Palelei and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1758

Palelei and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1758 (9 September 2025)
Applicant/s:  Tuaefe Palelei
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4179
Tribunal:Senior Member Lyford
Place:Perth
Date:9 September 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 09 September 2025 at 3:19pm
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction 110 – primary and other considerations – protection of Australian community – nature and seriousness of the conduct – sold/supplied trafficable quantity of methylamphetamine – declared a ‘drug trafficker’ – risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – family violence by the non-citizen – strength, nature and duration of ties to Australia – impact of decision on non-citizens immediate family members is Australia – other ties non-citizen has to the Australian community – best interests of minor children – legal consequences of the decision – expectations of the Australian community – extent of impediments if non-citizen removed to New Zealand – impact on Australian business interests – Non-revocation Decision is affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 15AB
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth) – s 499(2A) – s 501 – s 501(3A) – s 501(6) – s 501(7) – s 501CA – s 501CA(3) - s 501CA(4)
Migration Regulations 1994 (Cth) – reg 2.52(2) - reg 2.55(3) – reg 2.55(5)
Misuse of Drugs Act 1981 (WA) – s 32A
CASES
Au v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 125
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 608
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Dalzell and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 17
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gage and Minister for Home Affairs [2020] AATA 326
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Minister for Home Affairs v G (2019) 266 FCR 569
Minister for Immigration Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594
Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53
Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Siale v Minister for Immigration and Citizenship [2025] FCA 608
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, commencing 21 June 2024
align="left"> align="center">Statement of Reasons
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent, the Minister for Immigration and Citizenship (Minister), dated 17 June 2025, not to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa (Visa), pursuant to s 501CA(4) of the Migration Act 1958 (Migration Act). This decision was made on the basis that the Minister was not satisfied that the Applicant passed the ‘character test’ or that there was ‘another reason’ why the mandatory cancellation of the Applicant’s Visa should be revoked.
For the following reasons, the Tribunal affirms the decision under review.[1]
BACKGROUND
[1] The Hearing Book, lodged with the Tribunal on behalf of the Respondent (comprising 734 pages), was marked as ‘Exhibit 2’ at the hearing of this application on 27 August 2025 (HB).
The Applicant is a 38-year-old New Zealand citizen (born 4 January 1987): Exhibit 2 at p 39. The Applicant was born in New Zealand to Tongan parents. He lived in Tonga until the age of 10, when he and his brothers went to live with their grandparents in New Zealand to attend school.
The Applicant has entered and departed Australia on 10 occasions between June 2002 and May 2015: Exhibit 2 at pp 128–129. Since January 2010 (aged 23 years), the Applicant has resided primarily in Australia, with periods of between one and three weeks spent in New Zealand.
The Applicant last entered Australia on 25 May 2015, when he was granted the visa the subject of the cancellation decision: Exhibit 2 at p 132. He has not departed Australia since that date.
A table setting out the Applicant’s complete criminal offending history is attached at ‘Annexure A’ (Annexure A). The Applicant has convictions recorded from 2015 for a range of offences which include:
·     driving offences;
·     assault occasioning bodily harm;
·     possession of a prohibited weapon;
·     unlicensed possession of firearms/ammunition;
·     possession of stolen or unlawfully obtained property (i.e. cash); and
·     sale or supply and trafficking of methylamphetamine: Annexure A.
On 2 September 2015, the Applicant was convicted of possession of a prohibited drug with intent to sell or supply (Methylamphetamine) and sentenced to 2 years and 6 months’ imprisonment: Exhibit 2 at pp 59–63.
On 12 May 2016, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act: Exhibit 2 at pp 604–606.
On 16 May 2016, the Applicant applied for reinstatement of his visa: Exhibit 2 at pp 607–632. The Applicant provided the Department with a number of statements and documents in support of his application for reinstatement, including submissions by his then lawyer and migration agent, Alisdair Putt of Putt Legal, stating:
·     The Applicant has made ‘substantial efforts’ to address his offending through his completion of a number of intervention courses whilst in prison, including ‘Narcotics Anonymous’, ‘Think First’, ‘Life Skill’ and ‘Alternative Violence Program’. Through the completion of these courses, the Applicant has evidenced a ‘desire to better himself, address his offending behaviour, and re-integrate into and contribute to society’;
·     The Applicant is remorseful for and has insight into the effect of his offending and he was at a ‘very low risk of reoffending’;
·     The Applicant has had time to contemplate his actions and the impact they have had on members of the community and his own family and he is unwilling and unlikely to take any action which might alienate him from his family;
·     The Applicant’s risk of reoffending is reduced by his successful participation in a number of courses aimed at reducing offending behaviour and addressing underlying causes; and
·     The Applicant is ‘now conscious that his entire family’s future depends on him not getting any further criminal convictions whilst in Australia as it would inevitably lead to his permanent removal from this country’: Exhibit 2 at p 658.
On 14 November 2016, the Minister decided to revoke the mandatory cancellation of the Applicant’s visa: Exhibit 2 at pp 683–686. The Applicant was notified of this decision on 14 November 2016, which notification contained the following mandatory ‘warning’:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you: Exhibit 2 at p 689.
In January 2019, the Applicant committed the following three drug related offences which all resulted in convictions and sentences, on 2 December 2022:
(a)Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine (committed on 16 January 2019), for which the Applicant was sentenced to 5 years’ imprisonment, and declared a ‘drug trafficker’;
(b)Sold a prohibited drug namely Methylamphetamine (committed on 25 January 2019), for which the Applicant was sentenced to 4 years concurrent imprisonment, and declared a ‘drug trafficker’; and
(c)Sold a prohibited drug namely Methylamphetamine (committed on 31 January 2019), for which he was sentenced to 4 years concurrent imprisonment, and declared a drug trafficker: Exhibit 2 at pp 40, 42–46 and 513–519.
On 17 August 2023, the Applicant was convicted of a further two offences for crimes committed while on bail (Exhibit 2 at p 485), and sentenced as follows:
(a)Brought into, or whilst in West Australia received, possessed, concealed, disposed of or dealt with any money or property; sentenced to 12 months concurrent imprisonment; and
(b)Possession of stolen or unlawfully obtained property; sentenced to 12 months concurrent imprisonment: Exhibit 2 at p 40.
The Applicant is currently completing his sentence in Casuarina Prison. His earliest release date is 7 September 2027: Exhibit 2 at p 296.
On 26 September 2024, the Applicant’s Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act, on account of him having been sentenced to a period of imprisonment of 12 months or more (Visa Cancellation Decision): Exhibit 2 at pp 136–142.
On 18 October 2024, the Applicant requested revocation of the Visa Cancellation Decision: Exhibit 2 at pp 69–76.
On 17 June 2025, a delegate of the Minister refused to revoke the Visa Cancellation Decision (Non-revocation Decision): Exhibit 2 at p 23.
On 27 June 2025, the Applicant applied to the Tribunal for review of the Non-revocation Decision in this Tribunal: Exhibit 2 at pp 5–19.
ISSUES
The issues for consideration by the Tribunal are:
(i)whether the Applicant passes the ‘character test,’ as defined in s 501(6) of the Migration Act; and if not,
(ii)whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked under s 501CA(4) of the Migration Act, having regard to the considerations prescribed by Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).
LEGISLATIVE FRAMEWORK
Revocation of decision to cancel visa
Section 501CA of the Migration Act relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
‘Character test’
The ‘character test’ is defined in s 501(6) of the Migration Act. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’: s 501(6)(a) of the Migration Act.
The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act.
Pursuant to s 501(3A)(a)(i) and (b) of the Migration Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the ‘character test’, because they have a ‘substantial criminal record’, as defined in s 501(7)(c) of the Migration Act, and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or a Territory. That is, failure of the ‘character test,’ in s 501(6) of the Migration Act, arises as a matter of law.[2]
[2] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Power to revoke original decision
When a visa is mandatorily cancelled under s 501(3A) of the Migration Act, the Minister must:
(a)give the person concerned written notice of the decision which sets out the original decision: s 501CA(3)(a)(i) of the Migration Act;
(b)give the person concerned particulars of the relevant information: s 501CA(3)(a)(ii) of the Migration Act; and
(c)invite the person to make representations to the Minister regarding the revocation of the original decision: s 501CA(3)(b) of the Migration Act.
Under s 501CA(4) of the Migration Act, the Minister may revoke the original (visa cancellation) decision if:
(a)representations have been made by the applicant in accordance with an invitation to make such representations about revocation of the cancellation: s 501CA(4)(a) of the Act; and
(b)the Minister is satisfied that:
(i)the person passes the ‘character test’ in s 501(6) of the Migration Act: s 501CA(4)(b)(i) of the Migration Act; or, if not,
(ii)there is ‘another reason’ why the original decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.
A decision under s 501CA(4) of the Migration Act (i.e. to revoke the original decision) involves an assessment and evaluation of the factors for and against revoking the original decision.[3]
[3] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338.
The Tribunal is required to undertake a ‘weighing and balancing’ exercise, weighing up the relevant considerations in Direction 110 and the applicant’s representations against one another to come to the correct or preferable decision.[4]
[4] Administrative Review Tribunal Act 2024 (ART Act), s 56(1)(a); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) at 636; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]; CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35].
The Tribunal (decision-maker) must then ask itself whether it is satisfied that there is ‘another reason’ to revoke the visa cancellation.[5] In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [22], the High Court described
[5] Au v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 125 at [21]–[26].
