Mirabueno and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 885
•19 June 2025
Mirabueno and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 885 (19 June 2025)
Administrative Review Tribunal
Applicant: | Christian Mirabueno |
Respondent: | Minister for Immigration and Multicultural Affairs |
Tribunal Number: | 2025/2955 |
Tribunal: | General Member J Pennell |
Place: | Brisbane |
Date: | 19 June 2025 |
CORRIGENDUM
Date of Corrigendum: 4 July 2025
Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following corrections are made to the Reasons for Decision of the Tribunal dated 19 June 2025:
The words “Visa refusal – citizen of Iran – Safe Haven Enterprise Visa (SHEV) (subclass XE-709) – Section 510(6) character test” are to be removed from the Catchwords on page 2 of the Decision and replaced with the words “Visa cancellation not revoked – Class AH Subclass 101 Child Visa – Section 501CA(4) – Section 501(6) character test.”
References to the following cases are to be removed from the Cases section of the Decision on pages 2 and 3:
a. Ali v Minister for Immigration and Border Protection [2018] FCA 650;
b. Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172;
c. CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124;
d. KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124;
e. NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37;
f. PQSM v Minister for Home Affairs [2019] FCA 150;
g. Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545;
h. WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; and
i. Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531.
Statement made on 04 July 2025 at 12:17pm
Applicant/s: Christian Mirabeuno
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/2955
Tribunal:General Member J Pennell
Place:Melbourne
Date:19 June 2025
Decision:The Tribunal affirms the decision under review.
........................................................................
General Member J Pennell
Catchwords
MIGRATION – Visa refusal – citizen of Iran – Safe Haven Enterprise Visa (SHEV) (subclass XE-709) – Section 510(6) character test –– Direction 110 - Protection of the Australian Community - Risk to the Australian Community - Strength, nature and ties to the Australian community - risk of impediments if returned – Legal consequences of decision.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
FYBR v Minister for Home Affairs [2019] FCAF 185
KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PQSM v Minister for Home Affairs [2019] FCA 150
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under s499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Statement of Reasons
THE DECISION UNDER REVIEW
This is an application to review the decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) dated 26 March 2025 to not revoke the mandatory cancellation of the Applicant’s Class AH Subclass 101 Child Visa (‘the visa’) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). The delegate found that the Applicant did not pass the character test and was not satisfied that there was another reason why the cancellation of the visa should be revoked.
The application is made pursuant to section 500(1)(ba) of the Act, which allows an application to be made to the Administration Review Tribunal (‘the Tribunal’) for review of decisions of a delegate under section 501CA of the Act.
The application for review is opposed by the Minister.
BACKGROUND
The Applicant is 32 years old and a citizen of the Philippines. The Applicant first arrived in Australia on 26 August 2008 on a Child (Class AH) (Subclass 101) visa (‘the visa’) and has not departed the country since.[1]
[1] G11 89.
On 10 October 2024, the Applicant was convicted in the District Court in Brisbane of unlawful wounding and entering a dwelling with intent whilst armed in company and sentenced to three years imprisonment (index offending).[2]
[2] G4 46
On 24 October 2024, the department cancelled the Applicant’s visa under section 501(3A) of the Act on the basis that he had a ‘substantial criminal record’ having been sentenced to a term of imprisonment of 12 months or more pursuant to subsections 501(6)(a) and 501(7)(c) of the Act (cancellation decision).[3]
[3] G6
On 1 November 2024, the Applicant made representations to have the cancellation decision revoked pursuant to section 501CA of the Act.
On 26 March 2025, a delegate of the Minister decided under section 501CA(4) not to revoke the cancellation decision[4] (‘the delegate’s decision’) and the Applicant was notified of the delegate’s decision the following day.[5]
[4] G3
[5] G3 24
On 3 April 2025, the Applicant applied to the Tribunal seeking review of the delegate’s decision.[6]
[6] G2
The Tribunal hearing was conducted on 11 June 2025 by video through Microsoft Teams (‘MS Teams’). The Applicant attended the hearing by MS Teams from the Tribunal’s Brisbane Registry to give evidence and make submissions in support of his application. The Applicant’s representative withdrew from acting for the Applicant in the review application on 3 June 2025. As a result, the Applicant was not represented at the hearing. The Respondent was represented at the hearing by Jake Kyranis of Spark Helmore Lawyers.
