Shah and Minister for Immigration and Citizenship (Migration)

[2025] ARTA 2008

Shah and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2008 (2 October 2025)

Applicant:Mr Prayas Thakorbhai Shah

Respondent: Minister for Immigration and Citizenship

Tribunal Number:                2025/4339

Tribunal:General Member A E Burke

Place:Melbourne

Date:2 October 2025  

Decision:The Tribunal affirms the decision under review.

.........................[SGD]...............................................

General Member A E Burke

Catchwords

MIGRATION – Class VB Subclass 887 Skilled Regional visa – substantial criminal record – Indian national – failure to pass character test – recidivist offending - whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – ties to Australia – best interest of minor child – impediments to removal – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA

Meissner v R (1995) 130 ALR 547
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003

461

Secondary Materials

Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501
The Australian Criminal Intelligence Commission (ACIC) submission to the Parliamentary Joint Committee on Law Enforcement (PJCLE) Inquiry into Australia’s illicit drug problem: Challenges and opportunities for law enforcement, intelligence and national security.

Australian Government Department of Home Affairs - Illicit Drugs Action Plan

Statement of Reasons

1. On 2 October 2024, a delegate of the Minister administering the Migration Act 1958 (Cth) (the Minister), cancelled Mr Shah’s Class VB Subclass 887 Skilled – Regional Visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act).

2. On 11 October 2024, Mr Shah provided a response to the decision, requesting revocation of the decision to cancel his visa for other reasons. Most particularly:

   He requests that the cancellation decision be revoked for reasons including (but not limited to):

   a. He has a wife and daughter who are both Australian citizens (strength, nature, and duration of ties to Australia).

   b. His 8-year-old daughter will be affected by the decision (best interest of minor children in Australia affected by the decision).

3. On 10 July 2025, a delegate of the Minister made a decision not to revoke the cancellation of Mr Shah’s visa. The delegate found that:

   46.   I accept that a number of factors, as outlined above, may have contributed in part to Mr SHAH’s offending behaviour. I note Mr SHAH was clinically depressed and drug addicted when he offended. However, his criminal history clearly shows a pattern of reoffending, and indicates that he has neither addressed his ongoing drug addiction nor consistently engaged in rehabilitation. This suggests to me that he may reoffend, particularly when an opportunity arises to gain a financial benefit.

   47.   I acknowledge that the judge accepted Mr SHAH was remorseful and had insight into the impact of offending. I also acknowledge that the judge had reservations about Mr SHAH’s rehabilitation, as it remained to be seen. I accept the judge’s views that the offending is serious, given that Mr SHAH’s offending involved an offence at a commercial trafficking level.

   48.   I note Mr SHAH has support from his family and shows a strong commitment to them. However, I am not convinced that their support or his commitment will address his drug addiction, nor do I consider it will prevent repeated offending. It is evident from his extensive criminal history that previous incarceration has not prevented further offending and I do not consider that his rehabilitation needs have been fully addressed. I have found that Mr SHAH’s conduct is serious and that this type of conduct has the potential to cause physical and/or psychological injury and/or financial harm to members of the Australian community.

   49. Considering the nature and seriousness of Mr SHAH’s conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr SHAH reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs significantly against revocation in this case.

4. On 16 July 2025, Mr Shah applied to the Administrative Review Tribunal (the Tribunal) under s 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his visa, stating: procedural fairness, natural justice and the rule of law were not observed carefully according to prevailing laws.

5. At the hearing of his application on 17 and 19 September 2025, Mr Shah was represented by Mr Surendra Man Shrestha of Australian Immigration & Citizenship Centre, and Mr Matthew Daly instructed by Ms Jami Klisaris and Claire Lewis of Mills Oakley, appeared for the Minister. The Minister lodged a set of paginated tender documents inclusive of the G-Documents, summons documents from Victoria Police, Melbourne County Court Corrective Services Victoria, Victorian Department of Transport and Planning, a supplementary tender bundle inclusive of Mr Shah’s immigration records and several policy documents. Mr Shah submitted a character refence.

   BACKGROUND

6. Mr Shah is a 41-year-old Indian citizen, who migrated to Australia with his wife on 26 April 2008 originally on a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa at the age of 23. On 5 April 2017 Mr Shah was granted a Class VB Subclass 887 Skilled - Regional visa. Mr Shah and his wife have one daughter aged nine. His wife and daughter are Australian citizens.

7. Since his arrival in Australia Mr Shah has departed Australia on numerous occasions, returning to India several times and holidaying in Fiji.

8. Mr Shah and his wife grew up in the same neighbourhood in India but came from different castes. They met while they were both still at school and married on 13 September 2007. Mr Shah reported they married against the wishes of their parents and the societal pressures of their community. Mr Shah and his wife reported they came to Australia for a better life and to escape the shunning they had encountered because of their love and marriage against the tradition of their region.

9. Mr Shah completed his education in India obtaining a bachelor’s degree in accounting before he commenced work in the construction industry. When he arrived in Australia, he originally resided in Sydney, where he worked in a carwash. He and his wife then relocated to Melbourne where he worked in a warehouse as a store supervisor and forklift driver from 2008-2016.

10. Mr Shah and his wife purchased and commenced their own courier business in June 2015, which they had intended to operate as a side venture However the business began to collapse in June 2016 after Alpha Logistics, who they provided the majority of their services to, went into receivership leaving them unable to recover $110,000 owed. Whilst Mr Shah successfully litigated, and entered into a payment plan with Alpha Logistics, he never recovered any money. Mr Shah was left with considerable debt, as he had borrowed money to purchase three vans and was paying his driver from his own savings as he waited to receive the outstanding contractual payments.

11. Mr Shah sustained an injury at work around 2015 and eventually underwent spinal surgery in 2016. A series of events resulted in Mr Shah leaving his role at the warehouse, and it was around this time he turned to substance abuse to deal with his back pain and financial stress. Mr Shah’s wife was also pregnant at this time and was suffering significant complications with the pregnancy which required Mr Shah to drive his wife three times a week to medical appointments. Following the birth of their daughter Mr Shah’s parents-in-law arrived from India to help his wife but this only added to Mr Shah’s stress, shame and eventual depression.

12. Mr Shah reported to Ms Carla Ferrari, Forensic Psychologist in a pre-sentencing report of 8 July 2020 that:

    ·He commenced self-medicating with methamphetamine around September 2016 to numb his emotional and psychological symptoms, and then began using heroin for his physical pain related to his back injury.

    ·He began selling to support his habit and as his dealer was no longer available, people began coming to him.

    ·In 2018, he received a custodial sentence and 15-month Community Corrections Order (CCO) for various drug trafficking charges, deal property suspected proceeds of crime, and weapon possession.

    ·In January 2020 due to contravention of his CCO and further offending (possession of heroin in September 2019); the original order was varied to a 21-month CCO and an additional 200-hour community work condition was included.

    ·He had four sessions of counselling through Caraniche in 2019 as part of his CCO, however regretted his involvement with them, indicating that being honest about having relapsed led to further DHHS involvement in June/July 2019, and he was subsequently removed from his family home for a second time.

    ·He attended six sessions at ReGen for AOD counselling last year and was provided with details for prescribing doctors for Suboxone, however encountered significant difficulty and delay due to waiting periods of up to two months. He eventually commenced Suboxone 8mL in November 2019, after another relapse.

    ·DHHS became involved around October/November 2016 and he was rendered homeless as he was unable to remain in the family home.

    ·Throughout 2019, he was reconnecting with his wife and daughter, attending Corrections appointments, completing community work, attending the Kickstart program and trying to build their courier business again. This was extremely stressful for him as he had multiple appointments four days of the week which impacted his ability to work, and logistically, he and his wife shared a vehicle which meant he had to drop his wife at work and daughter at childcare before attending his own appointments and program, putting further pressure on himself and his family.

