Mitchell and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1872

Mitchell and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1872 (19 September 2025)
Applicant:Terrence Darren Mitchell
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4270

Tribunal:Deputy President K Millar
Place:Adelaide
Date:19 September 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 19 September 2025 at 12:54pm
CATCHWORDS
MIGRATION – visas – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) (“the Act”)– consideration of Ministerial Direction No. 110 – consideration of ss 501(3A), 501(6) and 501(7) of the Act – protection of the Australian community and expectations of the Australian community outweigh countervailing considerations – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
DPP v Mitchell [2017] VSC 423
FYBR v Minister for Home Affairs [2019] FCAFC 185
Lynch v Minister for Immigration [2025] FCA 1128
Minister for Immigration and Ethic Affairs v Teoh [1995] HCA 20
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
International Covenant on Civil and Political Rights
Statement of Reasons

Mr Mitchell is a citizen of the United Kingdom who came to Australia in 1969 when he was four years old. He has a lengthy criminal history commencing in 1984. Most recently he was convicted of manslaughter and sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years and six months.
As a result, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). Mr Mitchell made submissions seeking revocation of this cancellation, however on 1 July 2025 a delegate of the Minister was not satisfied that there was another reason the cancellation should be revoked. Mr Mitchell seeks a review of this decision and the reinstatement of his visa.
BACKGROUND
Mr Mitchell came to Australia with his parents in 1969. His father is deceased, and his mother is now 88 years old. He is one of five children, with one brother who is deceased. The family have periodically been out of contact with each other, however Mr Mitchell is in contact with his brother and one of his sisters.
Mr Mitchell has had various employment in Australia including in concreting and landscaping. For a period, he worked in a nursing home and with St Vincent de Paul in a shelter for people who are homeless. He worked as a truck driver, however suffered an injury in 2010 and received compensation payments for several years.
Mr Mitchell experienced sexual abuse as a 12-year-old child from a teacher who was a friend of the family, and attributes his subsequent drug use and criminal history to this abuse. He did not find his family supportive, and left home from approximately 15, connecting with older people and started using drugs. He is reported to have been addicted to heroin for 20 years starting from when he was 16 years old.
Mr Mitchell commenced a relationship in or around 1992 and has two sons from this relationship who are now 32 and 31 years of age. He has two stepdaughters from this relationship and remains close to his stepdaughters. His stepdaughter and her children identify as First Nations people. This relationship ended in 2000, and from this time he was in another relationship until 2014. He has a son from this relationship who is 20 years old and a stepdaughter. He has nine grandchildren, with another grandchild due in December of this year.
Mr Mitchell is currently in a relationship with Ms Melanie Clarke, who has two children, one of whom is a minor.
Mr Mitchell’s visa was previously considered for cancellation in 2013, with a notice of intention to consider cancellation issued on 18 December 2013. His visa was ultimately not cancelled, however he was issued with a written warning on 13 February 2014.
He was imprisoned in 2017 for a term of 10 years. On his imprisonment his youngest son was taken into foster care until he turned 18. Mr Mitchell was released from prison to immigration detention in October 2024.
Mr Mitchell is now nearly 60 and has several health concerns including cardiac and liver problems, an acquired brain injury, anxiety, depression and PTSD.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a non-citizen’s visa if (among other things) the person does not pass the character test because they have a substantial criminal record as defined by s 501(6)(a), and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory.
The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act.
A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
A person who has a visa cancelled under s 501(3A) may seek revocation of that decision in accordance with s 501CA of the Act.
As soon as practicable after a visa is cancelled under s 501(3A) of the Act, the person must be sent a notice including relevant particulars and invited to make representations about revocation of the decision to cancel their visa.
Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked.
If the Applicant does not meet the character test, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked.
DOES THE APPLICANT MEET THE CHARACTER TEST?
Mr Mitchell concedes he has been sentenced to a term of imprisonment of 10 years and does not meet the character test.
The remaining issue is whether there is another reason the cancellation of his visa should be revoked.
THE DIRECTION
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(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 measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1]
[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(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 … (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.[2]
[2] Ibid cl 7.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1) The 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)       The expectations of the Australian community.[3]
[3] The Direction, cl 8.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.[4]
[4] Ibid cl 8.1(1).
Decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the community if the Applicant commits further offences or engages in other serious conduct (cl 8.1(2) of the Direction). In doing so, it is necessary to look at Mr Mitchell’s offending to date.
Mr Mitchell’s criminal convictions commenced in 1984 and encompass property offences, assault and grievous bodily harm, drug offences, traffic offences, and breaches of bonds, as well as other offences. The offence for which his visa is currently cancelled is manslaughter.
Manslaughter
Mr Mitchell was convicted of manslaughter on 27 July 2017 for the events that occurred on 8 November 2014. This offence is described in the sentencing remarks of Elliot J in DPP v Mitchell [2017] VSC 423 (‘DPP v Mitchell’). In summary, Elliot J said the victim owed Mr Mitchell money for supplying him with the drug ‘ice’. Mr Mitchell met his co-offenders and his co-offenders smoked ice. Mr Mitchell told one of the co-offenders (Offender A) the victim had been going around saying he did not owe money and discussed getting the victim to the unit to have a talk with him and ‘touch him up’. Offender A spoke to the other offender who agreed to assist, and the three of them went to a unit. When the victim arrived, Mr Mitchell and the co-offenders assaulted the victim and bound his hands and wrists. At this time the victim was seriously injured. The victim was placed in the boot of Offender A’s car and the two co-offenders left. Mr Mitchell remained at the unit to clean up the scene. The co-offenders took the victim to another location, and at some point he died and his body placed in bushes. According to the autopsy, there was evidence of multiple blunt force trauma and a ligature around his neck, with many possible causes of death. After he left the victim, Offender A returned to the unit and spoke to Mr Mitchell about disposal of the car which was sold for $100 around the following week.
