Muliaga and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2026

Muliaga and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2026 (9 October 2025)
Applicant/s:  Junior Jordan Muliaga
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4381

Tribunal:Senior Member D Thomae
Place:Brisbane
Date:9 October 2025
Decision:Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal decides to set aside the decision under review not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth), and substitutes that decision with a decision that the Tribunal revokes the decision to cancel the visa.

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Statement made on 09 October 2025 at 3:01pm
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY subclass 444 Special Category (Temporary) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (CTH)
Crimes Act 1914 (CTH)
Migration Act 1958 (CTH)
Penalties and Sentences Act 1992 (QLD)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2019] 272 FCR 454

Hartwig v PE Hack [2007] FCA 1039
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 185 ALR 350
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Home Affairs v Buadromo [2018] 267 FCR 320
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

INTRODUCTION

Mr Junior Jordan Muliaga (the Applicant) is a 48-year-old citizen of New Zealand who arrived in Australia in December 1992 when he was 15 years old as a holder of a Subclass 444 Special Category (Class TY) visa (visa) and has never departed this country.
The Applicant has an extensive criminal history and is presently in immigration detention, after being sentenced to imprisonment for 4 years, imposed for trafficking in dangerous drugs. As a result of his sentence for this offending, his visa was mandatorily cancelled on 24 July 2024. Following representations made by the Applicant to revoke the mandatory cancellation of his visa, on 17 July 2025 a delegate of the Minister (the Minister or the Respondent) refused to revoke the mandatory cancellation of his visa (the reviewable decision).
By an application for review filed on 20 June 2025 in the Tribunal, Mr Muliaga seeks a review of the decision not to revoke the mandatory cancellation of his visa.

THE HEARING

The hearing of this application took place on 18 and 19 September 2025. The Applicant gave evidence in person.
The following witnesses gave evidence:
(a)Ms Sarah-Anne Lees.
(b)Mr John Belmont.
(c)Mrs Margaret Lesa (sister).
(d)Mr Luke Shannon.
The Applicant appeared before the Tribunal self-represented. The Minister was represented by Mr Nam of Clayton Utz.
The Tribunal had regard to:
(a)The documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, numbered G1 to G8, a bundle of documents produced under summons, witness statements tendered by the Applicant, the Respondent’s Statement of Facts, Issues and Contention, described as the ‘Hearing Book’ and paginated from pages 1 to 451 (Exhibit G1).
(b)The oral evidence of the Applicant.
(c)The oral evidence of the witnesses referred to in paragraph 5 above.

LEGISLATIVE FRAMEWORK

A mandatory visa cancellation can be revoked under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), which states:
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.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’.
Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’[1].
[1] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
On 14 November 2023, the Applicant was sentenced to four years imprisonment and he thereby does not meet the character test. The Applicant concedes that he does not pass the character test.
The remaining issue is whether there is another reason to revoke the mandatory cancellation of his visa. [2]
[2] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

