Morgan and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1406
•13 August 2025
Morgan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1406 (13 August 2025)
Applicant/s: Brenton Morgan
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3864
Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:13 August 2025
Decision: The Tribunal sets aside the decision under review and in substitution decides to revoke the visa cancellation decision made on 27 August 2024.
....................[SGD]....................................................
Deputy President P Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – the seriousness of drug trafficking – applicant has lived in the Australian community for most of his life and from a very young age – the decision under review is set aside and substituted by a decision to revoke the cancellation of the visa
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 27 August 2024, the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.[2]
[2] Hearing Book G14, 124.
The Applicant sought revocation of the cancellation decision on 29 August 2024 and made representations in support of revocation.
On 28 May 2025, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[3] The Applicant applied to the Tribunal for review of the non-revocation decision on 3 June 2025.[4]The Tribunal heard the matter on 7 and 8 August 2025.
[3] Ibid G6, 55.
[4] Ibid G1, 1.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
…
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The Applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[5] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[6] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[7]
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].
[6] [2021] HCA 41.
[7] Ibid [14].
BACKGROUND
The Applicant is a citizen of New Zealand but has lived here since he was four years old. His older siblings were born in Australia and are Australian citizens. The Applicant was born in New Zealand because his parents went there temporarily and did not return until after his birth. He was born in New Zealand on 29 November 1990 and first came to Australia on 7 December 1991 as a one-year-old. He then returned to New Zealand in September 1992 and came back to Australia on 17 February 1995. He has not left the country since that time. He has three sisters and brother who are all Australian citizens. His mother is from Australia. His father was from New Zealand but died on 23 May 2023. When growing up, he rarely saw his father who left when he was 10 years old. His mother struggled to support the family financially.
The Applicant had a difficult upbringing and was exposed to inappropriate behaviour due to his mother and her partner’s substance abuse. He had difficulties at school, but he managed to complete year 10 before undertaking a sheet plastering and roof panelling apprenticeship. He held a number of jobs after leaving school, but he had financial difficulties due to an unpaid debt from a builder who went into liquidation and ultimately, he filed for bankruptcy in 2017. Over the years, the Applicant has developed a dependency on drugs and alcohol and has been prescribed medication for attention deficit hyperactivity disorder (ADHD).
His criminal history began in 2015. On 16 December 2015 he was sentenced to 3 years four months imprisonment for drug related offences. On 10 October 2022 he was sentenced to imprisonment for 10 years and six months for further drug-related offences including trafficking a drug of dependence in a large commercial quantity. This most serious offending related to events in November and December 2019 when he was suffering from serious mental and physical illness.
Direction 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[8]
[8] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘The Direction’).
For the purposes of deciding whether to refuse a non-citizen’s visa or whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:[9]
(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.
[9] Ibid at 8.
The other considerations are:[10]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
[10] Ibid 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[11]
CONSIDERATION
[11] Ibid 7(2).
Protection of the Australian community – 8.1 of Direction 110
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[12] As required by paragraph 8.1(2) of the Direction, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
[12] Ibid 8.1(1).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110
When considering the nature and seriousness of the Applicant’s conduct, I take into account his criminal activity and other serious conduct. The Applicant has served two terms of imprisonment for possession and trafficking of drugs and other related criminal offending.
When being sentenced on 10 October 2022 for his most recent offences the sentencing judge referred to the Applicant’s criminal history as follows:[13]
You were arrested on 1 July 2014, for offending dealt with by her honour Judge Hogan, and you were remanded in custody until granted bail on 16 September 2014. On 16 December 2014, on bail, you committed further offences relating to the possession of weapons, ammunition and drugs. Your bail was revoked. On 27 July 2015, you were convicted of these offences at the Frankston Magistrates Court and sentenced to an aggregate term of four months’ imprisonment. You appealed to the county court, on 30 November 2015 you were resentenced to an aggregate fine of $500 and 90 days’ imprisonment, with 90 days’ pre-sentence detention being declared as served.
