Rodgers and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1480

Rodgers and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1480 (22 August 2025)
Applicant/s:  Melissa Lee Rodgers
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3979

Tribunal:Senior Member A Suthers
Place:Perth
Date:22 August 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 21 August 2025 at 12:37pm
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – legal consequences and extent of impediments if removed – Applicant is a 30 year old citizen of New Zealand –decision not to revoke the cancellation of the Applicant’s visa affirmed.
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FHHM v Minister for Immigration [2022] FCAFC 19
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 412 ALR 502
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
SECONDARY MATERIALS
Minister for Immigration and Citizenship, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
THE APPLICATION AND VISA CANCELLATION HISTORY

The Applicant seeks review of a decision of a delegate of the Respondent Minister dated 21 May 2025, not to revoke the cancellation of her Special Category (Class TY) (subclass 444) visa (‘Visa’) under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). Unless otherwise stated, all references to legislative provisions in this statement of reasons are to provisions of the Act.
On 7 January 2025, the Visa was mandatorily cancelled under s 501(3A) because the Applicant had a ‘substantial criminal record’ on the basis of having been sentenced to a term of imprisonment of 12 months or more (‘the Cancellation Decision’).[1]
[1] The Act, ss 501(6)(a), 501(7)(c).
On 14 January 2025, the Applicant made representations to have the Cancellation Decision revoked under s 501CA.[2]
[2] Exhibit HB1, p 67-90.
On 21 May 2025, a delegate of the Respondent decided that the power under s 501CA(4) to revoke the Cancellation Decision under s 501(3A) was not enlivened (‘the Non-Revocation Decision’).[3] Notice of that decision was received by the Applicant on 30 May 2025.[4]
[3] Exhibit HB1, p 135.
[4] Exhibit HB1, p 167.
The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision made to cancel a visa under s 501(3A), where the application for review is lodged within nine days after the Applicant is notified of the Non-Revocation Decision.[5] In this case, the application for review was lodged on 9 June 2025, which is within nine days after the decision was notified.[6] The Tribunal has jurisdiction to hear and determine the application.
[5] The Act, s 500(6B).
[6] As the period ended on a weekend and this was the next business day: Acts Interpretation Act 1901 (Cth), s 36(2).
I heard the matter on 30 July 2025 in the Tribunal’s Perth Registry. The Applicant appeared in-person, represented by Ms Cafaro, solicitor. The Respondent was represented by Ms Rezae, solicitor.
The Applicant properly, and correctly, conceded that cancellation of her Visa was mandatory under s 501(6) because she failed the character test set out in that provision.[7] I am satisfied of that fact.
[7] Exhibit HB1, p 661.
The remaining issue to be determined is whether I could be satisfied that there was ‘another reason’ why the Cancellation Decision should be revoked.[8]
[8] The Act, s 501CA(4).
For the following reasons, I have decided to affirm the Non-Revocation Decision.
THE EVIDENCE AND MY PRIMARY FINDINGS
The Applicant gave evidence and answered questions by the Respondent. In deciding the application, I have also considered:
(a)a Hearing Bundle, comprised of pages 1-670 filed with the Tribunal on 28 July 2025 (‘Exhibit HB1’), which includes the parties’ written submissions and Statements of Facts, Issues and Contentions (‘SOFIC’); and
(b)the parties’ oral closing submissions.
I will refer to the evidence and submissions, to the extent necessary to expose my reasoning, below.
Applicant’s personal circumstances, offending history, and the evidence regarding a risk of recidivism
The following is taken largely from the hearing bundle by the parties, together with the evidence of the Applicant. Whilst the Applicant gave oral evidence and was questioned by the Respondent, she was not seriously challenged as to her evidence. Unless otherwise stated, I have accepted her evidence on the basis that I have found no reason to doubt its authenticity.
The Applicant is a 30-year-old citizen of New Zealand. She first arrived in Australia on 27 September 2012 for a period of six months. The Applicant returned to Australia on 24 May 2013 (aged 18 years) and departed and arrived in Australia six times during the period of May 2013 to February 2020. The Applicant last arrived in Australia on 19 February 2020 and has not departed since.[9] On her last arrival, she was granted the Visa.
[9] HB1, p
The Applicant completed school to year 12. She grew up living with her mother and stepfather as well as her two siblings in a supportive home. She acknowledges having a good family environment and having achieved good results at school. She would visit her father every alternate weekend and maintains a good relationship with him.
The Applicant moved to Australia from New Zealand with her first partner, who is now her ex-husband. She describes the breakdown of that relationship and wishing that she had not left the family support that she had left behind in New Zealand. She says that, as a result, she ‘grew up far too fast’. Between the effect of that relationship and a subsequent relationship that ended poorly, the Applicant says that it took a huge toll on her mental health and negatively impacted her decision making. She describes finding herself associating with the wrong people, which ultimately led to her offending.
In Australia, she worked in retail between 2012 and 2016, as well holding a position as a receptionist between 2015 and her incarceration.[10] The Applicant is also a qualified nail and lash technician and had been in the process of setting up her own business.
[10] HB1, p 78.
The Applicant has friends, and an Aunt, who live in Australia.
The Applicant describes her particularly close friends living in Australia as being ‘more like family’. They are:
Ms Sophie Haynes;
(b)Ms Sheridan Helmsby-Knight, who has offered to accommodate the Applicant on her release;
(c)Ms Chelsea Moxham; and
(d)Ms Vanesa Stojic.
The Applicant’s mother, stepfather, father, and two siblings reside in New Zealand.[11]
[11] HB1, p 76.