[6] See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13]–[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594 at [6].
s 501CA(4) of the Migration Act as conferring ‘a wide discretionary power’ to revoke the mandatory cancellation if the decision-maker (here, the Tribunal on review of a delegate’s decision) is satisfied there is ‘another reason’ why the cancellation should be revoked. In Plaintiff M1/2021, the majority held (at [22]) that the assessment of whether there is, in fact, ‘another reason’ is to be undertaken by reference to the representations made by the Applicant.[6]
Direction 110
A decision under s 501CA(4) of the Migration Act, whether there is ‘another reason’ to revoke the mandatory cancellation of a visa, must be made in accordance with any written directions under the Migration Act: s 499(2A) of the Migration Act. Relevantly, the Tribunal (decision-maker) must comply with Direction 110 in considering a request for revocation of a mandatory cancellation of a visa under s 501(3A) of the Migration Act, providing a legislative constraint on the Tribunal’s process of reasoning.[7] However, as stated by the Full Court in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 at [23] and [81], the principles enunciated by Brennan J in Drake (No 2), and subsequent cases concerning the Tribunal’s ability to depart from governmental policy, remain applicable.[8]
[7] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [33].
[8] See Minister for Home Affairs v G (2019) 266 FCR 569; Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82 at [27].
Principles
The eight ‘Principles’ listed in paragraph 5.2 of Direction 110 provide the framework within which decision-makers should approach their task of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa under s 501CA of the Migration Act.
The eight ‘Principles’ listed in paragraph 5.2 of Direction 110 are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens 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-citizens’ conduct, or 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 the Australian community.
(emphasis added)
Primary considerations

Informed by the eight ‘Principles’ in paragraph 5.2 of Direction 110, the Tribunal (decision-maker) must take into account the five ‘primary considerations’ in section 8 of Part 2 of Direction 110, in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4) of the Act.
The five ‘primary considerations,’ in section 8 of Part 2 of Direction 110, are:
(a)protection of the Australian community from criminal or other serious conduct: paragraph 8.1 of Direction 110;
(b)whether the conduct engaged in constituted family violence: paragraph 8.2 of Direction 110;
(c)the strength, nature and duration of ties to Australia: paragraph 8.3 of Direction 110;
(d)the best interests of minor children in Australia: paragraph 8.4 of Direction 110; and
(e)expectations of the Australian community: paragraph 8.5 of Direction 110.
Other considerations
Informed by the eight ‘Principles’ in paragraph 5.2 of Direction 110, the Tribunal (decision-maker) must also take into account the three ‘other considerations’, in paragraph 9 of Part 2 of Direction 110, insofar as they are relevant.
The three ‘other considerations,’ in paragraph 9 of Part 2 of Direction 110, include, but are not limited to, the:
(a)legal consequences of the decision under s 501 or s 501CA of the Migration Act: paragraph 9.1 of Direction 110;
(b)extent of impediments if removed: paragraph 9.2 of Direction 110; and
(c)impact on Australian business interests: paragraph 9.3 of Direction 110.
Applying the primary and other considerations
Section 7 of Part 2 of Direction 110 provides:
(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 at 8.1….(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 other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
(emphasis added)
CONSIDERATION
Representations in accordance with invitation
On 18 June 2025, the Applicant was notified of the Visa Cancellation Decision (dated 17 June 2025), by hand, which is the method prescribed by reg 2.55(3)(a) of the Migration Regulations 1994 (Migration Regulations): Exhibit 2 at pp 20–38. The Applicant was taken to have received the notice when it was handed to him: reg 2.55(5) of the Migration Regulations.
Regulation 2.52(2)(b) of the Migration Regulations prescribes that any representations seeking revocation of a mandatory visa cancellation must be made to the Minister within 28 days after the person is given notice of the cancellation. On 16 October 2024, the Applicant made representations seeking revocation of the Visa Cancellation Decision, being within the prescribed 28-day period: Exhibit 2 at p 24. Accordingly, the Tribunal is satisfied that the Applicant made representations to the Minister in accordance with the invitation, as required under s 501CA(4)(a) of the Migration Act.
‘Character test’
It is not in dispute, and the Tribunal accepts based on the evidence before it, that the Applicant does not pass the ‘character test’, because of the operation of s 501(6)(a) of the Migration Act, as he has a ‘substantial criminal record’, as defined in s 501(7)(c) of the Migration Act, having been convicted, on 2 December 2022, in the District Court of Western Australia, for the following three drug related offences (all committed in January 2019):
(a)Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine (committed on 16 January 2019) for which he was sentenced to 5 years’ imprisonment;
(b)Sold a prohibited drug namely Methylamphetamine (committed on 25 January 2019), for which he was sentenced to 4 years’ concurrent imprisonment, and declared a drug trafficker; and
(c)Sold a prohibited drug namely Methylamphetamine (committed on 31 January 2019), for which he was sentenced to 4 years concurrent imprisonment: Exhibit 2 at pp 40-44.
‘Another reason’
It follows that the sole issue to be decided by the Tribunal is whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.
For the following reasons, the Tribunal is not satisfied that there is ‘another reason’ why the Visa Cancellation Decision should be revoked. In reaching its decision, the Tribunal, informed by the eight ‘Principles’ in paragraph 5.2 of Direction 110, has, as set out below, ‘taken into account’:
(a)the five ‘primary considerations’ (in section 8 of Part 2 to Direction 110); and
(b)the three ‘’other considerations’ (in section 9 of Part 2 to Direction 110).
FIRST PRIMARY CONSIDERATION: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1 of Direction 110)
Safety of the Australian community is the highest priority
In applying paragraph 8.1 of Direction 110, the Tribunal must be informed by the eight ‘Principles’ set out in paragraph 5.2 of Direction 110 and outlined at [23] above.
Paragraph 8.1(1) of Direction 110 states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should 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.
(emphasis added)
The safety of the Australian community as being the highest ‘priority’ is also stated as a ‘priority’ in the ‘Principle’ in paragraph 5.2(2) of Direction 110.
Direction 110 was made on 7 June 2024 and commenced on 21 June 2024. It replaced Direction 99 which did not contain the principle that ‘the safety of the Australian community is the highest priority of the Australian Government’. The safety of the Australian community as being the highest ‘priority’ of the Australian Government, and in the application of Direction 110 by decision-makers, is reflected in the media release, published on 7 June 2024 by the Minister, Hon Andrew Giles MP (who authored both Directions 99 and 110), announcing Direction 110 as follows:[9]
[9] See also Acts Interpretation Act 1901 (Cth), s 15AB.
Today, I have signed Ministerial Direction 110, a new, revised Direction to strengthen the consideration of community safety in Australia’s migration system.
Since coming to office, the Government has refused and cancelled a large number of visas on character grounds in the interests of community safety.
However, it is clear the AAT has made a number of decisions independently of Government that do not reflect the Government’s intent or meet community expectations.
Since the beginning of last week, I have cancelled 40 visas in the national interest.
Today, we take the next step in strengthening our cancellation system to better reflect community expectations.
Ministerial Direction 110 is guided by two key principles; the protection of the Australian community and common sense.
This new revised Direction makes crystal clear that the Government expects the protection of the Australian community be given greater weight in visa decisions.
….
The revised Direction makes it clear that the safety of the Australian community is the Government’s highest priority – and includes this as a key principle of the decision-making framework.
….
Ministerial Direction 110 is an important step in ensuring that our migration system works in our national interest, and visa decisions are in line with common sense and the safety of Australians.
Community safety is and always will be our Government’s highest priority.
(emphasis added)
Accordingly, the phrase ‘safety of the Australian community,’ in the ‘Principle’ in paragraph 5.2(2) of Direction 110 and the first ‘primary consideration’ in paragraph 8.1(1) of Direction 110 (Protection of the Australian community) is directed at the ‘risk’ posed by a non-citizen to the safety of the Australian nation should they be granted a visa. It is not directed at the potential consequences for a segment of the Australian community (such as the non-citizen’s family members) should the visa not be granted or restored. The Tribunal must assess whether a non-citizen’s continued presence in Australia would ‘be opposed to the safety and welfare of the nation.’[10]
[10] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [94].
Protection of the Australian community
Paragraph 8.1(2) of Direction 110 states that, when considering protection of the Australian community, decision-makers must consider the:
(a)nature and seriousness of the non-citizen’s conduct to date: paragraph 8.1.1 of Direction 110; and
(b)risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction 110.
Nature and seriousness of the Applicant’s conduct to date (paragraph 8.1.1 of Direction 110)
As set out in the Annexure, the Applicant has 17 recorded convictions in both New Zealand and Australia, recorded between 11 December 2008 and 17 August 2023: Exhibit 2 at pp 39–41.
Driving offences
The first four offences of the Applicant (one committed in New Zealand and three committed Australia), recorded between 11 December 2008 and 27 March 2012, are driving offences, for which either a small fine was imposed, or the matter discharged: Exhibit 2 at pp 39–41. The Tribunal has repeatedly observed the ‘seriousness’ of driving offences.[11] The Applicant’s driving offences demonstrate his disregard for Australian law: paragraph 8.1(1) of Direction 110.
Assault Occasioning Bodily Harm
[11] See Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165 at [35]; Gage and Minister for Home Affairs [2020] AATA 326 at [75]–[76]; SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344 at [43]; Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421 at [80]–[81]; Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32 at [50]–[51].
On 27 March 2012, the Applicant was convicted of Assault Occasioning Bodily Harm, for which he received a suspended prison sentence of 9 months: Exhibit 2 at p 40.
The Assault Occasioning Bodily Harm offence is summarised in the Western Australian Police Statement of Material Facts, dated 30 June 2011, as follows:
The victim in this matter is a 17 year old male, 175 cms tall, slim build and 70 kilograms.
The accused [i.e. the Applicant] is a 24 year old male, 183 cms tall, large build and 140 kilograms.
The accused [i.e. the Applicant] works as a licensed crowd controller and was on duty at the Gold Bar at the time of the incident.
On Wednesday night, June 29, 2011, the victim had been at the Red Sea night club in Subiaco.
He left the Red Sea and walked down an alleyway towards the Gold Bar in Subiaco where he pushed over a ‘wheelie’ bin that was located near the entry to the bar.
A crowd controller that was standing near the entry grabbed the victim and pushed him away from the area.
