VZCD and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2263

VZCD and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2263 (24 October 2025)
Applicant:VZCD
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4655
Tribunal:Senior Member B De Villiers
Place:Perth
Date:24 October 2025
Decision:The Tribunal affirms the decision under review.

..
Statement made on 24 October 2025 at 12:00pm.
Senior Member B De Villiers

Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian Visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct – the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – refoulement obligations – applicant potentially falling within the so-called ‘NZYQ cohort’ - decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
Ali v Minister of Immigration and Border-Protection [2018] FCA
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
DVRL v MIAC [2025] FCA 876
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
HZCP v Minister for Immigration and Border Protection (2018) FCR 1803
Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 792
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Main v Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCA 446
Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Anor [2023] HCA 37
QJYD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076
Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673
Secondary Materials
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)
Statement of Reasons
BACKGROUND

The Applicant[1] is a 38-year-old citizen of Afghanistan who arrived in Australia on 16 December 2004 as a refugee. He was 17 years of age.[2] The Applicant was born on 1 January 1987 in Kabul, Afghanistan.[3]
[1] The names of the Applicant and family-witnesses are anonymised.
[2] HB p 87.
[3] HB p 58.
The Applicant has not returned to Afghanistan since his arrival in Australia.
On 4 November 2004 the Applicant was granted a Class XB Subclass 202 Global Special Humanitarian Visa (visa).[4] The visa was cancelled on 12 November 2024.
[4] HB p 81.
On 11 August 2025 the applicant was granted a Bridging Visa R (WR070) (Bridging visa).[5]
[5] HB pp 268-273.
The immediate family of the Applicant in Australia consists of his father and mother, sister and brother, and his son of 5 years. He also has other family in Australia and a sister in Malaysia. He does not have any close family or friends in Afghanistan.
On 22 October 2024, the Applicant was convicted and sentenced in the Perth District Court for two counts of supply of a prohibited drug under the Misuse of Drugs Act 1981; 6(1)(c) AP.[6] The Court imposed an effective term of 12 months’ imprisonment (index offences).
[6] Amended Statement of Material Facts to which the Applicant entered a plea of guilty is found in HB pp 251-252.
The Applicant was imprisoned on 22 October 2024. The visa was cancelled on 12 November 2024. He became eligible for parole on 21 April 2025 and was moved to immigration detention on 22 April 2025. The Bridging visa was issued on 11 August 2025, and he was released into the community on the same day.
The Applicant is currently resident at the house of his parents.
The Applicant’s visa was cancelled under s 501(3A) of the Migration Act1958 (Cth) (Migration Act) on the basis that he has a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis for the index offences in a custodial institution, for an offence against a law of a State (Cancellation Decision).[7] He was notified of this decision by hand at Acacia Prison (WA) on 26 November 2024 and invited to make a representation to the Minister requesting revocation of the Cancellation Decision.[8] The Applicant sought on 28 November 2024 a revocation of the Cancellation Decision.[9]
[7] See ss 501(6)(a) and 501(7)(c) of the Act; HB74-79.
[8] HB p 50-51.
[9] HB p 50.
On 11 August 2025, the delegate of the Minister decided not to revoke the Cancellation Decision,[10] and the Applicant was notified on the same day of the decision. (Reviewable Decision).[11] This is the reviewable decision before the Tribunal.
[10] HB pp 20-21.
[11] HB p 119.
On 19 August 2025, the Applicant applied to the Tribunal for a review of the Reviewable Decision.[12]
[12] HB pp 8-15.
The 84^th day calculated for a review of the Reviewable Decision pursuant to s 500(6L) of the Migration Act, is 3 November 2025.
In determining the application for review, the issues for consideration are:
(i)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(ii)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Reviewable Decision should be revoked.[13]
[13] See s 501CA(4) of the Migration Act.
In respect of the character test, I find for the reasons outlined below that the Applicant does not pass the character test.
Having considered all the circumstances of the Applicant’s case and having weighed the relevant matters in Direction no. 110, I find on balance there is not another reason why the Reviewable Decision should be revoked.
Accordingly, I have decided that the Reviewable Decision should not be revoked.
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 statutory 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 character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
the person has been sentenced to a term of imprisonment of
12 months or more; …(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record because of being sentenced to a term of imprisonment of more than 12 months. Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[14] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.[15]
[14] Migration Act s 501CA(3)(b).
[15] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
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 to do so 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 section 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
THE HEARING AND THE EVIDENCE
The hearing was conducted at the Tribunal’s Perth Registry on 15 and 16 October 2025. The Applicant appeared in person and was represented by Mr Nguyen who appeared via videolink from Melbourne. The Respondent was represented by Ms Rezae. Ms Rezae appeared in person.
The following written material was submitted by the parties:
(a)The Hearing Book jointly submitted by the parties marked HB (pages) 1-359
(b)Supporting Statement by Mark Steward dated 13 October 2025 and so marked
The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took oral evidence from the following witnesses:[16]
(i)Father of the Applicant.
(ii)Mother of the Applicant.
(iii)Cousin of the Applicant.
[16] The witnesses are not referred to by name due to the risk of the identity of the Applicant being disclosed. The relationship of each witness to the Applicant is used for purposes of identification of their evidence.
Other materials were part of the Hearing Book in support of the Applicant, but the authors of those materials did not give oral evidence:
(i)A medical certificate by Dr Riaz Hashemi.[17]
(ii)A report by Mr Jeffrey Cummins, psychologist.[18]
(iii)A letter of reference by Grant Redfern, Unit Manager, Acacia Prison.[19]
(iv)SS, sister-in-law of the Applicant.[20]
(v)SJA, brother of the Applicant.[21]
[17] HB p 311.
[18] HB pp 313-320.
[19] HB p 322.
[20] HB pp 323-324.
[21] HB pp 327-328.
DOES THE APPLICANT PASS THE CHARACTER TEST?
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,
[22] Migration Act s 501(7)(c).
[23] 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’.[22] Failure to pass the character test arises as a matter of law.[23]
As indicated at par 5, the Applicant was sentenced by the Perth District Court to a total effective sentence of 12 months’ imprisonment. The Applicant was sentenced to a term of imprisonment of 12 months or more, therefore I find he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
The Applicant accepts that he does not pass the statutory character test.[24]
[24] HB p 276.
Accordingly, I am satisfied that the Applicant does not pass the character test.[25]
[25] See Migration Act, s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As I am not satisfied that the Applicant passed the character test, I must then determine whether there is another reason why the Reviewable Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Reviewable Decision should be revoked.[26] The task involves an assessment of the propriety of a revocation decision, balancing factors both in favour and against revocation.[27]
[26] Migration Act, s 501CA(4)(b)(ii).
[27] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [32]; Gaspar v
Minister for Immigration and Border Protection [2016] FCA 1166 at [38]-[39].
I am required to form a state of satisfaction as to whether there is ‘another reason’ why the Reviewable Decision should be revoked, reasonably and on a correct understanding of the law.[28] In doing so I must comply with written directions about the performance of our functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.[29]
[28] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J), [119].
[29] Migration Act, s 499(2A).
Direction no. 110
On 7 June 2024, the Minister made ‘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) under s 499 of the Migration Act.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[30] 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.[31]
[30] Direction no. 110, para 5.1(4).
[31] Direction no. 110, para 6 referring to paras 8 and 9. See also Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076 at [15].
In making a decision under s 501CA(4), the primary considerations that must be taken into account by the Tribunal are:[32]
(a)the protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged in by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
[32] 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):[33]
(a)the legal consequences of the decision;
(b)the extent of impediments if removed; and
(c)the impact on Australian business interests.
[33] Direction no. 110, para 9.
I must also consider 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.[34] The principles stress that entering or remaining in Australia is a privilege conferred on those individuals in the expectation that they will be law-abiding, will respect Australia’s law enforcement framework, and will not cause or threaten harm to members of the community. The principles state that the community expects the government to cancel the 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.[35]
[34] Direction no. 110, paras 5.2(1)–(8).
[35] Direction no. 110, cl. 5.2(4).
Direction no. 110 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, the community 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:
(a)Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)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; and
(c)One or more primary considerations may outweigh other primary considerations.
