Morgan and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 681
•28 May 2025
Morgan and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 681 (28 May 2025)
Applicant/s: Brian Maikara Otaki Morgan
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1947
Tribunal:General Member R. West
Place:Melbourne
Date:28 May 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the Tribunal affirms the decision of the delegate of the Respondent of 6 March 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.
.................................[sgd].......................................
General Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – conviction for culpable driving causing death – youth offending – Lesianawai principles – applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – Direction 110 – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – decision affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Children, Youth and Families Act 2005 (Vic)Sentencing Act 1991 (Vic)
Cases
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Statement of Reasons
This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa (the Visa) under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of New Zealand. He first arrived in Australia in 2001 as a one-year-old child.[1]
[1] G23 at pp.158–9.
On 28 August 2015 the Applicant was granted the Visa.[2]
[2] G22 at p.151.
On 25 January 2019 the Applicant was convicted of culpable driving causing death and was sentenced to six years imprisonment.[3]
[3] G6 at pp.40–3.
On 22 June 2020 the Applicant’s Visa was cancelled under section 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation.[4]
[4] G22 at pp.151–7.
On 14 July 2020 the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked.[5]
[5] G8–20 at pp.66–144.
On 6 March 2025 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision)[6] and notified the Applicant of the decision on 2 December 2024.[7]
[6] G4 at p.24.
[7] G3 at pp.20–2.
On 15 March 2025 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[8]
[8] G2 at pp.5–18.
HEARING
The Tribunal conducted a hearing of the Application on 20 May 2025. The Applicant was self-represented. The Respondent was represented by Mr Matthew Daly and Ms Emma Hubball, solicitors.
In conducting the review, the Tribunal had regard to:[9]
(a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G24 and paginated from pages 1 to 183 (G Documents), and further documents produced under summons sequentially numbered STB1 to STB29 and paginated from pages 1 to 659 (STB Documents);
(b)a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(c)a Supplementary Submission provided by the Respondent regarding youth offending; and
(d)the oral evidence of:
(i)the Applicant; and
(ii)Ms Stephanie Milne, the Applicant’s mother.
[9] Directions issued by the Tribunal on 24 March 2025 provided for the Applicant to lodge and serve a SFIC and any evidence upon which he intended to rely by 17 April 2025. The Applicant did not lodge and serve a SFIC or any further evidence.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a) the Applicant passes the character test (as defined by section 501); or
(b) there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a ‘substantial criminal record’, which is defined in section 501(7)(c) to include having been ‘sentenced to a term of imprisonment of 12 months or more’.
On 25 January 2019 the Applicant was sentenced by the County Court of Victoria to a term of imprisonment of six years[10] and as a result the Applicant has a ‘substantial criminal record’ as defined in section 501(7)(d). He therefore fails the character test under section 501(6)(a).
[10] G6 at p.41.
Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked. That reason:
... must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[11]
[11] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [64] per Colvin J.
DIRECTION 110
On 7 June 2024, the Minister issued Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[12]
[12] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 [17].
Paragraph 6 of Part 2 of Direction 110 provides that decision-makers must take into account the considerations identified in paragraphs 8 and 9 where relevant to the decision within the framework provided by the principles stated in paragraph 5.2.
Paragraph 8 of Part 2 sets out the five primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
EVIDENCE
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 9 February 2021 was included in the G Documents.[13]
[13] G6 pp.40–3.
The offending documented in the record includes offending by the Applicant while a child.
The High Court has affirmed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton[14] and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs[15] that an administrative decision-maker is not entitled to take into account convictions for offences committed by a child where a State law determines that such convictions are taken not to be convictions for any purpose.
[14] (2023) 276 CLR 136.
[15] [2024] HCA 6.
The relevant State law in Victoria is the Children, Youth and Families Act 2005 (Vic) (CYFA). The CYFA relevantly provides that offences under the CYFA recorded as being without conviction must not be taken to be a conviction for any purpose.[16]
[16] See Children, Youth and Families Act 2005 (Vic) s 360, together with Crimes Act 1914 (Cth) ss 85ZR(2) and 85ZS(1)(d)(ii).
The Applicant’s record includes a series of findings of guilt in proceedings in the Ringwood Children’s Court on 22 April 2015, 22 April 2015, 7 October 2015, 22 June 2016, 25 January 2017 and 30 August 2017. In each case the findings were recorded without conviction. Accordingly, the Tribunal does not have regard to these findings.
