NSSZ and Minister for Immigration and Citizenship (Migration)

[2025] ARTA 1986

NSSZ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1986 (12 September 2025)

Applicant/s:  NSSZ

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4198

Tribunal:Senior Member A Murphy

Place:Melbourne

Date:12 September 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 12 September 2025 at 3:58pm

Catchwords

MIGRATION - decision of delegate of Minister to cancel the applicant’s resident return visa – character test – s 501(2) – Direction no. 110 – primary and other considerations – protection of Australian community - nature and seriousness of criminal offending - risk to the Australian community should the applicant commit further offences or engage in other serious conduct - strength, nature and duration of ties to Australia - best interests of children - expectations of the Australian community - legal consequences of decision - extent of impediments if removed – other considerations - reviewable decision affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

FYBR v MHA [2019] FCAFC 185

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146

Secondary Materials

Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

The names of the applicant and his family members have been substituted with pseudonyms in this published decision. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify those individuals.

Statement of Reasons

1. The applicant seeks review of the decision by a delegate of the Minister (the Respondent) dated 20 June 2025 to exercise the discretion to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa (the visa) under s 501(2) of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. NSSZ (the Applicant) is a 57-year-old male citizen of Iran, who arrived in Australia in 2010 and was granted a protection visa on 6 August 2012. On 24 August 2017, he was granted a Subclass 155 (Five Year Resident Return) visa and his protection visa ceased.[1]

   [1] Applicant’s visa list Hearing Book [74]

3. The applicant departed Australia on 8 October 2017.[2] On 22 May 2018, the Noord-Holland District Court (District Court) delivered a judgment finding that the applicant had, in the period from 21 October 2017 to 10 November 2017, in association with one or more others, intentionally brought into the territory of The Netherlands a quantity of approximately 97 kilos of material containing heroin. In light of that finding the District Court convicted the applicant of the ‘deliberate action in violation of the prohibition given in Article 2 under A of the Opium Act’ and sentenced him to an unconditional prison sentence for the duration of 72 months, with time spent in pre-trial detention deducted.[3]

   [2] Applicant’s movement records Hearing Book [75]

   [3] Judgment of the Noord-Holland District Court dated 22 May 2018 at Hearing Book [131]

4. The applicant appealed the District Court’s judgment. By judgment dated 25 October 2018 the Amsterdam Court of Appeal (Court of Appeal) agreed with the District Court’s finding that the applicant had in the period from 21 October 2017 to 10 November 2017, in association with one or more others, intentionally brought into the territory of The Netherlands a quantity of approximately 97 kilos of material containing heroin. However it set aside the District Court’s conviction for the offence of ‘deliberate action in violation of the prohibition given in Article 2 under A of the Opium Act’, instead convicting the applicant of ‘co-perpetrating intentional acts in violation of the prohibition set forth in Article 2 under A of the Opium Act’. The judgment stated that the Court of Appeal was of the opinion that the prison sentence imposed by the Amsterdam District Court was suitable and appropriate and sentenced the applicant to a term of imprisonment for 72 months, with time spent in pre-trial detention deducted.[4]

   [4] Judgment of the Amsterdam Court of Appeal dated 25 October 2018 at Hearing Book [151]

5. On 25 August 2021, the Department receiving information from Interpol indicating that on 9 July 2019, the applicant was convicted under the Violation of the Opium Act in relation to drug trafficking offences in the Netherlands and he was sentenced to four years and three months imprisonment.[5]

   [5] File note dated 25 August 2021 at Hearing Book [156]

6. The apparent discrepancy between the information provided by Interpol about the sentence imposed on the applicant as compared to that in the judgment of the Amsterdam Court of Appeal is explained in the evidence of the applicant, who states that it is his understanding that he was granted early release after serving two thirds of his sentence, in part because he participated in education and work programmes while in prison. The applicant returned to Australia on 18 December 2021, consistent with the Interpol information.[6]

   [6] Applicant’s movement records Hearing Book [75]

7. On 24 March 2022, the Department sent the applicant a Notice of Intention to Consider Cancellation under s 501(2) of the Migration Act 1958 (the NOICC). That notice informed him that the Minister (or his delegate) may cancel the visa held by a person they reasonably suspect does not pass the character test. The notice stated that the Department held information about the applicant’s criminal history which indicated he had a ‘substantial criminal record’ within the meaning of s 501(7) of the Act, with the result that he did not pass the character test by virtue of s 501(6)(a) of the Act.

8. The NOICC identified the information indicating that the applicant had a ‘substantial criminal record’ as the file note summary of his conviction in the Netherlands dated 25 August 2021 referred to at paragraph 6 above. The NOICC also identified that the applicant had provided false answers in 10 incoming passenger cards completed between January 2013 and December 2021. In particular it was alleged that in nine incoming passenger cards completed between January 2013 and June 2020, the applicant failed to disclose that he had been sentenced to 8 years imprisonment by Iranian authorities in 2009 for engaging in illegal sexual relations with men. This source of that information was stated to be the findings of the Independent Merits Review officer in a decision record dated 13 February 2012.

9. The applicant completed a personal circumstances form dated 16 May 2022 and later sent an email to the Department dated 21 November 2024, providing reasons as to why the visa should not be cancelled.[7]

   [7] Hearing Book [180]

10. On 22 November 2022 the Department sent the applicant a Notice of Further Information regarding possible visa cancellation under s 501(2), advising that in order to progress his case he was asked to provide any available documents regarding his criminal conviction in the Netherlands. On 3 March 2023, the Department sent the applicant a Notice of Further Information regarding the possible visa cancellation, advising him that the new Direction 99 had replaced Direction 90. On 20 August 2024, the Department sent the applicant a Notice of Further Information regarding the possible visa cancellation advising that it had received further information which may be taken into account, that information being the judgements of the Noord-Holland District Court and the Amsterdam Court of Appeal cited above.

11. On 23 June 2025 the Department notified the applicant that his Subclass 155 (Five Year Resident Return) visa had been cancelled under s 501(2) of the Act and the applicant sought a review of that decision from this Tribunal on 2 July 2025.

