sale of dangerous drugs:
This Applicant had a significant involvement in the trafficking and supply of dangerous drugs. The consumption of such substances may cause catastrophic harm to individual users. However, there are other and perhaps slightly less obvious deleterious effects of this unlawful activity. As is now well-known, addicted individual users of these substances all too often resort to committing crimes themselves in order to raise sufficient funds to meet their habit.
As well, there is a quantifiable cost to the community both in terms of an increased imposition on (1) the public health system to cope with the physical and psychological consequences of these substances in our community; and (2) resources to be allocated to law enforcement agencies to detect and apprehend the wrongdoers and the justice system to hear and adjudicate offences arising from this activity.
It is clear that any return or resumption by the Applicant to his previous drug offending conduct would represent a quite significant risk of physical and psychological harm to members of the Australian community.
… given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.
[46] Exhibit 2 at [20].
The Tribunal considers the nature of the harm which would be caused were the Applicant to reoffend in a similar manner to be serious and this consideration weighs against revoking the cancellation of his visa.
Likelihood of the non-citizen engaging in further criminal or serious conduct
Despite the nature and seriousness of the Applicant’s conduct to date, the Applicant contends, and the Tribunal accepts, that the Applicant presents as a low likelihood of reoffending in a serious manner.[47]
Rehabilitation, remorse & insight into offending
[47] Exhibit 1 at [28].
This Applicant’s offending occurred in the context of the breakdown of his relationship with his ex-partner and the mother of his son, losing his home and his employment.[48] Drug use played a significant role in the offending, with the Applicant selling illicit substances, at least in part, to fund his serious drug addiction. The Applicant is fully aware of the role his drug addiction played in his offending and is committed to staying clean and sober.
[48] Exhibit 15, page 25, 117.
In the Applicant’s own words:
It would be fair to say that my life had become completely unmanageable in the lead up to my offending. I had started using recreational drugs initially on weekends. Slowly but surely my abuse of these vile substances increased, until I was using virtually everyday and my casual habit had turned into an addiction. I soon found myself unemployed, as my erratic and unreliable behaviour when affected by these drugs was not conducive to holding down a fulltime job with a dependency that I was desperate to support. I made a[n] incredibly foolish decision to start selling drugs to other users. I want to stress that I am not trying to justify my offending in any way, but really providing the context in which it occurred.
….
I am acutely aware my drug problem played a major role in offending behaviour, but the programs I have participated in and the tools and strategies and knowledge that I have taken from them have me ideally positioned to stay completely clean and sober in the future. In the past I have spent time with individuals who don’t have my best interests at heart, but I have cut ties with these people and moving forward I will only associate with those who will have a positive influence on me, and who value leading a prosocial law abiding life.[49]
[49] Exhibit 15, page 117.
In his most recent Statement, the Applicant describes the background to his offending as follows:
6.[My son] was born on.…July 2013, I separated from his mother….in late 2015. We had an On/off relationship for about another 1 year. For the first 2 years of [our son’s] life, I worked fulltime and financially supported the family while [my ex-partner] stayed home in Eaton with [our son]. [Our son] went into daycare around the age of 2 and [my ex-partner] went back to work just before we separated.
7.After we separated, [my ex-partner] moved to Donny Brook. I remained in Eaton for about 18 months. I went to Broome for work in 2017 for about 1 year and [my ex-partner] moved to Queensland with [our son]. I did not see [our son] for this year, other than a 2-week period after [my ex-partner] flew back from Queensland.
8.I paid child support from not long after separation until around the time I left for Broome. Used to come out from my account automatically. I have not paid child support since but I am still engaged with Centrelink. I understand the account is currently in credit due to possible overpayments.
9.After separation, (both before and after Broome) I had [our son] every second weekend, Friday afternoon to Sunday. After Broome, I was staying at my parents’ house in Australind, we would go to the park, fishing, bike riding, played video games, saw his cousins,…., socialised with my side of the family.
10.I met my co-offender to my drug offending in Broome, we worked together. I caught up with him in 2020 in Perth and ended up staying with him. I stopped seeing [my son] on a regular basis at this point and did not return to any sort of regular sort of relationship with him before my imprisonment.
11.I only had phone calls and text messages with [my son] from 2020 onwards. I was abusing illicit substances and didn’t want him to see me. I haven’t seen or heard from him since my imprisonment.
12.I have had contact with [my ex-partner], [my son] is upset about what happened when I stopped seeing him. I desperately want to mend that relationship and take up my role as his father. I want to support him and engage in the activities that we used to. My parents and brothers still see him from time to time and he is not estranged from my side of the family. I deeply regret the upset that I caused [my son] and that I have been absent from his life for so long.
My offending
13.Prior to moving to Perth, I would use methylamphetamine occasionally. Moving to Perth saw my use increase over time, it was easier to get, more accessible, I was in a more permissive environment, had no real responsibilities, and a new relationship with a woman who was also using.
14.My parents did notice when I was in Australind and tried to pull me up. I moved to Perth and had less contact with them. The drugs I was caught with were to be sold to support my habit.
15.I know full well where drug use can lead to, I know what my triggers are, I know I can ask mum and dad for help. I learned these things in prison and there is no way I want to come back to prison.
16.If I see people using, and there is peer pressure, I know I have to walk away. That was always what got me in the past. I know I have to think about the potential consequences, where it can lead to, and the people it can effect.[50]
[50] Exhibit 12.