The accused [i.e. the Applicant] approached the victim from the side and punched him to the head with a clenched right fist in an unprovoked attack.
The victim fell to the ground where he appeared to be unconscious for a short period of time.
Both crowd controllers walked away from the victim and did not offer him any assistance. (the incident was captured on CCTV).
The victim was later conveyed to hospital, by ambulance where he received treatment for his injuries.
The accused (sic.) [victim] received cuts to the inside of his mouth as well as numerous factures to his jaw: Exhibit 2 at p 525.
(emphasis added)
In his oral evidence at the hearing, the Applicant told the Tribunal that he thought he had ‘slapped’ the victim, rather than punching him in the head with a ‘clenched right fist’, as set out in the above Statement of Material Facts. Further, the Applicant told the Tribunal that he did not intend to hurt the victim and that he ‘lost it’ and that ‘he just lost control’. The Applicant said that he did not know that the victim was only 17 years old or that his injuries were as bad as they were. The Applicant did not comment in his oral evidence at the hearing, that he did not, according to the police record, offer the victim help on the night of the incident. Whilst the Applicant appeared, in his oral evidence at the hearing, to be remorseful that his victim was only 17 years old, he seemed otherwise unremorseful about the assault, more generally, which causes the Tribunal deep concern.
The above assault is plainly a ‘violent’ crime which, for the purpose of paragraph 8.1.1(1)(a)(i) of Direction 110, should be viewed ‘very seriously’ by the Australian Government and the Australian community.
February 2015 offending
On 16 February 2015, the police executed a Misuse of Drugs Act Search Warrant at the Applicant’s family home (16 February 2015 Search Warrant). Whilst executing the 16 February 2015 Search Warrant, the police found a prohibited weapon (metal knuckle dusters), an unlicensed firearm/ammunition (i.e. a loaded paintball gun) and, most significantly, prohibited drugs, being 5 bags each containing 14 grams of methylamphetamine in the Applicant’s possession at his family home: Exhibit 2 at pp 520–523.
The details of what occurred during the execution of the 16 February 2015 Search Warrant are described in the Western Australian Police Statement of Material Facts, dated 16 February 2015 (16 February 2015 Police Report), as follows:
At about 10.15am on Monday the 16^th of February 2015, Police executed at Misuse of Drugs Act Search Warrant…
At the time of gaining entry to the premises it was ascertained that the accused was not present however the wife of the accused was home.
During the search of the garage area, a loaded paintball gun was located on top of a number of paintball ammunition boxes.
The accused is not the holder of a firearms licence and had no authority to possess this item.
The accused was later offered the opportunity to participate in a video record of interview regarding this item and declined to comment.
….
During the search of the garage area a sandwich size clip seal bag was located containing approximately one gram of methyl amphetamine.
The accused was later offered the opportunity to participate in a video record of interview regarding this item and declined to comment.
….
During the search of the hallway entry cupboard a set of metal knuckle dusters were located belonging to the accused.
The accused was later offered the opportunity to participate in a video record of interview regarding this item and declined to comment.
….
During the search of the kitchen area, located on top of the fridge was a cardboard box which had five sandwich size clip seal bags inside it.
Located within the clip seal bags were five separate amounts of methyl amphetamine which were divided up into roughly 14 gram amounts (half an ounce).
These items were seized and later weighed to be a combined total weight of approximately 69.3 grams of methyl amphetamine.
The accused was later offered the opportunity to participate in a video record of interview regarding these items and declined to comment: Exhibit 2 at pp 520-523.
The 16 February 2015 Police Report requests that, upon the Applicant’s conviction, he be ‘declared a drug trafficker’ under s 32A of the Misuse of Drugs Act 1981 (WA): Exhibit 2 at p 523.
On 22 September 2015, the Applicant was convicted of Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine) and sentenced to 2 years and 6 months’ imprisonment: Exhibit 2 at pp 39–40.
The sentencing judge (Fenbury DCJ) described the Applicant’s offending as ‘very serious’ and described the volume of drugs he was caught with as ‘large’, as follows:
…you’ve pleaded guilty to committing a drug offence which carries a maximum penalty of 25 years’ gaol, 25 years’ imprisonment or $100,000 fine or both. And it’s a very serious type of offending and that penalty is very high…because the government’s made it high…because methylamphetamine is a major problem in our community which I’m sure you…would know.
Methylamphetamine is the worst of the worst in terms of drugs and it causes a great deal of damage in the community to people who use it, to people who come across people who use it…
….
….there’s quite a lot of it, just under 70 grams. That’s, well, pretty close to three ounces, is it, give or take: Exhibit 2 at p 60-61.
The sentencing judge described the Applicant as a ‘family man who struggled to support his family and had to do this to get money to support his family’ and acknowledged that the Applicant ‘went into this out of need, not greed’ and that he felt ‘some sympathy’ for the Applicant: Exhibit 2 at pp 60–61. However, his Honour went on to remark:
…solving your financial problems by committing an offence which carries 25 years’ imprisonment was not a wise thing to do.
On 14 October 2015, the Applicant was sentenced in respect of the firearm/weapons offences, and two further charges of possession of methylamphetamine and sentenced (concurrently) to a further 1 month of imprisonment: Exhibit 2 at p 39-40.
In his oral evidence at the hearing, the Applicant explained that he obtained the metal knuckle dusters and loaded paintball gun (and boxes of ammunition) as a result of ‘patting people down’ as a doorman/bouncer at the nightclub where he was working. He said that he confiscated these items from people as they entered the nightclub, put them in the pockets of his trench coat and took them home by accident, forgetting to remove the items from his pockets before leaving work. The Applicant said the knuckle dusters and paintball gun were unrelated to him selling drugs.
When questioned, at the hearing about the large quantity of methamphetamine found in the garage and in a container on top of the fridge of his family home, the Applicant said that he understands how dangerous it was bringing drugs into the family home and leaving them in places where his children could access them, he regrets doing that and he was ‘stupid’. The Applicant accepted that he had exposed his children to danger and to his criminal conduct and that his offending constituted ‘serious conduct’.
The Applicant was incarcerated for the abovementioned 2015 offending between 22 September 2015 and 22 December 2016 at Acacia Prison.
The Applicant’s February 2015 offending is objectively ‘very serious’ conduct, which resulted in the Applicant’s Visa being revoked the first time.
January 2019 offending
On 16 January 2019, 25 January 2019 and 31 January 2019, the Applicant engaged in drug offending which resulted in 3 convictions on 2 December 2022 for the sale/supply of methylamphetamine: Exhibit 2 at pp 39–40, 43–44 and 513–519.
The convictions, on 2 December 2022, came about as a result of the police executing a Misuse of Drugs Act Search Warrant at the Applicant’s family home on 31 January 2019 (31 January 2015 Search Warrant). Whilst executing the 31 January 2019 Search Warrant, the police found cash, encrypted mobile phones, a cash counting machine and multiple ounce quantities of methylamphetamine in the Applicant’s possession at his family home: Exhibit 2 at pp 513–519.

The details of what occurred during the execution of the 31 January 2019 Search Warrant are described in the Western Australian Police Statement of Material Facts, dated 16 February 2015 (31 January 2019 Police Report), as follows:
At 5.20pm on 31 January 2019, the accused was at his home address…
At that time, police executed a Misuse of Drugs Act search warrant at the premises.
The accused was arrested as a suspect for Possess Prohibited Drug with Intent to Sell or Supply and afforded his rights pursuant to the Criminal Investigation Act.
During a search of the accused bedroom, under the bedsheet police located $10,000.00 in Australian dollar cash and in the sock drawer police located $38,810.00 in Australian dollar cash.
Inside the theatre room police found a satchel which contained $590 cash and two mobile telephones, one of which was encrypted Samsung Knox mobile telephone.
A total of $49,400 in Australian dollar cash was seized from the accused premises. On top of the fridge in the garage, police located and seized a cash counting: Exhibit 2 at p 516.
In the 31 January 2019 Police Report, the police describe the Applicant as follows:
The accused is a prolific dealer of ounce and multiple ounce quantities of methylamphetamine. Cash seized from his premises is the proceeds of drug dealing.
The accused is a declared drug trafficker. The accused was interviewed but offered no comment. He was charged with the present offences and granted conditional bail: Exhibit 2 at p 516.
(emphasis added)
The sentencing judge (Gething DCJ) described the Applicant’s offending on 16 January 2019, 25 January 2019 and 31 January 2019, which offending resulted in his three convictions on 2 December 2022, as follows:
….in relation to count 1, on 16 January 2019, an undercover police officer purchased an ounce of methylamphetamine from persons named Craig Desmond O’Toole and Matthew Sean Wenn. That ounce of methylamphetamine had been supplied to Mr O’Toole and Mr Wenn by you immediately before the sale to the undercover officer. The clipseal bag containing the methamphetamine was later examined and found to contain 27.5 grams of methylamphetamine at 74 per cent purity. So the supply of the 27.5 grams of methylamphetamine by you is the subject of count 1.
As to count 2, on 25 January 2019, the same undercover officer purchased a further two ounces of methylamphetamine from Messrs O’Toole and Wenn. Once again, that methamphetamine had been supplied to them by you immediately before the sale of to the undercover officer. The Clipsal bags containing the methylamphetamine were later examined and found to contain 27.8 grams of methylamphetamine at 77 per cent purity and 27.6 grams of methylamphetamine at 73 per cent purity. Now the supply of 55.4 grams of methylamphetamine by you is the subject of count 2.
As to count 3, on 31 January 2019, one Jessica Mills arranged for the purchase of one ounce of some methylamphetamine from you on behalf of Ryan Howell. You picked up the ounce of methylamphetamine from your brother, one Petelo Tu’Ipulotu,to supply to Ms Mills. The Clipsal bag containing the methylamphetamine was retrieved from Ms Mills and Mr Howell shortly after it was supplied. Later analysis showed that it contained 28 grams of methylamphetamine at 76 per cent purity. So your supply of methylamphetamine to them is the subject of count 3.
