Nabizadeh and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 191

Nabizadeh and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 191 (7 March 2025)
Applicant/s:  Ali Khan Nabizadeh
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/10732

Tribunal:General Member R. West
Place:Melbourne
Date:7 March 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 dated 13 December 2024 not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa under section 501CA(4) of the Migration Act 1958 (Cth).

..............................[SGD].....................................
General Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa – conviction for supply prohibited drug (large commercial quantity) - 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)
Migration Act 1958 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
CKL21 v Minister for Home Affairs (2022) 293 FCR 634
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318
FYBR v Minister for Home Affairs [2019] FCAFC 185
GMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 380 FLR 336
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
KVRK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3978.
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN (2023) 297 FCR 662
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Re Harrison v Minister for Immigration and Citizenship [2009] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VPKY and Minister for Home Affairs [2019] AATA 352
(2022) 294 FCR 318;
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 Global Special Humanitarian (Class XB) (subclass 202) visa (the Visa) under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of Afghanistan. He first arrived in Australia in 2013[1].
[1] G8 at p.56
On 9 May 2022, the Applicant was convicted in the District Court of NSW on two charges of supply prohibited drug (large commercial quantity) and sentenced to an aggregate sentence of 7 years and 6 months of imprisonment[2].
[2] G6 at p. 36
On 27 June 2023 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[3].
[3] G9 at pp. 57-61
On 8 July 2023 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.[4]
[4] G13 at pp.73-92
On 13 December 2024 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision)[5] and notified the Applicant of the decision on 17 December 2024[6].
[5] G4-5 at pp.20-34
[6] G3 at pp.15-17
On 20 December 2024 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application)[7].
[7] G2 at pp.4-14
HEARING
The Tribunal conducted a hearing of the Application by video-conference on 27 and 28 February and 4 March 2025. The Applicant was represented by Ms Alison Battisson, a solicitor. The Respondent was represented by Ms Jessica Schultz, a solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G16 and paginated from pages 1 to 116 (G Documents), and further documents produced under summons and included in a tender bundle sequentially numbered TB1 to TB49 and paginated from pages 1 to 342 (TB Documents);
(b)an Amended Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(c)an Amended Statement of Facts, Issues, and Contentions produced by the Applicant (ASFIC);
(d)the documents tendered by the Respondent and marked as exhibits R1-3, and listed in Appendix A;
(e)the documents tendered by the Applicant and marked as exhibits A1-12, and listed in Appendix A;
(f)the oral evidence of:
i.the Applicant;
ii.Dr Emily Kwok, clinical and forensic psychologist;
iii.Mr Mushtaba Karimi;
iv.Ahmad Nabizadeh;
v.Alijan Nabizadeh; and
vi.Said Hamzef Moosawi.
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’, defined in section 501(7)(d) to include having been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.
On 9 May 2022, the Applicant was convicted in the District Court of NSW on two charges of supply prohibited drug (large commercial quantity) and sentenced to an aggregate term of 7 years and 6 months imprisonment. On each of the supply prohibited drug (large commercial quantity) charges the Court entered an indicative sentence of 6 years and 9 months.
As a result of this sentencing the Applicant has a “substantial criminal record” as defined in section 501(7)(d) and therefore fails the character test under section 501(6).
The Applicant does not dispute that he does not pass the character test.[8]
[8] ASFIC at [7]
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.
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.[9]
[9] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, 587 [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 30 September 2024 was included in the G Documents.[10]
[10] G6 pp 35-37.
The Applicant’s criminal record includes the following convictions:
1. 21 March 2017 – drive licence suspended – conviction without penalty –disqualified driving 3 months;
2. 6 February 2019 – deal with property proceeds of crime – possess prohibited drug – supply prohibited drug – two-year community correction order commencing 6 February 2019;
3. 30 May 2019 – dishonestly obtain financial advantage – two-year community correction order commencing 30 May 2019;
4. 9 May 2022 - supply prohibited drug (large commercial quantity) (two charges) – supply prohibited drug (commercial quantity) - concurrent sentences totalling seven years and six months imprisonment with 4 year non-parole period - state false name or address (conviction without penalty).
The Tribunal has not had regard to the offence of supply prohibited drug (commercial quantity) which the Sentencing Judge noted was a “Form 1 Offence”[11] . The Court held in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs[12] that Form 1 offending was not to be regarded as an offence for which an offender has been convicted in accordance with s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 85ZR(2)(b) of the Crimes Act 1914 (Cth) and an individual is taken never to have been convicted of the offences taken into account on a Form 1, but it is permissible for the Tribunal to have regard to the sentencing remarks in relation to the offence.
[11] G7 at p.42, [1]-[2]
[12] [2024] FCA 468 [54]
The factual basis of the Applicant’s convictions on 9 May 2022 are set out in the sentencing remarks of Justice Lerve of the District Court of NSW as follows:
Shortly after 4pm on 18 March 2021 Highway Patrol police observed a white Audi sedan registered (NSW) BHJ-54S driving west on the Sturt Highway at Borambola, which is about 25 kilometres to the east of Wagga Wagga. The vehicle was pulled over by police at a rest area. Upon request the offender handed police a NSW P2 Driver Licence in the name of Noor Agha SYED MUSA, Licence Number 22707972.
The offender told police that the vehicle did not belong to him and that he was travelling to South Australia to complete a tiling job. He also told police that he was returning after two days in Sydney and that he had not booked any accommodation in South Australia for his stay.
Police cautioned the offender and indicated that they intended to search him and the vehicle. Nothing unlawful was found on the search of the offender. Police located two jumpers, one t-shirt and a toothbrush together with a small quantity of tools consisting of a trowel and a spirit level, which seemed inconsistent with what the offender had told police.
The tools were located in the boot on top of the carpet covering the spare wheel compartment. Police noticed that the spare tyre was protruding from the compartment making it visible when the boot was opened. On inspection the spare tyre did not appear to match the other tyres on the vehicle and looked older and more worn. On rolling the tyre police formed the opinion that items were inside the tyre. Police noticed the offender was nervous. He declined to comment about the contents of the tyre.
Police cut open the tyre and located a pair of blue jeans and a red coloured table cloth. Inside the jeans were two large vacuum sealed bags containing a brown crystal substance, two large plastic bags containing a white crystal substance and black coloured brick shaped item. Inside the red cloth police located another large vacuum sealed bag containing a brown crystal substance. The items and the vehicle were seized. The offender declined to answer any questions.
The offender was taken to the Wagga Wagga Police Station and entered into custody. Police were not satisfied that the licence produced was his. He was fingerprinted and the offender admitted that the licence was not his.
Upon analysis the three bags of brown crystal substance was 3.006 kilograms (3006 grams) of 3,4-methylenedioxymethamphetamine (MDMA), the two bags containing white crystal substance was 2.002 kilograms (2002 grams) of methylamphetamine and the bricked shaped items was 997 grams of cocaine.
The offender was cautioned and declined to participate in an interview...
…The facts recite that the offender’s role was a courier. The sentence hearing proceeded with both parties accepting that this was the offender’s role. As I made clear while taking submissions at the sentence hearing I could not be satisfied beyond reasonable doubt that the offender was in any way involved with the packing of the drugs or beyond being the courier playing any part in the organisation of the transport of the drugs. While this is the basis on which the offender must be sentenced the quantity of illicit drugs involved is very substantial. Including the cocaine there was a total of very close to six kilograms of drugs. Although a courier the offender must have been trusted by those organising the transport given the quantities of drug involved. I am not told the street value of the drugs but again, given the quantities it would be very substantial. I am not informed of the purity of any of the drugs involved.
The commercial quantity for both Methylamphetamine and MDMA is 250 grams and the large commercial quantity in respect of both is 500 grams or .5 kg. The indictable quantity in respect of both is 5 grams. The quantity of methylamphetamine was four times the large commercial quantity and the quantity of MDMA was six times the large commercial quantity.
I also note that the large commercial quantity of cocaine is 1 kg. The matter on the Form 1 is only 3 grams off the large commercial quantity…[13]
Witnesses
[13] TB46 at pp.186-188
The Applicant
The Applicant provided a statutory declaration dated 20 February 2025 to the Tribunal,[14] which he affirmed in his oral evidence. He stated:
[14] Exhibit A1.
1. He was born in Pakistan in March 1999. He is an Afghan Hazara. For the first ten years of his life his family moved between Afghanistan, Pakistan and Iran, spending approximately 4 years in Pakistan before coming to Australia. When he was 10 years old his father left to go to Australia and he later arranged for the family to join him. The family entered Australia on humanitarian visas in May 2013.
2. His life before coming to Australia was hard. The family feared for their safety. His grandfather and uncle were murdered by the Taliban and he witnessed a bombing seeing parts of bodies lying in the street.
3. He had some schooling in Pakistan and when he came to Australia he attended secondary school and completed year 12. While in Year 9 he was raped by a year 12 student.
4. After completing year 12 he worked in construction as a bricklayer.
5. He began using cannabis after year 9 and progressed to ice and cocaine.
6. In 2019 he was convicted of supplying a prohibited drug, which was 0.7 gm of cocaine, and dealing with the proceeds of crime, namely $6,000 which he had obtained from gambling and selling drugs.
7. In May 2019 he was convicted of dishonestly obtaining financial advantage by deception. He allowed his bank account to be used by some drug takers he was living with to receive money ($2,000) which others had ‘..ripped off an 80 year old woman’. The court ordered him to repay the money.
8. In March 2021 he was caught couriering drugs in a car. He was caught with a large amount of MDMA, ice and cocaine. He agreed to courier the drugs to repay a debt to a drug dealer who had threatened to hurt him and his family, and also to be able to continue to get drugs from him. The drug dealer was connected to a bikie gang and made all the arrangements. He did not have any contact with the bikie gang and the first time he knew of the drug dealer’s connections with the bikie gang was when he threatened to hurt him and his family.
9. He was held on remand for seven months and plead guilty to the charges as soon as he could. He has worked in prison as much as he can, first as a unit cleaner and then an engineering general hand, furniture/upholstery general hand, cleaner general hand, cook freezer general hand and as a barber. The position of barber is a trusted position where he often works without supervision and trains other prisoners. He plans to open a barber shop when released.
10. He is approved for parole to be released on 17 March 2025. Parole is supervised and he will have to attend drug rehabilitation programs and support. He will live with a friend in a granny flat and has contact numbers of people whom his friend has spoken to about giving him a job in construction, barbering and mobile phone repairs.
11. While in prison he has managed to get off drugs
12. When he entered prison he was addicted to ice. While on remand for 14 months he could not access any programs. In June 2023, a year after he was sentenced, he entered the Intensive Drug and Alcohol Treatment Program (IDATP). There are two phases to IDATP. The first phase is called RUSH (Real Understanding for Self-Help). It provides skills and tools to use in everyday situations. Before he could move to Phase 2 he had to be drug-free.
13. He had become dependent on buprenorphine while in prison and while in Phase 2 he started on the buprenorphine dependency program in which he gradually reduced the dosage of buprenorphine. He was on the program for four or five months before moving to Phase 2. He completed Phase 2 in March 2024. During Phase 2 he did not use any illegal drugs.
14. He has not used illegal drugs since March 2024 despite drugs being readily available in prison.
15. He has been involved in a couple of incidents in prison. While on remand he was involved in two incidents and was confined to his cell for seven days on each occasion. He felt he was picked on by other prisoners because he was severely underweight at the time. In July 2022 he was given seven days off buy and received a reprimand and caution when he accidentally kicked a ball made of rolled up toilet paper hitting a prison officer who was delivering medication to prisoners. In December 2022 he was caught smoking tobacco in non-smoking area and also caught in possession of two buprenorphine strips. He was struggling with drug use at the time.
16. Between December 2020 and August 2023 he tested positive for buprenorphine. This was before the IDATP and in the first couple of months when he was on permitted buprenorphine treatment.
17. In 2023 and 2024 he saw a psychiatrist for a few sessions. The sessions stopped when it was recommended that he do a drug program, which he did. He was not identified by prison authorities as someone who needed counselling.
18. He has some good friends who do not do drugs and have no criminal records. They have jobs and are married and have children. He will spend time with them when he is released. He no longer has contact with anyone with whom he took drugs or associated with at that time.
19. He has struggled to explain to his family what he has done and why he is in prison. He instructed his lawyer recently to tell his family the truth. His family have provided a joint email supporting him. His father came to see him in prison in February 2025 for the first time. He is relieved that his family know that his visa has been cancelled and about his criminal charges and drug use. It is a good feeling to feel supported by my family.
20. He has four brothers and three sisters, four of whom are under 18 years of age. He misses all of his family. Before he moved out of home at 18 years old they were all close. After he moved out he continued to visit home for dinner and special occasions such as birthdays. When he moved out of home his siblings said they missed him. His sister Arzoo was particularly upset and she cried.
21. He explained that his offence of driving with a suspended licence had resulted from his misunderstanding that a fine had been paid for him by the youth centre he attended when it had not been paid.
Dr Emily Kwok, clinical and forensic psychologist

