Saeed and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1794

Saeed and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1794 (16 September 2025)
Applicant/s:  Darik Saleh Saeed
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4163

Tribunal:Senior Member S Thode
Place:Sydney
Date:16 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the applicant’s visa is revoked.

..............................[SGD]..........................................
Senior Member S Thode
Catchwords
MIGRATION – non-revocation of mandatory cancellation of Special Category (Temporary) (Class TY) (Subclass 444) visa – s 501CA(4) of the Migration Act 1958 (Cth) – where applicant convicted of knowingly deal with proceeds of crime – low risk of reoffending established – strength, nature and duration of ties to Australia established – best interests of minor children in Australia established – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
FHHM v Minister for Immigration [2022] FCAFC 19
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration [2018] FCA 594
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The applicant seeks review of a decision by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (Cth) (Act), not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (Subclass 444) visa (visa).
The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act.
The application was heard September 2025. At the hearing Ms Baw of counsel appeared for the applicant and Mr C Burke of Sparke Helmore Lawyers appeared for the respondent. The applicant and his lay witnesses gave evidence with the assistance of an interpreter in the Somali and English languages.
For the following reasons the Tribunal has decided to set aside the decision under review.
BACKGROUND
Applicant’s background
The applicant was born in Mogadishu, Somalia on 6 June 2006 and is currently 27 years of age. He was aged 4 when he, his parents and siblings migrated to New Zealand. He became a citizen of New Zealand on 23 February 2007. He and his family moved to Australia in 2008, when the applicant was ten years old.
He resides with his parents and seven siblings in Western Sydney.
The applicant’s offending history
On 25 August 2023, the applicant was convicted in the Downing Centre District Court of five counts of knowingly deal with proceeds of crime intent to conceal-SI and he was sentenced to an aggregate sentence of 4-years’ imprisonment with a minimum non parole period of 2 years following the entering of a guilty plea, commencing on 2 May 2023 and expiring on 1 May 2025.[1]
[1] G Documents G6/41-43.
On 1 May 2025, at the conclusion of his period of imprisonment, the applicant was taken into immigration detention and transferred to Villawood Detention Centre.
Visa cancellation and review
On 17 January 2024, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. On 14 February 2024, the applicant made representations seeking revocation of the cancellation.
On 25 June 2025, a delegate of the respondent made a decision not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4), and he was notified of the decision on the same day.
On 26 June 2025, the applicant applied to the Tribunal seeking merits review of the delegate’s decision.
JURISDICTION
The Tribunal has jurisdiction to review a decision under s 501(1), where the application for review is lodged within one day after the decision is notified: s 500(6B). In this case, the application for review of that decision was lodged on 26 June 2025, one day after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.
EVIDENCE AND SUBMISSIONS
In deciding in relation to the application, the Tribunal has considered:
(a)The applicant’s bundle of documents;
(b)The respondent’s bundle of documents;
(c)The “G documents”;
(d)The hearing bundle referred to as Joint Tender Bundle (JTB);
(e)The oral evidence given by the applicant and his witnesses; and
(f)The opening and closing oral submissions made on behalf of the parties.
All documents are included in the JTB.
The applicant’s witnesses were:
·His father, Ahmed Mohamud Mohamed;
·Mr Watson-Munro, Clinical Psychologist;
·His mother, Deeka Shireh Mohamed;
·His 20 year old brother; Izhak Ahmed Mohamoud;
·His employer, Ahmed El-Mir;
·Sheikh Ahmed Farah, community religious leader;
·Shakur Ogle Wais, committee member of the Islamic Centre;
·Shadi Chebib, the applicant’s boxing coach;
·Gohkan Singek, youth worker and counsellor Auburn Youth Centre;
Relevant parts of the oral evidence and submissions are considered below.
LEGISLATIVE FRAMEWORK
Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:
(a)Section 501(2) states that the Minister may cancel a visa if the person does not satisfy the Minister that the person passes the character test.
(b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and
(c)Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
In this case, “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction) applies.
For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must take into account the relevant primary and other considerations set out in the Direction.