    ·He had informed his CCO worker he was not coping and was referred to Caraniche for AOD counselling. He had three CCO workers in four months and found it frustrating having to explain his circumstances each time as it would cause him to constantly relive his stressors.

    ·He relapsed in April 2019 due to these issues, as well as feeling judged by their friends and family, and further financial stress owing to being unable to work due to the requirements of his CCO (attending CCO appointments and community work on different days, and another two days per week of the Kickstart program).

    ·DHHS was again involved, he was homeless, had lost his family again, resulting in severe depression which further gave rise to his substance use.

    ·He admitted he began to sell substances again to support himself and his habit, as well as supporting his family. Mr Shah reported feeling as though it was easier to source drugs than it was to get help, particularly after the setbacks he faced in trying to engage with a prescribing doctor for opioid replacement therapy.

13. Mr Shah‘s wife completed her education in India and obtained a diploma of hospitality in Australia, before working for 12 years in food services in a large Melbourne hospital. For the last five years she has worked for a real estate agent starting as a personal assistance and progressing to a property manager.

14. Mr Shah’s offending commenced in 2017 and continued on and off until his arrest on 26 May 2022.

    LEGISLATION

15. Mandatory visa cancellation in circumstances of a substantial criminal record arises under s 501(3A) of the Act. This is one of a number of ways in which a person may fail the character test in s 501(6). A substantial criminal record is defined as including the situation where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

16. A mandatory cancellation decision may be revoked upon application where a person is found to pass the character test, or where there is another reason to revoke the decision (s 501CA(4)). A compulsory source of guidance has been issued in the form of Direction No. 110 (the Direction). I will refer to the factors identified in the Direction below, and also note that considerations are to be informed by the following principles:

    (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 measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    ISSUES

17. Mr Shah conceded that he did not pass the character test for the purposes of s 501CA(4)(b)(i) of the Act and he confirmed this at the hearing. The Tribunal is satisfied that Mr Shah does not satisfy the character test under s 501 on account of his substantial criminal record as defined under s 501(7) being sentenced to a term of imprisonment of 12 months or more.

18. Accordingly, the issue for consideration by the Tribunal is whether the cancellation of Mr Shah’s visa should be revoked, taking into account the relevant considerations in the Direction. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.

    EVIDENCE

    Mr Shah’s Offending

19. The following table has been derived from a national criminal history check relating to Mr Shah, produced by the Australian Criminal Intelligence Commission on 24 September 2024:

21.     COURT DATE

TRAFFICK DRUG OF DEPENDENCE

2 August 2024

2 August 2024

22.     COURT DATE

POSSESS A SCHEDULE 4 POISON (4 Charges)

20.     COURT DATE	OFFENCE	COURT RESULT
2 August 2024	TRAFFICK DOD (NOT NAMED) COMM QUANTY	4 YEARS, 6 MONTHS IMPRISONMENT.
	KNOWINGLY DEAL/CONCEAL PROCEEDS OF CRIME	2 YEARS IMPRISONMENT. 1 YEAR OF SENTENCE CONCURRENT.
	1 YEAR, 6 MONTHS IMPRISONMENT. 1 YEAR OF SENTENCE CONCURRENT.
	POSSESS COCAINE	7 DAYS IMPRISONMENT CONCURRENT.
	TRAFFICK DRUG OF DEPENDENCE	1 DAY IMPRISONMENT CONCURRENT. TOTAL 6 YEARS.
	EXCEED 60 SPEED SIGN-BY 10K LESS 25K	CONVICTED AND FINED $400.00.
	POSSESS DIAZEPAM POSSESS OXYCODONE	CONVICTED AND FINED $300.00 ON EACH COUNT.
	CONVICTED AND DISCHARGED.
16 July 2020	TRAFFICK HEROIN POSSESS HEROIN TRAFFICK METHYLAMPHETAMINE POSSESS METHYLAMPHETAMINE TRAFFICK CANNABIS POSSESS CANNABIS TRAFFICK DIAZEPAM POSSESS DIAZEPAM TRAFFICK BUPRENORPHINE POSSESS DRUG OF DEPENDENCE (NOT NAMED) (2 Charges) TRAFFICK DRUG OF DEPENDENCE	ON EACH CHARGE: Aggregate 9 MONTHS imprisonment. Concurrent. Convicted and a Community Correction Order for 18 MONTHS. This condition starts on release from Imprisonment
NEGLIGENTLY DEAL WITH PROCEEDS OF CRIME	Aggregate 9 MONTHS imprisonment. Concurrent. Convicted and a Community Correction Order for 18 MONTHS. This condition starts on release from Imprisonment and goes for 18 months.
CONTRAVENE COMMUNITY CORRECTION ORDER	Proven
8 January 2020	CONTRAVENE COMMUNITY CORRECTION ORDER	Proven
Breach re 12/11/2018 TRAFFICK METHYLAMPHETAMINE TRAFFICK HEROIN TRAFFICK CANNABIS TRAFFICK ALPRAZOLAM TRAFFICK DIAZEPAM TRAFFICK OXYCODONE DEAL PROPERTY SUSPECTED PROCEED OF CRIME CARRY CONTROLLED WEAPON WITHOUT EXCUSE TRAFFICK BUPRENORPHINE POSS PROH WEAPON W/O EXEMPTION/APPROVAL NEGLIGENTLY DEAL WITH PROCEEDS OF CRIME TRAFFICK AMPHETAMINE	Original order has been varied Convicted and a Community Correction Order for 21 MONTHS. Unpaid Community Work Perform 200 hours of community work. This condition starts on 12/11/2018 and goes for 21 months.
18 Sept 2019	POSSESS HEROIN	With conviction, fined $750.00 with $84.40 statutory costs.
12 Nov 2018	TRAFFICK METHYLAMPHETAMINE TRAFFICK HEROIN TRAFFICK CANNABIS TRAFFICK ALPRAZOLAM TRAFFICK DIAZEPAM TRAFFICK OXYCODONE DEAL PROPERTY SUSPECTED PROCEED OF CRIME CARRY CONTROLLED WEAPON WITHOUT EXCUSE TRAFFICK BUPRENORPHINE POSS PROH WEAPON W/O EXEMPTION/APPROVAL NEGLIGENTLY DEAL WITH PROCEEDS OF CRIME TRAFFICK AMPHETAMINE	Aggregate 276 DAYS imprisonment. Concurrent. Convicted and a Community Correction Order for 15 MONTHS. Unpaid Community Work Perform 200 hours of community work. This condition starts on 12/11/2018 and goes for 15 months.
Re 09/11/2018 POSSESS A SCHEDULE 4 POISON (3 Charges) POSSESS DRUG OF DEPEND. - PRESCRIPT DRUG	Convicted and discharged.
8 June 2017	UNLAWFUL ASSAULT	Without conviction, Adjourned to 07/06/2018.
17 Feb 2017	CONTRA-FAM VIOLENCE FINAL INTERVENT ORDR	Without conviction, fined $350.00

1. Following a guilty plea to the 2024 convictions, his Honour Justice Trapnell, imposed a term of six years’ imprisonment with a four year non-parole period. his Honour in his sentencing remarks of 24 August 2024 outlined an agreed statement of facts:

   Interception and search of your motor vehicle

   5. On 26 May 2022 at about 1:45am, First Constable Ronald Medcraft and Sergeant Timothy Ryan observed a white Holden Captiva driving along Banksia Street in Ivanhoe. They followed the vehicle and saw you driving at a speed of approximately 81 km/h in a 60 km/h zone (Summary Charge 27). You were intercepted.

   6. You produced your Victorian driver licence upon request. When asked if you had previously been involved with police, you admitted you ‘had for drugs’ and said you were undergoing rehabilitation and mandatory drug testing. You also said you had not used drugs for quite some time.