12. The Tribunal hearing was held on 8 and 9 June 2025 by MS Teams with the member presiding located at the Tribunal’s Melbourne Registry. Both parties were represented and the Tribunal heard oral evidence from the applicant’s sister Ms [AA] and partner Ms [BB].

    LEGISLATIVE FRAMEWORK

13. Under s 501(2) of the Act, the Minister may cancel a visa that has been granted to a person if:

    (a)the Minister reasonably suspects that the person does not pass the character test: and

    (b)the person does not satisfy the Minister that the person passes the character test. 

14. For the purposes of s 501(2), a person does not pass the character test if they have a substantial criminal record as defined by s 501(7). The circumstances identified in s 501(7) include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (s 5AB of the Act).

15. As noted above, the applicant was sentenced to a term of 72 months imprisonment by the Noord-Holland District Court and that sentence was confirmed by the Amsterdam Court of Appeal. It is not in dispute that he has a substantial criminal record and does not pass the character test and the Tribunal finds accordingly.

16. Therefore the issue in the review is whether the Tribunal should exercise the discretion to cancel the Resident Return visa under s 501(2) of the Act, having regard to the considerations set out in Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).

    THE DIRECTION

17. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).

18. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Appeals Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.

19. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The safety of the Australian Community is the highest priority of the Australian Government.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[8]

    [8] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’)

20. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa.  It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3) One or more primary considerations may outweigh other primary considerations.[9]

    [9] Ibid cl 7.

21. The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.

    INFORMATION PROVIDED BY THE APPLICANT AS TO WHY THE VISA SHOULD NOT BE CANCELLED

22. The applicant completed a personal circumstances form dated 16 May 2022 in which he stated among other things that he was married with two children in Iran, that he was in contact with them 3 to 4 times a week by WhatsApp and that he was the only person that could support his family, particularly given the circumstances in Iran. He also disclosed that he had one sister and two nieces in Australia and that his mother, one sister and four brothers remained in Iran. He stated that he arrived in Australia in 2010, spending 16 months and eight days in a camp before being released into the community in 2012. He said that everyone was likely to make a mistake in life and he was not an exception, but he had not committed any crimes or done anything wrong in Australia. He said he was sorry and regretful for what had happened and he had proven this with his behaviour and efforts in prison where he obtained four certificates including general employee skills as well as a tailoring and foreman certificate.

23. He stated he was a member of the Kurdish community in Adelaide and that he had been diagnosed with depression and anxiety, for which he was treated with medication. He stated that Iran is an Islamic country where homosexuality was illegal and punishable by death. He stated that if returned to Iran he would face severe punishment including the death penalty.[10]

    [10] Hearing Book [165]

24. In an email to the Department dated 21 November 2024, the applicant stated that it was true he had made a mistake a long time ago but his behaviour in recent years in Australia showed that he had not made any mistakes or committed any crime and he had fully reformed. He requested another chance to live an honourable life in Australia.[11]

    [11] Hearing Book [180]

25. The materials before the Tribunal comprised a hearing book prepared by the respondent, which included documents filed by the applicant being a legal submission with 8 attachments. One of those attachments was a letter of support from a third witness Mr [AS], but the applicant subsequently advised that he did not continue to rely on that letter and wished to withdraw it. The applicant subsequently filed further materials being an affidavit sworn by the applicant, a letter of support from his partner, a table showing the applicant’s periods of residence in Australia and a report on Recidivism in Australia published by the Australian Institute of Criminology. Both parties filed Statements of Issues, Facts and Contentions and further written submissions addressing the legal consequences of the Tribunal’s decision.

    THE PRIMARY CONSIDERATIONS

26. The Direction contains five primary considerations, which are:

    (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.[12]

    [12] The Direction, cl 8.

27. I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

    The protection of the Australian community

28. 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.[13]

    [13] Ibid cl 8.1(1).

29. The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[14]

    [14] Ibid.

30. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[15]

    [15] Ibid cl 8.1(2).

    Nature and seriousness of the conduct

31. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[16]

    Criminal offending

    [16] Ibid cl 8.1.1(1)(a).)

32. As noted above, the Noor-Holland District Court found that it was legally and convincingly proven that in the period from 21 October 2017 to 10 November 2017 at Schiphol, in the Netherlands and/ or in Iran, that the applicant together and in association with one or more others, intentionally brought into the territory of the Netherlands a quantity of approximately 97 kg of material containing heroin. It found the facts as proven constituted the ‘deliberate action in violation of the prohibition given in Article 2 under A of the Opium Act’ and sentenced him to imprisonment for 72 months, with time spent in pre-trial detention deducted.[17]

    [17] Hearing Book [134]

33. On appeal the Amsterdam Court of Appeal also found that it was legally and convincingly proven that in the period from 21 October 2017 to 10 November 2017 at Schiphol, in the Netherlands and/ or in Iran, that the applicant together and in association with one or more others, intentionally brought into the territory of the Netherlands a quantity of approximately 97 kg of material containing heroin. It found the facts as proven constituted ‘co-perpetrating intentional acts in violation of the prohibition given in Article 2 under A of the Opium Act’ and confirmed his sentence of imprisonment for 72 months, with time spent in pre-trial detention deducted.[18]

    [18] Hearing Book [134]

1. Further details of the offending can be found in the judgment of the Noor-Holland District Court. When deciding the penalty, the court stated that it was guided by the nature and seriousness of the proven fact and the circumstances in which it was committed, noting that it took the following into account:

   Gravity of the offence

   The accused deliberately and in association with others carried out actions aimed at further transport, storage, delivery, receipt and transfer of two rollers from Iran in which a very large quantity (gross about 97 kilos) of heroin was hidden. The accused was thereby guilty of bringing the drugs into the territory of the Netherlands. The court finds this a very serious and, given the course of action, sophisticated fact.

   The particularly large amount of drugs could only be meant for further distribution and trade. With his actions, the accused has shown that he does not in any way take into account the social consequences of the further spread of these drugs (if the transport would not have been intercepted).

   It is well known that drugs pose a serious threat to public health and that a significant proportion of crime is directly or indirectly caused by the use of drugs. Certainly when it comes to heroin, because the use of heroin causes great physical and mental dependence.

