Walker and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 851

Walker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 851 (30 June 2025)
Applicant: Manahi Witeri Walker
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3065

Tribunal:General Member L M Gallagher
Place:Perth
Date:30 June 2025

Decision:The decision of the delegate of the Respondent dated 4 April 2025 not to revoke the cancellation of the Applicant’s Special Category (Temporary) Class TY Subclass 444 visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s Special Category (Temporary) Class TY Subclass 444 visa is revoked under s 501CA(4).

……………[SGD]…………………………………..
General Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 56 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is set aside
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
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
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the ‘Delegate’) dated 4 April 2025, not to revoke the mandatory cancellation of his Special Category (Class TY) (subclass 444) visa (the ‘Visa’) under s 501CA(4) of the Migration Act1958 (Cth) (the ‘Migration Act’) (the ‘Reviewable Decision’).[1]
[1] Exhibit R1, Document 1, G4.
The application for review was lodged with the Administrative Review Tribunal (the ‘Tribunal’) on 7 April 2024, within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
s 500(1)(b) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 23 year old citizen of New Zealand.[2]
[2] Exhibit R1, Document 1, G10, p 64 (HB 68).
The Applicant first arrived in Australia on 23 December 2001, when he was four months old.[3] The Applicant has departed Australia on four occasions.[4]
[3] Exhibit R1, Document 1, G10, p 83 (HB 87).
[4] Exhibit R1, Document 1, G12.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission run on 14 October 2022[5] and a History for Court Report by the Western Australian Police Force compiled on 6 May 2025.[6]
[5] Exhibit R1, Document 1, G6.
[6] Exhibit R1 Document 4, S1, pp 1-13 (HB 137-139).
The Applicant’s offending history is compiled in Annexure A.
The Applicant’s criminal offending commenced in 2020. Between 6 August 2020 and 12 April 2021, the Applicant was convicted of several offences in the Kalgoorlie Magistrates Court, including:[7]
(a)No authority to drive;
(b)Drove under the influence of alcohol;
(c)Stealing;
(d)Burglary and commit;
(e)Possessed drug paraphernalia in or on which there was a prohibited drug or plant; and
(f)Criminal damage or destruction of property.
[7] Exhibit R1, Document 1, G6.
On 27 May 2022, the Applicant was convicted in the District Court of Western Australia of the following offences:[8]
(a)Re-offending whilst subject to a Conditional Release Order or Community Order (no orders were made in relation to this breach);
(b)Two counts of person who steals uses or threatens violence to person/property (sentenced to three years imprisonment and 10 months imprisonment, respectively) (‘index offending’); and
(c)Three counts of breach of CBO (fines totalling $1,150).
[8] Exhibit R1, Document 1, G6.
The Applicant’s index offences were committed on 28 September 2021.[9] The circumstances of the index offending are:
(a)The Applicant attempted to rob a person on a bus. The victim was 19 years old with autism who, according to the sentencing Judge ‘was not prepared for a physical confrontation’.[10] The sentencing Judge also noted:[11]
Count 1 involved actual violence, as you punched the victim unexpectedly in the face which was completely unprovoked. The offending in count 1 was also persistent as you threatened the victim for a moment or two before following the victim, who was trying to get away from you, and you continued to act threateningly towards him. Also your offending occurred while you were on a six-month community-based order.
(b)The Applicant confronted two people at a liquor store while carrying a knife. The sentencing Judge remarked:
The victims of count 2 were vulnerable, having regard to the knife that you were carrying, and they were providing a service to members of the public which compels the need for some deterrent response.
[9] Exhibit R1, Document 1, G7, p 53 (HB 57).
[10] Exhibit R1, Document 1, G7, p 50 (HB 54).
[11] Exhibit R1, Document 1, G7, p 50 (HB 54).
Present proceedings
On 4 February 2017, the Applicant was granted the Visa.[12]
[12] Exhibit R1, Document 1, G13, p 84 (HB 88).
On 28 November 2022, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c), him serving a sentence of imprisonment of 12 months or more on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state, or territory (the Cancellation Decision).[13] The Applicant was notified by letter of the same date, which he received by hand delivery to Acacia Prison.[14]
[13] Exhibit R1, Document 1, G13.
[14] Exhibit R1, Document 1, G13.
On 30 November 2022, the Applicant made a request for revocation of the Cancellation Decision under s 501CA of the Migration Act,[15] and made representations to the Delegate in support of his request on 7 June 2023.[16]
[15] Exhibit R1, Document 1, G9.
[16] Exhibit R1, Document 1, G10 and G11.
On 4 April 2025, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[17] The Applicant was notified of the Reviewable Decision by email dated 7 April 2025.[18]
[17] Exhibit R1, Document 1, G4.
[18] Exhibit R1, Document 1, G3.
On 7 April 2025, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[19]
[19] Exhibit R1, Document 1, G2.
The Applicant is currently detained at Yongah Hill Immigration Detention Centre.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[20]
LEGISLATIVE FRAMEWORK
[20] See Migration Act s 501CA(4).
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse 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:
6For 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:
6For the purposes of the character test, a person has a substantial criminal record if: …
(c)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 persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result 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) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[21] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the cancellation decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[21] Migration Act s 501CA(3).
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the cancellation decision should be revoked.[22]
[22] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 18 June 2025 at the Tribunal’s Perth Registry. The Applicant was self-represented and appeared in-person. The Respondent was represented by Mr Cohen Dietrich of Minter Ellison and appeared via video link.
At the hearing, the Applicant gave evidence and was cross-examined. The Applicant’s mother, Ms Maria Davies and sister, Ms Tess Walker, gave evidence in person and were cross-examined.
The following document was marked as Exhibit R1:
(a)Joint Hearing Bundle filed by the Respondent on 13 June 2025.
The Tribunal has taken into account the Applicant’s statements,[23] the letters of support from Ms Davies,[24] Ms Walker,[25] the Applicant’s friend, Mr Jarred Holthaus,[26] and minor age sister, Miss T.[27]
[23] Exhibit 1, Document 1, various.
[24] Exhibit R1, Document 7.
[25] Exhibit R1, Document 8.
[26] Exhibit R1, Document 6.
[27] Exhibit R1, Document 9.
At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘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’), in their oral closing submissions.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7).
Relevant to the Applicant’s case, a person has a ‘substantial criminal record’ if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[28] Failure to pass the character test arises as a matter of law.[29]
[28] Migration Act s 501(7)(c).
[29] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, 685 [63].
As noted above, on 27 May 2022, the Applicant was convicted in the District Court of Western Australia two counts of ‘person who steals uses or threatens violence to person/property’ and sentenced to three years imprisonment and 10 months imprisonment, respectively.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[30]
[30] Migration Act s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction no. 110, there is ‘another reason’ why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[31]
[31] Migration Act s 501CA(4)(b)(ii).
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably, and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
Direction no. 110
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No. 99.[32]
[32] Direction no. 110 paras 2 to 3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of the Migration Act.[33] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction
[33] Direction no. 110 para 5.1(4).
[34] Direction no. 110 para 6.
no. 110 where relevant to the decision.[34]
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’, including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the ‘primary considerations’ to be taken into account by the Tribunal are:[35]
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; and
5expectations of the Australian community.
[35] Direction no. 110 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[36]
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
[36] Direction no. 110 para 9.