THE DIRECTION

In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, ‘Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains 8 principles which provide the framework for decision making to revoke a mandatory cancellation under s 501CA:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out 5 ‘Primary Considerations’ that the Tribunal must take into account:
(1)The protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)The expectations of the Australian community.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[3]
[3] The Direction, paragraph 8.1(1).
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
The Nature and Seriousness of the Applicant’s Conduct to Date
In assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct, paragraph 8.1.1(1) of the Direction specifies the criteria I must have regard to.
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 16 October 2024 (Check Results Report).[4]
[4] Exhibit G1, pp 37-46.
The Checks Results Report includes records, whilst the Applicant was an adult, of offences (5) for which no conviction is recorded (the Non-convictions).
The Minister contends that the Tribunal should have regard to the Non-convictions because:[5]
(a) the Applicant's non-convictions did not arise under the Youth Justice Act 1992 (Qld);
(b) rather the Tribunal should infer these non-convictions arose under s 12 of the Penalties and Sentences Act 1992 (Qld) (PSA);
(c) as explained by Kiefel J in Hartwig v PE Hack [2007] FCA 1039 at [11], s 12(3) of the PSA Act does not engage the operation of section 85ZR(2) of the Crimes Act 1914 (Cth);
(d) Hartwig v PE Hack [2007] FCA 1039 was referred to in Thornton, however was expressly distinguished from the legislative regime of the Youth Justice Act 1992 (Qld) (see at [39] of Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6); and
(e)accordingly the Tribunal is not precluded from taking into account the Applicant's non-convictions in the present matter.
[5] Respondent’s Statement of Facts, Issues and Contentions, dated 8 September 2025 (RSFIC) at [16].
The Minister may be right as to the contention that Hartwig remains authority that the Tribunal can have regard to non-convictions in the context of the PSA. I note that the Non-convictions concern summary offences, with the earliest being in April 2019 and the oldest being in August 1999, and in the context of the Applicant’s overall offending history are of little significance. Out of an abundance of caution, I will not have regard to the Non-convictions.
Applying paragraph 8.1.1(1)(a) of the Direction I find the Applicant has committed the following ‘very serious offences’:[6]
(a)14 November 2023 –Robbery in company, sentenced to 12 months imprisonment; and
(b)24 November 2023 - Common Assault – sentenced to nine months imprisonment.
[6] Exhibit G1, pp 37-46.
The Applicant has been convicted of crimes of violence, with convictions for assault on one occasion and robbery.
The robbery involved the Applicant punching a person with a closed fist to the left side of his chin and then stealing the victim’s electric scooter. The Applicant agreed that he did punch the victim after a collision with the victim riding on the scooter. He denied stealing the scooter. In the sentencing remarks Kelly J did not provide any particulars of the consequences of the victim’s injury arising from the Applicant’s punch.
In respect to the common assault, the Applicant gave evidence that he was in a taxi queue and had an altercation with another person that involved him pushing the other person. The Minister had no evidence of the particulars of that offence.
Offences involving violence are considered very serious. However, the Minister properly conceded the Applicant’s offences involving violence were at the low range. I agree, whilst offences involving violence are very serious, the particulars of the violence were at the low range of such offences.
Applying paragraph 8.1.1(1)(b) of the Direction I find the Applicant has committed the following serious offences:[7]
[7] Exhibit G1, pp 37-46.
·27 August 1999 – Enter or in premises and commit indictable offence – conviction recorded, community services order.
·12 January 2001 – Breach of community service order – order extended 12 months.
·22 March 2002 - Breach of community service order – order discharged, resentenced for original offence – sentenced to three months imprisonment.
·1 November 2017 - Possession of a knife in public place or school – conviction recorded, fined $700.
·15 May 2018 – Possess tainted property and Possess utensils or pipe etc that had been used – conviction recorded, fined $750.
·10 January 2019 – Possessing dangerous drugs – conviction recorded, fined $350.
·24 April 2019 – Unlawful possession of restricted drugs – conviction recorded, fined $200.
·12 June 2019 – Breach of bail condition – conviction recorded, fined $300.
·25 June 2019 – Breach of bail condition and Possess utensils or pipes etc for use – conviction recorded, fined $200.
·5 July 2019 – Possessing dangerous drugs and Breach of bail condition and Failure to appear in accordance with undertaking (2 counts) – conviction recorded, probation 12 months.
·7 August 2019 – Possessing dangerous drugs and Trespass – conviction recorded, fined $450.
·7 November 2019 - Possess utensils or pipe etc for use – conviction recorded, not further punished.
·12 March 2020 – Failure to appear in accordance with undertaking (2 counts) – conviction recorded, cumulative fines $850.
·16 March 2020 – Contravene direction or requirement – conviction recorded, fined $200.
·9 December 2020 – Failure to appear in accordance with undertaking – conviction recorded, sentenced to 14 days imprisonment.
·27 May 2021 - Failure to appear in accordance with undertaking – (two counts) -conviction recorded, sentenced to 14 days imprisonment.
·12 August 2021 – Wilful damage and Possess tainted property – conviction recorded, sentenced to three months imprisonment (concurrent).
·12 August 2021 – Possessing dangerous drugs (11 counts) and Possess property suspected of having been used in connection with the commission of a drug offence (3 counts) and Possess utensils or pipes etc for use (11 counts) and Possess tainted property (3 counts) and Possession of a knife in a public place or a school – conviction recorded, sentenced to one month imprisonment (concurrent).
·12 August 2021 – Breach of probation order and Common assault and Unlawful possession of restricted drugs (two counts) and authority required to possess explosives – conviction recorded, sentenced to 6 months imprisonment.
·17 February 2022 – Possessing dangerous drugs (two counts) and Possess utensils or pipes etc that had been used and Unlawful possession of suspected stolen property and Offence to buy or possess S4 or S8 medicines or hazardous poisons – conviction recorded, probation.
·2 June 2022 –Possess utensils or pipes etc that had been used (three counts) – conviction recorded, probation.
·12 July 2022 – Possessing dangerous drugs – conviction recorded, sentenced to three months imprisonment.
·12 July 2022 – Possess utensils or pipes etc that had been used and Contravene direction or requirement – conviction recorded, not further punished.
·14 November 2023 – Supplying schedule 2 dangerous drugs, Supplying schedule 1 dangerous drugs and Possess dangerous drugs specified in schedule 1 or 2 – convicted, sentenced to six months imprisonment.
·24 November 2023:
oBreach of probation order – not further punished.
oCommon Assault – sentenced to nine months imprisonment.
oCommit public nuisance – sentenced to four months imprisonment.
oPossessing dangerous drugs – (4 counts) – not further punished.
oPossessing anything used in the commission of crime defined in Part 2 – not further punished.
oPossess property suspected of having been used in connection with the commission of a drug offence – not further punished.
oReceiving tainted property – not further punished.
oPossess tainted property – not further punished.
oFailure to appear in accordance with undertaking – not further punished.
oUnlawful possession of suspected stolen property – not further punished.
oOffence to buy or possess s4 or s8 medicines or hazardous poisons – (2 counts) – not further punished.
·14 November 2023 – Trafficking in dangerous drugs, sentenced to 4 years imprisonment.
·2 September 2024 – Possessing dangerous drugs (three counts) – conviction recorded, sentenced to six months imprisonment.
As to the Applicant’s conviction for trafficking in dangerous drugs, his evidence was that he had taken the blame for the conduct of his partner at the time and that the evidence from the phone that founded the convictions was not his. This is in stark contrast to the sentencing remarks of Kelly J who referred to an agreed statement of facts that the Applicant had been found with three bags of methylamphetamine totalling 0.206 grams and he had claimed ownership of a phone that contained messages revealing the sale of unlawfully selling dangerous drugs.
In circumstances where the Applicant was represented at his sentencing with an agreed statement of facts to inform the sentencing remarks of Kelly J, I am not persuaded, nor should, I go behind them.
The High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 accepted the proposition that, for the purposes of paragraph 8.1.1(1)(b)(ii) of Ministerial Direction No 90, (which is identically worded to paragraph 8.1.1(1)(b)(ii) of Direction 110), drug trafficking is a crime committed against vulnerable members of the community.
Adopting the High Court’s reasoning in LPDT, for the Applicant’s conviction of trafficking in drugs to be considered ‘very serious’ requires me to provide reasons that logically connect his offending to that conclusion. I am satisfied that the Applicant’s conviction of drug trafficking is serious (rather than very serious) and falls within clause 8.1.1(1)(b)(ii) of the Direction because the conviction resulted in a custodial sentence of 4 years with parole eligibility after 16 months and was not at the high end of that type of offending.