   7. Medcraft asked if he would find drugs if he searched your car, to which you replied ‘100% no’. You appeared nervous and Medcraft asked you to exit the vehicle. A search of your car was conducted during which a zip lock bag containing 0.3 grams of methylamphetamine was discovered in a console near the steering wheel. You admitted ownership of the bag when it was shown to you. You denied using ice that night.

   8. In the console Medcraft also found a quantity of cash wrapped in facemasks and a zip lock bag containing 1.4 grams of heroin. You ‘swore’ the money was not the proceeds of selling drugs. A pink case was then located under the driver’s seat which contained two large zip lock bags with numerous smaller zip lock bags filled with powder. The powder was subsequently tested and found to be methylamphetamine, totalling 43.4 grams in weight, of which 35.94 grams was pure.

   Search of your home

   9. At approximately 8am the same day, police attended your residential address in Rosanna. Your wife was home at the time and informed police there were two rooms connected to the garage, one used for storage and the other used by you. Your wife told police you spend the majority of your time in that area and rarely venture into the house.

   10. During a search of the room used by you, police located the following items:

   (a) On a desk, an orange container containing methylamphetamine in the form of crystal residue (Charge 1).

   (b) In a drawer of the desk:

   (i) 7.0 grams of methylamphetamine (Charge 1);

   (ii) various quantities of heroin totalling 11.1 grams (Charge 2);

   (iii) $600 in cash (Charge 7); and

   (iv) scales.

   (c) In a black pencil case located in a box underneath the desk:

   (i) 10.9 grams of methylamphetamine (Charge 1);

   (ii) various quantities of heroin totalling 6.4 grams (Charge 2); and

   (iii) 1.8 grams of cocaine (Charge 6).

   (d) In a black box underneath the desk:

   (i) various quantities of cannabis totalling 24.5 grams, some of which was wrapped in individual foils (Charge 3); and

   (ii) small zip lock bags.

   (e) In another desk drawer, a handwritten note evidencing drug transactions.

   (f) In a backpack, $10,000 in cash (Charge 7).

   (g) Inside a plastic bag on a shelf, a further quantity of cannabis (Charge 3).

   (h) In a wooden ‘Yo-Yo’ box underneath the staircase:

   (i) a quantity of methylamphetamine (Charge 1);

   (ii) a quantity of heroin (Charge 2);[13]

   (iii) $18,900 in cash (Charge 7); and

   (iv) empty ‘deal’ bags.

   (i) In a harmonica box underneath the staircase:

   (i) 234.8 grams of methylamphetamine (Charge 1);

   (ii) 10.3 grams of cannabis seeds (Charge 3);

   (iii) 60 diazepam tablets (Charge 4);

   (iv) 7 oxycodone tablets (Endone) (Charge 5);

   (v) 0.04 grams of quetiapine (Syquet) (Summary Charge 50);

   (vi) 9 zopiclone tablets (Imrest) (Summary Charge 51);

   (vii) a quantity of sildenafil tablets (Viagra) (Summary Charge 52); and

   (viii) 3 pregabalin tablets (Lyrica) (Summary Charge 53).(j) $300,050 in cash located in a shoebox in a green bag.

   11. The total amount of cash found at your address was $329,550 (Charge 7).

1. Following a guilty plea to the 16 July 2020 convictions, his Honour, determined:

   When you are released, you are doing 18 months corrections order with drug and mental health courses and supervision. I have not imposed a work component. To be frank, but for the plea of guilty, you would have been looking I think somewhere between 18months and two years sentence with a non-parole period of maybe a year, certainly significantly better I think you are doing today would be fair.

2. Following a guilty plea to the 8 January 2020 convictions, his Honour Alger, determined:

   I found the breach proven. I'm not going to impose any particular penalty. The order is effectively extended so it is now a 21-month order instead of a 15-month order so it will continue for an extra six months beyond the original expiry date in relation to all aspects, the community work, the supervision and the treatment and rehabilitation conditions of the order.

3. Dr Raj Sharma’s, Mr Shah’s general practitioner, records note:

   Wednesday October 29 2014

   4/5 disc prolapse with nerve root compression needs surg opinion

   Prescription added: ENDEP 10 tablet 10mg 1 notcte

   Friday April 24 2015

   LS disc prolpase with nerve root  compression Lyrica helping

   Actions:

   Prescription added: LYRICA CAPSULE 75mg 2 nocte

   awaiting appt via spine surg clinic at Austin Can try Physiotherapy

4. Ms Carla Ferrari, Forensic Psychological, in a Confidential Psychological Report of 8 July 2020 requested by Mr Shah’s then legal representative opined that:

   91. Mr Shah is a 36-year-old male who developed severe symptoms of depression in the context of a period of protracted psychosocial stress including financial hardship, business failure, and familial difficulties. He began to self-medicate physical, psychological and emotional pain with methamphetamine and heroin, resulting in a severe substance use problem which further worsened his circumstances, and contributed to his offending.

   92. The impact of losing his business and being unable to support his family, especially during such a crucial time when his first child had been born, had profound consequences for Mr Shah’s mental health, and this was repeatedly reinforced by further stressors which have occurred over the past four years, albeit some of these related to the choices he has made.

   93. At the time of the current offending, he had deteriorated into another depressive episode due to feeling a sense of urgency in completing his CCO as this was impacting his ability to work and financially support his family, and feeling overwhelmed by these pressures and the lack of support he was receiving. His mental state was also being exacerbated and retriggered by the program he was undertaking, as it was constant repetition of the mistakes he had made in the past and reliving these experiences.

   94. Whilst depression in itself does not directly cause an individual to offend, it is important to note that affective states can alter an individual’s cognition and behavior, impairing impulse control, ability to rationalize, consider alternative responses, and impacts their decision-making. This is due to the neurological changes in the brain caused by depression and anxiety; a reduction in serotonin can impact the functioning of the prefrontal cortex, that is, the area of the brain responsible for emotional regulation, executive functioning and impulse control.

   95. His self-medication with substances during this period heightened Mr Shah’s risk of engaging in impulsive and reckless behavior, as well as further impairing insight, decision-making and judgement; this ultimately affects an individual’s usual functioning as well as worsening underlying mental health issues. It can impair cognitive ability, and result in emotional dysregulation, disinhibited and poorly considered behavior, increasing the risk of criminal misconduct as in Mr Shah’s case.

   96. It appears that there are a number of factors outlined above which are causally linked to Mr Shah’s behavior and impaired functioning at the time of the offending. His deteriorated mental health played a significant role in the incidents and in his self-medicating with methamphetamine and heroin. There does not appear to be evidence of a criminal belief system; Mr Shah’s actions are more a reflection of his untreated psychological symptoms, distress, and self-medication in an attempt to numb himself.

   97. Protective factors for Mr Shah include improving insight into his problems, an understanding that his mental health remaining untreated is likely to continue to cause him issues in the future, and acknowledgement of the role of substances in maintaining his offending. He is motivated to reform himself for his family, explaining the support from his wife who now understands his turmoil and is supportive of him is paramount to his recovery. He hopes to address his issues and restore his premorbid level of functioning so as to provide a stable, supportive, secure environment for his wife and daughter, and to demonstrate to their parents that he has taken responsibility for his actions and learned from his mistakes.

5. Ms Lechner, in a subsequent report of 26 April 2024 opined that:

   In my earlier report, dated 27/12/23, I formed the view that Mr. Shah presented with symptoms of Stimulant & Opioid Use Disorder – in remission in a controlled environment and Major Depressive Disorder (all DSM 5-TR) diagnoses. This was reactive to a cluster of events in 2016 that precipitated a period of depression and resurgence of deep-seated feelings of worthlessness that emanated from his childhood and adolescent years. His current offending appeared to be part of a repetitive pattern of “self-medicating” with drugs at times when his depression peaks, this in turn leading to offending behaviour as he seeks to support his substantial addictions, with both his drug use and depressed mood contributing to poor decision-making, problem-solving and poor judgement.

   …..