Dr Kwok interviewed the Applicant on 3 February 2025 and provided a report dated 17 February 2025 in which she concluded:
[The Applicant] does not suffer from a mental disorder or illness, apart from being in early remission for substance use disorder. He presents with sub-clinical levels of trauma-related and depressive symptoms.
[The Applicant] completed drug treatment in prison. He has not used drugs illegally since March 2024 and has not used any form of drugs since August 2024.
[The Applicant] will have a low risk of re-offending if he is connected with appropriate treatment in the community to prevent relapse to drugs, address his poor coping, help him reintegrate to prosocial community living, and address his trauma-related symptoms.
It is recommended that [The Applicant] access psychological counselling through STARTTS. It is also recommended that he find a local drug counsellor through ADIS[15].
[15] Kwok at pp.10-11
The Applicant also tendered a joint statement[16] from three members of his family, his father Ahmad Nabizadeh, his twin brother Alijan Nabizadeh and his younger brother Alisina Nabizadeh. Ahmad Nabizadeh and Alijan Nabizadeh each gave oral evidence affirming their parts of the joint statement. The statement of Alisina Nabizadeh was accepted into evidence as read.
[16] See Exhibits A3, A4 and A5.
The Applicant also tendered a letter of support dated 8 February 2025 and a letter of offer of employment dated 26 February 2025 each from Mushtaba Karimi[17] and a character reference dated 26 February 2025 from Said Hamzef Moosawi [18] who each affirmed the content of the letters in their oral evidence to the Tribunal.
PRIMARY CONSIDERATIONS
[17] Exhibits A2 and A11
[18] Exhibit A12
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
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’ but this is not exhaustive. 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 assessing the seriousness of the Applicant’s offending, the Tribunal notes that the offence supply prohibited drug (large commercial quantity) for which the Applicant was convicted on two counts carries a maximum sentence of life imprisonment[19]. The Applicant’s actual sentence of an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years[20] was substantial.
[19] See sentencing remarks of Lerve J. at G7 at p.43, [5]
[20] TB46 at p.198, [64]
Custodial sentences reflect the objective seriousness of the offences involved and are generally a last resort in the sentencing hierarchy.[21]
[21] See PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 at [46], Re Harrison v Minister for Immigration and Citizenship [2009] AATA 47 at [63], see also BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023) at [80].
The Tribunal readily accepts that the trade in elicit drugs represents a significant threat of harm to individual drug-takers (as the Applicant’s own experiences demonstrates) and to the community at large through the organised criminality associated with the trade. The Respondent referred to the decision of the Tribunal in VPKY and Minister for Home Affairs[22], where Senior Member Groom referred to a report published by the Australian Crime Commission (ACC) in 2015 titled “The Australian Methylamphetamine Market – The National Picture” which documented the harm the drug trade causes for individuals and the community generally.
[22] [2019] AATA 352 at [18]-[20]
The Applicant’s convictions were for the supply of large commercial quantities of 3,4-methylenedioxymethamphetamine (MDMA) and methylamphetamine. The ACC stated in the report that :
Of all illicit drugs, the ACC assesses that methylamphetamine, and in particular crystal methylamphetamine, poses the highest risk to the Australian community and is of significant national concern[23].
[23] TB49 at pp.266-289
The sentencing judge recognised that the Applicant’s role in the offending was limited to being a courier but His Honour endorsed the comments of the Crown Prosecutor that without couriers such as the Applicant there would be no drug dealers[24].
[24] G7 at [15] and [56]
The Tribunal also notes that the Applicant was convicted of 8 offences over 5 years and that the seriousness of his offending escalated over that time. He progressed from a driving offence in 2017 through possession and supply drug offences, to dishonestly obtaining financial advantage to the supply of large commercial quantities of drugs. This escalation was recognised by Corrective Services NSW in the Applicant’s Pre-release Report[25].
[25] TB40 at p.118
Having regard to these matters, the Tribunal is satisfied that the Applicant’s conduct to date has been very serious. This was conceded by the Applicant in his oral evidence.
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 nature of the Applicant’s offending if repeated would threaten significant harm to individuals and the community generally.
The Applicant was convicted of two dishonesty offences, deal with property proceeds of crime and dishonestly obtain financial advantage by deception. The victim in the later case was an 80 year old women who was defrauded of some $1,990. A repetition of this type of crime would expose members of the community, and possibly vulnerable persons, to financial loss and emotional and psychological harm.
If the Applicant were to engage in the drug trade, either by supplying prohibited drugs in small amounts himself or by engaging in the large commercial supply of prohibited drugs as a courier or otherwise, he would expose individuals to the significant physical and psychological harm attendant on drug use. He would also contribute to the undermining of the good order of the community by participating in and aiding organised criminal activity in the community.
Likelihood of reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full 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’.[26]
[26] (2022) 293 FCR 634, 656 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.
The Applicant pleaded guilty to each of the offences for which he was convicted[27] and has expressed remorse for his offending.
[27] G7 at p.42,[1]
Dr Kwok noted in her report February 2025 that the Applicant:
..expressed remorse for his offending and accepted responsibility for his behaviours. He did not minimise the seriousness of his problems with drug use, gambling, and criminal activities. He displayed insight into the impact of his criminal behaviours on the wider community[28].
[28] Exhibit A1, p. 9
The Tribunal accepts that the Applicant is now remorseful and has accepted responsibility for his offending and recognises that he needs to address his past substance abuse, but the history suggests that his challenge is to follow through on those views and actually affect change in his behaviours. The Applicant has demonstrated in the past that under the influence of his drug addiction his expressions of remorse have not been reflected in his subsequent actions.
In a sentencing report prepared in May 2019 in relation to his conviction for dishonestly obtain financial advantage by deception and deal with proceeds of crime stated that he expressed regret towards his offending behaviour on that occasion. The Report notes:
[The Applicant] stated he now understands the impact his offending behaviour has had on himself, his family and the community.
He stated that he understood his actions would have contributed to drug use in the community and claimed he would never engage in this behaviour moving forward[29].
[29] TB 24, p. 60.
Yet, less than two years later on 18 March 2021 he was arrested and charged with the serious offences of supply prohibited drugs in large commercial quantities.
In giving his oral evidence the Applicant recounted the remorse he felt when he found out that the victim of his dishonest obtain financial advantage by deception conviction was an 80 year old woman. However, his remorse did not lead him to make full restitution of the $1990 to the victim as ordered by the Court. The Applicant applied to the court to pay compensation of $50 per week, claiming financial hardship, but his evidence was that at the time he was desperate to get money to feed his addiction[30]. The victim did not consent to the arrangement and the sum remained unpaid[31]. In his oral evidence the Applicant said he couldn’t remember if he had repaid the whole amount but said that if the lady was still alive he would now pay the amount owing plus extras.
[30] Exhibit A6 at [14]
[31] TB 30 at pp.71- 73
The Tribunal is concerned that the Applicant’s expressions of remorse, while genuinely felt now, may not deter him from offending should he lapse into drug addiction in the future.
It is clear from the sentencing remarks of Lerve DCJ that the Applicant’s substance abuse has been the critical factor in the Applicant’s offending. The Court noted that the Applicant commenced using cannabis at the age of 16 or 17 and progressed to cocaine at the age of 20 and then methylamphetamines, smoking 1 gram every day or two[32]. Each of the offences for which the Applicant was convicted involved drug use directly or indirectly. From this the Tribunal accepts that the likelihood the Applicant will re-offend in the manner of his past offences is directly tied to his ability to address his substance abuse.