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:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In his application for review, the Applicant claimed that the Reviewable Decision is wrong because:[37]
[i] [sic] feel like the decision was inconsiderate and rushed a little bit. And because I [sic] would like to continue to remain in Australia, all my immediate family reside in Australia and are Australian citizens.
[37] Exhibit R1, Document 1, G2, p 15 (HB 19).
The Tribunal understands the Applicant’s position to be that the Cancellation Decision should be revoked, and he ought to be permitted to remain in Australia given he has lived in Australia from a young age and that all of his family members live in Australia.
The Respondent, however, contended that there is not ‘another reason’ why the Cancellation Decision should be revoked because the primary considerations of the protection of the Australian community and the family violence and expectations of the Australian community considerations weigh determinatively and heavily against revocation, respectively,[38] and outweigh any weight in favour to be afforded to the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children, and the extent of impediments if removed.[39]
[38] Exhibit R1, Document 2 [22] and [43] and Document 3 [10] and [11].
[39] Exhibit R1, Document 2 [55] and Document 3 [11].
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 as a result of criminal activity or other serious conduct by non-citizens’.[40] 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.[41]
[40] Direction no. 110 para 8.1(1).
[41] Direction no. 110 para 8.1(1).
Paragraph 8.1(2) of Direction no. 110 then provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
As noted above, the Minister contends that the protection of the Australian community consideration weighs determinately against revocation of the Cancellation Decision.[42]
[42] The Applicant made no specific contention regarding this primary consideration.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[43] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are 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.[44]
[43] Direction no. 110, para 8.1(1).
[44] Direction no. 110, para 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction no. 110 provides:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard 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;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen 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 non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
When it was put to him at the hearing that the sentencing Judge had remarked that the victim of count 1 of the index offending was a ‘19-year old with autism who was not prepared for a physical confrontation’,[45] the Applicant said that [his offending conduct] would have been troubling for the victim and it would not surprise him if it left the victim with significant trauma.
[45] Exhibit R1, Document 1, G7, p 50 (HB 54).
As to how the victim of count 1 of the index offending would feel about the Applicant’s offending, the Applicant said that having a family member living with autism and knowing that they ‘do things differently’, the victim would definitely struggle to cope with the trauma of the offending conduct.
When asked how the victims of count 2 of the index offending would feel about the Applicant’s offending, the Applicant said that the mother and child would still feel bad, if not worse and people should not have to worry about ‘things like that’ when going to a store. The Applicant said that his offending would have left some kind of trauma the victims, maybe for the rest of their lives.
When it was noted that the Applicant had been armed with a knife at the robbery at the liquor store, the Applicant said that he knew he could never have put it to use, that he held it in order to get away with his offending, and that he would have dropped it if he had been apprehended. The Applicant said that he is not really an unpredictable person, he was under the influence at the time of his offending, which he said is no excuse, but that he was aware of what he was doing and can recall the events of the offence.
The Applicant made no specific contentions regarding the nature and seriousness of his conduct. The Tribunal understands from the Applicant’s oral evidence that he accepts his offending behaviour is serious and regrets his offending generally, and in particular the index offending.
The Respondent submitted that the Applicant’s offending should be viewed as very serious, and weigh heavily against revocation, for the following reasons:[46]
(a)The Applicant’s offending involved violence, being actual violence as well as the threat of violence (by way of actual threats and threats by inference of the weapon he was carrying), and hence must be viewed as very serious.
(b)One or more of the index offences was committed against a vulnerable member of the community.
(c)The Applicant’s total term of imprisonment of three years and 10 months for his index offending reflects the seriousness of the offences, as recognised by the sentencing Judge.
(d)Having regard to the Applicant’s convictions prior to the index offending (between 6 August 2020 and 12 April 2021), the Applicant’s criminal history demonstrates a trend of increasing seriousness and has been frequent (while condensed in terms of timeframe).
(e)The cumulative effect of the Applicant’s repeated offending is serious and has resulted in significant use of police and court resources, noting the Applicant was on a 6-month community based order at the time of the index offending.
(f)The Applicant’s conduct demonstrates a wilful regard for the law and authority.
[46] Exhibit R1, Document 2 [23]
The Tribunal has considered the evidence and the parties’ related submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.
The Tribunal has regard to the fact that violent crimes are viewed ‘very seriously by the Australian Government and the Australian community’.[47]
[47] Direction no. 110, para 8.1.1(1)(a)(i).
