RRRB and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 471

RRRB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 471 (13 March 2025)
Applicant/s:  RRRB
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/10791

Tribunal:Deputy President Burford
Place:Perth
Date:13 March 2025
Date of Written Reasons: 7 April 2025

Decision:The Tribunal affirms the decision under review.

............................................[SGD]............................
Deputy President Burford
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 – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 37 year old citizen of New Zealand– extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
Legislation
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 197C(3), 198, 499, 499(1), 499(2A), 500(6L), 501, 501(3A), 501(6), 501(6), 501(6)(a), 501(7), 501(7)(a), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, 502, 5001
Migration Regulations 1994 (Cth) reg 2.52(2)(b)
Misuse of Drugs Act 1981 (WA) s 6(1)(a)
Cases
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
State of Western Australia v Baldini [2015] WASCA 39
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
AJL20 v Commonwealth of Australia [2020] FCA 1305
Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17
Webb v Minister for Home Affairs [2020] FCA 831
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
XRKB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 33
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, 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) paras 2, 3, 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(1), 8.3(2)(a), 8.3(2)(b), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1.1(2), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
Final Report of the National Ice Taskforce 2015
Commonwealth of Australia National Drug Strategy 2017-2026 pp 4-5 at
align="center">Statement of Reasons
BACKGROUND

