Taulafo and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 882
•2 July 2025
Taulafo and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 882 (2 July 2025)
Applicant/s: Grant Taulafo
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3131
Tribunal:Senior Member A Clues
Place:Hobart
Date:2 July 2025
Decision:The decision not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category Temporary visa under section 501CA(4) of the Migration Act 1958 (Cth)is affirmed.
Senior Member A Clues
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – fail character test – supply prohibited drug, large commercial quantity - another reason to revoke cancellation decision -Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct - strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences - extent of impediments if removed – applicant is a 26- year-old citizen of New Zealand – cancellation decision is affirmed
Legislation
Migration Act 1958 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)Cases
CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023 FCAFC 138
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866
RRRB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 471
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
AJL20 v Commonwealth of Australia [2020] FCA 1305
McQuillan and Minister for Immigration and Multicultural Affairs [2025] ARTA 10
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Secondary Materials
Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Statement of Reasons
Background
The applicant is a 26-year-old citizen of New Zealand, who settled in Australia in March 2012. He is single and has no children. His parents and 4 younger siblings aged 15, 13, 12 and 9 all reside in New South Wales.
On 23 July 2015, he was granted a Class TY Subclass 444 Special Category Temporary visa.[1]
[1] HB 99.
On 28 February 2024, the applicant was convicted in the Parramatta District Court of, “Supply prohibited drug – large commercial quantity – S1” and was sentenced to 3 years and 4 months imprisonment with a non-parole period of 2 years and 2 months.[2]
[2] HB 43.
On 16 April 2024, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment in a custodial institution, for an offence against a law of a state, (the cancellation decision).[3] On the same date, the applicant was notified of the cancellation decision by hand at the Mannus Correctional Centre and he was invited to make representations to the Minister requesting revocation of the cancellation decision.[4]
[3] Ss 501(6)(a) and 501(7)(c) of the Migration Act and HB 100.
[4] HB 99-104.
On 3 May 2024, the applicant made representations to the Minister requesting revocation of the cancellation decision under s 501(3A) of the Migration Act (the Revocation Request).
The applicant’s non-parole period expired on 7 April 2025, and he was released into the Villawood Immigration Detention Centre[5] which is where he was at the time of the hearing of this application.
[5] HB 207 and 240.
On 10 April 2025, a delegate of the Minister decided under s 501CA(4) of the Migration Act, not to revoke the cancellation decision.[6] On 14 April 2025, the applicant applied to the Tribunal for review of the decision not to revoke the cancellation decision.[7]
[6] HB 18-41.
[7] HB 5-17.
In determining this application for review, the issues for consideration are:
a.Whether the applicant passes the character test, as defined by s 501(6) of the Migration Act.
b.If the applicant does not pass the character test, whether there is “another reason” why the cancellation decision should be revoked.[8]
[8] S 501CA(4) the Migration Act
The hearing
The hearing was conducted via Microsoft Teams video on 23 June 2025. The applicant appeared from the Villawood detention centre. He was self-represented. The Minister was represented by Ms C Warren of Sparke Helmore Lawyers.
The following documents were tendered in evidence by consent and marked as exhibits:
E1: Hearing book pages 1-258.
E2: A full copy of a report prepared by Dr C Leland pages 1-22.
At the hearing the applicant, his mother and his father gave evidence and were all cross-examined by counsel for the Minister.
The character test
The character test is defined in s 501(6) of the Migration Act. S 501(6)(a) provides that a person does not pass the character test if they have a “substantial criminal record” which is defined by s 501(7) as a person who “has been sentenced to a term of imprisonment of 12 months or more”. Failure to pass the character test arises as a matter of law.[9]
[9] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
On 23 February 2024, the applicant was convicted in the Parramatta District Court, for the offence of supply a prohibited drug being a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).[10] He was sentenced to a term of imprisonment of 3 years and 4 months to commence on 8 February 2023 and expiring on 7 June 2026 with a non-parole period of 2 years and 2 months making him first eligible for parole on 7 April 2025.[11]
[10] HB 46.
[11] HB 44.
As the applicant’s sentence was a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(6)(a) in conjunction with s 501(7)(c). Accordingly, the Tribunal is satisfied that the applicant does not pass the character test.
Another Reason
The statutory power to revoke the cancellation decision will only be enlivened if there is “another reason” why that decision should be revoked.[12] The Tribunal is required to form a state of satisfaction as to whether there is “another reason” why the cancellation decision should be revoked.
[12] S 501CA(4)(b)(ii) of the Migration Act.
Direction 110
Under s 499(1) of the Migration Act, the Minister may give written directions to a person or body having functions or power under that Act, and a person or body must comply with any direction given by the Minster (s 499(2A)). The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[13]. The Tribunal must comply with the Direction.
[13] Dated 7 June 2024.
Paragraph 5.2 of the Direction provides principles to provide a framework to approach decision making. These 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 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 considerationsmay 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.
Paragraph 7 of the Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration ... (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
The primary considerations
Paragraph 8 of the Direction contains 5 primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of the Direction sets out 3 other considerations which must be taken into account. These considerations are:
(1) legal consequences of the decision;
(2) extent of impediments if removed; and
(3) impact on Australian business interests.
As stated in CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023 FCAFC 138 (CRNL) at [35]:
Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
In CRNL at [37], the court also stated that in addition to identifying and considering each of the primary and other considerations mandated by the Direction, the Tribunal is also required to:
...evaluate the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion.
The applicant’s offending history
In relation to the applicant’s offending the Minister submits in its Statement of Facts, Issues and Contentions[14]:
In light of the High Court judgments in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6, the Tribunal must not have regard to any offending for which the applicant received a finding of guilt but no conviction.
In Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866, the Federal Court held that the Tribunal is precluded from considering charges which were taken into account on a ‘Form 1’ basis, pursuant to ss 32, 33, and 35A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Relevantly, when the applicant was sentenced in respect of the supply offence, the Court took into account two counts of supply prohibited drug >indictable & <commercial quantity on a Form 1 basis. Pursuant to the authorities cited above, the Tribunal is precluded from having regard to those offences. The Tribunal also must not have regard to the offence of drive motor vehicle while licence suspended – 1st off for which the applicant was sentenced in the Burwood Local Court on 15 June 2021, as no conviction was recorded for that offence.[15]
The Tribunal accepts and applies those submissions.
[14] HB 157.
[15] HB 43.
The offending that resulted in the mandatory cancellation of the applicant’s visa is summarised in the Sentencing remarks of Herbert J, in the District Court of NSW at Parramatta on 23 February 2024:[16]
The offender supplied more than 1.5 kilograms of cocaine over six transactions in a period of less than two months. The quality of the drug varied from relatively low at 31% to high purity at 85%. The final supply of just over 1 kilogram was 75% pure. As a large commercial quantity is 1 kilogram, this is about 1.5 times the threshold for a large commercial quantity, noting that there is no upper limit.
The role of the offender included communicating with the undercover operative and he was the person who delivered the prohibited drugs to the undercover operative and received the money which he passed on. The offender was providing significant assistance to those higher up in the drug syndicate by performing these duties, allowing them to distance themselves from the transaction. The offender was in possession of the prohibited drugs for a limited period of time prior to the delivery to the undercover operative at least one of the co-offenders was always nearby. The offender was not occupying a senior role. He would benefit but was not to be part of a profit share, and he did not instigate the offences. Given the offender’s evidence I accept that he did not have authority to make decisions as to prices for drug sales despite what he said to the undercover operative.
I find the objective seriousness of the offending to be below the mid-range of objective seriousness primarily due to the role of the offender in the drug syndicate.
[16] HB 51-52
In relation to subjective matters relevant to the applicant Herbert J said:[17]
[17] HB 52-55.
The offender’s criminal record is very short comprising traffic matters, and certainly the present offending appears to be very much out of character. I find that his prior matters are not significant and accept that he is a person of otherwise good character.
Dr Carolina Leland, Clinical and Forensic Psychologist provided a report.[18] She interviewed the offender on two occasions for a total of three hours. Dr Leland formed a view that the offender’s responses were genuine. The offender is of Samoan heritage having been born in New Zealand. He is the eldest of five children. His childhood was described as good. He has a close and supportive relationship with his mother who would work a number of jobs while caring for the family. He has a close and respectful relationship with his father. He described their parenting style as including tough love, there was physical punishment, and borderline strict but he regarded these as aspects of their Samoan culture.
[18] E2.
The offender lacked confidence and struggled to share emotions with his parents, and he still finds it difficult to share emotions with adults now. The family struggled financially but basic needs were met. There were verbal arguments between his parents which would result in his going to school feeling sad and upset but pretending everything was fine. He did not witness or hear any physical abuse between his parents.
In Australia the offender lived in areas with high crime rates, and he was exposed to violent behaviours at school and in the neighbourhood. For a period, he was caught up in peer altercations and started to skip school which the author thought was an attempt to fit in and be accepted. His parents became concerned about his behaviour. The offender moved to a selective sports high school on a rugby scholarship but the focus on sports impacted his academic performance so he returned to the previous school so he could focus more on his education and his grades improved resulting in his acceptance into university. The offender was contracted as a professional rugby league player from the age of 15 until his arrest. The offender worked in construction, he studied at university, and he engaged with his rugby league career.
The offender started drinking alcohol at the age of 18 years. His use increased after the death of two friends when he used alcohol as a coping mechanism. The offender suffered an anterior cruciate ligament injury, (hereafter ACL) and started to drink heavily including during the day to “fill the void.” The offender began using cocaine when he was 20 years old, he denied being a heavy user, mainly using socially, but sometimes when he was alone.
The offender’s use of cocaine increased, and he used it to increase his mood and energy, and to help him cope with his emotional and psychological pain. The offender developed problematic gambling at about this time. His alcohol use was considered normal within the offender’s extended family.
Speaking with the author, the offender demonstrated insight into his offending behaviour that with the stressors in his life he had turned to alcohol and drug use which contributed to his involvement in the offences. The offender was also to make a financial gain which was important to him as part of Samoan culture is to contribute financially to the family which the offender had done since he left school.
The offender expressed his remorse for what he had done describing self-hatred and feeling awful for his offending. The offender detailed depressive symptoms associated with the deaths of his friends, experiencing significant grief and social withdrawal and isolation. Following his ACL injury, he detailed symptoms characteristic of depression and used cocaine and alcohol to fill the void. Even though he was able to return to football he did not feel the same mentally or physically. For the first three months of incarceration the offender experienced symptoms of depression and anxiety, but his mood did improve somewhat with the support of chaplain services. Dr Leland said the offender meets the diagnostic criteria for an adjustment disorder with anxiety.
At the time of his offending, he was suffering from emotional distress, and he was ill equipped to manage the significant emotional and psychological distress which followed from the life events at about that time. The offender turned to negative coping strategies including gambling, alcohol and drugs leading to association with anti-social individuals. The offender had an inhibited ability to manage his impulses and consequential thinking. Dr Leland could not state if the offender was suffering from a mental illness at the time of his offending, but he had endorsed experiencing symptoms characteristic of depression in the lead up to, and at the time of, the offending. She was of the opinion that it was likely he was suffering psychological and emotional distress and difficulties coping with his internal experience.
The offender’s decision making, and consequential thinking were impaired due to his increased stress and his substance use. His offending was in part motivated by financial gain so he could contribute to his family.
Herbert J continued:[19]
[the applicant] regrets all the decisions he made in relation to his offending. He knows that children looked up to him as a role model. The offender is embarrassed by his actions and has caused embarrassment to his family. He takes full responsibility and is remorseful for what he has done. The offender recognised the impact of drugs on the community and particularly for young people.