Section 7.1 of the Direction states that appropriate weight to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight over ‘other’ considerations.
The primary considerations are set out in section 8 of the Direction:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
A non-exclusive list of other considerations is set out in section 9 of the Direction. These are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and
(3) The impact on Australian business interest.
FHHM v Minister for Immigration[2] considered [8.4] of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ (Derrington J) agreeing referred to remarks made by Colvin J in Suleiman v Minister for Immigration[3] stated at [34] that “particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one of more of the primary considerations”.
[2] [2022] FCAFC 19.
[3] [2018] FCA 594 at [23].
Issue
As noted above, s 501(6)(a) of the Act states that a person does not pass the character test for the purposes of s 501(1) if the person has a substantial criminal record, which relevantly to this application is defined in s 501(7)(c) as a term of imprisonment of 12 months or more.
The applicant concedes that he does not pass the character test.
Accordingly, the determinative issue for the Tribunal is whether there is another reason under s 501CA(4)(b)(ii) of the Act why the original decision should be revoked. In determining whether there is ‘another reason’, the Tribunal must have regard to the primary and other considerations set out in Direction 110.
CONSIDERATION
Primary considerations
Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community, the Tribunal has had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. The Tribunal has also considered 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.
As required by 8.1(2) of the Direction the Tribunal has considered:
(a)the nature and seriousness of the applicant’s conduct; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
The Tribunal has first considered the nature and seriousness of the applicant’s conduct being the offences outlined above. On 25 August 2023, the applicant was convicted of five counts of knowingly deal with proceeds of crime intent to conceal-SI and he was sentenced to 4-years’ imprisonment.
The applicant’s offending commenced around May 2019 when he was recruited into a significant money laundering sting, by which the applicant and his co-offenders gained unauthorised access to the email accounts of businesses and used these compromised email accounts to issue legitimate invoices with altered bank account details to the clients and vendors of those businesses. The enterprise also ran a romance scam wherein the victims would commence an online romantic relationship with a fictitious person, who would then obtain money from the victims. The applicant’s role in the operation was to organise the transfer and dispersal of funds, as well as recruiting new account holders to take part in the operation. The scheme defrauded its victims of a total of $1,691,000, of which only $264,000 was recovered.
The respondent submits that the applicant’s offending should be considered serious. The applicant was involved in a sophisticated criminal enterprise defrauding its victims of a significant amount of money. Further, the fraud was not limited to companies but included preying on individuals through romance scams and defrauding them of money. While the applicant did not source the money, the sentencing judge noted that he was an “indispensable element” and was involved in the transfer of substantial amounts of money from the schemes and he occupied a “highly valued role”. Further, as the applicant’s counsel conceded at sentencing, and the sentencing judge found, the applicant was clearly motivated by greed. While the applicant’s offending is not within the list of serious offences in the Direction, that list is not exhaustive, and it is clear that the applicant’s offending involving obtaining significant funds fraudulently is serious.
Although the Tribunal notes the respondent’s submissions, the Tribunal also considers the applicant was sentenced with other offenders and was not considered the head of the syndicate. He took instructions from the head of the group and provided details of bank account holders he recruited, some of whom were his friends and acquaintances. His involvement spanned a relatively short period of time, about seven months.
The sentencing remarks of the District Court include the following relevant factors:
·The applicant had a drug and gambling habit at the time and accrued a gambling debt of about $25,000 to $30,000;
·Dr Furst diagnosed an adjustment disorder which has resolved, a substance disorder and a gambling disorder;
·Dr Furst said: “He appears to have participated in the offending at least in the first offence without realising that his co-offender was doing anything illegal. He was initially motivated by financial gain in wanting to provide for his family. As time went on he developed a gambling problem and then started using cocaine and cannabis on a regular basis in the context of drug using peers…. And the loss of his boxing career had a profound effect on his life”.[4]
[4] G documents p. 52 at [44].
There were no aggravating facts noted in the sentencing remarks and the applicant entered guilty pleas. His expression of remorse was accepted by the Court. Overall, given the significant amount defrauded, and the applicant’s significant role in the scheme and the seriousness with which his offending was viewed by the Court, the Tribunal considers the applicant’s offending serious.