The Applicant is a 37-year-old citizen of New Zealand[1] who settled in Australia in 2005 at the age of 18.[2] He departed 4 times between 2009 and 2012. Two of these departures were visits to New Zealand. He settled in Brisbane, Queensland and later moved to Perth, Western Australia.[3] He has a son, [Mstr S], born in 2015 who lives in Perth with his mother.
[1] ASFIC, [1] and [2].
[2] R1, G8, page 57.
[3] R1, G12, page 73.
On 20 January 2013 he was granted a Special Category Subclass 444 (Temporary) visa on his last arrival back in Australia.[4]
[4] R1, G8, page 57.
On 8 August 2017 the Applicant was convicted in the Perth District Court of ‘Possession of a prohibited drug with intent to sell or supply (Methylamphetamine)’ and was sentenced to 10 years’ imprisonment.[5]
[5] R1, G4, page 45.
On 15 May 2019, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of a State (the Cancellation Decision).[6] He was notified of this decision by hand at Bunbury Regional Prison on the same date and invited to make representations to the Minister requesting revocation of the decision to cancel his visa.[7]
[6] See ss 501(6)(a) and 501(7)(c) of the Act; R1, G9, page 58.
[7] R1, G9, page 58.
On 10 June 2019[8] the Applicant made representations to the Minister requesting revocation of the Cancellation Decision under s 501CA of the Act.[9]
[8] Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) provides that any such representations must be made within 28 days after the person is given the invitation under s 501CA(3) of the Migration Act. Representations were signed on 10 June 2019 and recorded in the delegate’s decision as being made on 11 June 2019. Either way, representations appear to have been made within 28 days as required.
[9] R1, G11, page 68.
The Applicant was granted parole on 27 November 2024[10] and was taken into immigration detention where he remained at the time of the hearing on this application.
[10] R1, G7, page 54.
On 19 December 2024, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.[11]
[11] R1, G3, page 21.
On 23 December 2024, the Applicant applied to the Tribunal for review of that decision not to revoke the cancellation of his visa.[12]
[12] R1, G2, page 9. The Tribunal is required by s 500(6L) of the Migration Act to make a decision in relation to this application by no later than 13 March 2025.
In determining the application for review, the issues for consideration are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked.[13]
[13] See s 501CA(4) of the Migration Act.
For the reasons outlined below, I have decided that the Applicant does not pass the character test. Further, having considered all the circumstances of the Applicant’s case and having weighed the relevant matters in Direction no. 110, I have decided that there is not another reason why the Cancellation Decision should be revoked. Accordingly, I have decided that the decision under review should be affirmed.
VISA CANCELLATION ON CHARACTER GROUNDS
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, 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 the person has 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) of the Migration Act, 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.
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 original decision.[14] 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.[15]
[14] Migration Act s 501CA(3).
[15] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Sub-section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i) the Applicant passes the character test (as defined by section 501); or
(ii) there is another reason why the mandatory cancellation should be revoked.
THE HEARING AND THE EVIDENCE
The hearing was conducted in person at the Tribunal’s Perth Registry on 27 and 28 February 2025. The Applicant appeared in person and was self-represented at the hearing. At the time of the hearing the Applicant was in immigration detention at Yongah Hill Immigration Detention Centre. The Respondent was represented by Mr Jarvis Kirstenfeldt of Sparkle Helmore, observed by Ms Anis Rezae of Sparke Helmore. The Respondent’s representatives appeared via video.
The following documents, which were included in a Hearing Book provided by the Respondent, were marked as exhibits:
(a)Applicant’s Letter to the Tribunal, filed on 3 February 2025 (Exhibit A1);
(b)Applicant’s Tender Bundle, filed on 3 February 2025 (Exhibit A2);
(c)Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions, filed on 24 February 2025 (Exhibit A3);
(d)Joint Witness Schedule – Superseded by Updated Witness schedule (Exhibit A4);
(e)T-Documents, filed on 8 January 2025 (Exhibit R1);
(f)Respondent’s Statement of Facts, Issues and Contentions (Exhibit R2);
(g)Tender Bundle filed 17 February 2025 (Exhibit R3).
The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from the following witnesses:
·[Mr M], the Applicant’s uncle;
·Mr Anthony McShane, a prospective employer;
·[Ms B], the Applicant’s partner;
·Ms Caroline Young, psychologist;
·Ms Janine Oliver, the Applicant’s supervisor in a prison programme;
·Mr Shaun Kilburn, the Applicant’s friend and previous employer;
·Ms Tiziana Scubla, the Applicant’s friend;
·Mr Adam Allwood, the Applicant’s former employer and friend;
·Mr Lance Thornton, the Applicant’s friend;
·Mr Brett Russell, the Applicant’s former employer and friend.
The Applicant and [Ms B] gave evidence in person. All other witnesses gave evidence via video.
I note the Applicant was represented at one point before the Department and then again early in proceedings before the Tribunal. He told the Tribunal his representative prepared written submissions for him but was not representing him at the time of the hearing. The Applicant continued to rely on those submissions and I have had regard to them.
Following the completion of her evidence on the first day of the hearing, at the commencement of the second day, [Ms B] indicated through a Tribunal officer that she wished to provide a document with further evidence of her and her children’s National Disability Insurance Agency (NDIA) supports. She later indicated she did not wish to provide the document but may want to provide further oral evidence about those issues. This was discussed with the parties at the hearing including that the addition of this evidence would be outside the limitations imposed by the Migration Act for information and documents not provided to the Minister two days prior to the hearing.[16] I indicated that given the lateness of the information and the fact I accepted [Ms B]s evidence she felt her NDIA supports were not sufficient to fully support her and her children’s needs (discussed further below) the additional information was not likely to add to the consideration of the issues and in such circumstances I did not consider it would be appropriate to adjourn the hearing to enable further evidence be considered in compliance with the Migration Act requirements. The Applicant did not press consideration of the information.
[16] See Migration Act ss 500(6H) and 500(6J).
Again, following closing submissions the Respondent noted it had received forwarded correspondence from [Ms B] provided to the Tribunal Registry which she was seeking to put before the Tribunal. It was agreed the Tribunal could not have regard to that information and the Applicant did not press it being tendered. The Tribunal has not had regard to that information which was marked for identification purposes only as MFI1.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[17] Migration Act s 501(7)(c).
[18] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[17] Failure to pass the character test arises as a matter of law.[18]
As noted above, on 8 August 2017, the Applicant was convicted in the Perth District Court for possession of a prohibited drug with intent to sell or supply (methylamphetamine) pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and was sentenced to a term of imprisonment for 10 years.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
While the Applicant referred to elements of the character test considerations outlined in Annex A to Direction no. 110, I explained these related to provisions other than s 501(7). In the Applicant’s case, the Act provides that the character test is not met where s 501(7)(a) applies. The Applicant accepted this was the case and that he did not pass the character test.
Accordingly, I am not satisfied that the Applicant passes the character test.[19]
[19] See Migration Act s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As I am not satisfied that the Applicant passes the character test, I must then determine whether there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[20]
[20] Migration Act s 501CA(4)(b)(ii).
I am required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[21] In doing so I 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 s 499(1) of the Migration Act.[22]
[21] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[22] Migration Act s 499(2A).
Direction no. 110
On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act. Direction no. 110 commenced operation on 21 June 2024, replacing the previous Direction no. 99.[23]
[23] Direction no. 110 para 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[24] In considering the exercise of the power under s 501CA(4), informed by the principles set out in para 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[25]
[24] Direction no. 110 para 5.1(4).
[25] Direction no. 110 para 6 referring to paras 8 and 9 see also para 6.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[26]
·the protection of the Australian community from criminal or other serious conduct;
·family violence engaged by the Applicant (if any);
·the strength, nature and duration of the Applicant’s ties to Australia;
·the best interests of minor children in Australia affected by the decision; and
·the expectations of the Australian community.
[26] Direction no. 110 para 8.
The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[27]
·the legal consequences of the decision;
·the extent of impediments if removed; and
·the impact on Australian business interests.
[27] Direction no. 110 para 9.
I must also take into account any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked.
The principles set out in para 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’. Those principles highlight that the safety of the Australian community is the government’s highest priority and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred in those individuals will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community. The principles state that the community expects the government to cancel visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Direction provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community short period of time, Australia may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
Noting that primary and other considerations relevant to the individual case must be taken into account, Direction no. 110 states that, in some circumstances, the nature of the 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 revoking a mandatory cancellation of a visa including in circumstances where 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.

Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:
·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations.
·One or more primary considerations may outweigh other primary considerations.
The Applicant submitted that there were several reasons why the cancellation of the visa should be revoked.
In his request for revocation the Applicant stated that the reason he would like his visa cancellation to be revoked was:[28]
I have a child here in Perth, WA which I would like to be part of his life also I have a long term partner which I share my life with that has children in WA, as well as I have made a life for myself in Australia which I would like to keep building.
[28] R1, page 68.
At the time of the hearing the Applicant’s personal circumstances had changed, principally by the breakdown of his earlier relationship with his long-term partner and his reconnection with the mother of his only child. However, the general nature of his representations remained consistent.
In oral and written submissions and statements made by the Applicant before the Tribunal the Applicant detailed why he considered there was another reason why the cancellation decision should be revoked.[29] He provided detailed responses to summons material and to submissions from the Respondent. In summary, the Applicant’s key representations were that:
[29] See ASFIC and Applicant’s Reply, responses to summons material and statutory declarations from the Applicant; see also Transcript, pages 15 - 17 (opening) and 156 - 165 (closing).
·He acknowledged that his offending was serious but said that he has only committed one serious offence and is remorseful. He contended his offences were not very serious, noting a number of factors including that they were not specified as such in the Direction, were not violent and were not motivated by a deliberate intention to harm the community;
·His risk to the community is ‘extremely low’. He has been assessed to be a low risk of reoffending, has demonstrated a commitment to changing his life for the better including through study and exemplary prison behaviour. He was assessed by the prisoner review board not to present an unacceptable risk to the community if released. His previously undiagnosed mental health issues are being treated. He has excellent prospects for employment and plans for further university study at which he has excelled while in prison;
·He has not committed family violence offending (or any other violent offending);
·He has strong ties to Australia having lived here for the majority of his adult years. He has close ties through his son and his current partner with whom he recently reconnected (his son’s mother), her children (many of whom have special needs), his uncle, friends and employment connections. He has worked to contribute to rehabilitation programs for prisoners while incarcerated and wishes to undertake further academic study in the area of recidivism;
·His desire for a relationship with his son will be a strong protective factor against reoffending. His son would remain in Australia as his mother would be unable to relocate given her own circumstance and the circumstances of her other children;
·It is in his son’s best interests that he remain, noting his son’s special needs including Autism diagnosis and his mother’s need for support. It is also in the best interests of his son’s siblings that he remain in Australia;
·Given his commitment to reform, he sits outside the expected norm of the community that his visa would remain cancelled;
·If his visa is cancelled he will be removed and he will not hold a visa to return to Australia;
·He has limited support in New Zealand and his prospects for employment and competition of his studies are not the same as in Australia. His mental health would decline and he would struggle to access mental health supports and would be more likely to relapse or reoffend;
·He was at risk from drug associates in Australia if he returned to New Zealand and the stress of that risk would contribute to a decline in his mental health and impede his ability to resettle there;
·There is a significant demand for the Applicant’s skills in Australia and business interests generally, and those who have offered him employment specifically would be negatively impacted by his removal.
The Applicant’s representations were summarised as follows:[30]
The Administrative Review Tribunal (and its former AAT) have demonstrated in recent decisions under new Direction 110 that even where there is some risk of reoffending, the new paramount consideration of protecting the Australian community can still be met. They have demonstrated such findings in cases of those affected by long-term criminal offending as well as long-term daily substance use.21 In [the Applicant]'s case, he is supported by the absence of an extended criminal history, serious offending and drug use. Further, he has family support in Australia including stable accommodation, has demonstrated impeccable behaviour and initiative whilst incarcerated, positive employment prospects bolstered by his study, the very real potential to build a relationship with his Australian citizen son and a demonstrated focus on building a positive life.
On balance, the considerations favourable to [the Applicant], especially the best interests of minor Australian children (including his son [Mstr S]), and [the Applicant]’s strong connections to the Australian community as well as an absence of any family violence, outweigh the adverse considerations. Further, it is contended that [the Applicant] is of such low risk to the Australian community that this primary consideration should be weighted accordingly.
[30] ASFIC; R1 pages 1158-1159.
The Minister submitted, in summary, that:[31]
[31] RSFIC, R1 pages 259 – 173.
·The Applicant’s offending and other conduct was very serious noting his significant sentence of imprisonment, the significant amount of drugs involved and findings by the sentencing judge. It was contended the Applicant’s driving record was also serious and he had failed to declare convictions on incoming passenger cards;
·His assessed low risk of reoffending was based in part on personal support systems which, if his personal life deteriorated, could lead to a risk of reoffending. In any event given the serious nature of the harm which would be caused were he to reoffend, any risk was unacceptable;
·The lack of family violence should weigh neutrally;
·The Applicant’s ties to the community were accepted, noting however his links through employment were undermined by his offending during the course of that employment. His social and family ties did not prevent his offending in the past and should be treated cautiously as a protective factor against reoffending. Overall, his ties are outweighed by other factors;
·The best interests of the Applicant’s son weigh in favour of revocation but less weight should be given to these interests noting his mother fills a parental role and the Applicant has not demonstrated a strong relationship with his son with whom he has had limited contact until recently. This relationship could be maintained electronically;
·The Applicant’s relationship with the other children was non-parental and limited and while it was in those children’s best interest that he remain to support them and their mother, less weight should be placed on this given the limited nature of the relationship to date;
·The Applicant has committed serious offences and the Australian community would expect he would not continue to hold a visa;
·While the legal consequence of the decision would be the Applicant’s removal from Australia and inability to apply for another visa, limited weight should be afforded this consideration in the Applicant’s favour. Further, to the extent the Applicant raised claims to fear harm on return to New Zealand due to involvement with drug traffickers linked to his Australian offending, he could make an application for protection and it would be preferrable to leave such claims to be determined in any such application given the limited information regarding those claims offered in this application;[32]