Mr Mitchell was interviewed by police on 28 November 2014 where he denied any involvement. Elliot J found Mr Mitchell had tried to mislead police into believing his co-offenders were solely responsible.[5] He denied having seen or spoken to the co-offenders after they left in the car and claimed his health issues would have prevented him being involved in any assault. He admitted to assaulting the victim a few weeks before, but denied it was related to drugs or that he was selling drugs.[6] He pleaded guilty to manslaughter on the day his trial was to commence for murder, and Elliot J did not consider this could be described as an early plea or that any limited remorse warranted a discount of his sentence above that from the utility his guilty plea.[7]
Property offences
[5] DPP v Mitchell at 39.
[6] Ibid.
[7] Ibid at [4] – [41].
Mr Mitchell has many convictions for property offences including handling or receiving stolen goods, theft, criminal damage, going equipped to steal or cheat, and obtaining property by deception. He was convicted of property offences of some description, and in some years on several occasions within the same year and at times for several counts in 1984, 1994, 1998, 1999, 2000, 2003, 2005, 2007, and 2013.
Assault and Grievous Bodily Harm
Mr Mitchell was fined for assault in 1989. In 1990 he was indicted for maliciously inflicting grievous bodily harm but pleaded guilty to assault occasioning actual bodily harm and was sentenced to three years of supervision. In 2002 he was sentenced to imprisonment for seven days for recklessly causing injury.
Drug offences
Mr Mitchell has convictions for multiple drug offences including possessing implements to administer a prohibited drug, possession of cannabis and amphetamines, supply of prohibited drugs, trafficking methamphetamine and cultivating, using and trafficking cannabis. He was sentenced to imprisonment for three months for trafficking and possessing amphetamine and failing to answer bail in 2002. He was sentenced to an aggregate term of 12 months’ imprisonment in 2013 for trafficking in a drug of dependence, possessing GHB, dealing with property suspected to be the proceeds of crime and possessing a controlled weapon without excuse.
Traffic offences
Mr Mitchell has multiple driving offences. He has been convicted of driving while disqualified on many occasions, and fraudulently using registration label/plates, using unregistered vehicles, driving without ‘P’ plates displayed, speeding, driving uninsured, and dangerous driving. The extent of his driving while disqualified resulted in increasing periods of imprisonment including 18 months with a non-parole period of six months in 2007. His conviction for traffic offences has extended until 2015.
Other offences
Mr Mitchell’s first conviction at 19 years of age in 1984 was for being armed with an offensive weapon/instrument. He has been convicted of having a store explosive and representing the explosive as authorised.
He has been convicted of making false statements, making a false document to prejudice another, and acting in a disruptive manner in police gaol.
Breaches
Mr Mitchell has breached community-based orders, suspended sentence orders and suspended sentence bonds with breaches resulting in a term of imprisonment of 18 months in 2007.
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[8]
[8] Ibid clause 8.1.1(1)(a).
Decision-makers must take into account that violent crimes are viewed very seriously by the Australian Government and the Australian community. Mr Mitchell has been convicted of violent crimes including manslaughter, assault, and assault occasioning actual bodily harm. These offences are viewed very seriously by the Australian Government and the Australian community.
The sentence imposed for violent offences must be considered, and Mr Mitchell has been sentenced to a term of imprisonment of 10 years for manslaughter. He was sentenced to three years of supervision for assault occasioning actual bodily harm in 1990, and to imprisonment for three months for trafficking and possessing methamphetamine and failure to answer bail in 2002. In 2011 he was sentenced to short terms of imprisonment up to nine days in default of paying fines and subsequent community work.
In 2007 he was sentenced to 18 months’ imprisonment for driving while disqualified. Mr Mitchell said there were charges for which he should not have been convicted. This is because he had changed his name by deed poll and had a license in a new name so considers he held a valid license.
In March 2013 he was sentenced to 75 days’ imprisonment and on 23 July 2013 sentenced to an aggregate term of twelve months’ imprisonment following breach of a community corrections order imposed for dishonestly receiving stolen goods, dealing with property suspected to be the proceeds of crime, handle/receive/retain stolen goods, driving while authorisation suspended, unlicensed driving, going equipped to steal/cheat, trafficking methamphetamine, and possessing a drug of dependence. On the same date, he was sentenced to an aggregate term of 12 months’ imprisonment for trafficking in a drug of dependence, possess GHB, deal with property suspected of being the proceeds of crime, and possessing a controlled weapon without excuse.
Following his conviction for trafficking in a drug of dependence, dealing with property suspected of being the proceeds of crime and possession of a controlled weapon, together with breaches of his community corrections order and call-up of sentences, Mr Mitchell was imprisoned for a term of 12 months in 2007, concurrently serving a term of imprisonment of 18 months for driving disqualified.
In regard to the impact on victims, the sentencing remarks refer to victim impact statements from the victim’s family members. While not addressed in detail, Elliot J states it is apparent the victim is sorely missed, and a great deal of love, affection and respect was expressed by the family members and ‘they have suffered greatly.’ A further victim impact statement speaks of the ongoing impact of the victim’s death on his father’s physical and mental health, and that his death continues to have a profound effect on the family.[9] The sentencing remarks were before Mr Mitchell prior to the hearing and in the documents provided to him under s 501G of the Act. It was acknowledged these documents contained comments on the impact on the victims of the offending.