Risk to the Australian community – 8.1.2
In considering the need to protect the Australian community from harm, the Tribunal has had 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. In this regard, the Tribunal notes 8.1.2(1), which states that “[s]ome 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”.
The applicant’s position is that the risk of the applicant re-offending is negligeable. In relation to this, the applicant’s submissions state that the applicant is remorseful, aware of his residual mental health issues and intends to seek treatment for those issues if released into the community. It is submitted that the applicant is substantially rehabilitated.
Particularly relevant in respect of the likelihood of the applicant re-offending are the applicant’s evidence and reports of the applicant’s forensic psychiatrist Dr Furst and forensic clinical psychologist Mr Watson-Munro.
In relation to this issue, the Tribunal has considered:
·The applicant’s two statements dated 29 August 2025 (Exhibit E) and 2 December 2024[5] and his oral evidence at the hearing;
[5] JTB p.321
·The statutory declaration dated 23 June 2025 made by the applicant’s mother, Deeka Shierh Mohamed (Exhibit A)[6];
[6] JTB p. 21.
·The statutory declaration dated 23 June 2025 made by the applicant’s father; Ahmed Mohamud Mohamed (Exhibit B)[7] and his affidavit of 23 May 2023;
·The letter of support made by the applicant’s employer Ahmed El-Mir (Exhibit C);[8]
·Report of Mr T Watson-Munro (consultant psychologist) dated 4 August 2025 (Exhibit D);[9]
·The oral evidence given by the applicant, and all witnesses given at the hearing;
·The statement of Mr Ogle Wais dated 7 May 2023 and his oral evidence given at the hearing;
·Statement of the applicant’s brother dated 9 February 2024[10] ;
·Character reference of Sheikh Ahmed Farah of Western Community Islamic Centre;
·Report by consultant psychologist Mr Watson Munro, 4 August 2025;
·Report of forensic psychiatrist Dr R Furst, 11 August 2023;
·Report of Mr B Rababi Psychologist, 23 May 2023;
[7] JTB p.30.
[8] JTB p.30.
[9] JTBV p.30.
[10] JTB p.352.
The applicant and his witnesses gave evidence in a frank and forthright manner without prevarication or exaggeration.
Relevant to the issue of the applicant’s chance of reoffending, is the applicant’s parents’ evidence which is in summary, that the applicant acted out of character and has shown, while on bail and living in the community for a period of three years, that he has been rehabilitated and that he is not likely to reoffend. Two issues in particular came to the fore. First, the applicant’s adjustment disorder has resolved. He no longer gambles or takes illicit drugs and has not done so since he was initially incarcerated for three months in 2019. Second, he has been able to find substantial family and community support which provide significant protective factors. Both parents confirm that that the applicant will be housed and financially supported by his large family. In turn, when he was in the community on bail for three years, he provided financial support to his parents which was of particular importance as his mother suffers from depression since his incarceration and has been unable to work. His employer Mr Ahmed El-Mir asserts that a position will be waiting for him should he be released into the community.

It is Mr Watson-Munro’s evidence that the applicant’s risk of reoffending will “continue to trend from moderate to low”. The applicant’s consultant psychologist was cross examined extensively. It is the expert’s opinion that the applicant’s wish to obtain further counselling if released from detention speaks to his motivation and bona fides as a person who is keen to better understand the dynamics of his conduct. Mr Watson Munro states that he considers the applicant’s risk of re-offending as ‘continuing to trend from moderate to low’ because the applicant is yet to be tested in the community after a period of incarceration followed by immigration detention. The primary factor that led the expert to deduce that the applicant is currently “trending more towards low” is the fact that the applicant has been drug free for five years, and is therefore rehabilitated. It is the expert’s opinion that the applicant is substance free, in a better position to reflect on his conduct and no longer depressed about his uncertain future, and if he is permitted to remain in the country he will be on a good trajectory. Mr Watson-Munro opines that the applicant has several protective factors: he has matured, he shows remorse and is motivated to work in the Australian community and enjoys the support of an extensive family and friend group. In summary, the expert opined that the applicant is trending from moderate to low, and at the time of the hearing the expert considered the applicant less in the moderate range for re-offending, and more in the low range largely by reason of the effluxion of time and the applicant’s increased maturity.