In coming to that finding, I note that the Applicant’s drug related convictions commence in about 2018, after the suicide of his then 18-year-old son, in circumstances where the Applicant found him. Kelly J in his sentencing remarks says, ‘that was no doubt a terrible and life-changing experience’ and ‘I note however, looking at your criminal history, that approximately eight and a-half pages of the history begins in and around 2019, which I infer correlates around the time of the death of your son and the impact of that death upon yourself’.[8]
[8] Exhibit G1, p 49.
The Applicant has been before the Court every year from 2017 until 2024. His offending has increased in seriousness, escalating to trafficking in dangerous drugs. That his offending is frequent and of increasing severity weighs against him.
The number of the Applicant’s offences at over 85 convictions means that there is a significant cumulative effect to his offending. He has been undeterred by suspended sentences, and periods of imprisonment.
I take note of Kelly J’s remarks and that approximately 79 of the 85 Applicant’s convictions occurred after the death of his son. The Applicant’s evidence was that the death of his son and discovering his body sent him into a spiral where he separated from his wife, became homeless and dependent on drugs.
There was no other evidence before the Tribunal of the Applicant having any other relevant serious conduct including relevant traffic offences. Further, there was no evidence of any conduct in respect of the other considerations in paragraph 8.1.1(1) of the Direction.
For the above reasons, the Tribunal considers that the ‘nature and seriousness’ of the Applicant’s criminal offending to date weighs heavily against revocation.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:
(1) In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[9]
[9] The Direction, paragraph 8.1.2(2)(a).
It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[10]
[10] The Direction, paragraph 8.1.2(2)(b).