[9] Ibid [23].

Mr Mitchell’s offending has been frequent, with regular convictions. The regular call-up of sentences and variation due to breaches of suspended sentences, bonds and community-based orders have resulted in periods of imprisonment. Mr Mitchell’s offending has become increasingly serious with convictions for trafficking in a drug of dependence and ultimately for manslaughter in 2017.
There is a cumulative effect of his repeat offending, particularly the repeated traffic offences where he was undeterred by the penalties imposed.
Mr Mitchell was issued with a notice of intention to cancel his visa on character grounds on 19 December 2013. On 7 February 2014, a delegate of the Minister decided to not cancel his visa. On 13 February 2014, Mr Mitchell signed an acknowledgement stating:
I, Terrence Darren MITCHELL acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.
Within 10 months of signing this formal warning, Mr Mitchell had committed the offence of manslaughter. That he has previously received a written warning, and committed an offence of such gravity within a relatively short period of time weighs very heavily against revoking the cancellation of Mr Mitchell’s visa.
The nature and seriousness of the conduct weighs very heavily in favour of not revoking the cancellation of Mr Mitchell’s visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[10]
(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). …
[10] See also the Direction, cl 8.1(2)(b).
Mr Mitchell has been convicted of manslaughter and the seriousness, should this offence be repeated, means the tolerance for the risk of this occurring again is lower.[11]
[11]Ibid cl 8.1.2(1).
It was argued for Mr Mitchell that his criminal conduct does not fall within the latter limb, being that any risk of the offending being repeated is unacceptable because his risk of reoffending has reduced over the period he has been imprisoned. This is not substantiated on the risk assessment before me, which at best shows a moderate risk of violent reoffending, however even if the risk were low the risk assessment itself is not determinative of this matter. Even a slight risk of Mr Mitchell reoffending in the same way, resulting in the death of a person, is not acceptable. This does not mean the risk of this occurring should not be assessed in accordance with the Direction.
Nature of the harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community, should the Applicant reoffend.[12]
[12] The Direction, cl 8.1.2(2)(a).
The harm from manslaughter is death to a member of the Australian community. There is harm to the community associated with drug trafficking, both to the person seeking to purchase drugs and to the community in the financial, social and health harm caused by drug use.
Likelihood of the Applicant engaging in further criminal or other serious conduct
This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision (cl.8.1.2(2) of the Direction).
Mr Mitchell has been the subject of assessment of his likelihood of reoffending in 2020 and 2024.
The most recent assessment by consultant forensic psychologist Dr Christina Kozar is dated 20 April 2024. Dr Kozar notes a ‘general pattern of antisociality, including the perpetration of violence, property, driving and drug-related offending from adolescence,’[13] following a significant experience of child sexual abuse. It is stated he suffered a number of traumatic brain injuries including drug overdoses, assaults and a truck accident which have had an effect on his cognitive abilities.
[13] H5, 746 at [4].
In terms of future risk of reoffending, Dr Kozar reports:
Mr Mitchell demonstrates a range of risk factors relating to future violent offending; a long history of perpetrating violence, attitudes supportive of violence, substance abuse issues, denial of his offending, moderate levels of psychopathic traits, unresolved trauma, and a limited prosocial network. The administration of risk assessment tools suggests he poses a moderate risk of committing a Schedule 2 violence offence under the Serious Offenders Act 2018 if he were not subject to community supervision.[14]
[14] H5, 746 at [5].
In the assessment of risk of violent reoffending, Dr Kozar reports that using the Hare Psychopathy Checklist-Revised, which measure traits of psychopathy, scored Mr Mitchell in the moderate range.[15] It is noted this is not designed to be a risk instrument, but has been reliably associated with general, violent and sexual recidivism.
[15] H5, 777 at [106] – [107].
Dr Kozar assessed Mr Mitchell using the Historical-Clinical-Risk Management assessment (‘HCRM’), and states this assessment has been validated in international studies being found to be among the most accurate methods for assessing risk of violence. The results from the HCRM were that Mr Mitchell poses a high risk of violent reoffending, meaning that ‘[he] is considered to be at significantly higher risk (at least twice as likely) of committing further violence compared to the average violent offender and would require a high level of supervision and resources to contain this particular risk.’[16]
[16] H5, 782 at [136].
Mr Mitchell maintains he is a low risk of reoffending due to the work he has done to rehabilitate, his health and his desire to remain with his family. The Tribunal was referred to a prison discharge summary that states he is a low acute risk of harm to others given no recent issues, however this report does not contain the detailed clinical assessments of Dr Kozar, who is a consultant forensic psychologist, and the report of Dr Kozar is preferred.
Mr Mitchell relies on his written ‘statement of sincere regret’, his expressions of remorse and regret, and the evidence of his family in support of his remorse for the offending. The extent of his remorse is called into question by the sentencing remarks of Elliot J who says that his plea of guilty on the day his trial for murder was to commence could not be described as an early plea. It was accepted that while this plea shows some remorse for the killing of the victim, this limited remorse did not warrant any discount over and above the discount for the utility of his guilty plea. Dr Kozar reports that Mr Mitchell ‘continued to deny his involvement in the index offence,’[17] with a Parole interview report from 2022 recording he did not appear remorseful. In his response to the Department seeking revocation of the cancellation of his visa, Mr Mitchell states ‘most of my offences have been minor driving offences and there have not been victims of recent crimes until this current sentence and I maintain that I played a very minor role in what occurred. I am very remorseful about what occurred and that someone lost their life and for the family of that person.’[18]
[17] H5, 750 at [14].