Judge Hogan sentenced you on 4 December 2015 and that was to a total effective sentence of 3 years and 4 months’ imprisonment, fixing a non-parole period of 20 months. This was for offending including trafficking in MDMA amounting to 847 tablets, which weighed, in mixture form, 249 grams, having a purity of 20 per cent. You will also dealt with for a range of other offending including firearm and drug possession, including a low-level example of trafficking methylamphetamine which related to a total mixture of 2.9 grams, and the possession of a tablet press.
You do not appear to have learned from this previous interaction with the criminal justice system. The offending before me does represent a concerning escalation.
[13] Hearing Book G4, 42 [24] – [26].
The Applicant explained in his oral evidence that he was addicted to drugs at the time of the offending in 2014. There was a period of heavy drug use by the Applicant in 2013 and 2014 up until he was arrested (again) and his bail was revoked on 15 December 2014. This period of offending resulted in the first and second custodial sentences which were served together.
The more recent offences took place in November and December 2019. The Applicant had recently become unemployed, injured his leg and he had resumed use of methamphetamine and association with negative peers. He had also broken up with his girlfriend and his mental health had deteriorated. This second period of heavy drug use was for about six months leading up to his arrest on 21 December 2019.
In reference to these two periods leading up to his offending, the Applicant said:[14]
During these periods, I did not possess the wisdom and strategies to deal with major shifts in my life, and the grief and loss I faced led to my use of illicit substances as a coping mechanism. I now appreciate that this is the worse way to deal with these challenges. I am now better equipped to face life’s challenges properly.
[14] Applicant statement 16 July 2025 at [8].
The Applicant pleaded guilty to possessing a drug of dependence, dealing with suspected proceeds of crime, trafficking a drug of dependence and trafficking a drug of dependence in not less than a large commercial quantity. This last charge related to the Applicant’s possession for sale of some 3.2 kg of MDMA powder located in a shipping container as well as possession for sale of some 2.8 kg of MDMA pills located in a room in the Crown towers complex. This charge has a maximum penalty of life imprisonment. The sentencing judge described his offending as ‘serious criminal activity engaged in for financial reward’.[15] The judge sentenced him to a total effective sentence of 10 years and six months and said:[16]
Whilst I acknowledge that your background may go some way to explain the attraction which drugs have held for you, and your drug use at the time provides some explanation as to how you may have become involved in serious offending, your offending is not that of a street level dealer committed to fund a desperate habit on a minor daily basis. Your offending is far more serious, notwithstanding that it is on one day only and there is no evidence of any sale having been undertaken, it is underpinned by the fact that allied to the drugs found at Crown is some $96,000, and your possession of the quantity of the drug located at the container.
Whilst I cannot find that the $96,000 odd was the product of a sale on your behalf, your possession of it in the circumstances in which you did, allied to the quantity of drugs possessed by you all point to you being a person playing a role in a commercial activity of some size and scale. On any view yours is a significant role.
[15] Hearing Book G4, 48 [54].
[16] Ibid 48-9.
The three custodial sentences of 90 days, three years four months and 10 years four months reflect the seriousness of the offending. As the sentencing judge said, the Applicant had not learnt from his previous interaction with the criminal justice system and his most recent offending represents a concerning escalation.
The Applicant engaged in drug related criminal activity during two periods, the first being in 2014 and the second in 2019. The cumulative effect of the offences is very significant. The crime of trafficking a commercial quantity of MDMA is a very serious crime with a significant detrimental impact on the community. I conclude as to the nature and seriousness of the Applicant’s conduct that it was extremely serious. It is a very significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[17] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[17] The Direction (n 8) at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[18] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable.[19]
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[18] (2014) 225 FCR 424.
[19] The Direction (n 8) 8.1.2(1).
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be extremely serious because of the impact on the community of drug trafficking.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
The Applicant has expressed remorse for his offending and says that he will not re-offend because he is rehabilitated and drug free.
Relevant to the risk of re-offending is the sentencing judge’s remarks in October 2022 that:[20]
Notwithstanding your prior history and the offending before me, in light of the support available to you, your efforts whilst in prison to rehabilitate yourself, and your work skills and demonstrated ability to apply yourself to paid employment your rehabilitation is not a lost cause. I have some optimism regarding this.
