Thompson and Minister for Immigration and Citizenship (Migration)

[2025] ARTA 1930

Thompson and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1930 (30 September 2025)

Applicant:  Ashley Thompson

Respondent:    Minister for Immigration and Citizenship

Tribunal Number:                2025/4344

Tribunal:General Member J Pennell

Place:Melbourne

Date:30 September 2025

Decision:

The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision is revoked.

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

General Member J. Pennell

CATCHWORDS

MIGRATION – Visa cancellation revoked – Special Category (Class TY) (Subclass 444) visa – Migration Act 1958 Section 501(3A), Section 501CA(4), Section 501(6) – Character test – Direction 110 – Protection of the Australian Community – Risk to the Australian Community – Strength, nature and ties to the Australian community – risk of impediments if returned – Legal consequences of decision.

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396

Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120

Lesianawai v Minister for Immigration [2024] HCA 6

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17

Murphy v Minister for Home Affairs [2018] FCA 1924

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

SECONDARY MATERIALS

Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

Statement of Reasons

1.On 15 July 2025, the applicant made application to review a decision of the Minister delegate (‘the Minister’) dated 8 July 2025 not to revoke the mandatory cancellation of the applicant's Special Category (Class TY) (Subclass 444) visa (visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1] The delegate found that the applicant did not pass the character test and was not satisfied that there was another reason why the cancellation of the visa should be revoked.

[1]     HB2 661.

2.This is the second occasion on which the applicant’s visa has been cancelled.

3.On 29 September 2020, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he had a “substantial criminal record” and was serving a full-time, custodial sentence of 27 months, imposed by the Moorabbin Magistrates’ Court on 8 October 2019. Section 501(7)(c) of the Act provides that for the purposes of the character test a person has a substantial criminal record of the person has been sentenced to a term of imprisonment of 12 months or more.

4.A delegate of the Minister declined to revoke the cancellation decision; that decision was subsequently affirmed by the then Administrative Appeals Tribunal (AAT) on review.[2]

[2]     HB1 478; Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4206 (16 November 2021).

5.On 3 March 2023, Federal Court of Australia set aside the AAT’s decision.[3] On 5 December 2023 the AAT (differently constituted) set aside the non-revocation decision and in substitution decided that the cancellation decision dated 29 September 2020 be revoked.[4]

[3]     HB1 522; Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 161.

[4]     HB1 607; Thompson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4076 (5 December 2023).

6.On 20 May 2024, the applicant was convicted in the Local Court of New South Wales at Albury of Police pursuit - not stop - drive dangerously - 2nd+off and Drive motor vehicle during disqualification period - 2nd+off (the index offences). The applicant committed both offences on 3 March 2017.[5] He was sentenced to 24 months imprisonment, in addition to being disqualified from driving for a period of 5 years, and 12 months, respectively for each offence, with those disqualification periods to be served concurrently commencing from the date of sentence.[6]

[5]     HB2 702.

[6]     Ibid.

7.On 30 May 2024, the applicant’s visa was cancelled under s 501(3A) of the Act.[7]

[7]     HB2 833.

8.On 2 June 2024, the applicant requested revocation of the cancellation decision.[8]

[8]     HB2 770.

9.The applicant appealed to the District Court of New South Wales at Albury the severity of sentence given to him by the Local Court on 20 May 2024 sentences. On 28 August 2024, the District Court re-sentenced the applicant for the index offences. The term of imprisonment imposed for Police pursuit - not stop – drive dangerously - 2nd+off-T2 was reduced to seven months. In relation to the offence of Drive motor vehicle during disqualification period - 2nd+off, the sentence of imprisonment was set aside, and the applicant was re-sentenced to a Community Correction Order (CCO) for a period of three years.[9] The driving disqualifications were not varied.

[9]     HB2 702.

10.On 16 January 2025, the Department wrote to the applicant to advise him that it had assessed his claim to be an Aboriginal Australian according to the tripartite test in Love v Commonwealth (Love).[10] The Department concluded, based on the available information, that the applicant did not meet the tripartite test in Love, such that he continued to be liable for immigration detention.[11]

[10](2020) 270 CLR 152.

[11]    HB2 821.

11.On 8 July 2025, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the cancellation decision.[12]

[12]    HB2 676.