The Applicant submits that there are, on balance, several other reasons why the Reviewable Decision should be revoked.[36] I discuss below those submissions in full, but by way of summary: The Applicant says although the index offences are serious, the impact thereof on the assessment of all primary and other considerations is moderated when all evidence is considered. The Applicant refers specifically to the weight that ought to be given to primary considerations such as the strength, nature and duration of the ties of the Applicant to Australia, the best interests of minor children, particularly the son of the Applicant; the low likelihood of the Applicant re-offending, and other considerations such as the legal consequences of the Reviewable Decision since the Applicant is likely to fall within the so called ‘NZYQ-cohort’ with the effect that he would become ‘in a state of indefinite legal limbo’.[37]
[36] HB pp 281-309; 347-359.
[37] HB p 302.
The Minister says that, on balance, there is not another reason why the Reviewable Decision should be revoked since the primary interest of the protection of the Australian community and the expectations of the Australian community outweigh any primary or other considerations that may be held to weigh in favour of revocation.[38]
[38] HB pp 123-140.
During these reasons, I address the respective contentions of the Applicant and Minister.
In my examination of the primary and other considerations, I assess the evidence in respect of each consideration and then weight the consideration on a scale of the following categories to assist with consistency: very low, low-moderate, moderate, moderate-serious, very serious, and neutral before making an overall assessment of all the primary and other considerations. These are not statutory categories but simply used to explain why a certain weight is accorded to a particular consideration and to ensure consistency in my reasoning.
Primary Consideration 1: Protection of the Australian Community

The first primary consideration, paragraph 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 because 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:
(a)nature and seriousness of the non-citizen’s conduct to date; and
(b)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’ by the Australian Government and the Australian community. 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(1)(a) and 8.1.1(1)(b).
[42] Direction no. 110, para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to para 8.1.1(1)(a)-(i) and para 8.1.1(1)(c) of Direction no. 110, relevantly:
(a)The frequency of the Applicant’s offending and/or whether there is any trend of increasing seriousness;
(b)The cumulative effect of repeated offending;
(c)whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(d)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).
I note that it is well established that the Tribunal cannot ‘go behind’ the conviction giving rise to the exercise of power which is the subject of the review.[44] Where that power arises in part due to the sentence imposed on the Applicant, this principle extends to the findings of fact on which the sentence is based. I consider that I am bound by the conviction which led to the mandatory cancellation of the visa, and to the extent that I have any discretion to go behind the specific factual findings made on sentencing, I do not consider there is any basis to do so on the evidence before me.
[44] HZCP v Minister for Immigration and Border Protection (2018) FCR 1803 at [78].
In the following paragraphs a brief overview is given of the Applicant’s conduct and offending.
The facts of the Applicant’s index offences are summarised as follows in the sentencing remarks:[45]
In summary, on 30 April 2022 at 8.48 pm you approached the boundary fence at the Yongah Hill Immigration Detention Centre near Northam. You threw two packages into the detention centre and they were collected by a detainee.
Detention Centre staff seized the packages and supplied them to police. One package, relevant to charge number 1, was found to contain 9.43 grams of methylamphetamine at a 79 per cent purity. The other package, relevant to charge number 2, was found to contain 8.37 grams of buprenorphine. That is an opioid prescription drug.
Those facts have all been accepted by your counsel on your behalf. It is relevant to add the following: the State accepts that you were acting on the direction of another person to carry out this offending. And another person gave you directions on where to attend to supply these drugs. You’ll be sentenced on that basis.
The State does not seek to prove beyond reasonable doubt that you knew that you were throwing drugs into a detention centre. You do not seek to prove on the balance of probabilities that you believed you were throwing drugs into a place that was not a detention centre. For sentencing purposes, your state of mind as to the premises where you threw the drugs is simply unknown.
You did know that what you were throwing included methylamphetamine. You were a user of drugs at that time, and you stood to be rewarded by receiving a very small quantity of drugs, I’m told one gram, for doing what you did. What makes the offending serious is that any supply of drugs is serious because of the potential for harm.[46]
[45] HB p 44. The facts of the Applicant’s offending are not in dispute. The Applicant accepted in his submissions the summary of offending as set out by the Delegate. HB pp 276, 282.
[46] HB p 44.
The criminal history of the Applicant is summarised as follows:[47]
[47] HB pp 41-42.
(a) 28 October 2024 – Driving with prescribed illicit drug – Fremantle Magistrates Court – fined $1,250 and disqualified for 6 months - concurrent.
(b) 5 October 2023 – possess a prohibited drug (cannabis); Misuse of Drugs Act 1981; 6 (2) B; Driving with prescribed illicit drug – Perth Magistrates Court – fined $400 and $250 respectively.
(c) 13 October 2018 – exceed speed limit between 10 and 19km/h and exceed speed limit between 20 and 29 km/h – Perth Magistrates Court – fined $200 and $400 respectively.
(d) 31 March 2021 – fail to obey order given an officer; Criminal investigation Act 2006 - Perth Magistrates Court – fined $300.
(e) 25 March 2019 – Possess prohibited drug (cannabis); Misuse of Drug Act 1981; 6(2) B - Perth Magistrates Court – fined $350.
(f) 20 December 2010 – Stealing – Perth Magistrates Court – fined $200.
(g) 22 February 2006 – disorderly behaviour in public – Perth Magistrates Court – fined $300 (noted as spent).
(h) 4 November 2005 – Assault common; possess weapon w/intent to cause fear; stealing; unlawful damage – Perth Magistrates Court – fined $300; $200; $100; $300 respectively (noted as spent).
(i) 23 August 2005 – Stealing – Perth Magistrates Court – fined $400 (noted as spent).
(j) 4 August 2005 –Breach of bail; unlawful wounding – Perth Magistrates Court – fined $100 and $200 respectively (noted as spent).[48]
[48] HB p 121. I am not precluded to consider a spent conviction.
The Minister submits that the Applicant’s offending should be viewed as very serious for the following reasons: firstly, paragraph 8.1.1 of Direction 110 does not limit the types of offences that may be considered as serious or very serious and in this case the sentencing judge referred to the offending in respect of the index offences as ‘particularly serious due to the risk of safety of detainees; secondly, the Applicant actively participated in the packing[49] and delivering of the drugs knowing that what he intended to do was unlawful; thirdly, a term of imprisonment is a last resort but the trial judge observed that it was necessary; fourthly, the criminal record of the Applicant demonstrates an escalation in the seriousness of offending and a ‘clear disregard’ for the law over a prolonged period; fifthly, the large number of traffic offences of the Applicant,[50] particularly driving under the influence of a prescribed illicit drug while he was on bail for the index offences and driving at very high speed in excess of the limit should be considered serious; and finally, there is a cumulative effect of the repeat offending by the Applicant.[51]
[49] HB p 331, para 10.
[50] HB p 243.
[51] HB pp 125-128.
The Applicant says the index offences ought to be regarded as serious and that the index offences ‘must weigh against the revocation’ of the Reviewable Decision.[52] However, the Applicant contends for the following reasons that the impact of the index offences on the overall consideration ought to be moderated: firstly, there was no victim to whom the drugs were supplied or who complained; secondly, the Applicant pleaded guilty at first appearance in the Magistrates Court and received a reduction in sentence; thirdly, the Applicant has displayed sincere remorse and his prospects for rehabilitation are high with the risk of reoffending being low; fourthly, the criminal record of the Applicant was described by the sentencing judge as ‘irregular contact with the criminal justice system’.[53]
[52] HB pp 282-283.
[53] HB pp 282-284.
Direction no. 110, requires the Tribunal to take into account a range of factors in assessing the nature and seriousness of the Applicant’s conduct and offending, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.
I find that the conduct of the Applicant giving rise to the index offences and the associated convictions are to be regarded as very serious. I do not agree with the Applicant that the seriousness of the conduct of the Applicant is ‘moderated’ for the reasons raised by the Applicant to such an extent where my weighting is affected.[54] The offences, when viewed in isolation of each other, may seem to be at the lower end of seriousness, but they were persistent and associated with the Applicant being under influence of alcohol or drugs and the Applicant persisting with drug use in disregard of the law, his son, his family, his employment, and the societal interest.
[54] HB p 284.