[18] H4, 136.
An understanding of the offending and the effect offending has on others may reduce the risk of further offending. Mr Mitchell has taken little responsibility for what has occurred, however ‘remorse’ is a difficult concept to apply to future risk and must be considered with the other circumstances of the case. In the circumstances of this case, where there are stronger countervailing factors, less weight is placed on expressions of remorse, or any lack of remorse.
Rehabilitation
In sentencing, Elliot J did not consider Mr Mitchell’s prospects of rehabilitation to be strong given his prison sentence in 2013 and because his long history of interaction with the criminal justice system had not deterred him.[19] Mr Mitchell disagreed with this assessment and said people can change.
[19] H4, 113, DPP v Mitchell at [54] - [55].
Mr Mitchell has completed ‘Coping Inside’ courses in 2015 including managing emotions, managing worry, managing sleep, and managing loss. He also completed an ‘Alcohol or other Drug and Ice Effects’ six-hour program in 2015 as well as a quitting smoking course.
He has completed a variety of skills courses up to Certificate II level in cleaning operations, information and digital media. Business, engineering, and kitchen operations. In December 2021 he completed a Certificate III in Micro Business Operations, and in the same year participated in the ‘Inside out’ program with RMIT studying comparative criminal justice systems.
In 2017 he completed an emotional regulation program with forensic mental health services and three Drug and Alcohol Program courses of three session, eight sessions and 15 sessions respectively. The report from the latter program noted limited engagement which may have been affected by his health conditions.
Mr Mitchell has completed a 10-month program Disability and Supported Pathways Violence Intervention program from May 2019 to May 2020, attending 56 group sessions and seven individual sessions. The recommendations following completion of the program include engagement in a trauma support service, assistance in establishing a routine including employment, engaging in programs about managing emotions or communication, engaging with services to help manage his mental health, and engaging in transitional supports to assist in transition to the community, and exploring eligibility for the NDIS.
It is further recommended that following trauma counselling, he would benefit from further offence specific treatment and ongoing support to manage emotions.
He said he has now managed living with men for 11 years which he had found difficult following the abuse he suffered as a child. He does not let himself get into a position where someone can annoy him, and has learned to stop living in the past and look to the future.
Mr Mitchell’s rehabilitation has been successful to the extent that there are limited incidents during his lengthy period of imprisonment, and he was described as polite and respectful to prison staff.[20] This is slightly at odds with the report that he slammed a door on a staff members’ leg after being refused an immediate appointment with a nurse. Mr Mitchell said he slammed the door out of frustration and because he was sick.
[20] H4, 201.
Mr Mitchell described how he has kept out of trouble in prison by only associating with a small number of people and keeping out of the politics. He was employed in the library for six years while in prison, and it was submitted that involved a degree of trust from prison authorities, however Mr Mitchell said this was due to his health conditions.
While Mr Mitchell has at times been unable to provide urine samples, his urine drugs screens were negative during his time in prison, which supports his claim to have been clean and sober for 11 years.
Mr Mitchell said that he would not risk all the work he has done on himself by reoffending. He said he is now in a place where he is happy and has conquered ‘99% of his demons’. He has 10 grandchildren and wants to spend the time he has left with them. Mr Mitchell said he sees a psychiatrist every three months and a psychiatric nurse.
Mr Mitchell’s ability to live largely incident free in an environment that, being largely male, is more difficult for him due to the abuse he suffered shows significant rehabilitation. His reported abstinence from drugs is also commendable, however this is in a controlled environment. While I accept his evidence that he could obtain drugs these are less readily available than in the community, and his prospects of maintaining sobriety in the context of his very long history of drug use and offending related to drugs is less certain.
Health
Mr Mitchell said he has heart failure, CPOD, cirrhosis of the liver and an acquired brain injury. He described having ‘cardiac fits’ where he feels hazy and as if the life is being sucked out of him. He is on medication for his heart and inhalers for his lung condition. He had treatment for his liver in 2016 but does not have current medication for his liver. He said there is a spot on his liver that his doctors monitor which he thinks may be cancer.
Mr Mitchell also relied on his health in his initial interview with police following the death of the victim, and Elliot J notes that at this interview, he had claimed his health issues would have prevented him assaulting the victim but admitted to assaulting the victim a few weeks before.[21]
[21] H4, 111, DPP v Mitchell at [39].
The Mobile Forensic Mental health Service provided a neuropsychological assessment in 2015 showing Mr Mitchell has slowed thinking speed, difficulty with concentration and attention, and difficulty with higher thinking skills including planning new things, understanding and reasoning with new ideas, as well as with thinking flexibly and laterally and brainstorming ideas.[22] In sentencing Elliot J was not satisfied that Mr Mitchell’s mild to moderate intellectual disability was causally linked to the killing of the victim or led to a lack of appreciation of the wrongfulness of his actions.[23]
[22] H4, 119 – 121.
[23] H4, 112, DPP v Mitchell at [45].
He also has concerns with his mental health, particularly depression, anxiety and chronic post-traumatic stress disorder.
The sentencing remarks note that a medial report described conditions which were serious or significant and stated his prospects were ‘not good’. A report from the cardiology clinic at St Vincent’s Hospital of 6 February 2025, states he has heart failure with preserved ejection fraction and recurrent chest pain and liver cirrhosis, paroxysmal atrial fibrillation and COPD.[24]
[24] H4, 253.