[32] G7 at p.49,[37]
At the time of sentencing in May 2022 Justice Lerve noted in his sentencing remarks[33] that the Sentence Assessment Report provided to the Court assessed the Applicant at a medium-low risk of re-offending, with the assessor Dr Collins expressing an impression that the offender is at ‘somewhat of a crossroads with regard to his future adjustment’. His Honour also referred to the Applicant’s letter to the Court expressing his remorse and noted a paragraph which stated:
..And when we are locked in so much and feeling so stressed out, to be honest we can’t help but take drugs even in jail.[34]
[33] Ibid p.51 at [46]-[47]
[34] TB46 at p.194 [46]
His Honour concluded:
The offender in his letter admits to continuing to use illicit substances. I am reluctant to find on balance that there are good prospects of rehabilitation at this point. There are some extremely positive signs. However, much will depend on the manner in which the offender engages with the appropriate agencies upon his eventual release from custody.
An assessment as to whether the offender is unlikely to re-offend is a little difficult. The offender admits to continuing to use substances. However he is clearly remorseful and at this stage is indicating a clear intention of seeking rehabilitation. With some hesitation I am prepared to find on balance that the offender is unlikely to re-offend[35].
[35] Ibid [48]-[49]
Since being sentenced the Applicant has undertaken steps to address his drug addiction. Prison records confirm that the Applicant completed the Intensive Drug and Alcohol Treatment Program (IDATP)[36]. The Applicant said he had become dependent on buprenorphine while in prison and started on the buprenorphine dependency program in which he gradually reduced the dosage of buprenorphine. He was on the program for four or five months before moving to phase 2 of the IDATP, which he completed in March 2024. Jordan Delaney, psychologist and facilitator of the Phase 2 of IDATP program said in a written statement to the Applicant:
..You were always polite and respectful in a way that fostered respect in return. While you identified that you were a quieter participant than some, you never shied away from the work or were reluctant to give your thoughts and opinions. Getting to know you further it seemed apparent that your good manners reflected a deeper desire to act as a good man and live in alignment with good values[37].
[36] TB40 and G15
[37] Exhibit A9
The Applicant claims he has not used illegal drugs since March 2024 despite drugs being readily available in prison. However, he acknowledged in his oral evidence to the Tribunal that it was only in August 2024 that he had ceased prescribed buprenorphine treatment so that his complete abstinence from the use of drugs has only been over the last six months.
While the Applicant’s participation in the IDATP program is a positive indication his conduct in prison generally is mixed.
The records produced by the Respondent[38] under summons confirm that:
Upon his initial incarceration in 2021 until 2022, [the Applicant] displayed poor behaviour and incurred multiple institutional misconduct charges, however since that time it appears that his behaviour in custody has improved, only receiving one further charge. [the Applicant] has also made positive use of his time in custody by engaging in the IDATP and employment and educational opportunities[39].
[38] TB31-42 pp 74-136
[39] TB40 at p.124
A Pre-Release Report dated 11 December 2024 compiled by a Community Corrections Officer noted that:
During his time in custody and whilst engaging in the IDATP program, [the Applicant] has been subject to 95 urinalysis tests, with 45 of these results detecting non prescribed illicit substances[40].
[40] Ibid p.121
In her report of February 2025 Dr Kwok identified a number of protective factors which would reduce the risk of him re-offending if released into the community:
In particular, his family are now aware of his drug use and other problematic behaviours, and they will likely be more available to provide support and supervision. [the Applicant] stated that he has prosocial friends who can assist with accommodation and employment, and he is motivated to stay disconnected from antisocial peers. [the Applicant] expressed a willingness to access further support and treatment in the community[41].
[41] Exhibit A1 at p. 10 [58]
The Applicant has acknowledged that his association with anti-social peers had influenced his drug taking and subsequent offending. The Applicant’s father said in his statement that the Applicant ..was under the influence of bad friends which led him to make poor decisions[42]. In a Pre-Release Report dated 11 December 2024 compiled by a Community Corrections Officer it was stated that the Applicant:
..reported that he had always engaged with anti-social peers. He reported that at the time, he was associating with a negative peer and became indebted to him, resulting in the index offences. He disclosed that when in the presence of negative peers, he was more susceptible to peer pressure and was more likely to engage in drug use and antisocial behaviour.
[The Applicant] claimed that he has ceased contact with his negative peers and intends to maintain this lack of contact if released back into the community[43].
[42] Exhibit A4
[43] TB40 at p.119
The Pre-Release Report further stated:
Perusal of the IDATP treatment Completion Report dated 16 August 2024 revealed that [the Applicant] may engage through “socially desirable responding”, which remains consistent with his dishonesty towards his family around his offending behaviours and minimising the seriousness of his offending portrayed to his family[44].
[44] Ibid at p.121
The extent to which the Applicant’s drug taking was linked to his involvement with anti-social elements in the community, notably bikie gangs, is illustrated by his statement in his Personal Information Form submitted to the Department in response to the cancellation of his Visa:
I found myself in a sticky situation where I was in debt to a drug dealer who was connected with bikies. I was cornered into being a courier to pay off this debt and to get his trust back so I can continue to get drugs off him[45].
[45] G14 at p.86
The Applicant asserted that if he is released he will not associate with the people he previously associated with. He stated :
I have some good friends on the outside. They don’t do drugs, and don’t have criminal records. They have jobs and are married and starting to have kids. I will spend time with them when I am released. I am no longer in contact with anyone who I took drugs with or associated with that life[46].
[46] Exhibit A6 at [35]
The Applicant provided limited evidence to support this assertion. His friend Mushtaba Karimi gave evidence and provided a letter of support stating that …he is happy to provide [the Applicant] with a place to stay, rent-free, at my home. I want to make it clear that this is not just a temporary arrangement; I am confident in his character and am supportive of his efforts to build a better future. I truly believe he has learned from his past and is committed to living an honest, responsible life moving forward.[47]
[47] Exhibit A2
The Applicant also tendered a Letter of Employment dated 26 February 2025 from Mr Kamiri purporting to offer the Applicant a five-year contract to work as a mobile phone technician in his business[48]. The Applicant has expressed an intention to seek work either in construction or as a barber if released[49], both areas in which he has some experience. There is no evidence that the Applicant has any training as a mobile phone technician or any genuine interest in such work. The Tribunal does not accept the offer of employment as a genuine offer.
[48] Exhibit A11
[49] Exhibit A6 at [21]
Prison records show that the Applicant had few visitors while in prison and of the four persons listed on the visitor records over the period July 2021 to March 2024[50] only Mr Kamiri gave evidence in support of his application.
[50] TB36 at p.107 and TB 39 at p.115
The Applicant also tendered a character reference from Said Hamzeh Moosawi who claimed to have known the Applicant for over eight years[51]. Mr Moosawi gave oral evidence to the Tribunal. He was questioned about a second version of his reference which had earlier been lodged with the Tribunal[52]. This second letter stated that the Applicant does not have his family in Australia and is all alone.. These words were deleted from the version tendered by the Applicant. Mr Moosawi was asked to explain why he had changed the wording of the letter. He said it was a mistake and he meant to convey that the Applicant’s friends were his family. He said he knew that the Applicant’s parents and siblings were in Australia. The Tribunal does not accept this explanation. Rather, the mistake reveals My Moosawi’s limited knowledge of the Applicant. Mr Moosawi explained that he knew the Applicant through a friend of a friend and they caught up as friends and played indoor soccer together. He said he was not aware of the Applicant’s drug taking and he did not recall exactly why he was in prison stating only that he thought the charges were drug or money related.
[51] Exhibit A12
[52] Exhibit R3