   2.  In terms of the link between his mental health issues and his offending, it would appear that whilst the driving force of his actions was the desire to support his drug addiction, his addiction was the result of persistent symptoms of depression and represented a form of “self-medication”, a familiar cycle for him. Depression alone and drugs alone can affect cognitive functioning, with respect to executive functioning. In Mr. Shah’s case, the combination of depression and drug addiction adversely affected his cognitive functioning, especially executive functioning skills, such as problem-solving, decision-making, judgement and reasoning. This impairment in his cognitive functioning would have been operational before, during and after the period of his offending and a significant contributing factor to his poor decision-making and judgment.

6. Mr Stephen, volunteer with Prison Fellowship Australia, provided an affidavit of character for Mr Shah dated 15 September 2025 in which he attested to Mr Shah’s remorse for his past actions and rehabilitation recommending:

   l respectfully submit that Mr. Shah be granted the opportunity to remain Australia with his wife and daughter. In my view, separating him from his family would not only cause them great hardship but also undermine his genuine rehabilitation.

   PRIMARY CONSIDERATIONS

   Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

7. The Direction requires the Tribunal 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 (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege, given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.

8. This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a 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 (8.1(2)(a)-(b)).

   The nature and seriousness of the conduct (paragraph 8.1.1)

9. Mr Shah did not contest he had committed serious crimes and accepted that he failed the character test.

10. Mr Shah in his request for reconsideration of his mandatory visa cancellation dated 29 December 2024 accepted the seriousness of his crimes and advised the following:

    I fully acknowledge the seriousness of the offenses I committed and the resulting legal actions taken against me. I wish to take this opportunity to provide further clarification regarding the circumstances leading to those offenses and  express  my  sincere  request  for reconsideration of my case.

    Submissions

11. Mr Shah submitted in his letter of 29 December 2024:

    In February 2018, I was arrested for drug use, possession of drugs, and selling drugs, which led to my first sentence of 9 months in prison. Upon completing my sentence, I was given a correction order for 15 months. Unfortunately, I struggled to adhere to the correction order, and on 8 January 2020, I was sentenced to an additional 6 months correction order for breaching its conditions. In February 2020, my home was raided, and I was taken into custody again for drug use and possession, culminating in a further sentence of 9 months in prison and an 18-month correction order on 16 July 2020.

    I fully recognize the severity of my actions, and I take full responsibility for the choices I made during that time. However, I believe it is important to highlight the mental and emotional challenges that I was experiencing, which significantly influenced my behavior. At the time, I was under immense stress and mental strain. To alleviate my stress, I brought my mother from India to stay with me, hoping her presence would provide me with support. Unfortunately, the relationship between myself and my wife suffered greatly due to the tension and my drug use, which only worsened my already fragile mental state. The arguments and disagreements between us caused further distress, and my mother left without informing me. Shortly after, my wife took our daughter and went to India. This left me completely shattered and pushed me deeper into drug dependence.

    My worsening dependence on drugs resulted in the Department of Health and Human Services (DHHS) preventing me from seeing my daughter. This was one of the most painful experiences of my life and added immense pressure, which led to my breaching the correction orders. Without the presence of my wife and daughter, I lacked the strength and motivation to change my ways at that time.

12. Mr Shah submitted in his response to the delegate decision to cancel his visa on the prescribed form dated 30 October 2024:

    My offending occurred during a very challenging period in my life, when I was overwhelmed by both physical and financial difficulties. In 2015, I suffered a major back injury, which resulted in significant pain and physical limitations. After undergoing surgery in January 2016, I was unable to return to work, and this put immense pressure on me as the primary provider for my family.

    During this time, I attempted to start a courier business, hoping it would provide financial stability. Unfortunately, the business suffered losses, and I was forced to close it down. At the same time, my wife was pregnant with our daughter and faced numerous complications throughout her pregnancy, adding even more emotional and financial strain to our lives. The combination of my health issues, financial struggles, and concerns for my wife’s health led me into a deep state of depression.

    In my vulnerable state, I made the mistake of turning to unhealthy coping mechanisms. Some individuals I associated with introduced me to drugs as a way to escape the pain, both physical and emotional, that I was experiencing. Unfortunately, what began as a temporary relief from my struggles spiraled into a much bigger issue. I made the foolish decision to get involved in drug dealing as a way to support my lifestyle of depression and mounting debts. I was trying to escape my problems, but in reality, I was only making them worse.

    I now fully realize that my choices were not only wrong but were a complete departure from the values I hold dear. I allowed my desperation and poor judgment to lead me down a destructive path.

    Since my incarceration, I have had time to reflect deeply on my actions, and I have come to understand the importance of integrity, hard work, and taking responsibility for my mistakes. I have made a commitment to live by these principles moving forward and to provide for my family through honest and responsible means.

13. Mr Shah’s wife’s evidence to the Tribunal was that prior to the events of 2015 they were living a beautiful life in Australia, enjoying a very strong loving relationship and its was an ideal comfortable existence. However, after her husband back surgery and her difficult pregnancy they faced many challenges. Mr Shah’s wife provided the following testimony outlining her understanding of her husband’s drug addiction and criminal offending:

    So he did surgery and I fall pregnant in 2015.

    That's where I went on my maternity.

    That time we did not had permanent residency.

    So we were struggling how we're going to be managing everything because if I gave birth, I'm not going to be getting any support from the government that time.

    So…Prayas was not able to go back to work after the back surgery.

    So what happened, we decided to have our own business.

    So that's where in 2015 we started a Courier business.

    We spent all our money to buy that business just because I'm going to be on my maternity.

    Prayas… wasn't able to go back to work, so we wanted to try it out, something from home, if we can run the whole business from home, so that was the main reason.

    And why he… fell in that that thing, because I think 2016, it was a very challenging year for us.

    I gave birth to my daughter.

    My family was here.

    Whatever we were expecting to get from the business, we were not getting it.

    The company got bankrupt, all our money was gone.

    So pretty much Prayas had so much responsibility on his shoulder, that time.

    And then I think he's a man where he don't want to give the responsibility, when he wasn't showing in the house that I'm struggling mentally because that's what the Indian [men] are like.

    That's how we brought up, that, you know, you're not allowed to cry.

    You're a man be man, you know.

    So he was not able to express his feelings to me.

    And I got busy with my little child as well.

    So he was feeling very, very lonely.

    And because of the back surgery, he was not able to sleep well.

    So slowly, slowly he isolated himself and he started taking substances where he thought that he can, able to sleep with those substances.

    But then he was completely like, you know, when you are low, when you're mentally depressed, you get lost.

    Respondent

14. The Respondent’s representative contended that the nature and seriousness of Mr Shah’s conduct weighs heavily in favour of exercising the discretion to affirm the decision to refuse revocation of the cancellation decision. Particularly given the gravity of Mr Shah’s offending which they submitted was apparent from the police incident reports.  

15. The Respondent’s representative contended the Tribunal should be very concerned by Mr Shah’s offending involving various items being located in his home, which he shared with his wife and child, including methylamphetamine, scales, heroin, cocaine, cannabis, various dependence drugs, cash totalling $329,550 and a handwritten note evidencing drug transactions.

16. The Respondent’s representative submitted the seriousness of Mr Shah’s criminal offending was also reflected in his possession of methylamphetamine six times the commercial quantity threshold coupled with his Honour remarks of 24 August 2024. Where his Honour noted that knowingly dealing with proceeds of crime was a serious crime and that the involvement of such a large sum of money was a serious example of that type of offence.

17. The Respondent’s representative submitted sentences involving terms of imprisonment are considered a last resort in the sentencing hierarchy and must be viewed as reflective of the objective seriousness of the offences involved. The Respondent’s representative contended that Mr Shah’s sentences to six years imprisonment (aggregate) clearly indicated the seriousness of his offending. Noting Judge Trapnell’s sentencing remarks where his Honour opined that:

    Trafficking in a commercial quantity of a drug of dependence and trafficking in a drug of dependence are serious criminal offences, as indicated by the maximum penalties of 25 years’ and 15 years’ imprisonment respectively. This shows, unambiguously, how seriously the community, through the Parliament views the conduct you have committed in Charges 1, 2 and 3.

