Walker and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 228
•11 March 2025
Walker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 228 (11 March 2025)
Applicant/s: Gordon Bushnell Walker
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10573
Tribunal:General Member Gallagher
Place:Perth
Date of Decision: 11 March 2025
Date of Written Reasons: 18 March 2025
Decision:On 11 March 2025, the Tribunal made the following decision.
The decision of the delegate of the Respondent dated 17 December 2024 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).
These are the Tribunal’s written reasons.
....................................[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
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hampton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 35
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753
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
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
QJYD and Minister for Immigration, 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
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohiariki and Minister or Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1748
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466
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 17 December 2024, not to revoke the cancellation of his Special Category (Temporary) Class TY Subclass 444 visa (the Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the MigrationAct) (the Reviewable Decision).[1]
[1] R2, G4, pp 26-41.
The application for review was lodged with the Administrative Review Tribunal (the Tribunal) on 17 December 2024,[2] 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.[2] R2, G2, pp 4-14.
BACKGROUND
The Applicant is a 56-year-old citizen of New Zealand.[3] The Applicant was born in South Africa[4] and moved to New Zealand when he was around four-years-old.[5] He was granted New Zealand citizenship on 27 May 1986.[6]
[3] R2, G23, p 212.
[4] R2, G23, p 212.
[5] A1 [1].
[6] R2, G23, p 212.
The Applicant first arrived in Australia on 3 October 1987,[7] at the age of 18.
[7] R2, G26, p 219.
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 23 August 2023[8] and a History for Court Report – Criminal Only by the Western Australian Police Force (WA Police Force) compiled on 3 February 2025.[9]
[8] R2, G6, pp 42-5.
[9] R3, S36, pp 273-9.
The Applicant’s offending history is compiled in Annexure A.
The Applicant’s criminal offending commenced in 1998. From 1988 to 2023, the Applicant was convicted of a range of offences, including various drug, driving, firearm, and breach offences, with penalties including fines, driving disqualifications, and two terms of imprisonment.[10] The Applicant was not convicted of any offences between
(a)July 1995 and April 2003; and
(b)November 2009 and September 2014.
[10] R2, G6, pp 42-45.
Notably, on 31 January 2023 the Applicant was convicted in the Perth District Court of Western Australia of ‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ and sentenced to a total of two years’ imprisonment (principal offending).[11]
[11] R2, G6, p 43; R3, S36, p 274.
The circumstances of this offence are:[12]
(a)On 26 February 2020, Australian Border Force intercepted a DHL Express international mail parcel. The package was examined and found to contain 5,512.16 grams of methylenedioxymethamphetamine (MDMA).
(b)On 28 February 2020, officers of the WA Police Force Drug and Firearm Squad stopped the accused while he was driving, and the Applicant was placed under arrest on suspicious for ‘attempt to possess a prohibited drug with intent to sell or supply.’ Police executed a search warrant on the Applicant’s home and located:
(i)The package intercepted by the Australian Border Force on 26 February 2020;
(ii)Various quantities of methamphetamine totalling 16.12 grams, in six clip seal bags;
(iii)A quantity of methylamphetamine found inside a plastic shopping bag weighing approximately 220 grams;
(iv)‘[A] set of digital scales, numerous quantities of clip seal bags, smoking implements, and unlicenced handgun and ammunition’.[13]
[12] R2, G8, pp 52-52 and R3, S41, pp 291-295.
[13] R3, S41, p 293.
Present proceedings
On 25 November 2010, the Applicant was granted the Visa.[14]
[14] R2, G27, p 220.
On 15 May 2023, 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 s 501(6)(a) and was 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 territory (the Cancellation Decision).[15] The Applicant was notified by letter of the same date, which he received by hand delivery at Albany Regional Prison.[16]
[15] R2, G27, p 220.
[16] R2, G27, p 220.
On 25 May 2023, the Applicant made a request for revocation of the Cancellation Decision under s 501CA of the Migration Act,[17] and made representations to the Delegate in support of his request on 7 June 2023.[18]
[17] R2, G13, pp 86-90.
[18] R2, G14, pp 91-109.
On 17 December 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, that, therefore, the power under
s 501CA(4) was not enlivened, and made the Reviewable Decision.[19] The Applicant was notified of the Reviewable Decision by letter dated 17 December 2024, sent by email to his representative.[20][19] R2, G3-G5, pp 17-41.
[20] R2, G3, p 17.
On 17 December 2024, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[21]
[21] R2, G2, pp 4-14.
The Applicant was released on parole on 14 May 2024 and is currently detained at Yongah Hill Immigration Detention Centre.[22]
[22] R3, S1, p 1.
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.[23]
LEGISLATIVE FRAMEWORK
[23] 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:
7For 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.[24] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[24] 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.[25]
[25] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 26 February 2025 at the Tribunal’s Perth Registry. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and Migration Specialists. The Respondent was represented by Ms Miriam Williams of Minter Ellison. The Applicant and his representative appeared in-person. The Respondent appeared by video.
At the hearing, the Applicant gave evidence and was cross-examined. The Applicant’s sister, Ms Fiona Walker, gave evidence in-person and was cross-examined.
The following documents were marked as exhibits:
(a)Applicant’s Statement of Facts, Issues and Contentions dated and filed 24 January 2025 (A1);
(b)Applicant’s bundle of evidence, labelled W1-W12, comprising 50 pages, filed 24 January 2025 (A2);
(c)Applicant’s supplementary bundle of evidence, labelled W13-W26, comprising 40 pages, filed 21 February 2025 (A3);
(d)Respondent’s Statement of Facts, Issues and Contentions, dated and filed 14 February 2025 (R1);
(e)Respondent’s Section 501 G-Documents, labelled G1-G28, comprising 251 pages, filed 6 January 2025 (R2); and
(f)Respondent’s Supplementary G-Documents, labelled S1-S114, filed 19 February 2025 (R3).
The Tribunal has taken into account the Applicant’s statements,[26] letters of support from the Applicant’s parents, sisters, brother-in-law, nieces, nephews and friends,[27] along with the oral evidence provided by the Applicant and his sister, Ms Fiona Walker.
[26] See R2, G13-G16, pp 86-138; A3, W24, pp 84-7.
[27] See R2, A2 and A3 (various).
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 31 January 2023 the Applicant was convicted in the Perth District Court of Western Australia of ‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ and sentenced to a total of two years’ imprisonment.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act. The Applicant agrees this is the case.[30]
[30] A1 [31].
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[31]
[31] See 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.[32]
[32] 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.[33]
[33] Direction no. 110, paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of theMigration Act.[34] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction
no. 110 where relevant to the decision.[35]
[34] Direction no. 110, para 5.1(4).
[35] Direction no. 110, para 6.
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 noncitizens 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 noncitizen'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:[36]
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.
[36] 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):[37]
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
[37] 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?
The Applicant contended that the Cancellation Decision should be revoked for the following reasons:[38]
(a)The length of time the Applicant has spent living in Australian, being approximately 38 years, since he was 18 years old.
(b)The Applicant’s strong family support in Australia and the complete absence of support in New Zealand.
(c)The impediments the Applicant would experience upon any return to New Zealand, especially given his lack of social support.
(d)Just prior to his most recent offending, the Applicant spent almost three years in the community. This length of time demonstrates the Applicant can remain drug-free and crime-free and appreciates the consequences of his actions. This should be considered separately from the length of time the Applicant has spent living in Australia[39] as it goes to his risk of reoffending.[40]
[38] A1 [34].
[39] Relating to the strength, nature and duration of ties consideration.
[40] Relating to the protection of the Australian community consideration.
The Respondent, however, contended that there is not ‘another reason’ why the Cancellation Decision should be revoked because:[41]
(a)The protection of the Australian community consideration weighs determinatively against revocation.[42]
(b)In any event, the considerations that weigh against revocation of the Cancellation Decision[43] outweigh the considerations in favour of revoking the Cancellation Decision.[44]
[41] R1 [19], [22], [62].