Nature of the harm

To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or to the Australian community should the Applicant reoffend.[11]
[11] The Direction, paragraph 8.1.2(2)(a).
The concept of ‘risk’ and whether it is ‘unacceptable,’ for the purpose of paragraph 8.1.2(1) of the Direction, is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’, for the purpose of paragraph 8.1.2(2) of the Direction.
In Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673, Justice Mortimer (as her Honour then was) said (at [103]):
It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
It is widely accepted that methylamphetamine not only harms users but is also damaging to the Australian community. This was noted in the sentencing remarks of the sentencing judge (Kelly J) for the Applicant’s 2023 offending, wherein his Honour referred to drugs as being ‘a scourge on our community, and by trafficking in drugs you have no doubt contributed to misery and unhappiness experienced by drug users and their families who support them’.[12]
[12] Exhibit G1, p 49.
As contended by the Respondent, the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve physical, financial and psychological harm to members of the Australian community. I accept this contention.

Likelihood of the Applicant engaging in further criminal or serious conduct

This likelihood is to be assessed considering information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision.[13]
[13] The Direction, paragraph 8.1.2(2).
The highest risk is the Applicant continue to use drugs and his related offending continues as before he was imprisoned and put into detention.
The Applicant has not been assessed by a professional to ascertain risk of reoffending and risk factors. Whilst preferable such evidence was before the Tribunal, I am satisfied that sufficient evidence was available to the Tribunal to make a considered decision on the risk of reoffending and risk factors.
A report of Dr Greg Hutcheon, a psychologist, based on 10 sessions, provides that the Applicant is:
‘strongly motivated to engage in therapy and stated that he wanted to continue his recovery and introspection about the pattern or avoidance and maladaptive coping mechanisms that impacted his deterioration of functioning, substance use issues, and criminal charges and impacted his avoidance of family and other supports’.[14]
[14] Exhibit G1, p 115.
The Minister contends the report of Dr Hutcheon has limitations due to it being prepared for treatment of the Applicant, not for the purposes of a risk assessment of re-offending. Further, the Minister takes issue with the self-reporting that is included in the report as to the Applicant’s criminal history and his culpability for his criminal behaviour. I accept that the report has limited utility in respect of its capacity to inform me on the Applicant’s risk factors and his propensity to re-offend. However, the report does provide me with evidence of the Applicant’s commitment to and understanding of the treatment of his mental health arising from the death of his son and his drug addiction.
The evidence of the Applicant, and accepted by the Minister, is that he has not used drugs for approximately 4 years. The Minister’s concession in the respect is significant given the Applicant’s conviction in 2024, whilst in detention, for possession of drugs. In this respect the evidence of Ms Lees, who was cautioned on her right not to answer questions that might incriminate her, told the Tribunal that she was the person who put the drugs into the possession of the Applicant without his knowledge. Her explanation why she had done so was to ‘help’ the Applicant, but her evidence was not totally coherent.
Further, the Minister acknowledges that the Applicant worked consistently as a unit cleaner whilst in custody.
The Applicant expressed remorse to the Australia community for his offending and took accountability for his conduct. He acknowledged that the death of his son was not an excuse for his behaviour and that he should have sought help to get him through that traumatic event.
The Applicant has not wasted his time whilst imprisoned and in detention. He has completed at least 20 courses[15] whilst incarcerated, including ‘depression management’, ‘problem solving strategies’, ‘drug and alcohol abuse 101’, and ‘understanding addictions’. Additionally, he has undertaken programs in respect to his mental health and his drug addiction.
[15] Exhibit G1, pp 80-109.
The evidence of his sister and brother at the hearing was supportive of the Applicant being re-integrated into his family and provided support and assistance, including accommodation, if he is not deported. I consider that these are protective factors in considering the risk of re-offending.
The Minister in closing conceded, after hearing the evidence, that the Applicant had a low to medium risk of re-offending, compared to its written submissions of a high risk. I agree.