Criminal offending and other relevant conduct
On 29 April 2022, the Applicant was convicted in the Perth District Court of ‘attempt to possess prohibited drugs with intent to sell or supply’. The Applicant was sentenced to a term of imprisonment of eight years.[12] The Applicant also has convictions for two traffic offences on 10 August 2018,[13] being:
(a)No authority to drive, suspended on 10 August 2018, for which she was fined $400; and
(b)(Use) Mobile phone whilst driving a vehicle on 10 August 2018, for which she was fined $400.
[12] HB1, p 42.
[13] As above.
The Applicant failed to disclose those traffic convictions on a subsequent incoming passenger card.
In addition, the Applicant has 14 recorded traffic offences in Australia, which include prior offending for using a mobile phone whilst driving and subsequent offending of speeding and using an unlicenced vehicle.[14]
[14] HB1, p 349.
Clearly, the attempt to possess prohibited drug charge (‘drug offending’) is far more serious that the traffic offences.
The nature of the drug offending is that on 29 April 2021, police located a backpack containing 2.951 kilograms of methylamphetamine in bushland, with a purity level of between 78 and 80 percent. The police substituted the suspected methylamphetamine with an inert substance and returned the backpack to the secluded bushland. The Applicant later drove into the bushland to collect the backpack and exchanged phone calls and text messages with third parties regarding the delivery of the drugs. The Applicant then drove to an identified safehouse in Stratton sometime later. The police intercepted the Applicant and apprehended her carrying one kilogram of an inert substance, with the Applicant having dropped off two kilograms of the inert substance at a safehouse prior to her arrest.
The sentencing Judge described the nature of the drug offending and the Applicant’s involvement:[15]
At 6.35 pm on 29 April last year, you drove into that bushland and you collected the backpack. You were on the phone to somebody else and the exchange of text messages on that phone reveal that you were being given instructions. The effect of those messages included you saying things like … you were feeling some anxiety about being involved in what you were doing. At one point you received instructions that 1 kilogram was to be dropped off by you to one particular person perhaps named Luke and then you were to go on to what was referred to as the safehouse. But you replied to that message by saying in effect that you rejected that instruction, that you were going to go straight to the safehouse.
…
And the communications suggested that after you were going to drop off a portion of what you believed to be methylamphetamine at the safehouse that you were going to make perhaps two further drops to addresses, one in High Wycombe and one in Noranda. It’s apparent from the text messages that at the first place that you stopped to do a drop, you were surprised to find that there were 3 kilograms of what you believed to be methylamphetamine. You received a reply and there was an exchange of messages that reveal you had anticipated there being 2 kilograms and in fact that’s what was intended by others.
Although you expressed unhappiness about being caught by surprise at the presence of 3 kilograms rather than 2 kilograms, you nevertheless resolved or you did in fact continue travelling with a view to making further drops.
However, after you left the safehouse police pulled over the vehicle and they found what was by then the 2 kilograms of inert substance, you having left 1 kilogram at what I’ve referred to as the safehouse. Also found in that safehouse were items such as clipseal bags, gloves and electronic scales.
Against the background of those circumstances, I want to say something now about the seriousness of your offending. The quantity of drugs and the purity of drugs is not the chief factor when it comes to sentencing, but it is an important factor because it reveals the potential for harm of the operation in which you involved yourself. Your intent relevantly was to control what you believed to be 2 kilograms which is what you believed you were picking up in the bush in Bickley. Once you realised there was 3 kilograms involved you expressed surprise as I’ve said, but nevertheless you were determined to continue.
[15] HB1, pp 41-49.
The Court was:
satisfied beyond reasonable doubt that a short time later upon becoming aware that there was in fact 3 kilograms of what you believed to be methylamphetamine, you determined to continue your involvement with that operation.
Those 3 kilograms, had the potential for significant harm. Methylamphetamine may be consumed in dosages as small as .1 of a gram. So when speaking about 2 kilograms of methylamphetamine, I am speaking about 20,000 doses in the community. The potential for harm is obvious.
Dealing specifically with the Applicant’s culpability and personal circumstances, the Court found that:
It must be said at the outset that there is no evidence of you being involved in sourcing any money to purchase drugs. There is evidence that you were trusted with possession to move the quantities of drugs that I’ve spoken about a short distance over a relatively short period of time. There was approximately an hour between when you collected the drugs and when you were caught and the deliveries in the nearby suburbs would not have taken much longer.
You were trusted to break up the methylamphetamine into smaller lots and to leave it for example at the safehouse and those other drops. There was a measure of trust placed in you by those that were above you in the transaction that had arranged the transaction, that had funded it. There was no evidence of you being trusted with any money, of collecting any money.
The only evidence of you benefiting at all commercially is evidence that you expected to be paid between 500 and a thousand dollars for each drop that you did. And there’s no evidence of you being involved in actually selling any of that drugs in the community yourself, although of course ultimately, that is what was the whole purpose of the operation in which you were involved to the extent that I’ve said.
So your role, although not an instigator, not a funder, was essential insofar that if drugs are to be distributed, someone has to move those drugs from A to B and someone, where there’s a large quantity, needs to break it up and that was you.
I want to say something now about you, Ms Rodgers, before I talk about what the law refers to as mitigating factors. You were born in New Zealand. You’re 27 years of age now. You were 26 as in April of last year. Your parents separated when you were a young child. To this day, you remain close to your mother and she’s present in court; she’s come from New Zealand to support you. You were close to your father as well. The reality is that your relationship with him was changed as a result of him being involved in a motorbike accident when you yourself were relatively young and he suffered a brain injury.
