QLZD and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 462
•24 April 2025
QLZD and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 462 (24 April 2025)
Applicant:QLZD
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/0870
Tribunal:General Member J Pennell
Place:Melbourne
Date:24 April 2025
Decision:
The decision under review is revoked.
................................[ SGD ].......................................
General Member J. Pennell
CATCHWORDS
MIGRATION – Visa refusal – citizen of Iran – Safe Haven Enterprise Visa (SHEV) (subclass XE-709) – Section 510(6) character test – Direction 110 – Protection of the Australia Community – Risk to the Australian Community – Strength, nature and tires to the Australia community – risk of impediments if returned – Legal consequences of decision.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650.
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124.
FYBR v Minister for Home Affairs [2019] FCAF 185.
KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124.
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021 FCAFC 133.
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559.
Murphy v Minister for Home Affairs [2018] FCA 1924.
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PQSM v Minister for Home Affairs [2019] FCA 150.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCAFC 55
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Statement of Reasons
1.This is an application to review the decision dated 29 January 2025 made by a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) not to revoke the mandatory cancellation of the Applicants Class AH Subclass 101 Child Visa (‘the visa’) pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). The delegate found that the Applicant did not pass the character test and was not satisfied that there was another reason why the cancellation of the visa should be revoked.
2.The Applicant was born in 2002 (22 years of age) in Liberia. The Applicant was granted the visa on 18 July 2016[1] and arrived in Australia when he was thirteen years old in or about 2016.
[1] G12, p.85
3.On 9 December 2022, the Applicant was convicted in the County Court of Victoria at Melbourne of aggravated carjacking - offensive weapon and sentenced to three years and six months imprisonment.[2]
[2] G12, p.86
4.On 5 June 2023, a delegate of the Minister mandatorily cancelled the Applicants visa pursuant to s.501(3A) of the Act.[3]
[3] G12, p.85
5.On 26 June 2023, the Department of Home Affairs received by mail, the Applicant’s request for revocation of a mandatory visa cancellation, dated 5 June 2023.[4]
[4] G13, p.94
6.On 29 January 2025, the delegate decided that the Applicant did not pass the character test as defined by s501 of the Act. In addition, the delegate was not satisfied that there is another reason why the cancellation decision should not be revoked. That is, the delegate found that the power in s.501CA(4) of the Act was not enlivened and that the Applicant’s visa remained cancelled (the delegates decision).[5]
[5] G4
7.On 6 February 2025, the Applicant applied to the Tribunal for a review of the delegates decision.[6]
[6] G1, G2
8.The Tribunal hearing was held on 9th and 10th of April 2025 at the Tribunal’s Melbourne Registry. The Applicant attended the hearing in person to give evidence and make submission in support of his application. The Applicant was not represented at hearing. The respondent was represented at the hearing by Ms Alexandra O’Grady of MinterEllison.
9.For the following reasons, the Tribunal has concluded that the Minister’s decision should be revoked.
Relevant law
10.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes when the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.
11.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly s 501CA(4) of the Act states:
(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.
12.Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
13.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part, s 501(6) states:
(6) For the purposes of this section, a person does not pass the character testif:
(a) the person has a substantial criminal record (as defined by subsection (7)); or……..
14.Section 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
15.If an Applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[7] In Plaintiff M1/2021,[8] the High Court referred to how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
………………………..
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).
[7] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[8] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
Direction 110
16.On 7 June 2024, Direction No.110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’) came into effect. Direction 110 sets out the principles within which a decision-maker should approach the task of deciding whether to revoke a mandatory cancellation decision. It is binding upon the Tribunal in performing its functions or exercising powers under s.501 of the Act.
17.Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.
18.The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
19.Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:
a) legal consequences of the decision;
b) extent of impediments, if removed;
c) impact on Australian business interests.
20.A decision maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[9] Colvin J when considering an earlier Direction[10] stated:
‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[9] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
[10] Direction 65.
21.The issues before the Tribunal are:
(a)does the Applicant pass the character test, as defined in s 501 of the Act? If not;
(b)is there another reason why the original decision should be revoked?
Documents
22.The following statements were provided to the Tribunal in support of the Applicant’s application for review:
(a)Statement by Jeremie Nyetam of Jesuit Social Services dated 6 September 2024.
(b)Statement by Cheryl S of Vacro dated 8 April 2025.
(c)Statement by Chloe Layton of Statewide Hepatitis Program dated 15 January 2025.
23.In addition, the Tribunal was provided with:
(a)Respondents Statement of facts, issues, and contentions
(b)Written Response by the Applicant to the Respondents Statement of facts, issues, and contentions
(c)G Documents.