[42] The Respondent also referred to this consideration as weighing strongly against revocation of the Cancellation Decision: R1 [40]. At hearing, the Respondent confirmed its position that the weight that ought to be attributed is indeed ‘determinative,’ not ‘strong’.
[43] Being the protection of the Australian community consideration and the expectations of the Australian community consideration.
[44] Being the strength, nature and duration of the Applicant’s ties to Australia consideration and the extent of impediments if removed consideration.
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’.[45] In this respect, the Tribunal is directed to have particular regard to the principle that:
[E]ntering 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.[46]
[45] Direction no. 110, para 8.1(1).
[46] 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.
While the Minister’s position is that the protection of the Australian community consideration weighs determinatively against revocation,[47] the Applicant takes the view that:[48]
(a)The nature and seriousness of the Applicant’s conduct weighs against revocation of the Cancellation Decision.
(b)However, this factor is outweighed by the Applicant’s low risk of reoffending, given his rehabilitation efforts and the time he has spent in the Australian community without reoffending (as well as his ties to Australia).
[47] See [45(a)] above.
[48] See, for example, A1 [56], [59], [86].
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[49] 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.[50]
[49] Direction no. 110, para 8.1(1).
[50] 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.
At hearing, the Applicant gave evidence that the impact of his best friend’s death in 2000 was a contributing factor to his offending, that it put him in ‘depression mode’, and that he started taking drugs to cope. He said that this had the flow on effect that his business began to suffer, he did not get on with his family, his relationship was ‘not so good’, and everything snowballed from there. When asked, the Applicant said he did not attend a counsellor at the time to deal with his grief over his friend’s death. As to how he manages his grief now, the Applicant said he has overcome it and that drugs and alcohol are not the way to manage it.
The Applicant said that during the period between 2009 and 2014 (when he did not offend), he was working, coping and doing well. The Applicant said he then lost interest in work, had some medical problems, and relapsed. The Applicant said that at the time of his offences in 2019 and 2020 he had blood cancer and pneumonia and had a lot of time off work.
The Applicant said that when he was charged with his offences in February 2020, he did not go to his family for help as he did not want to embarrass or disappoint them. The Applicant said that during this time, he relapsed a couple of times, then stopped taking drugs at the start of 2021.
As to the circumstances of his driving offence in 2022, being ‘no authority to drive – suspended’, the Applicant said his sister had paid a previous fine on his behalf, however this was erroneously recorded against a different fine, leading him to drive without a licence when he in fact thought that he had one.[51] When asked, the Applicant confirmed that he had his drivers’ licence back now.
[51] This matter was corroborated by Ms Walker, orally at hearing.
During cross-examination, when questioned about his early offending for possessing a quantity of cannabis in 1991,[52] the Applicant said that this was the first time he had used drugs, that he was using cannabis infrequently at this time, he was a little deterred by the fine imposed and was ‘young and stupid’ when he committed this offence.
[52] R2, G6, p 45.
As to his ‘no authority to drive – cancelled’ offending committed in 2009,[53] the Applicant said that he did not realise when he came out of jail that he did not have a drivers’ licence. When it was put to him that this was not the first time he had been mistaken about being licensed to drive, the Applicant said that he did not realise that his licence suspension began when he left prison and he had been sent no correspondence from the licensing board in this regard at the time.
[53] R2, G6, p 44.
When it was put to him that the 11 instances of breaches of bail orders or suspended imprisonment orders showed a persistent disregard for the law, the Applicant agreed that it did, to a certain extent, noting that he had tried to get lifts to work, but did the ‘stupid thing’ by driving.
When taken to the sentencing judge’s remark that she was ‘satisfied beyond reasonable doubt in each case that there was commerciality in [his] sale of the [methamphetamine]’,[54] the Applicant said he disagreed that he was involved in the sale of methamphetamine. The Applicant said that rather, it was for personal use at the workshop where he worked with three other people, where they would ‘have it all together.’ When asked, the Applicant said that he is no longer friends with these people.
[54] R2, G8, p 55.
As to the sentencing judge’s reference to the psychologist’s comment that the Applicant ‘seem[ed] to struggle to understand that drug use is risky and that even if [he] possess[es] methylamphetamine for personal use that itis illegal’,[55] the Applicant said his current views on drug use are that it is ‘no good’, it destroys your life and the community, that ‘you do bad things to try to get the drug’, and that ‘you don’t think of the consequences when you are addicted’.
[55] R2, G8, p 58.
When asked about the course of his drug addiction, the Applicant said he became addicted to methamphetamine in his early thirties, and did so very quickly. The Applicant said he would also use cannabis and MDMA now and again, ‘not too much’ alcohol (being ‘a few drinks every night’), but ‘more meth than anything else’. The Applicant said that if released, he wanted to generally stay away from alcohol.
When asked to comment on the following sentencing remark:[56]
And I am also told that you increased using methylamphetamine after your leukemia diagnosis because it helped you with what you felt were your depleted energy levels. Dr Tough [psychologist] says you do not consider yourself to be an addict.
The Applicant said that he now realises that he was an addict, and that he came to realise this after ‘getting done’ and spending 50 days in Hakea prison.
[56] R2, G8, p 57.
When taken to the sentencing judge’s reference to the psychologist’s comment that the Applicant has ‘clinical needs in the areas of anxiety and drug and alcohol counselling’,[57] the Applicant said he attended counselling in jail and has been seeing a psychologist in detention.[58] The Applicant said he does not experience anxiety as much as he used to, and that breathing exercises and Endep help with this.
[57] R2, G8, p 58.
[58] See A3, W24 [20]-[22].
When asked to comment on his traffic offending, the Applicant said this offending was ‘stupid,’ that he ‘did not think’ and he should have. The Applicant said that, at the time, he was worried about work and paying his bills.
As to the offences he committed after the principal offending,[59] the Applicant said that since this time, he has ‘stayed away from everything’ since he last used methamphetamine in around March 2021,[60] and made a point of not getting into trouble.
[59] See R2, G6, p 43.
[60] See also A3, W24 [18].
Looking at the periods of time where the Applicant did not offend, the Applicant said during his first break in offending of seven years and nine months,[61] he was not using drugs at the time, although he was consuming alcohol. The Applicant said during his second break in offending of four years and nine months,[62] he was using cannabis ‘a little,’ he was ‘just working’ and ‘not partying’, and he was not using methamphetamine at this time. As to the Applicant’s third break in offending of one year and 11 months,[63] the Applicant said he started using a ‘little bit’ of methamphetamine and cannabis on a recreational basis on weekends, ‘then it escalated’.
[61] Between July 1995 and April 2003. See R2, G6, p 45.
[62] Between November 2009 and 23 September 2014. See R2, G6, p 44.
[63] Between 20 August 2015 and 1 August 2017. See R1, G6.
When asked how he will maintain his non-use of drugs in the future, the Applicant said he did all the courses that were available to him in prison (including a plan for personal management), and also applied for others. The Applicant said that he saw how shocked and disappointed his parents were in him, he sees how drugs have ruined his life, and he wants a better life with his family. The Applicant said he no longer gets cravings for drugs, he feels healthier and better in his mind, that he talks to his mental health nurse and psychologist, and he is doing well. When it was put to the Applicant that he was yet to complete a targeted drug and alcohol rehabilitation program, and that the Pathways program had not been indicated for him, the Applicant said there are no drug and alcohol courses at Yongah Hill Detention Centre, and that he had asked his mental health nurse about it.