Further findings of guilt were made in relation to a range of offences by the Ringwood Children’s Court on 30 August 2017 and by the Melbourne Children’s Court on 2 August 2018 in which a conviction was recorded. As a result of the Applicant’s conviction for breach of a youth supervision order on each occasion, the Courts included convictions for offences where the Ringwood Children’s Court previously made findings without conviction on 30 August 2017 and 25 January 2017. The CYFA does not provide that a conviction for youth offending is not to be taken to be a conviction for any purpose. Accordingly, the Tribunal has had regard to the Applicant’s convictions by the Ringwood Children’s Court on 30 August 2017 and by the Melbourne Children’s Court on 2 August 2018.
The record also includes convictions against the Applicant for culpable driving causing death and other related offences in the County Court of Victoria on 25 January 2019. The offending to which these convictions relate occurred when the Applicant was 17 years old but were tried after he had turned 18. Judge Lawson explained in her sentencing remarks that the matters were uplifted to the County Court because:
The Children’s Court does not have jurisdiction to hear the culpable driving charge. By virtue of s516 of the Children, Youth and Families Act 2005 (CYFA), Charge 2, the culpable driving charge must be heard in the County Court.[17]
[17] G7 at p.46.
Her Honour explained further that the sentencing principles in relation to the culpable driving charge were pursuant to the Sentencing Act 1991 (Vic) and not the CYFA.[18] Similar to section 360 of the CYFA, section 8(2) of the Sentencing Act provides that a finding of guilt without the recording of a conviction means the conviction must not be taken to be a conviction for any purposes. However, the County Court entered convictions in relation to each of the offences for which guilt was established. Accordingly, the Tribunal has had regard to each of the convictions entered on 25 January 2019.
[18] Ibid at [5]–[7].
The convictions on 25 January 2019 provided the basis for the cancellation of the Applicant’s Visa and are the most serious of the Applicant’s many offences. They are the principal consideration of the Tribunal in considering the relevant principles under Direction 110.
On 25 January 2019 the Applicant was convicted in the County Court of Victoria of:
(a)Culpable driving causing death – 6 years imprisonment and disqualified from obtaining a drivers licence for 4 years;
(b)Fail to stop vehicle after an accident – 6 months imprisonment (3 months concurrent);
(c)Theft (2 counts) – 6 months imprisonment and 7 days imprisonment (both concurrent);
(d)Aggravated burglary person present – 6 months imprisonment (concurrent);
(e)Attempted aggravated burglary – 3 months imprisonment (concurrent);
(f)Drive motor vehicle without a licence – one month imprisonment (concurrent); and
(g)Without authority/excuse enter private place – 14 days imprisonment (concurrent).
Subsequent to the Applicant’s convictions on 25 January 2019 he was convicted as an adult:
(a)On 2 May 2019 the Applicant was convicted in the Melbourne Magistrates Court of:
(i)Possess anabolic steroids – 2 months imprisonment (concurrent);
(ii)Affray/Unlawful Assault – 2 months imprisonment (concurrent); and
(b)On 15 July 2019 the Applicant was convicted in the Kyneton Magistrates Court of criminal damage (intent to damage/destroy) – 7 days imprisonment (concurrent).
The Tribunal has also had regard to these convictions.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of Part 2 of Direction 110 requires decision-makers to give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
The circumstances of the offending for which the Applicant was convicted on 25 January 2019 were set out in the sentencing remarks of Her Honour Judge Lawson,[19] as follows:
[19] G7 at pp.48–50, paragraphs [19]–[34].
… on 8 November 2017 at 4.15pm, you were driving a stolen BMW station wagon in Glenburnie Road, Mitcham. Three other passengers ... (names deleted) … were travelling with you.
As the vehicle approached the intersection of Orient Avenue, you failed to give way at a Give Way sign, and collided with a Suzuki motorcycle travelling east on Orient Avenue, being ridden by … (name deleted) ... (the deceased).
Following the collision … (name deleted) … was ejected from the motorcycle and projected forward. Both he and the motorcycle became trapped under the front of the BMW, when you accelerated instead of stopping.
Thereafter you continued to drive north on Glenburnie Road on the wrong side of the road for a further 85 metres with … (name deleted) ... and the motorcycle wedged under the BMW. This caused the fuel tank and the crank case on the motor cycle to rupture, engulfing the deceased in an intense petrol and oil fire.
… (name deleted) ... sustained life threatening injuries which included fractures to his lower right leg and full thickness burns to approximately 80 per cent of his body. He died on the following day as a consequence of the injuries he suffered.
The criminally negligent driving by you included failing to give way at the Give Way sign, knocking the deceased from his motorcycle and then continuing to drive on for 85 metres with the motorcycle and deceased wedged under the vehicle.
After coming to a stop, you then reversed off the motorcycle and travelled in reverse, at speed, along Glenburnie Road and left the scene. The fact that you left the scene constitutes Charge 3, failing to stop.