In cross-examination the offender agreed that one of the things that kept him involved in the drug dealing was the fact that there would be a financial benefit for him which he could use to contribute to his family. There are multiple character references tendered from family, friends, church associates and the offender’s player agent speaking of the offender being a hard-working dedicated person, a man of strong values who has contributed to his family, to his church and to the community, a man whose actions are totally out of character for the person that they know. The offender has expressed his remorse to them. They have said he will have their ongoing support, and they believe that he will never reoffend. The chaplain at the MRRC has confirmed the offender’s engagement in the Positive Lifestyle Program, his exemplary conduct and his extreme remorse for his actions.
I accept that the offender is genuinely remorseful for his offending. The offender was a very hard-working young man who was living a pro-social existence prior to significant challenges in his life and starting to use drugs. The offender clearly has the capacity to return to this lifestyle. He has a strongly supportive family who are all pro-social. I am satisfied that the offender has good prospects of rehabilitation and that the offender is unlikely to reoffend.
[19] HB 56-57.
Herbert J considered all possible penalties for the applicant and determined that no penalty other than imprisonment was appropriate. She imposed a head sentence of 3 years and 4 months and a non-parole period of 2 years and 2 months, making the applicant eligible to be released on parole on 7 April 2025. His term of imprisonment was reduced by 25% to take into account his plea of guilty.
The applicant’s present circumstances
At the time of the hearing the applicant had been released from prison and was in the Villawood Immigration Detention Centre. In January 2025, prior to his release, a Pre-release report was prepared by Corrective Services NSW - Community Corrections. In that report under the heading “Overall assessment” it says:
[The applicant] is subject to mandatory visa cancellation and contact with the Department of Immigration and Citizenship has confirmed that he will be released directly into immigration detention prior to his deportation to New Zealand where he plans to wait for the result of his appeal. He maintains the support of his family both in New Zealand and Australia, if successful with his appeal he intends to return to Australia and reside with his partner in the Parramatta area.[20]
[20] HB 213.
As stated, at the time of the hearing the applicant was at the Villawood Immigration Detention Centre. Evidence was given by himself and both his parents that he had no family support in New Zealand. There was no mention of a partner, and the evidence was that if a decision is made to revoke the cancellation decision he intends to reside with his parents and 4 younger siblings at the family home in the Parramatta area. Apart from these differences, the applicant’s circumstances are very similar to those that existed at the time of his sentencing in February 2024 and the submissions and evidence he relies upon in this Tribunal are very similar to the submissions and evidence he relied upon at the sentencing hearing referred to by Herbert J and summarised above.
Primary consideration 1: Protection of the Australian community
Paragraph 8.1(1) of the Direction focuses on the protection of the Australian community. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are,and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 7(2) of the Direction provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.
Paragraph 8.1(2) of the Direction provides that decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date. In doing so, paragraph 8.1.1(1) of the Direction provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other offences or conduct are considered to be ‘serious.’ However, whilst the Direction expressly refers to categories of conduct that are to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[21]
[21] Paragraph 8.1.1(1)(a)
In considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, the Tribunal must have regard to:[22]
·The sentence imposed by the court;
·The impact of the offending on any victims and their family;
·the frequency of the offending and/or whether there is any trend of increasing seriousness;
·the cumulative effect of repeated offending;
·whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
·whether any offence committed in another country is classified as an offence in Australia.
[22] 8.1.1(1)(c)-(h)
The applicant’s most serious offending was the supply of a prohibited drug being a large commercial quantity of more than 1.5 kg of cocaine over 6 transactions between 21 December 2022 and 8 February 2023. This resulted in him being sentenced on 23 February 2024 to a term of imprisonment of 3 years and 4 months with a non-parole period of 2 years and 2 months.
Paragraphs 8.1.1(1) (a) and (b) of the direction relates to conduct that may be considered by the Australian Government and the Australian community to be ‘very serious’ or ‘serious’. The Tribunal accepts that the applicant’s offending does not fall within the categories referred to in those paragraphs. However, there is no doubt that there are crimes which can properly be characterised as ‘very serious’ or ‘serious,’ which are not specifically mentioned. Such crimes would include serious drug offences such as that committed by the applicant of supplying in excess of 1.5 kg of cocaine over a short period of time.
As stated above in relation to the ‘objective seriousness’ of the applicant’s offending, Herbert J stated in her sentencing remarks that she found the offending to be below the range of objective seriousness primarily due to the role of the offender in the drug syndicate.[23] She said that the applicant’s role included; communicating with the undercover operative, delivering the prohibited drugs to the undercover operative, receiving the money for the drugs (which he passed on), providing significant assistance to those higher up and benefiting financially from the supply.[24]
[23] HB 52.
[24] HB 51-52.
At the hearing the applicant said that he was well aware of the seriousness of his offending. He accepted that his offending was serious. He said he fully understood the negative impact drugs have on people in the community, including young people. In his Revocation Request, he says:
I understand the impact drugs can have on the community, and the effect it can have on young kids. Our kids should never have to worry about drugs being flooded in the community. Rather they should be able to live healthy both physically and mentally.[25]
[25] HB 62.
The applicant does have prior traffic offences that occurred between 15 February 2022 and 2 November 2022. The Minister submits that ‘there has been a significant uptick in the seriousness of the applicant’s offending, which commenced with relatively minor driving offences and soon graduated to serious drug supply offending.’[26] The Tribunal accepts that the applicant’s traffic offending does demonstrate a disregard for Australian laws, but these traffic offences are comparatively minor. Therefore, the Tribunal does not consider that they contribute significantly to the applicant’s overall conduct.
[26] HB 158.