It is the evidence of the applicant’s father, Mr Ahmed Mohamud Mohamed that the applicant’s imprisonment and detention have led him to return to his family and community and that he is strongly supported. He is committed to return to employment and to lead a crime free life. The applicant’s father stated that he is prepared to support the applicant because he believes that he and the applicant’s mother can provide personal, spiritual and psychological support inside the family unit. The applicant’s father stated that he will support the applicant financially and by providing him with accommodation, something that he would not be able to do if the applicant were returned to New Zealand.[11]
[11] JTB p.345
It is the evidence of the applicant’s mother, Deeka Shireh Mohamed, that she has a very close relationship with the applicant and that she relies heavily on his support in the care of the younger siblings in the family home. She stated that the applicant was of immense support to her during the twelve months he was effectively under house arrest on very stringing bail conditions and that he has listened to her and that she is and will always remain supportive of the applicant. She states in her statutory declaration of 23 June 2025 that “he is truly sorry for the pain he has caused to other people … But I have also witnessed firsthand the depth of his regret and the genuine effort he has made to turn his life around.”[12]
[12] JTP p.21 Exhibit A
Mr Shakur Ogle Wais is a community leader and board member of the Western Community Islamic Centre a not for profit community organisation. Mr Ogle Wais stated that he has long-standing experience with young people of Somali background and he noticed that in recent years the applicant has become more attached to his faith. He believes that because of his experiences, the applicant has ‘turned his life around’ and become a good influence on younger people. The applicant regularly attended the youth centre throughout his teens and has done so again in the last three years before his incarceration. He is an active and reliable participant in community events and has demonstrated over the last three years that he exerts a positive influence on younger males.[13]
[13]
Mr Billel Rababi, registered psychologist, provided an expert report on sentencing dated 23 May 2023. At that stage the applicant was diagnosed with Major Depressive Disorder; Stimulant Use Disorder; Severe, Cocaine in Sustained Remission; Cannabis Use Disorder, in Sustained Remission, severe; Gambling Use Disorder, in Sustained Remission; Alcohol Use Disorder, Moderate, in Sustained Remission. The alcohol use disorder is questioned by Dr Furst in a later report as the applicant reports he rarely drank. Mr Rababi considered that the applicant’s substance abuse issues stemmed from his inability to manage his anxiety stemming from violent trauma experienced as a child. The expert considered the applicant’s risk of re-offending as “low” and his rehabilitation as promising. Relevantly the psychologist listed following protective factors as the basis for the conclusion that the applicant is assessed at a “low” risk for re-offending.
·The applicant has never previously been convicted of an offence;
·The applicant has a supportive family;
·The applicant has insight into his offending behaviour;
·The applicant is willing to undertake psychological and counselling support;
·The applicant has full time employment [as a crane operator];
·The applicant’s faith.
The applicant regularly visits the community centre headed by Sheikh Ahed Farah; Sheikh Farah stated that the applicant assists in teaching children and elderly to read the Koran in Arabic and that he continues to engage with his faith. The Sheikh reported that the applicant continues to engage regularly with his community at the Western Community Islamic Centre and is strongly supported.
Perhaps the most impressive evidence in support of the applicant’s continued rehabilitation was received by Shadi Chedib, the owner of Sydney Fight Club Gym and the applicant’s long term boxing coach. Mr Chedib reported that he has coached and mentored the applicant since the applicant was 13 years old. He reported that the applicant was a talented amateur boxer who harboured ambitions to turn professional. He was the NSW champion of his division in 2018. However an incident in 2018, not relevant to these proceedings, led to a suspension for two years. Following the suspension the applicant was unable to continue with his boxing career. He felt “like a failure” and spiralled into depression, substance abuse and offending. It is the evidence of this witness that during the three years in the community the applicant returned to training and partially through Mr Chedib’s mentoring was observed to take responsibility for his actions, now trains and offers guidance to younger Somali youth, and has returned to the gym in various roles. Mr Chedib, who also trains the applicant’s two younger brothers, describes the applicant’s family as a loving extended family, who continue to support the applicant in his recovery and rehabilitation. Mr Chedib states that he would employ the applicant and even offer financial support if called upon but that he does not think that is necessary because the applicant has been able to train as a crane operator and is assured full time employment if released into the community.