12.On 15 July 2025, the applicant applied to the Tribunal for review of the delegate’s decision.[13] The hearing of the review was conducted via MS Teams on 17 and 18 September 2025. The applicant was not represented at the hearing. The Respondent was represented at the hearing by Mr Andrew Keevers of Sparke Helmore Lawyers.

[13]    HB2 661.

13.For the following reasons, the Tribunal has concluded that the Minister’s decision should be revoked.

Relevant law

14.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.

15.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly, s 501CA(4) states:

(4) The Minister may revoke the original decision if:

(a)  the person makes representations in accordance with the invitation; and

(b)  the Minister is satisfied:

(i)that the person passes the character test (as defined by section 501); or

(ii)that there is another reason why the original decision should be revoked.

16.Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.

17.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part, s 501(6) states:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or…

18.Section 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

19.If an Applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[14] In Plaintiff M1/2021 v Minister for Home Affairs,[15] the High Court referred to how representations made under s 501CA(4) of the Act should be approached:

22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

…

25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).

[14]    Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).

[15]    Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1/2021’) [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

Direction 110

20.On 7 June 2024, Direction No.110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’) came into effect. Direction 110 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. It is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.

21.Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.

22.The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:

(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.

23.Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:

a) legal consequences of the decision;

b) extent of impediments, if removed;

c) impact on Australian business interests.

24.A decision maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[16] Colvin J when considering an earlier Direction stated:[17]

‘…Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’

[16]    Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].

[17]    Direction 65.

25.The issues before the Tribunal are:

(a)does the Applicant pass the character test, as defined in s 501 of the Act? If not;

(b)is there another reason why the original decision should be revoked?

Background

26.The applicant was born on 19 November 1993 in Hastings, New Zealand and was adopted by John and Barbara Robin (‘the adoptive parents’). He is also known by the name Luke Robin. The applicant’s biological mother is a cousin to John and requested that he and Barbara adopt the applicant at the time of his birth. The applicant does not know his biological parents. The applicant came to Australia with his adoptive parents in or about 1998 when he was four years old and has not left the country since.[18]

[18]    HB1 578-9.

27.The applicant had a good upbringing with his adoptive parents. The applicant’s adoptive parents have four children each for previously relationships. They are all substantially older the applicant. However, the applicant is close to one of Barbara’s daughters (adopted sister), who was the only one at home at the time the applicant was growing up.[19]  

[19]    Ibid.

28.However, when he was about 12 or 13 years of age the applicant started using drugs and alcohol.[20] The applicant was expelled from school, and he was sent to Brisbane by his adoptive parents to live with his adoptive sister. He moved to Perth and then Victoria while living with his sister. In Victoria the applicant was suspended for school and left his sister’s home. After ended up on the street, he was taken in by a career in Shepparton. The applicant developed a strong relationship with the Yorta Yorta people of north-eastern Victoria and began to identify as an Aboriginal person. The applicant was in a relationship with an Aboriginal woman with whom he has two daughters are aged 7 and 6 years old. He also has a son aged 15 years from a former partner.  

[20]    HB1 579.

The character test

29.The character test is defined under s 501(6) of the Act. It provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a ‘substantial criminal record’ if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.[21]

[21]    Migration Act 1958 (Cth) s 501(7).

30.On 20 May 2024, the applicant was convicted of the index offences and sentenced to 24 months imprisonment.[22]  The applicant committed the index offending on 2 March 2017.[23]

[22]    HB2 702.

[23]    Ibid.

31.On 28 August 2024, the District Court re-sentenced the applicant for the index offences. The term of imprisonment imposed for Police pursuit - not stop – drive dangerously - 2nd+off-T2 was reduced to seven months. In relation to the offence of Drive motor vehicle during disqualification period - 2nd+off, the sentence of imprisonment was set aside, and the applicant was re-sentenced to a Community Correction Order (CCO) for a period of three years.[24]

[24]   Ibid.

32.At the hearing the applicant was provided a copy of his Nationally Coordinated Criminal History Check and confirmed to the Tribunal that it was an accurate record of his criminal history.

33.Therefore, based on the applicant’s own evidence and the documentation provided, the Tribunal finds that the applicant has a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. The Tribunal finds that the applicant does not pass the character test and that the requirements of s 501CA(4)(b)(i) are not met. As a result, the applicant cannot rely on s501CA(4)(1)(a) of the Act for the cancellation of his visa to be revoked.