The Tribunal is not satisfied that Mr Moosawi has a particularly close relationship with the Applicant and his letter does not indicate any intention to provide material support to the Applicant if he is released into the community. The Tribunal therefore gives Mr Moosawi’s evidence little weight.
The Applicant provided an email from three members of his family[53] expressing their support. His father Ahmad Nabizadeh and his twin brother Alijan Nabizadeh each gave oral evidence affirming their parts of the joint statement. The statement of Alisina Nabizadeh, the Applicant’s younger brother, was accepted into evidence without challenge.
[53] Exhibits A3,4 and 5
The Applicant confirmed in his evidence that he had only recently reached out to his family through his lawyers to tell them the truth about his offending and imprisonment. Before that he had lied to his family about his drug taking and the reasons for his imprisonment. He claimed this was because he was ashamed and embarrassed. He confirmed that he was first visited by his father in prison in February 2025 and had not spoken to him since before his arrest in March 2021. There is no evidence that he had any direct contact with his other family members while in prison.
Having regard to this evidence the Tribunal is not satisfied that the protective factors identified by Dr Kwok are as strong as she suggests in her report. The Applicant has an acknowledged history of associating with anti-social people who have led him into drug use and offending. He has been in prison for four years and has had few visitors. While he may have had contact with people by other means, the Applicant has not demonstrated, beyond the support of Mr Kamiri, that he has strong pro-social friends in the community. The Tribunal accepts that the Applicant’s family are genuine in their expressions of support, but it is only recently that the Applicant has been honest with his family about his offending. This is against a background where the Applicant had moved out of home at 18 years of age and acknowledged that he did not have a good relationship with his father, who ran a strict household[54]. He had no direct contact with his parents for almost four years while he was in prison. The reconciliation between the Applicant and his family is clearly in its early stages.
[54] Exhibit A6 at [8]
It is, however, significant that the Applicant will be subject to supervision if released into the community. The terms of his sentence include that he be released on parole after 4 years until the expiry of his sentence on 17 September 2028. The sentencing judge recommended that ..any release to parole be supervised and conditioned that the offender obey all reasonable directions as to ongoing treatment and counselling for substance abuse[55].
[55] TB46 at p.199
The Applicant has been subject to supervision previously under the terms of two community corrections orders between 2019 and 2021. His Pre-Release Report notes that:
His response to supervision was considered satisfactory, and as a result of his low-risk at the time, his supervision was subsequently suspended. It is noted that [the Applicant] was subject to this order at the time of committing the index offences[56].
[56] TB40 at pp120-121
The Tribunal notes that the Applicant has indicated his willingness to undertake ongoing treatment and counselling, as determined by Corrections Services and his parole officer. When asked what he planned to do to prevent a relapse into drug use if he is released into the community the Applicant stated in his oral evidence only that he would spend time with his family and get a job and work hard. When pressed as to his specific plans he said that he had not been told specifically what programs he would be required to undertake but he expected they would be organised for him at night-time so that he could attend work. The Applicant’s evidence did not disclose that he had any clear self-motivation to undertake further rehabilitation but did indicate that he was prepared to comply with what was required of him. This is consistent with the observation of the Pre-Release Report that:
..despite believing that he does not need to address his substance use further, [the Applicant] has verbalised a willingness to undertake intervention in the community[57].
[57] TB40 at p.124
The Applicant was assessed by Correction Services in December 2024 as a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)[58] scale.
[58] Ibid p.122
Dr Kwok assessed that the Applicant ..will have a low risk of re-offending if he is connected with appropriate treatment in the community to prevent relapse to drugs, address his poor coping, help him reintegrate to prosocial community living, and address his trauma-related symptoms[59].
[59] Exhibit A1 at p10, [57]
Dr Kwok explained the difference between her Low assessment and Correction Service’s Medium assessment on the basis that the LSI-R scale is used to assess the need for intervention in the community taking account of the history of offending. She said that her assessment was that the risk of re-offending is low if her recommendations for treatment are adopted. She said that the Applicant’s reconciliation with his family since December 2024 would change the LSI-R assessment to low-moderate which would be consistent with her assessment.
Dr Kwok’s recommendations were that the Applicant have access to psychological counselling through STARTTS and a local drug counsellor through ADIS.
The Applicant’s Team Leader in prison noted in her comments in his pre-release report that given…the significance of [the Applicant’s] addictions of gambling and illicit substances prior to his arrest, a primary focus of supervision will be his engagement with relevant service providers to address and manage these risks as outlined within the risk mitigation plan[60].
Conclusion
[60] TB40 at p.124
The Applicant’s criminal conduct is strongly related to his addiction to drugs. He regrets his offending and recognises that he needs to avoid future drug use in order not to lapse into reoffending. He has taken steps while in prison to rehabilitate himself and has for the last 6 months been drug free. However, his resolve is untested in the community. He has identified some factors which will assist him to remain drug free in the community including support from his friend Mr Karimi and his own family and ongoing supervision by Corrections Services during an extended period of parole. However, the professional assessment is that he requires ongoing counselling and treatment for his drug addiction and to address his past trauma. While he says he is willing to comply with these recommendations he has not demonstrated that he is self-motivated to do so. If he relapses into drug use he has shown in the past that he has not been deterred from offending by previous convictions nor the threat of imprisonment.
The Tribunal is mindful that Dr Kwok’s assessment that the risk of reoffending is low is qualified by the expectation that the Applicant is connected to appropriate treatment and he has the support of his family and pro-social friends. The Tribunal is not satisfied that the evidence supports a conclusion that these factors are firmly met. The Applicant’s commitment to treatment appears to be essentially passive. He has said he will do what he is required to do under the terms of his parole but has not demonstrated an independent commitment to seeking treatment. His family have only recently come to know the true nature of his offending and have had little contact with the Applicant for four years. Their relationship is untested in the context of the Applicant being released into the community. The Applicant has the support of Mr Karimi but there is little evidence of wider pro-social supports for the Applicant.
Taking all of these matters into account it is the Tribunal’s assessment that the Applicant poses a moderate to low risk of re-offending if released into the community. This risk must be weighed against the nature of his past offending which was very serious and if repeated would threaten significant harm to 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’s childhood was in Afghanistan, Iran and Pakistan but his later formative years were in Australia. He arrived in Australia in 2013 at the age of 14 years and attended secondary school in Australia. He was in paid employment as a bricklayer for around four years until his arrest in March 2021. He has been in prison on remand or under sentence since his arrest.
His first offence, a driving offence in 2017, with subsequent convictions in 2019 and 2022 were reasonably soon after his arrival.
Dr Kwok noted in her report that the Applicant had admitted to having an antisocial lifestyle before he went into prison[61]. However, the Applicant claims to have a number of friends in Australia who lead a pro-social lifestyle, including Mr Karimi, who has offered to provide him a place to live if he is released, and Mr Moosawi.
[61] Exhibit A1 at p.8, [47.7]
