Winikerei and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 93

Winikerei and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 93 (24 January 2025)
Applicant/s:  Raiwhara Winikerei
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8956

Tribunal:General Member S Evans
Place:Sydney
Date of Decision:                24 January 2025
Date of written Reasons:    31 January 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa is revoked.

.........................[SGD].................................
General Member S Evans
Catchwords
MIGRATION – Mandatory cancellation of Applicant’s visa – applicant has substantial criminal record – Direction 110 - whether there is ‘another reason’ to revoke mandatory cancellation – citizen of New Zealand – low risk of re-offending – decision under review set aside and substituted with decision revoking the mandatory cancellation.
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
STATEMENT OF REASONS

Raiwhara Winikerei (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant is a 44 year-old citizen of New Zealand who first arrived in Australia age 8.[1] On 24 November 2023, his visa was mandatorily cancelled by a delegate of the Respondent pursuant to subsection 501(3A) of the Act on the basis that he did not pass the character test by operation of paragraphs 501(6)(a) and 501(7)(c) of the Act having been sentenced to a term of imprisonment of 12 months or more.[2]
[1] Statutory Declaration of Raiwhara Wiremu Winikerei dated 27 December 2024.
[2] G-Documents (‘G’) G10, p.144-146.
On 28 November 2023, the Applicant was given notice of the cancellation decision.[3] On 5 and 7 December 2023 he made representations seeking revocation of the cancellation decision.[4] On 1 November 2024, a delegate determined not to revoke the cancellation decision (the reviewable decision).[5]
[3] G12, p.171.
[4] Ibid, p.172-190.
[5] G2, p.16-20; G3, p.21-41.
For the reasons that follow, the reviewable decision will be set aside and in substitution, it will be decided that there is another reason to revoke the cancellation of the Applicant’s visa.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act. Subparagraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1)Australia 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.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-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.
(4)The 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 measurable risk of causing physical harm to the Australian community.
(5)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.
(6)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.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations I must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the 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. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
It is not in dispute that the Applicant does not pass the character test by operation of s 501(6)(a) and s 501(7)(c) of the Act. As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
Background
The Applicant migrated to Australia on 23 July 1988.[6] He regularly returned to New Zealand to spend time with his father until 1991 when he moved permanently to Australia. The Applicant reports having had a difficult childhood which included the separation of his parents, his mother being physically abused and alcoholism in his family. His father’s drinking led to daily violence, some of which was directed at the Applicant. The Applicant’s school attendance was irregular, and his home life become increasingly dysfunctional, and he left school and began working when he was about 15 years old. The Applicant’s childhood experiences were traumatic and influenced his relationships and behaviour later in life.[7]
[6] G10, p.144.
[7] Statutory Declaration of Raiwhara Wiremu Winikerei dated 27 December 2024.
The Applicant was held in immigration detention from 23 August 2024 until he departed Australia voluntarily on 6 November 2024.[8] He told me he chose to leave detention and appeal the cancellation of his visa from New Zealand due to the conditions he experienced while in detention. Specifically, he experienced violence and found the availability and use of illicit drugs was deleterious to his recovery. He was bedridden for five weeks as the food he was provided in detention triggered his gout to flare up to the extent he required a wheelchair. The Applicant also anticipated he would be able to work in New Zealand.
[8] Applicant’s Tender Bundle p.9 at [49], [54].
The Applicant’s 17 year-old son moved to New Zealand shortly after his father to be with him. They are currently living together and rebuilding their relationship.[9] Should the Applicant’s visa be reinstated, his son is expected to return to Australia with his father.
[9] Ibid, p.11 at [57]-[58].
None of the Applicant’s three minor children have provided statements in support of their father. The Applicant explained in his evidence that his physical absence since his imprisonment has been difficult for his children, and he feared providing statements would traumatise them.
The Applicant has been in a relationship with his wife since 2006.[10] They remain committed to each other, and the Applicant plans to reunite his family. Mrs Winikerei has provided statements in support of her husband and gave evidence at the hearing.[11]
[10] Statutory Declaration of Raiwhara Wiremu Winikerei at [21].
[11] G11, p.147-148; p.151-153.
Evidence of Demeine Winikerei
Mrs Winikerei gave evidence that the Applicant’s absence has been challenging for her and the Applicant’s children. Their children had waited patiently for their father, visiting him regularly in prison, expecting him to return home at the end of his sentence.
She explained in her evidence that the Applicant plays an active part in the lives of their children and supports them in their interests and pursuits. All three children have maintained a close relationship with their father and continue to do so electronically. Mrs Winikerei requires her husband’s support so she can study and work full-time while raising their three boys. She is required to work night shifts and the children are currently left at home alone.
Mrs Winikerei is confident that the people who were a bad influence on her husband and encouraged his use of illicit drugs are now no longer in contact or contactable. Mrs Winikerei supports her husband continuing to seek support networks and engage in therapy in the community.