The Tribunal notes the reports of family violence set out in the detected incident reports produced under summons by the Western Australian police force, dated 15 July 2020, 23 February 2021, and 26 September 2021.[48] The Applicant’s conduct reported in these reports should be considered ‘family violence’ as defined,[49] which are also viewed very seriously.[50]
[48] See Exhibit R1, Document S1, pp 13, 30, 31, 38 and 43 (HB 149, 166, 167, 174 and 179).
[49] See Direction no. 110 para 4(1).
[50] Direction no. 110, para 8.1.1(a)(iii).
This is regardless of the fact that there were no related convictions or sentences imposed.[51] This is also the view that has been taken by the Minister throughout Direction no. 110, and that has been consistently adopted by this Tribunal.[52]
[51] Direction no. 110, para 8.1.1(1)(a)(iii) and 8.1.1(1)(c).
[52] Including the former Administrative Appeals Tribunal.
Similarly, the Tribunal also notes the Applicant’s history of driving and traffic offences and its repeated position that driving and traffic offences are serious crimes against other road users[53] that place the lives of other road users at risk.
[53] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1, [51]-[54] and Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32, [50]-[51], referring within to Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561, [43]-[45].
The Applicant’s driving and drug offences further demonstrates the seriousness of the offending and the increased potential for catastrophic harm.
The Tribunal notes that the Applicant’s’ drug and driving/traffic offending, of which it considers to be very serious in nature, does not fall squarely within the conduct referred to in paragraph 8.1.1 of Direction no. 110. It is not strictly required to. Indeed, paragraph 8.1.1(1)(a) of Direction no. 110 makes clear that the range of conduct that may be considered ‘very serious’ is not limited to the types of crimes or conduct expressly referred to in that paragraph.[54]
[54] Direction no. 110, paragraph 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious,’ using the same prefix ‘without limiting the range of conduct that may be considered serious…’.
In considering paragraph 8.1.1(1)(b) of Direction no. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to a forced marriage,[55] whether the crimes were committed against vulnerable people, or government representatives or officials,[56] and any crime committed while in immigration detention.[57] In relation to paragraph 8.1.1(1)(b)(ii) of Direction no. 110, the Tribunal regards the victims of the Applicant’s index offences as vulnerable members of the community (as did the sentencing Judge.[58]
[55] Direction no. 110, para 8.1.1(1)(b)(i).
[56] Direction no. 110, para 8.1.1(1)(b)(ii).
[57] Direction no. 110, para 8.1.1(1)(b)(iv).
[58] See Exhibit R1, Document 1, G7, p 50 (HB 54). The victim of count 1, by virtue of his not being prepared for a physical confrontation; and the victims of count 2, as the Applicant was carrying a knife and providing a service to members of the public.
The Applicant’s principal offending involved conduct for which he was ultimately sentenced to three years and 10 months imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[59] and is, in the Tribunal’s view, probative of the overall seriousness of that offending conduct, noting that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[60]
[59] Direction no. 110, paragraph 8.1.1(1)(b)(iii).
[60] Direction no. 110, paragraph 8.1.1(1)(c).
The Applicant has a history of offending from 2020 to 2022 for a range of offences culminating in the index offending. In relation to the frequency of the Applicant’s offending and whether there is any increasing trend in seriousness,[61] the Tribunal takes into consideration that while the most recent index offending can objectively be regarded as the most serious in nature, the entirety of the Applicant’s offending occurred over a period of approximately 1.5 years. Similarly, while the Applicant’s offending is relatively frequent during this period, the convictions relates to offences that were committed on a total of five different dates.[62]
[61] Direction no. 110, paragraph 8.1.1(1)(e).
[62] Being 20 May 2020, 5 July 2020, 23 February 2021,16 March 2021 and 28 September 2021. See Exhibit R1, Document 4, S1, pp 1-3 (HB 137 to 139).
As to the cumulative effect of the Applicant’s repeated offending,[63] the Tribunal has taken into account the Respondent’s view that the Applicant’s offending has resulted in significant police and court resources along with the fact that this was the case over a relatively abridged period of time.
[63] Direction no. 110, paragraph 8.1.1(1)(f).
For completeness, the Tribunal notes that none of the Applicant’s offending or other conduct falls within the scope of paragraphs 8.1.1(1)(d), 8.1.1(1)(g), 8.1.1(h) or 8.1.1(1)(i) of Direction no. 110.
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has an extensive record, which includes very serious offending that occurred over a relatively condensed period of time.
Having regard to the evidence and matters relating to which paragraph 8.1.1 of Direction no. 110 are relevant, and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[64]
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[64] See also Direction no. 110, paragraph 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[65] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[66]
[65] Direction no. 110, paragraph 8.1.2(2)(a).
[66] Direction no. 110, paragraph 8.1.2(2)(b).
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.[67]
Nature of the harm
[67] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.
While the Applicant made no specific contentions regarding the nature of the harm should he reoffend generally, the Tribunal understands from the Applicant’s oral evidence that he has an appreciation of the harm caused to the victims of his index offending.
In relation to the nature of the harm, the Respondent submitted that 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] The Respondent also submitted that any reoffending of a similar nature would have the potential to cause physical and psychological harm to members of the Australian community.[69]
[68] Exhibit R1, Document 2 [27].
[69] Exhibit R1, Document 2 [27].