In relation to the nature and seriousness of the Applicant’s conduct, the Applicant submitted that rather than viewing his offending as indicating a trend of increasing seriousness, the Tribunal should consider that his offending is by and large concentrated in the periods 2003 to 2007, 2014, and 2018 to 2020, in correlation with his life circumstances including mental health issues, drug addiction and unresolved trauma.[64] The Tribunal notes the sentencing judge’s related remarks in this regard.[65]
[64] A1 [42].
[65] R1, G8, pp 57-8, as extracted at A1 [42].
The Applicant, by way of submission,[66] also emphasised the sentencing judge’s statement that the Applicant’s level of selling methylamphetamine ‘was at the lower end, the small end of the range of drugs up to a gram’[67] and that Her Honour was ‘not able to say what the extent of [the Applicant’s] engagement in the sale of drugs was’,[68] other than to say it was at the lower end of the range, and serious, by virtue of methylamphetamine being a ‘serious illicit drug’.[69]
[66] A1 [45].
[67] R1, G8, p 54.
[68] R1, G8, p 55.
[69] R1, G8, p 55.
The Applicant also submitted that, ‘without minimising the seriousness of [his] offences, the Tribunal should be cognisant that the sentencing judge could have sentenced the Applicant to a much longer term of imprisonment [(for his principal offending)]’, with the sentence imposed demonstrating that this ‘offending was at the lower end of the scale of seriousness’ for offending of this kind.[70]
[70] A1 [48].
Further, the Applicant submitted that he has demonstrated he can live in the Australian community for long periods without reoffending, namely between:[71]
(a)July 1995 and April 2003;
(b)November 2009 and September 2014 (8 months of which he was incarcerated);
(c)August 2015 and August 2017; and
(d)20 February 2020 and December 2022 (other than two driving offences, one committed when he mistakenly believed he held a driver’s licence).[72]
[71] A1 [54] to [55].
[72] See [55] above.
Finally, the Applicant submitted that his offences should not be considered as so serious that any risk of reoffending in a similar way in unacceptable.[73]
[73] A1 [56], noting related footnote and authority cited within, being Tohiariki and Minister or Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1748, [86].
The Respondent made the following submissions in relation to the nature and seriousness of the Applicant’s conduct:[74]
(a)The Applicant’s two-year prison sentence is indicative of the seriousness of his offending, with imprisonment being a last resort in the sentencing hierarchy and the sentencing judge holding the view that a suspended term was not possible.
(b)The sentencing judge remarked on the commercial aspect of the Applicant’s offending and referred to the psychologist’s opinion that risk factors for the Applicant’s reoffending was his attitudes condoning illicit substance use, his struggle to understand drug use is risky, and that drug possession for personal use was illegal.
(c)Methylamphetamine trade causes ‘enormous damage to the community’, including users and victims of crimes committed by people under the influence.[75]
(d)The Applicant’s criminal offending between 1988 and 2023 shows a trend of increasing seriousness and a consistent and complete disregard for the law, the cumulative effect over more than 30 years being significant use of police and court resources and cost to the community in the participation of the illicit drugs trade.
(e)The Applicant has a significant number of driving and traffic offences from 1992 to 2022, three of which occurred in the two years after the principal offending. The Tribunal has previously found driving offences to be serious.[76] The Applicant’s high number of offences of this kind over a sustained period should be considered serious, and demonstrate a clear disregard for Australian laws and the safety of the Australian community, especially other road users.
[74] R1 [26] to [31].
[75] R1 [27(c)].
[76] QJYD and Minister for Immigration, Migrant Services and Multicultural Affairs [2021] AATA 1, [51]-[54].
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 Applicant has been convicted of driving offences, breaches of court orders, weapons and ammunition offences, providing false information or refusing to provide details to police, and various other offences.[77]
[77] Such as reserve drinking, fraud, stealing and burglary.
The Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed. The Tribunal also notes the Applicant has been sentenced to two terms of imprisonment and the related sentencing remarks.
The Tribunal has regard to the fact that drug offending, in the Applicant’s case possessing and dealing in methamphetamine, is viewed very seriously by the Australian government and the Australian community and has been viewed as such by the Tribunal.[78] At hearing, the Applicant conceded his drug offending was very serious in nature.
[78] See, for example, Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753, [75].
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[79] that place the lives of other road users at risk.
[79] 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 repeated nature of 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 para 8.1.1 of Direction no. 110. It is not strictly required to. Indeed, para 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.[80]
[80] Direction no. 110, para 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,[81] whether the crimes were committed against vulnerable people, or government representatives or officials,[82] and any crime committed while in immigration detention.[83] In relation to para 8.1.1(1)(b)(ii) of Direction no. 110, the Tribunal notes that the Applicant was convicted of ‘refuse to supply or provide false name and address’ in 2003 and 2007 and convicted of ‘wilfully mislead police’ in 2005.[84]
[81] Direction no. 110, para 8.1.1(1)(b)(i).
[82] Direction no. 110, para 8.1.1(1)(b)(ii).
[83] Direction no. 110, para 8.1.1(1)(b)(iv).
[84] R2, G6, p 48-9.
The Applicant’s principal offending involved conduct for which he was ultimately sentenced to two years imprisonment.[85] This conduct forms the basis of the finding that the Applicant did not pass the character test,[86] 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.[87]
[85] The Applicant was also sentenced to 8 months’ imprisonment in 2007 for breaches of various suspended imprisonment orders.
[86] Direction no. 110, para 8.1.1(1)(b)(iii).
[87] Direction no. 110, para 8.1.1(1)(c).
The Applicant has a lengthy criminal history consisting of offending from 1998 to 2023 for a range of offences culminating in the principal offending and including drug and firearm offending subsequently.[88] In relation to the frequency of the Applicant’s offending and whether there is any increasing trend in seriousness,[89] the Tribunal takes into consideration the Applicant’s argument that the overall period of his offending is marked with lengthy periods where he did not offend, demonstrating that the Applicant can live in the Australian community for long periods without reoffending.[90]
[88] See [5]-[9] above and Annexure A.
[89] Direction No. 110, para 8.1.1(1)(e).
[90] See [68] and [71] above.
As to the cumulative effect of the Applicant’s repeated offending,[91] the Respondent’s view that more than 30 years of police and court resources and cost to the community in terms of the Applicant’s participation in the illicit drug trade has been considered alongside the Applicant’s emphasis on the fact that the sentencing judge considers the Applicant’s involvement as such was at the lower level, and she was unable to say the extent to which he was involved in any event.
[91] Direction no. 110, para 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 paras 8.1.1(1)(d), 8.1.1(1)(g) or 8.1.1(1)(i) of Direction no. 110.
Regarding para 8.1.1(1)(h) of Direction no. 110, the Tribunal understands a formal warning was previously issued on 11 September 2020, the parties agree there is no evidence the Applicant received this warning,[92] and hence the Tribunal gives this neutral weight.
[92] A1 [43] and R1 [32].
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has an extensive record, some of which includes very serious offending, but which is also marked by considerable periods of time where he did use drugs (coinciding with periods where he did not offend).
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:[93]
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). …
[93] See also Direction no. 110, para 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.[94] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[95]
[94] Direction no. 110, para 8.1.2(2)(a).
[95] Direction no. 110, para 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.[96]
Nature of the harm
[96] 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.[97]
[97] Direction no. 110, para 8.1.2(2)(a).
In relation to the nature of the harm to individuals or the Australian community should he reoffend, the Applicant submitted that:[98]
(a)In relation to drug offending, the sale and supply of illegal drugs in the Australian community can contribute to significant physical, psychological, and financial harm, as well as to the commission of criminal offences and the subsequent allocation of public resources.
(b)In relation to driving offending, there is a risk of harm posed to other road users, notwithstanding that his offences to date have not resulted in direct harm being caused.
[98] A1 [57]-[59].
The Applicant also submitted that
while this potential harm is serious, when considered cumulatively with the likelihood of the Applicant engaging in further criminal or serious conduct, the risk represented by him to the Australian community is low and should not be considered “unacceptable”.[99]
[99] A1 [59].