Conclusion: Protection of the Australian community

Informed by the ‘Principles’ stated in paragraph 5.2 of Direction 110, and considering: (i) the nature and seriousness of the Applicant’s conduct to date; and (ii) the risk to the Australian community should he commit further offences or engage in other serious conduct, the Tribunal considers that the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1. of Direction 110, weighs moderately against revocation, noting that the safety of the ‘Australian community’ is the highest priority of the Australian government: paragraph 5.2(2) of Direction.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no information before me that the Applicant has committed family violence, and this consideration does not weigh for or against revoking the cancellation of his visa.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

Paragraph 8.3 of the Direction says I must consider any impact of the decision on the Applicant’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.
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia as a minor in 1992 and his criminal offending commenced in 1999, some seven years after arrival. The Applicant has lived in Australia exclusively for 33 years, or put another way, 68 percent of his life.
The Applicant’s mother, brother, sister, adult son and adult daughter live in Brisbane.
There was no evidence of significant dependency by any of the Applicant’s immediate family upon the Applicant.
The Applicant and his sister gave evidence of the Applicant’s strong family links, including a large extended family of uncles/aunts, nephews/nieces and cousins. The Applicant’s mother has dementia and lives with his sister, who gave evidence of the importance of the Applicant’s connection to his mother. The Applicant gave evidence of his desire to spend time and support his mother.
Mr Shannon, a friend and work colleague of the Applicant, gave evidence of the Applicant’s good character and work ethic. Mr Shannon told the Tribunal that he would provide the Applicant employment opportunities if he was not returned to New Zealand.
The Applicant has a history of employment and contributing positively to the Australian community for a significant period from 1992 to 2018, accruing skills and qualifications as a welder.
Conclusion: The strength, nature and duration of ties to Australia
Taking into account the impact of any non-revocation decision on the Applicant’s immediate family members in Australia, I give this Primary Consideration 3 significant weight in favour of the revocation of the cancellation of the Applicant’s visa.

PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include:
·     the nature and duration of the relationship between the child and the Applicant. 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);
·     the extent to which the Applicant 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;
·     the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
The Applicant has two grandchildren who are 3 and 5 years old. The Applicant has had relatively limited interaction with his grandchildren due to his incarceration but gave evidence of them visiting him in detention and a desire to actively remain in their lives.
I am of the view that a non-revocation decision is not in the best interests of the Applicant’s grandchildren, in that it will prevent the possibility of person to contact between the Applicant and his grandchildren in Australia.
Conclusion: Best interests of minor children in Australia affected by the decision
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration 4 weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

Paragraph 8.5(1) of the Direction says that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[16]
[16] Paragraph 8.4(1) of the Direction.
Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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, relevantly:
(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.[17]
[17] Paragraph 8.5(2) of the Direction.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[18]
[18] Paragraph 8.5(3) of the Direction.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[19]:
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.
[19] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185
The Applicant has not engaged in any acts of family violence, causing a person to enter into a forced marriage, serious crimes against women, children or other vulnerable members of the Australian community, human trafficking or crimes that are of serious international concern or worker exploitation.
As found above, the Applicant’s risk of re-offending is low to moderate, and he has shown that he has made a significant change to his life by stopping his drug use for the last 4 years.
The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
Conclusion: Expectations of the Australian community
As the Australian community expects the visa to be cancelled as specified in the Direction, primary consideration 5 weighs moderately in favour of not revoking cancellation of the visa.