The reasons for this finding by reference to paragraphs 8.1.1(1)(a) to (i) of the Direction (as relevant) are:
(a)I regard the index offences as very serious since the supply of drugs to persons in detention may in the words of a sentencing judge have placed ‘everyone inside the centre’ at risk of their safety.[55] I do not accept the proposition of the Applicant that the index offences should only be regarded as ‘serious’. Although there is no definitional guidance given by the Direction, I regard the supply of the drugs to persons the subject of the index offences in a detention area, as very serious. The Applicant in effect intended to facilitate the committing of a crime and although he may have been influenced by another person, he actively participated in the operation, helped with packaging, allowed his partners to use his mobile phone to locate the centre, walked for a long way through the bush, and threw the packages over the fence. In evidence before me he said he did so while he was under the influence of drugs, but I do not regard the explanation as mitigating the seriousness of what he had done. Flynn DCJ remarked that although the quantity of drugs had been relatively small, methylamphetamine may be consumed in a quantity as little as .1 gram, and hence ‘nine grams has the capacity for harm in the detention centre.’[56] I regard this statement as indicative of the very serious nature of the offences.
(b)The custodial sentence imposed reflects the seriousness of the index offences. Flynn DCJ remarked that imprisonment is ‘always a last resort’, but that in this case it is ‘necessary because of the seriousness of the offences’.[57] I regard the imprisonment of the Applicant as reflective of the nature and seriousness of the conduct of the Applicant and commensurate with the protection needed by the Australian community against such conduct. Although the term of imprisonment was at the lower end of the spectrum, it nevertheless indicates the seriousness of the offences.
(c)Although there was no assessment of the impact of the index offences on a particular person, it is common knowledge the destruction caused by the use of illegal drugs. If such drugs are supplied within the confined area of a detention centre the potential for it to create havoc and for profiteering escalates. The potential for commercial gain increases in light of the controls put in place to prevent the distribution of drugs in the centre. These add to the very seriousness in which I view the conduct of the Applicant.
(d)The conduct of the Applicant over many years shows a regular disregard for the law. Flynn DCJ observed the ‘irregular contact’ of the Applicant with the criminal justice system,[58] but for purposes of my assessment I regard the criminal conduct of the Applicant as constituting a repeated and ongoing disregard for the law. The ongoing drug use of the Applicant, added with his gambling habit, are commensurate with the ongoing offending and other social consequences such as him losing employment. A review of the record of the Applicant highlights how his conduct has increased in seriousness, it has been relatively persistent, and that it has been escalating. Added to his criminal record, the traffic offences reflect his frequent disrespect for the law. His disregard for the law is highlighted by him offending again (a drug offence) whilst on bail for the index offences. This highlights his reckless attitude and the entrenched nature of his addiction. As I explain later, the repeated breaches of Australian law by the Applicant over a long period of time without him taking any serious steps to rehabilitate, raises doubt about his prospects for rehabilitation and increases my concern at the risk of him re-offending.
(e)Although the Applicant entered a plea of guilty at his first formal appearance, I note that he initially when he was arrested, denied any involvement with the offence.[59] He confirmed in oral evidence that when they were arrested by the police, he denied the alleged crimes.
[55] HB p 45.
[56] HB p 46.
[57] HB p 46.
[58] HB p 45.
[59] HB p 144.
The conduct of the Applicant giving rise to the index offences and other offences are regarded as very serious.
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.[60] 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.[61] The Tribunal must consider the likelihood and consequences of further offending.[62]
[60] Direction no. 110, para 8.1.2(2)(a) and (b).
[61] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
[62] Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673, [95].
Direction no. 110 refers the ‘risk to the Australian community’, ‘further offences’ or ‘engage in other serious conduct’ 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. The terms ‘risk’ and ‘likelihood’ are often used interchangeably in material relevant 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 such offending. 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.
The Applicant accepts that the harm that would be caused if he were to reoffend would be serious. However, he maintains that the likelihood of him doing so is low. Accordingly, the Applicant says that the risk to the community is also low. Mr Cummins opines that the chances of the Applicant refraining from committing further criminal offences ‘are good and most probably very good.’[63]
[63] HB p 319.
The Minister says the nature of the harm is very high and the tolerance of the community towards such harm is very low. This weighs according to the Minister significantly against revocation of the Reviewable Decision.[64]
[64] HB pp 128-131, 352.
The Applicant submits in summary as follows:[65]
(a) The risk of reoffending by the Applicant is low-moderate ‘trending towards low’. The Applicant during his incarceration completed a drug rehabilitation course and he is deeply remorseful for what he has done. The imprisonment was a serious ‘wake-up call’ for him. This is confirmed by all of those who gave written and oral evidence.
(b) The Applicant is committed to his family, and particularly to his son. He wants to make amends to them for the hurt he has caused.
(c) The Applicant is employed as a painter and holds a Certificate III in Painting and Decorating. He resides with his parents and has care responsibilities for them.
(d) The spiritual connection is a ‘key element of his identity’ and he has the support of his family and other persons from his religious and cultural community.
(e) The expert report of Mr Cummins speaks about the low risk of re-offending, the high potential for rehabilitation, and the increased insight of the Applicant.[66]
[65] HB pp 284-287.
[66] HB p 319.
The Applicant contends that the risk of re-offending is low-moderate trending to low and that the Applicant does not pose an unacceptable risk to the Australian community.[67]
[67] HB p 287.
The Minister submits that the nature of the harm that would be caused by the Applicant’s conduct if it were to be repeated is so serious, that any risk it may be repeated is unacceptable.[68]
[68] HB p 131.
The Minister submits that:
(a) The nature of the harm should the Applicant engage in further criminal activity of the crime of which he was convicted, is very serious. The nature of the harm is thus very high, and the tolerance of the community for such harm, is very low. The Applicant has had a long history, since young adulthood, with drug use. He admitted to escalating drug use to include methamphetamine, OxyContin and heroin. He confirmed in oral evidence that until the day he went to prison he used heroin daily[69] – this means after his bail on 12 December 2022 he continued to use heroin daily until his sentencing in October 2024.
(b) The Applicant has submitted expert evidence about the risk of him unlikely to reoffend, but that risk has not been adequately tested outside the context of prison. The offending of the Applicant in respect of the index offences was ‘intentional and deliberate conduct’. The Applicant was actively part of the putting into effect of the operation. The opinion expressed by Mr Cummins about the prospects of rehabilitation is qualified by Mr Cummins stating there is no tool or measurement to assess the likelihood of re-offending and the Applicant would have to undergo further mental health treatment. The Applicant has not arranged for any treatment since his release from prison.
(c) The social network of the Applicant, including his son, parents, immediate family, and religious community, did not previously prevent the Applicant from using drugs for a long period, breaking the law at several occasions, and committing the index offences.
(d) On balance the Minister says that the seriousness of the offending by the Applicant, and the harm that would result from reoffending, even if the likelihood is low, weigh significantly against revocation of the Reviewable Decision since the Australian community has low tolerance towards the seriousness of the index offences.
In assessing the risk that may be posed by the Applicant to the Australian community, I now have regard, cumulatively, to the nature of the harm should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct:
Nature of the harm
[69] HB p 149.

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 engage in further criminal or other serious conduct.[70]
[70] Direction no. 110 para 8.1.2(2)(a).
The Applicant accepts that the harm which would be caused should he reoffend would be serious. However, he contends he presents a medium to low risk of reoffending according to Mr Cummins but low according to his own assessment.
I consider the harm which would be caused to individuals and to the Australian community were the Applicant to reoffend would be very serious.
The Applicant has committed a range of offences over around 20 years, since his early adulthood. Mr Cummins states that the Applicant became ‘progressively involved with illicit drugs’ since around the age 18/19[71] and that he continued using illicit drugs ‘whilst on bail.’[72] The Applicant confirmed in oral evidence that he had used heroin until he was admitted into prison and that until such time he had not undertaken any self-initiated rehabilitation. The Applicant was a regular user of OxyContin, heroin and other drugs until the time of him being sentenced. In fact, the reason offered by the Applicant for his participation in the index offences was that he would receive illicit drugs as payment. He also says he was under the influence of drugs when he committed those index offences.[73] The lack of insight into his addiction displayed by the Applicant prior to his incarceration increases the nature of the harm to the community should he engage in further criminal conduct.