In his oral evidence before the Tribunal, the Applicant described the fact that his drug use worsened in 2017 because he was associating with “heavy users” that led him “down the wrong path” and the break-up of his relationship with his ex-partner and separation from her and his son was a “very emotional time for him”. The Applicant described moving to Perth in 2019, away from his parents and immediate family, and how his drug use became more frequent, almost every day, and he did not want to go near his son like that. The Applicant said “I hate myself for that”. Accordingly, his relationship with his son deteriorated. The Applicant said that he “was getting worse but he couldn’t see it”. The Applicant said that his parents did not know how “under” he was at that time but they “know everything now”.

In relation to his offending, the Applicant pleaded guilty, accepted responsibility, has engaged in rehabilitation and demonstrated remorse and insight into his offending.[51]
[51] Exhibit 15, page 24-25.
As noted by the sentencing judge, Judge Stewart:
In mitigation, you have pleaded guilty and that has facilitated the administration of justice. You have accepted responsibility for your offending, and it is evidence of your remorse…
….
Now, turning to other matters in mitigation, it is to your credit that you have completed courses while you have been remanded in custody. I understand you have completed a Solid Ground Course, which included drug and alcohol counselling. You’ve also been appointed to a trusted level 1 position, involving grounds work, while you’ve been at Casuarina.
I understand that you plan to complete further courses, you’ve also done a barista course. You want to make the most of your time while you’re in prion and to improve yourself. I accept that you have insight where you went wrong, and it’s certainly mitigatory.[52]
[52] Exhibit 15, page 24-25.
While in custody, the Applicant has engaged in numerous voluntary rehabilitation programs, including a methamphetamine program (“ADAPT”), Plan for Personal Management, Narcotics Anonymous, counselling and educational programmes.[53]
[53] Exhibit 15, page 117, 126-7; Exhibit 16, Parole review report, [8.3].
In his oral evidence at the hearing, the Applicant explained the methamphetamine program (“ADAPT”) was undertaken voluntarily in prison and has helped him identify when he is “going off track again” and that, if he is, he now knows he needs to reach out to his mother and father and/or brothers and “ask for help” rather than isolating himself as he did in the past. The Applicant described the “Standing on Solid Ground” rehabilitation program that he undertook voluntarily whilst in prison as teaching him “cognitive thinking” and training his mind to establish neural pathways, understanding the situation you are in and to “think before you act”. The Applicant also described the “AVP” (Alternative Violence Program) he voluntarily undertook whilst in prison as being a program that taught him about the “triggers” that can lead him down the wrong path, such as relationship break ups or bad news. The Applicant said that this course taught him that when “triggered” he should go to his support network and ask for help rather that “just self-medicating” as he did in the past. The Applicant explained that he was confident he would not relapse into drug use as he now understood the effects on his family and the community, that prison was a “wake up call” and that he “wanted to make amends to everyone.
In the Applicant’s own words:
I would like to firstly reiterate how remorseful I am for my offending behaviour. I realise that my actions had a significant impact on my community and for that I’m truly sorry. Although this has undoubtedly been a low point in my life coming to prison has also had a silver lining of sorts as well. It has forced me to take a good hard look in the mirror and really contemplate the man I had become. Needless to say I wasn’t entirely happy with what I saw. Since then I have tried my best to do whatever I could to address the factors in my life that led me to stray, and I believe that I have been successful in this endeavour.
…..
I am much more mature, thoughtful and emotionally intelligent person than I previously was, and I feel absolutely certain I am no longer a risk to the community. All I want now is to live a quiet and productive life with my loved ones and make them proud again.[54]
[54] Exhibit 15, page 120.
In his oral evidence at the hearing, the Applicant described being in prison as a real “wake-up call”.
The evidence before the Tribunal shows that the Applicant has been deterred from further offending, not only by his terms of imprisonment, but by the spectre of permanent removal from Australia and, potentially, permanent separation from his family (and especially his young son). Through the rehabilitation courses the Applicant has voluntarily undertaken whilst in prison, combined with 3 years and 8 months of forced abstinence of drug use, the Applicant has been addressing any issues that he had with illicit substances and knows well what the consequences would be to his family and community should he reoffend.
The Applicant is currently a minimum-security prisoner and a senior worker in the abattoirs at Karnet Prison and has been commended for his work.[55] The Applicant was assessed in custody using a Risk of Reoffending assessment tool as a low risk of reoffending.[56] Due to this assessment, he was not required to engage in any specific rehabilitation programmes (but nonetheless engaged voluntarily in what was available to him, as described above).[57] He has essentially been a model prisoner, with only 1 recorded incident which did not result in any charges. He has always returned negative tests for drugs and alcohol.[58]
[55] Exhibit 16, page 117 at [1.31].
[56] Ibid [1.32].
[57] Ibid.
[58] Exhibit 16, page 132 at [7.1]-[7.2].
The Applicant will be eligible for parole on 28 December 2024. If granted parole, he will be subject to appropriate supervision by Adult Community Corrections until 28 December 2026.[59] The Applicant has been recommended for release to parole.[60] With the support of Adult Community Corrections, and in the context that he has achieved abstinence from illicit substances and undergone rehabilitation, he is in a good position to cement his rehabilitation again once in the community and permanently abstain from using illicit substances. Based on the evidence of the Applicant’s family, set out below, the Applicant’s ongoing rehabilitation and abstinence from illicit drug use will be strongly supported by his family if he is once again in the community.
[59] Exhibit 15, page 30.
[60] Ibid [14].
The Applicant has a supportive family in Australia which will assist his reintegration into society.[61]
[61] Exhibit 15, page 26
In his most recent Statement, the Applicant describes the importance of his family and their support, as follows:
My family
1.I have a good relationship with my parents. They currently visit me most weekends. They gave me a good childhood, both raised me well.
2.My dad has always been strong, loving and supportive. He helped me find employment, has employed me himself, has always been there to support me financially. When my life went off the rails, he was there to help but I was in a lot of denial. I moved away from them in the lead up to my offending.