His prison discharge summary notes diagnoses of anxiety, depression and chronic PTSD.[25]
[25] H4, 225.
Mr Mitchell submits that his age and his health mean that his risk to the community is reduced. Mr Mitchell suffers serious health conditions, however the effect of these conditions, and his increasing age, have not reduced the risk as assessed by Dr Kozar in her assessment. While these conditions and his advancing age result in Mr Mitchell wanting to remain with his family, they do not show a reduced likelihood of reoffending in the same way including violent offending, drug offences or driving offences.
Family
Mr Mitchell said if he is released into the community, it will be different than the last occasion he received a warning because he has managed to seek the help he should have received 30 years ago. He has said he has only had visits from family members while in prison and immigration detention. I accept that the desire to be with his family is a compelling reason for Mr Mitchell to avoid further offending.
Given the nature of Mr Mitchell’s offending, even a low risk of this recurring is unacceptable. He was most recently assessed as being a moderate of violent reoffending, and previous imprisonment and a warning his visa could be cancelled did not prevent him re-offending within a relatively short period of the warning. His health and age, while providing motivation to cease offending, is not such that he could not reoffend in a similar way. It is not doubted he has a strong desire to be with and support his family, however this has not prevented his offending in the past and provides only a limited protective factor. He has done substantial rehabilitation, and the effects of this rehabilitation are seen in negative drugs tests while in custody and minimal incidents despite his acknowledgement that close male contact is difficult for him given his history of abuse.
However overall, the moderate likelihood of Mr Mitchell engaging in further serious violent criminal conduct weighs very heavily in favour of not revoking the cancellation of his visa.
Conclusion on the protection of the Australian community
The nature and seriousness of Mr Mitchell’s conduct and the risk to the Australian community should he commit further offences together weighs very heavily in favour of not revoking the cancellation of Mr Mitchell’s visa.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
This is relevant where the Applicant has been convicted of an offence, found guilty of an offence or had charges proven that involve family violence or there is evidence from independent and authoritative sources that he is, or has been involved in the perpetration so family violence, and procedural fairness has been accorded (cl. 8.2(2) of the Directions.
While a breach of a family violence intervention order appears on Mr Mitchell’s criminal record, and the report of Dr Kozar notes there was a difficult break up, Mr Mitchell said that the breach came from his ex-partner coming to his house, and I was not taken to any information that contradicts his account. The Minister did not seek to rely on this as an incident of family violence.
This factor does not weigh for or against revoking the cancellation of his visa.
THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction requires a consideration of the person’s immediate family members who are Australian citizens, permanent residents or who have a right to remain indefinitely in Australia.
Clause 8.3 of the Direction 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.
Immediate family

Mr Mitchell’s immediate family in Australia are his mother, his partner, his three sons and his three stepdaughters.
His mother is 88 and while his brother said he thinks Mr Mitchell keeps in touch with his mother as she seems aware of his activities, there are descriptions in the psychology report that his parents’ reaction to his abuse resulted in a rift in this relationship. There is insufficient information about the nature of this relationship to determine the impact on Mr Mitchell’s mother if his visa remains cancelled.
Mr Mitchell’s brother Paul stated that while they dropped out of contact for a period of 15 years, he has consistently been in contact with Mr Mitchell since he found out that he was in prison. He said it has been hard with Mr Mitchell being in prison as they were unable to do brotherly things, but he remained in contact with Mr Mitchell by phone. He said Mr Mitchell does not provide him with support. While there would be a detriment to his brother if the visa is cancelled, this is not to the same degree as separation from his children and stepchildren.
Mr Mitchell’s partner Ms Clarke said she has known him for 20 years, and they were friends until approximately a year ago when it became more serious. She did not visit him while he was in prison as he did not want visitors but she has visited him in detention, and they speak every day by phone. Ms Clarke suffers from bipolar disorder and has experienced family violence in a previous relationship. She said Mr Mitchell is extremely patient and will just listen to her. His support means a lot to her as she has not had much support in her life. If Mr Mitchell is removed from Australia, she said it will leave ‘a hole in her heart’. She said she is unable to leave Australia and whilst their relationship will end if he is removed to the United Kingdom, she hopes they will keep in touch.
In his statement of 9 September 2024, Mr Mitchell refers to his partner as a different person, who is the mother of his youngest son. He says she has been quadriplegic from August 2023, is still in hospital, and that he has weekly contact. He states he was to support her if released. Mr Mitchell did not refer to this partner in more recent submissions and is now in a relationship with Ms Clarke.
Mr Mitchell has three sons. His eldest son Jake is 33 years old and provided a statement in 2019. His eldest son states not having his father around while incarcerated has been hard for him but that his father maintained weekly calls, and understands that as he owns a business he cannot always visit. He said it has been difficult to wait to tell his father good news, and this will be harder if they are in different time zones.
His middle son Toby has his own business and provided statements and gave oral evidence. He said it would be hard to live with the fact that his father is removed from Australia, and it will be hard for the family as a whole.
Mr Mitchell’s youngest son Rory is the person most affected by Mr Mitchell’s incarceration and who will potentially suffer the greatest detriment on his removal. Mr Mitchell was imprisoned when Rory was a child, and he was taken into foster care. Rory’s mother is now a quadriplegic, and he does not see her often. Rory is now 20 years old and no longer in care, but his housing remains tenuous, and he plans to live with Mr Mitchell if he is released, which Rory is looking forward to doing. Rory will consider relocating to the United Kingdom if Mr Mitchell is removed from Australia, however he does not have a passport and his ability to migrate to the United Kingdom is unknown.