For the following reasons, the Tribunal has concluded that the Minister’s decision should not be revoked.
Relevant law
Section 501(3A) of the Act, read in conjunction with subsections 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied that person does not pass the character test. This includes when the non-citizen has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly section 501CA(4) of the Act states:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part, section 501(6) states:
(6) For the purposes of this section, a person does not pass the character testif:
(a) the person has a substantial criminal record (as defined by subsection (7)).
Section 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
If an Applicant fails the character test, the issue to be determined under section 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[7] In Plaintiff M1/2021,[8] the High Court referred to how representations made under section 501CA(4) of the Act should be approached:
[7] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[8] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
...
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).
Direction 110
On 7 June 2024, Direction No.110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’) came into effect. Direction 110 sets out the principles within which a decision-maker should approach the task of deciding whether to revoke a mandatory cancellation decision. It is binding upon the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.
The primary considerations in making a decision under sections 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:
a) legal consequences of the decision;
b) extent of impediments, if removed;
c) impact on Australian business interests.
A decision-maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[9] His Honour Colvin J when considering an earlier Direction[10] stated:
[9] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
[10] Direction 65.
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
The issues before the Tribunal are:
(a)does the Applicant pass the character test, as defined in section 501 of the Act? And, if not;
(b)is there another reason why the original decision should be revoked?
Documents
The following statements were provided to the Tribunal in support of the Applicant’s application for review:
(a)Statement by Malina Jackie Wilson dated 5 June 2025.
(b)Statement by Chamae Sakaguchi undated.
(c)Statement by Bryson McGuire dated 2 June 2025.
(d)Brief Psychologist Report by Greg Hutcheon dated 12 May 2025.
(e)The Applicant’s undated statement.
(f)Certificate of Completion, Anger Management Techniques dated 5 June 2025.
In addition, the Tribunal was provided with:
(a)The Respondent’s Statement of Facts, Issues, and Contentions.
(b)Section 501 - G Documents. [11]
[11] G1-G13
(c)The Respondent’s Tender Bundle.[12]
[12] TB1-TB6.
The character test
The character test is defined under section 501(6) of the Act. It provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined in section 501(7) of the Act. Relevantly, section 501(7)(c) of the Act provides that a person has a ‘substantial criminal record’ if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[13]
[13] Migration Act 1958 (Cth) s501(7).
In this case, the Applicant was sentenced to a term of 3 years’ imprisonment for the index offence. As a result, the Tribunal finds that the Applicant does not pass the character test and cannot rely on section 501CA(4)(1)(a) for the cancellation of his visa to be revoked.
Whether there is another reason the visa cancellation decision should be revoked
The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant’s visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.
Protection of the Australian community
Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[14] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct.[15]
Nature and seriousness of the conduct
[14] Direction 110, paragraph 8.1(1).
[15] Direction 110, paragraph 8.1(2).
In considering the nature and seriousness of the Applicant’s offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The Direction indicates that violent crimes are viewed seriously by the Australian Government and the Australian Community.