The Tribunal accepts that the Applicant has developed a level of insight into his offending, is genuinely remorseful, and that he understands the significant harm that would be caused to the Australian community should he engage in further offending.
That being so, the Applicant also accepts he has a criminal history that involved violent offending, drug offending and driving/traffic offending. In the Tribunal’s view, it is clear that, should the Applicant commit further serious offences, this would result in further serious harm that may cause considerable and widespread physical and psychological harm to members of the Australian community.
Whether the harm caused, if the Applicant were to reoffend in a similar way, is such that any risk it of it being repeated is unacceptable, is addressed below.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[70]
[70] Direction no. 110, paragraph 8.1.2(2)(b).
When it was put to the Applicant that the risk assessment conducted for the purpose of his treatment assessment report while at Hakea Prison stated that he presented a high risk for general reoffending and violent reoffending,[71] the Applicant said that he thought it quite unlikely that he would reoffend, his offending was so out of character, and that he has had a lot of time to think about it.
[71] Exhibit R1, Document 4, S2, p 100 (HB 236). See also Exhibit R1, Documents 3 and 5.
The Applicant said that he has completed the Pathways Program and the Violence Prevention Program that were recommended to him.[72]
[72] See certificates of completion at Exhibit R1, Documents 10 and 13.
The Applicant said that while completing the Pathways Program, he learned strategies on how to substitute drinking and drugs, ‘reward thinking’, that he paid attention in those classes and was always involved in the conversation, and that he was genuinely curious and ‘wanted to find things out’.
The Applicant said that the Violence Prevention Program went for one year and was the most important program because he learned how to cope, how to stabilise his emotions, how to communicate properly, and how to seek help when needed. The Applicant said that prior to completing this program, he was very withdrawn, socially awkward and ‘wouldn’t tell anyone anything’.
The Applicant said he has learned how to speak respectfully, has learned ‘perspective taking’, by putting himself in someone else’s shoes, giving the example of ‘what if his mum and younger sister had been the victims’ [of his index offending].
The Applicant said that he had attended alcohol and drug counselling, along with Alcoholics Anonymous when these classes had vacancies and hence were available to him.
When the Applicant was taken to his statement that his excessive alcohol use was one of the factors leading to his offending, and asked how the programs he has completed have assisted him and what strategies he had learned to refrain from future substance use, the Applicant said he intends to go back to work, so that he does not have ‘time on his hands’. The Applicant said that reducing free time was ‘a big thing for him’ and that he would also play sport, spend time with family, become more family oriented, re-engage with his church, and keep using the strategies that he has learned through his classes. The Applicant said that his main focus was on employment and ‘self-care’ and to pay attention to his problematic thoughts and emotions.
The Applicant was taken to the record in his Parole Review Report of him having used Buprenorphine on 4 May 2024, other than as prescribed,[73] had it put to him that this occurred at a time after he had completed the Pathways Program in June 2023,[74] and taken to his record of having stated he had ‘resorted to “snorting Suboxone” in prison to cope with the stress of potentially being removed from the country’.[75]
[73] Exhibit R1, Document 4, S2, p 84 (HB 220).
[74] Exhibit R1, Document 10.
[75] Exhibit R1, Document 4, S2, p 90 (HB 226).
When it was put to the Applicant further that these matters serve as evidence to demonstrate that the Pathways Program had negligible (rehabilitative) effect, the Applicant said that his actions were ‘just embarrassing’ and it had been a ‘foolish thing to do so close to parole’. The Applicant said that Suboxone had never been problematic for him, and this was the one and only time he had taken it in prison. The Applicant said that he was in the wrong company, foolish, tired, not thinking straight, had no excuse for doing so, and noted that his problematic substance is alcohol, which he has not consumed since the day of his index offending. The Applicant added that he sees alcohol differently now that he had so much to lose.
When asked how he would react if met with similar stress in the community, the Applicant said that he would talk to someone in his support network, including a member of his immediate family or a childhood friend, and would not take advice from the ‘wrong social peers’.
When asked, the Applicant confirmed that he had not completed any additional rehabilitation courses while in detention.
The Applicant said that if released, he could live with his immediate family in Merriwa. The Applicant said that his stepfather lives in Kalgoorlie and his mother is no longer in a relationship with him, and has not been around since 2021. The Applicant’s mother gave evidence that the Applicant’s stepfather visits his children in Perth in every two months, who live with her in the house that the Applicant’s stepfather owns. The Applicant’s mother explained that while they are no longer in a relationship, the Applicant’s stepfather assisted her with their children last year when she underwent heart surgery.
The Applicant’s mother said that if released, the Applicant could live with his grandmother, who lived near to her.
When taken to his statement that ‘[m]um and [his stepfather] would use Meth [sic] and sometimes had bad arguments’,[76] the Applicant said that this had occurred on a few occasions from when he was about 10 years old to when he was about 15 years old. The Applicant said that ‘you absorb a lot being that young and it shapes you’. The Applicant said that the violent altercations he had had with his stepfather led him to ‘not deal well with conflict’, and he does not like to fight or raise his voice.’
[76] Exhibit R1, Document 1, G11, p 78 (HB 82).
The Applicant said that his mother definitely does not use substances at home or elsewhere and he can tell if she is as ‘he can see it’. The Applicant said that in the past his mother had used alcohol when she smoked methamphetamine, which ‘tended to make it worse’ and she ‘raised her voice and broke stuff’. The Applicant said that his mother does not use any substances now.
The Applicant’s mother gave evidence that she used methamphetamine consistently, meaning weekly or fortnightly, over maybe two years, last used in 2023 prior to her heart surgery, and has not used since. The Applicant’s mother said there is no alcohol in the home and she only drinks occasionally, for example at Christmas and birthdays.
The Applicant’s mother said, if he were returned to the community, she could help the Applicant ‘not use drugs’ by talking to him and attending church with him.
When asked about the Applicant’s relationship with his stepfather, the Applicant’s mother said that they did not get along when the Applicant was a teenager and a fight between them had resulted in the Applicant being arrested, following her call to the police when the Applicant had been drinking.[77]
[77] See Exhibit R1, Document 4, S1, p 30 (HB 166).
The Applicant’s sister, Ms Walker also gave evidence that when the Applicant was drunk, it would last a few days and wasn’t easy for the household as it became an addiction for the Applicant. Ms Walker said that alcohol had impacted how she and the Applicant got along, however now the Applicant is more composed, calm, gentle, and softly spoken. Ms Walker said that she is committed to keeping the Applicant grounded and busy and encourages him to re-engage with his faith, herself having been involved in church for the last five or six years.
The Applicant’s mother said that there is no longer any drug or alcohol use in the household and ‘everyone is sober now’.
When taken to his documented action plan,[78] the Applicant added he would seek to