   Heroin trade thus constitutes a serious breach of the rule of law. With the proven actions, the accused contributed significantly to this trade. Moreover, this is a very serious fact because the street value of such a large amount of drugs can easily be estimated at several millions. If this transport had been successful, this large sum of money would have disappeared into the illegal circuit and could have been used for (the financing of) a large range of criminal purposes.

2. In submissions to the Tribunal, the applicant acknowledges it to be ‘obvious and indisputable’ that conduct involving the importation of a large commercial quantity of heroin, which resulted in a prison sentence of 72 months, and which carried obvious risk of very grave social harms, should be characterised as ‘very serious’.[19]

   [19] Applicant’s Amended Statement of Issues, Facts and Contentions

3. The Tribunal has had regard to the comments of the Noor-Holland District Court, including that the applicant deliberately and in association with others brought into the Netherlands a very large quantity of heroin, meant for further distribution and trade, without regard to the social consequences, and if the transport had been successful a very large sum of money would have disappeared into the illegal circuit and used for financing a large range of criminal purposes.

4. The applicant was sentenced to a term of imprisonment of 72 months by both the District Court and the Amsterdam Court of Appeal and the Tribunal considers that this reflects the offending was very serious: cl 8.1.1(1)(c).

5. There is no direct evidence of the impact of the offending on victims, but the sentencing remarks record that drugs, and particularly heroin, pose a serious threat to public health because they cause great physical and mental dependence and directly or indirectly cause a significant proportion of crime: cl 8.1.1(1)(d).

6. This is the applicant’s only instance of offending (other than an apparent conviction for sodomy in Iran in 2009 which I discuss further below) and therefore there is no trend of increasing seriousness: cl 8.1.1(1)(e). Nor is there evidence of a cumulative effect of repeated offending: cl 8.1.1(1)(f).

7. The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence. The NOICC sent to the applicant dated 24 March 2022 alleges that the applicant failed to declare his criminal conviction in Iran in 2009 for engaging in illegal sexual relations with men in ten incoming passenger cards, as well as failing to declare his criminal conviction in the Netherlands in his incoming passenger card on 18 December 2021: cl 8.1.1(1)(g). However the delegate who cancelled the applicant’s visa noted that that such conduct is not criminalised in Australia and did not consider it relevant to the protection of the Australian community.

8. Before the Tribunal the respondent acknowledged that there was no official record confirming the applicant’s conviction of sodomy in Iran and that the IMR found that law was discriminatory by international standards and is not an offence in Australia. The respondent contended that the Tribunal should not take into account that charge when assessing the consideration of the protection of the Australian community and the applicant agreed with that contention. In these circumstances the Tribunal considers the applicant’s 2009 conviction for sodomy, and the applicant’s failure to report it in his incoming passenger cards, should be disregarded in the Tribunal’s assessment of the consideration of the protection of the Australian community.

9. The Tribunal notes that the applicant did not disclose his conviction in the Netherlands on the incoming passenger card he completed on 18 December 2021.[20] In written submissions dated 4 August 2025 it is submitted that this was a result of linguistic and cultural issues and the confusing nature of the obligation. In his affidavit made 27 August 2025, the applicant states that while in prison in Holland, he applied to serve his sentence in Australia and it is his recollection that in that process he provided the Australian authorities with full details of his conviction and sentence. He gave evidence that he believed the Australian authorities were aware of his conviction and that he did not need to disclose it again.

   [20] Hearing book [223]

10. I do not accept those explanations. I note the applicant’s oral evidence that he completed the incoming passenger card himself. Consistently with his evidence that he studied English at university and has doesn’t have much trouble reading it, the passenger card is completed in English. In each of the nine earlier passenger cards completed by the applicant between 2012 and 2017, he answered ‘no’ to the question asking him if he had any criminal convictions. In the passenger card dated 18 December 2021, he left that question unanswered despite having been recently released from prison. I consider the applicant deliberately failed to disclose his recent conviction in the Netherlands in the incoming passenger card completed on 18 December 2021.

11. It is not suggested in the materials that the applicant has reoffended after being warned about the consequences for his immigration status: cl 8.1.1(1)(h).

12. Notwithstanding that that drug trafficking is not one of the instances specifically listed in cl 8.1.1(1)(a), the Tribunal considers the applicant’s offending to be very serious offending, viewed very seriously by the Australian government and the Australian community.

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

13. 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:[21]

    (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). …

    [21] See also the Direction, cl 8.1(2)(b).

14. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[22] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[23]  There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[24]

    Nature of the harm

    [22] The Direction, cl 8.1.2(2)(a).

    [23] Ibid cl 8.1.2(2)(b).

    [24] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

15. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[25]

    [25] The Direction, cl 8.1.2(2)(a).

16. The nature of that harm is articulated clearly in the judgement of the Noor-Holland Court, which sets out not just the serious threat to public health caused by drugs of dependence such as heroin but also that the proceeds of the offending, estimated to be in the millions of euros, could have been used for the financing of a large range of criminal activities:

    Gravity of the offence

    . . .

    It is well known that drugs pose a serious threat to public health and that a significant proportion of crime is directly or indirectly caused by the use of drugs. Certainly when it comes to heroin, because the use of heroin causes great physical and mental dependence.

    Heroin trade thus constitutes a serious breach of the rule of law. With the proven actions, the accused contributed significantly to this trade. Moreover, this is a very serious fact because the street value of such a large amount of drugs can easily be estimated at several millions. If this transport had been successful, this large sum of money would have disappeared into the illegal circuit and could have been used for (the financing of) a large range of criminal purposes.

17. The applicant does not dispute the seriousness of the offending or the harms caused by drug trafficking, but submits it has been dealt with by the authorities in Holland; that he is genuinely remorseful for his offending and that the seriousness of his offending is not determinative of the outcome of the review and the applicant’s risk of reoffending is so low as to be tolerable.

18. The respondent submits that the harm that could be visited on members of the Australian community should the applicant resume his involvement in the supply of illicit drugs could range from serious to grievous physical, psychological and financial harm and that the Tribunal should also consider the harm borne by society more broadly from the scourge of drug trafficking and organised crime. The respondent submits that the seriousness of the applicant’s offending is such that any risk of reoffending is unacceptable (paragraph 8.1.2(1)).