However, the Tribunal does agree with the Minister’s following contentions:[27]
First, the applicant engaged in the supply of a significant quantity of harmful narcotic. The value of the drugs was in the order of hundreds of thousands of dollars. While the sentencing judge accepted that his role was not senior, she found that the applicant had provided significant assistance to those more senior in the enterprise by allowing them to distance themselves from the transactions.
Second, despite the applicant’s criminal history to that point being limited, the Court dealt with the supply offence by imposing a significant period of imprisonment. Periods of imprisonment are the last resort in the sentencing hierarchy[28] and reflects the seriousness with which the Court viewed the applicant’s offending.
[27] HB 158.
[28] Section 5(1) of the Crimes Sentencing Procedure Act 1999 (NSW).
The Tribunal finds that the applicant was involved in a lucrative and sophisticated enterprise. It involved a lot of planning, a large volume of drugs was supplied, encrypted messages were used and significant amounts of money were involved. In cross examination the applicant agreed that he was making plans to continue to supply drugs. The Tribunal finds that he would have continued to have been involved in the enterprise but for his arrest by police.
Considering all the circumstances, the Tribunal finds that the applicant’s offending was serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraphs 8.1.2(2)(a) and (b) of the Direction required the Tribunal to assess the risk that may be imposed by the applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the applicant engage in further criminal or other serious conduct and the likelihood of the applicant engaging in such conduct. There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[29]
[29] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] ; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41].
In the recent decision of RRRB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 471, Deputy President Burford stated at [74] that the Direction:
…refers the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts. ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In my experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably with respect assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with reoffending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
Likelihood of reoffending
The applicant submits that the likelihood of him reoffending is very low. He affirms what Herbert J said in her sentencing remarks namely that she was satisfied that he was unlikely to reoffend.[30] In his Request for Revocation form the applicant says:
Although my actions at the time may have not reflected well, I know very well and stand firm against having drugs in the community.[31]
He further states:
Throughout my time here in Custody, it has helped me reflect on the choices I’ve made and the impact it has on the wider community. By involving myself in courses such as Equips and the positive lifestyle program, I’ve been able to draw knowledge and understanding allowing me to make better and positive decisions. My only goal now is to help the youth and young kids, whether it’s through social work or in the Church Community. To encourage them to make better choices and help them realise that anything is possible despite where you come from.[32]
[30] HB 57.
[31] HB 62.
[32] HB 64.
The Minister submits that the Tribunal should find that the applicant remains a tangible risk of reoffending.[33]
[33] HB 159.
The Minister contends that:
·The applicant’s offending appears to have occurred in the context of significant life stressors and were the applicant to face similar stressors in the future, there is a risk he would return to drug use and, in turn, drug supply in order to fund his addiction and/or support his family.[34]
·The applicant points to his family and social connections in the community as protective factors, but those factors were in place at the time of his offending and they did not prevent that offending.[35]
·According to the Pre-release report prepared in January 2025 by Corrective Services NSW – Community Corrections, the applicant was assessed at a Medium - Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).[36]
[34] HB 159.
[35] HB 159.
[36] HB 212.
In that Pre-release report, under the heading ‘Responsivity,’ the following comments are made:
Willingness to undertake intervention
During this period of incarceration, [the applicant] has displayed the capacity to complete offence related interventions, however he was deemed ineligible for the EQUIPS suite of programs. [The applicant] has instead engaged in identified case management intervention strategies to assist in positive rehabilitation.
[The applicant] verbalised his commitment to make personal change, recognising the benefit of continued therapeutic interventions both in the custodial environment and during community supervision should he be granted a period of supervised parole. He was able to identify and express a willingness to attend community-based substance abuse education to maintain his current period of abstinence.
Behaviour in custody
In October 2024 [the applicant] [was] under a review of classification for regression to a B classification and transfer to South Coast Correctional Centre for the offence in custody:
13/08/2024 POSSESS MOBILE, SIM CARD, CHARGER (122)
This charge was for a mobile phone found that was found in the centre, [the applicant] denied having used the device despite his partners contact details being found in the phone.
Prior to this [the applicant] was housed at Mannus Correctional Centre and received positive case notations from custodial staff “[The applicant] voluntarily served as one of several inmate organisers for the Mannus OzTag. He showed a great deal of enthusiasm and initiative and was instrumental in getting all the gear and other preparations ready. He also served as referee, denying himself the opportunity to play in a team. He showed a lot of maturity and a good, positive attitude throughout.”
[The applicant] commenced the Duke of Edinburgh Award and was around half way through before his classification regression prevented continuation, he was afforded the opportunity to participate in community projects, one of these occasions involved the building new hiking trails on Tumbarumba mountain, he was noted as having “worked well and was a good member of the team”.[37]
[37] HB 210.
It is some concern to the Tribunal that whilst in prison the applicant was given some autonomy and the opportunity to participate in the Duke of Edinburgh Award. However, he could not complete the Duke of Edinburgh Award because he committed an offence of possessing a mobile phone, SIM card and charger. As a result, his classification was regressed to a lower level. The applicant initially denied knowledge of and use of the mobile phone.[38] However, an analysis of the subject phone confirmed he had used it. He was identified through Snapchat messages to have contacted his de facto partner.[39]
[38] HB 221.
[39] HB 235.
When the applicant was interviewed in relation to self-reflections on content and future planning he said:
His Bigger Goal is being released, gaining financial stability and establishing a career and a family. He will achieve this goal by planning, setting goals and meditating and has a strong and supportive family network. [The applicant] identifies that having a bad attitude could get in his way.[40]
[40] HB 232.
The Tribunal does accept that apart from the Duke of Edinburgh Award the applicant did complete the personal and educational programs that were made available to him and that he maintained institutional employment during his incarceration.[41]
[41] HB 211.