Mr Mitchell’s stepdaughter Shantelle is a single mother and an indigenous woman who is now 40 years old. She said Mr Mitchell played more of a parenting role to her than her mother when she was growing up, and she regards Mr Mitchell as her main support. Shantelle has three children, aged 8, 5 and 17 months, and her oldest child has autism. She relies on Mr Mitchell for emotional support and wants him in Australia for support and to assist with the care of her children. Shantelle has provided consistent support for Mr Mitchell, calling and visiting him in prison and immigration detention and wants him involved in her life and that of her children. A decision not to revoke the cancellation of Mr Mitchell’s visa would have a significant effect on Shantelle and would remove Mr Mitchell as a source of in person support for Shantelle and her children. Shantelle said she would be unable to visit Mr Mitchell if he is removed to the United Kingdom as she cannot travel to maintain her eligibility for parenting payment.
Mr Mitchell’s stepdaughter Colinda was not available when called to give evidence, however in an earlier statement says she regards Mr Mitchell as her real father as he has been involved in her care since she was two years old. She said it would break her heart and that of her children if he is required to leave Australia.
Mr Mitchell raised at hearing a third stepdaughter, Rhianna, and said Rhianna was with him from when she was three years old. The Tribunal was not taken to any statements from Rhianna on the effect on her if Mr Mitchell’s visa remains cancelled. Mr Mitchell said Rhianna’s second child is due in December and he wants to be able to help her with her seven-year-old child as she is a single mother. If his visa remains cancelled he will be unable to provide practical assistance to Rhianna.
Other ties to the Australian community
Mr Mitchell arrived in Australia as a four-year-old child over 55 years ago. His first recorded conviction was when he was 19 years old. He has contributed positively to the community in some periods in a variety of jobs, including working in a nursing home for three years and St Vincent de Paul for three years. He said he undertook volunteer work for Campbelltown Community Suicide Prevention and in meeting with police about youth on the streets. While he said he was never out of work, the report of Dr Kozar records he has not worked since an accident when he was driving trucks in 2010. Overall, his young age on arrival and periods of contributing positively to the community means that more weight may be given to his other ties to the Australian community.
It was submitted by Mr Mitchell that this involves again considering his immediate family members, as cl 8.3(1) of the Direction involves considering the impact of the decision on his immediate family members and cl 8.3(2) involves considering the strength, nature and duration of any other ties that the non-citizen has with the Australian community. While the term ‘other’ ties implies that the immediate family has been addressed in cl 8.3(1), the consideration in cl 8.3(2) is slightly different, as the strength, duration and nature of family links may be different to the impact of the decision on the family members, and therefore should be provided separate consideration.
The strength, nature and duration of ties to his sons and stepdaughters weighs in favour of revoking the cancellation of his visa, and heavily in favour for Shantelle and Rory.
Other ties include Ms Clarke’s children and Mr Mitchell’s grandchildren.
Ms Clarke said her son tried to take his life a month ago and while her son keeps to himself, he reached out to Mr Mitchell to seek help and spent time talking to Mr Mitchell by phone. Her daughter has high functioning autism and so while they have a relationship, she does not engage with people generally.
Mr Mitchell’s stepdaughter is an indigenous person through her maternal grandmother, and it is assumed her sisters are also of indigenous heritage. Mr Mitchell was asked about his connection to the indigenous community. He said he is classed as an elder but has not had any involvement in the community or with Aboriginal groups. In previous statements he says he has contributed to remote communities as a truck driver delivering goods. In these circumstances he has limited ties to the Aboriginal community through his stepdaughters’ heritage.
Overall, the strength, nature and duration of ties weigh heavily in favour of revoking the cancellation of Mr Mitchell’s visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under clause 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the 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.
Clause 8.4(4) of the Direction 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. Those factors which include:
(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.
Mr Mitchell’s partner Ms Clarke has one child who is under 18, and he has nine grandchildren, with another due in December of this year. As the interests of these children are affected by their own family unit, it is convenient to address them by their family unit.
A common aspect for all the children is that each of these children have others who perform a parental role. Mr Mitchell has been imprisoned since 2017, and his day-to-day contact with the children is limited, however he described four-hour visits with them. There is no evidence in relation to any of the children that they have been exposed to family violence by Mr Mitchell. Mr Mitchell says he hopes that his prior conduct will not have any adverse effect on the children in his life. He wants to have a role in his grandchildren’s lives as a grandparent, to be involved in their sport and day-to-day activities, and to assist their parents in their care. His grand-daughter races motorbikes which he would like to support.
Child of Ms Clarke
Ms Clarke has two children, one of whom is 17 years old and who will turn 18 in December. Ms Clarke says she and her children feel safe and secure in Mr Mitchell’s company. Ms Clarke said her daughter has high functioning autism and while she has a relationship with Mr Mitchell her daughter does not engage a lot with people.
The relationship between Ms Clarke and Mr Mitchell commenced in the time he has been imprisoned, and while Mr Mitchell and Ms Clarke have known each other for over 20 years and he knows her children, he has not had the opportunity to develop a parental relationship with Ms Clarke’s daughter, and there is now a limited period before she turns 18 years of age. Separation from Mr Mitchell will not have a significant effect on Ms Clarke’s daughter, other than how it adversely affects her mother. There are no known views of Ms Clarke’s daughter.