re-engage with Hope Community Services (‘Hope’), which had been effective ‘for a year or two’ previously. When asked, the Applicant said he was not engaged with Hope at the time he breached his community-based order.
[78] Exhibit R1, Document 1, G11, p 82 (HB 86).
The Applicant said he also intended to ease into his reintegration with the community and had a ‘genuine interest’ in being placed on an intensive supervision order to have surety that he will continue to get help.[79]
[79] See also Exhibit R1, Document 1, G11, p 84 (HB 86).
When asked what he considered his risk of ‘straying from help’ would be if he were not subject to such an order, the Applicant said that there was ‘a risk’ but that he was ‘pretty confident’ [he would not stray].
The Applicant said that he had obtained his ‘white card’ (construction induction card) and has achieved his ‘working at heights’ accreditation.[80] When asked where he would work if released, the Applicant said he would try his luck to start an apprenticeship as a bricklaying contractor and if not, his childhood friend, Mr Holthaus could refer him for landscaping work or he could do brick labouring. The Applicant said he has also completed some vocational training[81] and has ‘a few more options this time around’. The Applicant said he would consider a welding apprenticeship, welding being something he ‘was quite good at’.
[80] See Exhibit R1, Documents 11 and 13.
[81] Exhibit R1, Document 11.
The Applicant submitted that his offending ‘can’t sum up his life’, and that he does not want to be labelled as a reckless person. The Applicant also submitted that he was only young since the offending took place, he has never consumed alcohol since his offending, ‘done plenty of good things’ since his offending, and that his punishment of imprisonment and detention has served as a deterrent.
The Applicant submitted that he has completed almost all of his order and that the Tribunal should look past the single instance of his Suboxone use.
The Applicant submitted that whilst it is no excuse, being separated from his family and at a time his mother had to undergo heart surgery was ‘a lot to deal with’ and he feels a great deal of remorse for his offending.
As to the Respondent’s proposition that his desire to be subject to an intensive supervision order if released places him at a risk of reoffending if he strayed from help, the Applicant said that no-one is a zero risk of reoffending and rather, being subject to such as order would present him with the opportunity to demonstrate that he could abide by it.
The Respondent contended that there is a real and unacceptable risk that the Applicant will reoffend because:[82]
(a)The Tribunal cannot be satisfied that the Applicant has taken sufficient steps to rehabilitate, or that he is now rehabilitated, in circumstances where:
(i)The Applicant’s abuse of drugs and alcohol is long standing and previous interventions to address these issues were unsuccessful.
(ii)Any rehabilitation following imprisonment has not been tested against the stressors of the unsupervised environment of the open community, placing him at significant risk of reoffending.
(iii)The Applicant’s mother’s and stepfather’s previously used drugs in the family home and he was residing with his mother at the time of the index offending.
(b)Even if the Tribunal finds the risk of reoffending is low, it is entitled to conclude that even a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious.
[82] Exhibit R1, Document 2 [30]-[32].
The Tribunal has considered the available evidence and the parties’ submissions and makes the following comments and findings:
(a)Given the significant risk of harm from drug offending and traffic offending, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community.
(b)The index offending also presents significant risk of harm if repeated, particularly physical and psychological harm.
(c)Regarding the risk of the Applicant reoffending in the future, the Tribunal considers that the Applicant has taken the opportunity during his prison term to participate in measures specific to drug and alcohol rehabilitation as well as violence prevention. The Tribunal also had regard to the Applicant’s plan to re-engage with services if released, the fact that his mother is sober, and his willingness to be subject to supervision (which it does not consider indicates a particular susceptibility (in itself) to risk of reoffending or ‘straying without help’ as proposed).
(d)However, the Tribunal also takes into consideration that the Applicant has not used drugs for almost four years, including in the open community, in prison, and in detention, with drugs being readily available in all three environments.
(e)The Applicant has, in the Tribunal’s view, expressed remorse for his offending, particularly his index offending and has demonstrated insight into the potential risks of his offending and the related potential for future harm.
(f)The Tribunal also accepts that as such, the Applicant will continue with his rehabilitative efforts if released as he claims he will.
(g)The Tribunal has considered the sentencing Judge’s assessment of the Applicant’s offending as being on the ‘lower end of the scale’[83] along with his treatment assessment report that he presented a high risk for general reoffending and violent reoffending.
(h)The Tribunal notes that several of the significant risk factors relating to that assessment, such as anti-social peer relationships, entrenched substance abuse, and violent lifestyle are no longer present.
(i)The Tribunal does not adopt the Minister’s position that any rehabilitation the Applicant may have achieved should be given no weight in circumstances where the Applicant tested positive for Buprenorphine where the Applicant has otherwise not used any substances for almost four years, in particular methamphetamine and alcohol.
(j)Similarly, the Tribunal does not consider that the Applicant’s gains in the Pathways and Violence Prevention programs has been limited[84] in circumstances where the Applicant has abstained from methamphetamine and alcohol for almost four years, including in the prison and detention environments where these substances are readily available.
(k)In light of the above, the Tribunal is of the opinion that, while there is a real risk that the Applicant will offend in a similar manner, it is a low risk.
(l)The Tribunal also finds that it is not the case that the presence of this risk is unacceptable in circumstances where the Applicant has not used any substances since September 2021, he has family support in a sober environment, he has demonstrated an awareness of the consequences should he reoffend, and he has a feasible plan for release.
[83] Exhibit R1, Document 1, G7, p 51 (HB 55).
[84] See Exhibit R1, Document 3 [6].
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs moderately against revocation.
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:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since Otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
‘Family violence’ is defined in para 4(1) of Direction no. 110 as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
For the purposes of the definition of family violence in Direction no. 110, ‘member of the person’s family’ includes the Applicant’s mother and stepfather.
The Tribunal is required to consider whether family violence considerations arise on any of the submissions, material, or evidence before the Tribunal.