19. It will be a very rare occasion in which the conduct is so serious that any risk of reoffending is unacceptable and the Tribunal does not consider that arises here. However the Tribunal considers the nature of that harm to individuals, or the Australian community should the applicant reoffend in the manner of his previous offending, is without doubt very serious. That harm includes serious physical, psychological and financial harm to individuals and their families as well as social and societal harm impacting on Australia’s public health and criminal justice systems.

    Likelihood of the non-citizen engaging in further criminal or serious conduct

20. As to the risk of reoffending and the factors set out in paragraph 8.1.2(2), there is a paucity of reliable evidence available to the Tribunal. The materials do not include any forensic or psychological assessments, nor are there sentencing remarks of the kind that would be available had the applicant been sentenced in an Australian court.

21. It is submitted on behalf of the applicant that the Tribunal should be satisfied that the risk that he might reoffend is extremely low, to the point that it is tolerable and not unacceptable. This is stated to be because he has fully complied with the law during his residence in Australia, including the period from 2010 to 2017 prior to his offending as well is the period from December 2021 to the present. This is said to be proof of his rehabilitation and that he is highly unlikely to reoffend. It is also submitted that he has insight into his offending, has expressed remorse for his conduct and has been deterred from future offending by his imprisonment. It is also submitted that the character references provided by his partner and sister, being the two people who know him best, should reassure the Tribunal as to his character and rehabilitation.

22. I am not satisfied that the applicant has been rehabilitated or that he has insight into or takes responsibility for his offending. While the Tribunal accepts that he participated in a number of vocational programs in prison, being ‘assisting foreman’, ‘foreman’, ‘textile worker’ and ‘general employee skills’ such programs cannot be described as rehabilitation programs. There is no evidence that the applicant has engaged in any formal rehabilitation programs or any psychological or other therapy related to his past offending or future risk of reoffending.

23. Nor is the Tribunal satisfied that the applicant has insight into or takes responsibility for his offending. In his personal circumstances form dated 16 May 2022, he referred to his offending by saying only that everyone was likely to make a mistake in life and he was not an exception. He gives no explanation of the circumstances of his offending in his affidavit, referring only to the charge of which he was convicted and the term of his imprisonment.

24. At hearing the applicant described his offending in a way that both minimised and trivialised his offending. He gave evidence that he travelled to the Netherlands for the purpose of tourism, that he borrowed money from a friend in Iran after losing his own money gambling at a casino a few days after arriving in Amsterdam and that in return his friend called him at his hotel and asked him to do him a favour by arranging the release of the items shipped into the Netherlands because of the applicant’s prior experience in importing carpets.

25. I do not accept the applicant’s evidence about the manner in which he came to be involved in the offending to be credible, noting that it is inconsistent with the findings of the District Court to the effect that the plan to import the machines containing heroin to the Netherlands was made five to six months prior their arrival and that the applicant was sent to the Netherlands in connection with the shipment. The District Court also found that the applicant went to Schipol twice in connection with the shipment and gave money to one of his co-defendants to pay the transport costs to the shipping company. It found he was present when the crates were opened and sought direct contact with his foreign contact about the contents of the crate. The Court concluded that ‘it is inevitable that the accused knew that there was an import of narcotic drugs and that he had to collect the cargo in the Netherlands and arrange for further transport’.[26]

    [26] Judgment of the Noor-Holland District Court at Hearing Book [148]

26. When cross-examined about the findings of the Noor-Holland District Court the applicant stated that he accepted he committed the crime, but he did not agree with all of the findings of the court.

27. I have considered the evidence of the applicant’s sister Ms [AA] and partner Ms [BB] as to their views of his risk of reoffending. As noted by the respondent, both are persons in close personal relationships with the applicant and it is not suggested that either have any qualifications relevant to forensic risk assessment. However it is of significantly more concern to the Tribunal that neither appear to be aware of the circumstances of the applicant’s offending in the Netherlands.

28. In a written statement provided to the Tribunal, the applicant’s partner speaks of being drawn into the applicant’s honesty, saying he openly shared with her his past difficulties and their relationship is based entirely on transparency and trust. She states that his character is based on honesty, integrity, compassion, and respect for the law she is aware that he has a past conviction that has affected his visa status, describing it as an unfortunate and isolated incident that does not reflect his true character. She states that she has never seen anything suspicious or improper in his behaviour and she is confident that he is not a criminal by nature.

29. However in her evidence at hearing it became apparent that her knowledge of the applicant’s offending can only be described as partial, telling the Tribunal that he had told her he went to jail because some people set him up and created a situation in which he was accused of drug smuggling and could not prove himself innocent.

30. Similarly the applicant’s sister makes only a broad reference to the applicant’s past criminal conduct in her written statement, stating that she would trust him with her children and believes he poses no harm to society and has become a truly reformed man. In her evidence to the Tribunal, she stated that she was aware that the applicant had been convicted of an offence in Holland because she had heard about it from the family, but she didn’t know much and couldn’t believe what she had heard. When asked what she had heard, she said that she had heard that a friend of the applicant had created a situation and got the applicant in trouble and because of that he went to prison.

31. While I accept that the views of the applicant’s partner and sister about his risk of reoffending may be genuinely held, those views do not appear to be informed by any real understanding of the crime for which the applicant was convicted and I give them little weight.

32. The applicant states in his affidavit that he fully understands and acknowledges that heroin trafficking or any form of drug trafficking is an extremely serious offence that can cause devastating social harms.[27] He recognises his conduct was completely wrong; he is extremely sorry that he ever engaged in drug trafficking and he has resolved that he will never be involved with illegal drugs again in any way and wishes to the rest of his days peacefully away from any form of crime.[28] When asked about his expression of remorse and contrition at the hearing, the applicant stated that he became aware of the dangers of drugs while in prison and he now considered that business to be dirty and wrong and he apologises for participating in such an act.

    [27] Applicant's affidavit at paragraph 10

    [28] Applicant's affidavit at paragraph 11 - 13

33. However in circumstances where I do not accept the applicant’s evidence to the Tribunal about the circumstances of his offending and where he has not at any point provided a credible explanation as to how or why he travelled to Amsterdam and committed such a serious offence, I give little weight to his statements of remorse and contrition.