Children of Jake
While Jake refers to children in his statement of 2019, when he states ‘I am at a part of my life where I’m growing up and marriage and kids are coming a reality […] I want my kids to be able to go to there (sic) poppy’s house and have fun with him.’[26] There is little information on any children of Jake and the best interests of any children. However, given Mr Michell’s account of nine grandchildren, there must be at least one child of Jake and it is accepted that it is in the best interests of Jake’s child or children that their grandfather remains in a position to have in person contact with them.
Children of Toby
[26] H4, 189.
Toby and his wife have two children, a son and a daughter. Both children were born after Mr Mitchell was imprisoned. His son is four years old this month and has tubular sclerosis. Toby states his children have not had contact with Mr Mitchell other than through letters, phone calls and the stories their father tells them. Toby wants his children to have the chance to know their grandfather while they are still young enough to build lasting memories.
The children speak to Mr Mitchell once or twice a month and contact by Facetime, and Toby said the children love seeing their pop. It is in the best interests of these children for the cancellation of Mr Mitchell’s visa to be revoked.
No information is before me about the prognosis for Toby’s son, however his condition means that his best interests weigh more heavily in favour of revoking the cancellation of Mr Mitchell’s visa than the children who do not have a medical condition.
Children of Shantelle
Shantelle has three children, Z, A and C. Z has been diagnosed with autism. Shantelle is a single mother, and Mr Mitchell says she needs his help with her children. Shantelle is close to Mr Mitchell, and the children would have contact with him if he is in the community. It is in the best interests of these children, and in particular Z for Mr Mitchell to be able to have in-person contact with them and undertake activities together.
Children of Colinda
Colinda has two children - a son, who is approximately 16 years of age and a daughter who is approximately 14. Colinda was unavailable to give evidence and has provided limited information about her children.
However, letters from the children to Mr Mitchell were provided with the original submission to revoke the cancellation, with Colinda’s daughter saying she could not wait for Mr Mitchell to watch her turn 18 and do fun things with the family, and her son stating he has been waiting to kick the football with Mr Mitchell and do family activities.
Children of Rhianna
Mr Mitchell states Rhianna has one child who is seven years old and is pregnant with her second child who is due in December. He would like to assist Rhianna following the birth of her child, which would be in the best interests of her son. There is little other information on Rhianna’s children before the Tribunal, but it is accepted that it is in their best inserts to maintain in person contact with Mr Mitchell.
The best interests of each the children in Mr Mitchell’s life, but particularly his grandchildren, are to maintain contact with him in person. This is a stronger factor for Toby’s son and Shantelle’s children. The children who have single parents will benefit from his presence to assist in their care. However, he does not have a parental role with any of the children, and they are all accustomed to contact with him electronically.
Overall, the best interests of minor children weigh moderately in favour of revoking the cancellation of Mr Mitchell’s visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction 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.
Clause 8.5(2) 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 the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[27] The particular examples of cases where the Australian community expects the Australian Government to cancel their visas do not apply in this case.
[27] Direction, cl 8.5(2).
Clause 8.5(3) of the Direction 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.
Contrary to submissions on behalf of Mr Mitchell, this does not require the Tribunal to assess what the Australian community expects, as cl 8.5(4) clarifies. The Tribunal can consider the weight it will place on this primary consideration.
The expectation of the Australian community as articulated in the Direction is that Mr Mitchell’s visa will be cancelled. Both the nature of Mr Mitchell’s conduct and the unacceptable risk of it recurring means that heavy weight is attributed in favour of not revoking the cancellation of Mr Mitchell’s visa.
OTHER CONSIDERATIONS
Clause 9 of the Direction 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;
c)       impact on Australian business interests.
Legal consequences of decision under s 501 or 501CA
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.[28]
[28] Ibid cl 9.1.
In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove a non-citizen does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
If Mr Mitchell’s visa remains cancelled, he must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act. He will be prevented by s 501E of the Act from applying for visas other than a protection visa or a Bridging Visa R (Removal Pending) while in the migration zone. Mr Mitchell will also be subject to special return criteria that provides for permanent exclusion from some types of visas should he apply for those visas.[29]
[29] See Special Return Criterion 5001(c), Schedule 5, Migration Regulations 1994.
While submissions were made about the application of the International Covenant on Civil and Political Rights (‘ICCPR’), which is considered further below, it was not submitted that non-refoulement obligations were owed in respect of Mr Mitchell.

The effective legal consequence of the decision is that Mr Mitchell will be removed from Australia and is unlikely to be able to return. While this is an anticipated legal consequence of the decision, given Mr Mitchell’s separation from his family, his health conditions, and the difficulty he will have re-establishing himself in the United Kingdom, this weighs in favour of revoking the cancellation of his visa.
Extent of impediments if removed
The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in the context of what is generally available to citizens of that country. This is to take into account the Applicant’s:
·     Age and health;
·     Whether there are substantial language or cultural barriers; and
·     Any social, medical and/or economic support available to them in that country.
Mr Mitchell is 59 years of age. He has problems with his liver, his heart and his mental health and has an acquired brain injury.
Medical reports from immigration detention show he has chronic liver cirrhosis in a background of previous hepatitis B and hepatitis C.[30] His more recent ultrasounds show a suspicious lesion on his liver,[31] and Mr Mitchell said he may have cancer. He was diagnosed with chronic obstructive pulmonary disease, and states he continues to suffer from cardiac fits.
[30] H4, 287.
[31] H4, 310.
Mr Mitchell will be separated from his family which will exacerbate his depression and anxiety in the context where he has a history of attempted self-harm. His family members express concern for his wellbeing if he is removed from Australia. I accept that his mental health may deteriorate and that his family hold concerns about his wellbeing.