Whether there is another reason the visa cancellation decision should be revoked

34.The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant’s visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.

Protection of the Australian community

35.Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[25] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the applicant commit further offences or engage in further serious conduct.[26]

[25]    Direction 110, paragraph 8.1(1).

[26]    Direction 110, paragraph 8.1(2).

Nature and seriousness of the conduct

36.In considering the nature and seriousness of the applicant’s offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The Direction indicates that violent crimes are viewed seriously by the Australian Government and the Australian community.

37.In this case, the Nationally Coordinated Criminal History Check dated 16 October 2024[27] (the National Police Check) indicates the applicant has an extensive criminal history that commenced in 2008 as a minor. As a youth the applicant committed offences relating to theft, property damage and driving. In 2012 the applicant was ordered to be detained in a youth justice centre for a period of 5 months. The Tribunal notes that it is precluded from considering the applicant’s youth offending which did not result in any conviction.[28]

[27]  HB2 701-20.

[28]    Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; Lesianawai v Minister for Immigration [2024] HCA 6.

38.On 11 April 2013, the applicant was convicted of various offences that included theft, arson, possession of a firearm and aggravated burglary for which he received a sentence of 18 months’ imprisonment.[29]

[29]    HB2 718.

39.On 10 June 2014, the applicant was convicted of drive conveyance taken w/o consent of owner and negligent driving for which he was sentenced to a period of three months’ imprisonment, wholly suspended upon entering a 12-month bond.[30] The applicant breached the terms of the bond and was required to serve the period of imprisonment.

[30]    HB2 718.

40.On 8 July 2015 was convicted of take and drive conveyance w/o consent of owner, and police pursuit for which he was sentenced to a period of 6 months’ and 2 months imprisonment respectively.[31] On 30 November 2016 the applicant was convicted of various offences including reckless driving, police pursuit dive motor vehicle during period of disqualification for which he received custodial sentences.[32] The sentencing remarks on 30 November 2016 noted that there were four separate and discrete matters that occurred on 27 December 2015 and 3 January 2016, all involving driving in a dangerous manner while on drugs. The applicant was regularly using cannabis and methamphetamines during this period.[33]   

[31]    HB2 717.

[32]    HB2 713.

[33]    HB1 616.

41.On 8 October 2019, the applicant was convicted in Moorabbin Magistrates’ Court on fifteen separate charges (the Moorabbin offences), for which he was sentenced to a total period of 27 months’ imprisonment for the following convictions:[34]

[34]   HB1 711-14.

·three counts of Theft of a motor vehicle.

·four counts of Theft.

·six counts of Unlicensed driving.

·four counts of Reckless conduct endanger life; Theft – from shop (shopsteal); Unlawful assault; Intentionally destroy property; Make threat to kill; Threat to kill

·damage property.

·three counts of Dangerous driving while pursued by police.

·two counts of Drive at a speed dangerous.

·two counts of Drive in a manner dangerous.

·four counts of Fail to stop vehicle on police direction.

42.The applicant’s conviction of resisting an emergency worker on duty is considered serious by the Australia government and the Australia community.[35]

[35]   Paragraph 8.1.1(1)(b) of Direction 110.

43.Following his release from immigration detention, the applicant was convicted of the index offending on 20 May 2024. This offence was committed on 3 March 2017.[36] That is, prior to the applicant having his visa cancelled on the first occasion on 23 August 2021. As a result of the AAT’s decision on 5 December 2023 the applicant’s visa was restored. The Tribunal notes that the index offending was before the AAT and specifically referred to by Deputy President Britten-Jones in his written reasons dated 5 December 2023.[37]  Notwithstanding this fact on 30 May 2024, the applicant’s visa was cancelled under s 501(3A) of the Act.[38] At the time of having his visa cancelled for a second time, despite having been convicted of the index offending on 20 May 2024, the applicant had not committed any further crimes beyond what was before the AAT at the time of its review decision of the applicant’s first visa cancellation.

[36]HB2 702.

[37]   HB1 616.

[38]  HB2 833.

44.Nevertheless, the applicant’s National Police Check reveals that the applicant has been convicted of numerous serious driving offences (including dangerous driving, driving whilst disqualified), property offences, dishonesty offences, drug offences, and offences against the person. The continual and repeated offending of the applicant is also considered serious by the Australian Government and the Australia community.[39] By repeat offending the applicant has exhibited disregard for the laws of Australia and the safety of others.