34. I have considered the report of the Australian Institute of Criminology to which I have been referred by the applicant. That report was published in 2007 and contains analysis of recidivism rates and the personal, developmental or situational characteristics that give rise to reoffending. I accept in general terms the statements in that report to the effect that the probability of recidivism declines with age and that rates of recidivism vary according to the type of offending. I accept that some studies have found that the more times an offender has been arrested, the more likely it is that they will be arrested on further occasions. I further accept that there is an increased risk rate of recidivism associated with factors including unemployment, lower educational attainment, residence in low socio-economic areas, limited family support, mental health problems and drug use.[29]

    [29] Payne, J Recividism in Australia: Findings and Future Research Australian Institute of Criminology 2007

1. I have considered the submission that the applicant’s mature age (57), employment and educational history, secure housing, family support and lack of significant mental health problems or drug use mean that the Tribunal should accept that he is at extremely low risk of reoffending. I note however that his offending occurred when he was aged 49, notwithstanding his employment and educational history, and that immediately prior to that offending he was living with his sister and her family in Adelaide. Despite these factors he travelled to Amsterdam and committed a very serious crime.

2. In assessing the applicant’s risk of re-offending I consider it relevant that he has not been charged or convicted of any further offences since his return to Australia in December 2021. He appears to be in a stable relationship with his partner of one year and he has maintained fairly consistent employment since his return to Australia in 2021. I accept that his experience of being imprisoned for his past offending, with the loss of freedom that entailed, may also act as a deterrent from further offending. I  have noted the applicant’s evidence about his past financial support for his sons in Iran who are now both adults, but I don’t consider this to be relevant to the applicant’s risk of re-offending.

3. In view of all the matters cited above, I find that there is a low, but not insignificant, likelihood the applicant will reoffend, and that the risk to the community if he offends in the manner of his past offending is very serious.

   Conclusion on the protection of the Australian community

4. Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the applicant commit further offences or other serious conduct, I weigh this primary consideration strongly in favour of exercising the discretion to cancel the visa.

   Family violence committed by the non-citizen

5. 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.

6. The Direction states that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.[30]

   [30] The Direction, cl 8.2(1).

7. There is no evidence that the applicant has committed any family violence and this factor is not relevant to my decision. I give this consideration no weight for or against exercising the discretion to cancel the visa.

   The strength, nature and duration of ties to Australia

8. 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.

   Immediate family

9. The applicant has resided in Australia since 2010, having travelled to Australia from Iran at the age 42. The applicant’s immediate family members who are Australian citizens, Australian permanent residents or people who have a right to remain Australia indefinitely are his partner Ms [BB], his sister Ms [AA] and Ms [AA]’s husband and two daughters. Both Ms [AA] and Ms [BB] provided letters of support and gave oral evidence to the Tribunal.

   (i)        The applicant’s partner Ms [BB]

10. The Tribunal accepts that the applicant and Ms [BB] have been in a relationship for just over a year since meeting online in June 2024. Ms [BB] is a New Zealand citizen who has been resident in Australia since 2022. The Tribunal accepts that they live together, combine their finances and that the relationship is important to Ms [BB]. The Tribunal further accepts that Ms [BB]’s 16-year-old son and 25-year-old daughter who are resident in New Zealand visit their mother at holiday times and have a good relationship with the applicant.

11. The Tribunal accepts that Ms [BB] undertakes important work as a nurse in aged care and that her relationship with the applicant assists her to maintain balance and well-being. The Tribunal accepts that the stress of the applicant’s visa cancellation and the prospect that he may not be allowed to remain in Australia is distressing to Ms [BB], who fears she will not re-partner again and she will not be as efficient and productive in her work. The Tribunal accepts that Ms [BB] would be significantly impacted by any decision to cancel his visa.

    (ii)       The applicant’s sister Ms [AA]

12. Ms [AA] gave evidence that she arrived in Australia in 2006 and both of her daughters, now aged 12 and 17, were born in Australia. The applicant lived with Ms [AA] and her family from approximately 2013 up until his travel to Amsterdam in 2017 and he is the only family member she has in Australia other than her husband and their daughters. Although they have not seen each other in person since 2017, she described herself as very dependent on the applicant because they are alone in Australia and states he is a big support to herself and her children. She said that he had always supported herself and their sisters to have a voice in society, that he is educated and that he has been a very sincere friend and guide to herself and her family.

13. The Tribunal accepts that Ms [AA] has a close relationship with the applicant, particularly as they are the only members of their family in Australia. The Tribunal accepts that the prospect of his visa cancellation and removal from Australia is very distressing to Ms [AA] and she would be significantly impacted by any decision to cancel his visa.

    (ii)       Other family members in Australia

14. The applicant’s other family members in Australia comprise the family of his sister Ms [AA], being her husband and two daughters. None of those persons have given evidence to the Tribunal, although the Tribunal has heard evidence from the applicant and Ms [AA] as to the applicant’s relationship with her two daughters which is discussed later in these reasons. The Tribunal accepts that the cancellation of the applicant’s visa would have an adverse impact on Ms [AA]’s family members.

    Other ties to the community

15. Outside of the applicant’s family, there is no evidence before the Tribunal as to the applicant’s social links the Australian community more broadly, despite his residence in the Australian community for more than 10 years. The Tribunal accepts that the applicant’s offending took place seven years after his arrival in Australia and did not commence soon after his arrival. The Tribunal further accepts that for most if not all of the period of his residence in Australia he has made some positive contribution to the community through his employment.

16. Overall the Tribunal finds that the applicant has strong ties to his partner, sister and his sister’s family and lesser ties to the community. I give this consideration moderate weight against exercising the discretion to cancel his visa. 

    Best interests of minor children in Australia affected by the decision

17. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.

18. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[31]

    ·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

    ·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;

    ·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;

    ·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;

    ·whether there are other persons who already fulfil a parental role in relation to the child;

    ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

    ·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

    [31] The Direction, cl 8.4(4)(a)-(h).

19. The minor children who will be affected by any decision to exercise the discretion to cancel the applicant’s resident return visa are the two daughters of his sister Ms [AA]. In her letter of support, Ms [AA] stated that her daughters were 15 and 9 years of age, but in her oral evidence she stated that was an error and they are in fact 17 and 12 years of age. Her oldest daughter will turn 18 in December 2025, approximately three months after the Tribunal’s decision.