You left home at the relatively young age of 16 to live with a partner and you came to Western Australia with that partner when you were 17 years of age. When you were about 20, that relationship ended. That was an unhappy development for you, but that relationship was unsatisfactory.
You’re someone who’s almost always worked. There was a period when you worked in foreign exchange, but most recently between 2015 and 2021 when this offending occurred, you were working for an accounting firm in an administrative role. At the same time, you ran your own business, a beauty type business. You’re someone who has a strong work ethic.
By the time you were aged 22, you had commenced your second significant relationship, but that relationship ended not long before this offending occurred. So when you were about 26 years of age. The end of that relationship was not expected by you and the material before me suggested that that had a profound effect on you emotionally.
The material before me suggests very, very occasionally you used illicit drugs, but that you were not someone who was using drugs at the time of this offending or has been someone who’s ever been addicted to drugs.
Against the background that I’ve described, an unremarkable background insofar as you’re someone who has never had any involvement with the criminal justice system. You’re someone who’s worked hard and you’re someone who has impressed particularly your employers and your landlord; I have a reference to that effect.
I turn then to the report of the psychologist in an attempt to understand how it was that you became involved in this offending and the psychologist’s opinion is set out particularly at paragraphs 14 and 15, and I’ll attempt to paraphrase what’s said there.
What’s said is that you admitted that you started to mix with adverse peers after your second relationship broke down and that it’s likely you were influenced by them and that you were vulnerable at that time. It’s said that you had no family supports in Western Australia and that you had been offered some money, although that was not particularly significant to you.
The psychologist notes the view that you’re someone that has a tendency to please others and to seek approval, and that this may well be relevant to what was happening in April of 2021. The psychologist speaks about you being dependent in relationships and that this having limited you in terms of someone who’s not properly emotionally matured.
A lot of this technical language I think, Ms Rodgers, is to say in effect that you’re someone who is immature, who has found it difficult to say no, to extract yourself from situations when it’s obvious you should extract yourself from that situation. The psychologist says that as you began to mix with adverse peers, it’s likely that you were influenced by them and sought their approval.
The psychologist notes that you have strong protective factors. This is in terms of looking to the future, such as a successful and stable work history, no mental health challenges, no major substance abuse challenges and a previous prosocial lifestyle but what’s happened, according to the psychologist, is that emotional immaturity and impulsivity has led to your involvement in this offending.
It’s worth noting I think, Ms Rodgers, that since this offending, in prison, as you have before you went to prison, continued to impress people who you work for.
You’ve completed programs, you head a section that’s involved in the production of meals for Justice Department employees in the prison. The catering manager describes you as an asset, trustworthy and extremely loyal.
I come then, Ms Rodgers, to what the law refers to as mitigating factors. So these are factors I take into account as relevant to reducing any sentence that I would otherwise have imposed. The first is to say that I accept that you are remorseful, that you genuinely regret your involvement in what happened of April of last year.
The evidence in support of that finding, I think, includes that when the police asked you for your PIN number, you handed your PIN number over. That certainly assisted the police to understand your involvement in that transaction. You pleaded guilty, as I said, at the first reasonable opportunity. You’ve written a letter to the court which explains your regret, your remorse. I’ve referred to your conduct in prison since you’ve been in custody. All of that suggests to me that you are truly remorseful.
For similar reasons, I think your prospects of rehabilitation are excellent. To everything that I’ve said, I would add that you have the support of family and friends as important protective factors. I also take into account your age when this offending occurred; you were 26 years of age.
Someone that’s young does not always appreciate the consequences of their conduct, does not think ahead to what’s going to follow, and that’s particularly the case with you on this occasion, I think, Ms Rodgers. So I bear that in mind in considering what’s an appropriate sentence. I also think it’s relevant that your time in custody will be spent a long way from your family, who are in New Zealand.
It’s against that background, then that I note that what’s been said as relevant consistently when it comes to sentencing for drug offences that involve serious harm in the community are principles of general deterrence; the need to send a message to everybody in the community that you must resist the temptation to become involved in dealing in drugs and if you don’t resist that temptation, then the consequences will be very serious upon being caught.
It seems to me that that’s a significant – well, it is a significant factor when it comes to sentencing, given the seriousness of this offence and I note that it’s also relevant to observe that specific deterrence has a role in relation to sentencing in relation to drug offences, although that may be less relevant in relation to you, Ms Rodgers, somebody who is not, for example, a substance abuser, being addicted to drugs.

The Court declared the Applicant as a drug trafficker.
In evidence before me, the Applicant said that she was given the telephone used in the offending and did not know who she was communicating with.
Whilst she has acknowledged past recreational illicit drug use as part of ‘partying and socialising’, the Applicant says she would no longer use drugs on release because she has ‘grown up a lot and spent the last four years reflecting’ on her conduct.
The Applicant will first be eligible for parole in April 2027.
The Applicant’s rehabilitation and the risk of recidivism
Since her incarceration, the Applicant has completed at least seven sessions of an addiction recovery program through the Whitehaven Clinic, and a brief cognitive skills program. She has also obtained:
qualifications relating to working in confined spaces and at heights as well as gas testing;
(b)a Certificate II in Community Services;
(c)a Certificate II in Commercial Cookery; and
(d)a Certificate III in cleaning operations.
The Applicant is now working towards a Certificate IV in Workplace Health and Safety.
The Applicant was awarded 2023 vocational student of the year at Eastern Goldfields regional prison. She works seven days a week in the prison kitchen, in a senior role, and provided a letter of recommendation from her supervisor.
She has also volunteered her time knitting material for the ‘City of Kalgoorlie-Boulder Mayor’s Winter Warmth Appeal’ as a way giving back to the community.
The Applicant says that she is now a different person to the one who offended and that she was young and naïve at the time of her offending, and was easily manipulated. She describes the Whitehaven programme as helping her to put healthy and manageable boundaries in place. She says that she has removed any negative influences from her life and intends to maintain that position. She says that she knows that she will not reoffend or commit any other offences in Australia.
The Applicant says that she takes full responsibility for her offending and wishes that it had never happened. She describes that since being incarcerated she has seen first-hand the true impact, damage, and consequences that drug use can have on people within the community and is, as a result, remorseful for the severe negative impact her actions have had on her family, friends and the community.
At the time of her incarceration, the Applicant owned two dogs that she remains very fond of. She has, however, left them in the possession of the owners of the ‘safehouse’ referred to in the sentencing remarks above. Given the length of her sentence, she would leave the dogs with their current custodians on her release even if allowed to remain in Australia. She says, though, that her contact with those persons would be limited on her release simply to communicating in respect of the dogs, and only if it could occur without exposing her to criminal behaviour.
The Applicant has provided various letters of support. Ms Helen Klimczak is the Applicant's former landlord. She describes the Applicant as very reliable and a good tenant. She also says that she would have no concerns having the Applicant as a tenant again.
Mr Ray Holden is the director of the business for whom the Applicant was a receptionist. He describes the Applicant as a valuable member of his organisation’s team. He says that she was, at the time of her incarceration, looking forward to developing her career and progressing within the firm. Mr Holden describes the Applicant as being willing to assist others and described her offending as out of character.
The Applicant has an offer of employment from Mr. A Bonfiglio for when she is released from incarceration. He describes the Applicant as having solid core values, morals, and a genuine nature. He says that he does not offer a position to the Applicant lightly, or without due consideration. He would provide her with assistance in personal and professional development in her career if she was able to work with his organisation.
The Applicant’s aunt, Ms Tania Tyler, and her friends, Ms Stojic, Ms Moxham, Ms Helmsby-Knight, and Ms Haynes all provided glowing letters of support for the Applicant, speaking to her good character and the strength of their relationships with the Applicant. Collectively, they speak of the Applicant’s remorse, and a commitment to ‘reclaim her life’, her hard work in prison, and their ongoing and steadfast support for the Applicant. They also speak of the Applicant’s ability to be a valuable member of Australian society, and the Applicant’s acknowledgment of her wrongdoing.
Ms Tyler visits the Applicant in prison about twice a year and they speak regularly on the telephone. She describes their relationship as having become much closer since her incarceration. The Applicant’s friends are in regular contact with her.
Some adverse incidents have been reported against the Applicant early during her time in prison. She was involved in creating a makeshift ‘slip-n-slide’ in January 2022, and in passing cigarettes. However, her reports overall, and particularly more recently, are very positive.
The only expert evidence before me that goes to the extent of the Applicant’s risk of recidivism is the psychological assessment that was available to the sentencing Judge. It was completed by Ms Jane Sampson, Clinical and Forensic Psychologist, and is dated 11 April 2022. Relevantly, Ms Sampson opined that:
16Ms Rodgers described childhood challenges such as early parental separation, conflict with her step-father and her father being involved in a serious road accident, which led to personality changes, behavioural problems, emotional dysregulation and incapacity. She was very close to her father and lost his support and guidance as a result. She also left home to live with a boyfriend at an early age and moved to Western Australia, which again limited support and nurturance from her family. She has had two significant relationships and she was particularly devastated at the loss of the most recent union. She was reported to be somewhat dependent in relationships, which probably limited her emotional maturation. It was after this that she began to mix with adverse peers and she is likely to have been influenced by them and sought their approval. She has protective factors such as a stable and successful work history, no prior mental health challenges, no major substance use challenges, a lack of personality pathology and a previous pro-social lifestyle. However, there is some suggestion of emotional immaturity and impulsivity, which is relevant to her offending choices. She appears to be susceptible to the adverse influence of others as a result. She also appears to repress her feelings as a coping strategy, and she appears to distract herself with work and socialising. There also appears to be some motivation in relation to financial gain.
17The main drivers for Ms Rodgers’s offending behaviour appear to be:
·    Emotional immaturity and naïvety;
·    Emotional destabilisation after the loss of her relationship;
·    Distraction from difficult feelings that she repressed;
·    A lack of family support in Western Australia;
·    Dependence on others in relationships;
·    Approval seeking;
·    Poor judgement and poor consequential thinking;
·    Susceptibility to the influence of and association with adverse others;
·    Financial gain.
18Ms Rodgers would benefit from cognitive behavioural treatment and target to her ability to process feelings, her emotional immaturity, susceptibility to the adverse influence of others, poor judgement and poor consequential thinking. She will likely be provided with relevant programs if sentenced to a custodial outcome.
She should also access individual psychological counselling when released to address the above challenges.
In addition, Ms Kristen Harvey, the Program Facilitator of the Whitehaven Clinic course undertaken by the Applicant, described the Applicant as ‘showing remarkable determination to grow as a person and become the healthiest version of herself’. She said that the Applicant has ‘confidently embraced every aspect of the programme and has consistently demonstrated high levels of engagement including completing all homework tasks before sessions.’ Ms Harvey described the Applicant as ‘becoming increasingly self-aware, asking insightful questions and being curious in respect of her own personality to avoid relapse in the future.’
The Applicant is classified as a ‘low risk’ prisoner.[16]
[16] HB1, p 64.
LEGAL FRAMEWORK
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was explained by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection:[17]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[17] (2018) 162 ALD 13, [64] (Colvin J).
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (albeit in the context of Ministerial Directions preceding Direction no. 110).[18] The Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[19] While the Court was considering Direction No. 90, I am satisfied that its observations apply equally to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[20]
[18] See, for example Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 (‘Suleiman’), Minister for Home Affairs v HSKJ (2018) 266 FCR 591.
[19] [2023] FCAFC 138 (‘CRNL’).
[20] CRNL, [35].
The Migration Act
Under s 501(3A), the Minister must cancel the visa of certain incarcerated persons if the Minister is satisfied that the person does not pass the character test because they have a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A), the person must be 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.
It is not in dispute, and I have found, that those conditions were met here.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[21] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is ‘another reason’ why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is another reason why the cancellation decision should be revoked.[22]
[21] The Act s 501CA(3).
[22] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction no. 110
The Minister, and therefore the Tribunal on review, is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law.[23] By the operation of s 499(2A), in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to
[23] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456, [119] (Halley J).
s 499(1).
On 7 June 2024, the Minister made Direction no. 110 under s 499, which commenced operation on 21 June 2024. That is the Direction that must be applied.[24]
[24] Direction no. 110 paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
[25] Direction no. 110 para 5.1(4).
[26] Direction no. 110 para 6.
ss 501 or 501CA.[25] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[26] However, the Direction does not authorise or require the Tribunal to ignore other relevant evidence or factors that may lead the Tribunal to a state of satisfaction that there is ‘another reason’ to revoke the Cancellation Decision.
Whilst the primary and other considerations in Direction no. 110 are mandatory considerations, they are ‘not an exhaustive universe’ of considerations.[27] Put another way, while Ministerial directions may serve a purpose of consistency of decision-making, the Minister cannot, by such a direction, dictate what must be the outcome before the Tribunal undertaking its review on the merits of a particular decision.[28] Similarly, there is no presumption that, because a person fails the character test, it means that they must not be allowed a visa.[29]
[27] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, [45].
[28] Kumarv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 412 ALR 502, [26] (‘Kumar’).
[29] Kumar, [41].
Paragraph 5.2 of Direction no. 110 contains several principles that must inform my application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision. Those principles are:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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 measureable [sic] risk of causing physical harm to the Australian community.
5Australia 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.
6With 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.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction no. 110, I must take into account the primary considerations and the other listed considerations, where they are relevant, having regard to the specific circumstances of the case. I must also consider the Applicant’s other clearly articulated submissions based on established facts that may properly bear on my decision.
The primary considerations are set out in para 8 of the Direction. They are:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)the expectations of the Australian community.
The ‘other considerations’ that I must properly consider, insofar as they are relevant to the matter, include (but are not limited to):[30]
(a)       legal consequences of the decision;
(b)       the extent of impediments if removed; and
(c)       the impact on Australian business interests.
[30] Direction no. 110 para 9.
Further guidance as to how I am to apply the considerations in
Direction no. 110 can be found in para 7, which provides:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
However, as regards para 7(2), in FHHM v Minister for Immigration,[31] the Full Federal Court considered its precursor in Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ, with Derrington J in agreement, referred with approval to remarks made by Colvin J in Suleiman,[32] and stated at [34] that ‘…particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one or more of the primary considerations...’.
[31] [2022] FCAFC 19.
[32] Suleiman, [23].
It is not sufficient for the Tribunal to weigh each of the considerations in Direction no. 110 separately and then aggregate each of the individual assessments by some form of tabulation or calculation. The Tribunal must undertake a process of weighing and balancing, by which it evaluates the different relevant considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion required by s 501CA(4) of the Act.[33]
[33] CRNL, [28], [34]-[35], [37]-[38].

The discretion conferred by s 501CA(4) is to be exercised subject to the Act and to the self-evident Australian community protective purpose of the discretion. However, by virtue of the section conferring a discretion, it necessarily follows that Parliament has accepted that this purpose is not necessarily served in any given case by a refusal to grant a visa to a person who does not pass the character test.[34] Punishment of the Applicant for the conduct or offences relevant to the decision plays no part in the Tribunal’s evaluation. That is a role that is ‘exclusively judicial in nature’.[35] However, the process by which the Applicant’s visa was cancelled, and whereby that cancellation may not be revoked, is not itself punitive in nature.
CONSIDERATION
[34] Kumar, [41].
[35] Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [27] (Brennan, Deane and Dawson JJ).
Protection of the Australian Community
The first primary consideration at para 8.1(1) directs my attention to the protection of the Australian community. It requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and, 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.
I must 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.[36]
[36] Direction no. 110 para 8(1).
Paragraph 8.1(2) then provides that I must also consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
I addressed the Applicant’s drug offending conduct above and have taken into account the undisputed nature of her less significant, but nonetheless notable, traffic offending.
Direction no. 110 requires me to take into account a range of factors, including certain conduct which is specifically categorised in para 8.1.1(1), and thereby deemed to be regarded by Australia’s Government and community as ‘very serious’ or ‘serious’.
In respect of her drug offending, I take into account the severity of the sentence imposed by the court, noting that incarceration is a sentencing option of last resort. The sentence the Applicant received was particularly significant given that she was sentenced on the basis that she had no prior offending history. As the sentencing Judge noted:
One of the matters that I have to take into account in setting the appropriate sentence for that charge is the maximum penalty which is fixed by law and the maximum penalty which is fixed by law for this offence is life imprisonment and that says something about how serious this offence is viewed in our community.
I have also considered the fact that the Applicant was dealing with a trafficable quantity of very pure Methamphetamine.
I accept the submission of the Respondent that the significant harm to the community arising from methamphetamine use is well-documented, and that the amount involved equated to up to 20,000 doses that could have gone into the community.
The Applicant’s role, whilst by no means indicative of her having significant control over the drug operation, was nonetheless ‘essential’ to the operation and she was trusted to break up and distribute the drugs. However, her part in the operation was limited in both its nature and duration.
Whilst, overall, the Applicant’s offending has obviously become more serious over time, given the isolated nature of the drug offending I do not think it is properly considered as showing a ‘trend’ of increasing seriousness.
There is, however, the cumulative effect of the ongoing traffic offending to be considered with the drug offending, as it places an ongoing burden on the justice system, and an ongoing risk through the Applicant’s failure to maintain safe driving habits.
Whilst the Respondent submits that the Applicant’s failure to declare her criminal convictions relating to her traffic offences on an incoming passenger card on 28 December 2018 shows a lack of regard for Australian law, I accept the Applicant’s evidence that she did not understand the convictions for those traffic offences to be criminal in nature. I note that similar offending in respect of using a phone whilst driving was not considered a criminal offence other contexts on her traffic history. This issue adds no weight to any concerns about the Applicant under this consideration.
The Applicant’s very poor traffic history does little to militate against findings that her overall offending conduct should be considered as very serious.
I accept that there is no evidence of the Applicant having been warned of the consequences of her conduct on her migration status.
The Applicant acknowledged that her drug offending must be considered ‘very serious’. The Respondent agrees.
I am satisfied that the Applicant’s offending must be regarded as being viewed as ‘very serious’ by Australia’s government and community.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I must then consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
There is no statutory constraint on the way that I assess risk other than that there must be a rational and probative basis for my assessment.[37]
[37] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).
Nature of the harm
I am required to have regard to para 8.1.2(1) and have done so.
In respect of the risk of further harm, I agree with the Respondent that the nature of the harm that would be caused to the Australian community if the Applicant were to reoffend (by way of further drug offending or driving offending) is very serious and may have wide reaching effects on the community. Any future offending of a similar nature would have the potential to cause serious physical or psychological injury, and/or financial harm to members of the Australian community. The Applicant did not contend otherwise.
The Respondent further referenced the Final Report of the National Ice Taskforce, 2015,[38] where the effect of methamphetamine was described as follows:
Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
[38] RSFIC HB1, p 176.
The Respondent submits that the harm that could flow from further methamphetamine supply into the community is such that any risk of the Applicant re-offending is unacceptable.
In respect of that risk, the Respondent notes that:
(a)the Applicant has attributed her drug offending to being ‘young and naïve’ and, as a result, being ‘easily manipulated’. The Applicant also attributes the offending to ‘manipulation by individuals’ and being ‘emotionally immature’; and
(b)the Applicant has admitted to illicit drug use in the past, ‘mixed with adverse peers after her second relationship broke down’, and ‘was influenced by them and sought their approval’.
Given the alleged reasons behind the offending, the Respondent contends that the risk of re-offending remains unacceptable because of:
(a)the Applicant’s negative incidents in prison;
(b)the limited evidence of rehabilitation or engagement with counselling to address the underlying factors the Applicant says contributed to her offending, such that the Respondent contends that any factors that played a role in the offending remain an issue. In this regard, the Respondent relies on the limited evidence that the Whitehaven course was addressed to those issues and the fact that the cognitive therapy course the Applicant has engaged in occurred before Ms Sampson’s recommendation in 2022 that the Applicant required more treatment of that nature; and
(c)the lack of evidence of an outcome from the Whitehaven Clinic for addiction treatment and recovery, and the lack of any evidence that it addressed the factors behind the Applicant’s offending (for example addressing childhood trauma, or the breakdown of her relationship), or how the programs have reduced the Applicant’s risk of reoffending.
As a consequence, the Respondent submits that the factors that contributed to the Applicant’s past offending remain present.
In respect of the Applicant’s family, friends, and potential for employment serving as protective factors, the Respondent says this should also be treated cautiously as the factors the Applicant relies on now did not prevent her from her past conduct and offending.
Overall, the Respondent submits that this primary consideration weighs very heavily against revocation, given the safety of the Australian community is the highest priority of the Australian government and should be given the greatest weight.
The Applicant though, submits that her insight into her offending and remorse for it, the limited role she had in the drug offence, and the strong support of her social network all weigh against a finding that she poses a significant ongoing risk. Referring to her recent positive behaviour in prison and the courses she has engaged in, she submits that, on the contrary, any risk she now poses is low and manageable.
I take into account the reported negative incidents in prison but give them no weight, having regard to the far more positive recent reports. A report in February 2025[39] describes the Applicant as able to work unsupervised and to always use her initiative. It says that in prison she is a polite person, reliable, responsible, and committed to achieving success through her own efforts. She is always asking questions and furthering her knowledge in the workplace. She works well in a team environment, always taking on a leadership role and helping others when required. She is a diligent person and her commitment is valued.
[39] HB1, p 268.
I accept though, that there is little beyond the recent positive reports and the Applicant’s self-report to demonstrate that the therapeutic involvement the Applicant has received has thoroughly addressed the issues that the Applicant, or Ms Sampson, believed triggered the drug offending.
I also note Ms Sampson’s opinion that seeking financial gain and a lack of family support in Western Australia contributed to that offending. The Applicant’s financial position is unlikely to have improved during her incarceration. Whilst she has become closer in her relationship with her aunt, they will still remain somewhat geographically distant on release if the Applicant lives with Ms Sheridan, as planned.
I have considered the sentencing Judge’s view that the Applicant’s prospects of rehabilitation were excellent. However, despite the existence of the protective factors identified by the Applicant, and the Applicant’s express remorse and exemplary recent conduct, I accept the Respondent’s submissions as to this issue. I am satisfied that there remains an unacceptable risk of harm to the community given the seriousness of the harm that would be caused to the community if the Applicant reoffended in a like manner to the drug offending, and paucity of other evidence that the remaining issues that contributed to the possibility of the Applicant returning to like conduct have been addressed.
In conclusion, in respect of protection of the Australian community, I assess this primary consideration as weighing very heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Under para 8.2 of Direction no. 110 I must have regard to any family violence perpetrated by the Applicant when deciding whether to revoke the Cancellation Decision.
It is not suggested, and I am unable to identify, that the Applicant has engaged in any form of family violence. This consideration is neutral, in that it weighs neither for nor against the revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction no. 110 provides that:
1Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has primarily resided in Australia since 2012. She submits that she has built her entire adult life here. In addition, her aunt and her closest friends, who she treats as family and who are her support network, all reside here.
I accept that submission and note those persons all have the right to live in Australia indefinitely. Given the recent strengthening of the Applicant’s relationship with her aunt, I will treat Ms Taylor as an ‘immediate family member’ of the Applicant and consider the impact the Applicant’s removal would have on Ms Taylor. In that regard, given the absence of other family members residing in Australia, I assess that the Applicant’s removal would have a detrimental impact on Ms Taylor.
I also accept that the Applicant’s ties to Ms Stojic, Ms Moxham, Ms Helmsby-Knight, and Ms Haynes are of long-standing, strong and enduring.
The Applicant also submits that whilst her other immediate family reside in New Zealand, she has been absent for over a decade and her ties have weakened significantly. I infer that this is relied upon to bolster the significance and importance of her ties to Australia.
I do not accept that submission insofar as it relates to the Applicant’s family ties, as there is simply no evidence to support it from the Applicant or that I am otherwise satisfied could found a proper inference to that effect. The Applicant last visited New Zealand in 2020. I note the Applicant’s self-described happy upbringing with her family in her statement seeking revocation of the cancellation of the Visa, as well as her mother’s attendance in support at her sentencing. Otherwise, I am prepared to infer that her, now long, absence has weakened her ties to New Zealand by the simple passage of time.
I have taken into account that the Applicant did not start offending soon after arriving in Australia. Her first recorded traffic offence was not until June 2015.
The Applicant submits that this consideration weighs very heavily in favour of revocation of cancellation of the Visa.
The Respondent accepts that the Applicant has made some positive contribution to the Australian community through her employment and work history.
The Respondent also accepts that this primary consideration weighs in the Applicant’s favour but submits that it does so to a limited extent given the Applicant’s immediate family is based in New Zealand.
It is not the Applicant’s contribution to Australian society that is relevant to this consideration, but rather her ties to the community and the effect removal will have on her family in Australia. I cannot overlook that the Applicant has consistently retained her permanent place of residence here over many years, nor the strength of her bond to her friends and her aunt. Overall, I find that this primary consideration weighs heavily in favour of revoking the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
It is not suggested, and I am unable to identify, that the interests of any children are affected by the Cancellation Decision. This consideration is neutral, in that it weighs neither for nor against the revocation of the Cancellation Decision.
Expectations of the Australian Community
The fifth primary consideration requires me to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
It also notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in paragraph 8.1.1 as conduct which is considered ‘very serious’ or ‘serious’.

Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Applicant made no specific contention as to how this factor should be weighed,
The Respondent contended that, in accordance with the principles set out in para 5.2 of Direction no. 110, the Australian community would expect that the Applicant should not hold a visa on account of the nature of the character concerns engaged and the Applicant’s offending.
Overall, the Respondent contended that this primary consideration weighs very heavily against revocation of Cancellation Decision.
In weighing this consideration, I am also guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
I am satisfied, given the seriousness of the relevant conduct, that this consideration weighs very heavily against revoking the Cancellation Decision.
Other considerations
Paragraph 9 of Direction no. 110 states:
1In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
I must consider the legal consequences of the Cancellation Decision on the Applicant, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[40] However, the non-refoulement issue is not engaged here.
[40] Direction no. 110 para 9.1.
There are a range of legal consequences for the Applicant of a decision not to revoke the Cancellation Decision, which include:
(a)the likelihood of her remaining in detention pending her removal to New Zealand;[41]
(b)refusal of any other visa applications she has made and cancellation of other visas she may hold;[42]
(c)a prohibition on her applying for other visas;[43] and
(d)periods of exclusion and special return criteria may apply.[44]
[41] The Act ss 189, 196, 198.
[42] The Act s 501F.
[43] The Act s 501E.
[44] The Act s 503; special return criteria (SRC) 5001.
Generally, if the Applicant’s visa remains cancelled, she remains an unlawful non-citizen.[45] Under s 189, the Applicant must remain detained after her incarceration ends and be removed as soon as reasonably practicable under s 198.[46] On that basis, her ongoing detention should be short-lived if the Cancellation Decision is not revoked, and this does not weigh heavily in favour of revocation.