In this case, the Applicant was convicted of the index offending by the District Court in Brisbane on 10 October 2024. The circumstances of the offending are that, on or about 6 January 2022, the Applicant’s friend, Osman Eshag (‘Eshag’), was robbed and assaulted by a group.[16] As a result, on 7 January 2022, Eshag offered the Applicant $1,000 or $2,000 to accompany him for the purposes of recovering his stuff from the group. The Applicant then drove his co accused, Miranda and Eshag to the house where the group were staying.[17] They took with them a metal rod and a gel blaster. Eshag took with him a firearm in a bag to the house. The Applicant was not aware of the firearm. However, the Judge in sentencing the Applicant noted that the Applicant had taken a ‘remarkable lack of curiosity’ [18] as to the contents of the bag but nevertheless sentenced him on the basis that he was not aware of the contents of the bag.[19]
[16] TB3 141
[17]
[18] G5 50
[19] ibid
They arrived at the house at 9:25am, wearing hooded jackets and masks. Eshag initially entered the house. Upon hearing an argument start and someone say ‘you’re not getting your shit back’, the Applicant and Miranda entered the home. Inside the house, the Applicant became involved in a fight and observed a person with a knife coming toward them. They then heard gun shots. The Applicant then saw Eshag holding a gun and pointing it toward a person, known as Yakuc, on the ground who had been shot in the leg. Yakuc suffered two gunshots to his right thigh and a 1x mm wound to his medial ankle where the bullet was lodged. Yakuc’s ankle was fractured and that required surgery to reposition and stabilize the ankle for it to heal.
On 28 January 2022, the Applicant was interviewed by police in relation to the incident during which he initially denied being involved claiming that he had been to 7/11 to get cigarettes.[20] The Applicant ultimately pleaded guilty to the index offence.
[20] TB3 143
The Applicant was sentenced to 3 years imprisonment. The sentencing Judge commented that the offending was ‘demonstrably serious ’[21] noting that it had ‘the mark of vigilantism about it.’[22] His Honour observed that it was obvious the Applicant had gone to the house with the purpose of assisting Eshag to get his property back.[23] His Honour noted that, in doing so, the Applicant was prepared to intimidate and threaten the occupants of the house with the use of weapons[24] and as a result he had engaged in serious conduct that was premediated.[25]
[21] G5 50; G5 52
[22] G5 52
[23] ibid
[24] ibid
[25] ibid
The Applicant’s criminal history shows that the Applicant was convicted of multiple offences in a relative short period. These include:
(i)On 16 September 2024, the Applicant was convicted at the Pine Rivers Magistrates’ Court of possession of utensils or pipes that had been used.
(ii)On 23 August 2024, the Applicant was convicted at the Pine Rivers Magistrates’ Court of breach of bail condition.
(iii)On 20 March 2024, the Applicant was convicted at the Magistrates’ Court, Brisbane of two counts of breach of bail condition.
On 9 February 2024, the Applicant was sentenced in the Richlands Magistrates’ Court for six drug offences, including producing dangerous drugs, for which he was fined.[26] In addition, he was convicted of: [27]
(a)Breach of bail x 12 counts.
(b)Failing to appear in accordance with undertaking x 2 counts.
(c)Fraud.
(d)Unlawfully possessing a weapon.
[26] G4 46
[27] G4 46-47
The Applicant’s convictions for breaching bail relate to his failure to report at prescribed Police stations, failing to keep his electronic monitoring device charged, and changing residence without seeking permission from Police as required per his bail conditions.
On 18 December 2023, the Applicant was convicted in the Pine Rivers Magistrates’ Court for the following offences:[28]
(a) Breach of Bail x 5 counts; and
(b) Fraud.
[28] G4 47
As to the fraud conviction, between 22 June 2023 and 31 July 2023, the Applicant’s bail conditions required him to report to both Stafford and Boondall Police Stations. On four separate occasions, the Applicant presented medical certificates to Police that stated he had a medical condition and was unable to report for his bail. Police enquiries revealed that the Applicant had not attended the medical practice as claimed and that the medial certificates provided to the police were false. In a record of interview, the Applicant stated that he had paid a ’mate’ $5 to arrange the certificates but was not able to provide any details of his mate.[29]
[29] TB 26.
The Tribunal notes that many of the above offences occurred after the Applicant’s index offending.
The circumstances of Applicant’s index offending were that he attended the house armed and wearing a hooded jacket and mask with the intention to recover his friend’s property by force. As referred to above, the Applicant’s actions were found by the Court to be ‘demonstrably serious ’[30] and having ‘the mark of vigilantism about it.’[31] As a result, the Tribunal accepts and finds that the Applicant has engaged in a violent crime pursuant to paragraph 8.1.1(1)(a) of Direction 110 and as such his conduct was very serious.