[71] HB p 316.
[72] HB p 315.
[73] HB p 348.
Noting the comments of the sentencing judge and the material submitted by the Minister, I consider that the harm which would be caused were the Applicant to reoffend would include the serious physical and emotional harm to users, and associated health, social and economic costs to the community. The sentencing judge noted that the Applicant had reoffended by driving whilst under the influence of an illicit drug, while being on bail for the index offences. Thereby the sentencing judge identified the potential for heightened harm to the Australian community should the Applicant reoffend.
The Applicant has also committed several other offences that placed the Australian community at risk, for example excessive speeding and being on drugs while driving. The Applicant could during evidence not clearly recall most if not all of the offences and said that he was under the influence of drugs when they were committed, including the index offences. In oral evidence the Applicant said that he does not accept the opinion of Mr Cummins that he may need counselling for outstanding treatment needs such as gambling and drug use.
I find that the nature of the index offences, the other convictions and traffic offences of the Applicant, constitute an unacceptable risk of harm to the Australian community should he reoffend.
I consider the harm which would be caused to individuals and to the Australian community were the Applicant to reoffend would be 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 engaging in further criminal or serious conduct if he were permitted to remain in the Australian community.[74]
[74] Direction no. 110 para 8.1.2(2)(b).
The Applicant maintains that there is a low-moderate to low likelihood he will reoffend.[75] The Applicant contends he has serious remorse about his conduct, that he has undertaken rehabilitation while he was in prison,[76] that he is willing to undergo further treatment for depression but he has not yet taken steps and that he has never suffered from depression, that he has a supportive family and friends, that he committed to the welfare of his son, parents and family, that he is employed, and that he has gained insight into the wrongfulness of his actions and is a totally different person. In the words of his mother: ‘my son has a different skin’.
[75] HB pp 285-286.
[76] HB p 312.
The Minister disputes that there was a low likelihood of the Applicant reoffending. The Minster contends that his rehabilitation, if any, has not been tested outside the confines of prison. The Minister points to the long history of offending by the Applicant, the prolonged drug use of the Applicant, the lack of any attempts at rehabilitation prior to imprisonment, the calculated bases of conduct of the Applicant in respect of the index offences, the limited scope of rehabilitation whilst in prison, the absence of a risk assessment, and the qualified nature of opinion expressed by Mr Cummins about the potential of reoffending by the Applicant.
The Applicant says he had become involved with the wrong people in his early adulthood, that he had engaged in ‘increased consumption of hard drugs’, that his addiction grew ‘worse and worse’, that he was struggling financially at the time of the index offences, that he is very remorseful and entered an early guilty plea, that he has abstained from drugs since being in prison and being released, that he is willing to undergo further counselling, that it has become clear to him that he had to stop using drugs, and that he is a low risk of reoffending.[77]
[77] HB pp 331-335.
Mr Grant Redfern, employed at Acacia Prison, submitted a letter that the Applicant was a painter in prison, that he worked hard, and he was ‘trying to maintain positive prison conduct.’[78]
[78] HB p 322. He did not give oral evidence.
Mr Cummins says in a report there is not a specific assessment to determine whether a person is likely to resume using illicit drugs, but that in his expert opinion the Applicant’s prospects for rehabilitation are ‘good and most probably very good’.[79] The risk of reoffending is low-moderate ‘trending to low’ if the Applicant participated in mental health counselling.
[79] HB p 319. He did not give oral evidence.
Mr SS,[80] who is the brother-in-law of the Applicant, says the Applicant is a person of ‘great integrity’, a ‘pillar of support’, and is deeply remorseful about his past mistakes.[81]
[80] The name of the witness is anonymised to reduce the risk of the Applicant being identified.
[81] HB p 323. He did not give oral evidence.
Mr SJA,[82] who is the brother of the Applicant, says the Applicant is an integral part of the family, he has a positive and caring attitude, he has shown a lot of remorse for his actions, and he is unlikely to reoffend.[83]
[82] The name of the witness is anonymised to reduce the risk of the Applicant being identified.
[83] HB p 327. He did not give oral evidence.
Mr AH,[84] is the cousin of the Applicant who, together with his mother, says the Applicant has shown ‘profound remorse’ since his imprisonment.[85] He says it is ‘clear’ to them that the Applicant would not reoffend again because he has had time to reflect on what he had done. The Applicant has had a ‘wake-up call’ from the moment he entered prison. The Applicant therefore does not constitute a danger to the Australian community. Mr AH says the Applicant told him that prison was one of the ‘best things’ that had happened to him to bring him to his senses.
[84] The name of the witness is anonymised to reduce the risk of the Applicant being identified.
[85] HB pp 339-340.
Mr QA and SKA, the parents of the Applicant,[86] say the Applicant is of good character, honest and hard-working, he has displayed ‘extreme remorse’ since being in prison, that he is a totally new person, and he ‘is not going to offend in future.’
[86] The names of the witnesses are anonymised to reduce the risk of the Applicant being identified.
Regardless of the support expressed by witnesses for the Applicant, I am concerned about the likelihood of the Applicant engaging in further criminal or serious conduct if he were permitted to remain in the Australian community. It appears as a consistent thread through the evidence that the Applicant has only come to show remorse and insight since his imprisonment some 12 months ago. Prior to this, for more than 17 years the Applicant showed no or little insight into the harmful nature of his conduct to himself, his family, his son, and to the Australian community. His family ties and parental responsibilities did not prevent him from offending and drug use. The repeated convictions for various offences and fines for traffic offences had little effect on the behaviour of the Applicant and by his own admission his drug use increased in severity to where at the time of imprisonment he used heroin daily. The fact that he drove while under the influence of an illicit substance after he had been given bail for the index office, shows the lack of insight and lack of care he had for his own well-being and of others. In the sentencing transcript on 25 March 2019 the Applicant asked from Magistrate A. Maughan: ‘Are you going to forgive me?’[87] to which Magistrate Maughan replied: ‘I’m not going to forgive you. I’m going to fine you today. Next time you might not be so lucky.’ This caution did not cause the Applicant to mend his ways. The Magistrate added: ‘So if you need some help stopping, my suggestion is to go chat to your general practitioner as a good starting point.’ The Applicant took no steps to self-initiate rehabilitation. I also note in this respect the Parole Assessment of 18 February 2025 in which it was opined that the Applicant ‘presents with treatment needs pertaining to illicit substance use, negative peer association, and a lack of cognitive skills (decision making, consequential thinking, and impulsivity).’ The opinion is expressed that his ‘offending behaviours remain largely unaddressed.’[88]
[87] HB p 183.
[88] HB p 161.
Mr Cummins concedes that there is no specific assessment tool to determine the likelihood of the Applicant reoffending. Mr Cummins can only offer his expert opinion based on the video interview with the Applicant. I give reduced weight to the opinion of Mr Cummins that the risk of reoffending by the Applicant is ‘Low-moderate and trending towards Low’.[89] Mr Cummins did not give oral evidence to explain how he has come to this opinion after having only met the Applicant on one occasion,[90] the Applicant said the single interview was between 30-60 minutes in duration, and in light of the persistent drug use of the Applicant over many years. Without hearing from Mr Cummins and being able to assess the veracity of his opinion and methodology, I attach reduced weight to his written opinion. The Applicant says the ‘conclusion’ by Mr Cummins is the ‘most relevant’.[91] Even if I were to accept without qualification the opinion of Mr Cummins, the Applicant has not after his release initiated the steps recommended by Mr Cummins in respect of counselling for his depression or drug use. In oral evidence the Applicant denied suffering from depression and said he does not need further rehabilitation but will do it if he is told to do so. Ultimately, the opinion of Mr Cummins that the risk of offending by the Applicant may be reduced to low remains hypothetical and not tested in open society.
[89] HB p 319.
[90] On 17 February 2025: HB p 313.
[91] HB p 352.