The Tribunal observes that when the applicant was asked questions during cross-examination in relation to his substance abuse and offending, he was evasive in his answers about the offending and minimised his use of drugs and involvement in the offending. Whilst the applicant reports that he has developed insight into his identified risk factors and is aware that he must engage in therapeutic interventions post-release to prevent relapse and re-offence,[42] his evidence led the Tribunal to form the view that he continues to lack real insight in relation to the risk factors that led to his offending. The Tribunal also has some doubts that should the same risk factors occur that contributed to the applicant’s offending, he will remain reluctant to seek assistance from parents as he previously did not reach out to them when he was struggling. He gave evidence that when he was in trouble, he did not tell his parents anything and when he did make contact with them, je put on a façade. He said that he did not want to burden his parents with his problems, leaving them shocked when he was arrested and when they discovered that he was using and selling drugs as well as gambling and drinking excessively.
[42] Hb 211.
On balance, the Tribunal finds that the applicant’s ability to cope with life stressors and abstain from drugs, alcohol and gambling has not been tested outside a controlled environment and therefore in his case there is low but tangible risk of the applicant reoffending, if he were permitted to remain in the Australian community.
Nature of harm should the applicant reoffend
Pursuant to paragraph 8.1.2(2)(a) of the Direction, in order to determine the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the applicant reoffend.
The applicant was convicted of supplying a large commercial quantity of a prohibited drug. If the applicant did reoffend this would support and encourage the ongoing supply of prohibited drugs in Australia. Any offending of a similar nature will cause harm to members of the Australian community. The harm caused by prohibited drugs in the community is not limited to those who purchase and ingest them, it is more widespread. The illicit trade in prohibited drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for purchasing drugs and the destruction of personal and family lives that such drugs can cause.
In this case, the Tribunal considers that serious harm would be caused if the applicant reoffended. The sale and supply of prohibited drugs includes serious harm to users and the perpetuation of crime in the community. There are also associated health, social and economic costs. Accordingly, the Tribunal determines that the nature of the harm which would be caused if the applicant reoffended would be serious.
Conclusion for primary consideration 1
The applicant’s offending and conduct was serious, there is low but tangible risk of the applicant reoffending and the nature of the harm which would be caused if the applicant reoffended would be serious. Taking all of these factors into account, the Tribunal finds that primary consideration 1 weighs heavily against revoking the cancellation decision.
Primary consideration 2: Family violence
Paragraph 8.2 of the Direction provides that the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. There is no evidence before the Tribunal to suggest that the applicant has ever engaged in any acts of family violence.
Conclusion for primary consideration 2
The Tribunal finds that primary consideration 2 is not relevant in the applicant’s case and neutral weight is given to it.
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraphs 8.3(1) and (2) of the Direction requires the Tribunal to consider any impact of the decision on the applicant’s immediate family members in Australia and the strength, nature and duration of any other ties that the applicant has to the Australian community, having regarding to how long they have lived in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant is of Samoan heritage, he was born in New Zealand and is the eldest of 5 children. He grew up in Wellington and moved to Australia when he was 12 years old. He moved with his parents and brother. He now has 4 siblings (all under the age of 18) who live with his parents in Australia. He has no children and the Tribunal understands that he is no longer with the de facto partner that he was living with at the time of his offending and incarceration.
In relation to the applicant’s family, in his Revocation Request he lists the following as his immediate family:
· father aged 49;
· mother aged 48;
· brother aged 15;
· sister aged 13;
· sister aged 12;
· brother aged 9.
He lists an uncle, an auntie and 4 cousins (all adults) as close family members living in Australia. In relation to relatives living in Australia, he says he has more than 50 aunts and uncles, more than 20 nieces and nephews and more than 50 cousins.
He describes the current impact on his family members in the event of the non-revocation of the cancellation decision as follows:
All my family are living here in Australia, the impact that this will have on them will be very tough. It’s already been a mentally tough time for my family considering my siblings are still very young. I have always been a family first person, and not being with them will only make things tougher.[43]
[43] HB 71.
It is the applicant’s position that the strength, nature and duration of his ties to Australia weighs heavily in favour of the revocation of the cancellation decision. The Minister accepts that this consideration weighs in favour of the cancellation but says it is significantly outweighed by the countervailing primary considerations.[44]
[44] HB 161.
The Minister accepts that in the written statements and oral evidence of the applicant’s parents as well as the written statements of his siblings, his uncle and one cousin, they all speak of their closeness to the applicant and the high regard they hold him in. The Minister submits that while it may be accepted that those individuals represent significant ties to Australia and they would be emotionally distressed if the applicant was returned to New Zealand, the evidence does suggest that they would be impacted beyond that, such as being unable to support themselves if the applicant was returned to New Zealand.[45] The applicant’s parents were very clear in their evidence that they were in a financially stable position and did not rely upon any financial contribution from the applicant to support them and their family.
[45] HB 161.
The applicant also relies upon letters of support from members of his church community and friends as well as his former rugby agent. The Minister submits that whilst each of those individuals represents a tie to the community, the evidence suggests that the impact upon them would not extend beyond disappointment in the event that the applicant was returned to New Zealand.[46]
[46] HB 161.
The statements provided by the applicant are certainly very supportive of him. His parents’ state; “he has been an amazing son to us, hard-working, trustworthy, provider, loving and caring. We believe any behaviour he displayed that caused him to be charged is out of character.”[47] The other statements variously described the applicant as a good role model, positive, likeable, a devoted Christian, a leader, humble, respected, caring, a gifted rugby player and a valued member of the community.
[47] HB 88.
The applicant has now resided in Australia for over 14 years, which is longer than he resided in New Zealand. Prior to his offending he contributed positively to the community. He was employed as a professional rugby league player from 2015 until 2022. He was the PASIIFIKA Ambassador at the Western Sydney University from 2019 until 2021 and he worked in container unloading from 2019 until 2021.[48] He was a youth leader in the church from 2020 until 2021.[49]
[48] HB 72.