·While it was accepted the Applicant may suffer some challenging re-establishing himself, he had family support in New Zealand from family members with whom he remains in regular contact. Further there was nothing to suggest he would not have access to supports for his mental health conditions or other needs noting he has access to the same social, medical and economic supports as other New Zealand citizens which were comparable in standard to those in Australia;
·While there was some evidence of a general impact on business interests, there was no evidence of the type of impact referred to in the direction and neutral weight should be afforded that consideration.[33]
[32] Transcript, pages 153 – 154.
[33] Transcript, page 155.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[34]
[34] See also Direction no. 110 para 8(1).
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[35]
[35] Direction no. 110 para 7(2).
Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to 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 must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[36] In doing so, para 8.1.1(1) of Direction no. 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be ‘serious’. I note that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[37]
[36] Direction no. 110 para 8.1(1).
[37] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this paragraph that I consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[38]
[38] Direction no. 110 para 8.1.1(1)(d).
A summary of the Applicant’s convictions is included at Annexure A.
The Applicant’s most serious offending was the index offending which occurred in 2015 and gave rise to his conviction in August 2017 for possession with intent to sell and supply. He was declared a drug trafficker as a result of this conviction.[39]
[39] R1, G4, page 40.
The Applicant was found guilty of the possession with intent to sell or supply offence following a jury trial. He was found not guilty with respect to charge of possessing a firearm, I do not take that charge into account noting the not guilty verdict.
I note it is required, pursuant to Direction no. 110, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.
In my view, none the Applicant’s crimes or offences as an adult and as evidenced before the Tribunal are properly characterised as ‘violent crimes’, ‘sexual crimes’ or ‘crimes of a violent nature against women or children’ or any of the other categories highlighted to be serious or very serious.
While the Applicant contended this was a reason his offending should not be characterised as very serious, in my view, it is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious drug offences. Although the Applicant’s offending does not within the categories outlined in par 8.1.1(1)(a) or 8.1.1(1)(b) of Direction no. 110, in my view the Applicant’s record of offending is very serious for including the reasons detailed in the sentencing remarks above and the matters discussed further below.
The circumstances of the offence were recorded in the sentencing remarks (as the basis on which he was to be sentenced) as follows:[40]
On the afternoon of 17 November of 2015, you were the only occupant of a black Holden Commodore which you were driving in the [suburb] area.
To your knowledge, in the back of the vehicle was a large container which contained as the prosecution have described it a drug dealing kit including 2.32 kilograms of quite high purity methylamphetamine.
[40] R1, G5, page 48.
With respect to the Applicant’s role in the drug operation for which he was convicted, the sentencing judge found:[41]
I sentence you on the basis that you were a trusted confederate of the owner of these drugs whoever he or they were - whether it’s an individual or a syndicate, it’s not necessary for me to decide – and your role was to transport them safely from one place to another for the benefit of the owner.
It is not possible to quantify what gain flowed to you if that activity succeeded but plainly, in my view, it is not something, given the inherent risk, that you were doing gratuitously. There had to be something in it for you.
[41] R1, G5, page 48.
In oral evidence at the hearing the Applicant gave evidence that he received ‘bonuses’ and preferential treatment for transporting the drugs and having them stored in vehicles stored on his premises for periods.[42]
[42] Transcript, page 29.
The sentencing judge observed with respect to the Applicant’s role as a ‘courier’ that:[43]
The role of a courier is an important element in the dissemination of drugs into the community and the State points out in their written submissions theoretically at least the consignment of drugs that you were moving, if one breaks them into .1 gram deals or hits, it contained, that consignment, a total of 2.31 million individual hits and the misery that it would thereby have inflicted upon our community is obvious and apparent.
[43] R1, G5, page 49.
In imposing a 10-year prison sentence for the offence, the sentencing judge noted that term of imprisonment was a sentence of last resort but that the seriousness of the Applicant proven conduct was such that ‘it was completely out of the question’ for the Court to contemplate a sentence other than an immediate term of imprisonment.
His Honour cited with approval, the Court of Appeal in the Court of Appeal in the State of Western Australia v Baldini [2015] WASCA 39[44] where it was observed as follows:[45]
It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
[44] McLure P at [23]; R1, G5 at 49-50.
[45] R1, G5 at 49-50.
The sentencing judge went on to observe that:[46]
The obvious force with respect to those remarks I underscored by the fact that the volume of cases I hand dealt with by this court directly involving illicit drug has increased by 4 per cent in the last year alone The extent of the methylamphetamine in this state is notorious and the community is entitled to expect that those who are engaged in the possession of drugs with intent to sell or supply, even on the basis that you are to be sentenced for will be dealt with severely.
He also took account of fact that the Applicant had a relatively minor criminal record with no prior drug convictions and had been subject to home detention awaiting trail (noting the conditions of such bail were onerous).
[46] R1, G5 at 49-50.
The Applicant’s only other recorded offending was a series of traffic offences in 2009. These included giving false name to police, driving an unlicensed vehicle, displaying a false number plate and driving without authority to drive.[47]
[47] R1, G4, page 40.
The Applicant accepted his offending was serious but maintained the circumstances did not support a characterisation of his conduct and offending as very serious.
The Minister submitted that the Applicant’s offending and other conduct should be viewed as very serious.
The Minister contended that the Applicant’s history of traffic convictions should also be regarded as serious and demonstrating a lack of respect for laws put in place for the protection of the community.[48] While not discounting that repeated offending, including traffic offending, demonstrates a disregard for Australian laws, I note this offending occurred within a relatively confirmed timeframe and the offences themselves were comparatively minor. I do not consider that these offences contribute significantly to the overall assessment of the Applicant’s offending as very serious.
[48] Adopting Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45] and Senior Member Dr Evans-Bonner in QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51].
Having regard to the Applicant’s offending history and noting the 2017 conviction was the Applicant’s only serious criminal conviction I do not consider the Applicant’s offending was marked by repeated offending or increasing seriousness. I do note however that the conviction for possession with intent to sell or supply reflects the findings that the Applicant was a trusted part of a drug distribution process. The Applicant testified he had been aware of having drugs in vehicles in his control on more than one occasion and that he was increasing relied on for this purpose. That conduct can only be considered to be very serious.