Mr Mitchell said his main concern if he were to be removed to the United Kingdom is accessing adequate health care, and that he would go to ‘the bottom of the queue’ for health services. Mr Mitchell does not have any social or family support in the United Kingdom and would be required to establish himself in the community including finding housing, and accessing health care and income support. All of these are available to him in the United Kingdom, however Mr Mitchell also has an acquired brain injury that may make it more difficult for him to access these services. However, the services would be available to Mr Mitchell in the same way they are generally available to other citizens of the United Kingdom.
Mr Mitchell’s son said he could offer some financial support if Mr Mitchell is removed to the United Kingdom, and this could assist him to reestablish himself in the United Kingdom.
Mr Mitchell accepts there are no significant language or cultural barriers should he return to the United Kingdom.
Given Mr Mitchell’s physical and mental health and the difficulties he may experience reestablishing himself, the extent of impediments weights moderately in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Mitchell’s son states he can offer him employment in his business, which does palette racking and mezzanine work. This is a medium to large business with 24 employees which does work for large established companies intra and interstate. Mr Mitchell’s son acknowledged that Mr Mitchell’s health conditions will prevent heavy labour, but says he needs assistance in the office and delivering materials to sites.
I do not consider that the removal of Mr Mitchell from Australia will result in an adverse impact on his son’s business or any other business interests, and this consideration does not weigh for or against revoking the cancellation of Mr Mitchell’s visa.
OTHER MATTERS
Mr Mitchell argues that the national interest requires Australia to comply with its international obligations, and the removal of Mr Mitchell from Australia would be in breach of Article 23(1) of the ICCPR. This states the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
It was argued this forms part of the expectations of the Australian community. This seems to import a form of ‘legitimate expectation’ to inform the nature of the expectations of the community as provided in Minister for Immigration and Ethic Affairs v Teoh[32] which has now been rejected.[33] Decision makers do not independently assess the community’s expectations in a particular case.[34] They do decide the weight to be given to each consideration.
[32] [1995] HCA 20.
[33] See for example Lynch v Minister for Immigration [2025] FCA 1128 at [14] – [22].
[34] FYBR v Minister for Home Affairs [2019] FCAFC 185 per Charlesworth J at [67] Stewart J at [89].
The Minister submits that if Mr Mitchell claims he will suffer significant harm in being removed from Australia, he can apply for a protection visa which will be assessed according to requirements in the Act. This does not quite address the argument that the family is entitled to protection by society and the State.
The Direction sets out that the Tribunal must consider the strength, nature and duration of ties to Australia, including the impact of the decision on immediate family members, and the strength, nature and duration of ties to family who are Australian citizens or who have an indefinite right to remain in Australia. The Tribunal is also required to consider the best interests of minor children in Australia.
As the High Court has stated in the context of Australia’s international non-refoulement obligations:
In point of constitutional principle, an international treaty (or customary international laws of a similar nature) can operate as a source of rights and obligations under domestic law only if, and the extent to which, it has been enacted by parliament. It is only Parliament that may make and later domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations; such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.[35]
[35] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [20]
In this case, Mr Mitchell and his family have real and significant concerns about the effect on each of their lives if Mr Mitchell is removed from Australia. The importance of the family unit, and the weight that may be attributed to the effect on family members that is contained in the Direction recognises the fundamental group unit of the family and the weight that should be accorded to the disruption of that unit, and I do not consider additional weight should be ascribed to this effect in the circumstances of this case.
CONCLUSION
Mr Mitchell has been in Australia for over 57 years, arriving when he was 4 years of age, and Australia may afford him a higher level of tolerance of criminal conduct.[36] However the gravity of his conduct, which included his involvement in the events that led to the death of a person means that strong countervailing considerations may be insufficient to justify revoking the cancellation of his visa.[37]
[36] Cl.5.2(6) of the Direction.
[37] Cl.5.2(7) of the Direction
Mr Mitchell has undertaken extensive rehabilitation and has considerable family ties in Australia. He is in a relationship with Ms Clarke who would not be able to relocate to the United Kingdom. His youngest son wants to live with his father and it is unknown if he could relocate to the United Kingdom. The strength, nature and duration of Mr Mitchell’s ties to Australia attracts heavy weight in favour of revoking the cancellation of his visa.
Mr Mitchell wants to remain in Australia to have day-to-day contact with his grandchildren and assist in their care, and while he does not have a parental role for these children, the best interests of minor children weigh moderately in favour of revoking the cancellation of his visa. The legal consequences of the decision include that Mr Mitchell will be removed from Australia and is unlikely to be able to return, which weighs in favour of revoking the cancellation in his circumstances.
However, Mr Mitchell has a lengthy and extensive criminal history and was not deterred by a previous consideration of cancelling his visa. He is assessed as being a moderate risk of violent offending and together with the gravity of the offence this means that the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation of his visa.
In accordance with cl.7(2) of the Direction, the protection of the Australian community is given the greater weight in this matter and together with the expectations of the Australian community, outweigh the countervailing considerations.
This being the case, I am not satisfied that there is another reason the cancellation of Mr Mitchell’s visa should be revoked and the decision under review is affirmed.
DECISION
The decision under review is affirmed.

Date of hearing:

9 and 10 September 2025

Solicitors for the Applicant

Counsel for the Applicant

Ms Nosrat Hosseini,
NH Migration Services

Mr Anthony Krohn

Solicitors for the Respondent:

Mr Liam Dennis,
Mills Oakley