The Tribunal has had regard to the report of Dr Richard Furst, forensic psychiatrist, prepared for the purpose of sentencing before the District Court. The report is dated 11 August 2023 and opines that the applicant’s adjustment disorder has resolved and that his gambling and drug problems have also resolved and are in remission. Dr Furst states that the applicant has never suffered from an alcohol disorder as he did not drink, other than occasionally on weekends. This is supported by the applicant’s oral sworn evidence given at the hearing. Dr Furst concludes that the applicant has received positive counselling and mentorship through his community elders, including a sheikh and a youth worker. He reports that the applicant’s parents are good role models and are supportive. Whilst Dr Furst was not directly asked to report on the applicant likelihood of recidivism or the risk of re-offending, Dr Furst concludes that the applicant has accepted his guilt, regrets his offending, has removed himself from pro-criminal associates and no longer gambles or uses drugs. His family are supportive and he is in full time employment. It is the expert’s opinion there is every likelihood that the applicant will maintain his current mental health, employment and family connections in the future and not relapse into gambling, drug use, and/or related criminal offending. Overall the expert is of the opinion that the applicant has good prospects of being successfully rehabilitated.
Conclusion in relation to protection of the Australian community
It is not in dispute that the offence of knowingly deal with the proceeds of crime with intent to conceal is serious. There is no doubt that should the applicant again engage in conduct similar to the offence, the resulting harm to an individual and more broadly to the Australian community through that individual’s family, friends and associates is likely to have serious consequences.
In relation to the risk of the applicant re-offending, the Tribunal accepts that the applicant feels remorse for the crimes he committed and that he is very intent on not re-offending. The Tribunal accepts that he has matured in the six years since the offending occurred and that his state of mind in 2025 is not the same as his state of mind was in 2019. Mr Saeed was 21 at the time and his relative youth was strongly considered by the sentencing court. The Tribunal accepts that the applicant no longer takes drugs or gambles, no longer has contact with co-offenders or other associates who were a bad influence on him and has a positive attitude towards receiving ongoing treatment from his social worker and youth counsellor. The Tribunal further accepts that the applicant has excellent family support, including from his parents and seven siblings, who are committed to supporting him and putting protective measures in place with a view to ensuring that he does not re-offend. The Tribunal also accepts the evidence of Mr Singhek, Mr Chebib, Sheikh Farah that the applicant is committed to his Muslin faith and that he has the support of his Western Sydney Islamic Centre community. Based on the evidence given by the applicant, his parents, his mentors and supporters, as well as the psychologist Mr Watson-Munro and the psychiatrist Dr Furst, the Tribunal accepts that the applicant’s commitment to rehabilitation and to not re-offending is genuine and not reactive to the applicant’s current visa status. The Tribunal accepts the opinion expressed by Mr Watson-Munro that the risk of the applicant re-offending is continuing to trend from moderate to low, and currently closer to low. The Tribunal has considered the opinions of Mr Rababi and Dr Furst, that the risk of the applicant re-offending is low and that his prospects of being successfully rehabilitated are very good.
In assessing the likelihood of the applicant engaging in further criminal or other serious conduct, 8.1.2(2) of the Direction requires the Tribunal to take into account not only information and evidence on the risk of the applicant re-offending, but also evidence of rehabilitation achieved by the time of the decision. In doing so, the Tribunal is to give weight to time spent in the community since the applicant’s most recent offence. In this case, the applicant was in the community for three years on bail before being incarcerated. He was tested in the community. Following his incarceration and immigration detention he seeks to engage with counselling through his youth worker, Gokhan Sindhek. The applicant seeks support and is willing to continue counselling should he be released into the community. He requires ongoing treatment and he is willing to pursue it, with an appointment booked in October. The applicant has spent three years in the community and has had every opportunity to demonstrate that the chance of recidivism is low and that the is demonstrably rehabilitated.