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.[100] The Respondent also submitted that any reoffending of a similar nature would have the potential to cause physical, financial and/or psychological harm to members of the Australian community.[101]
[100] R1 [35], referring to Direction no. 110, para 8.1.2(1) and Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, [95] (Mortimer J).
[101] R1 [35], also referring to the sentencing judge’s observations and remarks on the significant impact of the supply of illicit drugs on the community to similar effect. See R1, G8, p 59.
The Tribunal accepts that the Applicant has, in more recent times, developed a level of insight into his offending that may be viewed as genuine remorse.[102] The Tribunal also considers that the Applicant has demonstrated a level of understanding of the significant harm that would be caused to the Australian community should he engage in further offending.
[102] Indeed, at hearing the Respondent accepted the Applicant was remorseful for his offending.
That being so, the Applicant also accepts he has an extensive criminal history that involves considerable 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, psychological and economic 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.[103]
[103] Direction no. 110, para 8.1.2(2)(b).
The Applicant gave evidence that he stopped using drugs when he went to prison. The Applicant said that methamphetamine is a ‘bad drug’ that destroys families, costs taxpayers, and that the police have to deal with a lot of issues relating to it.
As to whether he completed drug and alcohol related courses in prison, the Applicant said that none were indicated for him as being required. The Applicant said that he was waitlisted for the Pathways Program and had completed a plan for personal management program where he ‘learned empathy’, ‘how to structure life’, how ‘not to relapse’ and ‘ways of overriding addiction’.
The Applicant said that while in prison, he had worked in the laundry (at Casuarina), in the metal workshop and on trailers (in Albany) and in the abattoir (at Karnet).
The Applicant said that he had been ‘clean’ for nearly four years and that his family had been shocked and disappointed at his arrest. The Applicant said that his relationship with his family has changed, his family is fully aware of his offending history, and he gets on better with his parents, especially his father.
The Applicant said that if released, his sister will accommodate him, and that he can work on his sister’s and brother in law’s farm.[104] The Applicant also said he would also have the option of returning to work with Credo, in the job he had prior to going to prison. The Applicant said he would continue to see his psychologist, take Endep (which he was prescribed in prison), lead a productive life, and work to get his assets up. When asked, the Applicant said that he had no concerns that he had no friends in Albany as he would rather meet new people, start fresh, and keep away from past peers.
[104] At hearing, Ms Walker gave evidence that she could give the Applicant a home for as long as he needs one, that she would provide emotional support, employment on the farm, reduce the stress of reintegration, and would support his eventual return to a profession.
When asked, the Applicant said he took Endep for depression and a tablet for his cholesterol.
The Applicant said that if he was removed, this would shatter his elderly parents, as they would have nobody to help them. The Applicant said that his sisters would also be upset, as they would not have their brother, and his nieces and nephews would not have their uncle. The Applicant said he would be devastated if he was removed, as he ‘has nothing in New Zealand’.
When asked what he had learned from his sessions with his psychologist, Johannes Groenewald, the Applicant said he had learned ‘how not to relapse’, how to carry on with life in a positive way, how to avoid negative peers, and how to think before reacting. The Applicant said that it had been hard to arrange to see a psychologist while in detention and that the sessions he has attended since January 2025 were targeted towards his drug addiction and his mental health.[105]
[105] See A3, W24, [20]-[22].
The Applicant was taken to the following matters in his statement:[106]
33I’m not going back to drugs, I’ve seen what drug use has done to my parents. I haven’t had a yearning for drugs, if I wanted to I could have gotten some in here [in detention]. I haven’t done drugs now for years. I am more focussed on looking after my body and myself.
34I don’t want to put my family through that again. They won’t support me again. They have told me they would disown me if I relapsed or reoffended. I promised them that I won’t.
It was put to the Applicant that in the past he continued to offend despite his existing family relationships and support. As to what had changed, the Applicant said he gets on better with his parents, he is able to talk to them and be open and honest, and he has a clearer mind. The Applicant said he tried to hide his offending in the past and that he does not want to cause stress or problems for his parents. The Applicant said prison was the best thing for him, to get him ‘out of this rut’. The Applicant said that his sister was aware that he was on drugs, but not to the extent that he was.
[106] A3, W24, [33]-[34].
The Applicant said he did not seek support from his family for drug use at the time of his first sentence in 2007 for his driving offences, although he did see a doctor for anxiety and did not use drugs in prison.
When asked, Ms Walker (the Applicant’s sister) said she did not think the Applicant would relapse into drug use because he recognises his mistakes, he is fully aware of the consequences, damage and hurt he would cause if he did, and he realises that he has wasted years of his life but that he has good years ahead of him.
When asked why Ms Walker thought it was unlikely the Applicant would reoffend in circumstances where he had been to prison once before and subsequently relapsed and reoffended, Ms Walker said that it is because the Applicant had realised he needs to change direction. When asked why she thought the Applicant had reoffended in 2019 and 2020, Ms Walker said that she knew the Applicant had been unwell and had turned to drugs when things got too hard.
As to whether she considered the Applicant had expressed remorse for his offending, Ms Walker said learning the extent of the Applicant’s convictions had taken her by surprise, as she had not realised this prior, and she believes the Applicant is disappointed in himself.
Ms Walker said that she had always been open with the Applicant, although the Applicant had not always reciprocated it and would withhold information from her if he thought it would upset her. Ms Walker said that now that the Applicant’s offending is out in the open, she is no longer concerned he would withhold information from her.
Ms Walker said that she knew the Applicant was taking drugs, but at the time was not fully aware of the type of drugs he was taking or that some of his offending was drug related. Ms Walker said that she understood the Applicant had been a recreational drug user until 2000 or 2001, after which his drug use increased significantly when he was not coping with the death of a friend. Ms Walker said she believes that the Applicant’s grief for his friend is no longer an issue, and that the Applicant has sufficiently addressed it.
Ms Walker said that the Applicant has reached out to an organisation for drug support, he has spoken to a psychologist, and has taken whatever options have been available to him. When asked if she was concerned that the Applicant has not completed a specialist drug and alcohol program, Ms Walker said that she was unsure if such a program had been available to the Applicant in any event.
When asked why their family did not intervene at an earlier stage, Ms Walker said that the family had not been fully aware of the Applicant’s addiction history and his ‘troubles’, and that the Applicant had been able to function as an addict at the time.
The Applicant’s submissions regarding his risk of reoffending are, briefly:[107]
[107] A1 [60]-[86].
(a)The Applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable. Should the Respondent argue to the contrary, it should identify the particular elements or characteristics of the conduct or harm warranting this being the case.[108] Further, should the Tribunal consider the risk is unacceptable, this does not mean that the Reviewable Decision must be affirmed[109] and a weighing exercise must still be undertaken.
[108] Referring to Direction no. 110, paras 8.1.1(1), 8.1.2(1).
[109] Referring to Hampton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 35.
(b)The Australian community would be prepared to afford a higher level of tolerance where the Applicant is concerned because he has spent most of his life as a member of that community, having arrived in Australia as an 18 year old.[110]
[110] See Direction no. 110, para 5.2(6).
(c)The Applicant was granted bail eight weeks after his offences were committed in February 2020 and he remained in the Australian community until 31 January 2023, during which time he did not breach any bail conditions or reporting obligations, he was living with his then-partner and her children, working, avoiding negative peers and remaining sober, which was noted by the sentencing judge in relation to her view that the Applicant was a limited risk of reoffending. This time in the community must be considered as evidence of rehabilitation in relation to his drug use and associated offending.
(d)Similarly, the Applicant’s time in prison and detention should also be seen as time he has been ‘tested’ since committing the drug offending in February 2020, with drugs and alcohol being available in both places, the Tribunal having previously accepted this is the case, and the Applicant not having relapsed despite having had the opportunity to do so.