[49] HB 94.
There is no doubt that the applicant has strong family ties to Australia and it would be very emotionally difficult for his immediate family if he were required to return to New Zealand. In the statement to the Tribunal the applicant says:
There are many reasons as to why I should remain here in Australia. I have many ties with the community. I finished my hsc in school here, attended university at the University of Western Sydney and have been a part of some elite rugby league teams.
The main one is my goal to aspire to be a positive influence amongst the younger generation. I have always had good qualities whether that would be through church, work and footy. I grew up in church all my life and have committed to many church events, many of them in my youth. I was a youth leader in the church, and my role was to guide and influence them in a way to always put God first. That is what I aspire to do when I get out, to be amongst the youth and use my story as a positive influence in their lives.
My family is a big part of who I am and the driving factor in my life to be the person I can be. I am the eldest of five and they deserve a chance to have me in their lives. I lost over two years of time with them, missing graduations, sports events and other school events. I want to be there for them, to be able to guide them down the right path and support them through their life decisions. Being away from them will only take a mental toll on me, and so being with my family is the most important reason why I want to be here.[50]
[50] HB 130.
The evidence contains a report from a staff member of Community Corrections dated 13 November 2024, stating that the applicant had spoken “to border force recently and as they were not sure if he will have a result of his visa appeal before his release they offer that he could wait at Villawood or back in new Zealand [sic], he said he still has family in new Zealand [sic] so that was his preferred option.”[51] This was repeated in his ‘Pre-release report’ that was prepared in January 2025.[52] However, at the hearing the applicant and his parents gave very clear evidence that he has no family in New Zealand. The applicant was evasive in his response as to why that was recorded by Community Corrections, nonetheless the Tribunal accepts that the applicant has no family in New Zealand.
[51] HB 248.
[52] HB 213 and 214.
The Tribunal finds that the applicant’s immediate family would suffer significant emotional hardship as a result of separation from the applicant if he were returned to New Zealand. If the applicant were to return to New Zealand, he would face some challenges with resettlement. However, the evidence does not support a finding that the applicant is more likely to reoffend if returned to New Zealand rather than remain in Australia. Further, the applicant can contribute positively to the community and church in New Zealand. There are no significant barriers to him working, studying, being a part of the church and playing rugby in New Zealand.
Conclusion for primary consideration 3
The applicant has strong ties in Australia to his immediate family and his parents’ church community. The Tribunal does take into account that the applicant has now lived in Australia for most of his life. If removed to New Zealand there is no doubt that his immediate family will be adversely emotionally impacted but they will not suffer any practical or financial hardship. Having considered the components of this consideration the Tribunal finds that the strength, nature and duration of the applicant’s ties weigh moderately in favour of revoking the cancellation decision.
Primary consideration 4: Best interests of minor children
Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. The Tribunal must make a determination whether cancellation or refusal under s 501 of the Migration Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4)(a)-(h) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision where relevant. In summary, those factors include:
·the nature and duration of the relationship;
·the extent to which the Applicant is likely to play a positive parental role in the future;
·the impact of the Applicant’s prior conduct, and any likely future conduct, on the child;
·the likely effect that any separation from the Applicant would have on the child;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child;
·evidence that the child has been, or is at risk of being exposed to family violence by the Applicant or has otherwise been abused or neglected by the Applicant; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
As stated above the applicant has included in his Revocation Request, 4 minor children, all of which are his siblings. He has no children of his own. He has a brother aged 15; a sister aged 13; a sister aged 12 and a brother aged 9. Each of his siblings provided a statement to the Tribunal in relation to the applicant.
His 15-year-old brother states:
I have been affected ever since my brother went to jail. I missed him as he is my older brother, and I looked up to him. He helped me a lot with my rugby and school work. He was a great role model for me growing up apart from the crime he committed, he is a great brother. Please process his application as I don’t know what to do if he is sent back to New Zealand. I have missed him for the last 2 years and I have never been the same since. Please consider my brothers application as I really want him to stay and be a family again and help my parents and my siblings.[53]
[53] HB 132.
In an earlier letter sent by his 15-year-old brother to the sentencing judge he wrote:
… I looked up to [the applicant] as he is a good role model for me and my younger sisters and brother. [The applicant] has always led a very positive and happy lifestyle and he also love the Lord as we are a close devoted Christian family who prays, read the Bible and attend church. He helps my parents a lot financially to pay for our rent and to pay for our school fees, lunches, camps, athletics, and sports carnivals. I believe my brother has never previously been involved with drugs and I totally believe it will never do this again and certainly does not have any criminal record.
…
My family have been visiting him in jail and he has spoken to me over the phone and advised me to be a good boy and to be obedient to our parents and do good things at school and pursue rugby but education first, and to be a role model for our younger siblings. He also said that he does not belong in prison and he made a huge mistake.
I know for a fact that he has a bright future ahead of him in his life as he is a good brother and a great person despite of this downfall in his life which he is ashamed and not proud of. We miss our brother and we love him and my family will always be here for him.[54]
[54] HB 89.
In her statement to the Tribunal the applicant’s 13-year-old sister states:
Please I really want my brother to stay in Australia as he has no families in New Zealand and I don’t want him to go back as he will be lonely. He is the best brother we could ever ask for, he looks after us and helps us with school work and our sports. I am currently playing rugby league, club netball, rep netball as well as Samoa under 13s netball team and I would love to have my brother come and support me during my games.[55]
[55] HB 132.
The applicant’s 12-year-old sister says:
I love and miss my brother, and I can’t wait for him to come home soon. Our family has never been the same again after [the applicant’s] arrest.[56]
[56] HB 132.
The applicant’s 9-year-old brother states:
Please let my brother stay in Australia as he is a good boy and I have missed him so much. My wish and my prayer is for my brother to come home to our parents and his brothers and sisters.[57]
[57] HB 132.