(emphasis added)
The sentencing judge (Gething DCJ) noted that the Applicant’s offending was not ‘an isolated incident or an aberration by a person who was otherwise of good character’, and stated that the Applicant ‘clearly engaged in an ongoing drug dealing business’: Exhibit 2 at p 44.
As a result of the above January 2019 offending, the Applicant was sentenced to a total effective sentence of six years’ imprisonment and declared a ‘drug trafficker’: Exhibit 2 at pp 39–40 and 56. In relation to the 16 January 2019 charge (count 1), the Applicant was sentenced to a term of imprisonment of four years. In relation to the 25 January 2019 charge (count 2), the Applicant was sentenced to a term of imprisonment of five years. In relation to the 31 January 2019 charge, the Applicant was sentenced to a term of imprisonment of four years. In sentencing, the sentencing judge (Gething DCJ) remarked:
Count 1 is the head sentence. Count 2 is partially concurrent, and that is to start one year from the commencement of count 1…count 3 is concurrent, so that gives you a total effective sentence of six years.
That will be served immediately but it will be backdated to 8 September to take into account that time you spent in custody. I’ll make you eligible for parole. As the term of imprisonment I have imposed is more than four years, you’ll be eligible for parole after having served two years less than the term. The minimum period you are to serve in custody is four years, making your earliest release date 8 September 2026. I’ll make an order…declaring you to be a drug trafficker: Exhibit 2 at p 56.
In sentencing, the sentencing judge (Gething DCJ) commented that there are ‘four factors which reflect the seriousness’ of the Applicant’s January 2019 offending, as follows:
The first is the amount of the methamphetamine you sold, being a total of 110.9 grams. So these quantities had the potential to do a significant amount of harm if distributed into the community. And those amounts could have been on sold for significantly more than the $5,500 per ounce which you received from it.
The second is that I find that your offending was not an isolated transaction but part of an ongoing drug dealing enterprise for commercial gain, and that’s evidenced from the fact that you were able to conduct three-ounce level transactions over a fortnight. It’s also evident in the recorded conversations with Ms Mills including the fact that she had a $9,400 drug debt to you. So I find that you had ready and ongoing access to ounces of methylamphetamine.
In no way can your offending be characterised as an isolated incident or an aberration by a person who was otherwise of good character. Although you can only be sentenced for the selling of the drugs in question, it does increase the seriousness of your offending and offending occurred in circumstances where you clearly engaged in an ongoing drug dealing business.
The third is that I characterise your involvement in the drug dealing hierarchy as an active mid-level dealer, routinely dealing in one ounce level amounts. You were selling it to people who were on selling it to others. The fourth is that there’s no evidence that, as at January 2019, you were a user of methamphetamine and your counsel did not suggest that you were. So I find your offending was solely for financial gains, specifically to provide financially for your family.
(emphasis added)
Further offending
In August 2021, while on bail, the Applicant engaged in further criminal activity. Specifically, the Applicant delivered to a person a bag of $50,000 cash for the purpose of a deposit for the purchase of 10 kilograms of methylamphetamine: Exhibit 2 at pp 223–224.
On 31 August 2021, the police executed a Misuse of Drugs Act Search Warrant at the Applicant’s family home (31 August 2021 Search Warrant): Exhibit 2 at p 508. The details of what occurred during the execution of the 31 August 2021 Search Warrant are described in the Western Australian Police Statement of Material Facts, dated 28 September 2021, as follows:
At 8.06pm on Tuesday 31 August 202, the accused [i.e., the Applicant] was stopped by police while driving….
As police approached the vehicle, the accused [i.e., the Applicant] smashed his mobile phone and was subsequently arrested in relation to another matter…After police conducted a search of his vehicle, the accused [i.e., the Applicant] was conveyed to his home address…
At 9.09pm police executed a Misuse of Drugs Act search warrant at [the Applicant’s family home] in the presence of the accused [i.e., the Applicant]. A white Hyundi van…was parked in the garage of the address. During the search of that vehicle, a sports bag was located in the boot which contained a significant quantity of cash. This item was seized and the accused was questioned on video, however made no comment in relation to the cash or the sports bag.
At a later time the cash from the black sports bag was counted in a controlled environment and confirmed as being $264,420.00. On Tuesday 28 September 2021, the accused [i.e., the Applicant] was summonsed for Possession of Stolen or Unlawfully Obtained Property.
The Applicant submitted to the sentencing judge (Gillian DCJ) that it was his desire to provide financially for his family which lead to this further offending: Exhibit 2 at p 476. In sentencing, the sentencing judge (Gillian DCJ) made the following remarks in relation to the Applicant’s further offending, whilst on bail:
I am sure that you are very sorry in a general sense for finding yourself here being sentenced for these offences. But I must say it is difficult for me to find that you are remorseful in the true legal sense of that term because of the fact that you continued to offend, albeit in a different way, after you were on bail…
(emphasis added)
On 17 August 2023, the Applicant was convicted of Possession of stolen or unlawfully obtained property and Brought into, or whilst in West Australia, received, possessed, concealed, disposed or dealt with any money or property and an additional one year was added to his existing sentence: Exhibit 2 at pp 39–40.
In his oral evidence at the hearing, the Applicant describe the circumstances of the above offending as follows. His friend Eli reached out to him via an online chatgroup and asked him to deliver a bag of money in return for a delivery fee of $5,000. He did not ask what the money in the bag was for (i.e. that Eli was ‘on the run’ because of a drug debt and that the money in the bag was for a shipment of drugs). However, he did know the money in the bag was illegitimate. The Applicant said he got ‘played’ by his friend Eli and that Eli ‘used him’ for his ‘loyalty’.
Conclusion – Nature and seriousness of Applicant’s conduct to date (paragraph 8.1.1 of Direction 110)
Nature of conduct
Paragraph 8.1.1(1)(a) of Direction 110 provides:
without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(emphasis added)
Similarly, paragraph 8.1.1(1)(b) of Direction 110 provides:
without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(emphasis added)
The fact that the Applicant’s criminal offending/conduct, to date, does not specifically fall within the range of conduct Direction 110 states ‘may’ be considered ‘very serious’ or ‘serious’ does not exclude it from being ‘very serious’ or ‘serious’: paragraph 8.1.1(1)(a) and (b) of Direction 110. This much is obvious from the use of the words ‘without limiting the range of conduct’ which appear at the commencement of paragraph 8.1.1(1)(a) and (b) of Direction 110. The amount of drugs involved in the Applicant’s offending was significant and contributed to the severity of the Applicant’s sentence. It also contributed to the Applicant being declared a ‘drug trafficker’. There is no doubt that the Applicant’s drug offending/conduct to date falls within the range of ‘very serious’ conduct contemplated by paragraph 8.1.1(1)(a) of Direction 110.
Sentence imposed
Paragraph 8.1.1(1)(c) of Direction 110 provides that in considering the nature and ‘seriousness’ of the Applicant’s criminal offending to date, the Tribunal must have regard to ‘the sentence imposed by the courts for a crime or crimes’, noting that, when reviewing the Minister’s decision whether there is ‘another reason’ to revoke a mandatory visa cancellation, the Tribunal may not impugn or ‘go behind’ either the conviction or the sentence.[12]
[12] Minister for Immigration Multicultural Affairs v Ali (2000) 106 FCR 313 at [42]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [5], [44], [102], and [104].
The Applicant’s offending history, as set out above, is plainly ‘very serious’. Particularly, the Applicant’s drug offences, which resulted in two periods of incarceration, should be considered toward the ‘most serious’ end of the scale. The seriousness of this offending is reflected by the sentence imposed by the Court, being a term of imprisonment of 5 years: paragraph 8.1.1(1)(c) of Direction 110.
Frequency of offending and trend of increasing seriousness & cumulative effect of repeat offending
As outlined above, and as acknowledged by the sentencing judge (Gething DCJ), the Applicant’s offending is not a one-off mistake, but reflects a consistent pattern of behaviour that endangers the Australian community: Exhibit 2 at pp 44–45 and paragraph 8.1.1(1)(e) of Direction 110. This pattern of behaviour is inconsistent with the expectation, as set out in the ‘Principle’ in paragraph 5.2(1) of Direction 110, that non-citizens are law-abiding and will respect important Australian institutions, such as Australia’s law enforcement framework.
The Full Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1 at 30 [118] (Markovic, Thomas and Button JJ) (LPDT), endorsed the proposition that drug trafficking is a crime committed against vulnerable members of the community for the purposes of paragraph 8.1.1(1)(b)(ii) of Ministerial Direction No 90, which is identically worded to paragraph 8.1.1(1)(b)(ii) of Direction 110.[13]
[13] As noted by the Respondent (Exhibit 2 at p 725), the Full Court’s decision in LPDT was not disturbed on appeal the High Court: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at 617 [22].
The Applicant’s offending, as detailed above, has clearly escalated in ‘seriousness’, from driving offences to numerous and ‘very serious’ drug related offences which include the unlicensed possession of firearms, dealing with large amounts of unlawfully obtained cash and selling or supplying trafficable quantities of the illicit drug methylamphetamine with sentences to terms of imprisonment of between 2 years and 6 months and 5 years: paragraph 8.1.1(1)(e) of Direction 110.
This was acknowledged by the sentencing judge (Gething DCJ) in his Honour’s sentencing remarks in relation to the January 2019 offending, as follows:
Now, you’re before the court with a…serious prior criminal record. The most relevant is your conviction in 2015 for possession of methylamphetamine with intent to sell or supply…
The current offending is a clear escalation. Give[n] your past drug-related offending, there’s a clear need for the court to impose a firmer penalty than might have otherwise been the case, to both deter you from committing these types of offences and to protect the community from further offending by you: Exhibit 2 at p 50.