(d)Respondents Supplementary Documents.
Applicant’s background
24.The Applicant was born in 2002 (22 years of age) in Liberia. The Applicant’s father immigrated to Australia with Ms T in or about 2009. The Applicant’s father and Ms T were married in Australia. The Applicant’s father works for the Department of Justice and Ms T works as a nurse. The Applicant remained living in Liberia with his mother until his departure for Australia.
25.In July 2016[11] the Applicant was granted a visa and arrived in Australia with his two older brothers (who were born in April 1984 and March 2000) when the Applicant was 13 years old. Both the Applicant’s brothers are now Australian citizens. The Applicant’s mother passed away in Liberia about 2 years ago.
[11] G12, p.85
26.In addition, the Applicant has two stepbrothers, born July 2014 and December 2016, and a stepsister, born July 2023. The Applicant’s stepbrother and stepsister were all born in Australia. It’s submitted by the Applicant’s father that the Applicant does not have any family or relatives remaining in Liberia.[12]
[12] G34, p157.
27.The Applicant attended school in Australia but left when he was 16 years of age. He commenced a bricklaying course at TAFE. When the Applicant was 17 years of age, he had a job as an appearance bricklayer earning $500.00 per week. The Applicant was incarcerated before he could complete his apprenticeship.
28.Then Applicant has been diagnosed with Hepatitis-B virus (HBV) and has one kidney. A letter from the State-wide Hepatitis Program at St Vincent’s Hospital Melbourne dated 15 January 2025[13] stated that the Applicant had been diagnosed with HBV for which he requires regular monitoring. The letter stated that Hepatocellular Carcinoma (HCC) surveillance should be performed every six months.[14]
[13] G35, p160
[14] ibid
29.The Applicant’s father states[15] that he and his wife are hardworking citizens who have raised their children with strong morals. He states that the Applicant, despite his good upbringing, was misguided and his anti-social friends at young age caused him to make poor decisions. The Applicant’s father stated that upon his arrival in Australia he worked very hard to establish himself and his family at work and in the community. As a result, he was not at home as often as he would have liked to accompany his family.
[15] G34, p.158
30.The Applicant’s evidence was initially that he had a harsh upbring in which he feared his father.[16] He claimed at about the age of 16, he began using drugs and alcohol and at around the age of 17 he commenced using Xanax (benzodiazepines). The Applicant’s evidence was that he was evicted from his home and began hanging around the wrong crowd. The Victorian Police information package indicated that the Applicant was a member of the ‘ABZ’ gang. As a result, his evidence was that he was homeless and ‘couch surfing’ with friends until a three-month juvenile detention term at the age of 17 years of age.
[16] S2, p168.
31.However, the Applicant’s father stated to the Tribunal that he was not aware the Applicant had been abusing drugs and alcohol. The Applicant’s father’s evidence was that despite having tried to set boundaries for the Applicant he was not able to control the Applicant’s behaviour. In particular, he was not able to stop the Applicant getting involved in the wrong crowd. Nevertheless, his evidence was that while the Applicant was spending more time with friends, he remained living at home. Consistent with the Applicant’s statement to Correction Victoria,[17] and the evidence of his father, the Applicant conceded to the Tribunal that despite his use of alcohol and drugs and association with the wrong crowd, he had remained living at home. He stated that his parents had tried to help him, but he had not taken any notice. He claimed that because of his lifestyle, Ms T wanted the Applicant to go to church, which he refused.
[17] S2, p137
32.The Applicant’s evidence was that he has not associated with members of the ABZ gang for a significant amount of time. He claims to have made a deliberate and conscious choice to leave and not associate with previous criminal and negative associates. The Applicant claimed that he did not want anything to do with crime or unethical people and behaviour.[18]
[18] G17, p117
33.In any event, as a juvenile, the Applicant was convicted of the following offences (‘the Children’s Court offences’):[19]
(a)On 20 August 2021, the Melbourne Children's Court found the Applicant guilty of attempted robbery, armed robbery, intentionally causing injury, committing indictable offence whilst on bail, robbery, recklessly causing injury, making threats to kill, and stating a false name when required. The Applicant was detained in a Youth Justice Centre for four months.
(b)On 17 November 2021, at the Ringwood Magistrates Court the Applicant was found guilty of affray, recklessly causing injury, and committing an indictable offence whilst on bail. He was sentenced to 5 months' imprisonment.