The Tribunal accepts that the applicant has a close and loving relationship with each of his 4 brothers and sisters, especially his 15-year-old brother, and that they would benefit from his involvement in their lives if he returned to the family home and his previous prosocial lifestyle. The Tribunal notes that the applicant siblings are all at an age where he could make a positive contribution to their lives. However, this is completely dependent upon the applicant refraining from drinking alcohol, gambling, taking and supplying drugs. His ability to do this remains untested in the community.
There is no evidence that the applicant’s offending has had a negative impact on his siblings, or that they have been, or are at risk of being subjected to, or exposed to, family violence perpetrated by the applicant, or they have otherwise been abused or neglected by the applicant in any way, or that they have suffered or experienced any physical or emotional trauma arising from the applicant’s conduct.
The applicant gave evidence that he has been communicating with his siblings by phone whilst he has been in jail and detention. He would be able to continue to do this if he were removed to New Zealand. Whilst they can communicate via electronic means, the Tribunal accepts that this is no substitute for in person contact and this may limit the nature of the relationship between the applicant and his siblings in the longer term. The Tribunal also accepts that it may be harder for the applicant (at least in the short term) to provide financial assistance to and support them in their school work and significant sporting commitments from New Zealand and they will suffer some detriment in this regard.
The Tribunal considers it is in the best interests of the applicant’s siblings (the minor children in Australia affected by the decision) for the cancellation decision to be revoked. However, given the non-parental nature of the applicant’s relationship with his siblings, their interests carry less weight.
Conclusion for primary consideration 4
For the above reasons, the Tribunal considers that revocation of the cancellation decision would be in the best interests of the 4 minor children identified, namely the applicant’s siblings. However, given the non-parental relationship between the applicant and the children the Tribunal considers those interests carry less weight in the applicant’s circumstances. Overall, the Tribunal considers that the consideration of the best interests of children weighs moderately in favour of revocation of the cancellation decision.
Primary Consideration 5: Expectations of the Australian Community
Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) of the Direction provides that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious.’
Paragraph 8.5(3) of the Direction confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Accordingly, a measurable risk of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
Paragraph 8.5(4) of the Direction provides that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above [in paragraph 8.5(1)-(3)], without independently assessing the community’s expectations in the particular case.
While the applicant has not engaged in conduct identified in paragraphs 8.5(2)(a)-(f), that list is not exhaustive. In his evidence the applicant accepted that the Australian community expects noncitizens will be deported if they commit serious crimes. The Tribunal has found that the applicant’s offending was serious. This raises the sort of serious character concerns referred to in paragraph 8.5(2).
The Minister submits[58] and the Tribunal agrees that the effect of paragraph 8.5 points to the likelihood that this consideration will in most cases call for cancellation, without dictating an inflexible conclusion.[59] The question for a decision-maker is the weight to be attached to this consideration.[60]
[58] HB 163.
[59] FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [66] and [91].
[60] Ibid at [67] and [104].
The Tribunal finds that the Australian community would expect that the applicant’s visa would remain cancelled due to the character concerns raised by his serious offending. However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, guidance is provided by the principles in paragraph 5.2 of the Direction. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns, and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
However, paragraph 5.2(6) notes that increased tolerance should be afforded to non-citizens who have been in the community from a very young age or for most of their lives. The Tribunal accepts that the applicant has lived in Australia since he was 12 years old, for a period of around 14 years, which is more than half his life.
The Minister submits[61], and the Tribunal agrees, that in observing the norm stipulated in paragraph 8.5(1), and the principles outlined in paragraphs 5.2(2)-(4), the Australian community would expect that the applicant should not continue to hold a visa given the serious criminal offending he engaged in even after applying a higher tolerance in light of the fact that he has lived in Australia for 14 of his 26 years.
[61] HB 163.
Conclusion for primary consideration 5
The applicant arrived in Australia at the age of 12 and he has lived here for more than half his life. However, the Tribunal has found that the applicant’s offending is serious and on the facts of this case the Australian community’s expectations are not modified and it does not have a higher than usual tolerance for his conduct. Accordingly, the Tribunal considers these primary consideration weighs heavily against revocation.
Other consideration 1: Legal consequences of decision
Pursuant to paragraph 9.1 of the Direction, the Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens. The applicant does not claim that Australia’s non-refoulement obligations apply in his case.
The Direction also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the applicant’s visa. The consequences of a visa refusal or cancellation under s 501 of the Migration Act and related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[62]
·Refusal of other visa applications and cancellation of other visas;[63]
·A prohibition on applying for other visas;[64] and
·Periods of exclusion and special return criteria may apply.[65]
[62] The Migration Act ss 189, 196, 197C, 198.
[63] The Migration Act s 501F
[64] The Migration Act s 501E
[65] The Migration Act s 503, special return criteria 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[66] Under s 189 of the Migration Act, the applicant must be detained and removed as soon as reasonably practicable under s 198.[67] However, the obligation to remove an unlawful non-citizen under s 198 does not arise if a ‘protection finding’ has been made in respect of a finally determined protection visa application.[68] No application has been made for a protection finding and no such finding has been made in favour of the applicant.
[66] The Migration Act s 15.
[67] See BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 which followed AJL20 v Commonwealth of Australia [2020] FCA 1305 at [112]-[122].
[68] The Migration Act s 197C(3).
The legal consequences identified above (detention, removal, exclusion and restriction on further visa applications) are the intended consequences of the cancellation of a visa under s 501 of the Migration Act. The applicant made no submissions in relation to these legal consequences, the Minister submitted that these legal consequences flow naturally from the intended operation of the Migration Act and should be weighed neutrally.[69]
[69] HB 163.
Conclusion for other consideration 1
The Tribunal accepts that if the applicant were removed to New Zealand this would cause permanent or at least extended separation from his family members. Accordingly, the Tribunal considers some weight should be placed on this. The Tribunal concludes that this consideration weighs slightly in favour of the revocation of the cancellation decision.