[30] G5 50; G5 52
[31] G5 52
In addition, the Tribunal has considered the fact that the Applicant was sentenced to a term of imprisonment for a period of three years in relation to the index offending.[32] The Tribunal notes that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[33] In circumstances where a Court has sentenced an offender to a term of imprisonment, the Tribunal accepts that it reflects the objective seriousness of the offence.
[32] paragraph 8.1.1(1)(c) of Direction 110
[33] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Further, the Tribunal has regard to the impact of the Applicant’s index offending on the victim of the offending.[34] The tribunal considered the injury to the victim, Yakuc, as significant in circumstances where he suffered two gunshots to his right thigh and a fractured ankle, for which surgery was required.
[34] paragraph 8.1.1(1)(d) of Direction 110,
Finally, the Tribunal notes that the Applicant has been charged and convicted of 34 offences over a nine-year period. The Applicant has displayed a flagrant disregard for the law, given the frequency and number of convictions for breach of bail conditions. In addition, the Applicant has displayed a complete lack of respect for authority and a disregard for the law in providing false medical certificates to police for beach of his bail condition.
Finally, the Applicant has a history of traffic offending that includes driving under the influence of drugs in 2021 and multiple speeding offences. The Applicant’s Driver License History[35] shows that the Applicant has had his drivers license suspended on four occasions and cancelled in July 2021. While the Applicant’s driving offences may initially appear relatively minor, howbeit viewed against the balance of his criminal history, the Applicant has consistently displayed a recklessness and indifference to the law and rules governing the operation and control of a motor vehicle. That is, the laws and rules that are in place to protect road users and other members of the public in the interests of community safety.[36] By committing the traffic offences, the Applicant has displayed an indifference to the law and the safety of the community in general. The Applicant ought reasonably to have known the potentially serious adverse consequences of speeding and driving under the influence of drugs. The insurance implications of another road user becoming involved in an incident with a person speeding or driving under the influence of drugs is common knowledge.[37] As such, the Tribunal finds that the Applicant’s traffic offences are serious and demonstrate a lack of insight into the risks and impacts of his actions on the Australian community.
[35] TB4 151
[36] MJNN and Minister for Home Affairs [2019] AATA 3205 at [54]–[55] per Senior Member Evans.
[37] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]–[45] per Senior Member Tavoularis.
As such, the Tribunal finds that the Applicant has shown a flagrant disrespect for the law and its operation by continuing to offend. The Tribunal notes that the Applicant’s offending appears to have escalated over recent years.[38] The sentencing Judge remarked that most of the Applicant’s offences were committed after the index offending which did not reflect favourably on the Applicant when considering any remorse, he may have for his offending and any rehabilitation he may have undertaken.[39]
[38] G4 45-48
[39] G5 50
Therefore, having considered the evidence relevant to paragraph 8.1.1(1) of Direction 110, the Tribunal finds that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
Risks to the Australian community
Paragraph 8.1.2 of Direction 110 provides that in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal 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 information and evidence on the risk of the noncitizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
In measuring the risk to the Australian community, it is necessary for the Tribunal to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.[40] The Tribunal is required to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. An unacceptable risk requires consideration of the likelihood of offending and, if it eventuates, what consequences flow from such offending. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does occur.[41]
[40] Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
[41] Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 at [95].
The courts have held that past actions are legitimate predictors of future behaviour.[42] In Murphy v Minister for Home Affairs [2018] FCA1924, Mortimer J (as her Honour then was) considered the notion of risk and its nexus to future possibility as follows:[43]
That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.
[42] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[43] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
In Minister for Immigration and Ethnic Affairs v Guo,[44] the High court considered the extent to which past events can be a guide to the future. The Court stated:
Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.
[44] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574].
As such, in the process of determining the chance of something occurring in the future, a conclusion will need to be formed concerning past events.[45] Assessing what is likely to happen in the future based on past events involves questions of degree. That is the degree of probability that they have occurred, the regularity with which they occurred, and the conditions under which they have occurred. [46]
[45] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].
[46] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574]–[575].