[45] The Act s 15.
[46] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313, [112]-[122] followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find that the Applicant’s detention had at all times been lawful.
The legal consequences I have described follow as a matter of statutory construction, and it may be said that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen. However,
Parliament must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in the person’s visa being restored. In that event, the adverse consequences described above will not befall them.[47]
[47] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.
Further, I note that it is the ‘practical realities’ in ‘human terms’ of the legal consequences that are important, rather than the legal consequences in the abstract.[48] I proceed on that basis.
[48] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003, [5] (Feutrill J), cited in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192, [60].
I accept that the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501.
However, that does not mean that they affect all Applicants equally.
The Applicant submitted that her loss of the ability to maintain her ties to Australia would destabilise her mental health and generally be a negative impact on her life. However, there is no evidence that the Applicant’s friends here would not maintain contact with her, or that their deeply expressed support for her would end if she is deported. Ms Haynes and Ms Helmsby-Knight are both New Zealand citizens. There is no evidence as to any specific impediment on Ms Taylor or the Applicant’s other close friends visiting her in New Zealand, nor of any particular difficulty in them maintaining contact with her via electronic communication.
However, if removed from Australia, the Applicant will be removed from her important social network and prevented from returning to Australia, which will likely have some detrimental impact on her wellbeing. Whilst the Respondent submitted that I should give this consideration neutral weight, I am satisfied that it carries modest weight in favour of revoking the cancellation of the Visa.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that, taking into account the matters identified in paras 9.2(1)(a)-(c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraphs 9.2(1)(a)-(c) are:
the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in their country.
The Applicant said that her reintegration into New Zealand society would be difficult due to the extended period of her absence and the lack of meaningful connections she has there.
The Applicant submitted this consideration weighs strongly in favour of revocation.
The Respondent submits that the Applicant is 30 years old and has not declared any health issues. The Respondent contends that any impediments would be short-term because:
(a)as a citizen of New Zealand, the Applicant will have the same access to social, medical, mental health, and economic support as other citizens. New Zealand is culturally, linguistically, and politically similar to Australia. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to her in Australia; and
(b)the Applicant also has her mother, father, stepfather, brother, and sister in New Zealand and, from her movement records, she has returned to New Zealand on multiple occasions;
The Respondent contends that there is nothing to suggest that the Applicant would be unable to re-establish herself in New Zealand and maintain basic living standards. Accordingly, Respondent submits this consideration weighs neutrally, or at most moderately, in favour of revocation.
I have already addressed my findings regarding the Applicant’s available support from her family in New Zealand. In addition, she will leave prison with several new qualifications and skills to add to those she had prior to her incarceration. I accept the Respondent’s submissions in respect of this consideration and, accordingly, I will afford this consideration moderate weight in favour of revoking the cancellation of the Visa.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 requires the Tribunal to consider this issue, where relevant.
The Applicant did not specifically address this consideration, and the Respondent submitted that it is not engaged. I note, though, that the Applicant has been employed in Australia and was considering going into business before her incarceration.
Whilst I am satisfied this consideration is engaged, there is nothing to suggest that the Applicant’s contribution to Australian business is of particular moment.
I give this consideration neutral weight; in that it weighs neither for nor against revoking the cancellation of the Visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
I have then weighed and balanced the relevant considerations in this matter as part of a single evaluation, to determine their relative significance and decide whether I am ultimately satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
I have considered that para 7(2) of Direction no. 110 states that the primary consideration in para 8.1 (protection of the Australian community) is ‘generally to be given greater weight than other primary considerations’, and that, otherwise, the relevant ‘primary considerations should generally be given greater weight than the [relevant] other considerations’. This is consistent with the principle at para 5.2(2) that ‘the safety of the Australian community is the highest priority of the Australian government’. However, this does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[49] I have found no reason to depart from those qualified directions in this matter.
[49] Suleiman.
It was necessary, for transparency and due to the need to set this statement of reasons out sequentially to make it more accessible, to deal with each of the mandatory and other listed and otherwise relevant considerations in turn. However, I have considered whether there is ‘another reason’ why the Cancellation Decision should be revoked in a holistic manner, having regard to all of the relevant considerations (viewed in the manner that para 7 of Direction no. 110 says the listed relevant considerations are to be taken into account and weighed, and noting the import of para 5.2).
On that basis, there is no advantage in repeating the mandatory and other considerations and describing the weight and effect I am satisfied they should each be given in my assessment.
Having weighed the considerations in favour of the revocation of the Cancellation Decision and the considerations against revocation in that manner, I am satisfied that the considerations weighing against revocation, being the primary considerations of the protection of the Australian community, and the expectations of the Australian community, outweigh the considerations in favour of revocation, being the primary consideration of the strength, nature and duration of the Applicant’s ties to Australia, and the other considerations of the legal consequences and extent of impediments if the Applicant is removed.
In summary, having regard to all of the mandatory and otherwise permissible considerations, I am not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. I will affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers

.................[SGD].....................................................
Associate
Dated: 21 August 2025

Date of hearing: 30 July 2025

Solicitor for the Applicant: Ms Jasmyn Cafaro, Cafaro Legal

Solicitor for the Respondent: Ms Anis Rezae, Sparke Helmore Lawyers

Date of hearing:	30 July 2025
Solicitor for the Applicant:	Ms Jasmyn Cafaro, Cafaro Legal
Solicitor for the Respondent:	Ms Anis Rezae, Sparke Helmore Lawyers