20. I accept the evidence of the applicant and Ms [AA] to the effect that the applicant had a close relationship with his nieces when they were very young because he lived with Ms [AA] and her family from 2013 up until his travel to Amsterdam in 2017. The applicant gave evidence that he hasn’t seen his nieces in person since his departure from Australia eight years ago, but that maintain their relationship through phone and video calls.

21. I accept that during the period the applicant lived with his sister he was involved in his nieces’ daily care while their parents were working and studying, noting that the younger child was born during the period the applicant lived with the family and elder child would have been of primary school age for most of that period. I accept that the applicant assisted his sister and her husband in the daily care of the children and that the family socialised together regularly. I accept that this would have created a strong bond between the applicant and his nieces, reinforced by the family’s isolation from their wider family in Iran.

22. I find that it is in the best interests of the applicant’s nieces that the applicant’s resident return visa not be cancelled.  I note however that they have not seen each other in person since the applicant departed Australia for the Netherlands in 2017, that the children live with both of their parents and that the eldest child will turn 18 in three months. I give this consideration some weight against exercising the discretion to cancel the visa. 

    Expectations of the Australian Community

23. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

24. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[32]  The visa referred to in paragraph 8.5(2) is the visa being considered for refusal or cancellation.[33]

    [32] The Direction, cl 8.5(2).

    [33] Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 [27]

25. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

26. This consideration will weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Australian courts have held that decision-makers should proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.[34]

    [34] Direction No 110, pt 2, para 8.5(4) and FYBR v MHA [2019] FCAFC 185 at [103]; Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36.

27. I proceed on the basis that the Australian community expects that as the applicant has engaged in very serious criminal offending, and is at a low but not insignificant risk of reoffending, the Australian community, as a norm, expects the government would not allow him to enter or remain in Australia.

28. In applying these principles, I weigh this consideration strongly in favour of exercising the discretion to cancel the visa.

    Other considerations

29. 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;

    d)impact on Australian business interests.

    Legal consequences of decision under section 501(2)

30. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[35] Non-refoulement obligations are engaged where a protection finding (as defined in s 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application.[36]

    [35] Ibid cl 9.1.

    [36] Paragraph 9.1.1(1)

31. There is no dispute that the applicant is the subject of a protection finding within the meaning of s 197C(5) of the Act, made by an Independent Merits Reviewer on 13 February 2012 in the course of the assessment of his protection visa application. As a result he cannot be removed to his home country of Iran and any decision by the Tribunal to cancel the resident return visa will not result in his removal to Iran in breach of Australia’s non-refoulement obligations.[37] 

    [37] s 197C(3)

32. Nor is it in dispute that if the Tribunal exercises its discretion to cancel the applicant’s visa, there will be significant restrictions on the applicant’s ability to apply for another visa. The respondent contends that it remains open to the applicant to apply for another protection visa which will allow him to remain permanently in Australia if granted.[38] The applicant has given evidence that he will apply for that visa if he is unsuccessful in these proceedings, but contends that it is extremely unlikely to be granted to him because he will not pass the character test.

    [38] Respondent’s Statement of Facts, Issues and Contentions [67]

33. The applicant is not statute barred from applying for a further protection visa by s 46A (as his previous protection visa was not refused or cancelled) or s 46A (as he did not become an unlawful non-citizen in the circumstances set out in s 5AA(1)(b) and is therefore not an unauthorised maritime arrival). While the statutory bar contained in s 501E operates to prevent a non-citizen whose visa has been cancelled or refused on character grounds from making an application for most visa types, it does not operate to prevent a person from making an application for a protection visa or a Bridging R (Class WR) visa (the BVR).[39]

    [39] S 501E(2) and reg 2.12AA

34. I do not presume any particular outcome of the consideration of that visa application, but it is clear that the applicant will not pass the character test and it cannot be assumed that any future decision maker will exercise their discretion to grant him the protection visa. The respondent accepts that if the applicant makes an application for a protection visa that is refused, the only other visa that the applicant could potentially apply for is a BVR, for which he could only apply in response to an invitation.[40]

    [40] Respondent’s Statement of Facts, Issues and Contentions [67]

35. The ‘legal consequences’ to which the Tribunal must have regard are the ‘direct and immediate statutorily prescribed consequences’:

    The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation.[41]

    [41] Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] See also NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [9]-[10] (Allsop CJ and Katzmann J), [177]-[178]

36. For reasons discussed further below, the applicant contends that the legal consequences of any decision to cancel the applicant’s resident return visa would be his involuntary and permanent re-settlement on Nauru and that this should weigh as an extremely compelling consideration against any decision by the Tribunal to uphold the delegate’s visa cancellation decision.

37. The respondent contends that the Tribunal should take a far narrower approach as to the legal consequences of the decision, being that the likely and immediate legal consequence of a decision by the Tribunal to cancel the applicant’s visa is that he will remain in the community as an unlawful non-citizen until he is detained under s 189(1), or until he is granted another visa. The Minister submits that detention would be authorised pursuant to s 196 of the Act, although it would cease to be authorised once the duty to remove the applicant pursuant to s 198 became enlivened because the applicant’s removal to Iran is not required nor authorised under the Act and there would be no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future.[42]

    [42] Respondent’s Note as to Legal Consequences of Decision [4]; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

1. The respondent accepts the Tribunal should have regard to the possibility of the applicant residing in the community as the holder of a BVR, but does not accept that possibility to be an immediate legal consequence of a decision by the Tribunal to exercise its discretion to cancel the visa.