(e)The Applicant has demonstrated remorse, that he is willing and capable of change, and has realised the impact of future offending.
(f)The Applicant takes medication for depression, and, if released, intends to engage with community drug and alcohol services and his GP to set up community support.
(g)The Applicant’s Individual Management Plan in April 2023 noted that the Applicant sought voluntary programs and employment opportunities in prison, had been assessed as not being required for general offending intervention, and he had also been assessed as having a low score on the risk of reoffending prison assessment tool.[111]
(h)The Applicant was also not recommended for further criminogenic programs or any other interventions and, rather, completed a number of voluntary programs.[112]
(i)If released, the Applicant has employment on his brother in-law’s farm, whose company has nil tolerance to drugs and alcohol, and has reached out to a number of organisations to discuss the possibility of ongoing treatment and support.
(j)The Applicant has a strong support network available to him upon release, consistent of people with an awareness of his drug use and criminal history.
(k)The Applicant has been clean for the past four years.
(l)Therefore, the Applicant’s risk of reoffending should weigh in favour of revoking the Cancellation Decision.
[111] R1, G16, p 142 and R2, S32 “Treatment Assessment Report” dated 27 February 2023.
[112] Being a Plan for Personal Management, units towards a Certificate 1 in General Education for Adults, a first aid course, and MACFORCE career guidance.
The Respondent contended that there is a ‘not insubstantial’ or ‘significant’ risk the Applicant will reoffend because:[113]
(a)The Applicant’s criminal record demonstrates a pattern of frequent offending, with his repeated breaches and repeated reoffending clearly demonstrating his disregard for the law. The Applicant’s criminal history is extensive and any courses completed by him are unlikely to, of themselves, sufficiently curb this pattern of behaviour.
(b)The Applicant’s time in the community after his most recent drug charge was also met with two further driving offences, which is incongruous with the Applicant’s claims that he did not reoffend during this time and did not use drugs (one of the driving offences involved the Applicant testing positive to methylamphetamine during an oral fluid test by police after being pulled over).
(c)While the Applicant claims to be remorseful and reports to have a relapse prevention strategy in place if released, rehabilitation has not been sufficiently demonstrated in circumstances where the Applicant has not completed targeted drug and alcohol rehabilitation programs, or demonstrated any related outcomes. Hence, the Tribunal cannot safely conclude he has developed genuine insight into his offending, such that he is at low risk of reoffending.
(d)Similarly, while the Respondent accepts the Applicant has attended seven appointments with a mental health nurse and two appointments with a psychologist, attendance reports demonstrate the Applicant failed to attend three appointments,[114] and there is a history of non-compliance with medications in detention (although this has improved recently).[115]
(e)Further, while the sentencing judge found there was a limited risk of reoffending given there were protective factors in place, she noted the psychologist had indicated that the Applicant has clinical needs for anxiety, and drug and alcohol counselling.
[113] R1 [36]-[40].
[114] See R3, S20.
[115] R3, S20.
Therefore, the Respondent contends that, should the Applicant continue to reoffend, the Tribunal should have a very low risk of tolerance considering the seriousness of the Applicant’s offending.[116]
[116] Referring to Direction no. 110, para 8.1.2(1).
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 driving 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)Regarding the risk of the Applicant reoffending in the future, the Tribunal considers that while the Applicant appears to have taken every opportunity during his most recent prison term, and while in detention, to participate in rehabilitative measures (accepting the Applicant’s evidence that targeted courses were not indicated for him on assessment), drug specific rehabilitation is yet to be undertaken.
(c)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.
(d)The Applicant has, in the Tribunal’s view, expressed remorse for his offending and, while he may not have been able to do so at the time of his offending, has demonstrated insight into the potential risks of his offending and the related potential for future harm. The Tribunal also accepts that as such, the Applicant will continue with his rehabilitative efforts if released as he claims he will, and that his family will hold him to account in this regard.
(e)While the Respondent considers the Applicant has insufficient protective factors, his rehabilitation to date has lacked focus on drugs, and he has never succeeded with abstinence in the past. The Applicant has not used drugs in four years and the Tribunal takes this into consideration along with his evidence that his family would disown him if he relapsed or reoffended, which the Tribunal considers is a significant deterrent in circumstances where he has no contacts in New Zealand and where his future focus rests heavily on spending time with family after the years he considers he had wasted.
(f)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.
(g)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 drugs since March 2021, there is no evidence of the sale or supply of drugs since 2020, he has considerable family support, he has demonstrated an awareness of the consequences should he reoffend, and he has a viable plan for release confirmed by family members.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, 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.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence.[117] Accordingly, the Tribunal considers that this consideration is not relevant to the Applicant’s case and weighs neutral.
[117] The parties agree: A1 [87]; R1 [41].
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 gave evidence that he speaks to his parents regularly and they visit him monthly. The Applicant said he also speaks to his sister regularly, who also visits him. The Applicant said he has had more contact with family since being in prison than prior.
The Applicant said he had two nieces and five nephews, who he does not see much at the moment, but whom he communicates with on Facebook, and with whom he would like to spend more time with and show that he is a ‘good uncle’. The Applicant said that all of his nieces and nephews are aged in their 20s, they would be very upset if he returned to New Zealand, and not having their uncle close would be very disappointing to them.
The Applicant said that, generally, he would assist his parents with household maintenance tasks such as lawnmowing, cleaning the gutters, painting, and tree maintenance. The Applicant said if he were to remain in Australia, he would continue to assist his parents with these tasks by coming to Perth with his sister twice per month.
The Applicant said that if released, he has work options; the farm work with his sister and brother-in-law[118] being within his skill set, and somewhere to start to get him up and running. The Applicant said he could also possibly work for Credo in Albany, as Credo is ‘all over the state’, although he would wait until he returned to Perth to work for Credo if regional work was not possible.
[118] See A2, W25, p 88.
The Applicant explained he sold his property in 2000 and has rented since then. The Applicant said that if he relapsed, he would lose the option of living with his sister and brother-in-law, as his brother-in-law has a drug and alcohol policy at work.
The Applicant’s sister, Ms Walker, told the Tribunal that the Applicant has made a number of positive contributions to the Australian community, including contributions to charities, the Perth Zoo, and Police & Nurses. Ms Walker said that the Applicant had a ‘solid business’ and a good work ethic, and has helped the community by employing and helping people.
When asked, Ms Walker said that if the Applicant were removed, she did not think he would be able to cope and it would be extremely difficult for anyone in that position to ‘restart’. Ms Walker said that she has fears that, if the Applicant were removed, his depression would increase and he would take his own life.
Ms Walker emphasised that the Applicant calls Australia home, that his family is here, and that he has done ‘many wrong things’ but some good things. Ms Walker said that the Applicant had not been aware prior to the Cancellation Decision that his visa could be cancelled, and that knowing this has ‘made a huge difference’ and has been educational for the whole family.
Ms Walker urged the Tribunal to consider who the Applicant was before he became addicted to drugs, and to consider that the Applicant needs his family around to move forward.
When asked, Ms Walker said that she knew the Applicant was taking drugs prior to going to prison but, at the time, they had not really had a conversation about it, because he knew she would disapprove.
The Applicant made the following points in submitting that the strength, nature and duration of his ties to Australia consideration ought to weigh heavily in favour of revoking the Cancellation Decision:[119]
(a)The Applicant’s sisters and their families live in Australia, run established businesses in Australia and would be unable to accompany the Applicant to New Zealand if he were removed, from a practical and financial perspective.
(b)The Applicant’s sisters and their families have concerns for the Applicant’s wellbeing if he were removed from Australia, the impact it would have on their elderly parents, and would themselves be deeply affected if the Applicant was removed.