Further, the Tribunal takes the view that the cumulative effect of the Applicant’s repeated offending is ‘very serious’ and must have resulted in significant use of police and court resources: paragraph 8.1.1(1)(f) of Direction 110.
Re-offended after formal warning
The Applicant previously had his visa cancelled for serious drug offending and that cancellation was revoked following representations he made to the Minister. In revoking the cancellation, the Applicant was formally ‘warned’ about the consequences of further offending in terms of his migration status: see [10] above. The fact that the Applicant then reoffended in a similar, but more significant manner, increases the seriousness of the applicant’s offending: paragraph 8.1.1(1)(h) of the Direction 110.
Conclusion: Nature and seriousness of the conduct (paragraph 8.1.1 of Direction 110)
For the above reasons, and as informed by the ‘Principles’ in paragraph 5.2 of Direction 110, the Tribunal considers the ‘nature and seriousness’ of the Applicant’s criminal conduct to date to be ‘very serious’: paragraph 8.1.1 of Direction 110.
In reaching this conclusion, the Tribunal notes that a majority of the Full Court recently held that the Tribunal is not bound by the expressed views as to the ‘seriousness’ of certain conduct found within paragraph 8.1.1(a) and (b) of Direction 110 and, instead, the Tribunal is required to assess for itself the ‘nature and seriousness’ of a non-citizen’s conduct to date and the weight that should be attributed to this consideration.[14]
[14] BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 608 at [107]; Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [34]; Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667 at [89]–[90].
For the above reasons, the Tribunal considers that the ‘nature and seriousness’ of the Applicant’s criminal offending to date weighs heavily against revocation.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct (paragraph 8.1.2 of Direction 110)
The Tribunal must also consider the ‘risk’ to the Australian community, should the Applicant commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction 110. Some conduct, and the harm that would be caused, if repeated, is so serious that any risk it may be repeated may be ‘unacceptable’: paragraph 8.1.2(1) of Direction 110.
In assessing the ‘risk’ posed by the non-citizen to the Australian community, the Tribunal must have ‘regard to,’ cumulatively:
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct: paragraph 8.1.2(2)(a) of Direction 110; and
(b)the likelihood of the Applicant engaging in further criminal or serious conduct, taking into account:
(i)information and evidence on the risk on the Applicant reoffending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community, if any, since his most recent offence: paragraph 8.1.2(2)(b) of Direction 110.
The concept of ‘risk’ and whether it is ‘unacceptable,’ for the purpose of paragraph 8.1.2(1) of Direction 110, is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’, for the purpose of paragraph 8.1.2(2) of Direction 110.[15]
[15] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471 at [74].
Direction 110, directs the Tribunal’s ‘risk’ assessment by expressly stating that, informed by the ‘Principles’ in paragraph 5.2 of Direction 110, the:
(a)Australian Government is committed to ‘protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’: paragraph 8.1(1) of Direction 110;
(b)Australian Government views that certain types of conduct may be considered by it and the Australian community as ‘very serious’ and ‘serious’: paragraph 8.1.1(1) of Direction 110; and
(c)Australian Government’s view is that ‘the Australian community’s tolerance of any further risk of future harm becomes lower as the seriousness of the potential harm increases’: paragraph 8.1.2(1) of Direction 110.
In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, Justice Mortimer (as her Honour then was) said (at [103]):
It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
(emphasis added)

Accordingly, the ‘risk’ referred to in the balancing exercise contemplated by Direction 110 is not just ‘any’ risk that a non-citizen may ‘commit further offences or engage in other serious conduct’, but is aimed at the Tribunal’s assessment of the nature and degree of harm said to exist in the particular circumstances of the Applicant’s case. There is no statutory constraint on the way the Tribunal is to assess that risk, other than the requirement for the Tribunal to adopt a rational and probative approach to the assessment.[16]
[16] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [33]–[36].
Nature of the harm to individuals and the Australian community
For the above reasons, the Tribunal considers that the Applicant’s offences are ‘very serious’, and any likelihood that they may be repeated is unacceptable to the Australian community. As contended by the Respondent, the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and psychological harm to members of the Australian community: Exhibit 2 at p 726 and paragraph 8.1.2(2)(a) of Direction 110.
It is widely accepted that methylamphetamine not only harms users but is also damaging to the Australian community. This was noted in the sentencing remarks of the sentencing judge (Fenbury DCJ) for the Applicant’s 2015 offending, wherein his Honour referred to methylamphetamine as being ‘the worst of the worst in terms of drugs and it causes a great deal of damage in the community to people who use it’ and ‘to people who come across people who use it’: Exhibit 2 at p 60. The Respondent referred the Tribunal to a publicly available report, produced by Australian Border Force[17] (ABF Report), notes that methylamphetamine ‘has a strong link to crime – particularly property and violent crime, including domestic violence’: Exhibit 2 at p 726 at [42]. According to the ABF Report, in 2013 to 2014, the estimated social cost of methylamphetamine was estimated to be over $5 billion: ABF Report at p 6 and Exhibit 2 at p 726 ay [42].
[17]
In Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]–[54], the Tribunal commented on the nature of potential future harm to the Australian community, involved in the sale of dangerous drugs, as follows:
This Applicant had a significant involvement in the trafficking and supply of dangerous drugs. The consumption of such substances may cause catastrophic harm to individual users. However, there are other and perhaps slightly less obvious deleterious effects of this unlawful activity. As is now well-known, addicted individual users of these substances all too often resort to committing crimes themselves in order to raise sufficient funds to meet their habit.
As well, there is a quantifiable cost to the community both in terms of an increased imposition on (1) the public health system to cope with the physical and psychological consequences of these substances in our community; and (2) resources to be allocated to law enforcement agencies to detect and apprehend the wrongdoers and the justice system to hear and adjudicate offences arising from this activity.
It is clear that any return or resumption by the Applicant to his previous drug offending conduct would represent a quite significant risk of physical and psychological harm to members of the Australian community.
… given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.
Likelihood of non-citizen engaging in further criminal or other serious conduct
In the Applicant’s Statement of Facts, Issues and Contentions, dated 1 August 2025 (Exhibit 2 at pp 691–717), the Applicant’s representative submits that:
21.[The Applicant] is deeply remorseful for his actions and has taken full responsibility for the consequences. He has a minimum-security rating in prison[18], is a positive and supportive inmate and has utilised his time to reflect and repent.
22.There have been no further incidents of criminal conduct since 2021, or since home detention for the 12 months, prior to entering Casuarina prison on 4 October 2022.
….
24.The risk that [the Applicant] will engage in further criminal or undesirable conduct should be considered as low given the time since his last offence, his maturity, rehabilitation, health and change in family dynamics.
(emphasis added)
[18] Individual Management Plan, dated 4 June 2025: Exhibit 2 at p 187.
The Applicant’s representative made similar oral submissions at the hearing. However, the Tribunal considers that these submissions must be considered in the following context.
The Applicant has made numerous statements of remorse, including before:
·     the sentencing judge (Fenbury DCJ) on 22 September 2015, in respect of his February 2015 offending: Exhibit 2 at p 62;
·     the delegate of the Minister on 16 May 2016, in his representations in support of the first revocation request, Exhibit 2 at pp 613–614;
·     the sentencing judge (Gething DCJ) on 2 December 2022, in respect of his January 2019 offending: Exhibit 2 at p 46; and
·     the sentencing judge (Gillian DCJ) on 17 August 2023, in respect of his further offending: Exhibit 2 at p 487.
The Tribunal affords minimal weight to any statements made by the Applicant regarding his alleged remorse for and insight into his offending, including in his oral evidence at the hearing, having regard to the fact that he continued to offend. Significantly, the Applicant continued to engage in criminal activity while on bail for his January 2019 drug offences. As contended by the Respondent (Exhibit 2 at p 727):
44.2…This demonstrates a deliberate repudiation of his professed remorse and deliberate disregard for Australian law in favour of an ongoing and intentional preparedness on the part of the applicant to engage in serious criminal conduct for profit.
44.3It also demonstrates the applicant’s preparedness to do so as a father and a husband, and despite having strong family ties in Australia during the periods in which he engaged in serious criminal behaviour. These factors did not previously act as protective factors and the applicant’s family circumstances have not changed, save to say all concerned are four years older.[19]
[19] Exhibit 2 at p 727 at [44].
In his oral evidence at the hearing, the Applicant accepted that after having already committed very ‘serious’ offences, and in the knowledge that he had exposed his wife and children to danger and his criminal offending (i.e. by partly operating his drug trafficking operations from the family home), he went on to commit further ‘very serious’ offences. The Applicant acknowledged that, in doing so, he had betrayed many people’s trust, especially his wife and children. The Applicant explained that whilst his offending was initially motivated by a perceived ‘need’ to financially provide for his family it later became motivated by ‘greed’.
In relation to what rehabilitation programs he has attended, the Applicant provided the following unparticularised references in his Witness Statement, dated 1 August 2025:
41.I have participated in courses and counselling linked to my faith to address my issues, I will continue to work on myself as I have done so far. I am a better version of myself in 2025 to who I was in 2015 because of the work I have done on myself, this includes building my confidence through faith and communication: Exhibit 1 at p 7 and Exhibit 2.
Further, in his Witness Statement, dated 1 August 2025, he describes what insight he has gained into his offending during his most recent period of incarceration, as follows:
60.I feel positive about my abilities to identify and recognises (sic.) certain behaviours and triggers. I am proud of my self-awareness, I recognise my thinking and thought processes have changed. I can recognise and acknowledge my emotions and insecurities and I’m able to stop and think before acting.
61.Being incarcerated during this period has allowed me the time to really get to know the real me, as a healthy, positive and productive person. I have done a lot of self-reflection in this time and being in a controlled environment has allowed me to practice mindful thinking. I now prepare myself each morning and use mindfulness…
62.I have recommenced gym activities; I feel healthier physically and emotionally through this activity: Exhibit 1 at p185 and Exhibit 2.