As noted above, the Tribunal accepts the professional opinions of Dr Furst and Mr Rababi that the applicant’s risk of reoffending is low. The Tribunal has also taken into account the opinion of Mr Watson-Munro that the risk of reoffending is continuing to trend from moderate to low and “currently more low than moderate”. The Tribunal has taken into account the genuineness of the applicant’s commitment to not reoffending and the strength of the personal, familial and social factors which are present to assist him to achieve this goal. On the available evidence the Tribunal is satisfied that there is a low risk of the applicant’s conduct being repeated.
In light of the low risk of reoffending, the Tribunal finds that the protection of the Australian community weighs only slightly against the revocation.
Family Violence – 8.2
The applicant has not committed a family violence offence. This factor is neutral.
The strength, nature and duration of ties to Australia – 8.3
In accordance with 8.3(1) of the Direction, the Tribunal has considered any impact of the decision on the applicant’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. As this decision concerns the decision whether to revoke the mandatory cancellation of a visa or, the Tribunal is also obliged to consider the strength, nature and duration of any other ties that the applicant has to the community.
The applicant has resided in Australia for around 17 years since arriving in 2008 as a 10 year old.
The applicant’s mother, father, brothers, sisters and infant nephews and nieces are immediate family members who have a right to remain indefinitely in Australia. The Tribunal has considered the interests of the applicant’s nephews and niece separately below.
The Tribunal has had particular regard to the evidence concerning the applicant’s mother, father and brother Izhak Ahmed Mohamoud.[14] In respect of his mother the evidence states that Mrs Mohamed suffers from depression and has been unable to work since the applicant’s incarceration. It is not controversial that the applicant and his mother are very close and that the applicant’s mother relies heavily on the applicant’s support in respect of the daily care of five of his seven siblings. It is noted that two of his siblings will attain their majority in the next two years.
[14] JTB p.349.
During the hearing, it was the evidence of the applicant that his mother would be very badly affected if the applicant were forced to leave Australia. Mrs Mohamed stated that it would have a devastating effect on her if the applicant were forced to leave Australia. Mr Watson-Munro considered that his mother’s health would deteriorate if this happened.
The evidence of Mr Mohamed, the applicants father, is that the applicant has five younger siblings under the age of 18 and that the applicant plays an important role as the oldest sibling and role model. His father acknowledges that the applicant has a significant carer responsibility and that he provides strong emotional support for his siblings and his mother and that the family has faced “immense hardship” when the applicant was incarcerated because he was unable to support them emotionally and financially.
On the basis of this evidence, the Tribunal finds that a decision adverse to the applicant would have a devastating effect on the applicant’s family and the applicant’s mother in particular. That said, the applicant is not currently the sole carer for his siblings and it is acknowledged that two of his brothers have now reached adulthood and two others as stated above will do so shortly. In relation to this, it is accepted that the applicant’s influence has resulted in both his brothers obtaining crane driver qualifications and obtaining employment in that field. Both brothers have returned to boxing training, following the applicants’ lead. One brother attends the University of Western Sydney studying exercise science, also allegedly following into his brother’s footsteps. All siblings still live at home and the evidence from both parents is that the applicant has a significant input into their ongoing upbringing. The applicant stated that he continues to assist his mother and siblings with a multitude of domestic tasks.
The Tribunal finds that if the applicant were removed from Australia, his family would be negatively affected emotionally and financially. In these circumstances, the Tribunal concludes that that the impact on the applicant’s family would be significant.
The Tribunal considers that this factor weighs strongly in favour of revocation of the cancellation.