It is not in dispute that the reports of family violence noted above, being those set out in the detected incident reports produced under summons by the Western Australian police, dated 15 July 2020, 23 February 2021, and 26 September 2021 constitute family violence conduct for present purposes as it involved actual and threatened violence, and irrespective of the fact there were no related convictions or proven charges.[85]
[85] See Direction no. 110, paragraph 8.2(b).
The Respondent submitted that this consideration should weigh heavily against revocation of the Cancellation Decision in circumstances where the conduct involved actual and perceived threats of violence, including with a weapon, where the Applicant was intoxicated on each occasion and where, in its view, there is little evidence of rehabilitation.[86]
[86] Exhibit R1, Document 3 [9] and [10].
The Tribunal has considered the Respondent’s submissions along with the low frequency of these incidents, the last incident having occurred almost four years ago, the Applicant’s engagement with rehabilitation for violent offending, his acceptance of responsibility for his actions and his efforts to abstain from alcohol in circumstances where his alcohol abuse was a repeated factor relating to his family violence conduct.
For completeness, it does not appear that the Applicant was formally warned or otherwise made aware about the consequences of further family violence, noting that the absence of a warning should not be considered to be in the Applicant’s favour.
Accordingly, the Tribunal considers that the family consideration weighs slightly against revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
1Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant said that prior to his incarceration, he saw his family almost daily.
When asked, the Applicant said that his family visited him in prison approximately once per month, as well as keeping regular contact. The Applicant said that his family had visited him in detention last week as well as a few months prior.
The Tribunal has considered the Respondent’s submissions regarding the Applicant’s strength, nature, and duration of ties to Australia[87] along with the available evidence, and finds this consideration weighs heavily in favour of revocation of the Cancellation Decision, for the following reasons:
(a)The Applicant has spent almost all of his life in Australia, having arrived at four months of age.[88]
(b)Almost the entirety of the Applicant’s family reside in Australia, including his mother (who he describes as his ‘best friend’), his stepfather, siblings, and extended family.
(c)It is evident to the Tribunal that the Applicant has a close relationship with his mother, his grandmother, and his sisters (including his minor age sister), who will continue to support him and accommodate him on his release. It is plain to the Tribunal the devastating impact the Applicant’s removal would have on his family, particularly his mother.
(d)In particular, the Tribunal accepts that the Applicant clearly regrets the impact his offending behaviour has had on his mother.
(e)The Applicant also spent some time positively contributing to the community prior to his incarceration, through employment and playing rugby union.[89]
[87] Exhibit R1, Document 2 [36]-[38].
[88] Direction no, 110, paragraph 8.3(2)(a)(i).
[89] Direction no. 110, paragraph 8.3(2)(a)(ii) and Exhibit R1, Document G10, p 79
In the circumstances, the Tribunal finds that the strength, nature and duration of ties consideration weighs very heavily in favour of revocation of the Cancellation Decision.
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 about whether cancellation or refusal under s 501… is, or is not, in the best interests of’ children who are under the age of 18 at the time the decision is expected to be made.[90] 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’.[91]
[90] Direction no. 110, paragraph 8.4(1)-(2).
[91] Direction no. 110, paragraph 8.4(3).
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 include:[92]
[92] Direction no. 110, paragraphs 8.4(4)(a)-(h).
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; [and]
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has identified his minor age brother (aged 17) and two minor age sisters (aged 17 and 16 years old) who may be affected by a non-revocation decision.
The Applicant gave evidence that all three of the minor children identified live with his mother, who is their primary carer. The Applicant said his stepfather visits them occasionally. The Applicant also said that when he was younger, he used to provide care to his minor age siblings ‘on and off’ during the week while his mother worked, or he would take them away for the day when his mother and stepfather had been fighting and using methamphetamine.
The Applicant stated he is a positive role model to his younger brothers, showing them how to play rugby and basketball, and that he wants to change his life in order to show them how to go about making the right decisions.[93]
[93] Exhibit R1, Document 1, G10, p 71 (HB 75).
The Applicant said that if released, he would gladly assist in providing assistance to his siblings, as he loves them.
Having considered the Respondent’s submissions in support of its contention that the Tribunal should afford only minimal weight in favour or revocation of the Cancellation Decision with respect to the best interests of minor children consideration,[94] and the available evidence, the Tribunal makes the following observations and findings:
(a)The evidence before the Tribunal is that the Applicant’s involvement in the day to day lives of his minor age siblings is comparable, and as such, their best interests will be considered together.[95]
(b)It is not in dispute that the Applicant’s relationship with his minor age siblings is non-parental[96] that role being fulfilled by their mother[97] and the children will have all turned 18 years of age in the next few years.[98] The Tribunal accepts the Applicant has a close relationship with his minor age siblings and has maintained contact during incarceration and detention as far as possible.
(c)There is no evidence before the Tribunal regarding the impact of the Applicant’s offending conduct on his minor age siblings,[99] however the Tribunal accepts the Applicant’s minor age siblings would be adversely affected if he were removed, irrespective of their being able to maintain contact via electronic means.[100]
(d)The Applicant’s minor age sister, Miss T, attests to their close relationship in her statement.[101]
[94] Exhibit R1, Document 2 [40]-[41].
[95] Direction no. 110, para 8.4(3).
[96] Direction no. 110, para 8.4(4)(b).
[97] Direction no. 110, para 8.4(4)(e).
[98] Direction no. 110, para 8.4.4(b).
[99] Direction no. 110, para 8.4(4)(c).
[100] Direction no. 110, para 8.4(4)(d).
[101] Direction no. 100, para 8.4(4)(f). Exhibit R1, Document 9.
For completeness, there is no evidence regarding the matters addressed in paras 8.4(4)(g) and 8.4(4)(h) of Direction no. 110.
Overall, the Tribunal finds that the best interests of the Applicant’s minor children weighs slightly in favour of revocation of the Cancellation Decision.
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:
[t]he Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) of Direction no. 110 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. In particular, 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 paras 8.5(2)(a)-(f) of Direction no. 110. Those particularised types of harm generally reflect the types of conduct identified in paras 8.1.1(a)-(b) as conduct which is considered ‘very serious’ 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 measureable [sic] 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 persons conduct or offending.[102]
[102] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208, [86]-[87].
Paragraph 8.5(4) of Direction no. 110 directs that:
[t]his consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above [in para 8.5], without independently assessing the community’s expectations in the particular case.
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.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction no. 110.
(a)Paragraph 5.2(2) states that ‘the safety of the Australian Community is the highest priority of the Australian Government’;
(b)Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, ‘should expect to… forfeit the privilege of staying in Australia’;
(c)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;
(d)Paragraph 5.2(5) states that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time; and
(e)Paragraph 5.2(6) states that with respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
The Applicant made no specific contention regarding the expectations of the Australian community in the present context.
In relation to the expectations of the Australian community, the Respondent submitted that this consideration weighs heavily against revocation of the Cancellation Decision because:[103]
(a)While Australia may have afforded a higher level of tolerance of criminal or other serious conduct of the Applicant given he has lived in Australia from a very young age, his offending conduct, in particular his violent offending against a vulnerable person, should be regarded as very serious such that the Australian community should expect he should not continue to hold a visa.
(b)Further, the Applicant has not sufficiently demonstrated that he has mitigated the risk of reoffending and causing further harm.
[103] Exhibit R1, Document 2 [43].
The Tribunal agrees with the parties that the expectations of the Australian community would be for the Applicant’s visa to remain cancelled such that this consideration weighs against revocation of the Cancellation Decision (and the associated reasons why this must be the case). As to the weight to be afforded to this consideration, the Tribunal attributes moderate weight against revocation in circumstances where:
(a)While the Applicant’s offending conduct, in particular the index offending and his acts of family violence, are regarded by Direction no. 110 as very serious, the Tribunal has also found that the Applicant presents a low, but not unacceptable, risk of reoffending; and
(b)The Applicant arrived in Australia at a very young age and, while he began offending as a young adult, it was for a relatively condensed period.
Other considerations
Paragraph 9 of Direction no. 110 states:
1In 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;
(c)impact on Australian business interests.
Legal consequences of decision under ss 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.[104]
[104] Direction no. 110, para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment 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;[105]
(c)Refusal of other visa applications and cancellation of other visas;[106]
(d)A prohibition on applying for other visas;[107] and
(e)Periods of exclusion and special return criteria may apply.[108]
[105] Migration Act ss 189, 196, 197C, 198.
[106] Migration Act s 501F.
[107] Migration Act s 501E.
[108] Migration Act s 503; Special Return Criteria 5001.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[109] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[110]
[109] Migration Act s 15.
[110] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305, [112]-[122] to find the Applicant’s detention had at all times been lawful.
The Applicant did not make any claims, nor is there any evidence to suggest that Australia’s non-refoulement obligations are enlivened in the circumstances of his case.
The Respondent noted that the fact that the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of sch 5 to the Migration Regulations 1994 (Cth) is a relevant consideration the Tribunal must take into account.[111]
[111] Exhibit R1, Document 2, [53], referring to Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003, [12]-[14] (Feutrill J).
The Respondent submitted that as such (that is, given the Applicant is not the subject of a protection finding, nor have non-refoulement claims been raised), the legal consequences of the decision should be afforded negligible weight in favour of revocation of the Cancellation Decision.[112]
[112] Exhibit R1, Document 2 [47].

The Tribunal accepts that the removal and visa limitations which result from a decision not to revoke a cancellation decision are an intended consequence of the operation of s 501. The Tribunal considers this consideration weighs neither for nor against revocation of the Cancellation Decision in the circumstances of the Applicant’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that, taking into account the matters identified in paras 9.2(1)(a)-(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 paras 9.2(1)(a)-(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 gave evidence that he accepted he was entitled to healthcare and public housing if he were returned New Zealand, however he said he was unsure if he would be able to transfer his vocational skills in order to get a job in New Zealand.
The Applicant gave evidence that he has returned to New Zealand four or five times since coming to Australia[113] to celebrate Christmas with family or to attend family funerals. The Applicant said that at present, he has one auntie in New Zealand and no friends there.
[113] See Exhibit R1, Document 1, G12, p 83 (HB 87).
The Applicant stated that if he were to resettle in New Zealand, he ‘won’t have any place to go’ and doesn’t think he would ‘do any good’ there.[114]
[114] Exhibit R1, Document 1, G10, pp 75 and 76 (HB 80 and 81).
The Respondent submitted that the extent of impediments if removed consideration should be afforded minimal weight in favour of revocation, for the following reasons:[115]
(a)The Applicant is 23 years old with no declared health issues that may impede resettlement in New Zealand.
(b)He will not experience substantial language or cultural barriers in New Zealand.
(c)He would have access to the same levels of medical services, social welfare, and economic support as what is generally available to other citizens in New Zealand, including that required to abstain from alcohol or drug use.
(d)While the Applicant may face some practical, financial, and emotional hardship upon his return to New Zealand due to family separation and lack of social ties there, this should be given minimal weight in favour of revocation, especially where cultural, language, and social variances are indistinguishable and where there are comparable standards of health care and social supports. The extent of any impediments the Applicant would face in the long term would be limited.
(e)The Applicant has spent almost two years outside of Australia relatively recently and has therefore demonstrated an ability to reside outside Australia.
(f)Further, the Applicant has transferable skills and work experience which can lead to employment and a productive life in New Zealand, and the obstacles he faces in returning to New Zealand are not insurmountable having regard to his young age.
[115] Exhibit R1, Document 2, [49]-[54].
As noted above, the Applicant is 23 years old. There is some evidence regarding the Applicant’s plan for continued engagement with community services regarding his past drug and alcohol use, for his return to employment, and his accommodation should he remain in Australia.
There is nothing to suggest that whatever services the Applicant may require in the future would not be available to him in New Zealand.[116]
[116] Direction no. 110, para 9.2(1)(a).
Despite having lived in Australia for almost his entire life, there is no evidence before the Tribunal that there would be any cultural barriers in New Zealand should the Applicant be removed.[117]
[117] Direction no. 110, para 9.2(1)(b).
The Tribunal accepts that the Applicant has no familial or social connections in New Zealand, that his support network is entirely in Australia, and his prospects for immediate accommodation and employment are reliant on him remaining in Australia.[118]
[118] Direction no. 110, para 9.2(1)(c).
While the Applicant may encounter some difficulties establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, if he were to return to New Zealand, the Tribunal regards these difficulties as temporary.[119]
[119] Direction no. 110, para 9.2(1)(c).
The Tribunal also accepts, however, that the Applicant’s removal, in particular his separation from his mother and his siblings, particularly in the context of his upbringing, would see him face significant emotional and psychological hardship,[120] and evade him of the opportunity to provide assistance to his siblings as he indicated he would be glad to do.
[120] Direction no. 110, para 9.2(1)(c).
The Tribunal accepts that if removed, the Applicant could maintain family contact by electronic means (although this is not his preference). There is no evidence that the Applicant’s family would be willing and/or able to travel to New Zealand to assist him to settle or to otherwise visit.
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
1Decision-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 did not suggest that his removal from Australia would adversely impact Australian business interests.
The Applicant accepts that he is not involved in the delivery of a major project or important service in Australia.[121]
[121] A1 [114].
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).
Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. While the Court was considering Direction No. 90, it’s observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation decision should be revoked.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal found that the protection of the Australian community weighs against revocation of the Cancellation Decision and affords the consideration moderate weight in the Applicant’s circumstances.
The Tribunal found that the consideration of family violence weighs slightly against revocation of the Cancellation Decision in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds very heavy weight should be afforded that consideration in the Applicant’s case.
The best interests of minor children identified as being impacted by the decision weigh in favour of revocation. Overall, the Tribunal considers slight weight should be afforded this consideration in the Applicant’s circumstances.
The expectations of the Australian community weigh against revocation and the Tribunal finds this consideration should be afforded moderate weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision consideration weighs neither for nor against revocation for the reasons given. The extent of impediments if removed consideration weighs moderately in favour of revoking the Cancellation Decision. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
Having weighed the considerations, the Tribunal finds that:
(a)The first and fifth primary considerations each weigh moderately against revocation of the Cancellation Decision.
(b)The second primary consideration weighs slightly against revocation of the Cancellation Decision.
(c)The third primary consideration weighs very heavily in favour of revocation of the Cancellation Decision.
(d)The fourth primary consideration weighs slightly in favour of revocation of the Cancellation Decision.
(e)The extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
(f)The first and third other considerations, being the legal consequences of the decision consideration and the impact on Australian businesses consideration, weigh neutral.
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.
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them.
Particularly, the Tribunal is satisfied that the circumstances of the Applicant’s case warrant the very heavy weight in favour placed on the strength, nature and duration of ties consideration and the moderate weight against placed on the protection of the Australian community consideration and the expectations of the Australian community consideration.
The Tribunal is mindful of the fact that it has done so in circumstances where the Applicant’s offending is very serious and where the Australian community would have the expectation that the Visa remain cancelled.
However, it has balanced these considerations with the findings that the Applicant is at a low risk of reoffending and the Australian community would have a higher degree of tolerance for him, reflective of the years he has spent in Australia (being his lifetime bar four months) and his contributions to the community during this time. The result being that the Tribunal considers this to be a very finely balanced case.
Therefore, having regard to all of the primary and other considerations in Direction no. 110, the Tribunal is satisfied that that there is ‘another reason’ why the Cancellation Decision should be revoked.
The correct or preferable decision is to set aside the Reviewable Decision and substitute it with the decision set out at [193] below.
DECISION
The decision of the delegate of the Respondent dated 4 April 2025 not to revoke the cancellation of the Applicant’s Special Category (Temporary) Class TY Subclass 444 visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s Special Category (Temporary) Class TY Subclass 444 visa is revoked under s 501CA(4).