[20] Hearing Book G4, 50-1 [65].
The Applicant was examined by Mr Jeffrey Cummins, a clinical and forensic psychologist who prepared a report dated 4 August 2025. Mr Cummins noted in his report that the Applicant has been substantially employed from his mid teenage years which he considers is a highly relevant factor in terms of his positive rehabilitation prospects.[21] Mr Cummins said that, whilst serving his current sentence, the Applicant has developed sufficient insight into both his historical and his more recent psychological functioning to understand that the feelings and thoughts he has been experiencing over many years have been indicative not only of symptoms of anxiety and depression, but also symptoms of the multiple traumatic events and experiences he has had in his lifetime.[22]
[21] Report of Mr Jeffrey Cummins dated 4 August 2025, 13 [86].
[22] Ibid 14 [91].
Mr Cummins noted that the Applicant had completed numerous courses whilst in prison, and that he had embarked on a course of developing insight into how he arrived at this point in his life and what he can do and what he is now doing to change the future course of his life.[23] He considered that the Applicant is now significantly advanced on a course of rehabilitation as has been reflected through his selection and involvement in the university program run by Dr Martinovic from RMIT.[24] He noted that the Applicant had not provided any drug contaminated urine samples whilst in custody and that he is now working in the privileged role of being an education officer and that he has an exemplary work record and conduct record whilst serving his current sentence.[25]
[23] Ibid [96].
[24] Ibid 15 [98].
[25] Ibid.
Mr Cummins expressed his clinical opinion that the Applicant is now significantly entrenched in a course of personal change and rehabilitation. In his opinion, the Applicant’s current level of risk of reoffending, by returning to illicit drug use and hence increasing the probability he will then engage in other criminal activity, is low-moderate and trending towards low. He confirmed that if the Applicant remained in the community even whilst on parole and did not resume using illicit drugs then he would assess his risk of reoffending as reducing to low.[26]
[26] Ibid 16 [106.
I note that an earlier psychological report from August 2022 (Carla Ferrari) assessed his risk of reoffending as moderate if his mental health remains untreated.[27] Ms Ferrari described the Applicant as a man who demonstrates relatively positive prospects for rehabilitation with periods of abstinence from substances and overall stability in employment and long-term relationships, despite adversity and exposure to familial criminal, mental health and substance use. She said that he is motivated to overcome his upbringing and genetic predisposition and with intensive support from appropriate services he demonstrates a willingness and a capacity to improve his future and functioning.
[27] Hearing Book SG3, 262 [115].
In my opinion, there are numerous positive factors that support the professional opinion of Mr Cummins that the Applicant is a moderate to low risk of reoffending. The Applicant has taken steps to address his underlying ADHD for which he is now receiving medication. He has participated in multiple high intensity drug rehabilitation programs including Skating on Ice, a 27-hour high intensity drug course, and Know the Score, a 30-hour high intensity self-development course. In addition, he engaged in courses relating to grief and loss and in doing so said that he gained the tools required to process feelings that come with massive shifts in life circumstances in a positive manner. In 2023 the Applicant completed a program at RMIT university when he and other prisoners worked alongside 15 university students. In 2024 and 2025 he participated in the course again as a mentor and has been asked to join a related community-based think tank if released from prison.
The Applicant has a very positive recommendation from Dr Martinovic, an associate professor at RMIT University in Melbourne who runs the inside out prison exchange program.[28] She said that the Applicant completed complex readings for homework and actively participated in critical discussions on all the topics covered. She said that he received a high distinction of 91 out of 100 for the inside out prison exchange program. She said that the Applicant had been greatly supporting the running of the inside out prison exchange program at the prison where he has held information sessions about the program and assisted in the prisoner selection process. She confirmed that she has invited the Applicant to join the community-based think tank, beyond the stone walls advisory collective, as soon as he is able. The Applicant’s participation with Dr Martinovic reflects the significant extent of his rehabilitation and has learnt to help himself by helping others.
[28] Statement of Dr Marietta Martinovic dated 16 July 2025.