[19] G6, p.49-50
34.In the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton[20] the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) prohibited an administrative decision maker from taking a finding of guilt into account in circumstances where no conviction was recorded for the offence because of the operation of s 184(2) of the Youth Justice Act (Qld).[21]
[20] Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 97 ALJR 488
[21] Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 97 ALJR 488 at [36]-37] per Gaegler and Jagot JJ & [73]-[74] per Gordon and Edleman JJ
35.In Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs[22] it was held that s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), (‘Children Proceedings Act’) in its terms and effect, was sufficient to engage s 85ZR(2) of the Crimes Act 1914 (Cth) and as such the Applicant was taken to have never been convicted of the offences dealt with by the Children's Court. The provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and a conviction. Beech-Jones J held that under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose.[23]
[22] Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs [2024] HCA 6
[23] Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs [2024] HCA 6 per Beech- Jones j at [32].
36.Accordingly, the Tribunal has not placed any weight on the Children’s Court offences for the purpose of this decision.
37.On 9 December 2022, the Applicant was convicted in the County Court of Victoria at Melbourne of aggravated carjacking - offensive weapon and sentenced to three years and six months imprisonment.[24] The circumstances of the offending are as follows:[25]
(a)On 12 April 2021, the Applicant stole alcohol belonging to Bootle-O, Mooroolbark (charge 1).
(b)On 13 April 2021, the victim was sitting in the driver's seat of a 2008 Toyota Camry sedan outside a florist in Kew, where he worked as a delivery driver. The Applicant approached the victim and asked if he had a cigarette, to which the victim said no. The Applicant then queried whether the victim had any money, to which the victim again responded no. The Applicant then said that he had a knife and gestured that he had a knife under his top. The victim attempted to close the car door, however, the Applicant stopped him. When the victim exited the vehicle, the Applicant struck him on the top of his head with a beer bottle. The Applicant then punched the victim to the face, causing him to fall to the ground. The Applicant took the keys and drove away with the co-accused, leaving the victim on the road (charge 2).
(c)Later that evening, the Applicant filled up the car at a BP service station at Montrose and drove away without making any attempt to pay (charge 3).
(d)At Mooroolbark, Kew and Montrose on 12 and 13 April 2021, the Applicant committed an indictable offence, namely aggravated carjacking and two charges of theft whilst on bail (charge 5.)
[24] G7, p.54; G12, p.86
[25] G7
38.Since being placed in custody in 2021,[26] the Applicant has been convicted of the following offences:
(a)On 22 August 2023, the Magistrates Court of Victoria at Sale convicted the Applicant of recklessly cause injury and he was sentenced to one month in prison. The offence occurred on 3 December 2021 whilst in Fulham prison.[27]
(b)On 25 August 2023, the Magistrates Court of Victoria at Sunshine convicted the Applicant of affray and sentenced him to 6 months in prison. The offence occurred on 29 September 2022 whilst in Ravenhall prison (G10, 80). The Applicant was found hitting a prisoner on the ground multiple times with a metal vacuum cleaner pipe. When prison staff attempted to remove the pipe and escort the Applicant back to his cell, he resisted and ran past the staff, picked up the pipe and resumed assaulting the prisoner.[28]
[26] G7, p. 61
[27] G9, p.79
[28] S2, 75
The character test
39.Section 501(6) of the Act provides that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[29]
[29] Migration Act 1958 (Cth) s501(7).
40.In this case the Applicant’s criminal history check confirmed that the Applicant was convicted of aggravated carjacking - offensive weapon on 9 December 2022 in the County Court of Victoria at Melbourne and was sentenced to three years and six months imprisonment. As a result, the Applicant accepted that he did not pass the character test pursuant to s 501(7) of the Act.[30]
[30] Written Response by the Applicant to the Respondents Statement of facts, issues, and contentions.
41.Based on the Applicant’s own admission and the documentation provided, the Tribunal finds that the Applicant has a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. The Tribunal finds that the Applicant does not pass the character test and that the requirements of s 501CA(4)(b)(i) are not met.
Whether there is another reason the visa cancellation decision should be revoked
42.The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant’s visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.
Protection of the Australian community
43.Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[31] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct.[32]
Nature and seriousness of the conduct
[31] Direction 110, paragraph 8.1(1).
[32] Direction 110, paragraph 8.1(2).
44.In considering the nature and seriousness of the Applicant’s offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The direction indicates that violent crimes are viewed seriously by the Australia Government and the Australian Community.
45.While the Tribunal has not placed any weight on the Children’s Court offences the Tribunal notes that from November 2021 to August 2023 the Applicant was charged and convicted of violent offences. These include the offences listed in paragraph 38 (‘the carjacking offences’).[33]
[33] G7, p.71
46.At the time of the carjacking offences the Applicant was on bail from the following Courts:[34]
·On 11 November 2020 the Applicant was remanded to the Ringwood Children’s Court and in the Applicant absence and undertaking of bail was extended.