The Applicant’s immediate family members are all resident in Australia. They comprise his father and mother, four brothers and three sisters all of whom are either Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Applicant has not lived with his immediate family since he left home at the age of eighteen. There is no evidence that he has made any financial contribution to the family or that he has contributed to their welfare in any material sense since leaving home. The Applicant’s evidence was that he had struggled to explain to his family what he had done and why he was in prison and he had only recently instructed his lawyer to tell his family the truth. His father came to see him in prison in February 2025 for the first time.
Nevertheless, some members of his family have provided a joint email expressing their support for the Applicant in which the Applicant’s brother stated that:
If he is sent to a detention centre or sent to a third world country the consequences will be devastating, he won't be able to recover without the right support to rebuild his life. Our family will further be broken and their young siblings will grow up without a brother to love and look up to, the emotional and psychological toll on us will be unbearable[62].
[62] Exhibit A5.
The Tribunal accepts that various members of the Applicant's immediate family may be adversely impacted emotionally if the Tribunal affirms the decision under review, but the evidence does not suggest that the Applicant’s removal from Australia would result in any material disruption to their general welfare.
On the basis of this evidence, the Tribunal is satisfied that the Applicant has significant ties to Australia through his immediate family and his social links with other Australian citizens which warrant substantial weight in the overall assessment of whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked. This is a primary consideration under Direction 110.
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 s 501 or non-revocation under s 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.
The Applicant has identified four minor children whose best interests may be affected by a decision not to revoke the cancellation of his Visa[63], being his siblings AR aged 9 (DOB: October 2015); A aged 13 (DOB: January 2012); So aged 11 (DOB: February 2014) and Si aged 2.5 (DOB: July 2022)
[63] ASFIC at [57]
The Applicant’s role in relation to the four siblings is not a parental role and he is not likely to play a positive parental role in the future. The Applicant’s father and mother already fulfil a parental role in relation to each of the children.
The Applicant’s father stated in the joint family email that the Applicant’s mother recalls that, before he moved out of home, the Applicant was ..helping around the house by getting groceries, doing chores around the house and taking care of his other siblings[64]. However, this was around eight years ago. The Applicant’s evidence was that he left home when he was 18 and returned home only irregularly for dinner and family occasions. He has been in prison since his arrest in in March 2021. Accordingly, the relationship between the Applicant and his four minor siblings has involved long periods of absence. In addition, the evidence indicates that there has been very limited meaningful contact between the Applicant and any of the four minor siblings over the last eight years. Si was born a year after the Applicant entered prison and there is no evidence that she has ever actually met the Applicant. AR was less than 2 years old when the Applicant moved out of home. There is no evidence of any meaningful contact between the Applicant with any of the four siblings in person or by electronic means since he was arrested in March 2021.
[64] Exhibit A4.
There is no evidence that the considerations in paragraphs (c),(g) and (h) of 8.4(4) are relevant. The views of the children themselves are not before the Tribunal.
The Applicant’s father addressed the effect of separation on the younger siblings in the family email of support where he stated:
During these last Four years Ali's absence has shattered our family, causing emotional pain especially to his mother and younger siblings who grew up with him and were close to him. They've been asking when Ali is going to come home. I, as a father, don't know how to answer some of them, seeing the sadness in their eyes and confused face, not knowing why their big brother who once cared for them is not here[65].
[65] Ibid
The Tribunal accepts that further separation of each of the four children from the Applicant would have a negative emotional effect on them, although limited given that they have been separated from him now for around four years, and they would have the option to maintain contact with him by electronic and other means if he were removed from Australia or held in detention.
Accordingly, the Tribunal is satisfied that the best interests of the Applicant’s four minor siblings would be served by the revocation of the cancellation of the Applicant’s Visa, but notwithstanding that it is a primary consideration under Direction 110, gives this consideration limited weight because the Applicant’s relationship with the four siblings is non-parental and there have been long periods of absence and limited meaningful contact over at least the last four years.
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[66].
[66] See also: Minister for Immigration, Citizenship and Multicultural Affairs v HSRN (2023) 297 FCR 662,668 [31]-[35]
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.[67]
[67] FYBR v Minister for Home Affairs (2019) 272 FCR 454, 473 [75]-[76].
The Applicant has engaged in serious criminal conduct.
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 the expectations of the Australian community against the other considerations the Tribunal is mindful that the Applicant is a relatively young man who has lived his adult life in Australia. He experienced significant trauma and dislocation in his home country and came to Australia to seek refuge. He suffered rape at a young age which he was unable to disclose. He subsequently began using drugs and became addicted at around 20 years of age. His addiction has been the primary contributing factor to his offending. While his crimes have included acts of dishonesty the Tribunal does not accept that, in the circumstances, they reflect so much on the Applicant’s character as they do on the pernicious influence of his drug dependence.
Taking these matters into account the Tribunal attributes substantial but not predominant 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 asserted that, in light of the decision of the Federal Circuit Court in GMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs[68], the immediate consequence of a decision not to revoke the cancellation of the Applicant’s Visa is that the Applicant cannot be lawfully held in detention and he must be released into the community on a BVR bridging visa.
[68] (2024) 380 FLR 336
In GMZ18 the Court found on the basis of four principle premises, established on the evidence, that there was a reason to suppose that the applicant’s detention had ceased to be lawful by reason that it transgressed the applicable limitation on his detention expounded in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[69]. The Court ordered the immediate release of the applicant from immigration detention[70]. The four principle premises upon which the decision was based were stated as:
(a) On 3 November 2022 the Tribunal found the applicant was owed non-refoulement obligations due to the real risk of harm he would face if he were returned to Iran.
(b) As a matter of policy the Australian government does not remove persons in breach of non-refoulement obligations Australia owes such persons.
(c) As recently as March 2024 the Department concluded that the applicant’s involuntary return to Iran would likely result in Australia breaching the non-refoulment obligations it owes to the applicant.
(d) The applicant has no right to reside in any country other than Iran, and there is no evidence that any country would be willing to accept him for resettlement, particularly given the applicant’s criminal record.
[69] [2023] HCA 37 [83]
[70] Ibid at [87]
The decision in GMZ18 related to the factual circumstances found in that case. If the Tribunal’s decision is not to revoke the cancellation of the Applicant’s Visa it is open to the Applicant to apply to the Court for an order to prevent his detention or to require his release if he is detained. It is not appropriate for the Tribunal to speculate on whether an application would be made, or its prospects of success. The Tribunal is required to consider the legal implications of its decision on the basis of the facts and the current legislative provisions.
There is no evidence that the Respondent intends to release the Applicant into the community on a bridging visa as propounded by the Applicant. The Respondent has tendered a Notice pursuant to s.254 of the Act dated 10 February 2025 notifying the Applicant that he is liable to be removed from Australia and will be taken into immigration detention upon his release from prison[71].
[71] Exhibit R2
The Applicant arrived in Australia on a Global Special Humanitarian (Class XB) (subclass 202) visa granted on 15 May 2013[72]. It has been established that a Global Humanitarian visa is not a ‘protection visa' as defined by the Act[73] and the Applicant concedes that he was not subject to a protection finding by virtue of the grant of that visa. The Applicant has not previously applied for a protection visa. Accordingly, there is no "protection finding" within the meaning of s 197C of the Act which would prevent the Applicant’s removal from Australia under s 198.