The Applicant has very significant and genuine support from his partner, his siblings, his friends and his mother. He has good prospects of employment. I expect that if released he would find himself in a very stable and supportive environment which will reduce the likelihood of him relapsing into drug use and reoffending. The Applicant has been offered accommodation with his partner and he has never had difficulty obtaining employment so I expect that will not be an issue for him if released. He also has support from numerous friends who provided positive statements about his character and their support for him if he were released.
The Applicant has been in custody since his arrest on 21 December 2019. Not only has he behaved well in prison, but he has also helped other prisoners by teaching welding and acting as a peer educator. His voluntary actions during the pandemic were exemplary. His earliest date of release is 30 December 2025 but, if released, he would remain on parole until August 2029 with conditions that he would remain on a curfew and be required to undergo supervised urine analysis twice-weekly. He would be prohibited from associating with other criminal offenders and would be banned from attending Crown Casino. These conditions provide further protection against re-offending in the future.
It is also relevant that at the time of his offending in 2014 and 2019, the Applicant was unaware that he was not an Australian citizen. He first became aware that he was subject to a visa when in prison sometime in 2023. Before then, he thought he was an Australian citizen because that is what his mother had told him. The prospect of being removed to New Zealand is now a very significant incentive for him to not reoffend. If removed, he would be separated from his partner, family and friends and he would be forced to live in a country with which he has no connections or familiarity. The Applicant understands this very significant consequence of re-offending. I am confident that he will not re-offend.
While the Applicant’s abstinence from drugs and his good behaviour remain untested in the community, I consider that there is a very real likelihood of the Applicant remaining drug free and not re-offending, in which case I agree with the opinion of Mr Cummins that his risk of re-offending would be low.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
There is both a backward and forward looking assessment to be made when considering the protection of the Australian community. It requires a consideration of the Applicant’s past conduct, in particular his drug trafficking, and a consideration of the risk of further offending. Further, it is the Government’s view expressed in paragraph 8.1.2(1) of the Direction that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I believe that this is a case where the Applicant’s conduct and the harm that would be caused, if it were to be repeated, is serious, but because the likelihood of re-offending is low, the risk to the Australian community is acceptable. However, there remains a material risk of serious potential harm and therefore the protection of the Australian community is a factor that weighs against revocation of the cancellation decision but only moderately so.
Family Violence – 8.2 of Direction 110
There is no evidence that the Applicant has engaged in family violence.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of Direction 110:
(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.
If the Applicant were removed to New Zealand, it would have a significant negative impact upon his partner, his mother and his siblings. His mother provided a statement that his removal to New Zealand would be devastating for her because she is approaching 70 years old, and her mobility is limited which means she could never visit him. His removal would also have a negative impact on the numerous friends who have given evidence of his good character and that they would support him if he were released. The Tribunal heard oral evidence from his partner and his younger sister both of whom were impressive witnesses whose support for the Applicant is genuine.
The Applicant has developed many significant friendships during the 30 years he has been in Australia, and he has both family and social links with Australian citizens.
The Applicant has lived in Australia for over 30 years which represents almost his whole life. He grew up in Australia and has never left since he was 4 years old. He has contributed to the community by working. He is the only child amongst five siblings who was born in New Zealand. His mother, an Australian citizen, explained that she travelled to New Zealand just before the Applicant was born and was not able to return in time to give birth in Australia. The Applicant has done all his schooling in Australia and has no meaningful connection with New Zealand.
In conclusion, I consider that this factor weighs in favour of revocation of the cancellation decision. I give this factor significant weight because the Applicant arrived in Australia as a very young child and because of his positive contribution to the Australian community up until the age of about 23 years old which was when his serious offending began. I also accept the Applicant’s submission that his participation in the Inside Out program and other RMIT activities represent a positive contribution to the Australian community.
Best interests of minor children – 8.4 of Direction 110
The Applicant has seven nieces and nephews whose interests would be affected.
Two of them live in Queensland and were born since the Applicant went to prison in 2019, but their mother (the Applicant’s younger sister) explained that she visits him at least twice a year with her children, who love him and enjoy interacting with him on the phone as well. Non-revocation would not be in the best interests of these children because, as an uncle, the Applicant would likely have a positive impact on them, but I give very little weight to this factor because of the non-parental relationship and his limited meaningful contact in the past due to his incarceration since 2019.