[39]    Paragraph 8.1.1(1)(c)(e) & paragraph 8.1.1(1)(c)(f) of Direction 110.

45.The applicant’s criminal history shows that he has been sentenced to multiple terms of imprisonment for his offending.[40] The Tribunal notes that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy[41] and as such reflect on an objective basis the seriousness of the applicants offending.

[40]    HB2 710-20.

[41]    PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

46.Finally, the cumulative effect of the applicant's repeated offending has resulted in significant expense to the community including the use of police and court resources.[42]  The applicant's conduct has demonstrated a lack of respect for others within the community and a wilful disregard for the law and authority.

[42]    Paragraph 8.1.1(1)(f) of Direction 110.

47.The Minister submits[43] that the applicant's index offending is very serious for the purposes of paragraph 8.1.1 of Direction 110,[44] and that the nature of the applicant's conduct is so serious that even strong countervailing considerations are insufficient to justify there being another reason to revoke the mandatory cancellation of the applicant's visa.[45]

[43]    Respondents Statement of Facts, Issues and Contentions; HB2 641-56.

[44]    Paragraph 8.1.1(1)(b)(ii) of Direction 110.

[45]  Paragraph 5.2(7) of Direction 110.

48.Having considered paragraph 8.1.1 of Direction 110, based on applicant’s criminal history, the Tribunal finds the nature of the applicant’s conduct to be serious and as such weighs heavily against revocation. As a result, the Tribunal places significant weight on this consideration in favour of affirming the cancellation decision.

Risks to the Australian community

49.Paragraph 8.1.2 of the Direction 110 provides that in assessing whether the applicant represents an unacceptable risk of harm to the Australian community, the Tribunal must have regard to, cumulatively:

(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non­citizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.

50.As such the Tribunal is required to assess the risk posed to the Australian community if the applicant re-offends, taking into consideration the nature of any harm and its probability. In Tanielu v Minister for Immigration and Border Protection,[46] Mortimer J stated that to determine an unacceptable risk, one must evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future. The courts have held that past actions are legitimate predictors of future behavior.[47] In Murphy v Minister for Home Affairs, Mortimer J noted:[48]

‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.’

[46]    Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.

[47]   Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].

[48]    Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

51.In Minister for Immigration and Ethnic Affairs v Guo (Guo),[49] the High Court considered the extent to which past events can be a guide to the future. The Court stated:

‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.’

[49]    Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574.

52.Accordingly, in determining the chance of something happening in the future it is necessary to form a conclusion about past events.[50] That is, it is a question of degree what will happen in the future based on past events. In Guo the court held that:[51]

‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity….’

(i)Nature of Harm if further criminal or other serious conduct – paragraph 8.1.2(2)(a)

[50] Ibid 575.

[51] Ibid 574 – 5.

53.As to the nature of harm to individuals or the Australian community if the applicant engages in further criminal or other serious conduct,[52] the Tribunal accepts that if the applicant was to re-offend in the future in the same or similar manner, he will likely cause serious harm to members of the community. The applicant has committed numerous offences involving high speed driving high-speed and dangerous driving in which he has exhibited wilful disregard for the public and the safety of his own children. Reoffending of the same nature would give rise to a real risk of physical harm, or even death, of members of the public, or the applicant’s family.

[52]    Paragraph 8.1.2(2)(a) of Direction 110.

54.The applicant has also committed an act of family violence against his former partner. Any reoffending would put not only the victim at immediate risk of physical harm, but all members of the applicant’s family unit, including his children, at risk of emotional and psychological harm because of being exposed to family violence.

(ii)Likelihood of further criminal or other serious conduct – paragraph 8.1.2(2)(a)

55.The respondent has submitted the applicant is a recidivist and as a result the Tribunal should not be satisfied that the applicant would abstain from his use of drug and alcohol and as a result the applicant presents as a real risk of reoffending if released into the community.

56.The Tribunal was provided a psychological report by Mr Jeffrey Cummins dated 25 September 2023[53] that stated the applicant did not present as being psychotic or schizophrenic. It stated that he provided a history that was consistent with a diagnosis of generalised anxiety disorder and him suffering from symptoms of major depressive disorder. Mr Cummins stated that in his opinion the applicant’s criminal record was consistent with him suffering from antisocial personality disorder and /or a person suffering for Complex Post-Traumatic Stress Disorder (PTSD) and associated symptoms of anxiety and depression. It was his opinion these symptoms played a role in the applicant offending.[54] Mr Cummins noted that at the time of his report the applicant had not committed any offences for some time and assessed the applicant has having low to moderate (trending towards low) risk of reoffending.[55] He noted the applicant’s risk of reoffending can be further reduced if he engages in an anger management program and by him receiving basic mental health treatment.[56]  

[53]    HB2 798.

[54]    HB2 807.

[55]    Ibid.

[56]    HB2 808.

57.The Tribunal notes that in detention in 2025 the applicant has displayed disruptive and abusive behaviour including threats to self-harm.[57]  Nevertheless, the applicant has displayed that he can avoid trouble.[58] From March 2017 for a period of approximately 18 months, the applicant remained drug free while living with his former partner. The applicant remained drug free and worked at various business manufacturing roof trusses. The applicant took the antipsychotic, Seroquel, allowing his mental health to stabilise. When his daughter was born, and faced with the pressure of a newborn baby, the applicant took himself off his medication and began taking cannabis and ice that lead to his offending in November 2018.[59]

[57]HB2 864- 75.

[58]    HB1 618.

[59]    HB1 619.

58.The applicant has expressed his regret for his actions. He has realised that his actions were stupid and that they may have resulted in harm.[60] The applicant’s evidence to the Tribunal was that he was sorry for his actions. He accepted his offending and expressed his regret and remorse for his actions. The applicant also expressed his frustration and anger that his visa had been cancelled for a second time, and that he was in immigration detention after being convicted of the index offending on 20 May 2024. In circumstances, where he has not committed any further offences beyond those that were considered when his visa was first cancelled, the applicant considers it unfair that his visa had been cancelled for a second time and he is in immigration detention.

[60]    HB1 590.

59.The applicant’s evidence was that he wants to be a good father to his children. He claims to have a close relationship with each of his children and he wants the opportunity to be a good dad to each of them.[61] The applicant’s evidence to the Tribunal was that he had limited contact with his children because of his incarceration as a result he had limited knowledge of their activities at school or of their interests or hobbies. Nevertheless, he claims to have matured and learnt for his mistakes. The applicant relied on the documents provided to the AAT in relation to the review of the first cancellation decision. In that case the applicant presented a positive reference for his employer, City Wide Scaffolding, who stated that he was an exceptional asset to the firm and that he was a reliable and hard worker. It was not clear what the applicant’s current situation would be if he is released into the community. Nevertheless, before the AAT, City Wide was prepared to employ the applicant as a leading hand if he was released into the community.[62]   

[61]    HB111-12.

[62]  Ibid.

60.The applicant’s evidence was that he identified with the Yorta Yorta community and that he would be supported by that community if his visa is restored.[63]

[63]  HB1 586.

61.The applicant expressed a genuine desire to remain out of trouble for the sake of his children if he is released into the community. Nevertheless, it is likely he will face difficulties and stress in the community due to his mental health. As a result, there is a risk he will respond inappropriately to stressful situations he may face. This time at least there appears to be no outstanding charges which he will have to face with if realised. The Tribunal accepts that the applicant is remorseful for his actions and that he holds a genuine desire to remain drug and alcohol free for the benefit of his children. While the Tribunal recognises there is a risk of the applicant reoffending, it has placed great weight on the fact that the applicant had expressed his genuine remorse for his actions and a desire to be good for his children. In circumstances where the applicant no longer faces criminal conviction upon his release the Tribunal accepts there is less stress in his life that may trigger the facts causing him to reoffend. As such, having taken the applicant’s evidence into account and the Cummins report the Tribunal finds that the risk of the applicant offending is low to moderate. As a result, the Tribunal places only moderate weight against revocation.

Family violence committed by the non-citizen

62.The Tribunal notes that paragraph 5.2(8) of Direction 110 provides:

'The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.'

63.Direction 110 defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful’. The examples of behaviour that may constitute family violence include assault and a sexual assault or other sexual abusive behaviour.[64]

[64]  Paragraph 4(1)(a) and (b) of Direction 110.

64.Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Tribunal notes that paragraph 8.2(2) of Direction 110 provides that this consideration is relevant in circumstances where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence and the non-citizen has been afforded procedural fairness.

65.In assessing the seriousness of the family violence, paragraph 8.2(3) of Direction 110 provides that the Tribunal must consider:

(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

b)the cumulative effect of repeated acts of family violence;

c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:

i.       the extent to which the person accepts responsibility for their family violence related conduct;

ii.       the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii.      efforts to address factors which contributed to their conduct; and

d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

66.On 8 October 2019, the applicant was convicted of the Moorabbin offences that included the applicant threatening and physically assaulting his former partner. Their relationship had ended approximately 3 months prior to the incident. At the time of the assault, the applicant’s former partner was holding their 10-month baby and was pregnant with the applicant’s second daughter.[65] The applicant took the baby and proceeded to threaten to kill himself and the baby if he was approached by the police. The applicant fled in a car with the baby, hitting his former partner with the door of the car as he departed.[66] A police pursuit ensued, involving the applicant driving while unlicensed, exceeding the speed limit and driving erratically while the baby remained in the car endangering the baby’s life and those in the community.[67]  

[65]   HB2 733.

[66]   HB2 734.

[67]   HB2 752.

67.The Tribunal is satisfied that the applicant’s offending against his former partner and his baby constitute family violence for the purposes of paragraph 4 of Direction 110.[68] 

[68]   HB2 733.

68.The applicant’s former partner did not present any evidence to the Tribunal. However, its noted that she did provide a letter of support for the applicant to the AAT[69] (a copy of which was provided to the Tribunal) in which she stated he had seen change in his personality, his mental health and his actions by which she believed that he was remorseful for his actions. The Tribunal also notes that when the applicant was sentenced on 8 October 2019 she was in court in support of the applicant. The applicant’s counsel at the hearing stated to the court that the applicant and his former partner had been friends for 11 or 12 years and in a relationship for the past three years.

[69]    HB1 341.

69.In addition, the applicant provided a letter to the AAT dated 21 October 2021[70] (the October letter) (a copy of which was provided to the Tribunal) in which he expressed his remorse for his actions. He states (amongst other matters) that he will forever regret the day he pushed, harmed and frightened the mother of his children.[71]  The applicant’s evidence to the Tribunal was that he continued to rely on the contents of the October letter.

[70]   HB1 335.

[71]   HB1 339.

70.The evidence indicates one episode of family violence with no evidence of repeated offending. The Tribunal has accepted that the applicant is genuine in the remorse for his actions. The applicant has not engaged in formal rehabilitative programmes but had engaged in more general programs such as Certificate 1 in General Education for Adults.[72] The Cummins report notes that his insight into his offending has improved and his risk of re offending is low to moderate. Finally, his former partner has expressed her support for the applicant in the past.

[72]   HB1 115.

71.The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia.[73] The government’s concern in this regard is proportionate to the seriousness of the family violence engaged in by the non-citizen.[74] In this case the applicant’s behaviour toward his former partner was serious and he did place his infant child in danger. The applicant’s conduct caused the victim to be fearful and no doubt has had an adverse effect on her. Nevertheless, it appears the family violence incident was an isolated event and fortunately did not result in any significant injury. The applicant has expressed his remorse, and the victim has previously expressed her support for the applicant.

[73]    Paragraph 8.2(1) of Direction 110.

[74]   Ibid.

72.In all the circumstances, given the objective seriousness of the offending, the Tribunal finds that the family violence is a factor that weighs against the applicant. As such, the Tribunal has given moderate weight to this consideration against revocation of the delegate’s decision

The strength, nature and duration of ties to Australia

73.Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the applicant’s immediate family in Australia are his mother, two sisters and brother. The applicant also has nieces and nephews who are residing in Australia (applicant’s family)

74.Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:

(a)how long the Applicant has resided in Australia, including whether the Applicant arrived as a young child, noting that:

i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community

(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

Impact of the decision on immediate family members in Australia

75.With respect to the consideration of the impact that a non-revocation decision would have on the applicant’s immediate family, the Tribunal accepts that the applicant has familial ties to Australia.[75] The applicant was adopted by Australian parents.[76] He arrived in Australia when he was about 4 years old. As a result, he has spent the vast majority of his life in Australia. In addition, the applicant has three children,[77] an adopted sister,[78] three nieces and nephews[79] in Australia. In contrast the applicant has no ties to New Zealand.

[75]    paragraph 8.3(1) of Direction 110.

[76]    HB2 792.

[77]    HB2 788.

[78]    Ibid.

[79]    Ibid.

Length of time spent in Australia and positive contributions to the community

76.The Tribunal has given significant weight to the fact that the applicant has been in Australia most of his life, the fact that he has extended family members in Australia including his adopted sister and that fact that he has children in Australia.

77.The applicant has limited work experience in Australia. Nevertheless, the Tribunal notes that he did work for a period of 18 months when his third child was born.

78.The applicant has developed ties to community through his association with the Yorta Yorta community in and about Shepparton, Victoria during his formative years. The ties to the community are significant to him. The applicant provided a statement[80] in which he described his connection to the Yorta Yorta community in and around Shepparton. The applicant described the period he spent with the community and in particular the Elders in the community as important to him. The applicant’s evidence was that he was often take camping by the Elders in the community with other Yorta Yorta boys. He was treated the same as the other boys and included in their community. The applicant described the connection to the Yorta Yorta country as feeling like home.[81] The Tribunal accepts the applicant’s evidence in relation to his connection to the Aboriginal community, and particularly the Yorta Yorta community, as claimed.  

[80]    HB1 583.

[81]    HB1 587.

79.The Tribunal notes that the applicant’s ties to the Yorta Yorta community were made during his formative years. In addition, his former partner and his two daughters are Aboriginal. As such, the Tribunal finds that the applicant’s connection to the Yorta Yorta community is strong. Accordingly, the Tribunal accepts that if he forcibly removed from Australia, it would significantly affect him, his Aboriginal family and those in the Yorta Yorta community with who he continues to associate.

80.As such, the applicant’s connection to the Aboriginal community weight heavily in favour of the applicant. Accordingly, the Tribunal places significant weight in favour of the revocation of the cancellation decision.

Best interests of minor children in Australia

81.Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.

82.In this case, the applicant has identified three minor children in Australia:[82]

(a)  his son, born 11 September 2010 (aged 15).

(b)  his daughter, born 26 January 2018 (aged 7).

(c)   his daughter, born 7 May 2019 (aged 6).

[82] HB2 788.

83.The applicant has limited contact with his children in recent times because he has been incarcerated. Nevertheless, he maintained that he would reestablish contact in the event he is released into the community. When asked about details of his children, the applicant struggled to provide details of  his children’s school, their progress at school and their personal activities and hobbies. The applicant provided letters from his son expressing his desire to see him.[83] In addition he provided photos of him with his children.

[83]HB2 816.

84.The applicant’s evidence[84] was that his son was brought up by his grandparents on his mother’s side. However, as they became older his son was cared for by his former partner’s brother. The applicant’s evidence to the Tribunal was that his son is currently being cared for by his former’s partners sister (his aunty). He claims he speaks to his son regularly.

[84] HB1 591-2.

85.The applicant’s evidence was that his daughters’ mother is a Yorta Yorta woman. As a result, both his daughters are registered as Aboriginal Australians with the department of Human Services. His evidence was that his eldest daughter attended Koori First Steps Preschool in Wodonga. Both his daughters are living with their grandmother (his former partner’s mother).

86.The best interests of the children is a significant factor in favour of not revoking the cancellation decision. The Tribunal gives this consideration very significant weight in favour of revoking the cancellation decision.   

Expectations of the Australian community

87.Paragraph 8.5(1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

88.Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation 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. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.

89.Critically, 8.5(4) states:

This consideration is about the expectation of the Australian Community as a whole, and in this respect, decision makers should proceed on the basis of the Government views as above, without independently assessing the community’s expectations in the particular case.

90.In FYBR v Minister for Home Affairs,[85] the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[86] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[87] In doing so the Tribunal is required to consider the specific circumstance of the applicant’s case.[88]

[85][2019] FCAFC 185.

[86]  FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].

[87] Ibid.

[88]    Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [98]-[109] (Beach J).

91.In considering the weight to be attached to the expectation of the Australia community in determining whether there is another reason to revoke the cancellation decision, the Tribunal places significant weight on the fact that the applicant has Aboriginal children and that he has identified with the Aboriginal community through his involvement with the Yorta Yorta people and his inclusion into their community.