I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of General Member L M Gallagher

.........[SGD]...............................................................
Associate
Dated: 30 June 2025

Date of hearing: 18 June 2025

Applicant: Self-represented

Solicitors for the Respondent:
Cohen Dietrich, MinterEllison

ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA

Conviction date

Court

Offence date

Offence

Result

27 May 2022 Perth District Court of Western Australia 16 March 2021 Breach of Community Based Order (‘CBO’) Fine: $200

Breach of CBO Fine: $200

28 September 2021

194.
Person who steals uses or threatens violence to person/property Imprisonment: 3 years (concurrent)

Person who steals uses or threatens violence to person/property Imprisonment: 10 months (cumulative)

Re-offending whilst subject to a conditional release order or community order No order made on breach

20 May 2020 Breach of CBO Fine: $750

12 April 2021 Kalgoorlie Magistrates Court 16 March 2021 Criminal damage or destruction of property CBO: 6 months (concurrent)

Possessed drug paraphernalia in or on which there was a prohibited drug or plant CBO: 6 months (concurrent); Order for Destruction

20 May 2020 Breach of CBO CBO: 6 months (concurrent)

24 February 2020 Kalgoorlie Magistrates Court 23 February 2021 Breach of Police Order Fine: $250

6 August 2020 Kalgoorlie Magistrates Court 5 July 2020 Driver fail to give name and address (property damage) Fine: $300

Drove under the influence of alcohol Mdl disqualified: 10 months (concurrent); Fine: $1,000

No authority to drive (never held) Mdl disqualified: 3 months (concurrent); Fine: $200

Date of hearing:	18 June 2025
Applicant:	Self-represented
Solicitors for the Respondent:	Cohen Dietrich, MinterEllison

Conviction date	Court	Offence date	Offence	Result
27 May 2022	Perth District Court of Western Australia	16 March 2021	Breach of Community Based Order (‘CBO’)	Fine: $200
		16 March 2021	Breach of CBO	Fine: $200
		28 September 2021 194.	Person who steals uses or threatens violence to person/property	Imprisonment: 3 years (concurrent)
			Person who steals uses or threatens violence to person/property	Imprisonment: 10 months (cumulative)
			Re-offending whilst subject to a conditional release order or community order	No order made on breach
		20 May 2020	Breach of CBO	Fine: $750
12 April 2021	Kalgoorlie Magistrates Court	16 March 2021	Criminal damage or destruction of property	CBO: 6 months (concurrent)
		16 March 2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	CBO: 6 months (concurrent); Order for Destruction
		20 May 2020	Breach of CBO	CBO: 6 months (concurrent)
24 February 2020	Kalgoorlie Magistrates Court	23 February 2021	Breach of Police Order	Fine: $250
6 August 2020	Kalgoorlie Magistrates Court	5 July 2020	Driver fail to give name and address (property damage)	Fine: $300
			Drove under the influence of alcohol	Mdl disqualified: 10 months (concurrent); Fine: $1,000
			No authority to drive (never held)	Mdl disqualified: 3 months (concurrent); Fine: $200