The other nieces and nephews are aged between 12 and 17 years old. They live in Melbourne and there is evidence that they have a positive relationship with the Applicant. Their interests would be best served if the Applicant were released but I give their interests minimal weight because the relationship with them is non-parental and with long periods of absence due to his periods of incarceration.
This is a consideration that weighs in favour of revoking the cancellation decision, but I do not give it significant weight because the relationships are non-parental with limited meaningful contact.
Expectations of the Australian community – 8.5 of Direction 110
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 remain in Australia.[29] The Applicant has failed to obey the laws of Australia and has engaged in serious criminal activity with a significant impact on the broader community due to drug trafficking. He would therefore be expected to be removed from the community. However, Australia would afford the Applicant a higher level of tolerance of his criminal conduct because he has lived in Australia from a very young age.[30] Given the seriousness and cumulative effect of the Applicant’s criminal conduct, I give this factor significant weight.
[29] The Direction (n 8) 8.5(1).
[30] Ibid 5.2(6).
I conclude that the Australian community expects that the Australian government should cancel the Applicant’s visa. There is a real, albeit low, risk of further drug related crime. This is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, where relevant, but these are not exhaustive.[31]
[31] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 110
As a consequence of affirming the decision under review, the Applicant would be detained upon completion of his sentence and will be liable to be removed from Australia as soon as reasonably practicable. He will not be able to apply for another visa (except for a protection visa). The Applicant has raised no claim of non-refoulement obligations.
These are the intended consequences of a visa cancellation and therefore this consideration weighs neutrally in this matter.
Extent of impediments if removed – 9.2 of Direction 110
The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:[32]
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
[32] The Direction (n 8) at 9.2(1).
The Applicant is concerned that he will have no family or social support in New Zealand because he has not lived there since he was a small infant. However, the language and cultural barriers are not substantial and medical and economic supports would be available.
The Applicant is 34 years old and in relatively good physical health. However, he has ongoing mental health issues and has been taking medication for attention deficit hyperactivity disorder since 2023. Mr Cummins’ opinion was that he was suffering from complex Post-Traumatic Stress Disorder (PTSD) when he offended in December 2019 and that he remains a significantly traumatised person.[33] Being removed to New Zealand would be detrimental to his mental health and to his process of rehabilitation.
[33] Report of Mr Jeffrey Cummins dated 4 August 2025, 15 [103].
This is a consideration that weighs in favour of revocation, but I would give it limited weight because the identified impediments are minimal and are not so significant as to prevent the Applicant from establishing himself and maintaining basic living standards in New Zealand.
Impact on Australian business interests – 9.3 of Direction 110
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh moderately against the Applicant because of the seriousness of the offending, which is tempered by the low risk of re-offending due to the extent of his rehabilitation and the supports available to him in the outside community. The most important countervailing factor is the Applicant’s ties to Australia, and in particular the fact that he has lived here, without leaving, for 30 years since he was four years old. I was very impressed with the way the Applicant has behaved in prison since 2019, in particular the help he has given to other prisoners and his participation in the programs developed by Dr Martinovic. The Applicant has worked hard to rehabilitate himself. He has accepted treatment for his ADHD. He has shown himself to be a hard worker in the community and a model prisoner when outside the community.
In my view, the Applicant has shown that he is adequately rehabilitated and a low risk of re-offending. He has very significant ties to his partner, his family and the Australian community. These major factors outweigh the primary considerations of the protection and expectations of the Australian community. I find that there is another reason why the cancellation decision should be revoked.
The decision of the Tribunal is to revoke the cancellation decision.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
.................[sgd].......................................................
Associate
Dated: 13 August 2025
Date of hearing:
7 and 8 August 2025
Applicant’s Counsel Mr Greg Hughan and Mr Angel Aleksov Applicant’s Representative Australian Migration Lawyers Respondent’s Counsel: Mr Sam Crock Respondent’s Representative: Sparke Helmore Lawyers
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