3.My mum has always been caring, loving and supportive. Always cooks for us, always at home during childhood – brought us up. When I was living at home, she was cooking for me, driving me around when I lost my licence. I know that I owe them a lot for what I put them through. I am thankful for everything they have done.
4.I have 4 brothers:
a.        NJM – no children
b.        GLM – 2 children
i.         CM (B) – 12 years old
ii.         IM (G) – 7 or 8 years old
c.        MJM – 2 children
i.         MM (G) – 6 years old
ii.         SM (G) – 4 years old
d.        TJM – 1 child
i.PM (G) – 2 years old
5.We are all a close knit family, I receive visits from most of my family often. I would often be around their houses for birthdays and other events. My son is a year younger than [CM], they used to play each other a lot. I have unfortunately missed out on a lot of my nieces and nephews growing up due to my imprisonment, which I deeply regret.
…..
17.All the support I have received from my family has really opened my eyes to how lucky I am. Coming to prison had the silver lining of giving me a wake up call in terms of how my actions were affecting my family. I’d be lost without my family.[62]
[62] Exhibit 12.
The Applicant’s mother, father and four brothers (two older and two younger) all live in the Southwest of Western Australia.[63] In the Applicant’s own words:
My immediate family are all living in W.A in the South West Australind/Eaton and are my greatest support of myself and my son they are permanent residen[ts] (sic.) of Australia since 1998 and lived, worked, participated and grown here. My incarceration has been difficult for them to accept as they take responsibility for me being in prison. The punishment would be on my family of a negative outcome with no chance for me to make amends in the country that [I have] lived since childhood. My family especially my parents, would be devasted the most and in there (sic.) retirement have no wish to return to live in New Zealand.[64]
[63] Exhibit 15, page 116.
[64] Exhibit 15, page 116.
At the hearing, the Applicant described his relationship with his parents as “loving and supportive”. The Applicant said that he had done “lots of social and family things” with his eldest brother and that he had worked for years in the abattoirs with his second oldest brother, who has two children, a boy (12) and a daughter (9) that had a “positive loving relationship” with his son. The Applicant said that his second youngest brother had two girls that played with his son and that his youngest brother was a supportive sibling who was the “second address on his parole” application form.
All four of the Applicant’s brothers (two older and two younger), his uncle and his parents each provided statements in support of the Applicant’s review application: Exhibits 6-9, 13 and 14. As stated above, the Applicant’s mother and father both also appeared at the hearing and gave evidence in person.
The Applicant’s parents provided the following joint statement (prepared by the Applicant’s Mother) in his support:
[My husband] and I are both retired from paid employment, of which was the Export Meat Industry and Bookkeeping in Human Services, respectively. We are self-funded retirees and are now receiving Services Australian pensions. We have both had management and leadership roles within our employment history…
Our children….live in Eaton or Australind of the Southwest. All our children have owned or own their own homes in the Dardanup or Harvey Shires…
We have visited [the Applicant] throughout his incarceration, at Casuarina, Acacia and Karnet Prison Farm on a weekly basis or as permitted, with the exception of 6 weeks when [my husband] did some contract work in Broome, and I visited New Zealand. To my knowledge we and three of his brothers, a son’s partner, and his child and two of his nieces are his only visitors in prison and on each visit, money is deposited into his prison account to cover his personal expenses.
[The Applicant’s] drastic and unexplained departure from his family hub and parental responsibilities has seen him migrate towards his drug dependant friends and into serious crime.
Yes, we knew [our son] had a drug problem, but we didn’t think it was to this degree of addiction or dealing. We are still grieving the nature of his crime and the fallout on us and especially on his son. This event initially polarised the family members on the lack of intervention or preventative measures that we could have taken and didn’t.
Irrespective of his family’s reaction, we are [the Applicant’s] only resources to survive after this internment and life beyond prison.
[The Applicant] is fully aware of the harm and damage he has caused…
There is a shared family responsibility to rehabilitate [the Applicant] back with family and his son…if we were permitted and we are fully prepared to provide all the resources to do so. We can provide accommodation, a vehicle, living needs, sober environment, financial resources for rehabilitation programs. We live close to recreation centre, daily bus route to Bunbury and are seeking out employment opportunities for [the Applicant].
[The Applicant’s] removal from Australia would cause lifelong trauma to our family and not be able to sustain this rehabilitation without us.[65]
(Emphasis added)
[65] Exhibit 9.
The Applicant’s father’s oral evidence at the hearing can be summarised as follows:
·     That he and the Applicant had a very close father/son relationship;
·     That he had seen the Applicant almost every week since his imprisonment first at Casuarina, then Acacia and now Karnet Prison Farm;
·     He had worked together with his son for ten years in the Southwest of Western Australia;
·     He had worked in a management position (before retiring) and had always helped his sons obtain employment;
·     The effect if his son/the Applicant if he was removed to New Zealand would be emotionally and mentally devastating on him and the family unit, particularly given that all his sons lived nearby – it would “split the family”;
·     While the Applicant has been in prison he has missed his 70^th birthday gathering and has missed out on all the weekly/monthly family gatherings, such as birthdays and sporting events;
·     If the Applicant is able to remain in Australia, the Applicant will have his “full support”. He will provide him with accommodation, help him find employment, assist with transport, provide financial support, help him connect with family and friends (“people we know”) and develop a social life; and
·     If the Applicant was removed to New Zealand, he would be unable to provide him with the same support. In Australia, the Applicant would be living under his roof rent free, fed and with no utilities to pay. In New Zealand, the Applicant would need to pay a bond, rent, utilities and other ongoing costs which, as a retiree, would place a financial strain on him.