18. The Respondent’s representative contended Mr Shah’s offending was undeniably frequent, with his criminal history spanning over seven years. The Respondent’s representative submitted there appeared to be a trend of increasing seriousness in Mr Shah’s offending, given that his last offences involved Trafficking a Commercial Quantity of a Drug of Dependence (increased from previous offences involving Trafficking) and Knowingly Deal/Conceal Proceeds of Crime (increased from Negligently).

19. The Respondent’s representative submitted a clear indicator of the seriousness of Mr Shah’s offending was his most sentenced of 6 years imprisonment (aggregate), following earlier sentences of 9 months imprisonment and the imposition of several CCOs and fines.

20. The Respondent’s representative submitted the cumulative effect of Mr Shah’s offending was also relevant, as his offending was clearly not a one-off single incident, but numerous offences increasing in seriousness over time. The Respondent’s representative referred the Tribunal to the matter of Short v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3037.

21. The Respondent’s representative contended that:

    (a) Mr Shah’s offending was not a one-off mistake but a consistent pattern of criminal behaviour that had endangered the Australian community, submitting this pattern of criminal behaviour was inconsistent with the expectation that non-citizens abide by the law and respect Australian institutions and law enforcement framework.

    (b) Mr Shah’s offending history should be considered very serious. In particular, his persistent drug trafficking offences, resulting in a lengthy period of incarceration.

    (c) The Full Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1 at 30 [118] (Markovic, Thomas and Button JJ), endorsed the proposition that drug trafficking is a crime committed against vulnerable members of the community for the purposes of paragraph 8.1.1(1)(b)(ii) of Ministerial Direction no. 90, which is identically worded to paragraph 8.1.1(1)(b)(ii) of the Direction.

    (d) Whilst Mr Shah’s offending might not fall within the specific categories listed as ‘very serious’ and ‘serious’ in 8.1.1(1)(a) and (b) of Direction 110, the Tribunal has previously held that there will be crimes or other conduct which can properly be characterised as such, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious drug offences. The amount of drugs involved in Mr Shah’s offending and the $329,550 AUD in cash which was the subject of the proceeds of crime conviction was significant and contributed to the severity of his sentence. Additionally, the fact Mr Shah has continuously reoffended in a similar and more significant manner increases the seriousness of his offending.

22. The Respondent’s representative submitted the Tribunal needed to view Mr Shah’s offending as very serious as it was simply not the case that Mr Shah’s back injury led him to using substances and then in turn to dealing drugs to support his habit. The Respondent’s representative submitted Mr Shah’s offending had become more sophisticated and complex over time and the evidence indicated he had been supported financially by his wife and her family during this period. Further, Mr Shah’s explanation that the huge quantity of cash found at the premises was not from the proceeds of drug dealing, was extremely unfathomable, and begs the question of why he would engage in the type of offending again.

1. The Respondent’s representative submitted that the Tribunal needed to treat the testimony of Mr Shah’s wife with caution, as one was left with the impression that she is extremely trusting to the point of potentially being naïve, claiming not to have known her husband was dealing drugs from their home and believing he will not reoffend as they will be living in a smaller house where he will not be able to conceal his habit and offending from her.

2. The Respondent contended that Mr Shah’s offending should be viewed by the Tribunal as serious, and that this factor weighs strongly in favour of non-revocation.

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

3. This part of the primary consideration requires the Tribunal to have regard to the Government’s view that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ (8.1.2(1)).

   Submissions

   Mr Shah

4. Mr Shah’s representative submitted the evidence clearly indicates Mr Shah is a low risk of recidivism.

5. Mr Shah’s representative submitted Mr Shah was not a professional criminal, but rather a man who had suffered setbacks and chose the wrong path, and that the Tribunal had the clear evidence from Mr Shah himself that he has learnt his lesson, gotten treatment for his drug habit and is committed to staying drug free for the sake of his family. There was also strong evidence from Mr Stephen, who volunteered to come to provide evidence to the Tribunal, that he has seen a tremendous change in Mr Shah which had persuaded Mr Stephen that Mr Shah will never offend again. Mr Shah’s representative submitted Mr Stephen did not make the decision lightly to provide a character refence but had on this occasion as he had seen such an awakening in Mr Shah and he was convinced Mr Shah was not going to reoffend again.

6. Mr Shah’s representative submitted Mr Shah was a young man who had for many years before his offending contributed greatly to Australia and if allowed to stay would continue to make a significant contribution to his adopted home. Mr Shah’s representative submitted Mr Shah has learned a great deal and now for the sake of his wife and particularly his daughter was committed to staying drug free and away from any criminal offending.

7. Mr Shah submitted in his letter of 29 December 2024:

   Today, I am a different person. Since my incarceration, I have had the time to reflect deeply on my past actions and the impact they have had on my family, my community, and myself. I have completed addiction rehabilitation programs and gained valuable skills through my work in the prison timber industry. I am now fully committed to turning my life around and living with integrity and responsibility.

   My wife and daughter mean everything to me, and the thought of being separated from them indefinitely is unbearable. I have realized the foolishness of my past choices, and I am determined never to repeat those mistakes. I am ready to take full responsibility for my actions and make amends. My family has stood by me through these difficult times, and I am committed to being the husband and father they deserve.

8. Mr Shah submitted in his response to the delegate decision to cancel his visa on the prescribed form dated 30 October 2024:

   Since my incarceration, I have actively sought opportunities for personal growth and rehabilitation. After the resumption of prison programs following the disruptions caused by COVID, I enrolled in a Drug and Alcohol addiction program in 2023. This program has been instrumental in helping me understand the underlying issues that contributed to my offending, and it has provided me with the tools and strategies to avoid falling back into the same patterns of behaviour. I now have a much clearer understanding of the dangers of substance abuse and the importance of maintaining a healthy, balanced lifestyle.

   In addition to the addiction program, I have been working in the timber industry within the prison system. Through this work, I have gained valuable skills and developed a strong work ethic. This experience has not only given me a sense of purpose but also the confidence to pursue a career in this field upon my release. I am committed to using these skills to build a stable and responsible life for myself and my family, ensuring that I stay on the right path and avoid further offending.

   Both the addiction program and my work in the timber industry have played a critical role in my rehabilitation, and I am determined to apply the lessons I have learned to lead a productive and law-abiding life in the future.

9. Mr Shah submitted he has finally found help to deal with his drug addiction and is now receiving fortnightly injections of buprenorphine. Mr Shah contend with this treatment he will remain drug free and will have no need to return to offending.

   Respondent

10. The Respondent’s representative highlighted that the Direction holds that tolerance for future offending reduces with its seriousness, and therefore contended that very heavy weight against revocation should be placed on this primary consideration. As Mr Shah’s offending was obviously very serious, the Australian community’s tolerance of risk of future harm should be regarded as low.

11. The Respondent’s representative contended the Tribunal has previously identified that the cost and harm of the illicit drug trade and methylamphetamine on the Australian community is significant and well documented by law enforcement agencies. Noting the Tribunal's findings in Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]-[54], where the Tribunal considered the nature of potential future harm involved in the sale of dangerous drugs:

    This Applicant had a significant involvement in the trafficking and supply of dangerous drugs. The consumption of such substances may cause catastrophic harm to individual users. However, there are other and perhaps slightly less obvious deleterious effects of this unlawful activity. As is now well-known, addicted individual users of these substances all too often resort to committing crimes themselves in order to raise sufficient funds to meet their habit.

    As well, there is a quantifiable cost to the community both in terms of an increased imposition on (1) the public health system to cope with the physical and psychological consequences of these substances in our community; and (2) resources to be allocated to law enforcement agencies to detect and apprehend the wrongdoers and the justice system to hear and adjudicate offences arising from this activity.