·On 6 July 2021 at Ringwood Magistrates Court bail was fixed on the Applicant own undertaking.
[34] G7 p.55
47.On 9 December 2022, the Applicant was convicted in the County Court of Victoria at Melbourne of aggravated carjacking - offensive weapon for which he was sentenced to three years and six months imprisonment (three years non-parole). In addition, the Applicant was convicted of two counts of theft and having committed an indictable offence whilst on bail for which he received a fine for each offence.[35]
[35] G6, p.50
48.At the hearing in the County Court of Victoria the court noted that both the Applicant’s counsel and counsel for the prosecution submitted that the Applicants offending was particularly serious given the brazen nature of the offending and the fact that the Applicant struck the complaint on the head with a beer bottle and punched him in the face causing him to suffer physical, mental and financial damage.[36]
[36] G7, p.72
49.The sentence given to the Applicant for the carjacking offence reflects the nature and seriousness of the Applicant’s offending. The Applicant was sentenced to three years and six months imprisonment (three years non-parole) which is due to expire on 19 April 2025.[37] Prison is the last resort in the sentencing hierarchy. Accordingly, the fact that the Applicant has received a prison sentence reflects the serious nature of the Applicant’s offending.
[37] S2, 191.
50.In addition, while in prison for the carjacking offences that the Applicant was charged and convicted of the following offences (‘the prison offences’):[38]
·On 22 August 2023, the Applicant was convicted in the Sale Magistrates Court of recklessly causing injury and sentenced to one month imprisonment (concurrent). The Notice of Order indicates that the offence occurred on 3 December 2021 at the Fulham Correctional Centre.
·On 25 August 2023, the Applicant was convicted in the Sunshine Magistrates Court of Affray and sentences to 6 months’ imprisonment (concurrent). The Notice of Order indicates that the offence occurred on 29 September 2022 at the Metropolitan Remand centre in Ravenhall.
[38] G6, p.50
51.The Tribunal notes that the Applicant’s criminal offending occurred over a relatively short period of time during which he displayed a complete disregard for the safety of the Australian community. In doing so the Applicant displayed a propensity toward violence that inflicted significant physical, psychological, and financial harm on his victims. As a result, based on the offences committed by the Applicant and the sentencing remarks by the Court at the carjacking hearing, the Tribunal finds the nature of the Applicant’s conduct to be serious. Therefore, the Tribunal places some weight on the consideration in favour of affirming the cancellation decision.
Risks to the Australian community
52.Paragraph 8.1.2 of the Direction 110 provides that in assessing whether the Applicant represents an unacceptable risk of harm 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 non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the noncitizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
53.In measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[39] Her Honour stated that, to determine an unacceptable risk, one must evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[39] Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
54.The Tribunal is required to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[40] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, (as her Honour then was) considered the notion of risk and its nexus to future possibility. Her Honour noted:[41]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.’
[40] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[41] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
55.In Minister for Immigration and Ethnic Affairs v Guo[42] the High court considered the extent to which past events can be a guide to the future. The Court stated:
‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.’
[42] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574].
56.As such, in the process of determining the chance of something occurring in the future a conclusion will need to be formed concerning past events.[43] Assessing what is likely to happen in the future based on past events involves questions of degree. In Minister for Immigration and Ethnic Affairs v Guo the court held that[44]
‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity….’
[43] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].
[44] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574] – [575].
57.A Psychological Report dated 7 November 2022[45] was prepared by Sandra Cokorilo, Psychologist (the Report) for the purposes of the Applicant’s guilty plea in relation to his carjacking offence. The Report was produced for the purpose of Ms Cokorilo giving her opinion in relation to the Applicant’s psychological functioning and its impact on his offending and imprisonment, the prospects of rehabilitation, treatment recommendations and risk of reoffending. Ms Cokorilo noted the Applicant's description of a traumatic childhood where he witnessed war atrocities, a friend's murder, separation from his mother, and physical abuse by his parents.[46]
[45] S2, p. 167-175
[46] S2, p.168
58.Ms Cokorilo stated in the Report[47] that the Applicant presented as an immature young man with poor insight into his own mental state and factors precipitating his behavioural problems. Ms Cokorilo assessed that the Applicant reported symptoms consistent with Persistent Depressive Disorder (PDD), with episodes of significant psychopathology manifesting as Major Depressive Disorder (MDD), as well as Post Traumatic Stress Disorder (PTSD). She considered the Applicant's presentation was further complicated by his alcohol and drug abuse, finding he met the criteria for Alcohol, Cannabis and Anxiolytic Use Disorders, which she considered would have additionally heightened the Applicant's "risk of engaging in impulsive and reckless behaviour, as well as impaired his insight, decision-making and judgment.’[48] Ms Cokorilo considered that stressful experiences during childhood may dysregulate the neurophysiological systems that support mental, emotional and behavioural health when experiencing stressors later in life. Further, Ms Cokorilo stated that the Applicant’s age had a relevant impact on his offending. The Applicant was around 18 years of age at the time of his offending. Ms Cokorilo noted that the Applicant presented with the psychological limitations including impaired understanding of consequences, increased impulsiveness and deficiencies in decision making.
[47] S2, p170
[48] S2, p.173 at [77]
59.While Ms Cokorilo referred to several factors that contributed to the Applicant’s offending, including his mental health, his relatively young age and his traumatic early environment, she stated that the Applicant's protective factors were limited. Her concern was that deterrence alone would not be sufficient to promote the Applicant's rehabilitation, unless his mental health is adequately treated.[49] Ms Cokorilo stated that the Applicant's risk of reoffending are considered moderate due to his criminal history, his history of alcohol and substance abuse, association with negative peers, limited supports, and compromised mental health.[50] Ms Cokorilo noted that imprisonment for the Applicant would be more onerous because of the fact that he presented with both PTSD and depression. The fact that the Applicant had not received any psychological treatment while in prison meant that his prospect of rehabilitation in custody was limited. Ms Cokorilo stated that the Applicant appeared genuine in his expression of remorse and desire to reform himself but presented with poor insight and limited supports. As result he would he likely requires significant support and supervision towards rehabilitation.[51]
[49] S2, p.173
[50] S2, p.174 at [83]
[51] S2 p.174 [90]
60.The Tribunal notes that the Applicant initially denied any involvement in the carjacking offence. While he plead guilty at the plea hearing on 21 November 2022, the Applicant only did so after the committal hearing at which witnesses were required to give evidence. As noted by the delegate, the Applicant’s guilty plea appeared to be a recognition of practical advantage rather than evidence of real remorse.[52] The Applicant’s counsel at the sentencing hearing on 9 December 2022 conceded that the Applicant had shown little remorse as a mitigating factor.[53] While the Judge acknowledged that Ms Cororilo had stated the Applicant had some degree of remorse he said that ‘I doubt that there is any realistic remorse, as you remember very little about your actions on that day, being under the influence of alcohol and/or drugs.’ [54]
[52] G5 p.34 at [59]
[53] G7 p.66 at [25]
[54] G7, p72 at [45]
61.The Tribunal notes that while in prison the Applicant was charged and convicted of the prison offences.[55] However the Applicant submits[56] that these offences occurred prior to him having completed a number of treatment and rehabilitation program while in prison.
[55] G6, p.50
[56] Written Response by the Applicant to the Respondents Statement of facts, issues, and contentions at [9]
62.The Applicant has completed the following treatment and rehabilitation programs that have been targeted at his offending and relationship with alcohol:[57]
[57] G15-G32
(a)16 June 2023 - 6 Hr AOD & Loss.
(b)18 September 2023 – Adapt.
(c)20 September 2023 – Take Stock B.
(d)21 September 2023 – Take Stock.
(e)25 September 2023 - Jobs and Careers.
(f)18 October 2023 – Houses and Homes.
(g)30 October 2023 – Family, Friends, and Community.
(h)1 November 2023 – Recalibrate.
(i)December 2023 - Turning Into Respectful Relationships.
(j)17 January 2024 – Peace Education Program.
(k)9 February 2024 – Alcohol and Me Program.
(l)27 February 2024 – Healthy Living.
(m)1 August 2024 – Changing Gears Program.
(n)20 November 2024 – Learning for Life.
(o)December 2024 - High Intensity Violence Intervention Program (HIVIP)
63.A letter dated 6 September 2024 by Jeremie Nyetam, Senior Project Officer for Corrections Victoria, African Visitation and Mentoring Program (AVAMP) stated that the Applicant self-referred himself to the AVAMP program and that he had been an active participant since 1 June 2023.
64.In his letter dated 14 October 2024[58] to the Department, the Applicant claims that he is deeply ashamed of his actions and claims to have made considerable gains in his behaviour because of having completed the treatment and rehabilitation programs. The Applicant’s submission[59] to the Tribunal was that that his offending occurred prior to him having completed the treatment and rehabilitation programs listed above, specifically the HIVIP. The Applicant submits that he is not the same person who committed the offences for which he was convicted and claims that the treatment and rehabilitation programs have helped him immensely to change his outlook on life and behaviour.
[58] G7, p.116
[59] Written Response by the Applicant to the Respondents Statement of facts, issues, and contentions at [10]-[11].