I give little weight to the opinion of the respective family witnesses that the Applicant is unlikely to reoffend. First, none of them was aware of the full extent of criminal offending or drug use by the Applicant. Second, they fail to adequately acknowledge that the remorse expressed by the Applicant only came to fruition after his incarceration. Thirdly, the effect of his remorse has not been ascertained in society and notably, over a period of at least 17 years he had been escalating his drug use regardless of his family bonds and parental duties. Fourthly, he has not commenced any counselling, rehabilitation, or depression treatment since his release from prison. By noting these I am not suggesting that the Applicant cannot be rehabilitated on his own, but I am not satisfied that it has been established that the presence of those personal circumstances would be adequate to deter the Applicant from reoffending.
To the extent the Applicant relies on his family members, including his sense of responsibility for his son, I am concerned that his prosocial supports were not sufficient to prevent the Applicant’s offending prior to his incarceration. On the contrary, regardless of opposition from his family to his drug use and the birth of his son, he escalated his offending and drug use. I do not accept the submission of the Applicant that his ongoing offending ought to be weighed differently due to his ‘untreated polysubstance dependence.’[92] The conduct of the Applicant was in reckless disregard of the law and increased in severity due to his need to get access to drugs. Whilst I note the current employment of the Applicant, I am reminded that the Applicant only had employment for 3 times since his arrival (2013-2013; 2016-2016; 2020-2021) and each of those ended after a relatively short time due to his drug use or drug related behaviour.[93] The addiction of the Applicant is evidenced in the Applicant offending again while on bail for the index offences and him using drugs until his incarceration.
[92] HB p 348.
[93] HB p 68.
Overall, I find there is a strong likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.
Conclusion on the protection of the Australian community
The Applicant’s conduct and offending are very serious. The index offences read with the criminal record and traffic offences of the Applicant demonstrate the serious harm which would be caused were he to reoffend. I find there is a strong likelihood he will reoffend or engage in other serious conduct noting observations by Mr Cummins that his rehabilitation is in an early stage and that additional counselling, for which the Applicant has not yet made arrangements, are recommended.
I am concerned at the lack of insight displayed by the Applicant to seek professional support to assist in the process of rehabilitation, particularly since the Applicant has been involved in drugs for around 17 years until October 2024 when he went to prison.
My concern of reoffending is also raised by the failure of the Applicant to adjust his drug use after several encounters with the justice system, including the caution directed at him in 2019 by a magistrate that the next time he may not get a fine and it was recommended that he speaks to a general practitioner about a rehabilitation program.
The remorse the Applicant now expresses is given less weight in light of the extensive and ongoing past conduct.
I also note that he has only been out of prison for 2 months and the upcoming hearing may have played an important role in his new pattern of conduct. His rehabilitation is in its infancy and I have concerns about the genuineness of his remorse for the offending.
I find that the serious harm which would be caused by further serious offending or criminal conduct means the risks associated with a strong likelihood of reoffending are significant, considering the significant harm which would be caused if the Applicant were to engage in further criminal or serious conduct. I consider the risk to be unacceptable. I make this finding in awareness that the Minister has indicated that the Applicant will not be returned to Afghanistan, that he cannot be returned to indefinite detention as falling within the NZYQ-category, that he will remain in the community pursuant to the Bridging visa, and that he may ultimately be sent to a country other than Afghanistan.
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, I find that this primary consideration weighs very seriously against revocation of the Reviewable Decision.
Primary Consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to find that the Applicant has engaged in acts of family or domestic violence. Although Mr AH used the phrase ‘domestic violence’ in evidence, the Minister contends, and I agree, that there is no evidence of domestic violence.
I agree with the parties that this consideration should be given neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider any impact of the Reviewable Decision on the Applicant’s immediate family members in Australia.[94] I must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to how long he has lived in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[95]
[94] Direction no. 110, para 8.3(1).
[95] Direction no. 110, para 8.3(2).
I note that the parties agree that this consideration weighs in favour of the revocation of the Reviewable Decision, but they disagree on the weight to be accorded. The Applicant says it ought to be weighed very strongly for revocation, whilst the Minister says it ought to be weighed in favour of revocation.
In short, the Applicant has lived in Australia since 16 September 2004, when he was at the age of 17. All his ties of substance are in Australia since he lived as a refugee from Afghanistan in Iran prior to arriving in Australia. He has only worked in Australia and has not visited any other country since his arrival. He did not attend school in Australia but attended an English-speaking language course after arrival. He has a son of 5 years in Australia who lives with his previous partner. The Applicant does not currently have close contact with the son, but he says this is due to acrimony between the Applicant and his previous partner. The son and mother reside in the same city as the Applicant.[96] The Applicant is particularly close to his parents, he cares for them, takes them to appointments, supports them financially and otherwise, and is currently residing with them. All his social, cultural and other links are to Australia. He left Afghanistan as a child of around 5 in traumatic circumstances as explained in oral evidence by his mother. He then spent some years as a refugee in Iran, before he migrated to Australia. Australia has been the only place of stability that he can call home. The Applicant is not currently in any permanent relationship. Regardless of his offences, he maintained contact with his family, supporting his parents, helping them, and providing for them. If he were to be deported it would be devastating to him, his parents, his son, and his immediate family and their children. Australia is the only place he calls home.
[96] HB pp 331-336.
The parents of the Applicant speak about their love for him, the support he gives them, the important role of a son in caring for parents in their culture, and the heartbreak they would suffer if this application is not successful.[97] They shared about the trauma they experienced as refugees, how the experience may have impacted on the Applicant, how supportive he has been and continues to be for them, and how devastating it would be if he were to be deported. They cite several examples of the Applicant supporting them in daily living, how he supports the wider family, and about the role of the Applicant in their family especially given the closeness of their cultural bonds. Their evidence was heartfelt, desperate and emotional.
[97] HB pp 343-344.

AH, the cousin of the Applicant, says he gives evidence on his and his mother’s behalf.[98] The mother of AH, who is the aunty of the Applicant, was the sponsor for the Applicant and his family to migrate to Australia. AH says the Applicant is an integral part of their family, that Australia is the only home known to the Applicant, that the Applicant is profoundly remorseful and a totally different person after prison, that they experienced horrific trauma as refugees and it may have caused the Applicant to mix with the wrong people, that he supports the family with his services, that he is peacemaker in the family, and that his deportation would affect all in the family profoundly, but it would be particularly devastating to the parents of the Applicant. He was also seriously concerned about the risk of self-harm by the Applicant if the Reviewable Decision is affirmed.
[98] HB pp 339-340.
The Applicant is closely involved with his immediate family and their children in his home city, for example his sister-in-law speaks about him being a dedicated and caring person and his commitment to his family is ‘remarkable’.[99] His brother, SJA, spoke about him as being of ‘an exceptional character’, about their bond as brothers, about the Applicant looking after their parents, and him having a ‘wonderful’ relationship with his children. SJA says the only bonds with any country the Applicant has are with Australia since this is where he has lived his adult life.[100] A similar sentiment is expressed by his cousin, AH and his aunt HH who see him as an integral part of the family and a great person to have around them and the family. The Applicant has had employment as a painter and has already secured work as a painter. He intends to establish his own business in due course. In summary, the Applicant’s life is entirely rooted in Australia.[101]
[99] HB pp 323-324. She did not give oral evidence.
[100] HB pp 327-328. He did not give oral evidence.
[101] HB pp 287-292, 332-333.
Mr Mark Steward, who employs the Applicant, speaks about him being punctual, respectful and willing to follow instructions.[102] Mr Steward says he is aware of the ‘serious offence’ committed by the Applicant, but he says that he nevertheless employed the Applicant and can attest for his effort to rehabilitate and ‘genuine desire’ to make a positive contribution. Mr Steward says he is keen to explore the possibility of a Temporary Skilled Shortage Subclass 482 working visa for the Applicant. He also says they have drug testing protocols in place at work and will therefore keep close supervision of the Applicant.
[102] Statement Mark Steward 13 October 2025. He did not give oral evidence.
The Minister accepts that the Applicant has substantial ties to Australia. The Minister accepts that the Applicant has identified ties to around 30 cousins as well as to other family.[103] The Minister says less weight should be placed on this consideration since the Applicant commenced offending soon after his arrival in Australia. Seven criminal convictions were recorded between 4 August 2005 and 22 February 2006. The closeness of family bonds and the birth of a son did not previously deter the Applicant from mixing with the wrong people, to commit crimes, or to become involved in gambling and addicted to drugs.
[103] HB pp132 and 333, par 27.