    It is clear that any return or resumption by the Applicant to his previous drug offending conduct would represent a quite significant risk of physical and psychological harm to members of the Australian community.

    … given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.

12. The Respondent’s representative contended that if Mr Shah was to reoffend in a similar manner to the previous serious offences he has committed, it was highly likely such reoffending would involve wide-reaching harm resulting from perpetuating and enabling the presence of harmful and illicit drugs in the community, leading to physical, psychological and economic harm of both individual members of the Australian community and the Australian community overall. Further, submitting Mr Shah’s actions could cause physical and psychological harm if he reoffends by speeding or committing further assaults/family violence.

13. The Respondent’s representative contended the Tribunal should conclude that Mr Shah presents a real and not insignificant risk of reoffending. While The Respondent’s representative accepted Mr Shah has shown some remorse and consideration of his offending on his family and the community, he has a significant history of illicit drug abuse and drug trafficking and of disavowing the numerous drug treatment and rehabilitation opportunities afforded to him.

14. The Respondent’s representative submitted this was reflected in his Honour’s remarks, noting Mr Shah’s last offending was “the third time you have faced similar charges and you have had numerous opportunities to reform”. The Respondent’s representative submitted Mr Shah has continuously committed offences while on a CCO.

15. The Respondent’s representative submitted the report of Clinical Psychologist Carla Lechner noted Mr Shah had “became caught in a cycle of not being able to obtain employment on account of his criminal history, would turn to crime and his employment problems would be magnified.” The Respondent’s representative contended this situation would likely remain an obstacle for Mr Shah when he is next released.

16. The Respondent’s representative submitted his Honour’s comments regarding Mr Shah’s motivations and rehabilitative prospects highlight the risks of his reoffending and subsequent harm this would inflict on the community:

    a.  “This quantity and purity supports the prosecutor’s submission that I can draw the inference you were motivated by financial gain…. Moreover, I cannot exclude as a reasonable possibility that at least part of your motivation for selling drugs was to support your own drug habit.”

    b.  “I assess your prospects of rehabilitation as being somewhat guarded. Given the scale and nature of the present offending and your relevant prior criminal history, which has included rehabilitative CCOs, much will depend on your ability to remain drug free upon your release from custody.”

17. The Respondent’s representative submitted his Honour took a grim view about Mr Shah’s prospects for rehabilitation noting that the risk of reoffending would be contingent on him remaining drug free. The Respondent’s representative contended the Tribunal should remain equally guarded and find that there is a real and appreciable risk that Mr Shah will reoffend which is an unacceptable risk – particularly where Mr Shah has been unable to remain drug free while incarcerated.

18. The Respondent’s representative contended Mr Shah presents a real and not insignificant risk of reoffending. The Respondent’s representative submitted Mr Shah has had numerous opportunities conferred by CCOs, noting the treatment, rehabilitation programs and testing he was previously required to undertake, has not resulted in him remaining drug free. The Respondent’s representative submitted Mr Shah has disregarded these opportunities in pursuit of more serious criminal offending.

19. The Respondent’s representative contended the repeated and serious nature of Mr Shah’s offending demonstrates that he will be unable to remain drug free, noting the material from Corrections Victoria before the Tribunal demonstrates Mr Shah has continued to use and deal in illicit substances whilst in prison.

20. The Respondent’s representative contended Mr Shah’s family has not served as a protective factor with him being prepared to perpetuate harm on the Australian community while exposing his child to the dangers of illicit substances and drug trafficking activities. The Respondent’s representative contended that, despite Mr Shah having the support of his very caring wife, and despite describing the birth of his daughter as one of the pivotal moments in his life, much of the Applicant’s offending occurred after his daughter was born.

21. The Respondent’s representative acknowledged it was to Mr Shah’s credit that he has done several courses in prison, including a drug and alcohol course, and has been placed on medication to deal with his addiction. The Respondent’s representative also acknowledges that Mr Shah appears to have been drug free since January this year, but this was a recent development in the context of his being in prison and the background of seven years of offending. The Respondent’s representative submitted it was too early to tell if Mr Shah was indeed a changed man and he had not been tested in the community where he had failed last time after remaining drug free for over 12 months.

22. The Respondent’s representative submitted Mr Shah, in his evidence, did not at any point in time appear to acknowledge that he was dealing drugs, despite that obviously being what was occurring, given the quantity of drugs in his possession, people coming to and from the house in which he resided with his wife and child, and his phone constantly pinging after his arrest. The Respondent’s representative contended this should give the Tribunal considerable concern for whether the Applicant truly acknowledged the extent and the seriousness of his drug use.

23. The Respondent’s representative contended the salient question for the Tribunal to weigh up was should Australia bear the risk of Mr Shah reoffending, given that obviously Mr Shah has reoffended multiple times before, has been given multiple opportunities before and unfortunately has not taken those opportunities. The Respondent’s representative acknowledged that Australia is a generous nation where offenders are given a second chance to prove themselves, however in Mr Shah’s case this was not his second chance but his fourth, as he has continued to reoffend regardless of the penalties and the consequences. Simply put, Mr Shah was a moderate risk of reoffending, and this would be too heavy a price for the Australian community to bear.

24. The Respondent’s representative contended Mr Shah presents a real and not insignificant risk of reoffending and if he were to reoffend, significant harm would be visited upon the Australian community. And as such the Tribunal should place substantial weight on this consideration in favour of Mr Shah’s visa remaining cancelled.

    Summary finding

25. The Tribunal finds the application of weight to Primary Consideration 1 complex, as there are many factors involved. The Tribunal finds the first part of the consideration, the nature and seriousness of the offence, weighs heavily against revoking the mandatory cancellation of Mr Shah’s visa. Mr Shah’s offending is obviously serious, has been increasing over time and whilst it has not involved acts of violence, his actions have caused significant harm to the Australian community and are so serious that any risk that they may be repeated is unacceptable.

26. The Tribunal finds Mr Shah’s offending blatantly serious noting his Honour’s remarks where he described the seriousness of Mr Shah’s offending:

    Offence seriousness

    16. Trafficking in a commercial quantity of a drug of dependence and trafficking in a drug of dependence are serious criminal offences, as indicated by the maximum penalties of 25 years’ and 15 years’ imprisonment respectively. This shows, unambiguously, how seriously the community, through the Parliament views the conduct you have committed in Charges 1, 2 and 3.

    17. The Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offences, it will always be of importance. All things being equal, the greater the quantity trafficked, the more serious the trafficking offence. Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.

    18. It is also relevant for me to consider the harm that is inflicted on the community by offences involving trafficking in drugs of dependence such as methylamphetamine, diacetylmorphine (heroin) and cannabis.

    19. I recognise Charge 1 is a single date offence and there is no evidence before me of the frequency or regularity of your trafficking, nor is there an allegation you were engaged in ‘Giretti’ trafficking. Nonetheless, you did possess a commercial quantity of methylamphetamine for sale. You possessed a total of 391.6 grams of mixed drugs of which 319.6 grams was pure, a purity of over 80%. This is over six times the commercial quantity threshold of 50 grams (pure). This quantity and purity supports the prosecutor’s submission that I can draw the inference you were motivated by financial gain. However, there is no evidence you acquired significant wealth from your drug related offending conduct or were living a grandiose lifestyle. Moreover, I cannot exclude as a reasonable possibility that at least part of your motivation for selling drugs was to support your own drug habit.

    20. I also observe, possession of a drug of dependence is a serious enough criminal offence. So far as Charge 2 is concerned, you trafficked, by possessing for sale 22.3 grams of heroin (mixed weight), which is about seven times the traffickable quantity and almost 10% of a commercial quantity. So far as Charge 3 is concerned, you trafficked 27.5 grams of cannabis, which is close to half the ‘small quantity’ of 50 grams.