Later that day, the BMW was found abandoned in an emergency lane on the southbound side of Eastlink, in the vicinity of the George Street overpass.
After abandoning the BMW, you, together with the three male passengers, ran from the vehicle up an embankment. From there you went to Haideh Place, Wantirna South, where you all jumped the rear fence into the yard of 7 Haideh Place (Summary Charge 15, trespass).
The occupant of those premises saw you and banged on the window and told you all to go away. You then all jumped over a fence to another property, 8 Haideh Place. All four of you then attempted to force your way into those premises by kicking at the front door. The occupant … (name deleted) … ran to the door and held it and yelled at you, such that you all ran away (Charge 4, attempted aggravated burglary).
You then ran east in Haideh Place into the driveway of No.22 and then you all jumped over a fence into No.23.
… (names deleted) ... the occupants of 23 Haideh Place, were at home, out in their backyard working. Their daughter was inside, in her bedroom, located near to the front door.
You and the other males gained entry into the premises and you stole car keys and other items, including a wallet and Nokia phone.
The four of you left the premises in the Toyota Camry belonging to … (name deleted) … valued at $5,000 (Charges 5 and 6, aggravated burglary and theft of a motor vehicle).
The Toyota Camry vehicle was later recovered in Narre Warren, having been abandoned, set alight and destroyed by fire.
Following police investigation, it was established that the stolen BMW involved in the collision had been involved in the theft of $95.98 worth of diesel petrol from a nearby Coles Express service station in Canterbury Road, Ringwood, approximately five minutes before the collision (Charge 1, theft). At the time of the driving of the BMW, you did not hold a valid Victorian licence (Summary Charge 13, unlicensed driving).
Paragraph 8.1.1(1) of Part 2 of Direction 110 provides a description of what is considered ‘very serious’ and ‘serious’ conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes which are to be regarded as ‘very serious’ and include crimes of violence.
There can be no doubt that the Applicant’s culpable driving causing death offending, in causing a vehicle to collide with the victim’s motorcycle and forcefully dragging the victim under the car for some 85 metres resulting in serious injury and ultimately death, was a violent crime. It was therefore very serious conduct.
The descriptions of serious crimes given in paragraphs 8.1.1(1) are not exhaustive, and paragraphs 8.1.1(1)(c)-(i) set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the courts for a crime or crimes;
(b)the impact of the offending on victims and their family;
(c)the frequency of the Applicant’s offending; and
(d)the cumulative effect of any repeated offending.
In her sentencing remarks on 25 January 2019 Judge Lawson described the Applicant’s conduct in relation to the culpable driving causing death charge as ‘reprehensible’ and said the Applicant acted in a ‘cruel and callous manner’ showing ‘no regard for the harm … inflicted on the innocent motorcyclist’. Her Honour added:
Your inhumane behaviour must be condemned and on behalf of the community, I denounce your behaviour. Your actions were cowardly and are deserving of stern punishment. The related subsequent offence of failing to stop must also be condemned for the same reasons.
The behaviour reflected in the additional charges on the indictment is rightly the sort of behaviour that is a matter of significant public concern. Your actions committed in company were frightening and intrusive and showed a real disregard for the property, privacy and security for all victims concerned.
The offending has had devastating consequences and I have had regard to the contents of all the victim impact statements that have been filed.[20]
[20] G7 at pp.51–2.
Judge Lawson noted that an aggravating factor in sentencing was that the offending occurred while the Applicant was released on youth parole.[21]
[21] Ibid at p.47.
A clear indicator of the seriousness of the Applicant’s offending is that he has received a sentence of imprisonment of six years. Custodial sentences reflect the objective seriousness of the offences involved and are generally a last resort in the sentencing hierarchy.[22]
[22] See PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 at [46]; Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63]; see also BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023) at [80].
Following the Applicant’s conviction of Culpable driving causing death, the Applicant was convicted of three further offences, Possess anabolic steroids and Affray unlawful assault on 2 May 2019, and Criminal damage (intent damage/destroy) on 15 July 2019. The convictions resulted in concurrent imprisonment terms of two months for the convictions on 2 May 2019, and seven days for the conviction on 15 July 2019.[23]
[23] G6 at pp.40–1.
Paragraph 8.1.1(1)(e) of the Direction provides that the frequency of the Applicant’s offending and whether there is a trend of increasing seriousness must be taken into account. In the Applicant’s case his record of convictions since August 2018 shows a history of frequent and repeated offending. It includes crimes of dishonesty, violence and property damage. The seriousness of his offending increased culminating in the tragic death of an innocent motorcyclist.
The Applicant does not dispute that his conduct was very serious.
Having regard to these matters, the Tribunal is satisfied that the Applicant’s past criminal conduct was very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Paragraph 8.1.2(2) of Part 2 of Direction 110 requires the decision-maker, in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, to have regard, cumulatively, to:
(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 available information and evidence on the risk of the applicant reoffending.
Nature of the Harm
The offending for which the Applicant was convicted on 25 January 2019 involved significant harm to members of the Australian community.
The motorcyclist involved in the culpable driving offence suffered severe physical injury resulting in loss of life. Judge Lawson also noted the psychological impact of the offending on members of the victim’s family and the concern generally of members of the Australian community. In addition to the death of the motorcyclist, Judge Lawson referred in her sentencing remarks to the victim impact statements related to the other offences and noted that one victim reported suffering bruising and other soft tissue injuries and continuing feelings of ‘insecurity and hypervigilance’, and another reported feelings of ‘extreme stress, anxiety and insecurity’.[24]
[24] G7 at pp.52–3.
Should the Applicant engage in further conduct of the kind for which he was convicted on 25 January 2019 it would expose members of the Australian community to a significant risk of serious physical injury and psychological and emotional harm.
The Tribunal does not have access to the details of the Applicant’s offending for which he was convicted after August 2018, but the nature of the offences recorded in his criminal record indicates a similar risk of physical, financial and psychological harm to members of the community.
Likelihood of reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court of the Federal Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future ‘must be based on a logical process of reasoning based on the known facts’.[25]
[25] (2022) 293 FCR 634 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5.
Accordingly, the Tribunal has approached the assessment of risk having regard to a series of factors.
Nature of the Offending
It is relevant to an assessment of risk that the Applicant has an extensive list of convictions for various offences. He has continued to offend notwithstanding previous apprehension and conviction and he was not deterred from offending by the imposition of a youth supervision order or his incarceration in a youth justice centre.
Remorse
In her sentencing remarks Judge Lawson noted that the Applicant’s early plea of guilty was indicative of remorse.[26]
[26] G7 at p.61.
In his hand-written statement submitted to the Department in support of his application the Applicant attributed a number of factors to his offending:
(a)parental neglect following his parents’ separation;
(b)poor mental health (attention-deficit/hyperactivity disorder (ADHD), Oppositional Defiant Disorder (ODD) and post-traumatic stress disorder (PTSD));
(c)substance use (ice, cannabis and ecstasy);
(d)anti-social peers; and
(e)his own immaturity.[27]
[27] G11 at pp.99–100.
In his oral evidence to the Tribunal the Applicant acknowledged that he was not remorseful at the time of his offending, but he has now had time to reflect on his conduct and is now more mature and takes ‘full ownership’ of his offending. He said that substance use did not play a significant part in his offending and that it was mainly the result of the influence his peers had over him.
In giving his oral evidence the Applicant was a forthright and thoughtful witness. He accepted full responsibility for his actions and made no attempt to excuse his behaviour or to attribute blame to any other person. He expressed genuine remorse for the victims especially the deceased victim and his family. He freely acknowledged that he had misbehaved as a child at primary and secondary school and had to change schools because of his misbehaviour. He was frank in explaining his long history of offending and emphasised that his explanations were not offered to excuse his behaviour.
The Tribunal accepts that some of the factors identified by the Applicant in his hand-written statement were relevant to his offending and it is satisfied that the Applicant has matured and he has developed an understanding of his own conduct and he is genuinely remorseful for his past offending.
Conduct in prison and detention
The Applicant admitted in his oral evidence that his behaviour in prison was ‘mixed’ and that initially he found it hard to regulate his own behaviour. He said that he had tried to mature and to become aware of what affected his behaviour.
The records produced by the Respondent[28] under summons confirm that the Applicant had a mixed record in prison. His record includes a number of disciplinary infractions which were subject to punishment by the correction authorities.[29] The Applicant confirmed the substance of these reports in his oral evidence.
Drugs and alcohol
[28] SG1-46 pp.1–146.
[29] SRB at pp.91–116.
Judge Lawson referred in her sentencing remarks to a report by a clinical psychologist detailing the Applicant’s long history of drug and alcohol abuse, beginning at the age of 12, including the use of marijuana and the progression to the use of methamphetamines by the end of 2016. Judge Lawson noted that at the time of offending, the Applicant had relapsed into heavy drug use.[30]
[30] G7 at p.55.
In his oral evidence the Applicant confirmed that he started using cannabis at 12 years of age and progressed to drinking alcohol on the weekends at 14 or 15 and from 16 began using ice approximately once per month. He stated that his drug use was ‘not a big part’ of his offending and he didn’t offend to get money to buy drugs.
Judge Lawson accepted that the Applicant had been abstinent from drugs since placed in custody in November 2017 and had a desire to remain abstinent following his release.[31]
[31] Ibid at p.56.
In submissions to the Department in May 2021 the Applicant’s legal representative submitted that the Applicant had sustained a long period of complete abstinence from the use of drugs and alcohol since November 2017 while in prison, despite both being widely available.[32]
[32] G10 at p.88.
However, in his oral evidence the Applicant openly confirmed that he had taken Buprenorphine while in adult prison, using it irregularly once every 3 or 4 months until about April 2023 when he increased his usage of the drug to around three times per week for six months until August 2023 when he commenced a program of injections. He claimed he has ceased using Buprenorphine since August 2023 and intends to continue with his current medication if released into the community.
Rehabilitation
The Respondent asserts that Judge Lawson noted in the sentencing that the Applicant expressed residual anger about his parents’ separation and described a sense of abandonment. Judge Lawson remarked that the Applicant had documented problems at school with a diagnosis of ADHD and ODD.[33]
[33] G7 at p.54.
On 14 February 2020 the Applicant was subject to a detailed assessment by the Forensic Intervention Services while in Port Phillip Prison. He was assessed as a moderate risk of violent reoffending relative to other male offenders. The assessor made a number of observations about the Applicant, noting that he had derived some positive benefit from his participation in the Moderate Intensity Violence Intervention Program. The observations were:
(a)His lifestyle was characterised by violence commencing from childhood.
(b)His criminal history indicated the existence of criminal attitudes that facilitate the use of violence.
(c)He had shown a largely unstable and inconsistent employment history which included short periods of employment as a roof tiling apprentice, carpentry, construction and work as a tree-lopper. When not working he supported himself through thefts and burglaries.
(d)His criminal history was closely related to his association with negative peer influences.
(e)He used aggressive behaviour in his personal interactions commencing from a young age.
(f)His violent behaviour was associated with the mismanagement of his emotions.
(g)There was a link between his violence and substance use.
(h)He demonstrated a tendency to react impulsively which could escalate to violence.
(i)He had a history of non-compliant behaviour with respect to community supervision.
The Applicant has engaged in some rehabilitative steps while in prison. He completed Year 10 Victorian Certificate of Applied Learning (VCAL) while in youth detention. Since his incarceration in an adult prison he has completed the Moderate Intensity Violence Intervention Program, the Talking Change Program, the Coping Inside Managing Emotions Program and the 40 Hour Youth Intensive Substance Use Program. He has also completed Certificate II in Kitchen Operations and Certificate II in Cleaning.[34]
[34] G10 at p.87; G11 at p.102 and G21 at pp.145–150.
The Applicant confirmed in his oral evidence that while he had engaged with a psychologist in prison he had not had frequent contact. He said he has spoken to his mother about seeking psychological treatment if released into the community.
Protective Factors
The Tribunal accepts that the Applicant would have the support of his family if released into the community. However, the Applicant has presented an unclear picture of his intentions upon release.
The Applicant’s legal representative submitted in May 2021 that upon release from imprisonment, the Applicant ‘will either enter a full-time rehabilitation program or live with his mother’ in which his intention would be to see a psychologist on a weekly basis and engage in Narcotics Anonymous.[35]
[35] G10 at p.89.
The Applicant’s mother stated in her statutory declaration of 8 January 2021 that the Applicant had decided to undertake training to become a Youth Justice Officer and that it was the Applicant’s goal to mentor young people struggling with life’s challenges.[36]
[36] G14 at p.114.
In his hand-written statement provided to the Department in 2021, which he affirmed in his oral evidence to the Tribunal, the Applicant confirmed his interest in some ‘sort of youth work’ but stated that other than his career plans he would like to use his spare time to play basketball and rugby. He confessed that ‘I haven’t put too much thought into what I want to do in the future as I don’t know where I’ll be now that my visa has been cancelled’.[37]
[37] G11 at p.108.
In his oral evidence to the Tribunal the Applicant indicated no more than his intention to spend time with his family and to continue with his current medication if released.
The Respondent noted that the Applicant’s family support was previously available to the Applicant and it did not prevent him from repeated offending in the past.
Consideration
The Tribunal is satisfied that the Applicant’s past offending has been influenced by his difficult upbringing. His parents’ separation appears to have adversely affected him and his ADHD and ODD may have played a part. His history shows that he has engaged in anti-social behaviours manifesting in violence since a very young age. As the prison assessment noted there are deep-seated issues underlying his past offending. It is encouraging that he has taken some steps toward addressing these issues including abstinence from alcohol and drugs. However, he remains a risk of resuming substance use. He had been using Buprenorphine until August 2023 and is still under medication to control his use. His abstinence is untested in the community. He has not undertaken proper counselling. His conduct in prison, while not involving any major criminal conduct, was characterised by frequent disciplinary breaches.
The assessment of the Forensic Intervention Services in Port Phillip Prison in 2020 was that he was a moderate risk of violent reoffending. The Applicant agreed in his oral evidence that this was an accurate assessment at the time, but he claimed that he has now matured and the risk is now much lower.
The Tribunal accepts that the Applicant has matured and that he is truly remorseful for his offending. He has family support but that support was present before his previous offending. Of particular concern is the lack of professional support he has had to assist him to address his mental health and underlying emotional and psychological issues. It is the Tribunal’s assessment that there remains a moderate risk that if he is exposed to the influences which led him to commit crimes in the past the Applicant could resort to further violent offending.
This risk must be weighed against the nature of his past offending which was very serious and if repeated would threaten significant physical and psychological harm to members of the Australian community.
The protection of the Australian community is a primary consideration under Direction 110 and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. Accordingly, the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
Family Violence
Paragraph 8.2(1) of Direction 110 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in any family violence as defined in paragraph 4(1) of Direction 110, and accordingly this consideration is not relevant.
The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of Part 2 of Direction 110 requires that decision-makers:
(1)… 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)… must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia in 2001 and has lived in Australia continuously since that time. He says that he regards Australia as his home.
The Applicant has immediate family in Australia, who are Australian citizens, his mother and her partner, his father, his brother and sister.[38]
[38] G9 at p.77.
The Applicant’s mother, sister and his brother’s partner provided statements to the Department in support of his application. They each stated that a decision not to revoke the cancellation of the Applicant’s Visa would have a negative impact on the family.[39] There is no evidence that the Applicant has provided any meaningful financial or other practical support to his family, especially over the period of his imprisonment. However, the Tribunal is satisfied that a decision not to revoke the cancellation of the Applicant’s Visa would cause significant emotional difficulties for his family members.
[39] G12–4 at pp.111–6; G17 at pp.124–6 and G19 at pp.131–5.
The Department was also provided with statements from the Applicant’s extended family and friends[40] demonstrating that the Applicant has developed friendships and associations in Australia since he arrived. The Tribunal accepts that those persons will be negatively impacted by a decision not to revoke the cancellation of the Applicant’s Visa.
[40] G15 at pp.117–8; G16 at pp.119–23 and G18 at pp.127–30.
The Applicant also has ties to Australia through his primary and secondary education and through his limited and irregular employment.
On the basis of this evidence, the Tribunal is satisfied that the Applicant has strong and enduring ties to the Australian community. This is a primary consideration under Direction 110 but the weight to be given to it is diminished by the fact that the Applicant has an extensive criminal record and has made a very limited positive contribution to the Australian community.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) of Part 2 of Direction 110 requires that decision-makers must make a determination about whether refusal under section 501 or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
In considering the best interests of the child, paragraph 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In his submissions to the Department the Applicant identified his three nephews (TKC born 2013, MTM born 2015 and MP born 2018) and one niece (HP born 2020) who reside in Australia and who will be affected by the Tribunal’s decision.[41] In her oral evidence the Applicant’s mother confirmed the birth of a fourth nephew in May 2024 whom she said had been in frequent contact with the Applicant through visits to the Applicant in prison and through Facebook and telephone contact.
[41] G9 at p.75.
The Applicant claims to have ‘played a parental/father-figure role’ for TKC and is the godfather to his nephew MTM and his niece HP,[42] and has maintained contact with each of the nephews and niece while in prison through visits and video/telephone calls.
[42] G10 at p.91.
The Applicant has been in criminal custody or immigration detention since 25 January 2019. There is no evidence that he has ever provided financial support to any of the children and his incarceration has prevented him from providing them with daily care for over six years.
The Tribunal accepts that it is in the best interests of the Applicant’s nephews and niece that he remain in Australia. However, the Tribunal notes that, each of the children in question have other persons who already fulfil a parental role for them, they have each had limited direct contact with the Applicant for over six years and they would have the opportunity to maintain a relationship with the Applicant if he were removed to New Zealand.
The best interests of minor children who may be affected by the decision is a primary consideration under Direction 110 and weighs in favour of revocation, but having regard to these matters the Tribunal gives this consideration moderate weight.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 110 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community
Paragraph 8.5(4) states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that paragraph 11.3 of the former Direction 65, which mirrors the wording of paragraphs 8.5(1) and (2) of Direction 110:
[75]… should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[76]The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[43]
[43] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75]–[76]; see also Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [31]–[35].
The Applicant has engaged in serious criminal conduct. It was conduct raising serious character concerns.
The deemed expectation of the Australian community as expressed in paragraph 8.5 of Part 2 of Direction 110 is that a non-citizen who engages in such conduct should not be allowed to remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: paragraph 8.5(3). The Tribunal is satisfied that the expectation of the Australian community is that the cancellation of the Applicant’s Visa should not be revoked.
The expectation of the Australian community is a primary consideration under Direction 110. Whether or not it is appropriate to act in accordance with that expectation is a matter to be determined having regard also to each of the other considerations. In weighing each of the considerations the Tribunal attributes substantial weight to the expectation of the Australian community in favour of not revoking the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2 OF DIRECTION 110
Legal Consequences of the Decision
Paragraph 9.1(1) requires decision-makers to be:
… mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Applicant accepts that if the cancellation of the Applicant’s Visa is affirmed he will be liable to remain in detention pending his removal to New Zealand. The Applicant does not make any claims that his circumstances enliven Australia’s non-refoulement obligations and the evidence does not raise any suggestion otherwise.
Accordingly, if the cancellation of the Visa is not revoked the Applicant will be liable for removal from Australia as soon as reasonably practicable, and pending removal, will remain in immigration detention under section 198 of the Act. The Tribunal also notes that once removed the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).[44]
[44] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]–[14] per Feutrill J.
The consequences of removal for the Applicant (and for his family) are matters which form the subject of other considerations under Direction 110. However, the legal consequences of deciding not to revoke the cancellation of the Applicant’s Visa do carry their own adverse impact on the Applicant. The Tribunal cannot say with any certainty how events may develop if revocation is refused. However, it can be expected that the Applicant will be subjected to a further period of immigration detention depriving him of his liberty. Depending on the legal processes that may ensue the period of detention may be extensive. Prolonged detention can be expected to have an adverse effect on the Applicant’s psychological health. If he is deported it is likely to exact a significant emotional toll.
These matters are considerations which favour revocation. While they are an expected consequence of the application of the law, they nevertheless warrant some moderate weight.
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant contends that he would face significant impediments in establishing himself in New Zealand. He said that he is unfamiliar with the country and has no family support there. It was submitted that family support is to be given greater significance in the Applicant’s case as he has been in prison or detention for virtually his entire adult life and has no experience as an adult in the community. His mother stated her ‘...grave fears that if [the Applicant] were to be deported to New Zealand, without the support of his network here in Australia, he would fall victim to gang life and drugs and be at risk of serious physical, emotional and mental harm in New Zealand’.[45]
[45] G12 at p.111.
The Applicant is 25 years old. The Tribunal accepts that he has limited life experience in the community as an adult and would face challenges in attending to the responsibilities of a citizen in New Zealand without family support to advise and assist him. However, the Applicant is not unfamiliar with the country. Movement records produced by the Respondent confirm that the Applicant travelled to New Zealand fifteen times in the period from 2001 to 2015. His mother confirmed in her evidence to the Tribunal that when in New Zealand the Applicant stayed with his father’s nephew in Wellington on every occasion. The Applicant confirmed that on two occasions when he was 6 or 7 he travelled to New Zealand to participate in a Maori cultural event. On the basis of this evidence the Tribunal is satisfied that the Applicant would not face substantial language or cultural challenges in adjusting to life in New Zealand and, while he will likely face some difficulties in adjusting to the demands of adult life, he would have the support of his father’s nephew in Wellington and his family in Australia to provide him with advice and assistance.
As to the Applicant’s health, paragraph 9.2(1) of Direction 110 requires a consideration of all aspects of the Applicant’s physical wellbeing, including ‘...the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury’.[46] The evidence indicates that the Applicant has suffered from asthma and also ADHD, ODD and PTSD (as a consequence of his involvement in the death of the motorcycle rider).[47] The Applicant stated in his oral evidence that he is currently taking medication to control his use of Buprenorphine. New Zealand has a well-established public health system. There is no evidence to indicate that the Applicant would be unable to access medical support generally available to New Zealand citizens for his health issues.
[46] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
[47] G7 at p.56; G10 at p.96 and G14 at p.113.
The Applicant had an irregular employment history prior to his imprisonment, but had some experience in roof tiling and construction work. While in prison he has undertaken certificate courses in Kitchen Operations and Cleaning and obtained some practical experience in various roles. The Applicant has expressed some interest in working in logistics or in youth work. Those options are open to him in New Zealand. The Tribunal expects that the Applicant would experience some initial difficulty in securing employment in New Zealand and he would require social welfare support. However, there is no clear barrier to him ultimately securing employment and establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand).
This consideration weighs moderately in favour of revocation.
Impact on Australian Business Interests
Paragraph 9.3(1) of Part 2 of Direction 110 requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has a limited and irregular employment history and has not been employed in the community for over six years. His removal from Australia would have no material impact on Australian business interests.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia.
Accordingly, the Tribunal gives this consideration no weight.
Other Considerations
The considerations specifically referred to in paragraph 9 are not exclusive and the Tribunal is not limited in considering other relevant matters.
The Applicant has raised his mental health issues, namely ADHD, ODD and PTSD and his continuing need for medication to address his substance use. To the extent that these issues might require separate consideration in reaching a decision under section 501CA the Tribunal notes the absence of any considered medical opinion regarding the effect on these conditions of the Applicant’s removal to New Zealand. The Tribunal is satisfied that appropriate medical services are available in New Zealand to deal with such conditions, but it would be no more than speculation to draw any conclusions regarding the effect of removal on them.
The Applicant has not raised any other specific consideration and the Tribunal is satisfied that all of the matters relevant to the Applicant’s application have been considered in the context of the considerations specified in Direction 110.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[48] North ACJ elaborated on how to approach the exercise of the discretion under section 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[48] [2016] FCA 1166 at [38].
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations ‘appropriate weight’.[49] Paragraph 7 of Part 2 of Direction 110 provides guidance on how relevant considerations are to be assessed. It states that primary considerations should generally be given greater weight than the other considerations, but one or more primary considerations may outweigh other primary considerations.
[49] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
There are two primary considerations weighing in favour of revocation. The best interests of the Applicant’s nephews and niece is a factor favouring revocation as is the strength, nature and duration of the Applicant’s ties to Australia. In addition, there are two other considerations which carry some limited weight.
There are two primary considerations weighing against revocation, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community that non-citizens will obey Australian laws while in Australia.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in paragraph 5.2 of Direction 110 which provide the framework for decision making under section 501CA of the Act. These include that:
(a)the safety of the Australian community is the highest priority of the Australian Government;[50]
(b)non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia; and
(c)the Australian community expects the Australian Government to cancel the visas of non-citizens, if they engaged in conduct that raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
[50] See also paragraph 8.1(1).
The Tribunal has also had regard to the principle in paragraphs 5.2(5) and (6) as they relate to the Applicant. The Applicant has lived in Australia for almost his whole life and he arrived in Australia at a very young age. He had not been participating in, or contributing to, the Australian community for only a short period of time when he committed his offences. Accordingly, the Applicant warrants a higher level of tolerance. However, that tolerance is to be considered having regard to the principles stated in paragraphs 5.2(7) and (8).
Principle 5.2(7) contemplates circumstances in which the nature of the non-citizen’s conduct is so serious or the harm that would be caused if it was repeated is so serious that even strong countervailing considerations may be insufficient to justify revocation. Principle 5.2(8) contemplates circumstances where the inherent nature of the conduct is so serious that even strong countervailing considerations may be insufficient to justify revocation even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
That the Applicant’s culpable driving causing death offence was very serious is not in dispute. It resulted in the death of an innocent member of the public in distressing circumstances. Not only was the offending serious but the conduct of the Applicant raises serious character concerns. The car involved in the offending was stolen. It was driven by the Applicant through a Give Way sign striking the motorcyclist and wedging him under the vehicle. The Applicant did not stop the vehicle and it continued on for some 85 metres. The fuel from the motorcycle caught fire and the victim was seriously burned and suffered other injuries. The Applicant reversed the vehicle off the motorcycle but did not render assistance to the victim. He fled the scene and later participated in further criminal conduct. The sentencing judge described the Applicant’s conduct as ‘cruel and callous’ and ‘inhumane’.
The Tribunal is satisfied that the nature of the offending raises serious character concerns about the Applicant. The nature of the Applicant’s offending and the harm that would result if it were repeated are so serious that the countervailing considerations are insufficient to outweigh considerations of the protection of the Australian community and the expectations of the Australian community so as to justify revoking the cancellation of the Applicant’s Visa.
Accordingly, the Tribunal is not satisfied that there is another reason why the discretion under section 501CA(4)(b)(ii) of the Act should be exercised to revoke the cancellation of the Applicant’s Visa. The correct and preferable decision is to affirm the decision under review.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 6 March 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.
I certify that the preceding 130 (one-hundred-and-thirty) paragraphs are a true copy of the reasons for the decision herein of General Member R. West
………………………[sgd]……………………….
AssociateDated: 28 May 2025
Date(s) of hearing: 20 May 2025 Applicant: Self-represented Solicitors for the Respondent: Mr Matthew Daly and Ms Emma Hubball, Mills Oakley
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