The best interests of minor children in Australia - 8.4
In accordance with 8.4(1) of the Direction, the Tribunal has considered whether the cancellation of the applicant’s visa is in the best interests of the applicant’s siblings who are minors. The applicant’s nephews and niece are considered separately in these reasons. The Tribunal has considered the interests of the applicant’s siblings:
·His brother, Mahir Mohamed (DOB 17 April 2009 aged 16);
·His sister, Marwo Mohamed (DOB 17 April 2009 aged 16);
·His brother, Muscab Ahmed Mohamud (DOB 5 November 2010 aged 15);
·His brother, Ayanle Ahmed Mohamud (DOB 1 November 2011 aged 14);
·His sister, Amira Ahmed Mohamed (DOB 18 October 2015 aged 10);
It is acknowledged by the applicant that he is not the primary or sole carer of his underage siblings but there is a plethora of evidence to suggest that they have a strong familial bond and that the applicant cares for his siblings, including helping with homework, supervising them, to the extent that the applicant considered himself a third parent, particularly in the four years that his father was absent from the family when he moved to Australia first to pave the way for the remainder of the family. The evidence is supportive of a finding that the applicant spends a significant amount of time at home assisting his siblings and that they would be devastated if he were removed to New Zealand. The report of Mr Rababi records that the applicant advised that even as a young child he had been encouraged to be responsible for his younger siblings. This is supported by the evidence of his brother Izhak Mohamoud (22) who speaks of the applicant’s dedication and kindness to his younger siblings and that he attends to their needs.[15]
[15] JTB p. 349 statement of Izhak Ahmed Mohamoud.
In respect of his nephews and niece, the applicant stated that he spends “at least four days a week taking care of my niece and nephews” and has formed a strong bond with the children of his older siblings. His father deposes that the applicant provides guidance, love and support to his nephews and niece.[16] The Tribunal accepts that the applicant intends to be involved in his nephews’ and niece’s life as a role model and a loving uncle.
[16] JTB p. 353.
The Tribunal does not consider that the applicant’s past conduct will have a negative effect on minor children, although there could be an adverse impact if the applicant reoffended.
Overall, the Tribunal concludes that it would be in the best interests of the minor children if the applicant were not removed from Australia. This primary consideration weighs significantly in favour of revocation.
Expectations of the Australian community – 8.5
In relation to this consideration, 8.5(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.
The applicant has failed to obey Australian laws. He would therefore be expected to be removed from the community, as his offending was serious.

The Tribunal has considered the principle expressed in 5.2(6) of the Direction; that is, that the Australian community 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. The applicant is now twenty seven and has lived in Australia since he was ten years of age. He has therefore lived in Australia for over two thirds of his life. He was a child when he arrived in this country, and the Tribunal considers that he has lived here from a very young age.
The Tribunal finds that the Australian community expects that the Australian government should not grant the applicant a protection visa, although the community may afford him a higher level of tolerance because he has lived in Australia for the majority of his life.
The Tribunal considers that this factor weighs moderately against the revocation.
Other considerations
A non-exclusive list of other considerations is set out in section 9 of the Direction. These are:
Legal consequences of the decision – 9.1
As noted above, the applicant is a citizen of New Zealand. The visa that was cancelled was not a protection visa. The applicant submits this consideration is irrelevant to the review.
However, paragraphs 9.1 of Direction 110 states that decision makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under s 189, noting also that section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant if Australia has non refoulement obligations in respect of an unlawful non-citizen.
Should the visa be cancelled, the applicant would be prohibited from applying for other visas by operation of s501E of the Act. The applicant’s removal and future exclusion from Australia would be the legal consequence of a decision to cancel the visa which flows from the intended operation of the Act. However, having regard to Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Tribunal finds this consideration weighs at least to some extent in favour of revoking the cancellation of the visa.[17]
[17] [2024] FCA 1273 at [42].
Extent of impediments if removed – 9.2
This consideration refers to impediments a non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The applicant is 27 years of age and has lived in Australia since he was 10 years old. The evidence supports a finding that his parents do not have the financial means to support the applicant financially in the event of a removal to New Zealand. His father stated that the family’s resources are stretched and that he would not be able to visit the applicant or to support him financially. His mother stated that she has five minor children to look after and that she would not be in a position to leave the children behind to visit the applicant in New Zealand. There was no suggestion that the family would relocate. There was no evidence before the Tribunal to suggest that the applicant’s crane operator’s licence would be recognised in New Zealand. He stated that he is required to disclose his criminal conviction to any potential future employer. It is the applicant’s evidence that he would have to “start again” and it would undoubtedly impact his mental health. Mr Watson Munro states
“I note that you seek my opinion regarding the impact on him if he is forced to leave Australia. Clearly if this occurs it will have an adverse impact on his recovery and overall psychological wellbeing. … Mr Saeed has lived in Australia for seventeen years and has no support mechanism in New Zealand… consequently it will be difficult to secure employment and equally so, treatment. Arising from this he might find himself in a position of homelessness which will further add to the risk of him drifting back to potentially adverse peer group dynamics and potential offending conduct.”