2. Shortly before the Tribunal hearing, the High Court of Australia handed down its decision in Plaintiff S22/2025.[43] In circumstances where the Court was satisfied that the delegate knew that the grant of a BVR to the plaintiff was being considered, it held that there was no obligation upon the delegate to make express reference to the consequences of the grant of that BVR (however probable), including the imposition of mandatory monitoring conditions. This was because:

   . . . the process by which it would be decided if the plaintiff would be granted [the BVR] regulating his residing in the community and, if so, the conditions to be imposed on that visa would be the subject of separate consideration (and, by implication, a separate decision) from the decision the delegate was making not to revoke the cancellation of the plaintiff’s TPV.[44]

   [43] Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 [18]

   [44] Ibid [14], [19]

3. The High Court noted the ‘binary’ consequences of the delegate’s refusal to revoke the mandatory visa cancellation in that case:

   . . . being that, for as long as there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future, the plaintiff could not be detained in immigration detention and therefore would be in the Australian community either under the BVR or not.[45]

   [45] Ibid [19]

4. The consequences that arise in the current review are similar to those considered in Plaintiff S22, with the exception that the applicant in the current review can apply for another protection visa. Whether or not he is ultimately granted a protection visa or a BVR, for as long as there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, he cannot be detained in immigration detention and therefore he will be in the Australian community either as the holder of a visa or not.

5. I note the concerns raised by the applicant about his potential removal to Nauru and I accept them to be genuinely held. The respondent acknowledged in oral submissions to the Tribunal that issues surrounding the potential resettlement of persons such as the applicant to Nauru are not fanciful or trivial or otherwise matters the Tribunal is prohibited from considering. While the respondent indicated that it did not submit that the Tribunal should not take these issues into account in its decision, it submitted that any consideration should occur under ‘other considerations’ rather than as a legal consequence of the decision under review. I consider that any removal of the applicant to Nauru, should it occur, would not be a direct and immediate statutorily prescribed consequence of the Tribunal’s decision and I address these issues further below.

6. In view of the above, the Tribunal considers that if it exercises its discretion not to cancel the applicant’s resident return visa, the direct and immediate legal consequence is that the applicant will once again be the holder of a permanent visa to remain in Australia.

7. If the Tribunal exercises its discretion to cancel the applicant’s resident return visa, the direct and immediate legal consequence will be that for as long as there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, he cannot be detained in immigration detention and he will therefore be in the Australian community either as the holder of visa or as an unlawful non-citizen. It is a direct and immediate consequence of any decision by the Tribunal to exercise its discretion to cancel the applicant’s resident return visa that the only other visas for which for which the applicant will be eligible to apply are a protection visa and a BVR.

8. I give this consideration some weight against exercising the discretion to cancel the applicant’s visa.

   Other considerations – potential removal to Nauru

9. Ten days prior to the hearing in this matter, the respondent issued a media release announcing that he had met with the President of Nauru and the Nauruan Parliament and signed a Memorandum of Understanding to allow persons who have no legal right to stay in Australia to be granted long-term visas by Nauru. That arrangement is stated to allow for the continued management of the NZYQ cohort.[46] It is not in dispute that the applicant is part of the NZYQ cohort, being persons who have had their visas refused or cancelled on character grounds but who cannot be removed from Australia to their home country because they have a protection finding.

   [46] Statement on Nauru MOU

10. On 26 August 2025 the respondent introduced into the Australian Parliament the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025. The Explanatory Memorandum records that the Bill amends the Migration Act to provide, among other things, that the rules of natural justice do not apply to an exercise of executive power of the Commonwealth to enter into a third country reception arrangement with a foreign country or the giving of removal pathway directions under section 199C of the Act. That Bill became law on 5 September 2025.

11. The respondent made no mention of the above matters in the respondent’s Statement of Issues, Facts or Contentions, or in the Respondent’s Note as to the Legal Consequences of the Decision filed with the Tribunal on the same day as the Minister’s press release.

12. On 1 September 2025, the Tribunal brought those matters to the attention of the parties, noting also the (then) upcoming judgment of the High Court of Australia in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs on Wednesday 3 September 2025 which it considered may be relevant to the issues in the review. The applicant filed further contentions concerning the legal consequences of the visa cancellation prior to hearing. The respondent did not file any further contentions or submissions, or otherwise respond to the Tribunal’s communication.

13. At the commencement of the hearing on 8 September 2025, I noted that the Tribunal considered that the issues raised in the Tribunal’s email may be relevant to the review, potentially as a legal consequence of the Tribunal’s decision or under ‘other considerations’, to which the Tribunal may have regard.[47]

    [47] cl 9(1)

14. The applicant contends that the combined effect of Migration Amendment (Removal and Other Measures) Bill 2024, the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill and the Memorandum of Understanding entered into between the Commonwealth and Nauru is to provide a framework for the permanent removal of non-citizens in the NZYQ cohort to the island of Nauru for permanent resettlement. The applicant contends that the likelihood that he would be involuntarily and permanently re-settled on Nauru is an extremely compelling consideration against any decision by the Tribunal to uphold the delegate’s visa cancellation decision.

15. As noted above, the respondent acknowledged in oral submissions to the Tribunal that issues surrounding the potential resettlement of persons such as the applicant to Nauru are not fanciful or trivial or otherwise matters the Tribunal is prohibited from considering. Rather the respondent contended that any consideration of the applicant’s potential removal to Nauru relied on assumptions about what the status quo would be with respect to Nauru at some unknown time in the future and such matters were so unknowable and so remote as to be unhelpful to the Tribunal’s decision-making process.

16. There is no dispute that if the applicant is not granted a protection visa, the only other visa for which the applicant is eligible to apply is a BVR, for which he could only apply in response to an invitation.[48] If the applicant is granted a BVR, he will be a ‘removal pathway non-citizen’ as defined in s 5(1) of the Act.

    [48] Ibid

17. A removal pathway non-citizen for whom a protection finding has been made may be given a removal pathway direction by the Minister and may commit the offence of refusing or failing to comply with the direction.[49] An officer of the Department may apply for a non‑citizen to be granted permission to enter and remain in a country that is a party to a third country reception arrangement with Australia and the rules of natural justice do not apply to that action.[50]

    [49] Ss 199B,199E

    [50] s 198AHAA

18. Pursuant to s 76AAA, any BVR granted to the applicant will cease if he is given permission to enter and remain in a foreign country party to a third country reception arrangement such as the arrangement recently reached between Australia and Nauru. Once the BVR ceases, the applicant will again be liable to be detained pursuant to s 189, that detention being constitutionally permissible for the legitimate and non-punitive purpose of his removal from Australia.[51]

    [51] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005

19. The Tribunal accepts that the applicant’s removal to Nauru is not assured. It depends on Nauru being willing to receive the applicant; and the Minister deciding to exercise his powers in the manner envisaged in the legislation. However the Tribunal does not consider the potential for the applicant to be removed to Nauru under the recently signed MOU to be either speculative or remote.

20. The applicant contends that the impediments he would encounter were he to be forcibly re-settled to Nauru would include, among other things:

    ·The lack of access to employment opportunities to support himself;

    ·Unknown access to the basic necessities of life, such as food, shelter and safe drinking water;

    ·Unknown access to health care of a standard available in Australia;

    ·Psychological trauma attendant upon permanent separation from his Australian-resident partner and his family members (sister and nieces) who are resident in Australia;

    ·Unknown access to mental health care;

    ·Effective permanent loss of freedom by virtue of being permanently confined to a tiny island in the middle of the ocean.

21. At hearing the applicant asked the Tribunal to have regard to country information cited in an earlier decision of this Tribunal about conditions on Nauru, but the respondent objected on the basis that the Tribunal was prohibited from considering that information under the two-day rule and I consider that is correct.[52]

    [52] Under s 500 (6H) and s 500(6J) of the Migration Act the Tribunal must not have regard to any information or documents presented in support of the Applicant’s case unless the information was provided to the Minister at least 2 business days before the Tribunal holds a hearing.

22. The respondent did not seek to introduce any evidence concerning the potential impediments identified by the applicant, nor provide any information about the terms of the agreement between Australia and Nauru or the proposed timing of any removals under the MOU. Rather the respondent contends that the Tribunal’s decision is so far removed from any situation that is conceivably likely that looking at it at the present time is entirely unhelpful to the Tribunal’s enquiries.

23. I do not accept that contention, noting that an MOU has been entered into between the governments of Australia and Nauru to allow for the continued management of the NZYQ cohort and amendments made to the Act to facilitate removals pursuant to that MOU.

24. I consider that the likely effect on the applicant of the exercise of the statutory power to apply for a Nauruan visa is a relevant consideration to which this Tribunal should have regard. In circumstances where the respondent has put no evidence before the Tribunal as to any arrangements that may have been made for persons removed to Nauru to access healthcare, accommodation or employment, I give this factor moderate weight against exercising the discretion to cancel the visa.

    Extent of impediments if removed

25. Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses  9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:

    • The Applicant’s age and health;
    • Whether there are substantial language or cultural barriers; and
    • Any social, medical and/or economic support available to the Applicant in their country.

26. In this case the applicant is a 57-year-old male who has a history of anxiety and depression.[53] He lived in Iran until his early forties and states in his affidavit that his first languages are Kurdish and Farsi. His former wife and two sons now aged 20 and 27 are in Iran as are his mother, one sister and four brothers. The respondent acknowledges he is likely to face significant impediments if returned to Iran, for the reasons cited in the decision of the Independent Merits Reviewer.

    [53] Hearing Book [49]

27. However the applicant is the subject of a protection finding in respect of Iran and cannot be returned to that country. Clause 9.2 of the Direction does not extend to considering any impediments the applicant may face if removed to a country other than their home country. In circumstances where there is no real prospect of applicant’s removal to Iran in the reasonably foreseeable future, I give this consideration no weight for or against exercising the discretion to cancel the visa.

    Impact on Australian business interests

28. Clause 9.3 of the Direction states:

    (1)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.

29. I note that the evidence before the Tribunal indicates that the applicant has been consistently employed in a variety of roles during his residence in Australia. Neither party suggests that his employment is such that a decision to cancel the visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia. I give this consideration no weight for or against exercising the discretion to cancel the visa.

    CONCLUSION

30. The applicant does not pass the character test under s 501 of the Act, and I must consider whether to exercise the discretion to cancel the Resident Return visa under s 501(2) of the Act, having regard to the primary and other considerations in the Direction.

31. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.

32. The Full Court of the Federal Court has stated that ‘[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.’[54]

    [54] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [23].

33. In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.

34. 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 Federal Court held that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[55] 

    [55] Ibid [27].

35. In the circumstances of this case, I do not consider there to be any reason why the general approach should not be adopted. I have therefore given greater weight to the protection of the Australian community, and to the primary considerations.

36. For the reasons set out earlier, in view of my finding that there is a low, but not insignificant, likelihood the applicant will reoffend, and that the risk to the community if he offends in the manner of his past offending is very serious, I have weighed the primary considerations of the protection of the Australian community and the expectations of the Australian community strongly in favour of exercising the discretion to cancel the visa. I accept the submission of the applicant to the effect that the protection of the Australian community and the expectations of the Australian community should not on their own be treated as determinative in the review, and I have not treated them as such. Rather I have weighed them against all other relevant considerations as follows.

37. In relation to the other primary considerations, I have found that the applicant has been resident in Australia for more than ten years and has strong ties to Ms [BB] and Ms [AA] and her family and lesser ties to the community. I have weighed the strength, nature and duration of the applicant’s ties to Australia moderately against exercising the discretion to cancel the visa. I have given some weight against exercising the discretion to cancel the visa to the best interests of the minor children, being his nieces aged 12 and 17.

38. In relation to the secondary criteria, I have found that the legal consequences of the decision include that the applicant has very limited options to apply for another visa and I have given this consideration some weight against exercising the discretion to cancel the visa. For the reasons I have set out above I consider that the likely effect on the applicant of the exercise of the statutory power to apply for a Nauruan visa is a relevant consideration to which this Tribunal should have regard and as there is no evidence as to any arrangements that may have been made for persons removed to Nauru to access healthcare, accommodation or employment, I have given this factor moderate weight against exercising the discretion to cancel the visa.

39. I have determined that the considerations of family violence, the extent of impediments if removed and the impact on Australian business interests are not relevant to my decision and I have given them no weight for or against exercising the discretion to cancel the visa.

40. Overall I consider that the weight that should be attached to the protection of the Australian community and the expectations of the Australian community, outweighs the applicant’s ties to Australia, the best interests of minor children, the legal consequences of the decision and the other considerations referred to above.

41. I have therefore affirmed the decision to exercise the discretion to cancel the applicant’s resident return visa.

    DECISION

42. The Tribunal affirms the decision under review.