The Minister submits this consideration weighs in favour of revoking the Reviewable Decision.[104]
[104] HB p 133.
I have had regard to all the information before me and accept that due to the nature, strength and duration of the Applicant’s ties to Australia, a non-revocation of the Reviewable Decision would have a very serious adverse effect on his immediate family, particularly on his parents and on his son. The impact of deportation must be assessed within the context of the culture of the Applicant, the supportive role he plays for his parents (I address the relationship with minors below), the integrated nature of their family links, his established and sole linkages with the Australian community, and the lack of any ties with Afghanistan other than by birth. However, below I address the submission of the Minister that the Applicant will not be returned to Afghanistan, which means the practical effect is that he would remain in Australia pursuant to the Bridging visa and therefore the actual impact of a non-revocation of the Reviewable decision would be much less.
I find that the Applicant has very close ties with Australian society in general and his immediate family in particular. Although his immediate family, except his son, are not citizens of Australia, they have established their lives in Australia permanently, they are integrated into society, and they regard Australia as home.[105] They are a close family unit and support each other. The parents cannot speak English, and they rely on the Applicant, in particular, to assist them in daily living tasks and dealings with society. Other family members with their respective home responsibilities are not as readily available to assist the elderly parents of the Applicant.
[105] HB p 66.
I find that if the Reviewable Decision remains unrevoked and the Applicant were to be returned to Afghanistan, the impact of the deportation of the Applicant would be severe on his family in general, but particularly on his parents (I address below the potential impact on minor children), but since he will not be returned the impact of non-revocation would be much less other than the uncertainty that he may at some point be sent to another country. I am also particularly mindful of the ongoing negative impact the non-revocation may have on a family that have already experienced such deep trauma as refugees, and instability.
I find that the Applicant has close ties with his immediate family, such as his parents, his brother and sister, sister-in-law, cousin and his wife, who have remained in close contact with him and who are committed to supporting his reintegrating into society.
The Applicant has since release from prison secured employment as a painter. He has potential to progress as a painter and he intends to establish his own business in due course. His rehabilitation is ongoing, but his current employer and family are keeping an eye on him and supporting him. His mother speaks of him having a ‘new skin’ – so much he has changed. His father also speaks of him being a totally new person. This is affirmed by his cousin. The Applicant repeatedly explained how prison was a wake-up call and how, regardless of his previous offending, he is a totally changed person.
I find however that the weight accorded to this consideration is somewhat reduced due to the Applicant having started offending soon after his arrival in Australia. The Applicant arrived as a young adult of 17 and within a few years had several criminal convictions recorded against him. I accept however that being a young migrant-refugee the Applicant was particularly susceptible to peer pressure and risk of getting involved with the wrong people. Although the Applicant has made a limited contribution to the Australian community, his ongoing offending reduced the weight to be placed on his positive contribution. At the same time, I am mindful that the criminal record of the Applicant does not define him totally. It is a stain on him, but does not diminish his links to Australia, to his family, to his son, and to the community.
Overall, I find that the strength, nature and duration of the Applicant’s ties to Australia weigh very seriously in favour of revoking the Reviewable Decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501CA of the Migration Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include, in summary:[106]
(a)the nature and duration of the relationship;
(b)the extent to which the Applicant is likely to play a positive parental role in the future;
(c)the impact of the Applicant’s prior conduct, and any likely future conduct, on the child;
(d)the likely effect that any separation from the Applicant would have on the child;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child;
(g)evidence that the child has been, or is at risk of being exposed to family violence by the Applicant or has otherwise been abused or neglected by the Applicant; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
[106] Direction no. 110, para 8.4(4)(a)-(h).
The Applicant identified the following children, whose views are not known, whose best interest may be for the Reviewable Decision to revoked:[107]
(a)G, Son of 5 years
(b)I, his niece, of 6 years
(c)MHA, his nephew, of 13 years
(d)AA, his nephew, of 14 years.
[107] HB pp 62, 294, 333.
The Applicant submits that the best interests of the identified children are that the Reviewable Decision be revoked, and that significant weight should be given to this consideration having regard to their best interests, in particular the best interests of his son.[108]
[108] HB p 333.
In respect of his son, the Applicant says that prior to being incarcerated he visited his son every fortnight at the house of his previous partner, but since his release he has not attempted to contact his son due to the poor relationship between the Applicant and the mother of his son. The Applicant is, however, keen to re-establish the relationship with his son and do fatherly things with him such as camping, playing, sport, passing on culture, and being a role model. He provides child support but does not have a formal visitation or parenting arrangement. In oral evidence the applicant explained how he enjoys the company of his two nephews and niece. They meet at family events and sometimes as often as weekly. He sees himself as a role model and friend to them.
SS, sister-in-law of the Applicant, says the Applicant has a ‘profound and irreplaceable bond’ with her two sons, MHA and AA.[109] She says her sons ‘adore their uncle’ and he is a genuine, gentle, caring and positive role model to them. They missed him while the Applicant was in prison and since his release, they have been happy. She is concerned about the trauma they may experience if he is to be deported.
[109] HB p 323. She did not give oral evidence.
SJA, brother of the Applicant, says the Applicant has a ‘wonderful relationship’ with his sons, MHA and AA.[110] He is close to them and plays an active part in their lives. They admire him and look up to him.
[110] HB 327. He did not give oral evidence.
AH, cousin of the Applicant, speaks about how important the Applicant’s son is for him.[111] Deportation would have a serious effect on both. He says the Applicant is keen to be more active as a parent, particularly to share his cultural roots with his son. He says it would cause the son severe long-term trauma and embarrassment to grow up without a father or not being able to explain where his father is. Added thereto, the son would lose a part of his cultural identity if the Applicant was no longer available to access his son.
[111] HB p 339.
The parents of the Applicant speak about the Applicant being a key person in their core family, someone the children can look up to and who can be a role model, someone who is always willing to help, and without whom the children will lose a role model and a loving uncle.
The Minister acknowledges the relationship between father and son but says it should be given reduced weight because the Applicant does not have a primary parental responsibility and had not had parenting responsibilities prior to going to prison; the Applicant has not sought access to his son after release from prison; and the Applicant previously committed the crimes and used drugs while he had access to the son. The birth of his son did not deter the Applicant from offending, from gambling, or from drug use. The Minister says the relationship between the Applicant and the other listed children should be given low weight because does not have a parental responsibility, they see each other occasionally, they can retain contact; and he was out of their lives while he had been imprisoned.[112]
[112] HB p 134.
The Minister accepts it was in the listed children’s best interests, particularly for his son, if the Reviewable Decision is revoked, and that this primary consideration weights in favour of revocation of the Reviewable Decision.
I find that it is in the best interest of the son of the Applicant and of the other listed minor children for the Cancellation Decision to be revoked, and I give serious weight to this consideration.
I find that the Applicant endeavours to have a close relationship with his son, but in practice this has not yet eventuated. Prior to being incarcerated the Applicant visited his son on a fortnightly basis but he did not make formal any child support payments to the mother although I accept that he gave gifts and cash per occasion. Importantly, the Applicant did not have formal co-parenting responsibilities, and visitations took place at the child’s residence. The Applicant also continued to use drugs and engage in gambling since the birth of his son. Since the release of the Applicant from prison he says he has not made any attempt to contact the son or the mother. He explained that this is due to the conflict he has with the mother, but he admitted in oral evidence that he had not made any attempt to see the son. Although I accept the sincerity of the intention of the Applicant, in practice he has not displayed the parental responsibilities he endeavours to develop. I accept the importance of the son learning about the culture of the Applicant, but I am concerned that the Applicant previously used drugs and committed criminal offences and serious traffic infringements while he had visitation rights and limited parental responsibilities.
I have considered the best interests of each of the other listed children. Their interests do not differ. I find that the Applicant does engage with them at family events, that they enjoy his company, that he can be a role model for them, but I also find that as positive a role as he may play, him going to prison also may have had a profound negative impact on them. The role of the Applicant has therefore not been only positive, but also negative. The evidence is that the entire close family of the Applicant have been affected by his actions, both adults and minor children.
On balance, I find that the weight given to the best interests of minor children in Australia, particularly in respect of his son, weighs seriously in favour of revocation of the Reviewable Decision. I consider that revocation of the Reviewable Decision would be in the best interests of the listed minor children.