65.There was no information before the Tribunal to indicate that the Applicant had used illicit drugs while he was in prison. The Applicant claims that while he has been in prison he has not tested positive to drugs.[60] The Tribunal accepts the Applicant’s evidence that he has not used drugs while in prison and notes that his ability to remain drug and alcohol free in the community will be essential to him not reoffending if he is released into the community.
[60] G17, p.120
66.The Applicant’s father’s evidence was that if the Applicant was released into the community, the Applicant would be able live at home with him and his family in Clyde North, Victoria, on the condition that he does not become involved in drugs and alcohol. His evidence was that the Applicant would have his own room and bathroom. In his letter dated 28 November 2024[61] to the Department, the Applicant’s father stated that since the time of his arrest he has observed the Applicant reflect deeply on his actions and the affect it has had on his victims, his family and his future. The Applicant’s father stated that the Applicant has expressed his genuine remorse for his behaviour to his mother and the rest of his family. He claims that Applicant is now aware of the gravity of his mistakes and has expressed a desire to turn his life around and become and contributing member of society by participating in the church and the community.[62] The Applicant’s father stated that he had spoken to the Applicant and was satisfied that he would not revert to his old behaviour.
[61] G34, p157-158
[62] ibid
67.A letter from Senior Pastor Joseph Wisdom Sesay of the Cross Purpose Church dated 12 October 2024[63] confirmed that the Applicant had received a good upbringing. He stated that the Applicant had had expressed to a Church leader genuine remorse for his behaviour and is aware of the gravity of his past mistakes.
[63] G33, p.155
68.While the Tribunal accepts that the Applicant’s father is prepared to have the Applicant return to the family home had engaged with the Applicant about his return to the family home, he did not offer any formal plan by which the Applicant would be prevented from engaging in criminal behaviour upon his return to the community.
69.While the Tribunal accepts that the Applicant is remorseful for his actions, the Applicant has not offered any formal plan by which he will be able to access the necessary guidance and support to avoid him offending upon his return to the community. A letter from Cheryl S of VACRO dated 8 April 2025 states the Applicant has been engaged in the ReLink Program since 18 August 2024, for the purpose of developing a plan for his return to the community, Despite the Applicant’s involvement in the Relink Program he offered no plan for his return to the community beyond returning to his family home. That is, the same environment in which he was living at the time of his offending.
70.The Cokorilo report states that the Applicant would benefit from psychological interventions to promote insight into underlying mental health issues and support development of functional coping strategies to manage his trauma and depressive symptoms. The report concludes that the while the Applicant appears genuine in his remorse and desire to reform himself, he presents with poor insight into his actions and limited supports. It states that the Applicant will require significant degree of support and supervision towards his rehabilitation.
71.Despite the conclusions of the Cokorilo report in relation to the level of support the Applicant will require upon his release into the community, the Applicant’s only evidence was that if he is released into the community, his family would provide help and support to:
(a)Avoid drugs and alcohol and being involved in the wrong crowd.
(b)Seek medical help for his HBV and psychological conditions of PDD, MDD and PTSD.
(c)Resume his bricklaying apprenticeship and find employment as a bricklayer.
72.No independent evidence was provided to the Tribunal of any individual or organisation from whom the Applicant intends to receive the necessary medical assistance for his physical and mental conditions. In addition, no independent evidence was provided of any potential community programs or employers the Applicant intended to engage with for the purposes of resuming his bricklaying apprenticeship.
73.In circumstances where the Applicant has not identified the any medical treatment, psychological support, or employers he intends to contact if he is realised into the community (that is a plan for his treatment and reintegration into the community), the Tribunal has placed considerable weight on the Cokorilo report. The Tribunal therefore finds that based on his criminal records, his mental health issues, his diagnosis of HBV, his history of drug and alcohol abuse, limited supports and his past association with negative peers, the Tribunal accepts Cokorilo report and finds that the Applicant represents a moderate risk to the Australian community.
74.The Tribunal places some weight on this consideration in favour of affirming the cancellation decision.
Family violence committed by the non-citizen
75.Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. In this case, there is no allegation of family violence, and this is therefore considered neutrally for the purposes of this decision.
The strength, nature and duration of ties to Australia
76.Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the Applicant’s immediate family are his father, stepmother, two brothers, two stepbrothers, and a stepsister.
77.Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:
(a) how long the Applicant has resided in Australia, including whether the Applicant 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 Applicant has spent contributing positively to the Australian community; and
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
78.The Applicant first arrived in Australia in 2016, when he was 13 years old and resided in Australia here for some of his formative years.[64]
[64] G17, 121
79.The Applicant completed schooling until year 10. He then works as an apprentice bricklayer for two years before being incarcerated. As a result, the Applicant has spent only a limited time contributing positively to the Australian community.[65]
[65] Direction 110, paragraph 8.3(2)(a)(ii).