The Applicant participated in and completed the following programs whilst in Acacia Prison in 2015 to 2016:
(i)        Alcoholics Anonymous, dated 24 September 2015: Exhibit 2 at p 628;
(ii)Introduction to Oral Communication 1, completed 6 October 2015: Exhibit 2 at p 631;
(iii)Introduction to Workplace Health and Safety, completed 6 October 2015: Exhibit 2 at p 632;
(iv)One Star Food Safety and Hygiene Training, completed 22 October 2015: Exhibit 2 at p 629;
(v)Basic Radio Broadcasting Workshop, completed 25 November 2015: Exhibit 2 at p 623;
(vi)      Life Skills Re-entry Program, completed 28 January 2016: Exhibit 2 at p 624;
(vii)     Think First Program, completed 17 May 2016: Exhibit 2 at p 626;
(viii)     Peaceful Pathways, completed 23 May 2016: Exhibit 2 at p 627; and
(ix)      Narcotics Anonymous, dated 6 October 2016: Exhibit 2 at p 682.
At the hearing the Respondent’s representative asked the Applicant to describe what ‘takeaways’ he had learned from these courses, the Applicant’s response was vague, uncertain and unconvincing.
Accordingly, the Tribunal places little weight on the Applicant’s successful completion of the above courses, whilst incarcerated in Acacia prison from 2015 to 2016, in circumstances where he proceeded to commit further drug offences within approximately two years of being released from prison.
When asked what rehabilitation courses the Applicant had completed during his more recent period of incarceration at Casuarina Prison, the Applicant said that he had completed a 30 hour in person course titled ‘Plan for Personal Management – A 30 hour Program About Emotional Intelligence and Goal Setting’ (Plan for Personal Management Course): Exhibit 2 at p 101. When asked what he had learned from the Plan for Personal Management Course the Applicant essentially repeated the list of ‘Topics covered’ on the Record of Completion, namely Self-esteem, Building Confidence, Awareness of Emotions, The Power of Positive Emotions, Setting goals, Identifying steps to reach goals, Observing Thoughts, Values and Ways of Communicating, without providing any further detail on the content of these topics: Exhibit 2 at p 101.
The Applicant also told the Tribunal that he had been ‘weight listed’ for other courses, but that the education department at Casuarina Prison was temporarily closed due to a lack of staff, making it impossible for him to undertake further courses.
The Applicant has also utilised his time in prison to reconnect to his Catholic faith and reflect upon his offending. This is supported by the Witness Statement of Father Mark Chia, the Catholic Chaplain at Casuarina Prison, dated 1 August 2025, which provides:
4. I make the following statements about [the Applicant]:
-He attends Mass regularly, has had his confession heard regularly, and participates in the tenants of his Catholic faith,
- I do not see him with the negative influences in prison; he keeps himself to himself unless he is praying or participating in prosocial activities,
- He supports and is kind to vulnerable inmates,
-Acknowledges that he understands the pain and discomfort he has put his family in. That his offences are shameful to them; and
-Acknowledges he has placed a large financial burden on them whilst he has been in prison and though the costs of his offences: Exhibit 2 at p 210.
Despite the above evidence, as contended by the Respondent:
44.5This is not the first opportunity the applicant has had to reflect on his choices. The applicant received a 12-month suspended sentence in 2012, has previously been incarcerated and has had his visa cancelled and reinstated by a delegate of the Minister. Neither of these opportunities resulted in the applicant abstaining from serious criminal activity. The applicant instead chose to use these opportunities to engage in serious criminal drug offending which comes at a great cost and causes great harm to the Australian community: Exhibit 2 at p 728.
Conclusion: Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct (paragraph 8.1.2 of Direction 110)
For the above reasons, the Tribunal considers that the Applicant presents a real, and not insignificant, risk of reoffending and, if he were to reoffend, further significant harm would be visited upon the Australian community. The Tribunal considers that the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct, weighs heavily against revocation: paragraph 8.1.2 of Direction 110.[20]
[20] Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30].
Conclusion: Protection of the Australian community (paragraph 8.1 of Direction 110)
Informed by the ‘Principles’ stated in paragraph 5.2 of Direction 110, and considering: (i) the nature and seriousness of the Applicant’s conduct to date; and (ii) the risk to the Australian community should he commit further offences or engage in other serious conduct, the Tribunal considers that the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1. of Direction 110, weighs heavily against revocation, noting that the safety of the ‘Australian community’ is the highest priority of the Australian government: paragraph 5.2(2) of Direction 110.
SECOND PRIMARY CONSIDERATION: Whether the conduct engaged in constituted family violence (paragraph 8.2 of Direction 110)
Paragraph 8.2(1) of Direction 110 provides that the Government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of… remaining in Australia’. This consideration is relevant both in circumstances where there has been a conviction of a ‘family violence’ offence, and where there is information or evidence from independent and authoritative sources indicating that there has been the perpetration of family violence: paragraph 8.2(2) of Direction 110.[21]
[21] Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [80]–[86].
There is nothing before the Tribunal to suggest that the Applicant has committed any acts of family violence.
Therefore, the Tribunal finds that the second ‘primary consideration’ (Family violence committed by the non-citizen), in paragraph 8.2. of Direction 110, carries neutral weight in relation to revocation.
THIRD PRIMARY CONSIDERATION: The strength, nature and duration of ties to Australia (paragraph 8.3 of Direction 110)
Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision whether to revoke the mandatory cancellation of a non-citizen’s visa on the non-citizen’s ‘immediate family members in Australia’, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
Paragraph 8.3(2) of Direction 110 provides that in considering whether to revoke the mandatory cancellation of a non-citizen’s visa, the Tribunal must also consider the strength, nature and duration of ‘any other ties’ that the Applicant has to the Australian community. In doing so, the Tribunal 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; and
(b)the strength, duration and nature of family or social links with Australian citizens, Australian permanent residents, and/or people who have an indefinite right to remain in Australia.
The Applicant settled in Australia in 2010, when he was 23 years of age: Exhibit 2 at pp 132–133. In his Witness Statement, dated 1 August 2025, the Applicant states:
I first arrived in Australia on 28 Jan 2010 as I had been offered a professional rugby contract, however, I was injured during the trial, and it did not manifest. I returned to New Zealand (NZ) and my then fiancé, now wife Avulu and our four daughters and we returned to Perth in July 2010: Exhibit 2 at p 177.
The Applicant has resided in the Australian community for 15-and-a-half years and has worked as a bouncer/security at a night club, in construction, labouring/landscaping work (for Prestige Demos), as a security person (for IPS Security) and as an unofficial debt collector: Exhibit 2 at pp 184–186 and 192–193. While the Tribunal acknowledges that this represents a substantial period in the Applicant’s life, the Applicant did not spend his formative years in Australia, having finally settled in Australia in July 2010, aged 23. In the Applicant’s own words:
I was born in Aukland, NZ and raised in Tonga till my parents sent me and my brothers back to NZ at the age of 10 to commence our college years at St Peter’s College.
My parents remained in Tonga with my young sister while my 2 brothers and I attended along with 6 of our first cousins, it was a tight squeeze in a 3 bedroom house.
It is noteworthy that the Applicant’s offending commenced soon after he settled in Australia in July 2010, aged 23, with driving convictions recorded on 17 November 2010, 6 July 2012 and conviction for violence against the person on 27 March 2012.
The Applicant provided a table setting out the age, relationship and address of each of his family members in Australia: Exhibit 2 at p 89–90.
Immediate family members in Australia (paragraph 8.3(1) of Direction 110)
The Applicant’s immediate family members in Australian are his wife and six children, as follows:
(i) the Applicant’s wife (Wife): Exhibit 2 at p 102 and pp 191-197;
(ii)AT (adult daughter), 22 years old (DOB: 31 July 2003) (AT): Exhibit 2 at p 105 and pp 217-220;
(iii)NT (adult daughter), 19 years old (DOB: 22 October 2005) (NT): Exhibit 2 at p 108;
(iv)ALP (minor daughter), 17 years old (DOB: 25 January 2008) (ALP): Exhibit 2 at p 103;
(v)APP (minor daughter), 15 years old (DOB: 7 April 2010) (APP): Exhibit 2 at p 106;
(vi)TJ (minor son), 13 years old (DOB: 26 January 2012) (TJ): Exhibit 2 at p 107; and
(vii)KP (minor daughter), eight years old (DOB: 2 December 2015) (KP): Exhibit 2 at p 104.
The Applicant’s Wife provided a letter in support of the Applicant’s visa cancellation revocation request, dated 10 October 2024 (Wife’s 10 October 2024 Letter): Exhibit 2 at p 102. In the Wife’s 10 October 2024 Letter, the Wife describes the impact the decision will have on her and the Applicant’s six children, as follows:
….If my husband is to leave the country, we as a family unit would be broken….
We will have to consider eventually relocating which will have a firsthand impact on not just my husband but our children and myself. Our children have known nothing but life in Perth, Western Australia. Our children are still in school, uprooting them from the only family and friends they’ve ever known would be extremely difficult. Our entire family is here so to move now in this climate would not only prove to be expensive; it would also be isolating for us as our support system are here in Australia. I fear our family and what the future would look like in New Zealand.
Our children are heavily involved in their sport endeavours, playing for local sports clubs throughout the year. My job is very important to me as I am a Nurse Assistant in Age Care. My daughter is currently in her first few weeks of work placement as a trainee Nurses Assistant. Our eldest daughter is a Custody Officer for Ventia. Our faith plays a massive part in our lives, attending St Bernadette’s in Port Kennedy so not having the support of our church community would also have a huge impact on us.