    21. Knowingly dealing with proceeds of crime intending to conceal that it was proceeds of crime is also a serious criminal offence. While I cannot make any findings on the available evidence regarding the source of the cash that was located at your premises, I consider this is a serious example of the offence given it involves a large sum of money. Moreover, you have a number of prior convictions for similar offending.

    22. Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you on Charges 1, 2, 3 and 7.

27. Mr Shah has asked the Australian community to give him a second chance to demonstrate he has learnt how to deal with setbacks in his life, to open up and seek help. Mr Shah repeatedly stressed that for the first eight years of his life in Australia he was a model citizen and only fell into drug usage and trafficking as a way of coping with the many adversities he encountered around 2016.

28. The Tribunal accepted the evidence of Mr Shah that he had turned to drugs as a form of self-medication to deal with multiple stresses in his life including chronic pain, depression, the loss of his job, the collapse of his business, financial ruin, his wife’s difficult pregnancy, the birth of his daughter and the presences of his in-laws. The Tribunal accepted Mr Shah’s testimony that:

    When I was going through all of those things… I was going through a really bad mental health state, like really depressed.

    I was using a lot of like… I don't know how to- and the way I grew up, like we normally… we don't go and ask for help or we don't share our issues to anyone.

    So I wouldn't be able to share my problem or my issues to anyone.

    And I was trying to deal with all those financial issue, my health, everything by myself.

    So I was using a lot of different drug like you know, I tried to self medicate and using a lot of different drugs for myself.

29. Whilst the Australian community is renowned for its embrace of the fair go and support of people who seek to turn their life around, they are less tolerant of individuals who have been previously given numerous chances to demonstrate they have learned from their mistakes, matured and turn their fortunes around.

30. Mr Shah is not asking for a second chance as he has been given these by the justice system before and failed at each turn. The Tribunal notes Mr Shah’s is serving his third term of imprisonment for drug related offences, that the serious of his offending has increased over time and at no stage has Mr Shah genuinely sought to engage with programs to assist with his drug habit or the causes that drove him to drug usage in the first instance. The Tribunal noted that before Magistrate Alger on 8 January 2020 Mr Shah’s counsel submitted:

    MR STEWART: No, Your Honour, as is noted in here, he's tried hard. He became homeless at some point. That exacerbated he got back onto the drugs and I think he's still trying to continued and he wants to get this over and done with because ultimately DHHS are still involved because he's not seeing his daughter because of the drug issue so he wants to get over everything so he can move on, get back to see his wife and daughter.

1. The Tribunal considered that a finding proportionate to the nature and circumstances of Mr Shah’s offending which has resulted in serious harm to the community needed to be determined and as such this consideration weighs heavily against revocation.

2. The Tribunal considered that Mr Shah has indeed clearly breached the expectation that he obey the law, and the length of the custodial sentences imposed on him clearly demonstrates the gravity of his crimes. The Tribunal concurred with the Respondent and pervious Tribunal findings that although Mr Shah’s crimes have not involved violence or harmed vulnerable people, the impact of illicit drugs in our society is far reaching and devastating.

3. The Tribunal accepts that the Australian community would expect Mr Shah ‘s visa to remain cancelled simply because of the nature of his repeated offences. Noting the extent and impact of Mr Shah’s offending as outlined in his Honour’s sentencing remarks:

   Police investigation

   12. Forensic accountant, Shaun Taylor, obtained and analysed all of your, and your wife’s, financial accounts. The source of the $300,050 in cash could not be identified.

   13. The police seized and analysed three mobile telephones that contained text messages consistent with drug trafficking activity. These messages commence in April 2021 and continue to May 2022.

4. Accordingly, the Tribunal finds this Primary Consideration weighs strongly in favour of affirming the Reviewable Decision. The Tribunal did not consider even if informed of all the circumstances the led to Mr Shah’s offending the Australian community would afford him a second chance to prove himself worthy of having a visa to remain in Australia.

   OTHER CONSIDERATIONS

5. In making a decision under ss 501(1), 501(2) or 501CA(4) of the Act, the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   ·Legal consequences of the decision;

   ·Extent of impediments if removed; and

   ·Impact on Australian business interests.

   Legal consequences of the decision

6. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable pursuant to s 198 of the Act, noting that s 197C(1) provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   Submissions

   Mr Shah

7. Mr Shah’s representative made no contention in respect of this consideration.

   Respondent

8. The Respondent’s representative submitted Mr Shah made no submissions in relation to this consideration.

9. The Respondent’s representative submitted as Mr Shah does not have a protection finding as defined in s 197C of the Act, that if his visa remains cancelled, he would face a period of detention and removal from Australia to India. Further Mr Shah may not be able to meet the criteria for a visa that would enable him to return to Australia as a result of the Special Return Criteria in Schedule 5 of the Migration Regulations 1994 (Cth).

10. The Respondent’s representative submitted these are the intended consequences of a visa cancellation and as Mr Shah has made no claims on this consideration it should therefore be given neutral weight.

    Summary finding

11. The Tribunal finds that there are no non-refoulement obligations that need to be observed in this situation. Neither Mr Shah nor the Respondent sought to pursue this argument noting that international non-refoulement obligations do not arise in this situation as Mr Shah was not being removed to a country where he faced the prospect of being subjected to cruel or unusual punishment.

12. The Tribunal finds the legal consequence of Mr Shah’s visa cancellation would be his removal and inability to return to Australia, the Tribunal noting his Honour Judge Feutrill’s recent decision in Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003:

    Relevantly, the legal consequence of the Minister’s decision is that the applicant will be removed from Australia and cannot satisfy the special return criteria in cl 5001 of Sch 5 of the Regulations. In substance, that means that the applicant is ineligible for most classes of visa that would otherwise relate to him. That is not a matter of speculation. It is not necessary to wait for an application for a visa to be made to know that he cannot be granted a visa in any of the applicable classes. Therefore, the practical reality in human terms that flows from the legal consequences of the Minister’s decision is that the applicant will be removed from Australia and, thereafter, will be precluded from travelling to, entering and (or) remaining in Australia unless he is able to bring himself within the criteria of a visa class to which the special return criteria does not apply. In much the same way that a legal consequence may be characterised as ‘indefinite detention’, the legal consequence here may be characterised as removal and ‘indefinite exclusion’ from Australia. Moreover, in my view, not only is that a legal consequence it is manifestly a purpose of the applicable statutory framework and scheme that includes s 501(3).

    It is evident that a purpose of specifying that the special return criteria be satisfied for the various visa classes in Sch 2 is that persons who have had their visas cancelled under s 501(3) cannot satisfy the visa criteria and, therefore, cannot be granted visas in those classes and lawfully travel to, enter and (or) remain in Australia. It would plainly defeat a purpose of s 501(3) of the Act if persons who have had their visas cancelled on the grounds of national interest could, upon removal from Australia, immediately be granted a visa and return to Australia because all other criteria for the grant of that visa are satisfied.

    It follows that the applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa under s 501(3) of the Act. Accordingly, that was a consideration the Minister was bound to take into account.

13. Overall, based on the other considerations, the Tribunal finds that this other consideration weighs neutral in favour of revocation.

    Extent of impediments if removed

14. The Tribunal must consider the extent of impediments a non-citizen may face if removed to their country of origin, in ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.

    Submissions

    Mr Shah

15. Mr Shah’s representative submitted Mr Shah would face numerous hurdles if he were to return to India. First, he would be separated from his wife and child which would cause the family untold grief. Second, he would be ostracised by his family and community because of his imprisonment, drug use and marriage to his wife outside of traditional expectations. Thirdly, he would struggle to find work and somewhere to live as he would receive no financial or other supports from his family. Fourthly, he would be unable to access mental health and other medical treatment.