The Tribunal accepts that the applicant would face some difficulty establishing himself in New Zealand because of his criminal record and the lack of direct family support. However, the Tribunal accepts the respondent’s submission that New Zealand has a comparable health system to Australia and that there is no evidence to support a conclusion that the applicant could not obtain employment as a qualified crane operator. The applicant would also be able to access social, medical and other welfare services in New Zealand and could maintain contact with his family by electronic means.
Overall, this consideration is given limited weight in favour of revocation.
Impact on Australian business interests – 9.3
Paragraph 9.3(1) provides that the Tribunal must consider any impact of its decision on Australian business interests, noting that an employment link would generally only be given weight where a decision would significantly compromise the delivery of a major project or delivery of an important service in Australia. If the applicant’s visa were reinstated, he intends to complete his degree and enter employment with Advance Cranes. On balance the Tribunal agrees with the applicant’s submissions that there is no evidence that any Australian business interests would be impacted if his visa remained cancelled, and that this consideration should be given neutral weight.
There is no evidence of impact on Australian business interests. This factor is neutral.
CONCLUSION
The Tribunal has considered the applicant’s circumstances in relation to the various considerations set out in the Direction. The Tribunal must carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion under s 501(1) of the Act to revoke the cancellation of the applicant’s visa.
The Tribunal made the following findings concerning the relevant primary considerations in the Direction, other considerations being neutral:
(a)The protection of the Australian community weighs only slightly against revocation.
(b)The strength, nature and duration of ties to Australia weigh strongly in favour of revocation.
(c)The best interests of minor children weigh significantly in favour of revocation.
(d)The expectations of the Australian community weighs moderately against revocation.
The Tribunal has made the following findings about the other consideration in the Direction:
(a)In respect of the Legal Consequences, the Tribunal finds this consideration weighs at least to some extent in favour of revocation.
(b)In respect of the impediments if removed, this consideration is given limited weight in favour of revocation.
The Tribunal concludes that the primary considerations which weigh against the applicant, namely the protection of the Australian community, which weighs only slightly against revocation, and the expectations of the Australian community which weighs moderately against the revocation, do not outweigh the strength, nature and duration of ties to Australia which weigh strongly in favour of revocation or the best interests of minor children, which weigh significantly in favour of revocation. The Tribunal has also considered the legal consequences, which weigh at least to some extent in favour of revocation and the extent of impediments if removed, which are given limited weight in favour of revocation.
The Tribunal is satisfied that the conclusion in this regard accords with the weight of the evidence and the principles set out in 5.2 of the Direction. In relation to this, 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government and the principles otherwise emphasise the interests of the community rather than those of the individual. In this case, the two primary factors that weigh against revocation are the safety of the Australian community and the expectations of the Australian community but only slightly and moderately so. However, they are outweighed by the primary considerations which weigh strongly and significantly in favour of the applicant this being the ties to Australia and the interests of minor children.
The Tribunal therefore sets aside the decision under review and in substitution decides that the decision cancelling the applicant’s visa is revoked.

Date(s) of hearing: 3 and 4 September 2025

Counsel for the applicant: Ms Baw

Solicitors for the Applicant: Kah Lawyers, Mr C Dengate

Advocate for the Respondent: Mr C Burke, Sparke Helmore Lawyers

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	3 and 4 September 2025
Counsel for the applicant:	Ms Baw
Solicitors for the Applicant:	Kah Lawyers, Mr C Dengate
Advocate for the Respondent:	Mr C Burke, Sparke Helmore Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers