Trego and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 886

Trego and Minister for Immigration and Citizenship (Migration) [2025] ARTA 886 (1 July 2025)
Applicant/s:  Papamama Junior Trego
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2023/1230
Tribunal:Deputy President Burford
Place:Perth
Date:1 July 2025[1]
[1] Paragraph [187] was altered on 4 July 2025 under s 114(1) of the Administrative Review Tribunal Act 2024 (Cth) to correct an obvious error.
Decision:The Tribunal affirms the decision under review.

..........................[SGD]......................
Deputy President
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 39 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed) ss 2A, 33, 43
Administrative Review Tribunal Act 2024 (Cth) ss 9, 54, 56(1)(a)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) s 3
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 197C(3), 198, 499(1), 499(2A), 501, 501(6), 501(6)(a), 501(7), 501(7)(c), 501(3A), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(ii), 501F, 501E, 5001
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Davis and Minister for Immigration and Border Protection [2017] AATA 1106
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Jabari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1492
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 97 ALJR 488; 409 ALR 234
M1/2021 [2022] HCA 17
Pavey and Minister for Home Affairs [2019] AATA 4198
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
SCJD and Minister for Home Affairs [2018] AATA 4020
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Secondary Materials
Commonwealth of Australia National Drug Strategy 2017-2026
Final Report of the National Ice Taskforce 2015
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 8.1.2(1)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 6, 5.1(4), 5.2, 5.2(2), 5.2(3), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(c)(i), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c)
Statement of Reasons
THE APPLICATION

The Applicant is a 39-year-old citizen of New Zealand who arrived in Australia on 23 December 1987 when he was two years old.
On 27 June 2014 he was convicted of 14 counts of Gains benefit by fraud in the District Court of Western Australia and was sentenced to a total of two years and eight months imprisonment.
On 18 June 2015 a delegate of the Respondent (the Minister) cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct). The Applicant requested that decision be revoked and on 27 April 2016, a delegate of the Minister decided to revoke the cancellation of the Applicant’s visa.[2]
[2] RB1, p 151.
On 5 August 2021 the Applicant was convicted of Possession of a prohibited drug with intent to sell or supply (methylamphetamine) in the District Court of Western Australia and sentenced to two years and four months imprisonment.
On 31 August 2021 the Applicant's visa was cancelled again under s 501(3A) of the Act on the basis that the Applicant had a ‘substantial criminal record’ having been sentenced to a term of imprisonment of 12 months or more and the fact he was serving a sentence of imprisonment on a full-time basis in a Western Australian prison (the Cancellation Decision).[3]
[3] RB1, p 157; Migration Act 1958 (Cth) (Migration Act), ss 501(6)(a) and 501(7)(c).
On 28 September 2021, the Applicant requested that decision be revoked under s 501CA of the Act. On 17 February 2023, a delegate of the Minister found that the power under s 501CA(4) to revoke the cancellation under s 501(3A) was not enlivened.[4] The Applicant was notified of that decision by letter dated 20 February 2023.[5] This is the reviewable decision before the Tribunal.
[4] RB1, p 37; RB1, p 23.
[5] RB1, p 16.
On 28 February 2023, the Applicant applied to the Tribunal (at that time the Administrative Appeals Tribunal) for review of that decision.[6] On 15 May 2023, the Tribunal (differently constituted) affirmed the decision under review.
[6] RB1, p 10.
The Applicant appealed that decision to the Federal Court of Australia and the matter was subsequently remitted to the Tribunal by consent on 28 February 2024 on the basis that the Tribunal had erred by discounting the weight to be applied to a risk assessment within a parole order submitted and relied upon by the Applicant, by finding that it was made in the narrow and specific context of determining suitability for parole. The Tribunal erred in failing to give the Applicant an opportunity to address its concerns about the risk assessment in the parole order, amounting to a denial of procedural fairness.
The matter is before the Tribunal currently constituted for reconsideration.
VISA CANCELLATION ON CHARACTER GROUNDS
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review.
These powers generally involve consideration of whether a person passes the character test and, if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
The question for determination by the Tribunal is whether the reviewable decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[7]
[7] Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), ss 2A, 33 and 43; Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART Consequential Act No 1), s 3 and Sch 16 Item 24; See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].
Subsection 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) given by the Minister under s 499(1) of the Migration Act.[8] The Direction commenced on 21 June 2024.[9] Submissions were made on the basis of Direction no. 110.
[8] Direction no. 110, para 5.1(4); Migration Act, s 499(2A).
[9] Direction no. 110, para 2.
Informed by the principles set out in para 5.2 of the Direction, the Tribunal must take into account the factors identified in ss 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[10]
[10] Direction no. 110, para 6.
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[11]
[11] See Migration Act, s 501CA(4).
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the decision be affirmed.
THE HEARING AND THE EVIDENCE
The hearing was conducted in person at the Tribunal’s Perth Registry on 14, 15, and 18 November 2024. The Applicant appeared in person and was self-represented at the hearing. At the time of the hearing, the Applicant was in immigration detention at Yongah Hill Immigration Detention Centre. The Respondent was represented by Ms Kerrie Pieri of Minter Ellison. The Respondent’s representatives appeared via Microsoft Teams.
The following documents were marked as exhibits:
(a)Medical Records from IHMS dated 25 September 2024 (Exhibit A1);
(b)Message Receipts (Exhibit A2);
(c)Series of Session Summaries with Tian G, registered psychologist (Exhibit A3);
(d)Screenshots – 17 pages (Exhibit A4);
(e)Message Receipts relating to visits – 2 pages (Exhibit A5);
(f)Employment and taxation records 11 pages (Exhibit A6);
(g)Email from Applicant to Shaloum House (Exhibit A7);
(h)Letter of Chloe Hampton, undated (Exhibit A8);
(i)Unsigned letter of Karlo Trego, undated (Exhibit A9);
(j)Letter of Rosemarie Trego, dated 10 November 2024 (Exhibit A10);
(k)Letter of April Trego, undated (Exhibit A11);
(l)Letter of Patricia Trego, undated (Exhibit A12);
(m)Statement of the Applicant, undated (Exhibit A13);
(n)Remittal Bundle, volumes 1 and 2, pages 1 – 765 (Exhibit R1); and
(o)Supplementary T-Documents, pages 1 – 405 (Exhibit R2).
On the first day of the hearing, following the marking of exhibits, the Applicant indicated he had only received the Remittal Bundle the afternoon prior and had not yet read the bundle. In order to ensure the Applicant was familiar with the material in the Remittal Bundle, the hearing was adjourned to the following day with the agreement of the parties.
The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from the following witnesses:
(a)Mrs Patrica Trego, the Applicant’s mother;
(b)Ms April Trego, the Applicant’s sister; and
(c)Ms Chloe Hampton, the Applicant’s partner.
The Applicant, his sister and his mother gave evidence in person. Ms Hampton gave evidence by telephone.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Applicant was advised in simple terms of his right to invoke the privilege against self-incrimination prior to his giving evidence.[12] The Applicant was also provided an opportunity at the hearing to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction no. 110.
[12] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [64]–[65].
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant's criminal history is set out at Annexure A.[13] The Applicant's offending includes a range of offences, including what might be characterised as serious property or dishonesty offences, drug offences and traffic offences.
[13] The Applicant's criminal history is set out in a national criminal history check, dated 25 October 2021, RB1, pp 38–40.
His first recorded offence as an adult was in July 2003 when he was convicted of an aggravated burglary and commit offence and sentenced to a community release order (adult) for six months and fined. The Tribunal has had no regard to any earlier convictions recorded when the Applicant was a minor.[14]
[14] Minister for Immigration, Citizenship, Migrant Services v Thornton [2023] HCA 17; (2023) 276 CLR 136 (Thornton) and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475 (Lesianawai).
Drug offending
On 5 August 2021, the Applicant was convicted of possession of a prohibited drug with intent to sell or supply (methylamphetamine) and sentenced to two years and four months imprisonment. According to sentencing remarks, the Applicant was in a car in the driver’s seat, asleep or passed out.[15] The engine began to rev, while the car remained in neutral. Emergency services were called and the police found a backpack containing 9.52 grams of methamphetamine in three clip seal bags, a bag of 3.35 grams of dimethylsulfone which is a common cutting agent, two sets of scales with calibration weights, two glass pipes, a straw shovel and 1.78 grams of cannabis. The sentencing judge noted the seriousness of the offences, observing that only an immediate term of imprisonment is justified.[16]
[15] RB1, p 43.
[16] RB1, p 48.
On 27 August 2021, the Applicant was convicted of further offences. These included possession of prohibited drugs with intent to sell or supply (cannabis) for which he received a term of imprisonment of three months to be served concurrently, and possessed drug paraphernalia in or on which there was a prohibited drug or plant for which he was fined.
With respect to his drug offending the Applicant explained he was attempting to engage with the brother who had abused him and his mental health was in a downward spiral. He was trying to fix his childhood trauma and it didn’t work. He plead guilty, regretted the offending and is now drug free.[17]
[17] A13.
Property, fraud and dishonesty offences
The aggravated burglary and commit offence conviction in July 2003 involved the Applicant stealing a key to enter the victim’s house and stealing a digital camera, mobile phone and alcohol which were later sold.[18]
[18] RB1, p 68.
The Minister noted that this offence may not be able to be taken into account as the Applicant committed the offence while he was a minor.
However, the records indicated the Applicant was sentenced as an adult and a conviction was recorded. As such I have treated this as an adult conviction to be taken into account, however I have not placed weight on that conviction in assessing the nature and seriousness of the Applicant’s offending given his age at the time of the offence.
The Applicant explained this offence was motivated by being called a racial slur (Coconut) and that racism and childhood trauma were the main factors in the incident.[19]
[19] A13.
On 27 June 2014, the Applicant was convicted of 14 counts of gains benefit by fraud in the District Court of Western Australia and sentenced to two years and eight months imprisonment. Based on the Amended Statement of Material Facts, between June 2012 and January 2014, the Applicant offered the prospect of better employment to the victims, and told each of his victims that they would have to undertake certain training courses and medical examinations to quality for the work, and that they needed to pay money to him for the training courses. According to the sentencing remarks, the offences were committed against 14 individuals and that the defrauded amounts ranged from $635 to $20,600.[20] The sentencing judge noted the seriousness of these offences was such that only a term of imprisonment was justified and the protection of the community required a sentence of imprisonment.[21] The sentencing judge also detailed victim impact statements demonstrating the impact of the Applicant's fraud on the victims.[22]
[20] RB1, p 52.
[21] RB1, pp 60–61.
[22] RB1, p 52.
On 13 January 2020, the Applicant was convicted of stealing and fined $5000. Based on the Western Australia Police Force report dated 1 December 2018, the Applicant was employed as a volunteer to work at the bar at Rockingham Coastal Sharks Rugby League and Sporting Club Inc and had banked funds from the bar into his personal bank account as well on-sold stock for cash in the amount of $2,574.00.[23]
[23] RB3, pp 287, 316
On 27 August 2021, the Applicant was convicted of further offences including an additional charge of gains benefit by fraud for which he received a term of imprisonment of three months.
With respect to the fraud offences, the Applicant said the number of people he was supporting, and the impact of everyday living expenses caused him to spiral out of control. He started to gamble to make ends meet and became addicted. He plead guilty to those offences and undertook counselling and treatment in prison.[24] Later fraud offending was not connected to gambling addiction but resulted from debts to biker gangs.[25]
[24] A13.
[25] RB8, p 674; RB1, page 56.
The Applicant claimed the stealing offence against the sporting club was actually committed by his siter but he plead guilty to protect her.
Violent offending
On 10 November 2003, the applicant was convicted of assault occasioning bodily harm and sentenced to imprisonment of six months suspended for 18 months. On the same date, the Applicant was convicted of assault public officer and fined $300. The circumstances of these offences involved the Applicant striking a police officer in the head with his right fist from behind without provocation, causing the police officer to fall to the ground; and slapping another police officer to the right side of his face.[26]
[26] RB1, p 65.
The Applicant explained he did not know the officers were police and alcohol and childhood trauma were factors in the incident to which he plead guilty.
Traffic offending
The Applicant has a traffic record (including both convictions and infringements) as an adult which generally spans from 2007 to 2021 and resulted in fines and disqualifications.[27]
[27] R1, p 39.
The Applicant explained his driving offences as resulting from the need to attend work and support his family. Drug related offences were caused by drug taking to deal with past abuse.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[28] Migration Act, s 501(7)(c).
[29] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[28] Failure to pass the character test arises as a matter of law.[29]

As noted above, on 5 August 2021 the Applicant was convicted of Possession of a prohibited drug with intent to sell or supply (methylamphetamine) in the District Court of Western Australia and sentenced to two years and four months imprisonment.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, I am not satisfied that the Applicant passes the character test.[30]
[30] See Migration Act, s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As I am not satisfied that the Applicant passes the character test, I must then determine whether there is another reason why the Cancellation Decision should be revoked. I note that the statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[31]
[31] Migration Act, s 501CA(4)(b)(ii).
I am required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[32] In doing so, I must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.[33]
[32] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[33] Migration Act, s 499(2A).
Direction no. 110
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act. Direction no. 110 commenced operation on 21 June 2024, replacing the previous Direction no. 99.[34]
[34] Direction no. 110, paras 2–3.
I note that a previous direction, Direction no. 99, was in force at the time the Delegate’s decision was made. At the time the Applicant sought review before the Tribunal, and at the time of the first Tribunal decision, Direction no. 99 was in place. Before this Tribunal and following Direction no. 110 coming into force, a directions hearing was held to discuss the fact a new direction had been made and to invite the parties to make submissions addressing the considerations in Direction no. 110. Accordingly, the submissions and evidence submitted by the parties to the Tribunal addressed that direction.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[35] In considering the exercise of the power under s 501CA(4), informed by the principles set out in para 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[36]
[35] Direction no. 110, para 5.1(4).
[36] Direction no. 110, para 6 referring to paras 8 and 9; see also para 6.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[37]
·the protection of the Australian community from criminal or other serious conduct;
·family violence engaged by the Applicant (if any);
·the strength, nature and duration of the Applicant’s ties to Australia;
·the best interests of minor children in Australia affected by the decision; and
·the expectations of the Australian community.
[37] Direction no. 110, para 8.
The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[38]
·the legal consequences of the decision;
·the extent of impediments if removed; and
·the impact on Australian business interests.
[38] Direction no. 110, para 9.
The Tribunal must also take into account any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked.
The principles set out in para 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’. Those principles highlight that the safety of the Australian community is the government’s highest priority, and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred upon the basis that those individuals will be law-abiding, will respect Australia's law enforcement framework and will not harm members of the community. The principles state that the community expects the government to cancel visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Direction provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community for a short period of time, Australia may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
Noting that primary and other considerations relevant to the individual case must be taken into account, Direction no. 110 states that, in some circumstances, the nature of the conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation of a visa, including in circumstances where the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:
·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations.
·One or more primary considerations may outweigh other primary considerations.
The Applicant submitted that there were several reasons why the cancellation of the visa should be revoked. In his request for revocation and in oral and written submissions and statements made by the Applicant before the Tribunal, he detailed why he considered there was another reason why the cancellation decision should be revoked. In summary, the Applicant’s representations were as follows:
·He acknowledged his criminal history but maintains there is a low risk he will reoffend having regard to his remorse, efforts to rehabilitate himself and address the causes of his offending including receiving support for his mental health issues, his family support, employment prospects and the protective factor of his desire to support his family including his mother and current partner.
·He had a history of abuse as a child at the hands of his father and brother and the underlying trauma this caused was a factor in his offending.
·He came to Australia as a young child and has extensive connections here including one biological daughter, stepchildren, and extended family members. His now adult stepson (in whose life he has been present as a father figure since he was an infant) has had longstanding health issues and is in remission with leukemia. His mother needs his financial support.
·He has contributed to the community through work, representative sport, and volunteering through community action and sporting organisations.
·The best interest of his stepchild with his former partner and the three children of his current partner would be that he remain in Australia to support them and, in the case of his partner’s children, to build a relationship with them. He wants to be a positive role model for these children.
·Minimal weight should be placed on the expectations of the community given the strength of his ties to Australia and the impact on his family and children if he is removed.
·Return to New Zealand will impact his mental health as he has ‘no family members that he is aware of’ and he will suffer stress, anxiety, and depression. Returning to New Zealand will impact his capacity to deal with childhood trauma and get closure.
The Minister submitted, in summary, the following:
·The Applicant’s conduct and offending was very serious noting his significant sentence of imprisonment and the amount of drugs involved. It was contended the Applicant’s driving record was also serious and that he had failed to declare convictions on incoming passenger cards.
·His assessed low risk of reoffending was based in part on prosocial supports in the community which, if his personal life deteriorated, would be jeopardised and could lead to a risk of reoffending. In any event, given the serious nature of the harm which would be caused were he to reoffend, any risk was unacceptable.
·The lack of family violence should be afforded neutral weight.
·The Applicant’s ties to the community were accepted, noting however his links through employment were undermined by his offending during the course of that employment. His social and family ties did not prevent his offending in the past and should be treated cautiously as a protective factor against reoffending and, overall, his ties are outweighed by other factors.
·The Applicant’s relationship with the children identified as impacted by the decision was non-parental and limited and, while it was in those children’s best interest that he remain in Australia to maintain or allow for an ongoing personal relationship with the Applicant, less weight should be placed on this in each case given the limited nature of the relationship to date.
·The Applicant has committed serious offences and the Australian community would expect he would not continue to hold a visa.
·While the legal consequence of the decision would be the Applicant’s removal from Australia and inability to apply for another visa, limited weight should be afforded to this consideration in the Applicant’s favour.
·While it was accepted the Applicant may suffer some challenges re-establishing himself, there was nothing to suggest he would not have access to supports for his mental health conditions or other needs noting he has access to the same social, medical, and economic supports as other New Zealand citizens which were comparable in standard to those in Australia.
Protection of the Australian Community
The first primary consideration, para 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.[39]
[39] See also Direction no. 110, para 8(1).
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[40]
[40] Direction no. 110, para 7(2).
Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[41] In doing so, para 8.1.1(1) of Direction no. 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be ‘serious’. I note that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[42]
[41] Direction no. 110, para 8.1(1).
[42] Direction no. 110, para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s offending and other conduct to date, I must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this paragraph that I consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[43]
[43] Direction no. 110, para 8.1.1(1)(d).
The Applicant accepted his offending history was serious but contended that his offending had arisen due to childhood abuse. He told the Tribunal he had a difficult childhood where he was subjected to physical abuse from his father and sexual abuse from his older brother and uncle. His parents separated and he ran away from home at 15 to escape abuse and maintained this had caused his life to ‘spiral out of control’.[44] Later his stepson (for whom he was a father figure from 4 months old) was diagnosed with leukemia. Supporting his family had given rise to some of the traffic offences where he needed to maintain employment and transport family members to appointments. After his father passed, his mother relied on him heavily to support her and his 8 younger siblings. When his brother returned to Perth in 2018, he started using drugs to cope. This led to further convictions for drug offences.
[44] ASFIC.
He contended that he regretted his offending and wanted to change his life to support his family and be a positive member of the community.
The Minister contended that the nature and seriousness of the Applicant's offending weighs heavily against revocation.[45] The Minster contended the Applicant’s offending history was very serious noting the sentences of imprisonment imposed on his offences which were an objective measure of their seriousness. He has committed violent crimes which applying Direction no. 110 should be considered very serious and has committed various and frequent offences of increasing seriousness. The Minister contended that the cumulative effect of the Applicant’s offending is unacceptable.
[45] See RSFIC.
The Minister also submitted that the previous visa cancellation on 18 June 2015 amounted to a clear warning to the Applicant about further offending. The Minister contended this should weigh heavily against revocation.
With respect to the Applicant’s most recent drug related offending, the sentencing judge observed that the Applicant could be described as a ‘low end user of methamphetamine’ who was supplying drugs to fund his own use. The seriousness of his offending was such that only a term of immediate imprisonment was justified and that it would be inappropriate to suspend the sentence.[46] The Applicant’s abstinence from drugs while on bail was taken into account as a mitigating factor in sentencing.[47]
[46] RB1, p 48.
[47] RB1, p 47.
With respect to the Applicant’s earlier convictions for gains benefits by fraud, the sentencing judge observed the Applicant’s offending impacted a significant number of victims and went beyond the financial damage done to those victims. His offending involved a significant course of dishonesty observing:[48]
[the Applicant’s] offences, when viewed overall, involving as they did a significant course of dishonesty engaged in over a significant period of time committed against a significant number of individuals, are too serious to permit one of the less severe sentencing options to be used.
[48] RB1, p 61.
In my view, the seriousness of the Applicant’s offending is reflected in the punishments imposed by the courts including repeated terms of imprisonment.[49] Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and the sentencing remarks reflect that the seriousness of the Applicant’s drug and dishonesty offending was such that no other sentence was appropriate.
[49] Direction no 110, para 8.1.1(1)(c).
While violent offending did not feature heavily in the Applicant’s offending history, his offences did include violence against police in the performance of their duties.[50] Such offending is serious as it places officers at risk in the course of their duties. There was also evidence of violent anti-social behaviour in detention, considered further below, which contributes to an overall assessment of the Applicant’s conduct as serious and unacceptable.
[50] Direction no 110, para 8.1.1(1)(b)(ii).
Looking at the Applicant’s offending history as a whole, I consider he has an extensive criminal history covering a range of offences which may be said to have been both frequent offences and of an increasing level of seriousness. The dishonesty offences and latest drug offences both resulted in terms of imprisonment due to their seriousness. While the offences where different in nature, in my view they demonstrated an escalation in the Applicant’s offending.
The Applicant’s explanations for his offending generally centred on his history of childhood trauma and the stressors of providing for, and supporting his family. As noted in the sentencing remarks, while these may have been underlying causes of or reasons for the offending they do not reduce its seriousness nor do they mitigate the Applicant’s responsibility for the offending.
The Applicant’s dishonesty offending was repeated and persistent in orders of the court and potential legal sanction. The Applicant was sentenced for 14 fraud offences on 27 June 2014, with five of the offences committed while the Applicant was on bail for the first nine offences.[51] In addition on 27 August 2021, the Applicant was convicted of two further counts of Gains Benefit by Fraud committed on 21 November 2017 and 9 January 2018. While the Applicant offered an explanation for this offending that he was under pressure to pay a debt to a bikie gang, the sentencing judge did not accept this was a mitigating factor and I do not consider it lessens the seriousness of the offending. I consider that the repeated nature of this offending, including while on bail, contribute to the assessment of this offending as very serious.
[51] RB1, p 51.

The Minister also drew attention to a WA Police report which alleged the Applicant had engaged in further fraudulent behaviour during the period 27 May 2021 to 10 July 2021.[52] However, there was no evidence that matter had progressed, and the Applicant testified he thought those matters had been captured in other offences. Given the uncertainty surrounding those charges, I do not place weight on this information in assessing the overall seriousness of the Applicant’s conduct and offending.
[52] RB3, p 286.
In addition to the fraud and drug offences, the Applicant has a history of repeated traffic offences including Driving with a prescribed illicit drug and Unlicenced driving. The Applicant’s explanation for these offences was that he needed to drive to work and support his family. His explanation demonstrated limited respect for rules put in place to protect road users and limited understanding of the risks associated with unlicenced driving or driving with illicit drugs. Such conduct places the community at risk of harm on the roads and is serious.
Further, the cumulative effect of the Applicant’s offending, stretching over an extended period and resulting in several terms of imprisonment also add to the overall seriousness of this conduct and offending. Repeated offending of this kind, including in the face of pending charges demonstrates a disregard for the law and impacts public law enforcement and justice resources. Such conduct is serious.
The Tribunal must also consider the impact of the Applicant’s offending on victims. The sentencing remarks of the court considering the fraud offences detailed the impact on those victims and the court noted the financial and emotional toll the offending had on them. Again, the harm caused to the victims demonstrates the serious nature of such offending which impact a large number of victims whose trust the Applicant breached, causing harm to both them and their family members causing financial insecurity and emotional distress.
In my view, the fact that the Applicant’s visa has been previously cancelled was a clear warning to the Applicant that further offending may result in visa cancellation. Before the previous Tribunal and in evidence before this Tribunal, the Applicant did not read the warning issued to him and did not understand his visa would be subject to further cancellation if he reoffended.[53] While the cancellation was revoked, the Applicant could not be said to have been unaware of the cancellation or its potential consequences having sought revocation of the cancellation. While that request was successful, the letter notifying him that the cancellation had been revoked included the following warning:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.
[53] RB6, p 671.
I accept the Minister’s submission that this letter plainly made the Applicant aware of the consequences of further offending for his migration status. Further, the cancellation itself stood as a stark warning to that effect. The Tribunal does not accept that the Applicant could have been unaware further cancellation was possible if he reoffended. Regardless, if that was his view it does not explain his choice to reoffend having had his visa status restored. Despite this warning of the first cancellation, the Applicant continued to engage in serious offending resulting in a further term of imprisonment. I consider this conduct contributes to the overall assessment of his conduct as very serious.
In my view having regard to the evidence and the comments and assessment of the offending by the courts, the Applicant’s offending was very serious and weighs against revoking the cancellation of his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I am required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[54] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[55]
[54] Direction no. 110, paras 8.1.2(2)(a) and (b).
[55] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
Direction no. 110 refers to 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 to 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.
Ultimately, the assessment of risk in the context of considering whether there is another reason why the visa cancellation should be revoked is a matter for the Tribunal to determine.
The Applicant accepted that harm would be caused if he were to reoffend, but the likelihood of him reoffending was not unacceptable given:[56]
·His genuine remorse;
·His efforts at rehabilitation;
·Mental health diagnosis and management;
·His employment experience and prospects for re-employment;
·His further plan for rehabilitation;
·His commitment not reoffending in order to support his family; and
·The positive impact of his newly formed relationship with Ms Hampton and her children.
[56] ASFIC.
In prior submissions the Applicant also contended he represents a low risk of reoffending noting:
·He has been assessed in the prison context to be of low risk/need, was not required to undertake any programs and was released on parole on 24 September 2022;
·He was granted parole on the basis he did not represent an unacceptable risk to the community; and
·He was offence free in the community from 13 January 2020.
The Minister contended that the harm which would be caused were the Applicant to reoffend would include significant physical, psychological and financial harm. The Minister acknowledged the Applicant had expressed a commitment to rehabilitation however the Minister contended that in light of his criminal history these efforts were limited. The Minister contended the Applicant had engaged in rehabilitation courses previously and had gone on to commit further fraud offending and that he had reoffended despite being warned of the consequences of reoffending. It was contended as a result there remained a significant risk the applicant would reoffend.[57]
Nature of the harm
[57] RSFIC.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[58]
[58] Direction no. 110, para 8.1.2(2)(a).
The Applicant accepted that the harm which would be caused if he were to reoffend would include ‘the availability and consumption of methamphetamines in the community, and consequently physical, mental and financial harm to the members of the community, as well as other negative effects that flow from drug abuse in the Australian community’.[59]
[59] ASFIC.
The Minister argued the harm which would be caused were the Applicant to reoffend would include significant physical, psychological and financial harm.
The sentencing judge dealing with the most recent offences noted the harm caused by dangerous drugs of addiction warranted immediate imprisonment.[60] The harm which is caused by serious drug offending including the sale and supply of methamphetamine is well recognised and documented including in the discussion of this consideration by the previous Tribunal.[61] If the Applicant were to reoffend in a similar manner to previous drug offending, I find that the harm to the community would be serious and would include facilitating drug use and addiction in others, contributing to drug-related crime and the corresponding costs to the community of drug addiction and drug-related crime.
[60] RB1, pp 46–48.
[61] RB8, p 736.
Based on the Applicant’s offending history, I find that if the Applicant reoffends in a manner consistent with his past offending, the nature of harm that would result from such offending includes the sale and consumption of methylamphetamine in the community, drug-related crime and serious financial and psychological harm to members of the community.
In sentencing the Applicant for the fraud offences, the court detailed the significant impact that offending had on the financial and emotional wellbeing of the victims.[62] These remarks record the fact the loss caused by such offending is not limited to financial loss. With respect to the fraud offences, serious financial and psychological harm could be caused to members of the community were the Applicant to offend in a similar way.
[62] RB1, pp 52–53.
In addition, the Applicant has a history of driving offences in breach of rules put in place to protect road users from risks of dangerous and unlicenced driving. If the Applicant were to commit further traffic offences, this would place road users at risk and undermine road safety. Such harm is serious.
Further, the Applicant committed offences of violence against officers in the course of their duties. If such offending was repeated, the personal safety of law enforcement officers would be put at risk impeding the proper administration of our system of law enforcement and public safety and causing emotional and physical harm to officers. Such harm is also serious.
I consider the nature of the harm which would be caused were the Applicant to reoffend in a similar manner, through serious drug or fraud offences or offences of violence or traffic offending, is very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[63]
[63] Direction no. 110, para 8.1.2(2)(b).
The Applicant maintained that there is not an unacceptable risk he will reoffend.[64] As noted above he maintains he is remorseful, has made efforts at rehabilitation and has prosocial supports in the community to further his rehabilitation on release.
[64] ASFIC.
The Applicant participated in the following programs as part of his rehabilitation in his most recent period prison and detention:[65]
[65] RB4, p 542; A13,
·Narcotics Anonymous classes while he was in Acacia Prison (approximately 6 classes) and Karnet prison (approximately 8 classes);[66]
[66] RB4, p 542; RB4, p 556.
·three sessions with a counsellor while in Karnet prison;[67]
[67] RB4, p 542.
·four to six classes in the Allied Drug and Alcohol Program (ADAPT) while in prison;[68]
·several appointments with a psychiatrist on 17 July 2023, 15 September 2023 and 22 March 2024;[69]
·appointments with a psychologist on 6 April 2023,[70] appointments with a mental health nurse[71] and appointments with a counsellor;[72]
·Anger Management 101 course completed on 21 March 2023;[73]
·Drug and Alcohol Abuse 101 course completed on 20 March 2023;[74]
·Pursuing happiness: successful strategies course;[75]
·Emotional Healing 101 course completed on 4 April 2023;[76]
·Triple P Parenting – Positive Parenting Program completed on 3 April 2023;[77]
·SMART recovery sessions;[78] and
·Man up program.
[68] RB4, p 542.
[69] RB4, p 542; S2, pp 212, 283, 306.
[70] S2, pp 332, 364.
[71] S2, pp 221, 251, 253, 288, 290, 292, 314, 318, 333, 338, 352, 365, 367, 379.
[72] S2, pp 274, 282, 285, 287, 298, 301.
[73] RB4, pp 543, 563.
[74] RB4, pp 543, 564.
[75] RB4, pp 543, 566.
[76] RB4, pp 543, 565.
[77] RB4, pp 543, 567.
[78] RB4, p 543; S2, pp 236–239, 271.
The Applicant also provided evidence that he was employed in prison and acted as a young adult mentor.[79]
[79] RB4, p 552.
The Applicant contended that he has a plan for ongoing rehabilitation in the community and the support of his family and partner. He maintains that his circumstances have changed and he is seeking help to deal with issues of childhood trauma. He provided evidence of having reached out to services expressing interest in engaging in programs and provided evidence of his engagement with counselling serves in detention.
He provided evidence that he will engage in counselling and link with the following organisations to continue his rehabilitation:[80]
·Shalom House (Rehab specialists);
·Cyrean House (Counselling);
·Holyoak;
·S.A.R.C (Sexual Assault Resource Centre);
·Darrlyin Brian (Rehab specialist); and
·Man up program (Online men’s group).
[80] A13.
He also stated he would regain employment, go to church, support his mother, coach rugby, build on his relationships and get married to his current partner.[81] He testified previously that he has also cut all ties with old antisocial peer groups.[82]
[81] A13.
[82] RB4, p 551.
With respect to his motivation not to reoffend the Applicant stated:[83]
My motivation for not reoffending is my family, children, partner and my want to finally deal with all my childhood traumas so I can be a proactive person to them and the Australian community. I should stay in Australia to be present with all my children as well as my family. I have a lot to offer Australia in work and community volunteering. I have skills that Australia require in my work ethics as well as skills I can educate and teach kids in sports and recreation to reach their full potential. I will not be a risk to the community as I have found ways to manage my offending behaviours more than I have in the past. Understanding my triggers and talking about my past has help [sic] me identify what’s really important in life. And that’s my family support networks. My want to connect with rehab facilities and seek psychological help to better handle offending situations and deal with childhood trauma.
[83] A13.
His application was supported by a large number of statements from family and friends stating their belief in his capacity to reform and his positive character. His mother, sister and Ms Hampton gave oral evidence that the Applicant has reformed and is committed to not reoffending. The Tribunal places some weight on those statements as evidence of support for the Applicant and his ongoing rehabilitation.
When asked why the support of his family and friends would be a protective factor against offending in the future when it had not stopped him offending in the past, he said back then he had underlying issues he didn’t recognise and he didn’t understand the support he had but he does now. In addition, he is working on his underlying mental health issues, and this was a change from the past.
The Tribunal discussed with the Applicant his reliance on Ms Hampton as a prosocial support. The Applicant testified that Ms Hampton had herself served time in prison and had her visa cancelled in relation to drug offending. He contended that they would be positive supports for each other because she understood what he was going through in recovering from addiction. While I accept the Applicant feels Ms Hampton can support his recovery, I remain concerned that Ms Hampton’s own history of drug offending may not provide a sufficiently stable prosocial environment to reduce his risk of reoffending.
Further there was evidence that members of his family, on whom he testified he was also relying for prosocial support, had a history of illicit substance use in the context of his prior offending.[84] This included one of his brothers. His mother, with whom the Applicant proposes to live, was unaware of the nature of the Applicant’s drug offending, believing he was caught smoking marijuana. She was also unaware of his brother’s apparent drug use, which was confirmed by the Applicant and his sister. In my view, this cast doubt on her capacity to identify signs of drug use should he relapse. These factors indicate the Applicant’s community supports may not be a sufficient protective factor to prevent reoffending on their own.
[84] RB1, p 47.
The Applicant contented that he had been granted parole and also that he has been assessed during his last prison sentence to be a ‘low risk’ in the context of suitability for treatment programs.
I note the parole order indicates the Board decided the Applicant would present an acceptable risk to the safety of the community noting his low risk of reoffending, positive conduct in prison, parole plan with accommodation and support and commitment to undertake the ADAPT counselling program in the community.[85]
[85] RB4, p 561.
Prison records indicate that the Risk of Reoffending – Prison Version (RoR-PV) assessment for the Applicant was undertaken in Hakea Prison and he was not recommended for criminogenic programs at that time due to a low risk of reoffending.[86] Looking at the Individual Management Plan from the prison dated 8 February 2022, that assessment appeared to relate to the risk of general offending. Another entry indicates the Applicant was required to undertake treatment for addictions offending and a further assessment for the AOD program was required.[87] The record indicates the program was ‘not currently offered’. It was not clear on the records if a further assessment was done. The Applicant indicated he was assessed at the next prison (Acacia) but that he had been unable to complete the course. While the Applicant confirmed he had not completed the AOD course, he pointed to other voluntary interventions including NA and cognitive and behavioural programs he had engaged with as well as counselling as addressing any addition rehabilitation needs. The Applicant also highlighted sentencing remarks suggesting he was drug free while on bail for the drug charges and had no record of illicit drug use in prison or detention.
[86] RB4, p 558.
[87] RB4, pp 558–559.
As discussed with the Applicant at the hearing, the parole and prison assessments were conducted for different purposes than the task being undertaken by the Tribunal noting for example that, parole authorities are not assessing the likelihood of the reoffending but whether any risk to the safety of the community is acceptable including having regard to the imposition of parole conditions during the period remaining on the Applicant’s sentence. Likewise, the prison assessment was undertaken in the context of determining access to prison programs.
Notwithstanding the different purpose of those assessments, I accept that they involve assessments of the Applicant’s risk of reoffending and afford them weight in his favour when considering the likelihood he will reoffend.

With respect to his age and health, he is a mature adult and there is no evidence he is not capable of living independently. Records suggest the Applicant suffers from sleep apnoea and has a knee injury but is otherwise in good physical health.[131] The Applicant a history of drug use but claims to have taken steps at rehabilitation. However, he was being treated for mental health issues.
[131] S2, p 265.
While I accept on the evidence that the Applicant has ongoing treatment needs with respect to mental health issues, I consider he would have the same access as other citizens to supports for these needs in New Zealand and that those supports are likely to be of a similar kind to those available to him in Australia.[132] I consider that otherwise his age and health do not present any impediment if removed.
[132] Webb v Minister for Home Affairs [2020] FCA 831 at [100]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]–[69]).
The Applicant testified he had not looked into employment options in New Zealand and suggested that he may have to do ‘some requalification’, however he also contended he has a strong history of employment in Australia and skills which are in demand in the resources industry.[133] I consider he has skills which would enable him to secure employment in New Zealand in the medium to longer term while acknowledging he would need to first establish himself in New Zealand which would not be without some challenges given a lack of local family support there.
[133] RB6, pp 683–684; RB1, pp 129–145.
Ms Hampton gave evidence that she would be unlikely to be able to resettle or travel to New Zealand with the Applicant given her commitments to her children here and the fact their fathers are in Australia. I accept that it is unlikely she would be able to settle or travel to New Zealand at least for the foreseeable future and that this would impact their relationship and cause them hardship. While his mother indicated before the previous Tribunal that she would travel to New Zealand to visit her son,[134] in the current proceedings she indicated she is going through an illness and did not know if she would be able to travel. I accept that the Applicant’s family members, including his mother, may be unlikely to visit him in New Zealand frequently, and that for health and financial reasons they may be unable to visit at all.
[134] RB6, p 693.
I consider there is nothing in the information before me to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances, including mature age and work experience. While I accept he has no experience living in New Zealand and may face some cultural adjustment settling there, he did not suggest he would face any significant cultural impediments and he does not face any language issues in New Zealand.
I accept that the Applicant is likely to face significant emotional hardship with respect to his separation from family members and friends in Australia if returned to New Zealand and that this may impact his mental health. However, the Tribunal considers there is no evidence to suggest that the Applicant would be prevented from establishing himself and maintaining basic living standards in New Zealand in the context of what would be available to other New Zealand citizens.
While the Applicant has no remaining family ties in New Zealand there are no substantial language or cultural barriers between Australia and New Zealand and there are comparable health and social security supports to which the Applicant would have access.[135]
[135] Webb v Minister for Home Affairs [2020] FCA 831 at [100]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]–[69]).
Overall, I find that the Applicant may encounter some difficulty establishing himself were he to return to New Zealand but do not regard these difficulties as significant impediments if removed. This consideration weighs in favour of revocation but only slight weight is afforded to this consideration in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.3 of Direction No 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Applicant suggested he had good prospects for employment in Australia and had skills in demand in the resources industry, he did not contend that a decision on the revocation of his visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia or that it would have any particular impact on any of the businesses interested in employing him here.
I find this consideration weighs neither for nor against revocation in the Applicant’s case and I afford it no weight.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[136] Relevantly, the Full Court of the Federal Court considered the operation of Direction no. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[137] While the Court was considering Direction no. 90, its observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[138]
[136] 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.
[137] [2023] FCAFC 138.
[138] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation and affords the consideration very strong weight in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds strong weight should be afforded to that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision weigh in favour of revocation albeit to different degrees. Overall, the Tribunal considers slight weight should be afforded to this consideration in the Applicant’s circumstances.
The expectations of the Australian community weigh against revocation and the Tribunal finds this consideration should be afforded strong weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision weigh slightly in favour of revocation in the Applicant’s case. The extent of impediments if removed weigh slightly in favour of revoking the cancellation of the Applicant’s visa. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations. Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, 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 and the extent of impediments if removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 218 (two hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Simone Burford

...................[SGD].....................................................
Associate
Dated: 1 July 2025

Date(s) of hearing: 14, 15, and 18 November 2024

Applicant: Self-represented

Advocate for the Respondent: Ms Kerrie Pieri

Solicitors for the Other Party: Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 25 October 2021[139] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 11 April 2023.[140]
[139] RB1, pp 38–40.
[140] RB2, pp 272–282.

Court	Result Date	Offence	Offence Date	Result
1.	Rockingham Magistrates Court	27 Aug 2021	Gains Benefit by Fraud	9-Jan-18	Imprisonment: 3 Months
2.	Rockingham Magistrates Court	27 Aug 2021	Gains Benefit by Fraud	21-Nov-17	Imprisonment: 3 Months
3.	Rockingham Magistrates Court	27 Aug 2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	14-Aug-18	FINE: $600 (global)
4.	Rockingham Magistrates Court	27-Aug-2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	14-Aug-18	FINE: $600. (global)
5.	Rockingham Magistrates Court	27-Aug-2021	Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis)	14-Aug-18	Imprisonment: 3 Months
6.	Rockingham Magistrates Court	27-Aug-2021	No authority to drive (never held)	14-Aug-18	FINE: $600
7.	Rockingham Magistrates Court	27-Aug-2021	No authority to drive (never held)	14-Aug-18	Mdl Disqualified: 3 mths
8.	Perth District Court	05-Aug-2021	Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)	14-Aug-18	Imprisonment: 2 Years 4 Months
9.	Rockingham Magistrates Court	13-Jan-2020	Stealing	1-Dec-18	FINE: $5000.
10.	Rockingham Magistrates Court	24-Oct-2019	Driving with prescribed illicit drug	13-Aug-18	FINE: $350 MDL Disqualified: 3 mths
11.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	28-Jun-12	Imprisonment: 6 Months
12.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	5-Jul-12	Imprisonment: 12 Months
13.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	30-Nov-2012	Imprisonment: 6 Months
14.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	30-Nov-2012	Imprisonment: 3 Months
15.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	30-Nov-2012	Imprisonment: 6 Months
16.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	25-Dec-2012	Imprisonment: 12 Months
17.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	19-Jan-2013	Imprisonment: 6 Months
18.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	29-Jan-2013	Imprisonment: 12 Months
19.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	04-Mar-2013	Imprisonment: 14 Months
20.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 2 Months
21.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 6 Months
22.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 18 Months
23.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 12 Months
24.	Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 6 Months TOTAL TERM (for 14 counts Gains Benefit by Faud): 2 YRS 8 MTHS IMP FROM 26/02/2014
25.	Perth Magistrates Court	06-Sep-2013	Exceed speed limit in a speed zone; Between 10 and 19km/h	26-Jul-13	FINE: $150
26.	Perth Magistrates Court	06-Sep-2013	No Authority to Drive	26-Jul-13	FINE: $600
27.	Mandurah Magistrates Court	30-Jan-2008	No Driver's License	17-Dec-07	FINE: $400 Mdl Disqualified: 9 mths
28.	Mandurah Magistrates Court	30-Jan-2008	Unlicensed Vehicle	17-Dec-07	FINE: $100
29.	Mandurah Magistrates Court	30-Jan-2008	Exceed speed limit in a speed zone; Between 10 and 19km/h	17-Dec-07	FINE: $150
30.	Rockingham Magistrates Court	25-Oct-2007	No Driver's License	14-Sep-07	FINE: $500; Mdl Disqualified: 9 mths
31.	Perth Magistrates Court	04-Jul-2007	No Motor Drivers License	19-Jun-07	FINE: $300; DISQ HOLD/OBT MDL 3 MTHS MAND
32.	Fremantle Court of Petty Sessions	10-Nov-2003	Assault Occasioning Bodily Harm	Not Known	Imprisonment: 6 Months; CONC SENT SUSP for 18 mths
33.	Fremantle Court of Petty Sessions	10 Nov 2003	Assault Public Officer	Not Known	FINE: $300
34.	Rockingham Children’s Court	16 July 2003	Burglary and Commit Offence Agg (Habitat)	Not Known	6 months CRO (adult), $800 undertaking

Date(s) of hearing:	14, 15, and 18 November 2024
Applicant:	Self-represented
Advocate for the Respondent:	Ms Kerrie Pieri
Solicitors for the Other Party:	Minter Ellison