[72] G8 at p.56.
[73] AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451, 472-473 [67]-[69] and CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 applied in KVRK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3978.
Paragraph 9.1(3) states that international ‘non-refoulement’ obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a ‘non-refoulement’ claim. However, paragraph 9.1.2(1) provides that claims which may give rise to international ‘non-refoulement’ obligations can be raised by a non-citizen who is not the subject of a protection finding, and where such claims are raised, they must be considered by the Tribunal.
The Applicant’s submissions regarding GMZ18 raise the issue of non-refoulement in relation to the Applicant. The Applicant’s evidence is that his grandfather, a sergeant in the Afghan police, was murdered by the Taliban and his uncle was also killed because of his relationship with the grandfather. The Applicant said that his family lived in fear of death in Afghanistan[74]. In addition, the DFAT Country Information for Pakistan[75] states that Hazara people in Pakistan are subject to killings by militants. The Applicant was born in Pakistan and may be constitutionally entitled to citizenship of Pakistan but DFAT reports that authorities continues to refuse to issue identity cards for the children of Afghan refugees who are born in the country[76]. Accordingly, the Tribunal accepts that the Applicant has raised Australia’s international non-refoulment obligations in relation to both Afghanistan and Pakistan.
[74] Exhibit A6 at [4]
[75] Exhibit R1 at [3.5]-[3.12]
[76] Exhibit R1 at [3.19]
Paragraph 9.1.2(2) provides that:
...where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether nonrefoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
The Applicant’s Humanitarian Visa was issued to him as a dependant and issues of non-refoulement were not assessed in relation to the granting of the Visa. The Tribunal is not satisfied that there is sufficient evidence before it to make a proper determination of the non-refoulement issue as it relates to the Applicant. Accordingly, having considered the Applicant’s representations, the Tribunal has decided to proceed on the basis that if and when the Applicant applies for a protection visa, any protection claims he has will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
On the current facts, having regard to the s.254 notice, the immediate consequence of a decision not to revoke the cancellation of the Applicant’s Visa is that the Applicant will be liable to removal from Australia under s.198 of the Act and pending removal will be held in immigration detention under s.189.
The Applicant is able to apply for a protection visa and he would be liable to be held in immigration detention pending the finalisation of a decision on a protection visa (if an application is made).
If a protection visa is granted he would be released into the Australian community. If it were refused and no protection finding made the Applicant would then be liable to removal from Australia under s.198 of the Act.
If the Applicant applies for a protection visa it is possible that he may have a protection finding made but be refused a protection visa on character or other grounds. In that event he would be precluded from removal from Australia to his home country and liable to be held in immigration detention while other options are considered. It is possible that arrangements might be made for his removal to a third country[77] or he might be released into the community on a bridging visa on restrictive conditions at a time when there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future[78]
[77] On 16 February 2025 the Australian Government announced an arrangement with the government of Nauru for the resettlement of ‘members of the NZYQ cohort’ and announced that long term resettlement visas were issued to three members of the cohort. see Exhibit A10
[78] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, 2-3 [9]
The consequences of removal for the Applicant and 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 on him and his family.
These matters are considerations which favour revocation. While they are an expected consequence of the application of the law they are nevertheless serious matters and warrant substantial 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.
It is accepted by the parties that the Applicant’s home country is Afghanistan. He was born in Pakistan and may be entitled to Pakistani citizenship by virtue of his birth but in practice the children of Afghan refugees are denied recognition of their citizenship by the Pakistani authorities[79].
[79] Exhibit R1 [3.19]
The Respondent contends that if the cancellation of the Applicant’s Visa is not revoked he is liable to be removed to Afghanistan, subject to a consideration of any application for a protection visa that the Applicant might make.
The Applicant contends that he cannot be relocated to Afghanistan because of Australia’s non-refoulement obligations and in light of the Respondent’s recent press release[80] he is likely to be released into the community on a bridging visa (BVR) pending his removal to Nauru or another third country.
[80] Exhibit A10
The Tribunal accepts that the Applicant’s home country is Afghanistan and if he is removed from Australia to Afghanistan he would face significant impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The Applicant is 25 years of age. He has not disclosed any diagnosed physical or psychological conditions[81], but he has demonstrated a vulnerability to drug addiction and there are some mental health concerns referred to by Dr Kwok regarding the hardships and trauma he experienced before coming to Australia and the claim that he was raped when in high school. These matters represent an impediment to the Applicant establishing himself in Afghanistan.
[81] G14 at p.88 [12]
The Applicant has no immediate family ties in Afghanistan and no direct experience of the country having lived either in Pakistan or Australia since his early childhood.
The Applicant has limited employment experience and skills and would face difficulty in obtaining employment.
He is likely to face emotional hardship due to his separation from his family and, although the Applicant’s fears of harm if returned to Afghanistan have not been assessed in the context of a protection finding, the fact that he holds grave fears for his safety[82] is itself an impediment.
[82] G14 at p.89
These impediments are significant, although removal to Afghanistan is not a certain outcome of a decision not to revoke the cancellation of the Applicant’s Visa. To the extent that it represents a possible outcome, the consideration of impediments if removed under Paragraph 9.2(1) of Part 2 of Direction 110 is a valid consideration and warrants substantial weight in assessing whether there is another reason to revoke the cancellation of the Applicant’s Visa under s.501CA.
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 limited skills and experience. He completed year 12 at school and worked in construction as a bricklayer for up to four years. He has had experience as a general hand and as a barber while in prison. He has expressed an ambition to open a barber’s shop if he is released.
Given the nature of the Applicant’s limited work experience the Tribunal is satisfied that the removal of the Applicant from Australia would have only a minor 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 in favour of revocation.
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 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,[83] 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.
[83] [2016] FCA 1166 [38].
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations ‘appropriate weight’.[84] 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.
[84] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
There are two primary considerations weighing in favour of revocation. The Applicant has significant ties to Australian through his immediate family and his social links with other Australian citizens which warrant substantial weight in the overall assessment. The best interests of the Applicant’s four minor siblings favour revocation but attracted limited weight because the Applicant’s relationship with the four siblings is non-parental and there have been long periods of absence and limited meaningful contact over at least the last four years.
Of the other considerations, the legal effect of a decision to revoke cancellation may involve serious consequences for the Applicant, including detention pending resolution of questions about his removal from Australia, which warrant substantial weight in favour of revocation. In addition, the prospect of deportation to Afghanistan would require the Applicant to face substantial impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. This consideration, while contingent, also warrants substantial weight in favour of revocation.