Primary Consideration 5: Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction no. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in subparas 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the person’s conduct or offending.
This consideration will, in most cases, weigh against revocation of a Cancellation Decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The list of the types of conduct identified in paragraphs 8.5(2)(a)-(f) is not exhaustive.
The Applicant says that this consideration should weigh against revocation of the Reviewable Decision.[113] The Minister says the consideration should weigh heavily against revocation of the Reviewable Decision.[114]
[113] HB pp 298-300.
[114] HB pp 134-135.
I have found that the Applicant’s index offences and other conduct are very serious for the reasons outlined above. I have also found that the Applicant says he is committed to rehabilitation, but since being released from prison he has not made any arrangements for counselling or rehabilitation courses. He undertook a rehabilitation course whilst in prison. I also note that in sentencing, Judge Flynn remarked that it is in the interests of the community and the Applicant that he would have access to services after release.[115] I have found that on balance there is at least a moderate likelihood of the Applicant reoffending.
[115] HB p 46.
The expectation of the Australian community is that a non-citizen who engages in serious conduct in breach of the expectations of the community that they ought to obey Australian law, ought not to be allowed to remain in Australia.
In weighing this consideration, I am also guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
However, the principles also note the increased tolerance afforded to non-citizens who have been in the community from a very young age or for most of their lives. The Applicant spent his adult life in Australia, and his life as a child was traumatised by being a refugee in Iran. I accept the expert opinion of Mr Cummins that the childhood of the Applicant was severely traumatic, that he likely suffers major depressive disorder, and that he could benefit from receiving mental health treatment, counselling and medication.[116]
[116] HB p 319.

Overall, the nature of the character concerns and offences for which the Applicant has been convicted is such that the Australian community would not expect the Reviewable Decision to be revoked. Accordingly, the expectation of the Australian community weighs very seriously against revocation. The Applicant contends that I should accord ‘reduced’ weight to this consideration in light of compelling countervailing factors. In my final assessment I weigh all the considerations holistically.
Overall, I consider this primary consideration weighs very seriously against revocation.
Other considerations
Paragraph 9 of Direction no. 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Other Consideration 1: Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[117]
[117] Direction no. 110, para 9.1.
While this consideration in Direction no. 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
(a)Unlawful status;
(b)The likelihood of becoming subject to detention and/or removal;[118]
(c)Refusal of other visa applications and cancellation of other visas;[119]
(d)A prohibition on applying for other visas;[120] and
(e)Periods of exclusion and special return criteria may apply.[121]
[118] Migration Act, ss 189, 196, 197C, 198.
[119] Migration Act, s 501F.
[120] Migration Act, s 501E.
[121] Migration Act, s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[122] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[123]
[122] Migration Act, s 15.
[123] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
Nevertheless, the obligation to remove an unlawful non-citizen under s 198 does not arise if a ‘protection finding’ has been made in respect of a finally determined protection visa application.[124] In this case there is not a protection finding. This means that any claims for protection may yet be assessed under s 36A of the Migration Act.[125]
[124] Migration Act, s 197C(3).
[125] HB p 301.
In M1/2021,[126] the High Court considered the following question:
In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
[126] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)) (M1/2021).
The High Court found that in deciding whether there was ‘another reason’ to revoke the Reviewable Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, where the plaintiff remained free to apply for a protection visa under the Migration Act:[127]
(1)the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;
(2)Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3)to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
[127] M1/2021 at [9].
An affirmation of the Reviewable Decision does not preclude the Applicant from seeking a protection finding pursuant to s197C(3) of the Migration Act. Since there is not a protection finding, para 9.1.2 of the Direction applies to the Applicant.
Although the Tribunal may defer an assessment of whether the Applicant was owed non-refoulement obligations, it remains discretionary. If the Reviewable Decision is affirmed, and if the Applicant applies for a protection visa, the Applicant may not be removed from Australia until the finalisation of the protection-application. The Applicant says that deferring the assessment would be an ‘improper exercise of that discretion and would lead to a perverse outcome.’[128] I do not intend to defer the assessment since there is no compelling reason for me to so exercise my discretion.
[128] HB p 356.
It is not contested by the Minister that the Applicant may face serious harm and persecution if he were to be returned to Afghanistan, due to his religious beliefs, his minority-speaking language, him being from a minority ethnicity, and him being of social group that is regarded as ‘westernised’.[129] The Minister has said that the Applicant will not be deported to Afghanistan if the Reviewable Decision is affirmed. I find there is a potential for Australia’s non-refoulement obligations to be engaged if the Reviewable Decision is affirmed since the Applicant faces a real chance of persecution pursuant to s36 of the Migration Act.
[129] HB p 137.
The Minister says that for the foreseeable future there is no real prospect that it will be practical to deport the Applicant to Afghanistan.[130] The Applicant would not be deported to Afghanistan if the Reviewable Decision is revoked. But, on the other hand, the effect of the NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Anor [2023] HCA 37 (NZYQ) is that the Applicant cannot be held in detention indefinitely. This is because where the statutory duty to remove a non-citizen has arisen pursuant to s 198 of the Migration Act, the detention will no longer be supported by ss 189 and 196 of the Migration Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. This is why the Applicant has been issued with the Bridging visa.
[130] HB p 137.
The Applicant says that he is at risk of being deported to another host nation, likely Nauru. According to Mr Nguyen the Minister has entered into an arrangement with the island nation that persons such as the Applicant who form part of what is called the NZYQ-cohort, will be deported to the island. Even if such an arrangement has not been finalised, the Applicant will, according to Mr Nguyen, be in ‘legal limbo’ since under the Bridging visa he would face severe restrictions as far as permanency in Australia is concerned. The Applicant explains in its submissions that an adverse decision under s 501 or 501CA of the Migration Act does not imply that to a country in respect of which a non-refoulement obligation exists, removal arises since other options include removal to a third country, or the exercise of Ministerial powers to grant another visa or residence determination.[131] The Applicant contends that affirmation of the Reviewable Decision may place the legal status of the Applicant in such uncertainty that it may be in conflict with Australia’s international commitments.[132] The Applicant says this consideration ought to weigh strongly in favour of revocation and that substantial weight should be given to this consideration.
[131] HB p 302.
[132] HB p 302.
The Minister says I may only have regard to the ‘direct and immediate statutorily prescribed consequences’ on non-revocation of the Reviewable Decision. The Minister says it is not open to me to speculate about what policies may be adopted or agreements concluded in future that may impact on the Bridging visa of the Applicant, however real those prospects are (Ali v Minister of Immigration and Border-Protection [2018] FCA at [31]-[33]). The Minister says although the Applicant may face a higher degree of uncertainty as compared to other non-citizens on a permanent visa, and although there is a possibility that the Applicant may become subject to s 76AAA of the Migration Act, this remains speculative and cannot be regarded as a direct and immediate legal consequence.
Direction 110 paragraph 9.1.2 mandates that I consider claims arising from Australia’s non-refoulement obligations even when no formal finding exists as is contemplated in the case of paragraph 9.1.1. Such a claim by the Applicant ‘must be considered’ although not to the same detail as a protection visa application. The risk associated with refoulement must be weighted as part of ‘other considerations.’
It is said by the Applicant, and accepted by the Minister, that he is likely to face serious risk of persecution if he were to return to Afghanistan. This is due to his minority faith being Shia, language being Dari, and minority ethnicity, inability to speak the majority language Pashto, and his apparent westernisation. I find that the fear of the Applicant to be returned to Afghanistan is well-founded and not controverted by any other evidence. The applicant has a well-founded fear of persecution, in the sense of a real chance of serious harm for reasons of religion, nationality, or membership of a particular social group that is regarded as westernised, if he were to be returned to Afghanistan. This is consistent with the warning by the Australian government for Australians not to visit Afghanistan. Although I did not hear any country specific evidence, the Minister did not take issue with the written and oral evidence of the Applicant or the submissions of Mr Nguyen about the risks he is likely to face if returned to Afghanistan. I agree with the Applicant that this risk faced by the Applicant ought to be weighed seriously in my consideration.