The Tribunal has found the Applicant’s index offending to be very serious. The sentencing Judge referred to the Applicant actions as having the mark of vigilantism and described the conduct as serious offending.[47] As a result, the Tribunal finds that any future offending of a similar nature would expose the Australian community to significant physical and psychological harm.[48] As such, the Tribunal accepts that such harm, if repeated, would be so serious that any risk that it may be repeated is unacceptable.[49]
[47] G5 52
[48] Paragraph 8.1.2(2)(a) of Direction 110.
[49] Paragraph 8.1.2(1) of Direction 110.
The Applicant is a recidivist offender. The Applicant’s offending, including his drugs offences, traffic offences, and breach of bail conditions, all present a significant and unacceptable risk to the Australian community. The Tribunal has already found that the Applicant has continually displayed a flagrant disregard for the law and its process. The Applicant has failed on multiple occasions to comply with his bail conditions and has been prepared to deceive the authorities about the reasons for his non-compliance by providing police with false medical certificates.
In addition, the nature and frequency of the traffic offences[50] indicates that the Applicant has a complete disregard for the law and the safety of the community. The traffic charges include driving a vehicle whilst under the influence of drugs,[51] driving an uninsured motor vehicle,[52] and multiple speeding charges.[53] As a result, he has had his driver’s license suspended on four occasions and disqualified once.[54]
[50] TB4 151
[51] TB4 148.
[52] TB4 150
[53] TB$ 147-8
[54] TB4 151
The Applicant conceded during the hearing that his re-offending was because he had mixed with the wrong people and was easily lead. The Applicant provided a psychologist report[55] by Greg Hutcheon (‘the Hutcheon report’) that was prepared for the purposes of assessing and treating the Applicant for adjustment difficulties in the context of stress relating to ongoing immigration detention. The Tribunal accepts that being held in immigration detention would cause the Applicant to experience stress and anxiety. In circumstances where the report does refer to the Applicant offending or the likely risk that he will reoffend in the future, the Tribunal places no weight on the Hutcheon report.
[55] Brief Psychologist Report by Greg Hutcheon dated 12 May 2025
The Applicant did not provide any psychological opinion providing an assessment of risk of the Applicant’s reoffending. Nevertheless, Queensland Corrective Services has assessed the Applicant as having a Risk of Reoffending Prison Version (RoR- PV) score of 7, indicating a “moderate” re-offending risk.[56] Save for the fact that the Applicant completed an Anger Management Techniques Course on 5 June 2025 (approximately one week prior to the hearing), he has not presented any evidence that he has taken any step to rehabilitate himself ot address his offending.
[56] TB/287, 297
The Applicant’s offending appears to have been related to his drug use. He has been convicted of offences involving producing drugs and possessing drugs and utensils. It appears he has been referred by the Courts to drug and alcohol assessments and diversion programs when sentenced.[57] In addition, the Courts have explored non- custodial sentencing options with the Applicant, including conditional releases and recognisance orders. The Applicant has also been subject to a court-ordered parole order, having been released on parole on 18 December 2023.[58] However, the Applicant re-offended by committing further breach of bail and drug-related offences.[59] Therefore, despite numerous non-custodial sentencing options by the Courts in respect of the Applicant’s convictions, he has continued to breach Australia law by engaging in criminal conduct.
[57] TB 300- 304
[58] TB 281
[59] G4 6
Therefore, having considered the Applicant’s evidence and the documentation provided, the Tribunal finds that the Applicant poses a real and unacceptable risk of re-offending. Having regard to the ongoing risk and the potential for similar offending to cause harm, the Tribunal finds that this primary consideration weighs heavily in favour of a decision not to revoke the cancellation of the Applicant's visa.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.
Ms Wilson provided a statement[60] to the Tribunal that claimed that she had been in a relationship with the Applicant since February 2022. She claimed that they had been living together at an address in Griffin, Queensland and that they shared household responsibilities and supported each other emotionally and financially. Ms Wilson also gave evidence to the Tribunal by telephone during which she confirmed that the Applicant had been held in remand from February 2022 until April 2022.[61] Her evidence to the Tribunal was that she had commenced living with the Applicant in or about May 2023 until October 2024. As a result, they had lived together for around 18 months.
[60] Statement by Malina Jackie Wilson dated 5 June 2025
[61] TB5 207
Ms Wilson conformed that, on 2 October 2024, the Applicant was the subject of a Domestic Violence Protection Order issued by the Pine Rivers Magistrates’ Court,[62] in which she was the aggrieved party. The Applicant and Ms Wilson had spent the night together in a tent during which they had an argument. The police had attended on the Applicant and Ms Wilson, in response to a complaint made by a third party that appeared to involve the Applicant taking drugs.[63] The police interviewed the Applicant and Ms Wilson separately.
[62] TB 116
[63] TB/104
The police statement records that that the Applicant is the ex-partner of Ms Wilson. It records that they had been in a relationship for a year but had separated in June 2024. As a result, they were not living together at the time of the incident.[64] The police statement[65] records that Ms Wilson stated she was fearful of the Applicant and that she had no desire to continue any future relation with the Applicant. The statement[66] records that Ms Wilson was supportive of the application and that she stated she knew a lot about domestic violence application from previous dealings.
[64] TB1 108
[65] TB1 109
[66] ibid
The Applicant and Ms Wilson both denied to the Tribunal that their relationship was over at that time. They were not able to say why the police recorded that their relationship had ended. Ms Wilson’s evidence was that she was experiencing a lot of trauma at that time. As a result, she claimed that her memory was not particularly good. Her evidence was that she did not recall telling the police that she did not want to continue the relationship but was not able to say why it was recorded in the police statement. In circumstances where Ms Wilson claims her memory is poor and in the absence of any reason why the police would not record the statements of the Applicant and Ms Wilson correctly, the Tribunal accepts the evidence contained in the police statement and places less weight on the evidence of Ms Wilson.
In any event, the police records[67] indicate that the police had attended in relation to previous incidents between the Applicant and Ms Wilson on 25 February 2024 and 29 May 2024.
[67] TB1 121-123
The Applicant showed relatively little insight into the seriousness of his conduct in relation to the family violence order. While the Applicant completed an Anger Management Techniques course on 5 June 2025 (approximately one week prior to the hearing of this matter), his evidence was that he completed the course on the suggestion that it would be beneficial to this review application. There was no evidence of him having engaged in rehabilitative efforts for the purposes of gaining insight or addressing his domestic violence conduct. Ms Wilson claimed[68] that she was the instigator of the argument that led to the domestic violence order and that they were both aggressors of the argument. Even if this was the case, the fact remains that the Applicant’s conduct towards Ms Wilson was independently assessed by the police to be a domestic violence incident, no matter what the cause of such conduct may have been. The fact that Ms Wilson may have instigated an argument with the applicant does not make his behaviour less serious.
[68] Statement by Malina Jackie Wilson dated 5 June 2025
While the Tribunal accepts that the domestic violence order did not involve any allegation of physical harm toward Ms Wilson, it nevertheless remains a serious matter in circumstances where the conduct constitutes family violence. As a result, the Tribunal gives this primary consideration some weight against revocation.
The strength, nature and duration of ties to Australia
Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia. In this case, the Applicant’s immediate family are his father, stepmother, two brothers, two stepbrothers, and a stepsister.
Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:
(a) how long the Applicant has resided in Australia, including whether the Applicant 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 Applicant has spent contributing positively to the Australian community; and
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s evidence was that he completed Primary School and three years of High School in the Philippines. The Applicant arrived in Australia in or about August 2008 as a 15-year-old boy and as a result had spent a little over half his life in Australia.
The Applicant claims that in Australia he has worked various jobs, including as a kitchen hand, pastry chef, and as a factory worker. In addition, the Applicant holds a forklift driver’s licence. The Applicant last worked on 6 October 2024 as a factory worker for a powder coating business.
The Applicant’s mother passed away on 5 March 2025.[69] As a result, the Applicant’s immediate family in Australia consists of his stepfather, two stepbrothers, one stepsister and a half-sister (‘family members’).[70] His evidence was that he is not in contact with his stepfather or his two stepsiblings and half-sister. The Tribunal notes that his family members did not provide any evidence in support of the Applicant. As a result, the Tribunal places only minor weight in favour of the Applicant based on his ties to his family members.
[69] G3 23
[70] G9 77
A statement was provided to the Tribunal by Chamae Sakaguchi which stated that the applicant had lived in Ms Sakaguchi in or about 2018. The statement was not provided two days prior to the hearing and as a result it cannot be considered by the Tribunal. Nevertheless, the Tribunal notes that according to the statement the applicant lived with Ms Sakaguchi prior to most of his offending. Save for claiming that the applicant is surrounded by people who love him, it does not identify such people and does not provide any evidence of help or assistance the applicant may receive in the event he returned to the community. As such, even if it could be considered by the Tribunal it would be given no weight.
In addition, the applicant provided as statement by Bryson McGuire that was not provided two days prior to the hearing. Accordingly, it cannot be considered by the Tribunal. Save for the fact that Mr McGuire attests to the fact the applicant provided him assistance and support in prison but does not give any evidence of the applicant’s strength, nature and ties to the Australia community. As such, even if it could be considered by the Tribunal it would be given no weight.
The Applicant and Ms Wilson claim to be in a continuing relationship. However, the Tribunal notes that the statement by police, in relation to the domestic family violence order, they were in a relationship for 12 months which ended in June 2024.[71] While both the Applicant and Ms Wilson denied this was the case, they were not able to provide any reasonable explanation as to why the police statement was incorrect. The Tribunal has already indicated that it accepts the evidence provided in the police statement. Nevertheless, the Tribunal does accept the Applicant does have a relationship with Ms Wilson and gives this consideration some weight in favour of the Applicant.
[71] TB1 109
Best interests of minor children in Australia
Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.
The Applicant is single and does not have any minor children of his own. However, the Applicant claims to be in a relationship with Ms Wilson, who has two children aged 13 and 10 years old. The Applicant’s evidence was that the children live with their father every two weeks. The Applicant claims that he assists with the care of the children, including the drop off and picking up from school. Nevertheless, he conceded that he did not have a parental role with the children.
As a result, the Tribunal places some weight on this consideration in favour of the Applicant.
Expectations of the Australian community
Paragraph 8.5(1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation 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. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
Critically, paragraph 8.5(4) states:
This consideration is about the expectation of the Australian Community as a whole, and in this respect, decision makers should proceed on the basis of the Government views as above, without independently assessing the community’s expectations in the particular case.
In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community is an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[72] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[73] In doing so, the Tribunal is required to consider the specific circumstances of the Applicant’s case.[74]
[72] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].
[73] Ibid.
[74] Kelly [2022] FCA 396, [98]-[109] (Beach J).
The Respondent submits that the primary consideration weighs against revocation. The Tribunal notes that it is the expectation of the Australian community that a person would not be granted a visa or be allowed to continue to hold a visa in circumstances where their conduct raises serious character concerns. Such conduct includes acts of family violence, commission of a serious crime against women, and the commission of a crime against a government representative or official.[75] In this case, the Applicant has displayed such a charter concern by committing the domestic violence offence. The Tribunal notes that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[76]
[75] Paragraphs 8.5(2)(a), 8.5(2)(c) and of Direction 110.
[76] paragraph 8.5(3), 5.2(4) of Direction 110.
In addition, the Australian community expects non-citizens to obey Australian laws while in Australia, and that where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community would expect the Government not to allow the non-citizen to remain in Australia.[77] In this case, the Applicant has an extensive history of offending, including violent offences, drug offences, traffic offences, and dishonesty offences. In such circumstances, the Applicant has breached the expectations of the Australian community by failing to obey the law.
[77] paragraph 8.5(1) of Direction 110.
In all the circumstances, the Tribunal finds that this consideration weighs heavily against revocation.
Other considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, the Tribunal must consider the ‘other considerations’ listed in Direction 110. These considerations are not exhaustive.[78]
[78] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal consequences of the decision
Paragraph 9.1 states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
In Stoneley v Minister for Immigration and Multicultural Affairs, the Federal Court said:
“the legal consequence of a visa cancellation decision is that the former visa holder will be an unlawful non-citizen for the purposes of the Act. By virtue of that status, the person will be liable to be detained, removed from Australia, returned to his or her home country, prohibited from applying for another visa or subject to periods of exclusion and special return criteria: Act, ss 189, 196, 197C, 198, 501E, 501F.”
There is no evidence to suggest that Australia’s international non-refoulement obligations are engaged. However, should the Tribunal affirm the decision under review, the Applicant will remain an unlawful non-citizen and, accordingly, will be liable for removal from Australia as soon as reasonably practicable, and will continue to be subject to a period in immigration detention.[79]
[79] Section 198 of the Act.
The Tribunal gives no weight to this consideration.
Extent of impediments if removed
Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to the Philippines in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The Tribunal accepts that the Applicant will experience some difficulty in re-establishing himself if he is returned to the Philippines. However, the country information reports[80] that real GDP growth is projected to be one of the highest in Southeast Asia at around 6 per cent annually over the next five years. In addition, it is reported that recent measures to open the economy to foreign investment will help support the Philippines to sustain a high growth rate through the better use of capital, labour and technology. It is reported[81] that to eradicate poverty by 2040, the Philippine Government has prioritised inclusive and sustainable growth, housing and urban development, manufacturing, connectivity, education, tourism, agriculture, health and financial services. It is anticipated that the structural shift from an agriculture-heavy labour market to an agribusiness-focused economy will boost the Philippines’ place in value chains.[82]
[80] Australian Government, Department of Foreign Affairs and Trade;
[81] ibid
[82] ibid
In this case, the Applicant has been in Australia since he was 15 years old (a little more than half his life) during which he has been able to support himself and obtain employment. Accordingly, while the Applicant may hold a genuine, personally held fear regarding the economic circumstances in the Philippines (including the cost of living being too high and the remuneration for work being too low), the Tribunal has considered the country information which states that the Philippine economy is growing in sophistication and the poverty rate is in decline.[83] As a result, given that the Applicant is relatively young (32 years of age), the fact that he is in good health and physically able,[84] together with his work experience that can be applied in the Philippines, the Tribunal finds that the Applicant will not be denied the capacity to earn a living or basic services, where such denials would threaten his capacity to subsist.
[83] Department of Foreign Affairs and Trade Country Information Report Philippines 23 August 2021 at p.8
[84] G9 80
In addition, the Tribunal notes that the Applicant attended school in the Philippines and can speak, read and write in Tagalog and English. As a result, he is unlikely to experience any cultural or language difficulties upon his return to Philippines. As a citizen of the Philippines, the Applicant will have access to social, medical, mental health, and economic supports in the same basis as other citizens of the Philippines.
As a result, there is nothing to suggest that the Applicant would be unable to re-establish himself in the Philippines and maintain basic living standards. Therefore, the Tribunal only gives little weight to this consideration in favour of the Applicant.
Impact on Australian business interests
Paragraph 9.3 of Direction 110 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened, as the Applicant has not been employed since before his prison term. This consideration is not enlivened and carries neutral weight.
CONCLUSION
The Tribunal has considered the specific circumstances in relation to the Applicant. Given the Applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
The primary consideration is the protection of the Australian community. The Tribunal has found that the Applicant’s offending was serious and, for the reasons expressed above, the Tribunal has found that the Applicant is an unacceptable risk to the Australian community. Having considered the expectations of the Australian community, and the strength, nature and duration of the Applicant’s ties to Australia, together with the other considerations of the legal consequences of the decision, and the extent of impediments if removed, the Tribunal has found that the Applicant is not an acceptable risk to the Australian community. As such, the Tribunal is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community. Accordingly, the cancellation decision should not be revoked.
DECISION
The Tribunal affirms the decision under review.
| Date of Hearing | 11 June 2025 |
| Applicant | Mr Christian Mirabueno |
| Respondent’s Solicitor | Mr Jake Kyranis from Sparke Helmore Lawyers |
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