80.The Applicant confirmed that prior to his imprisonment he was part of the ‘ABZ gang’ and that he mixed with a ‘negative group of friends.’ However, he has indicated that he no longer has any association with the gang and has now connected with a program called Youth Activating Youth. The Applicant claims he has some positive friend working with the program and that he would like to contribute to the program if he is given the opportunity.[66]
[66] G17, 117; Direction 110, paragraph 8.3(2)(b).
81.The Applicant has immediate family members who have a right to remain in Australia indefinitely, being his father, stepmother, and siblings. Despite what the Applicant had previously stated to Ms Cokorilo, the Applicant father’s evidence was that the Applicant was not forced from the family home. The Applicant, by his own behaviour of abusing drugs and alcohol and mixing with a negative group of friends, effectively removed himself from the family home when he was around the age of 16. The Applicant failed to conform to his parents’ directions within the home including refusing to attend church with his stepmother. As a result, rather than come home, the Applicant would ‘couch surf’ with friends prior to him being incarcerated. As a result of the Applicant having been incarcerated, he had limited contact with his family but has reconnected with his family more recently. The Applicant's father provided a letter of support dated 14 October 2024, in which he stated that the Applicant has no family or support in Liberia and that his younger siblings will miss him very much if he is returned to Liberia.[67]
[67] G34, 157.
82.Based on the Applicant’s evidence and the evidence of his father the Tribunal accepts that he has ties to his family in Australia. As a result, the Tribunal has given some weight on this consideration in favour of revoking the delegates cancellation decision.
Best interests of minor children in Australia
83.Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.
84.In this case, the Applicant has identified three minor siblings who would be affected by the decision.
85.The relationships between the Applicant and his younger siblings are non-parental. The parental role for each child is fulfilled by the Applicant father and stepmother. The evidence provided to the Tribunal indicates that the Applicant’s father and stepmother are good people who have provided a stable home for their children.
86.The Applicant younger siblings are very young. As a result, because the Applicant has been in prison for an extended period, the has had limited meaningful contact with them since 2021.[68] The Applicant’s evidence was that he has regular contact with his family both in person and by telephone while in prison. However, the Applicant’s father stated that he had contact with the Applicant by telephone about seven times per year and that he had visited the Applicant in person even less. Nevertheless, it was the Applicant’s evidence that he desired to have a meaningful relationship with his younger siblings and to be a positive influence on their lives.
[68] Direction, 110 paragraph 8.4(4)(a)
87.Based on the Applicant’s evidence, the Tribunal accepts that he desires to be more involved in his younger siblings’ lives in the future. The Tribunal accepts that if the Applicant is returned to Liberia his separation from his family will have an adverse effect on the younger siblings.
88.As a a result the Tribunal places some weight on the best interests of the children in favour of favour of revoking the delegates cancellation decision.
Expectations of the Australian community
89.Paragraph 8.5 (1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
90.Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
91.Critically, 8.5(4) states:
This consideration is about the expectation of the Australian Community as a whole, and in this respect, decision makers should proceed on the basis of the Government views as above, without independently assessing the community’s expectations in the particular case.
92.In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community is an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[69] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[70] In doing so the Tribunal is required to consider the specific circumstance of the Applicant’s case.[71]
[69] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].
[70] Ibid.
[71] Kelly [2022] FCA 396, [98]-[109] (Beach J).
93.The Respondent submits that the primary consideration outweighs in favour of non-revocation.[72] The Respondent contends that because of his serious offending, the Applicant has put members of the Australian community at risk and as such contends that this consideration weighs heavily against revocation.
[72] Respondents Statement of Facts, Issues and Contention at [58].
94.While in prison the Applicant was charged and convicted of the prison offences. The Applicant expressed regret for the prison offences but stated they occurred because of conduct and harm inflicted on him by another prisoner.
95.However, the Applicant arrived in Australia at a relative early age. While the Applicant has committed criminal offences while a minor, his relevant offending occurred at a young age and over a short period of time. In prison the Applicant has voluntarily undertaken a series of courses and program to deal with his drug and alcohol abuse and his violent offending.
96.The Applicant comes from a good family with strong moral values. The Applicant’s father’s evidence was that if released into the community the Applicant would live at home the rest of the family. While it was noted that this is the same environment in which the Applicant lived at the time of his offending, the Applicant’s father stated that the Applicant was now more mature and aware of his actions. While he did not offer any specific actions to be taken, the Applicant’s father stated that the Applicant would benefit from being at home and that he would be able to help guide the Applicant through mature conversation and guidance. The Applicant submits[73] that he is determined to be a better person. He states that he has a genuine respect for the law enforcement agencies in Australia and understands the importance they play in protecting the Australian community.
[73] G17 p.117-118
97.While the Tribunal accepts that the Applicant has committed a serious offence and does possess a risk of reoffending if released into the community, it has placed great weight on the Applicant’s young age, the support of his family and the fact that he has undertaken, on his own initiative, relevant courses, and programs to deal with his drug and alcohol abuse and violent offending. Given these circumstances, the Tribunal considers that the Applicant does not represent an unacceptable risk to the Australia community. As such, the Tribunal has given some weight to the fact that the applicant does not present an unacceptable risk to the Australia community, in favour of revoking the cancellation decision.
Other considerations
98.In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, the Tribunal must consider the ‘other considerations’ listed in Direction 110. These considerations are not exhaustive.[74]
[74] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal consequences of the decision
99.Paragraph 9.1 states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) 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 that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
100.The Applicant claims that he would be killed or seriously injured if returned to Liberia. His evidence was that he was involved in a robbery as a child in which local gangsters forced him and a friend to rob a shop. The Applicant claims that the robbery was unsuccessful, and as a result his friend was caught and burned alive. The Applicant claims he was lucky to get away from the local mob, however, the gangsters caught him and assaulted him so badly that he almost died. They threatened that they would burn him alive if he did not complete another robbery and he believe he will be killed because he ran away.[75] Further, the Applicant believes he will be harmed because of his sexual orientation.[76]
[75] G17
[76] G14,111.
101.The Tribunal notes that it is open to the Applicant to make an application for a protection visa, during which any claim regarding Australia's non-refoulement obligations would be fully considered.[77] In the event that Tribunal affirms the decision under review, the Applicant will remain an unlawful non-citizen and, accordingly, will be liable for removal from Australia as soon as reasonably practicable, and may be subject to a period of time in immigration detention.[78]
[77] Direction 110, paragraph 9.1.2(2); Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [30] per Kiefel CJ, Keane, Gordon and Steward JJ.
[78] s.198 of the Act.
102.In addition, the Tribunal is required to consider that if the Tribunal affirms the decision under review the Applicant will be subject[79] to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth). The respondent submits that the Applicant is not the subject of a protection finding and that his removal and indefinite exclusion from Australia are intended purposes of the statutory scheme.
[79] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]–[14] per Feutrill J.
103.Therefore, considering the Applicant’s circumstances, the Tribunal gives this consideration little weight in favour of affirming the cancellation decision.
Extent of impediments if removed
104.Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to Liberia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
105.In this case the Applicant is 22 years old. He has limited education and limited vocational skills. While the applicant has worked as an apprentice bricklayer, he did not complete his apprenticeship. In addition, he has with several mental health issues including depression, anxiety, PTSD, and substance misuse disorders as well as physical health issues including Hepatitis B[80] and the absence of his right kidney.[81] The Tribunal accepts that the applicant lack of vocational skills together with his mental and physical health issues will impede his resettlement if he is returned to Liberia. In circumstances where the Applicant’s entire extended family has relocated to Australia, and he has no family or social support in Liberia the Tribunal accepts he will face significant practical, financial and emotional hardship if he is removed for Australia. As such, the Tribunal accepts and finds that the Applicant will have considerable difficulty in maintaining a basic living standard if removed from Australia to Liberia.[82]
[80] G35, 159-160
[81] Direction 110, paragraph 9.2
[82] Direction 110, paragraph 9.2
106.The Tribunal gives this consideration significant weight in favour of revoking the delegates cancellation decision.
Impact on Australian business interests
107.Paragraph 9.3 of Direction 110 provides that a decision maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened, as the Applicant has not been employed since before his prison term. This consideration is not enlivened and carries neutral weight.
CONCLUSION
108.The Tribunal has considered the specific circumstances in relation to the Applicant. Given the Applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
109.The primary consideration is the protection of the Australian community. While the Applicant’s offending was serious, for the reasons above the Tribunal has found that the Applicant does not pose an unacceptable risk to the Australia community. Having considered the expectations of the Australian community, the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal has found that the Applicant is an acceptable risk to the Australian community. As such, the Tribunal is satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.
DECISION
110.The Tribunal revokes the decision under review.
I certify that the preceding 132 (One Hundred and Thirty-two) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.
…………[sgd]……………………….
Dated: 24 April 2025
Date of hearing:
28 February 2025
Solicitors for the Applicant:
Advocate for the Respondent:
N/A
Alexandra O’Grady, MinterEllison
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