16. Mr Shah submitted in his response to the delegate decision to cancel his visa on the prescribed form dated 30 October 2024:

    Yes, I have serious concerns about what would happen to me if I were to return to India. One of my greatest fears is that I will be rejected by my community due to the stigma associated with my incarceration. In the conservative society where I come from, there is a strong social stigma attached to criminal convictions, and people are often ostracized for such past mistakes. I anticipate that my community will refuse to accept me and treat me as an outcast because of my criminal record, which will make it extremely difficult to reintegrate into society.

    Even my own parents, who are very concerned about societal judgment, may be reluctant to accept me back into their lives due to fear of social backlash. In many parts of India, family honor and reputation are highly valued, and the shame associated with having a family member who has been incarcerated could lead to further isolation and rejection from my family as well.

    In addition to the personal and social difficulties, the lack of a support network in India would create significant challenges for me. I would struggle to find employment or even establish a stable life due to the negative perception of my past. Without the support of my family or community, I would be left to navigate these challenges alone, which could make it extremely difficult to rebuild my life and stay on a positive path.

    These concerns weigh heavily on me, and I fear that returning to India would result in a life of social isolation, shame, and an inability to reintegrate into society. The absence of support and the societal stigma would severely hinder my ability to move forward and lead a productive life.

    Respondent

17. The Respondent’s representative accepts Mr Shah may face some difficulties in re-establishing himself in India, however this factor would only present as a short-term hardship and would not preclude resettlement.

18. The Respondent’s representative submitted Mr Shah is 41 years old male who has he has ongoing mental health issues, including a history of depression since 2016 when he injured his back at work. The Respondent’s representative accepted Mr Shah’s health conditions may require ongoing treatment. However, they contended Mr Shah would be able to access health supports in India in a similar manner to other Indian citizens.

19. The Respondent’s representative acknowledged that the social, medical and economic support available to Mr Shah in India would not be comparable to Australia, but it would be comparable to what other Indian citizens would be able to obtain. The Respondent’s representative accepted Mr Shah’s drug use issues would probably not be able to be managed quite as effectively if he were to return to India, and the ability to which those things were managed might depend partly upon whether his wife returned with him or not.

20. The Respondent’s representative submitted Mr Shah had reasonable prospects of employment and an array of different employment options available to him if he were to return to India noting it was a credit to him he had been doing work in the wood department while in prison.; it was apparent that his back issue was no longer causing the same issues as before and he has a Bachelor of Accounting.

21. The Respondent’s representative submitted Mr Shah’s parents and brother reside in India. The Respondent’s representative acknowledged Mr Shah’s evidence had been that it will be difficult for him to reintegrate into the conservative community due to fear of rejection and stigma from both his unaccepted love marriage and incarceration.

22. The Respondent’s representative acknowledged Mr Shah’s evidence that he will face emotional hardship upon his return, due to his separation from his wife and daughter.

23. The Respondent’s representative submitted that Mr Shah would likely face no substantial language or cultural barrier on return, particularly given he spent his formative years in India and his extended family continues to reside there.

24. The Respondent’s representative contended this other consideration weighs moderately in favour of revocation of the visa cancellation decision.

    Summary finding

25. The Tribunal concludes that Mr Shah would have no practical difficulties in re-assimilating if returned to India as his age could not be considered a factor, his living standards would be equal to others in India, and he would not have any language or cultural barriers. However, the Tribunal did concur with Mr Shah’s representative that Mr Shah would face significant difficulty in finding employment and housing if forced to return particularly as he had little to no support network in India.

26. The Tribunal accepts that Mr Shah would be at a disadvantage finding work as he may face significant prejudice because of his criminal record and his shunning of tradition by marrying outside of the expectations of his community. The Tribunal accepted the evidence of Mr Stephen, informed both from his discussion with Mr Shah and his own Indian background, that Mr Shah would face difficulties if he were to return to India. And additional if his family went with him, they too would struggle, most particularly his daughter, as India would be a very foreign environment.

    [Mr Shah’s family moving to India] would be a difficult thing.

    And especially, they both are from in India, there is something called the caste system.

    They belong to different caste and they, I understood that they both belong to different caste.

    So it would be a very difficult little thing for them to start a life there because they would be looked down by people, especially in their part in the northern side of India.

    It is, it is a very difficult thing for someone to intermarry from a different caste and then live in the society.

    They can be, you know, totally ostracised or, and it'll be difficult for them, especially for the child.

    It would be, it would be a trauma for her to live there.

27. The Tribunal also accepts that Mr Shah would face financial and emotional hardship if he were to have his visa revoked as he would have difficulty accessing support networks, treatment for his drug addiction and ongoing psychological support for his mental health issues.

28. Overall, given that the prospects for employment, housing and financial support were low, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.  The Tribunal considered that in particular Mr Shah’s wife and child children would be adversely impacted.

    Impact on Australian business interests (paragraph 9.3)

29. The Tribunal must consider any impact on Australian business interests if Mr Shah is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.

30. The Tribunal finds that this Other Consideration is therefore not engaged.

    CONCLUSION

31. Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.

32. As the Tribunal has found Mr Shah does not pass the character test, it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of his visa should be revoked.

33. Mr Shah’s representative, whilst accepting that he does not pass the character test, contends that the Tribunal having heard all the evidence should set aside the decision under review and substitute a decision to revoke cancellation of his visa.

34. Mr Shah’s representative contended that taken as a whole, the combination of Primary Considerations 3 and 4 and the other considerations weigh very strongly in favour of revoking the cancellation and on balance outweigh Primary Considerations 1, 2, and 5.

35. The Respondent’s representative contended there was not “another reason” why the cancellation decision should be revoked, and that the Tribunal having heard all the evidence should affirm the determination. Particularly as the primary considerations of the protection of the Australian community and the expectations of the Australian community weigh heavily against Mr Shah.

36. The Respondent’s representative contended Australia has given Mr Shah sufficient opportunity to turn his life around and he has not taken that opportunity. The Tribunal should conclude that much of Mr Shah’s offending appears to be motivated by self-interest which has taken precedence over morality and should find there is a real risk that this will simply recur.

37. The Respondent’s representative contented the Tribunal was required to affirm the determination as the Direction clearly articulates these considerations outweigh the cumulative weight that should be given to the remaining primary considerations and other considerations.

38. Of the Primary Considerations the Tribunal found:

    ·Whilst Mr Shah has been found to be a moderate risk of reoffending, the nature, seriousness, repetition and escalation of Mr Shah’s offences, were such that it must be considered serious. The Tribunal considered that protection of the Australian community weighs heavily in favour of not exercising discretion to revoke the cancellation of his visa;

    ·The evidence before the Tribunal demonstrated Mr Shah had been convicted of family violence and found that this consideration weighs in favour of not exercising discretion to revoke the cancellation of his visa;

    ·The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh in favour of discretion being exercised to revoke the cancellation of his visa. Mr Shah has lived in Australia for many years, his wife and child are Australian citizen and prior to his offending had contributed positively to the Australian community; and

    ·The Australian community would expect someone who had committed serious repeated drug trafficking offences not to be granted a visa, and found this factor weighs in favour of not exercising discretion to revoke the cancellation of his visa.

39. Of the other considerations, the Tribunal determined:

    ·That the extent of impediments if removed, was engaged, and weighed in favour of discretion being exercised to revoke the cancellation of his visa, finding Mr Shah’s drug addiction and mental health issues and lack of support networks in India were a considerable impediment to his return; and

    ·The Tribunal considered all the other factors were neutral.

40. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of Mr Shah’s visa should be revoked. That is because the three relevant primary considerations favouring non-revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations. As a general principle, the Direction establishes that on this basis his visa should be cancelled.

    DECISION

    The Tribunal affirms the decision under review.

    Dated: 2 October 2025

Dates of hearing:	17 & 19 September 2025
Solicitors for the Applicant:	Mr Surendra Man Shrestha of Australian Immigration & Citizenship Centre
Solicitors for the Respondent:	Mr Matthew Daly instructed by Ms Claire Lewis and Ms Jami Klisaris of Mills Oakley