I note that the Minister also contended that the Applicant’s failure to declare his criminal convictions relating to his traffic offences on incoming passenger cards 2013 and 2012 demonstrated a lack of regard for Australian law.[49] The Applicant testified he was not aware the convictions for the traffic offences counted as criminal convictions and that he had not intentionally failed to declare them. Given the nature of those offences, I accept this explanation and do not consider this contributes to the overall assessment of his offences as very serious.
[49] RSFIC; G10, pages 59 – 60.
In my view having regard to the evidence and the comments and assessment of the offending by the courts, the Applicant’s offending was very serious and weighs against revoking the cancellation of his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I am required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[50] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[51]
[50] Direction no. 110 para 8.1.2(2)(a) and (b).
[51] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
Direction no. 110 refers the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts. ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In my experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably with respect assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with reoffending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
The Applicant maintained that, while it was accepted the harm that would be caused if he were to reoffend would be serious, the likelihood of him doing so is extremely low. Accordingly, he does not represent an unacceptable risk to the community.
The Minister accepted that that there was a low likelihood of the Applicant reoffending but contented that any risk of reoffending was unacceptable given the very serious nature of the harm which would be caused if he did reoffend in a similar manner to his past serious drug offence.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[52]
[52] Direction no. 110 para 8.1.2(2)(a).
The Applicant was convicted of possessing a significant amount of methamphetamine with the intention of selling or supplying that drug to others. If the Applicant were to reoffend, this would support and encourage the ongoing supply of methamphetamine in Australia.
The sentencing judge’s comments noted above highlighted the damaging impact illicit drugs have on the community. The trade in illicit drugs perpetuates crime and drains public resources. As observed by the Court of Appeal, ‘illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs.’[53]
[53] R1, G5, pages 49 – 50.
The Minister contended the harm that would be caused were the Applicant to reoffend as serious, drawing my attention to the Final Report of the National Ice Taskforce, 2015, where the effect of methamphetamine was described as follows:[54]
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.
[54] Final Report of the National Ice Taskforce 2015 at R3, TB6.
The Minister contended that the health, social and economic harms of methamphetamine is also well-documented[55] and an increase in the harms associated with methamphetamine use has been reported.[56]
[55] Commonwealth of Australia National Drug Strategy 2017-2026 pages 4-5 at
Lau and Minister
for Immigration and Border Protection (Migration) [2017] AATA 138 at [46].
[56] Commonwealth of Australia National Drug Strategy 2017-2026 page 12
>
The Applicant accepted that the harm which would be caused should he reoffend would be serious. However, he contended he presented no risk of reoffence.
Noting the comments of the sentencing judge and the material submitted by the Minister, I consider that the harm which would be caused were the Applicant to reoffend would include the serious harms to users, the perpetuation of crime in the community and the associated health, social and economic costs to the community of the sale and supply of methamphetamine.
I consider the nature of the harm which would be caused were the Applicant to reoffend in a similar manner to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[57]
[57] Direction no. 110 para 8.1.2(2)(b).
The Applicant maintained that there is a low likelihood he will reoffend.[58] He contended he has dedicated his time in prison to reforming himself through study and prison work activities, he has prosocial supports and offers of employment in the community, underlying mental health issues including PTSD and ADHD have been identified and are being treated and he has a strong incentive not to reoffend in order to remain in Australia to support his son and partner. He has been released on parole following an assessment that he did not pose an unacceptable risk to the community in the context of parole. Accordingly, he does not represent a risk to the community, and in any event not an unacceptable risk to the community.
[58] ASFIC.
The Minister accepted that that there was a low likelihood of the Applicant reoffending but contended that any risk of reoffending was unacceptable given the very serious nature of the harm which would be caused if he did reoffend in a similar manner to his past offences, including his serious drug offence and driving offences. The Minister contended that the factors which contributed to the Applicant’s offending remain present including financial instability, impulsivity, and ADHD. This presents an ongoing risk of reoffending, albeit a low likelihood.
In terms of assessment of likelihood of reoffending, there were several assessments of risk of reoffending in the material before the Tribunal. This included an assessment in the prison context, a report from Ms Young and the parole report. Those reports were generally consistent in the assessment that there was a low likelihood of the Applicant reoffending.
Ms Young, a psychologist, provided a report to the Tribunal based on her assessment of the Applicant on 26 August 2024 and gave evidence at the hearing. Ms Young noted that:[59]
[the Applicant’s] offending behaviour suggests that his actions may have lacked forethought, possibly indicative of problems with impulse control. His involvement in activities where he knowingly ignored illegal items left by clients could reflect this impulsivity, with him making hasty decisions without fully considering the potential long-term consequences.
[59] R1, G14, page 148.
In terms of factors contributing to the likelihood of reoffending (described as risk factors), Ms Young considered that the Applicant’s involvement in serious drug offences was of concern as was ‘his apparent tendency to minimise his involvement’.[60]
[60] R1. G14, page 153.
Records indicate that the prison Risk of Reoffending – Prison Version (RoR-PV) assessment undertaken by the Hakea prison assessor in 2017 determined the Applicant was not eligible for criminogenic programs at that time due to his low risk of reoffending.[61] While there are limited details of this assessment in the material before me, I accept it reflects an assessment the Applicant presented a low risk of general reoffending in the context of assessment for programme interventions in prison and place some weight on it in that context noting it is consistent with other assessments of the likelihood of reoffending.
[61] See for example R1, G14, page 166, 171 and 172, 176.
Prison records also note the Applicant has been an above average worker, is polite and has provided support for other prisoners. This also weighs in his favour in terms of an assessment of his efforts towards rehabilitation.[62] Ms Oliver, who worked for the WA Government managing reintegration programmes from 2009 to 2022, testified in support of the Applicant whom she knew through his participation in rehabilitation and reintegration programs in prison. Ms Oliver noted in her letter that:[63]
He was considered a trusted inmate, providing his time and knowledge to assist others as a Peer Supporter and actively participated as a team leader. He assisted in the greyhound rehabilitation program as the sole carer, retraining racing hounds for reintegration into family life.
In his role as the Clerk for Transitional, Career & Employment Services, he maintained confidentiality, provided support and mentoring skills, and assisted others in preparing to re-enter the workforce. [RRRB] consistently demonstrated a pro-social attitude, non-judgmental approach, and community mindedness, with no limitations on whom he would assist.
[62] See for example R1, G14, page 189; A2, page 1223-1224 (statement of Ms Oliver).
[63] A2, pages 1223-1224.
She observed that his commitment to forming a relationship with his son, willingness to reach out for help and participation in a range of educational programmes in prison indicate he has a low risk of reoffending. This was consistent with her evidence at the hearing where she noted she would not generally offer to testify for a former prisoner but that she felt the Applicant had a lot to offer and would make a positive contribution if he were permitted to remain and agreed to testify when he reached out to her through another former inmate.[64] She said he worked as a clerk for the reintegration programme from 2019 to 2022 and she saw him on a daily basis. He ‘stood out from the rest’ and she was impressed with his honesty and willingness to do any programme or course offered to him. I accept Ms Oliver’s assessment of the Applicant’s positive conduct in prison and that she did not offer her support lightly. I place additional weight on her evidence in that regard.
[64] Transcript, pages 121-123.
In granting the Applicant parole on 27 November 2024, and giving paramount consideration to the safety of the community, the Prisoner Review Board indicated the risk presented to the community by the Applicant’s release on parole was acceptable due to:[65]
·The Applicant being assessed as low risk and not eligible for treatment programs to address his offending;
·The Applicant’s lack of prior criminal history; and
·The salutary impact of the Applicant’s first term of imprisonment and his first opportunity for parole supervision.
[65] R1, G7, page 54.
The Board went on to note that the Applicant’s visa had been cancelled and that in the event that cancellation was subsequently revoked, the Applicant’s ‘release in Western Australia does not pose an unacceptable risk to the safety of the community.’
As discussed with the Applicant at the hearing, the Board’s risk assessment is conducted in the context of the Applicant’s release from prison and for the remainder of his sentence for which he would be in the community. As such the Board’s task is somewhat more direct than that of this Tribunal. Further, as noted above, the Tribunal’s assessment of risk involves a consideration for the nature of the harm and the likelihood of reoffending. Whether the assessment of whether the risk is acceptable is a matter the Tribunal must determine for itself having regard to the Direction no. 110 and the information before it. Notwithstanding that the parameters for the Board’s assessment differ from those of the Tribunal, I consider weight should be placed on the Board’s decision to grant parole and on the factors identified by them as reducing the risk of reoffending in the Applicant’s case.
While there were no risk reports referred to in the sentencing remarks, the sentencing judge noted the Applicant’s lack of prior serious offences as reducing the need for personal deterrence. I infer this reflected an assessment there was a low likelihood of the Applicant committing further drug reoffending.
The Minister submitted that the factors that contributed to his past offending continue to remain present. The Minister submitted that the Applicant claimed his drug offending was due to being “naïve” and as a result of interacting with clients who were engaged in criminal activities and financial instability.[66] Noting the comments in Ms Young’s report that the Applicant tended to minimise his involvement in the offending this presented an ongoing risk. I accept this submission in part. In my view the Applicant did attempt to portray his involvement as unwitting. He suggested he became involved in transporting drugs without intending to do so. Noting the sentencing remarks and the length of the sentence imposed I do not accept the Applicant was an unwitting or unknowing accomplice. He was found guilty of possession with intent to sell or supply. The sentencing judge accepted the Applicant knew of the activities which he was involved. Further, to the extent the Applicant claimed to have been desperate, this was somewhat at odds with efforts to minimise the offending. While I consider the Applicant did engage in ongoing attempts to minimise his offending, I accept that at least in terms of the consequences of his conduct he accepts what he did was serious.
[66] R1, G14, page 149.
The Applicant stressed his relationship with his son was a protective factor against reoffending which was not present at the time of his offending and that this was a strong motivation not to reoffend noting his would separate him again from his son. I acknowledge the Applicant’s motivation to remain for his son is genuine and was not present at the time of the offending, accepting that he became aware of his son’s existence after being charged with the possession with intent to sell or supply offence. I consider his relationship with his son is a protective factor against reoffending. However, that relationship and his relationship with [Ms B] is in its early stages and the nature and form of his relationship with his son remains uncertain in the community.
The Applicant pointed to his efforts at self-improvement and commitment to university study as demonstration of his remorse for prior offending and determination not to reoffend. He contended his ongoing study and plans to contribute to work to assist offenders to reintegrate following prison sentences are protective factors against reoffending.
The Applicant has clearly committed to a path of self-improvement through education, and I consider his results to date suggest a prior untapped intellectual capacity for academic endeavour. The Applicant is to be commended for his commitment to study and for his behaviour in prison. Statements demonstrated he had generally been a model prisoner and I consider that his behaviour is to his credit. I also consider that his commitment to further study will provide a protective factor against reoffending. However, I note that Ms Young observed the structure of prison was likely to have been a factor in the Applicant’s success in study and that it is not clear how he will manage this process in the community, and whether study outside the structured environments of prison will present challenges for the Applicant. However, the Applicant has demonstrated determination and resilience in this regard while in prison and I consider it is likely he will be able to fulfill his desire for further study should he choose, though Ms Young noted there would be potential stressors in the community in this regard, including the demands of supporting [Ms B] and her children whose needs and homelife were, on her own evidence, complex.
The Minister highlighted that the Applicant reported to Ms Young that, despite maintaining regular employment before his conviction, he was living ‘paycheck to paycheck’ and experienced severe financial hardship including losing his home. He said that he was desperate when he engaged in the conduct which resulted in his conviction for possession with intent to sell or supply. The Minister contended that the fact financial insecurity was a factor in the Applicant’s previous offending was a risk factor for further offending, noting his financial circumstances on release from prison would not be guaranteed to be secure. I accept that while the Applicant has good prospects for employment using his diesel mechanic skills, those were the skills he had at the time of the offending. This suggests there may continue to be risks for the Applicant in the community, noting protective factors including family and employment prospects were not sufficient to present offending in the past.
Further, in response to questions from me at the hearing, Ms Young indicated that the complex family circumstances of [Ms B] and her children, which were not a factor at the time her assessment of risk was made, would be a potential challenge for the Applicant as they may not provide the social stability which was identified to be an important protective factor in the Applicant’s case. In a letter to the Applicant subsequent to her report Ms Young indicated that she had been asked what future mental health intervention the applicant might need. She indicated that.[67]
Your responses in the assessment indicated the presence of both depression and generalised anxiety disorder. There was also evidence to suggest that you may be experiencing Post-Traumatic Stress Disorder, however, this was not formally diagnosed within this assessment and warrants further investigation. Given these findings and your assertions within the interview, I would recommend that you engage a psychologist experienced in treating trauma for regular and ongoing intervention as soon as possible. Eye Movement Desensitisation and Reprocessing may also be an appropriate form of treatment as it alleviates distress associated with traumatic memories and experiences.
Comments made during the clinical interview and from your uncle also suggest that you may have undiagnosed Attention Deficit Hyperactivity Disorder, which may have impacted your ability to learn and overall executive functioning (skills that help you to problem solve, follow instructions, have self-control as well as plan and meet goals). I highly recommend that you undertake a formal assessment and discuss psychopharmacological intervention (medication) with a psychiatrist.
[67] R1, G14 page 138.

With respect to the Applicant’s representations that concerns regarding drug associates seeking him out in New Zealand would impact his ability to resettle as it will cause him to be stressed and for his mental health to decline, I did not accept the evidence suggested these concerns were well founded or that they would prevent the Applicant from reestablishing himself in New Zealand.
Overall, I find that the Applicant may encounter some difficulty establishing himself were he to return to New Zealand but does not regard these difficulties as significant impediments if removed. This consideration weighs in favour of revocation but only slight weight is afforded to this consideration in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Several witnesses gave evidence that the Applicant’s skills as a diesel mechanic are in high demand. Several witnesses indicated that would be keen to employee the Applicant in the short or longer term. It was not clear which of these offers he would be likely to pursue, and he indicated that in the longer term he wished to pursue further study in finance and statistics. While his skills were in demand from these prospective employers, there was no evidence to support a finding that a decision on the revocation of his visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia or that it would have any particular impact on any of the businesses interested in employing him here.
Notwithstanding this, I accept his skills are in high demand and that at least one of those prospective businesses will be without his labour if the visa cancellation is not revoked, this will cause that business to suffer with the impact of ongoing skills shortages in this area of their work though the specific impact on any of the businesses was not detailed.
I note the Applicant cited the decision of the Tribunal in XRKB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 33 (11 December 2024). In that decision the Tribunal found minimal weight could be afforded to this consideration in circumstances where the Applicant urged the Tribunal to place weight on their skills in an in-demand industry as an Architect as another reason why that Applicant’s visa cancellation should be revoked. I consider the consideration of the representations in that matter to be consistent with its consideration of the Applicant’s submissions in this case.
Noting the evidence from several prospective employers and information regarding the demand for the Applicant’s skills which he testified he tends to employ in the workforce in the immediate term in Australia if his visa cancellation is revoked, I consider that this consideration weighs in favour of revocation but only carries limited weight in the Applicant’s circumstances.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
I must weigh the various primary and other relevant considerations outlined in Direction no. 110 against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[122]
[122] At [35].
In determining the weight to be applied to each consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. I have gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
I have has considered all of the primary considerations, including the protection of the Australian community. I found that the protection of the Australian community weighs against revocation and I afford the consideration strong weight in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. I find moderate weight should be afforded that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision weigh in favour of revocation albeit to different degrees. Overall, I consider moderate weight should be afforded this consideration in the Applicant’s circumstances.
The expectations of the Australian community weigh against revocation and I find this consideration should be afforded strong weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, I find that the legal consequences of the decision, extent of impediments if removed and the impact on Australian business interests all weigh in favour of revocation in the Applicant’s case to a limited extent and afford those considerations slight weight in the Applicant’s case.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations. Nothing before the Tribunal would cause me to find that that general principle should not apply in the Applicant’s case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, I find 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 those weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other considerations of the legal consequences of the decision, the extent of impediments if removed and in impact on Australian business interests.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, I am not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 18 December 2024 not to revoke the cancellation of the Applicant’s Subclass 444 visa under section 501CA(4) is affirmed.

I certify that the preceding 231 (two hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Burford

.......[SGD]..............................................................
Associate
Dated: 7 April 2025

Date of hearing: 27 and 28 February 2025

Solicitors for the Applicant: Self-Represented

Solicitors for the Respondent: Jarvis Kirstenfeldt of Sparke Helmore
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY

Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 12 June 2019.[123]

[123] R1, G4, pages 45 – 46.

Conviction Date	Court	Offence	Court Result
1.	8 August 2017	Perth District Court of Western Australia	Possession of a prohibited drug with intent to sell or supply (Methamphetamine)	10 years imprisonment
2.	16 November 2009	Joondalup Magistrates Court	False Name (driver)	Fine $400
3.	16 November 2009	Joondalup Magistrates Court	No Authority to drive – suspended	Fine $1000 License Disqualified for 9 months cumulative
4.	27 October 2009	Gingin Magistrates Court	Unlicensed vehicle (owner/driver)	Fine $270
5.	27 October 2009	Gingin Magistrates Court	No Authority to Drive – Suspended	Fine $1000 License Disqualified for 9 months cumulative
6.	27 October 2009	Gingin Magistrates Court	False number plate (not issued for that vehicle)	Fine $500
7.	20 April 2009	Joondalup Magistrates Court	No authority to drive – suspended	Fine $400 License Disqualified for 9 months cumulative

Date of hearing:	27 and 28 February 2025
Solicitors for the Applicant:	Self-Represented
Solicitors for the Respondent:	Jarvis Kirstenfeldt of Sparke Helmore