There are two primary considerations weighing against revocation.
The Applicant represents a moderate to low risk of reoffending but his crimes have involved very serious conduct which if repeated threaten significant harm for the Australian community. The protection of the Australian community is a primary consideration. Paragraph 8.1(1) of Direction 110 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. In addition, the expectation of the Australian community is that non-citizens who engage in serious conduct in breach of the expectation that non-citizens will obey Australian laws not be allowed to remain in Australia. This expectation weighs substantially in favour of not revoking the cancellation of the Applicant’s Visa but is not of itself determinative of the issue.
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:
1. the safety of the Australian community is the highest priority of the Australian Government;[85]
2. non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia; and
3. 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.
The Tribunal has also had regard to the principle in paragraphs 5.2 (5) and (6) as they relate to the Applicant. The Applicant entered Australia at the age of 14. He commenced offending when he was 18 but his convictions for drug-related crimes were first recorded when he was 20. He was employed in the community as a bricklayer for around 4 years until his arrest and imprisonment in May 2021. He has spent almost 4 years in prison. His contribution to the Australian community as a wage earner and taxpayer was for only a short period of around 4 years, during which he committed several offences. There is no evidence of any broader contribution to the community during that four year period. The Applicant has lived in Australia for 12 years, just less than half his life. He came to Australia as a 14 year old. The Principles (5) and (6) in Paragraph 5.2 tend to support a conclusion that the Australian community would have a lowered tolerance for the Applicant’s offending.
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 offending was very serious is not in dispute. The seriousness of the offence was recognised by the legislature in prescribing a maximum sentence of life imprisonment for each of the supply prohibited drug (large commercial quantity) offences and by the Court in imposing an aggregate sentence of 7 years and 6 months. Whether or not the seriousness of the offences and the harm that would be caused if they were repeated is of itself sufficient to justify not revoking the cancellation of the Applicant’s Visa is moot. The Tribunal is satisfied, having given appropriate weight to each of the considerations for and against revocation, and having had regard to the Principles in Paragraph 5.2 and paragraph 8.1(1), that the considerations in favour of not revoking the cancellation of the Applicant’s Visa outweigh those in favour of revocation.
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 under section 105 of the Administrative Review Tribunal Act 2024 (Cth) 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 dated 13 December 2024 not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa under section 501CA(4) of the Migration Act 1958 (Cth).