Other consideration 2: Extent of impediments if removed
Paragraph 9.2 of the Direction provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c), the Tribunal must consider the extent to which the applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Tribunal accepts that the applicant has no close family in New Zealand. The applicant has been resident in Australia since 2012. He moved with his parents and brother. He now has an additional 2 sisters and brother who are resident in Australia.
In the applicant’s Revocation Request, he says:
I have pretty much lived in Australia most of my life. Growing up rugby league has always been a dream, playing in the younger grades for Sydney Roosters and then playing reserve grades four Parramatta eels. During that time I was able to be a figure kids were able to look up to, a role model they could follow. The best part was being able to interact with the youth through community events the club would put on every now and then.
Another big part of my life is the Church Community. I have grown up in church all my life. I was a youth leader for Merrylands Assembly of God. We would have youth events for kids as little as 2 years right up to adult age. My pastor was [Ms F], and since then my parents have taken over and are now leaders of the Church as well. Being in the Church community allows me to interact with youth and gives me an opportunity to show that you can still achieve your dreams despite whatever obstacles life may throw at you.
The possibility of having to go back to NZ, where I have no more family is daunting, not only for myself but for my family here in Australia. The support I have here in Australia is endless, they are my heart and what keeps me going. Without my family by my side, I wouldn’t be the better person that I am and want to be.
The Tribunal accepts that the applicant is likely to face significant emotional hardship with respect to his separation from his family members and church community in Australia if returned to New Zealand. Whilst the applicant will be able to maintain contact with his family by phone and video calls, the Tribunal also accepts that this is no substitute for in person contact and that it will be difficult for his family to travel to New Zealand to visit him.
As stated in McQuillan and Minister for Immigration and Multicultural Affairs [2025] ARTA 10 at [140] and [141]:
It has been accepted by the Tribunal, and is relevant in this case, that the Applicant would have the same access as other citizens to support in New Zealand and that those supports are likely to be of a similar kind to those available in Australia.
...there are organisations such as Te Pa (formerly known as PARS), which provide assistance to people who are removed from Australia to New Zealand. In this regard, the Tribunal has commented previously, in relation to Te Pa, that ‘[t]here is no reason to think that the Applicant would not receive the assistance that is available if he needed it.’ (footnotes omitted).
The applicant is a 26-year-old man. As submitted by the Minister,[70] the evidence before the Tribunal does not suggest that he suffers from any particular physical health conditions that would present as a barrier to him establishing himself in New Zealand. Whilst the applicant appears to have experienced an adjustment disorder with anxiety in the context of his imprisonment/court proceedings, Dr Leland opined that the applicant did not have a mental illness or other condition that would render him more vulnerable than others if incarcerated.[71] All this suggests that his mental health would not present as a significant impediment if removed to New Zealand.
[70] HB 163-164.
[71] HB 164 and E2 p 13.
The Tribunal considers the applicant has good prospects for obtaining employment in New Zealand given his education and employment history. Equally, he has good prospects of being able to do further study in New Zealand if he chooses to and he could play rugby league as well as join and become an active member in the Church community in New Zealand.
The applicant has a solid working history. The applicant has transferable skills which could lead to a productive life in New Zealand. He would not face any language or cultural barriers. He would be able to access the same social, medical and/or economic supports as other citizens of New Zealand.
In the decision of VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649 at [248] Deputy President Sosso said:
Australians and New Zealanders both speak the English language and are culturally almost indistinguishable. The legal and political structures of both societies are similar as are the medical and social welfare systems.
The Tribunal finds that any medical or allied health support which the applicant may require to remain free from drugs, alcohol and gambling, would be available to him in New Zealand.
Conclusion for other consideration 2
The Tribunal accepts that the applicant is likely to face emotional hardship with respect to his separation from family members and church community if returned to New Zealand. The Tribunal finds that the applicant may encounter some difficulty establishing himself were he to return to New Zealand but does not regard these difficulties as significant impediments if removed. This consideration weighs slightly in favour of revocation of the cancellation decision.
Other consideration 3: Impact on Australian business interests
Paragraph 9.3 of the Direction states:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of, and the applicant has made no submissions concerning the impact on Australian business interests if he were to be removed to New Zealand or in regard to any major project or important service that would be compromised by a determination not to revoke the cancellation decision.
Conclusion for other consideration 3
The Tribunal concludes that there is no impact on Australian business interests and therefore this consideration is given neutral weight.
CONCLUSION
The applicant does not pass the character test under s 501(6) of the Migration Act. Consequently, the central issue before the Tribunal is whether there is another reasonwhy the cancellation decision should be revoked, having regard to the primary and other considerations in the Direction.
Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[72]
[72] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL said at [23] ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction … is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’
In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states at [27] that this means greater weight will be given unless there is some reason why that general approach should not be adopted. There is nothing before the Tribunal in this case that causes the Tribunal to find that the general approach should not apply in the applicant’s case.
The Tribunal has placed heavy weight on the first and fifth primary considerations. The Tribunal is satisfied that the weight afforded to these considerations against revocation carries much greater weight than the weight given to the remaining primary and other considerations.
Having weighed the considerations against and in favour of the revocation of the cancellation of the applicant’s visa, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other considerations of the legal consequences of the decision, the extent of impediments if removed and in impact on Australian business interests.
In summary, having regard to all the primary considerations and other considerations in the Direction, the Tribunal is not satisfied that there is another reason why the cancellation decision should be revoked. As a result, the correct or preferable decision is to affirm the reviewable decision.
DECISION
The decision not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category Temporary visa under section 501CA(4) of the Migration Actis affirmed.
Date of hearing:
23 June 2025
Solicitors for the Applicant:
Self-represented
Solicitors for the Respondent:
Sparke Helmore Lawyers
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