The Applicant’s mother’s oral evidence at the hearing can be summarised as follows:
·     She described the Applicant as her “gentle giant”, that he “shows love”, that he has the ability to “walk on country, rooted” and he “stands tall”;
·     She said the Applicant had a duty/honour to restore his life with his son, family and loved ones;
·     She said that she had visited the Applicant in prison, since his incarceration, generally weekly, either with the Applicant’s father (her husband) or with one of the Applicant’s brothers (her sons);
·     She said that the Applicant’s downfall was that he did not tell her and her husband (the Applicant’s father) “all of the information”;
·     If the Applicant was removed to New Zealand, it would effectively be a “life sentence” for the Applicant because he would be unable to see his son again (i.e. in person) and that the family would be “devastated and broken” and “divided between two lands”;
·     She said that it was “on the family” to reintegrate the Applicant back into the community and “get him the help he needs” – the Applicant needs to sustain good living and a life with the emotional support he needs; and
·     First the Applicant needs to re-establish a relationship with his son.
The Applicant’s oldest brother states the following in his support:
….I have a full range of driving licenses, and my princip[al] (sic.) employment history is a Truck Driver. I have always been employed and I have never been released from any job that I’ve held.
I built and sold my first home in Eaton, WA and apart from a few years in Brisbane, Queensland, I have lived in Eaton/Australind WA.
[The Applicant] is my younger brother. He has been in my life from birth, so 37 years.
His drug use is known to me, his involvement with dealing or this serious crime was unknown. The people he was hanging around with at the time are also unknown.
I don’t believe that [the Applicant] will put himself or his family in this position again, as he’s fully aware of what it costs to be unable to be with family and see [his son]… and that his offen[c]e (sic.) has led to his rights to live in Australia being cancelled.
I have been in contact with [the Applicant] while he’s been in prison, and prior to that on family occasions or when we needed to. The period of time that I didn’t see Shane was before he went to Broome (2017) and when he went to Perth (2020), coincidentally the drug offences leading to serious crime when he was either isolated from his partner and son (2017) or mum and dad and us (2020).
….
I know [the Applicant] regrets and expresses shame at what’s happened because of his drug use and addiction, and the so-called friends of drug dependency….
[The Applicant] won’t survive alone without us (his family in Australia) to support him… if he is deported to New Zealand.[66]
[66] Exhibit 8.
The Applicant’s second oldest brother states the following in his support:
[The Applicant] is my younger brother whom I have known for his entire life. I also worked with [the Applicant] for over 10 years at Harvey Beef and Western Meat Processors.
[The Applicant] has never been a violent or disruptive person and during my time working with [the Applicant], he was as an extremely well skilled and hard worker that maintained an excellent rapport with fellow coworkers, was an excellent trainer of new employees and was always willing to provide assistance and support to supervisors and managers.
[The Applicant] has always been a kind and gentle uncle to my 2 children and would always help them assemble the Christmas or birthday gifts that he had purchased for them.
Although [the Applicant] strayed from the path that my family hoped for, I’m convinced that he possesses the desire and determination to learn from this experience and move in a positive direction with his life and be the positive role model that his son….requires.
To achieve this, he will however require the support of our family which is based here in Australia. He does not have this same support network in New Zealand as he was only a child when the family emigrated.[67]
[67] Exhibit 6.
The Applicant’s second youngest brother states the following in his support:
[The Applicant] is the least aggressive of our siblings and is known for his gentle nature, friendliness, and good sense of humour.
[The Applicant] has had a problem with drugs for a long time. l didn't know that he had gotten into drug dealing as I was going through my own relationship issues. Unfortunately,[the Applicant] doesn't share his problems or ask for help , until it's too late. I am sure that he is aware of the repercussions caused by this behaviour.
I have visited [the Applicant] in Casuarina and at Karnet Prison Farm and know that the visit's from our family have kept his spirits up during his incarceration. Family will continue to uphold this vigil if he is allowed to stay in Australia.
My daughter's haven't had the greatest opportunity to get to know their uncle or cousin [the Applicant’s son], but they have visited [the Applicant] at Karnet Prison Farm. I have no objection to my brother being a part of my children's upbringing in the future and it will be near impossible for me to include my brother in their lives if he was removed from Australia.
….
My parents and his family in Australia are the only people that will be able to support [the Applicant], upon release from prison.[68]
[68] Exhibit 13.
The Applicant’s youngest brother states the following in his support:
….I was aware that he took part in recreational drug use but had no idea it had turned to dependency and in turn dealing. I admit I failed to recognise at the time the signs that [the Applicant] was struggling to the extent he was with drug abuse and addiction, I believe his reserved personality shadowed a lot of it. I now know what to look for and what resources are available and how to access them if need be. I acknowledge that in order for [the Applicant] to have to best chance of staying sober, talking about his past in full transparency is imperative but I also realise I lack the tools to help him in any real way so feel that it is best suited to a professional.
[The Applicant] understands the gravity of the decisions he's made that have profoundly affected his family, friends and his community and deeply regrets his choose [sic] and actions that got him in this situation. [The Applicant] has taken full accountability and has made every effort to seek out and take advantage of courses and programs available to him whilst incarcerated and has registered for a program to help support him once released.
In no way could I ever see [the Applicant] as a danger to the community. He has clearly made some terrible choices throughout his life whilst ruled by his addiction however that is not a true reﬂection of his character…. .The mistakes [the Applicant] made doesn't change his true character and that is a man with good intentions, who is caring and loving and shows respect towards others. A man I'm proud to call my brother.
I wholeheartedly believe [the Applicant] should be given the opportunity to remain in Australia. This is the only home he knows. I truly believe he is committed to turning his life around and making the most of his second chance….[69]
[69] Exhibit 14.

The Applicant’s uncle states the following in his support:
[The Applicant] is my nephew, and without any children of my own, we have been close since he and his brothers were born. While I live in Brisbane, I have travelled to Bunbury WA on numerous occasions to visit my family, and Shane has also spent time with me in Brisbane over the years. My relationship with [the Applicant] has always been very trusting, positive, and caring, regardless of distance, as it is with all my brothers' boys.
[The Applicant] is a beloved member of our family. If [the Applicant] was removed from Australia, his mother, father, and siblings would not only experience the pain of his absence, but the anguish that arises when parents cannot help their son at a time when he needs them the most…
Knowing [the Applicant] as I do, in the context of family, and in my observations of his behaviours and character for his entire life, I sincerely believe that the offences he committed are not typical of his true nature or temperament, but more the outcome of impacted decisionmaking and unfortunate circumstances. I respect him for owning his actions and their consequences, I know he is remorseful, and I am confident that [the Applicant] is not a danger to the community. He is highly unlikely to reoffend, given this experience, his love for his son and his family, and desire for a future they deserve.
…
My experience of [the Applicant] is lifelong. As his paternal uncle, I have known [the Applicant] for over 37 years. While I do not condone the actions which resulted in his imprisonment, I earnestly believe the offences he committed were completely out of character. I also recognise that at that time, [the Applicant] was experiencing a difficult relationship breakdown and the loss of the family home. I acknowledge that [the Applicant] accepted the consequences handed to him, has shown remorse for his conduct; and been a model prisoner. Therefore, reflecting honestly on my long-term observation of his behaviours, I consider him highly unlikely to reoffend and very responsive to rehabilitation within his loving, consistently supportive family environment.
The son of my brother …and his wife … [the Applicant] has four brothers, as well as his nieces and nephews, who all reside locally in the Bunbury region Australia and are committed to supporting him. Most significantly, [the Applicant’s] son… also lives in the same area with his mother. These familial relationships are of the utmost importance to [the Applicant], and his removal from Australia would substantially diminish their ability to surround him with vital supports to reestablish himself as a contributing member of the community.
…..
[The Applicant] is already proving his pathway toward rehabilitation through his achievements at the prison farm in readiness for reintegration into the Australian community. By enabling him to rejoin his family upon release, I feel certain that Shane will continue to make positive progress if surrounded by his loved ones, especially his son, to rebuild his life.[70]
(Emphasis added)
Strong employment prospects in Australia
[70] Exhibit 7.
The Applicant has a strong employment history in Australia and family members that can assist him gain employment, upon his release from prison, which will assist his reintegration into society.[71]
[71] Exhibit 15, page 26.
A summary of the Applicant’s employment history in Western Australia is as follows:
·     2003-2004: Slaughterman, Harvey Beef, Harvey, Western Australia;
·     2005-2017: Supervisor/Slaughterman, Western Meat Processors, Cowaramup, Western Australia;
·     2017-2020: Supervisor, K.M.C, Broome, Western Australia; and
·     2020-2021: Slaughterman, D.B.G., Bunbury, Western Australia.[72]
[72] Exhibit 15, page 118.
As stated above, the Applicant’s father gave oral evidence at the hearing that he would assist the Applicant to find employment upon release from prison, if he remains in Australia.
In relation providing the Applicant with assistance in gaining employment upon release from prison (if he remains in Australia), his oldest brother states:
I’m prepared to do whatever’s required to help with [the Applicant’s] rehabilitation. I can speak about FIFO employment opportunities, help with transport, money for rehab programs for him and for him and (his son), brotherly support and just be there for him.[73]
[73] Exhibit 8.
In relation providing the Applicant with assistance in gaining employment upon release from prison (if he remains in Australia), his second youngest brother states:
My resources to contribute financially or practically are limited, but with my job seeking opportunities becoming greater, I can help put him in touch with people I know for employment, my doors open for a place to stay and socially open new friendships with my friends.[74]
[74] Exhibit 13.
In relation providing the Applicant with assistance in gaining employment upon release from prison (if he remains in Australia), his youngest brother states:
If given the chance to stay, I have no doubt [the Applicant] will be gainfully employed in short time as he is hardworking by nature and any support he needs through that process whether it's transport, accommodation and especially to assist in any form of rehabilitation program I would be more than willing to help.[75]
Conclusion on risk of reoffending
[75] Exhibit 14.
For the above reasons, the Tribunal considers that the Applicant has a low risk of reoffending in a serious manner. Given the low risk of the Applicant reoffending, the weight that ought to be accorded to the protection of the Australian community is significantly diminished.
Conclusion on the protection of the Australian community
The nature and seriousness of the Applicant’s offending and conduct to date weighs against revocation of the decision to cancel the Applicant’s visa. However, as stated above, based on the evidence of the Applicant and his family (set out above), the Tribunal considers that there is a low risk of the Applicant reoffending in a serious manner. Consequently, the weight that ought to be afforded to the protection of the Australian community is significantly diminished. However, for the above reasons, the Tribunal finds that, overall, this “primary consideration” (protection of the Australian community) weighs moderately against revocation of the decision to cancel the Applicant’s visa.
(ii) Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 110 provides that the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence of the Applicant having engaged in family violence. Therefore this “primary consideration” weighs neutrally in relation to whether the decision to cancel the Applicant’s visa should be revoked.
(iii) The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction No. 110 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or 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.
The Tribunal refers to the evidence of the Applicant, the Applicant’s parents, four brothers and uncle set out above (in [79] to [92]) in relation to the first primary consideration “Protection of the Australian community”.
Based on the evidence before it, the Tribunal considers that the third primary consideration, “Strength, nature and duration of ties to Australia”, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
The Applicant has been residing in Australia for over 26 years.[76] For most of that time, he has contributed positively to the community through his work in the food processing industry.[77]
[76] Exhibit 15, page 45.
[77] Exhibit 15, page 118.
The Applicant’s son, parents, four brothers and uncle all reside in Australia.[78] The Applicant also has also formed longstanding ties with members of the community who speak of him in glowing terms.[79]
[78] Exhibit 15, page 116.
[79] Exhibit 15, pages 122-3, 125.
The Applicant has strong ties to Australia which are of a substantial duration. As stated above, the Applicant’s family will be devastated and permanently separated if he is required to leave Australia. This is a dominant consideration in this case and ought to attract determinative weight in favour of revocation.
In his oral evidence at the hearing before the Tribunal, the Applicant stated that he has an older step-sister in New Zealand the has had very little contact with since moving to Australia, aged 10. He also has aunts and uncles that live in the south of the north island in New Zealand – two on his father’s side and two or three on his mother’s side – but he has “no contact with them” and “doesn’t know them”.
As stated above, the Applicant arrived with his family in Australia on 19 June 1998, aged 10, and has lived in Australia ever since.[80] As set out above, the “Principles” in paragraph 5.2 of Direction No 110 provides:
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
[80] GD at p 45.
For the above reasons, the Tribunal finds that this “primary consideration” weighs heavily in favour of revocation of the decision to cancel the Applicant’s visa.
(iv) Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Migration Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction No 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant, as follows:[81]
[81] Direction No 110 para 8.4(4)(a)-(h).
a)the nature and duration of the relationship between the child and the non-citizen, noting 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;
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; and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has one 11-year-old son, with whom he appears to have enjoyed a close relationship, co-parenting with his ex-partner prior to his incarceration.[82] Based on the evidence before it, the Tribunal considers that it is in his son’s best interests for the Applicant to be permitted to remain in Australia so that he can mend his relationship with his young son and continue to fulfil his role as a father in a meaningful way.[83]
[82] Exhibit 15, page 113.
[83] Applicant’s SFIC, [33]-[36].
In his oral evidence before the Tribunal, the Applicant said that in the three or so years after his son’s birth (before he separated from his ex-partner) were “really good”. Then, after he separated from his ex-partner (before becoming involved in serious substance abuse), he had access to his son every second week and would take his son for walks, fishing, to the movies and to visit his nieces and nephews. The Applicant said that if he could remain in Australia (upon his release from prions) he wanted to be a part of his son’s life, tell him and show him how much he loves him. The Applicant said his ex-partner has told him that if he is able to remain in Australia upon release from prison, she would let the Applicant “make amends” with his son and that she would not “exclude” the Applicant’s from his son’s life. That is, if the Applicant was back in the Australian community, his ex-partner would allow the Applicant to have a physical relationship with his son.
If the Applicant is removed from Australia, his relationship with his son will be further damaged and whilst he would be able to maintain contact with his son via electronic means, it is possible that the Applicant will be unable to be physically present in his son’s life for any significant period.[84] Separation of the Applicant from his son will likely result in severe emotional hardship for both the Applicant and his son, which is not in the “best interests” of his minor son.
[84] Paragraph 8.4(4)(d) of Direction No 110 and Exhibit 15, page 113.
In the Applicant’s own words:
[My son] is my only child and I have been co-parenting with his mother from birth. The only time I dd not have contact with my son, was months prior to my arrest when I left living with my parents and was a resident in Perth.
….
My son has suffered the trauma of me not being in his life …since being in custody. I use to have him fortnightly before coming to prison. A negative outcome would traumatise my son further to be unable to regain his trust and love in a beneficial role to his well being of our father/son relationship.[85]
[85] Exhibit 15, page 113.
The Applicant’s oldest brother states the following in his support on this issue:
….[the Applicant’s] son….is the biggest victim of [the Applicant’s] incarceration. [The Applicant] will not be able to be in [his son’s] life or restore shared custody with his son if he was exiled to New Zealand. My 11-year-old nephew will be without his father and suffer further trauma and mental anguish.[86]
[86] Exhibit 8.
The Applicant’s second oldest brother states the following in his support on this issue:
I believe Shane should be given the opportunity to remain in Australia so he can fulfil his responsibilities as a father, I also do not believe he is a danger to the Australian community and am prepared to help him find employment when he is released.[87]
[87] Exhibit 6.
The Applicant’s second youngest brother states the following in his support on this issue:
[The Applicant’s] grief around losing his son because of his drug problem is his greatest fear. I don't believe that he is a hardened criminal, destined for a life of crime, otherwise there is no way I would continue to support [the Applicant] or put my daughter's at risk.[88]
[88] Exhibit 13.
The Applicant’s youngest brother states the following in his support on this issue:
[The Applicant] is committed to sobriety, his son….[is] the driving force behind this as he is determined to be the father he used to be, the father his son deserves. The same man we've witnessed ﬂourish over the recent years to improve his mental and physical appearance.
…..Reconnecting with his son…is the highest importance for [the Applicant]. He's desperate to never lose that privilege again. The best chance of success [the Applicant] has in staying sober and not reoffending while also being a contributing member of society once again is to be surrounded by the love and support of his family.[89]
[89] Exhibit 14.
The Applicant’s uncle states the following in support on this issue:
[The Applicant’s] 10-year-old son… who he adores, would be heartbroken. And this would be the most devastating loss of all, at such a young age, when they could otherwise be building a strong, lasting relationship. I do believe that by keeping [the Applicant] together with his family gives each person the best chance to thrive.
……
I believe the immediate and future interests of [the Applicant’s son] would be best served with [the Applicant] present in his life. Even in consideration of [the Applicant’s] offences, I am still certain of his inherent good character, deep love for his son, and motivation to be an example of taking responsibility for one's actions, accepting consequences, and acting to rehabilitate and make positive restitution. In good conscience, I could not see any benefit to separating this young boy and his father.[90]
[90] Exhibit 7.
The Respondent contends that the Applicant’s ex-partner appears to be the child’s primary caregiver and fulfils a parental role in relation to the child: paragraph 8.4(4)(e) of Direction No 110. The Respondent also points to the fact that the Applicant’s ex-partner remarried a couple of years ago and that the ex-partner’s new husband could potentially be a positive parental influence on the Applicant’s son. However, in the absence of any direct evidence from the Applicant’s son, ex-partner and/or ex-partner’s new husband this is purely speculative. The evidence before the Tribunal is that the Applicant’s former co-parenting relationship of his son with his ex-partner was cut short of his own volitation when he was using (prior to incarceration), because he “didn’t want his son to see him like that” and then during his incarceration. If the Applicant can remain in the community following his release from prison, there is nothing preventing him from attempting to repair his father/son relationship and resume a co-parenting role with his ex-partner, especially in circumstances where the Applicant says his ex-partner is open to this happening.
For the above reasons, the Tribunal finds that this “primary consideration” weighs heavily in favour of revoking the decision to cancel the Applicant’s visa.
(v) Expectations of the Australian Community
Paragraph 8.5(1) of Direction No 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.

Paragraph 8.5(2) of Direction No 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) of Direction No 110 notes that 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 particular kinds. The paragraph directs that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paragraphs 8.5(2)(a) – (f) of Direction No 110. Those particularised types of harm generally reflect the types of conduct identified in paragraph 8.1.1 as conduct which is considered “very seriously” or “serious”.
Paragraph 8.5(3) of Direction No 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, paragraph 8.5(3) arguably further qualifies the “norm” expressed in paragraph 8.5(1), which refers to the “unacceptable risk”’ of conduct being engaged in. This makes it clear that a “measureable risk” of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This primary consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this primary consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in paragraph 5.2 of Direction No 110 which states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
The Applicant concedes that this “primary consideration” weighs in favour of non-revocation, but that that it should be given limited weight.[91]
[91] Applicant’s SFIC, [37]; [40].
The Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has not done that and that, in the present circumstances, consistent with the “norm” expressed in paragraph 8.5(1) of Direction No 110, the Australian community would expect the Government to not allow him to remain in Australia. However, for the above reasons, the Tribunal does not consider there is an unacceptable risk that the Applicant will breach that same “norm”, and the Australian community would not hold the expectation that the Government would not allow him to remain in Australia for that reason.
For the above reasons, the Tribunal considers that this “primary consideration” should be given limited weight against revocation of the decision to cancel the Applicant’s visa.
Other considerations – paragraph 9 of Direction No 110
Paragraph 9 of Direction No. 110 states:
(1)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;
d)impact on Australian business interests
(i) Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[92]
[92] Direction No 110 para 9.1.
While this consideration in Direction No 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
- Unlawful status;
- The likelihood of becoming subject to detention and/or removal;[93]
- Refusal of other visa applications and cancellation of other visas;[94]
- A prohibition on applying for other visas;[95] and
- Periods of exclusion and special return criteria may apply.[96]
A decision by the Tribunal not to revoke the cancellation of the Applicant’s visa would mean that the Applicant will remain an unlawful non-citizen and require the Applicant be removed from Australia as soon “as reasonably practical” (ss 196(6) and 198 of the Migration Act) and he would be precluded from returning to Australia: s 503(1) of the Migration Act.
Once removed, the Applicant will be subject to exile from Australia by operation of the Special Return Criterion in cl 5001(c) of Schedule 5 to the Migration Regulations 1994, which is a criterion that must be satisfied in order for the Applicant to be granted any visa that he might reasonably be eligible to apply for and be granted.
Further, the Applicant will no longer be eligible to be granted a special category visa by operation of s 32(2)(a)(ii) of the Migration Act, as he is now a “behaviour concern non-citizen” as defined in s 5 of the Migration Act.
The immediate and direct statutory consequences of the legal consequences of the Tribunal deciding not to revoke the cancellation of the Applicant’s visa weigh to some (limited) extent in favour of revocation of the decision to cancel the Applicant’s visa: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [43] per Rangiah J.
(ii) Extent of impediments if removed
Paragraph 9.2 of Direction No 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a), (b) and (c) of Direction No 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraph 9.2(1)(a), (b) and (c) of Direction No 110 are:
·     The Applicant’s age and health;
·     Whether there are substantial language or cultural barriers; and
·     Any social, medical and/or economic support available to the Applicant in their country.
The Applicant has no close family in New Zealand, having been a resident in Australia for some 26 years. As noted above, in his oral evidence before the Tribunal, the Applicant stated that he has an older step-sister in New Zealand the has had very little contact with since moving to Australia, aged 10. He also has aunts and uncles that live in the south of the north island in New Zealand – two on his father’s side and 2 or 3 on his mother’s side – but he has “no contact with them” and “doesn’t know them”.
In his letter is support, the Applicant’s uncle states:
[The Applicant] does not have strong ties to New Zealand. I consider that the hardships he would face emotionally, socially, practically, and financially, in the absence of his immediate family and friends in Australia, would place substantial pressure on his health and wellbeing -especially in light of the fact that he is still a young man with the potential for a successful future ahead of him, if he is permitted to reestablish himself in familiar surroundings with the strength and encouragement of a present, positive, loving, and dedicated family.[97]
[97] Exhibit 7.