Date(s) of hearing: 27, 28 February & 3 March 2025

Solicitors for the Applicant: Ms Alison Battisson

Solicitors for the Respondent: Ms Jessica Schultz
APPENDIX A - LIST OF EXHIBITS

List of exhibits

A1

Psychologist Report written by Dr Emily Kwok dated 17 Feb 2025Statutory Declaration of the Applicant dated 21 January 2025

A2

Email of Sayed Mushtaba Karimi dated 8 February 2025

A3

Two paragraphs statement Alijan Nabizadeh contained in the email subject ‘Ali Khan letter’ dated 13 Feb 2025

A4

Three paragraph statement of Ahmad Nabizadeh as contained in the email subject ‘Ali Khan letter’ dated 13 Feb 2025

A5

Statement of Alisina Nabizadeh as contained in the email subject ‘Ali Khan letter’ dated 13 Feb 2025

A6

Applicant’s Statutory Declaration declared on 20 Feb 2025

A7

Page 24 of Asylum Seeker Resource Centre document titled ‘Myths, Facts and Solutions’

A8

Corrective Services NSW Research Publication titled ‘A Process Evaluation of the Intensive Drug and Alcohol Treatment Program (IDATP)’ written by Maria Kevin, Research and Evaluation Manager No. 54 March 2015

A9

Undated Letter from Psychologist Jordan Delaney

A10

Media Release titled ‘Statement on NZYQ’ by The Hon Tony Burke MP dated 16 Feb 2025

A11

Letter off Employment from Oz Tech

A12

Updated character statement Mr Moosawi dated 26th February 2025

R1

DFAT Country Information Report Pakistan dated 25 Jan 2022

R2

Section 254 Notice Border Force Letter Dated 10 February 2025

R3

Second Character Statement of Said Moosawi

Date(s) of hearing:	27, 28 February & 3 March 2025
Solicitors for the Applicant:	Ms Alison Battisson
Solicitors for the Respondent:	Ms Jessica Schultz

List of exhibits
A1	Psychologist Report written by Dr Emily Kwok dated 17 Feb 2025Statutory Declaration of the Applicant dated 21 January 2025
A2	Email of Sayed Mushtaba Karimi dated 8 February 2025
A3	Two paragraphs statement Alijan Nabizadeh contained in the email subject ‘Ali Khan letter’ dated 13 Feb 2025
A4	Three paragraph statement of Ahmad Nabizadeh as contained in the email subject ‘Ali Khan letter’ dated 13 Feb 2025
A5	Statement of Alisina Nabizadeh as contained in the email subject ‘Ali Khan letter’ dated 13 Feb 2025
A6	Applicant’s Statutory Declaration declared on 20 Feb 2025
A7	Page 24 of Asylum Seeker Resource Centre document titled ‘Myths, Facts and Solutions’
A8	Corrective Services NSW Research Publication titled ‘A Process Evaluation of the Intensive Drug and Alcohol Treatment Program (IDATP)’ written by Maria Kevin, Research and Evaluation Manager No. 54 March 2015
A9	Undated Letter from Psychologist Jordan Delaney
A10	Media Release titled ‘Statement on NZYQ’ by The Hon Tony Burke MP dated 16 Feb 2025
A11	Letter off Employment from Oz Tech
A12	Updated character statement Mr Moosawi dated 26th February 2025
R1	DFAT Country Information Report Pakistan dated 25 Jan 2022
R2	Section 254 Notice Border Force Letter Dated 10 February 2025
R3	Second Character Statement of Said Moosawi