The parents of the Applicant and his cousin also spoke about the substantial risks faced by the Applicant if he were to be deported. Being without a social network, of a minority ethnicity, religion and language, and having lived in Australia for such a long time would not only cause him to be completely isolated, but at worst to be persecuted and killed.
The added complexity is that if the Reviewable Decision is affirmed but the Applicant cannot be deported to Afghanistan, he remains in Australia on the Bridging visa with a high level of uncertainty attached. The Applicant raised the possibility of him being deported to Nauru and says such a possibility should weigh very heavily in favour of revocation.[133]
[133] HB p 305.
While I accept the submission that deportation to Nauru is a possibility, there are also other possible outcomes for the Applicant should the Reviewable Decision be affirmed, for example, he could apply for a protection visa, or the Minister may intervene to grant another visa, or he may never be deported due to Ministerial discretion.
It is therefore not an necessary legal outcome that affirming the Reviewable Decision would automatically imply that the Applicant is deported to Nauru. Whilst I agree with the Applicant that the Bridging visa leaves him in a state of some uncertainty, I do not accept the submission by the Applicant to the effect that he will be or is highly likely to be deported. That is speculative and does not take account of the other avenues at the disposal of the Applicant. The risk of deportation to Nauru is potentially mitigated by the other possible legal outcomes.
I am on balance of the view that moderate weight should be given to this consideration.
In conclusion, I find that this consideration weighs moderately-serious in favour of revocation of the Reviewable Decision.
Other Consideration 2: Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in subparagraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under subparagraphs 9.2(1)(a), (b) and (c) are:
(a)The Applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the Applicant in their country.
The Applicant says this consideration should weigh very seriously in favour of revocation of the Reviewable Decision,[134] whilst the Minister says it weighs no more than slightly in favour of revocation.[135]
[134] HB pp 304-305.
[135] HB p 139.
The Applicant says he suffers significant vulnerabilities, particularly in respect to his mental health. In this respect Mr Cummins has diagnosed him as suffering major depressive disorder. Added thereto the lack of education would limit the ability of the Applicant to adapt and adjust to a new situation. He is unable to speak Pashto, which is the dominant language in the country. He has no family, friends or any social contacts in Afghanistan. The impediments he would face are ‘insurmountable’ and contrast sharply to Australia where he has spent all of his adult life. His father said he would be treated as an infidel or non-believer and live under the fear of death.
The Minister says this consideration should ‘at most’ weigh ‘slightly’ in favour of revocation because the likelihood of deportation to Afghanistan is not reasonably practicable in the foreseeable future. If the Applicant were to be deported, he would have access to the same mental health and other health care services as other persons in Afghanistan. The same applies to economic and social support services. Whilst these may not be to the same standard as in Australia, the Applicant would have access to what is available to other inhabitants. The Applicant can speak Dari, which is an official language of Afghanistan.
On the evidence before me I find that, due to the state of the Afghan state of government and administration, the impediments faced by the Applicant, the risk of him being persecuted, and the lack of social, medical and/or economic support for a person with his background, ethnicity, and overseas residence, this consideration should weigh seriously against revocation. The Applicant is 38 and is still of working age to make a new start, but in the circumstances he is likely to find himself it would be hard if not impossible.
I find that the Applicant is highly likely to face significant emotional, economic, social, and cultural hardship with respect to establishing himself in Afghanistan and to maintain a basic living standard in the context of what is generally available to other citizens. The minority status of the Applicant together with his lack of social supports, linked with his long stay in Australia, would likely combine to be serious impediments on him establishing himself.
Added thereto, his separation from family members in general and his son in particular if returned to Afghanistan is likely to have a very serious emotional impact on the Applicant. The concern was raised in evidence by AH that the Applicant may suicide rather than to return to Afghanistan.
In respect of possible impediment or impediments the Applicant may face in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Nauru, the Minister submits it is not a relevant to my consideration, whilst the Applicant expressed concern about the legal implications should he be removed to Nauru but did he did not give any evidence about any specific barriers that the Applicant might face. I nevertheless take into account that although being sent to Nauru is not necessarily a direct consequence if the Reviewable Decision is affirmed, the Applicant is likely to encounter significant language and cultural barriers due to him being Afghan-Australian.
Overall, I find that the Applicant is very likely to encounter substantial difficulty establishing himself were he to return to Afghanistan and those impediments should weight very seriously for revocation.
On balance, I find that this consideration weighs very seriously in favour of revocation of the Reviewable Decision.
Other Consideration 3: 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.
The Applicant says he has experience as a painter with high level of skill as displayed while in prison as well as in the private sector.[136] He is employed and the employer is willing to consider sponsoring him for another visa. The consideration should be given minor weight in favour of revocation since the impact of the Applicant’s deportation would not affect any major project or an important service.
[136] HB p 308.
The Minister accords neutral weight to this consideration because the painting work in which the Applicant is involved in does not constitute a major project or an important service as contemplated by Direction 110.
I find that the impact of deportation would have a negligible influence on Australian business. The Applicant has had limited work experience in Australia, his service was terminated on 3 occasions due to drug use, and he has been in his current position only for a few months.
I find that this consideration weighs neutrally concerning the proposed revocation of the Reviewable Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is ‘another reason’ why the Reviewable 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.
I must weigh the various primary and other relevant considerations outlined in Direction no. 110 against each other and undertake an evaluation of whether there was ‘another reason’ why the Reviewable Decision should be revoked.
In determining the weight to be applied to each consideration, I have 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. I have gone on to compare and balance all of the considerations to determine whether the Reviewable Decision should be revoked.
In my examination of the primary considerations and other considerations, I have assessed the evidence in respect of each consideration and then weighed the consideration on a scale of the following categories: very low, low-moderate, moderate, moderate-serious, very serious, and neutral.

I have considered all the primary considerations. I find that the protection of the Australian community weighs seriously against revocation in respect of the Reviewable Decision.
I find that the consideration of family violence weighs neutrally in respect of the Reviewable Decision.
I find that the strength, nature and duration of the Applicant’s ties to Australia weigh very seriously in favour of revoking the Reviewable Decision.
I find that the best interests of the children identified as being impacted by the decision weigh very seriously in favour of revocation of the Reviewable Decision.
I find that the expectations of the Australian community weigh against revocation and I find this consideration should be afforded very serious weight against revocation of the Reviewable Decision.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, I find that the legal consequences if the decision is affirmed moderately-serious weight in favour of revocation of the Reviewable Decision.
I find that the extent of impediments if removed is afforded very serious weight in favour of revocation of the Reviewable Decision.
I find that the impact on Australian business interests is afforded neutral weight.
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. The evidence before me in inadequate to cause me to find that this general principle should not apply in the Applicant’s case, although I take account of the fact that if the Reviewable Decision is affirmed, the Applicant will not be deported to Afghanistan,[137] the Applicant will remain in Australia on the Bridging visa and therefore in the community, and the Applicant may in due course be sent to another country. A proposition could be made that being on the Bridging visa may deter the Applicant from reoffending and hence the risk to the Australian community is reduced. Such a proposition is highly speculative, particularly in light of the Applicant’s previous conduct. On balance, although I have accorded serious weight to other considerations when viewed individually, on balance the protection of the Australian community prevails.
[137] DVRL v MIAC [2025] FCA 876 at [46].
Having weighed the considerations in favour of the revocation of the Reviewable Decision and the considerations against revocation, I therefore find 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 considerations weighing in favour of revocation being the primary and other considerations of the strength, nature and duration of ties to Australia, the best interests of minor children, the legal consequences of the decision, and extent of impediments if removed. The considerations of family violence and impact on Australian business interests are given neutral weight. I reiterate that concern expressed by the Applicant that a consequence of affirming the Reviewable Decision is for him to be sent to Nauru, is not necessarily made out and is speculative since other possible outcomes may also eventuate.
The parents of the Applicant made heartfelt and emotional pleas for me to revoke the Reviewable Decision. Their evidence was touching and desperate. My role is to apply the law fair, just, and to the best of my ability. I do feel truly sorry for them that after their experience as refugees, they now experience the trauma of this proceeding.
In summary, having regard to all the primary considerations, and the relevant other considerations in Direction no. 110, I am satisfied that there is not ‘another reason’ why the Reviewable Decision should be revoked.
DECISION
The Tribunal affirms the decision under review.