This is supported by paragraph 8.5(3) of Direction 110 which states:
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Applicant’s disregard for Australian law commenced with a traffic offence in November 2010, not long after he settled in Australia in January 2010. The Applicant went on to engage in ‘very serious’ conduct in breach of the Australian community’s expectation that non-citizens must obey Australia’s laws while in Australia: paragraph 8.5(1) of Direction 110. Further, as stated above, the Tribunal considers, on the evidence before it, that there is an ‘unacceptable risk’ that the Applicant may engage in further serious conduct in breach of this expectation. As such, the Tribunal finds that the Australian community, ‘as a norm’, expects the Government to not allow the Applicant to remain in Australia in his circumstances: paragraph 8.5(1) of Direction 110.
Given the ‘very serious’ nature of the Applicant’s drug offending, the Australia community would expect the Applicant should not continue to hold a visa: paragraph 8.5(2) of Direction 110.
For the above reasons, the Tribunal considers that the fifth ‘primary consideration’ (Expectations of the Australian community), in paragraph 8.5 of Direction 110, weighs heavily against revocation.
FIRST OTHER CONSIDERATION: Legal consequences of the decision (paragraph 9.1 of Direction 110)
Paragraph 9.1(1) of Direction 110 states:
Decision-makers should 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 s 198 of the Migration Act, and in the meantime, detention under section 189, noting also that s 197C(1) of the Migration Act provides that, for the purposes of s 198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful citizen.
That is, in considering the legal consequences of its decision whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 9.1(1) of Direction 110 requires the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power, including any decision under s 105 of the ART Act.[24]
[24] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [3], [9] and [10]; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84] and [88].
There are three major adverse consequences of visa refusal or cancellation under s 501 of the Migration Act and related provisions, which can be avoided by a positive decision to revoke the mandatory cancellation of non-citizen’s visa, as follows:
(a)a prohibition, within the migration zone, on applying for other types of visas under
s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[25]
(b)refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and
(c)possible periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A of the Migration Act.
[25] See also s 46(1)(d) of the Migration Act.
The Applicant is not subject to a protection finding, nor has he raised claims based on Australia’s non-refoulement obligations, nor has he made any submissions regarding the legal consequences of the decision: Exhibit 2 at pp 691–717.
The legal consequence of the Tribunal’s decision not to revoke the Visa Cancellation Decision is that the Applicant would be indefinitely excluded from entering Australia, by virtue of the Special Residence Criteria in cl 5001(c) of Schedule 5 to the Migration Regulations 1994. However, that particular legal consequence is a matter that is brought to account, and inherent in, the other considerations in Direction 110.[26]
[26] Dalzell and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 17 at [134]–[135].
In circumstances where the Applicant’s removal and exclusion from Australia are the intended purpose of the statutory scheme, the Tribunal affords neutral weight in relation to revocation to this first ‘other consideration’ (Legal consequences of the decision) in paragraph 9.1 of Direction 110.
SECOND OTHER CONSIDERATION: Extent of impediments if removed (paragraph 9.2 of Direction 110)
Paragraph 9.2 of Direction 110 provides that the Tribunal 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 the Applicant in their country.
(emphasis added)
The Tribunal acknowledges that the Applicant may suffer some impediments in being able to re-establish himself in New Zealand, if the mandatory cancellation of his Visa is not revoked. However, for the following reasons, those impediments will not be insurmountable.
(a) Applicant’s age and health
The Applicant is currently 38 years old and has suffered health problems in the past, including chronic heart disease (diagnosed in December 2019), severe sleep apnoea, Type 2 diabetes and mobility issues, as a result of rapid weight gain/obesity: Exhibit 2 at pp 177–178.
The Applicant’s wife, Avulu, describes the Applicant’s health issues as follows:
11.Between 2017 and 2019 I watch [the Applicant’s] weight climb from 140kg to 190kg, unaware of the heart issues, he was struggling to move quickly, was sleeping terribly and was out of breath a lot. By the time he entered prison in October 2022 he was 215kg, this was after 12 months home detention and a strict medical regime.
….
16.On 30 December 2019 I found [the Applicant] clutching his chest; he was then hospitalised and admitted for ten days. He was diagnosed with severe biventricular systolic function and had NYHA 3 cardiac failure which meant his heart hurt even when he was not doing anything. He was given lots of medication, he needed a CPAP machine to sleep for cardiac function and daily wakefulness.
….
19.From 2019 until 2021 [the Applicant] was getting bigger and bigger in his weight but his self esteem and confidence was becoming lower and lower…: Exhibit 2 at pp193-194.
The Applicant states that ‘going to prison this time has saved my life, I had suffered from chronic heart disease, diagnosed in December 2019’ and he had become ‘depressed and resigned to dying’: Exhibit 2 at p 177. In his oral evidence at the hearing, the Applicant told the Tribunal that whilst he has been in Casuarina Prison he has received ongoing treatment for his heart, attending regular check-ups at Fiona Stanley Hospital, his sleep apnoea has improved, he has been on regular medication for his Type 2 diabetes, has regularly been going to the gym/exercising and his weight has reduced to 150kg.
(b) Language or cultural barriers
As the Tribunal observed in VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649 at [428] per Deputy President Sosso stated that:
Australians and New Zealanders both speak the English language and are culturally almost indistinguishable. The legal and political structures of both societies are similar as are the medical and social welfare systems.
The Tribunal does not accept the Applicant’s representative’s submission that the Applicant would suffer from language or cultural barriers in New Zealand: Exhibit 2 at p 713 at [114]–[115]. As noted above, the Applicant was 23 years of age when he relocated to Australia and has lived in Australia for 15-and-a-half years. Since settling in Australia, the Applicant has returned to New Zealand on numerous occasions. In such circumstances, it cannot be said that the cultural differences, if any, are unfamiliar to the Applicant. There are clearly no language barriers as the main language, of both countries, is English.
(c) Social, medical, and/or economic support
Social
The Applicant submits that he does not have any close relatives of friends in New Zealand, although he notes he has some extended family: Exhibit 2 at p 713. In his oral evidence at the hearing, the Applicant explained that he currently has some family in Sydney and Tonga, but does not really have any family left in New Zealand. The Applicant said that the aunt and uncle he lived with in New Zealand, whilst completing high school (until the age of 17), now live in Sydney and that his grandparents, that he lived with in New Zealand from the ages of 17 to 23, are no longer alive. The Applicant told the Tribunal that any family and friends of his or his wife that remain in New Zealand are struggling themselves, and that he would not be able to live with them as it would be too ‘disruptive’ to their lives.
As stated above, in her oral evidence at the hearing, the Applicant’s Wife told the Tribunal that if the Tribunal does not revoke the mandatory cancellation of the Applicant’s Visa, her marriage to the Applicant will be ‘over’. She said that when she returned to New Zealand last year with her children, they told her they do not like New Zealand, do not want to relocate to New Zealand and want to remain living in Perth and that she ‘wants what her children want’. The Applicant also told the Tribunal that she’s extremely happy with her aged care nursing job, where she earns AUD$60,000 per annum and that while the Applicant has been in jail she has purchased a house in her own name.
The Tribunal acknowledges that the Applicant’s support network is stronger in Australia than the network he may have in New Zealand, but does not accept that the Applicant has nobody in New Zealand whom he could look to for support upon his return there.
Medical
The Applicant would have access to the same level of social welfare, medical and economic support as that which is generally available to other citizens in New Zealand: paragraph 9.2(1)(c) of Direction 110.
As such, any medical support which the Applicant may require to treat his current/ongoing health problems (i.e. heart, sleep apnoea, Type 2 diabetes and weight), would be available to him in New Zealand at a substantially similar level as would be available to him in Australia.
Economic
The Applicant was born in New Zealand, but spent the early years of his life living in Tonga with his Tonganese born mother and siblings. The Applicant and his younger brother were later sent to live with their biological aunt and uncle (whom he calls ‘mum’ and ‘dad’) in New Zealand for a ‘better life’. The Applicant completed high school, aged 17, in Auckland, New Zealand. The Applicant said that he undertook warehouse work once a week, ‘off the books’, whilst he was still at school. From the age of 17 until 23, when he departed New Zealand for Australia, the Applicant said that he played rugby for the Auckland Rugby academy (where he was paid to train). During this period, he lived with his grandparents (since deceased) in Auckland.
The Applicant first arrived in Western Australia on 28 January 2020 because he had been offered a professional rugby contract with the Western Force, but he was injured during the trial so that opportunity did not eventuate: Exhibit 2 at p 177, Exhibit 1 and the Applicant’s oral evidence at the hearing.
Whilst living in Australia for 15-and-a-half years, the Applicant has worked in various roles including as a bouncer/security at a nightclub, in construction (full-time from 2016 until 2018), as a labourer/landscaper for Prestige Demos, Port Kennedy and as a debt collector for IPS Security (in 2018). These skills and work experience are transferrable and will likely lead to employment and a productive life in New Zealand. The Tribunal does not accept, as submitted by the Applicant’s representative (Exhibit 2 at p 712), that it would be substantially harder for the Applicant to gain employment in New Zealand than in Australia.
Conclusion: Extent of impediments if removed (paragraph 9.2 of Direction 110)
Whilst the Tribunal readily acknowledges that the Applicant may face some practical, financial and emotional hardship upon his return to New Zealand, due to separation from his family and his social ties in Australia, the Tribunal considers that this should be given minimal weight in favour of revocation, especially in circumstances where the cultural, language and social variances between Australia and New Zealand are virtually indistinguishable, where there are comparable standards of health care and the Applicant has transferable skills and work experience which could lead to employment and a productive life in New Zealand: paragraph 9.2(1)(c) of Direction 110.
As stated above, the second ‘other consideration’ is directed at whether a person can establish themselves and maintain ‘basic living standards’ if removed from Australia to their home country: paragraph 9.2(1) of Direction 110.
For the above reasons, the Tribunal considers that the Applicant would be able to establish himself and maintain ‘basic living standards’ if removed from Australia to New Zealand and, therefore, the second ‘other consideration’ (Extent of impediments if removed), in paragraph 9.2 of Direction 110, carries limited weight in favour of revocation.
Applicant intends to return to Tonga (not New Zealand) if Tribunal affirms review decision
In his oral evidence at the hearing, the Applicant said that if the Tribunal decides not to revoke the mandatory cancellation of his Visa he will most likely return to Tonga to live with his elderly biological mother, and not live in New Zealand. This is irrelevant to the Tribunal’s considerations and its decision on the review application. The Tribunal is limited in its deliberation to the extent of impediments if the Applicant is removed from Australia to New Zealand. It is not required to consider the extent of impediments if the Applicant is removed from Australia to New Zealand but ultimately decides to live in Tonga. Whether the Applicant ultimately decides to live in Tonga, not New Zealand, is a matter for him.
THIRD OTHER CONSIDERATION: Impact on Australian business interests (paragraph 9.3 of Direction 110)
Paragraph 9.3(1) of Direction 110 provides that the Tribunal must consider any impact on Australian business interests if the non-citizen is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under
s 501 or s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has not raised any possible claims which could result in an impact to Australian businesses, significantly compromising the delivery of a major project or important service in Australia.
Consequently, the Tribunal considers that the third ‘other consideration’ (Impact on Australian business interests), in paragraph 9.3 of Direction 110, carries neutral weight in relation to revocation.
CONCLUSION: Primary and other considerations
For the above reasons, in relation to the five ‘primary considerations’ (in section 8 of Part 2 to Direction 110), the Tribunal concludes:
(a)Protection of the Australian community (paragraph 8.1 of Direction 110) – weighs heavily against revocation;
(b)Family violence committed by the non-citizen (paragraph 8.2 of Direction 110) – carries neutral weight in relation to revocation;
(c)The strength, nature and duration of ties to Australia (paragraph 8.3 of Direction 110) – weighs moderately in favour of revocation;
(d)Best interests of minor children in Australia affected by the decision (paragraph 8.4 of Direction 110) – weighs heavily in favour of revocation; and
(e)expectations of the Australian community (paragraph 8.5 of Direction 110) – weighs heavily against revocation.
For the above reasons, in relation to the three ‘other considerations’ (in section 9 of Part 2 to Direction 110), the Tribunal concludes:
(a)Legal consequences of the decision (paragraph 9.1 of Direction 110) – carries neutral weight in relation to revocation;
(b)Extent of impediments if removed (paragraph 9.2 of Direction 110) – carries limited weight in favour of revocation; and
(c)Impact on Australian business interests (paragraph 9.3 of Direction 110) – carries neutral weight in relation to revocation.
Informed by the “Principles” in paragraph 5.2 of Direction 110, and having weighed the considerations in favour of revocation and the considerations against revocation, the Tribunal concludes that, on balance, in this case, the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of Direction 110, and the fifth ‘primary consideration’ (Expectations of the Australian community), in paragraph 8.5 of Direction 110, carry greater weight than the ‘primary considerations’ which weigh in favour of revocation, namely the third ‘primary consideration’ (Strength, nature and duration of ties to Australia), in paragraph 8.3 of Direction 110, and the fourth ‘primary consideration’ (Best interests of minor children in Australia affected by the decision) and the second ‘other consideration’ (Extent of impediments if removed), in paragraph 9.2 of Direction 110.
In reaching this conclusion, the Tribunal notes that, as stated above, paragraph 7(2) of Direction 110 states that the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of Direction 110, is generally given greater weight than the other four ‘primary considerations’ and that, otherwise, the ‘primary considerations’ (in section 8 of Part 2 of Direction 110) should generally be given greater weight than the three ‘other considerations’ (in section 9 of Part 2 of Direction 110).
For the above reasons, the Tribunal is not satisfied that there is ‘another reason’ why the mandatory cancellation of the Applicant’s Visa should be revoked.
DECISION
For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chelsea Lyford

……[SGD]…………………………..
Associate

Dates of hearing: 27 and 28 August 2025

Representative for the Applicant: Mr Dominic McKenna

Representative for the Respondent: Ms Laura Groves, Australian Government Solicitor

Annexure A

Date of Offending	Details of Offending	References	Date of Conviction [GD 35-36]	Conviction	Court	Sentence
1.	11 December 2008	Unlicensed driver failed to comply with prohibition	Auckland District Court	Convicted and discharged
2.	17 November 2010	Unlicensed Vehicle (Owner/Driver)	Rockingham Magistrates Court	[Counts 1] FINE: $200
3.	6 July 2011	Driver to ensure passenger over 6 mths under 4yrs restrained	Mandurah Magistrates Court	[Counts 1] FINE: $600
4.	6 July 2011	No Authority to Drive (Fines Suspended)	Mandurah Magistrates Court	[Counts 1] FINE: $250
5.	29 June 2011	Applicant struck victim in head with closed fist while working as licensed crowd controller. Victim fell to ground unconscious. Victim later conveyed to hospital and required stiches.	SD 216 [prosecution notice] SGD 239 – 240 [statement of material facts] SGD 241-258 [witness statements]	27 March 2012	Assault Occasioning Bodily Harm; Criminal Code (WA); 317 (1)	Perth Magistrates Court	[Counts 1] SUSP IMP ORDER: 9 Months CONCURRENT SUSPENDED 12 Months FROM 27- MAR-2012.
6.	16 February 2015	Applicant found in possession of 5 clip seal bags with 14 grams of methylamphetamine in each.	GD 55-59 [Sentencing remarks]	22 September 2015	Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)	Perth District Court of WA	[Counts 1] IMPRISONMENT: 2 YRS & 6 MTHS FROM 22.9.15
7.	16 February 2015	Applicant found in possession of paintball gun for which he did not have a license.	SGD 235-238 [Statement of material facts]	14 October 2015	Possessed a prohibited weapon; Weapons Act 1999; 6 (1)(b) B	Perth Magistrates Court	[Counts 1] IMPRISONMENT: 1 Months CONCURRENT FROM 14-OCT-2015 - Concurrent
8.	16 February 2015	Applicant found in possession of knuckle dusters	Possessed a prohibited weapon; Weapons Act 1999; 6 (1)(b) B		Perth Magistrates Court	[Counts 1] IMPRISONMENT: 1 Months CONCURRENT FROM 14-OCT-2015 - Concurrent
9.	16 February 2015	Applicant found in possession of one gram of methylamphetamine	Possess a prohibited drug (Methylamphetamine); Misuse Of Drugs Act 1981; 6 (2) R		Perth Magistrates Court	[Counts 1] IMPRISONMENT: 1 Months CONCURRENT FROM 14-OCT-2015 - Concurrent
10.	16 February 2015	Unlicensed Person Possess Firearm/ Ammunition.; Firearms Act 1973; 19 (1)(c) B	Perth Magistrates Court		[Counts 1] IMPRISONMENT: 1 Months CONCURRENT FROM 14-OCT-2015- Concurrent
11.	16 February 2015	Possess a prohibited drug (Methylamphetamine); Misuse Of Drugs Act 1981; 6 (2) R	Perth Magistrates Court		[Counts 1] IMPRISONMENT: 1 Months CONCURRENT FROM 14-OCT-2015 - Concurrent
12.	16 February 2015	Unlicensed Person Possess Firearm/ Ammunition.; Firearms Act 1973; 19 (1)(c) B	Perth Magistrates Court		[Counts 1] IMPRISONMENT: 1 Months CONCURRENT FROM 14-OCT-2015 - Concurrent
13.	31 January 2019	Applicant delivered person 28 grams of methylamphetamine on behalf of a co-accused.	GD 38-52 [sentencing remarks] GD 53-54 [certificate of outcome] SGD 228-234 [statement of material facts]	2 December 2022	Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine; Misuse Of Drugs Act 1981; 6 (1)(c)	Perth District Court of Western Australia	[Counts 1] IMPRISONMENT: 5 Years PARTLY CONCURRENT FROM 08- SEP-2022; Drug Trafficker Declaration
14.	16 January 2019	Applicant sold person 27.5 grams of methylamphetamine in exchange for $5,000 cash.			Sold a prohibited drug namely Methylamphetamine.; Misuse Of Drugs Act 1981; 6 (1)(c) F1	Perth District Court of Western Australia	[Counts 1] IMPRISONMENT: 4 Years CONCURRENT FROM 08-SEP-2022 - Concurrent; Drug Trafficker Declaration
15.	25 January 2019	Applicant sold person 55.6 grams of methylamphetamine in exchange for $10,000 cash			Sold a prohibited drug namely Methylamphetamine.; Misuse Of Drugs Act 1981; 6 (1)(c) F1	Perth District Court of Western Australia	[Counts 1] IMPRISONMENT: 4 Years CONCURRENT FROM 08-SEP-2022 - Concurrent; Drug Trafficker Declaration
16.	Between 22 August 2021 and 26 August 2021	The applicant was found in possession of a black sports bag which contained cash in the amount of $264,420. The applicant delivered a bag of $50,000 cash to persons for the purpose of a deposit for 10 kilograms of methylamphetamine.	SGD 223-227 [statement of material facts] SGD 176-207 [sentencing remarks]	17 August 2023	Brought into, or whilst in West Australia received, possessed, concealed, disposed of or dealt with any money or property; Criminal Code (WA); 563A (1)(b)	Perth District Court of Western Australia	[Counts 1] IMPRISONMENT: 12 Months CONCURRENT FROM 17- AUG-2023. - Concurrent
17.	31 August 2021			17 August 2023	Possession of stolen or unlawfully obtained property; Criminal Code (WA); 417 (1)	Perth District Court of Western Australia	[Counts 1] IMPRISONMENT: 12 Months CUMULATIVE FROM 17- AUG-2023. - Cumulative

Dates of hearing:	27 and 28 August 2025
Representative for the Applicant:	Mr Dominic McKenna
Representative for the Respondent:	Ms Laura Groves, Australian Government Solicitor