(c)The Applicant’s parents are elderly, suffer various health conditions, making international travel prohibitive, and they fear never seeing their son again if removed. They would also be emotionally, financially, and practically impacted if the Applicant were removed, losing the benefit of his physical presence and his assistance. They would be heartbroken.
(d)The Applicant has lived and worked in Australia for 37 years, owned property, run businesses, paid taxes, played sports, supported family and friends, donated to Australian charities, and has extremely significant and strong family and social links to Australia.
[119] A1 [88]-[101] and orally at hearing.
The Respondent made the following observations and submissions in relation to its position that the strength, nature and duration of ties consideration should be given limited weight in favour of revocation of the Cancellation, but not to the extent that it should outweigh the considerations that favour non-revocation:[120]
(a)The Applicant accepts the evidence regarding his strong family ties weighs in favour of revocation, as does his community contributions, employment, social and professional networks and voluntary general education and work completed in prison.
(b)However, less weight should be given to this consideration in circumstances where the Applicant offended soon after arriving in Australia[121] and where he has continued to offend frequently since then.
[120] R1 [44]-[47] and orally at hearing.
[121] See Direction no. 110, para 8.3(2)(a)(i).
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal is required to consider any impact of a decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or have an indefinite right to remain in Australia.[122] The Tribunal is also required to consider the strength, nature and duration or any other ties that the Applicant has to the community.[123]
[122] Direction no. 110, para 8.3(1).
[123] Direction no. 110, para 8.3(2).
The Tribunal takes the Respondent’s point that the Applicant offended shortly after his arrival in Australia and has offended continuously since. However, the Tribunal has also considered the fact that the Applicant’s time spent in Australia is also marked with periods of no offending,[124] and his considerable community contributions.
[124] These periods are set out at [66] above, for example.
The Tribunal accepts the Applicant’s evidence of his strong ties to Australia, especially with his parents and his sister, Ms Walker and his related submissions regarding the impact his removal would have on his family.
In the circumstances, the Tribunal finds that the strength, nature and duration of ties consideration weighs 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 Cancellation Decision.
The Applicant did not claim any minor children in Australia would be affected by the Cancellation Decision, nor is there any evidence to suggest this is the case.
Therefore, this consideration is not relevant to the Applicant’s case and weighs neutral.[125]
[125] The parties agree: A1 [102]; R1 [48].
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.[126]
[126] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR 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 directed the Tribunal to Direction no. 110 paras 5.2(5)-(6) and submitted that the Australian community would afford a higher level of tolerance to the Applicant, given that he has lived in Australia for his entire adult life.[127]
[127] A1 [104]-[105].
The Applicant also submitted that, while this factor must (given the wording of the section and current judicial authorities on its interpretation) weigh against revocation of the Cancellation Decision:
(a)it should be attributed moderate weight; and
(b)it is strongly outweighed by other primary considerations weighing in favour of revocation, particularly as his conduct does not fall into one of the categories listed in paragraph 8.5(2) of Direction no. 110.[128]
[128] A1 [106]-[107].
In relation to the expectations of the Australian community, the Respondent noted this factor is, in substance, adverse to any applicant, regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[129] The Respondent contended that therefore, this primary consideration weighs heavily against revocation.[130]
[129] R1 [49], referring to YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466, [76] (Mortimer J) and Direction no. 110, para 8.5(3).
[130] R1 [50], referring to FYBR v Minister for Home Affairs (2019) 272 FCR 454, [68] (Charlesworth J), [92]-[93], [100]-[104] (Stewart J).
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)The Applicant’s conduct does not fall into one of the categories listed in paragraph 8.5(2) of Direction no. 110, that is, his offending does not comprise of ‘serious crimes’[131] as that is the term used in Direction no. 110, including at paras 8.5(2)(a) and 8.5(2)(c), being ones that raise serious character concerns and bringing the expectation of the Australian community that that person should not continue to hold a visa.
(b)The Tribunal has found above that the Applicant presents a low, but not unacceptable, risk of reoffending.
(c)While the Applicant arrived in Australia as a young adult and began offending within that year and consistently thereafter (albeit marked with breaks in offending of some years), his community contributions have been found to be considerable and of a significant duration.
[131] Direction no. 110, para 8.5(2)(c).
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.[132]
[132] 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;[133]
(c)Refusal of other visa applications and cancellation of other visas;[134]
(d)A prohibition on applying for other visas;[135] and
(e)Periods of exclusion and special return criteria may apply.[136]
[133] Migration Act ss 189, 196, 197C, 198.
[134] Migration Act s 501F.
[135] Migration Act s 501E.
[136] Migration Act s 503; special return criteria (SRC) 5001.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[137] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[138]
[137] Migration Act s 15.
[138] 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 submitted that there is no evidence that if returned to New Zealand he will face a real chance of persecution and, therefore, international non-refoulement obligations are not engaged.[139] The Applicant submitted that he will, however, be prohibited from returning to Australia if the Reviewable Decision is affirmed, which would have a lifetime impact on him and his family members.[140]
[139] A1 [113].
[140] A1 [113].
At hearing, the Applicant submitted that, therefore, neutral weight ought to be afforded to this consideration.
The Respondent made a similar submission to that at [159] above,[141] adding 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.[142]
[141] R1 [52], [54].
[142] R1 [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, the legal consequences of the decision should be afforded limited weight in favour of revocation (but should not be found to outweigh the primary considerations weighing against revocation).[143]
[143] R1 [51], [54].
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 told the Tribunal that his health concerns include a shadow on his lung and two lumps on his right lung for which he is having follow up x-rays in March. The Applicant said that he takes Endep for depression, and that he has (and has had all of his life) ADHD, which he had learned to deal with. The Applicant said that his blood cancer is in remission.
The Applicant said that as a 56-year-old, if he were removed, it would be up to him to arrange housing, transportation, and work.
The Applicant said that after he arrived in Australia in 1987, he had returned to New Zealand once, approximately two years later, for a few weeks to visit old friends. The Applicant said he is no longer in contact with these people or with anyone else in New Zealand.
The Applicant said he had no current partner.
Ms Walker (the Applicant’s sister) gave evidence that if the Applicant were removed, he would not have the opportunity to support their parents as they age, and they would be devastated at being unable to see him. Ms Walker said the impact of the Applicant’s removal, if he were removed, would be ‘the same for them all’, that communication by electronic means would not be the same, and his family would not have the time nor the finances to visit him regularly in New Zealand. When asked, Ms Walker said that there was no option for anyone in their family to move to New Zealand if the Applicant were required to, and that they had no contact with anyone in New Zealand.
Ms Walker said that in the time the Applicant spent in the community between April 2020 and January 2023, she would always see him in Perth when she visited from Albany.
The Applicant submitted that the extent of impediments if removed consideration weighs strongly in favour of revocation of the Cancellation Decision, because:[144]
(a)He accepts he is unlikely to face any cultural barriers is returned to New Zealand, however having lived in Australia he was 18 years and with all his family here, he would suffer emotional, practical and financial distress were he to be returned.
(b)His family have grave concerns for his mental and physical health is he were removed due to his lack of support and his historic mental health issues.
(c)He is at a high risk of exacerbating his depression in circumstances where removal would see him return to a country where he has not lived for almost four decades, and where he has no family, job, accommodation, social network, nor funds. This could make it particularly difficult for him to start again at his age, and with his history of mental health issues.
[144] A1 [108]-[112]
The Respondent submitted that the extent of impediments if removed consideration should be afforded minimal weight in favour of revocation (but should not be found to outweigh the primary considerations weighing against revocation), for the following reasons:[145]
(a)While there is evidence that the Applicant has suffered from physical and psychological health conditions, there is no evidence to indicate he will not have access to treatment for these that is generally available to other citizens of New Zealand.[146]
(b)The Applicant has not provided any recent independent information regarding his physical and mental health, such that it remains unclear what support he requires to manage his conditions.
(c)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,[147] this should not be given significant or overwhelming weight in favour of revocation, especially where cultural, language, and social variances are indistinguishable and where there are comparable standards of health care and supports.
(d)Further, the Applicant has transferable skills and work experience, and the obstacles he faces in returning to New Zealand are not insurmountable.
[145] R1 [51], [61].
[146] Direction no. 110, para 9.2(1)(b); VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649, [428] (Deputy President Sosso).
[147] Direction no. 110, para 9.2(1)(c).
As noted above, the Applicant is 56-years-old. There is some evidence regarding the Applicant’s plan for treatment needs for his drug and alcohol addiction, for his return to employment, and his accommodation should he remain in Australia.
There is nothing to suggest that whatever treatment/s for his physical and mental health conditions the Applicant may require in the future would not be available to him in New Zealand.[148]
[148] Direction no. 110, para 9.2(1)(a).
Having lived in New Zealand until the age of 18, there is no evidence before the Tribunal that there would be any cultural barriers in New Zealand should the Applicant be removed.[149]
[149] 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.[150]
[150] 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.[151]
[151] Direction no. 110, para 9.2(1)(c).
The Tribunal also accepts, however, that the Applicant’s removal, in particular his separation from his elderly parents, his sisters and (to a somewhat lesser extent) his nieces and nephews, would see him face significant emotional and psychological hardship,[152] and evade him of the opportunity to assist his parents as they continue to age.
[152] Direction no. 110, para 9.2(1)(c).
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 the Applicant 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.[153]
[153] 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 (‘CRNL’). 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 consideration of family violence was not relevant in the Applicant’s case and weighs neutral.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds heavy weight should be afforded that consideration in the Applicant’s case.
The best interests of minor children consideration was not relevant in the Applicant’s case and weighs neutral.
The expectations of the Australian community consideration weighs 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 third primary consideration weighs heavily in favour of revocation of the Cancellation Decision.
(b)The extent of impediments if removed consideration weighs moderately in favour of revocation.
(c)The first and fifth primary considerations each weigh moderately against revocation of the Cancellation Decision.
(d)The second and fourth primary considerations, and 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 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.
The Tribunal is mindful of the fact that is has done so in circumstances where the Applicant’s offending is serious and where the Australian community would have the expectation that the Visa remain cancelled. However, it has balanced these considerations with the facts that he is at a low risk of reoffending and the Australian community would have a degree of tolerance for him, reflective of the years he has spent in Australia and his contributions to the community during this time.
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 [204] below.
DECISION
The decision of the delegate of the Respondent dated 17 December 2024 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 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of General Member L M Gallagher
.........[SGD]...............................................................
Associate
Dated: 18 March 2025
Date of hearing: 26 February 2025 Solicitors for the Applicant: Alice Graziotti, Estrin Saul Lawyers and Migration Specialists Solicitors for the Respondent: Miriam Williams, Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from a Check Results Report by the Australian Criminal Intelligence Commission run on 23 August 2023[154] and a History for Court Report by the Western Australian Police Force compiled on 3 February 2025.[155]
[154] R2, G7, pp 42-5.
[155] R3, S36, pp 273-8.
| Conviction Date | Court | Offence | Offence Date(s) | Court Result | |
| 1. | 15 June 2023 | Perth Magistrates Court | Possess a prohibited drug (MDMA) | 28 February 2020 | Fine: $1000 (global) Order for destruction |
| 2. | 15 June 2023 | Perth Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 28 February 2020 | Fine: $1000 (global) Order for destruction |
| 3. | 15 June 2023 | Perth Magistrates Court | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 28 February 2020 | Fine: $1000 (global) Order for destruction |
| 4. | 15 June 2023 | Perth Magistrates Court | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 28 February 2020 | Fine: $1000 (global) Order for destruction |
| 5. | 15 June 2023 | Perth Magistrates Court | Unlicenced person possess firearm/ ammunition | 28 February 2020 | Fine: $1000 (global) Order for destruction |
| 6. | 15 June 2023 | Perth Magistrates Court | Unlicenced person possess firearm/ ammunition | 28 February 2020 | Fine: $1000 (global) Order for destruction |
| 7. | 31 January 2023 | Perth District Court of Western Australia | Possession of a prohibited drug with intent to sell or supply (Methylamphetamine) | 28 February 2020 | Imprisonment: 2 years concurrent Order for destruction |
| 8. | 30 September 2022 | Perth Magistrates Court | No authority to drive – suspended | - | Fine: $2500 Mdl disqualified: 12 months cumulative |
| 9. | 15 November 2021 | Fremantle Magistrates Court | No authority to drive (fines suspended) | - | Fine: $400 |
| 10. | 15 November 2021 | Fremantle Magistrates Court | Driving with prescribed illicit drug | - | Fine: $1000 Mdl disqualified: 9 months concurrent |
| 11. | 25 March 2020 | Fremantle Magistrates Court | Breach of bail undertaking | 28 November 2019 | Fine: $300 |
| 12. | 25 March 2020 | Fremantle Magistrates Court | Breach of bail undertaking | 1 July 2019 | Fine: $300 |
| 13. | 25 March 2020 | Fremantle Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 1 June 2019 | Fine: $700 |
| 14. | 25 March 2020 | Fremantle Magistrates Court | Possessed a prohibited drug | 1 June 2019 | Fine: $1000 |
| 15. | 25 March 2020 | Fremantle Magistrates Court | Possessed a prohibited weapon | 1 June 2019 | Fine: $400 |
| 16. | 25 March 2020 | Fremantle Magistrates Court | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 1 June 2019 | Fine: $300 |
| 17. | 25 March 2020 | Fremantle Magistrates Court | Fail to provide sample oral fluid for test | - | Fine: $700 Mdl disqualified: 6 months concurrent |
| 18. | 26 March 2019 | Fremantle Magistrates Court | Possess a prohibited drug (Cannabis) | 9 January 2019 | Fine: $400 |
| 19. | 26 March 2019 | Fremantle Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 9 January 2019 | Fine: $700 |
| 20. | 20 November 2018 | Armadale Magistrates Court | Possess a prohibited drug (Cannabis) | 28 July 2018 | Fine: $100 |
| 21. | 20 November 2018 | Armadale Magistrates Court | Driving with prescribed illicit drug | - | Fine: $250 |
| 22. | 20 November 2018 | Armadale Magistrates Court | Unlicenced person possess firearm/ ammunition | 28 July 2018 | Fine: $100 |
| 23. | 17 July 2018 | Armadale Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 10 June 2018 | Fine: $250 |
| 24. | 16 July 2018 | Fremantle Magistrates Court | Possess a prohibited drug (Cannabis) | 28 March 2018 | Fine: $500 |
| 25. | 1 August 2017 | Rockingham Magistrates Court | No authority to drive (fines suspended) | - | Fine: $200 |
| 26. | 20 August 2015 | Armadale Magistrates Court | Exceed 0.05g alcohol per 100ml of blood | - | Fine: $700 Mdl Disqualified: 8 months - concurrent |
| 27. | 23 September 2014 | Armadale Magistrates Court | Cultivate a prohibited plant | 1 August 2014 | Fine: $1500 (global) |
| 28. | 23 September 2014 | Armadale Magistrates Court | Possess a prohibited drug (Cannabis) | 1 August 2014 | Fine: $1500 (global) |
| 29. | 23 September 2014 | Armadale Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 1 August 2014 | Fine: $1500 (global) |
| 30. | 23 September 2014 | Armadale Magistrates Court | Possess drug paraphernalia in or on which there was a prohibited drug or plant | 1 August 2014 | Fine: $1500 (global) |
| 31. | 23 September 2014 | Armadale Magistrates Court | Unlicenced person possess firearm/ ammunition | 1 August 2014 | Fine: $400 |
| 32. | 26 November 2009 | Fremantle Magistrates Court | Exceed speed limit in a school zone between 10 and 19km/h | - | Fine: $150 |
| 33. | 26 November 2009 | Fremantle Magistrates Court | No authority to drive – cancelled | - | SIO: 9 months suspended 12 months – concurrent Mdl disqualified: 9 months cumulative |
| 34. | 26 November 2009 | Fremantle Magistrates Court | No authority to drive – cancelled | - | SIO: 9 months suspended 12 months – concurrent Mdl disqualified: 9 months cumulative |
| 35. | 4 July 2007 | Perth Magistrates Court | Breach of suspended imprisonment order (SIO) (order of 20 February 2007) | - | Imprisonment: 1 month concurrent |
| 36. | 4 July 2007 | Perth Magistrates Court | Drive motor vehicle while using mobile phone | - | Fine: $150 |
| 37. | 4 July 2007 | Perth Magistrates Court | No motor drivers licence – under suspension | - | Imprisonment: 8 months Mdl canc & disq: 9 months cumulative (prev presc) |
| 38. | 8 June 2007 | Perth District Court of Western Australia | Breach of intensive supervision order (ISO) (order of 16 February 2004) | - | Fine: $200 |
| 39. | 8 June 2007 | Perth District Court of Western Australia | Breach of ISO (Order of 16 June 2003) | - | Fine: $200 |
| 40. | 8 June 2007 | Perth District Court of Western Australia | Breach of suspended sentence (order of 16 June2003) | - | Fine: $200 |
| 41. | 21 March 2007 | Perth Magistrates Court | Excess 0.08% | - | Fine: $1200 Mdl canc & disq: 6 months concurrent - prescribed |
| 42. | 20 February 2007 | Joondalup Magistrates Court | No motor drivers licence – under suspension | - | Imprisonment: 7 months Mdl disq: 9 months cumulative |
| 43. | 20 February 2007 | Joondalup Magistrates Court | Refuse to supply or provide false name and address | - | Fine: $200 |
| 44. | 20 February 2007 | Joondalup Magistrates Court | Breach of suspended imprisonment sentence | - | Imprisonment: 7 months suspended 12 months to imprisonment 7 months |
| 45. | 20 February 2007 | Perth Magistrates Court | No motor drivers licence – under suspension | - | Imprisonment: 8 months Mdl disq: 9 months cumulative |
| 46. | 20 February 2007 | Perth Magistrates Court | Reckless driving | - | Fine: $400 Mdl disq: 6 months concurrent |
| 47. | 20 February 2007 | Perth Magistrates Court | Excess 0.02% | - | Fine: $150 Mdl disq: 3 months concurrent |
| 48. | 20 February 2007 | Perth Magistrates Court | Breach of suspended imprisonment sentence | - | Imprisonment: 8 months suspended 12 months to imprisonment 8 months |
| 49. | 20 February 2007 | Perth Magistrates Court | No motor drivers licence – under suspension | - | Imprisonment: 8 months Mdl disq: 12 months cumulative |
| 50. | 20 February 2007 | Perth Magistrates Court | Breach of suspended imprisonment sentence | - | Imprisonment: 8 months suspended 12 months to imprisonment 8 months |
| 51. | 20 February 2007 | Perth Magistrates Court | Breach of bail (fail to appear soon after) | 18 July 2006 | SIO: 1 month imprisonment suspended for 12 months |
| 52. | 29 March 2005 | Perth Court of Petty Sessions | No motor drivers licence – under suspension | - | Fine: $1000 Mdl disq: 9 months cumulative |
| 53. | 29 March 2005 | Perth Court of Petty Sessions | Wilfully mislead police | - | Fine: $500 |
| 54. | 29 March 2005 | Perth Court of Petty Sessions | No motor drivers licence – under suspension | - | Fine: $1000 Mdl disq: 9 months cumulative to serve concurrent |
| 55. | 16 February 2005 | Perth Court of Petty Sessions | Possess smoking implement | - | Fine: $250 |
| 56. | 16 February 2004 | Rockingham Court of Petty Sessions | Possess prohibited drug | - | Fine: $100 |
| 57. | 16 February 2004 | Rockingham District Court of Western Australia | Breach of ISO (order of 16 June 2003) | - | ISO |
| 58. | 16 February 2004 | Rockingham District Court of Western Australia | Stealing | - | ISO |
| 59. | 16 October 2003 | Rockingham Court of Petty Sessions | Possess prohibited drug | - | Fine: $200 |
| 60. | 16 October 2003 | Rockingham Court of Petty Sessions | Exceed the speed limit by 10-19 kilometres per hour | - | Fine: $100 |
| 61. | 16 October 2003 | Rockingham Court of Petty Sessions | No motor drivers licence – under suspension | - | Fine: $400 Mdl disq: 9 months cumulative |
| 62. | 16 October 2003 | Rockingham Court of Petty Sessions | Refuse to supply or provide false name and address | - | Fine: $200 |
| 63. | 10 October 2003 | Fremantle Court of Petty Sessions | No motor drivers licence – under suspension | - | Fine: $400 Mdl disq: 9 months cumulative |
| 64. | 2 October 2003 | Perth Court of Petty Sessions | No motor drivers licence – under suspension | - | Fine: $400 Mdl disq: 9 months cumulative |
| 65. | 19 June 203 | Fremantle Court of Petty Sessions | Excess 0.05% | - | Fine: $250 Mdl disq: 3 months concurrent |
| 66. | 16 June 2003 | Fremantle District Court of Western Australia | Fraud | - | ISO: 18 months |
| 67. | 16 June 2003 | Fremantle District Court of Western Australia | Receiving | - | SIO: 18 months suspended for 18 months |
| 68. | 7 May 2003 | Fremantle Court of Petty Sessions | Excess 0.08% | - | Fine: $800 Mdl disq: 6 months |
| 69. | 7 May 2003 | Fremantle Court of Petty Sessions | Excess 0.05% | - | Fine: $180 |
| 70. | 24 April 2003 | Fremantle Court of Petty Sessions | Unauthorised use of a motor vehicle | - | Fine: $200 Box top trailer |
| 71. | 24 April 2003 | Fremantle Court of Petty Sessions | Burglary & commit offence (place) | - | SIO: 9 months suspended for 18 months |
| 72. | 24 April 2003 | Fremantle Court of Petty Sessions | Farm possessed no licence | - | Fine: $200 Farm forfeited |
| 73. | 24 April 2003 | Fremantle Court of Petty Sessions | Possess prohibited drug | - | Fine: $1000 (global) |
| 74. | 24 April 2003 | Fremantle Court of Petty Sessions | Possess prohibited weapon | - | Fine: $200 |
| 75. | 24 April 2003 | Fremantle Court of Petty Sessions | Possess smoking implement | - | Fine: $1000 (global) |
| 76. | 24 April 2003 | Fremantle Court of Petty Sessions | Possess unlicensed ammunition (3 counts) | - | Fine: $1000 (global) Ammo forfeited |
| 77. | 24 April 2003 | Fremantle Court of Petty Sessions | Receiving | - | SIO: 4 months suspended for 9 months |
| 78. | 20 July 1995 | Perth Court of Petty Sessions | Driving under the influence | - | Fine: $500 Mdl canc & disq: 6 months - prescribed |
| 79. | 13 October 1992 | Fremantle Court of Petty Sessions | Excess 0.08% | - | Fine: $300 Mdl Disq: 4 months |
| 80. | 28 August 1991 | Perth Court of Petty Sessions | Cannabis possess a quantity | - | Fine: $100 |
| 81. | 22 May 1991 | Fremantle Court of Petty Sessions | Reserve drinking | - | Fine: $50 |
| 82. | 27 January 1988 | Fremantle Court of Petty Sessions | Reserve drinking | - | Fine: $30 |
1
20
0