92.In addition, the Tribunal has considered the fact that the applicant was adopted by Australian parents and has lived most of his life in Australia (since the age of 4). The applicant has no history or connection to New Zealand. In addition, in his formative years he developed a strong and significant relationship with the Elders of the Yorta Yorta community. He has expressed his remorse for his actions and has had the support of his adopted parents, adopted sister and his former partner.

93.It is the general expectation of the community that the government will not allow non-citizens who have engaged in a serious breach of Australian laws to enter or remain in Australia.[89] The Tribunal notes that community expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[90]

[89]    Paragraph 8.5(2) of Direction 110.

[90]    Paragraph 8.5(3) of Direction 110.

94.In this case the applicant has committed a serious offence and as such the Tribunal accepts that with respect to the expectations of the Australian community, it is a factor that weighs against the applicant and in favour of non-revocation. However, in this case, the Tribunal is of the view this consideration would not outweigh the applicant’s strength, nature and duration of ties to Australia in circumstances where the applicant has significant connection to the Aboriginal community. As such, the Tribunal has given this consideration no weight.

Other considerations

95.In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, the Tribunal must consider the ‘other considerations’ listed in Direction 110. These considerations are not exhaustive.[91]

[91]  SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86].

Legal consequences of the decision

96.Paragraph 9.1 states:

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

97.The applicant is not a non-citizen covered by a protection visa finding for the purposes of paragraph 9.1.1 of Direction 110. The applicant does not raise any claims which may give rise to Australia’s non-refoulment obligations for the purposes of paragraph 9.1.2 of Direction 110. As such this consideration is not relevant to the decision of the Tribunal. The Tribunal gives this consideration no weight.[92]

[92]  Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [32]–[38] per Charlesworth J.

Extent of impediments if removed

98.Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).

99.The applicant is 32 years old. He suffers from mental health issues which could be treated if he was removed to New Zealand. The applicant would not experience any substantial language or cultural barrier of he was removed to New Zealand, and he would be entitled to medial and economic support on the same basis as other New Zealand citizens. Nevertheless, the Tribunal accepts that the applicant would experience a significant period of adjustment in the event he was returned to New Zealand.

100.The Tribunal acknowledges and accepts that if the applicant was removed to New Zealand, he would be prevented for maintaining his connection to the Yorta Yorta community which would impact the applicant.  

101.Nevertheless, the Tribunal gives this consideration no weight.

Impact on Australian business interests

102.Paragraph 9.3 of Direction 110 provides that a decision maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia.

103.There is no evidence to suggest that the applicant's removal will impact any current Australian business interests. Accordingly, the Tribunal gives this consideration no weight.

CONCLUSION

104.The Tribunal has considered the specific circumstances in relation to the applicant. Given the applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.

105.The primary consideration is the protection of the Australian community. I consider the three primary considerations of the protection and expectations of the Australian community and family violence weigh against revoking the cancellation decision. The applicant has failed to obey the laws of Australia and as such the expectations of the community are that he would be removed. The Tribunal must also consider the applicant’s ties to Australia and the best interests of the children. On balance the Tribunal finds that the applicant’s ties to Australia and the best interests of his children outweigh the primary considerations.

106.In this case there is not an unacceptable risk of harm if the applicant is released into the community. The applicant’s act of family violence was an isolated incident being out of step with the rest of his offending. In addition, the applicant’s risk of reoffending was assessed as low to moderate. Further, it is in the best interests of his children for the applicant to be in the community. The applicant has expressed a genuine desire to be connected to his children and to play a role in their lives. The applicant’s eldest child is now 15 years old and has previously expressed a strong desire to be acquainted with his father. The applicant’s daughters are both young and would benefit from having their father in the community. Finally, the applicant has a significant connection to the Yorta Yorta community together with his daughters. As a result, his ties to the country are significant and presents as a very strong consideration in favour of revoking the cancellation decision.

107.As such, the Tribunal is satisfied that countervailing considerations outweigh the protection and expectations of the Australian community and family violence such that the cancellation decision should be revoked.

DECISION

108.The decision of the tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision is revoked.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.

…………[sgd]……………………….

Dated: 30 September 2025

Date of hearing:

17 and 18 September 2025

Solicitor for the Applicant:

Advocate for the Respondent.  

Self-represented

Mr Andrew Keevers of Sparke Helmore Lawyers