The Applicant will likely face some short term impediments in establishing himself upon returning to New Zealand, having to start anew with no family and social support. However, there is no evidence that he would face any insurmountable impediments or barriers in establishing himself, in the context of what is generally available to the citizens of New Zealand.
It has been accepted by the Tribunal, and is relevant in this case, that the Applicant would have the same access as other citizens to support in New Zealand and that those supports are likely to be of a similar kind to those available in Australia.[98]
[98] Hughes and Minister for Immigration, Citizenship, and Multicultural Affairs [2024] AATA 3158 at [172].
As submitted by the Respondent, there are organisations such as Te Pa (formerly known as PARS),[99] which provide assistance to people who are removed from Australia to New Zealand. In this regard, the Tribunal has commented previously, in relation to Te Pa, that ‘[t]here is no reason to think that the Applicant would not receive the assistance that is available if he needed it’.[100]
[99] align="left">[100] Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774 at
[158]
The Respondent notes that the Applicant is a 37-year-old man apparently in good physical and mental health, with a good working history and there are no clear language or cultural barriers that he would face. He would be able to access the same social, medical, and/or economic support as other citizens of New Zealand.[101]
[101] Direction 110, para 9.2.
On balance, the Tribunal finds that this “other consideration” carries limited weight in favour of revocation of the decision to cancel the Applicant’s visa.
(iii) Impact on Australian business interests
Paragraph 9.3 of Direction No 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of, and the Applicant has made no submissions concerning, the impact on Australian business interests of the Applicant is removed or regarding any major project or important service that will be compromised by a decision not to revoke the cancellation decision.
Accordingly, this “other consideration” weighs neutrally in the Applicant’s case.
CONCLUSION
The Applicant does not pass the “character test” in s 501(6) of the Migration Act because of his “substantial criminal record”.
Consequently, the central issue before the Tribunal is whether there is “another reason” to revoke the cancellation of the Applicant’s visa.
In that regard, and in reference to each of the primary and other considerations in Direction No 110, the Tribunal finds, for the above reasons, that the following weights should be attributed to each of the following considerations:
·     First “primary consideration”: “Protection of the Australian community from criminal or other serious conduct” (paragraph 8.1 of Direction No 110): this primary consideration weighs moderately against revocation of the cancellation of the Applicant’s visa;
·     Second “primary consideration”: “Whether the conduct engaged in constituted family violence” (paragraph 8.2 of Direction No 110) – this primary consideration weighs neutrally regarding revocation of the cancellation of the Applicant’s visa, since it is not relevant in the Applicant’s case;
·     Third “primary consideration”: “The strength, nature and duration of ties to Australia” (paragraph 8.3 of Direction No 110) – this primary consideration weighs heavily in favour of revoking the cancellation of the Applicant’s visa;
·     Fourth “primary consideration”: “The best interests of minor children in Australia” (paragraph 8.4 of Direction No 110) – this primary consideration weighs heavily in favour of revoking the cancellation of the Applicant’s visa;
·     Fifth “primary consideration”: “Expectations of the Australian community” (paragraph 8.5 of Direction No 110) – this primary consideration weighs against revoking the cancellation of the Applicant’s visa to a limited extent;
·     First “other consideration”: “Legal consequences of the decision” (paragraph 9(1)(a) of Direction No 110) – limited weight is placed on this other consideration in favour of revoking the cancellation of the Applicant’s visa;
·     Second “other consideration”: “Extent of impediments if removed” (paragraph 9(1(b) of Direction No. 110) – limited weight is placed on this other consideration in favour of revoking the cancellation of the Applicant’s visa; and
·     Third “other consideration”: “Impact on Australian business interests” (paragraph 9(1)(c) of Direction No. 110) – this other consideration weighs neutrally regarding revocation of cancellation of the Applicant’s visa, since it is not relevant in the Applicant’s case.
For the above reasons, the Tribunal considers that, on balance, the decision to cancel the Applicant’s visa should be revoked. In making its decision, the Tribunal is mindful of the “Principles” in paragraph 5.2 of Direction No 110 (as set above). Relevant for present purposes, is the “Principle” in paragraph 5.2(6) of Direction No 110 (referred to [104] above), which provides:
….Australia may afford a higher level of tolerance of criminal and other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age;
Further, in making its decision, the Tribunal is also cognisant of paragraph 7(2) of Direction No 110 which provides that the “primary consideration” in paragraph 8.1 of Direction No 110 (protection of the Australian community) is “generally” given greater weight that other “primary considerations” and that “primary considerations” should “generally” be given greater weight than “other considerations”.
However, paragraph 7(3) of Direction No 110 goes on to provide that one or more primary considerations may outweigh other primary considerations.
In the Applicant’s case, the Tribunal considers that the third primary consideration (Strength, nature and duration of ties to Australia) and the fourth primary consideration (Best interests of minor children in Australia) together outweigh the first primary consideration (Protection of the Australian community) in favour of revoking the cancellation of the Applicant’s visa.
DECISION
For the above reasons, The Tribunal sets asides the decision of the delegate of the Respondent, dated 15 October 2024, not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958, and substitutes that decision with the decision that the cancellation of the Applicant’s visa be revoked.

I certify that the preceding 154 (one hundred and fifty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Lyford

...........[SGD].............................................................
Associate
Dated: 8 January 2025

Date of hearing: 19 December 2024

Solicitor for the Applicant: H W Glenister, William Gerard Legal

Solicitors for the Respondent:

Counsel for the Respondent:

S Coten, Australian Government Solicitor

T Lettenmaier