OTHER CONSIDERATIONS

Clause 9 of the Direction states:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.

Legal consequences of decision under s 501 or s 501CA

There is no claim, and otherwise nothing on the material to suggest that Australia’s non-refoulement obligation are enlivened in relation to the Applicant.
The consequence of affirming the non-revocation decision would be that the Applicant:
(a)will be liable to be removed from Australia as soon as reasonably practicable[20];
(b)must remain in detention until removal[21];
(c)will be prohibited from applying for another visa while in Australia, except for a Protection visa or Bridging visa[22]; and
(d)will be indefinitely excluded from Australia[23].
[20] See 198 of the Migration Act
[21] See s 189 of the Migration Act
[22] See s 500(1)(c) of the Migration Act
[23] See Special Return Criteria 500(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth),
The Applicant does not make any further claims with respect to this Other Consideration.
I give this Other Consideration 1 neutral weight in favour of revocation of the cancellation of the Applicant’s visa.

Extent of impediments if removed

The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia. This is to take into account:
(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 them in that country.
The Applicant is a 48-year-old man who is able bodied and does not claim to have any significant medical conditions. He does have a diagnosis of hypertension and sleep apnoea, but these are not conditions that give any weight in favour of revocation.
The Applicant contended that there is a practice for outlaw motorcycle groups in New Zealand to prey on s 501 deportees on their return to New Zealand. His knowledge of this was from talking to fellow detainees who have returned to New Zealand. There was not any objective evidence of this assertion, and I give it no weight in favour of revocation.
I accept the Minister’s contentions that the Applicant would unlikely face any language or cultural barriers of any significance if he returned to New Zealand.
The Applicant has no family support in New Zealand. I agree with the Minister that the Applicant is likely to face a degree of financial, emotional and social hardship if removed to New Zealand, though likely to be of greater time than the Minister’s contention of it being temporary.
The Applicant has work experience and skills that are likely to be of assistance in obtaining employment in New Zealand but can not be said to be higher than that due to the lack of any evidence.
I give this Other Consideration 2 limited weight in favour of revocation of the cancellation of the Applicant’s visa.

Impact on Australian business interests

The Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision.
The Applicant did not make any contentions in respect of this ground and there was no evidence to suggest that the Applicant’s removal will impact any current business interests.
I give this Other Consideration 3 neutral weight in favour of revocation of the cancellation of the Applicant’s visa.

No Other Considerations

Neither the applicant nor the Respondent raised any other considerations.

CONCLUSION

The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
The Direction sets out the way in which the relevant considerations are to be taken into account and weighed. There has been judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Direction, including that the ‘other’ considerations are not ‘secondary’ and the other considerations need not be considered secondary in all cases[24],and may outweigh primary considerations depending on the circumstances of the case.[25]
[24] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
[25] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [37].
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252 said,
‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL at [27] states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.
This was a finely balanced matter. The seriousness of the Applicant’s offences, weighed against him moderately in respect of primary considerations 1 and 5.
However, the Applicant ceasing his drug dependency for 4 years and his insight and acceptance of the benefits of treatment to his trauma from the death of his son, as well as his strong ties to the community and family, weighed significantly in his favour.
Further, the low range and isolated incidents of violence in the Applicant’s criminal history and his candour and self-reflection about the impacts on his criminal offending on the community and his family weighed in his favour.
I am satisfied that there is another reason why the original decision should be set aside.

DECISION

Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal decides to set aside the decision under review not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth), and substitutes that decision with a decision that the Tribunal revokes the decision to cancel the visa.

Date(s) of hearing: 18 and 19 September 2025

Date final submissions received: 19 September 2025

Solicitors for the Applicant: Applicant was self-represented

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	18 and 19 September 2025
Date final submissions received:	19 September 2025
Solicitors for the Applicant:	Applicant was self-represented
Solicitors for the Respondent:	Clayton Utz