CONSIDERATIONS AND REASONING
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the conduct to date
Paragraph 8.1.1 of Direction 110 provides that ‘in 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 family 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, 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;
The Applicant’s offending
On 8 September 2023, the Applicant entered guilty pleas and was sentenced in the District Court of New South Wales to six years imprisonment for separate offences that occurred on 4 August 2018 and 3 August 2019.[12]
[12] G7, p.107-137.
The 2018 offending
The 2018 offences were:
(1) Count 1 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 931.3 grams of gamma butyrolactone ("GBL"); and
(2) Count 2 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 5.94 grams of methylamphetamine.
(3) Sequence 3 – possess prohibited drug, namely cannabis, pursuant to section 10(1) of the Drug Misuse and Trafficking Act 1985 (DMTA).[13]
[13] G9, p.141-143.
The circumstances of the 2018 offences are set out in the sentencing remarks of Judge Mahony SC. In summary, police searched a vehicle driven and abandoned by the Applicant due to him being taken to the hospital following a suspected drug overdose. Police found items including 5.94 grams of methylamphetamine and a total of 931.3 grams of GBL. Police also found the Applicant’s mobile phone in the vehicle which revealed communications between him and multiple people regarding the supply of drugs.[14]
[14] G7, p.108-114.
The 2019 offences
The 2019 offences were:
(1)Count 1 – Supply prohibited drug greater than or equal to commercial quantity, namely 1,204.7 grams of GBL;
(2)Count 2 – Supply prohibited drug greater than small and less than indictable quantity, namely 4.56 of methylamphetamine;
(3)Count 3 – Supply prohibited drug greater than small and less than indictable quantity, namely 1.03 grams of 3,4- methylenedioxymethamphetamine; and
(4)Count 4 – Supply prohibited drug less than or equal to small quantity, namely 1.2 grams of cannabis leaf.
(5)Sequence 5 – possession of equipment for administering prohibited drugs (ice pipes and syringes), an offence pursuant to section 11(1) of the DMTA.
(6)Sequence 12 – deal with proceeds of crime less than $100,000, namely $760, an offence pursuant to section 193C(2) of the DMTA.[15]
[15] Ibid.
The Applicant was stopped by police after failing to use his indicator when making a turn from a carpark. The Applicant’s wife and 7-year-old son were present. During a search of the vehicle police found cash and 1,204.7 grams of GBL and 0.52 grams of methylamphetamine. The Applicant was on conditional bail for the 2018 offences at the time.[16]
[16] Ibid.
The seriousness of the offending was addressed by Judge Mahony when sentencing the Applicant. His Honour noted that the supply of illicit drugs in the community is an insidious practice that leads to ‘inestimable suffering, hardship, and further criminal activities’. He considered general deterrence an important principle in sentencing for drug supply offences and that a clear message must be sent to like-minded members of the community that the courts will impose tough punishment in appropriate cases. The Applicant was warned that if he were to reoffend, he would face increasingly lengthy the terms of imprisonment.[17]
[17] Ibid, p.131; p.134 at [92].
In relation to the objective seriousness of the 2018 offences, Judge Mahony found they fell below the mid-range for a deemed supply offence and in the upper part of the low range for such an offence. His Honour said that given the quantity of methylamphetamine involved, it is not a mitigating factor that the Applicant was addicted to drugs at the time of the offending, but did provide an explanation and context for his offending.[18]
[18] Ibid, p.129-130.
In relation to the objective seriousness of the 2019 offences, the Court found that it was an aggravating factor that they were committed whilst the Applicant was on conditional liberty, having been released on bail for the 2018 offences.[19]
[19] Ibid, p.131 at [85].
Although the Applicant’s offending fell just below the midrange or was in the low range of the objective seriousness for these types of offences, the Court still imposed a significant sentence of six years imprisonment.
Prior to the offending for which he was convicted on 8 September 2023, the Applicant’s criminal conduct was limited to what both parties agree were relatively minor offences for which he received fines, section 9 and 10 bonds and a community corrections order. The offending included a conviction for Assault officer in execution of duty-T2 on 23 April 2002 for which he was fined $500, and a 1 July 2004 conviction for Assault occasioning actual bodily harm–T2 for which he was sentenced to a community service order of 100 hours.[20]
[20] G9, p.143.

Having regard to the significant term of imprisonment the Applicant received on 8 September 2023, I consider his conduct to date to be serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:
In 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.
In 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 non-citizen 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).
The nature of future harm
The nature of the harm to the Australian community should the Applicant commit similar offending is very serious, having the potential to cause physical or psychological harm to members of the Australian community.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant contends that his offending was primarily the consequence of his use of illicit substances and has provided a detailed explanation as to the genesis of his drug use.
The Applicant sustained serious injuries after falling through a skylight and a roof while working as a crane operator. Shortly before the accident the Applicant and his wife had taken out a mortgage and had a child. Owing to his financial commitments, the Applicant returned to work before he had fully recovered from his injuries.
Shortly after his premature return to work, the Applicant found himself unable to perform tasks which were central to his role because of his injuries. He then changed employer to earn more money. The new position required him to work longer hours, which further exacerbated his injuries.
In November 2013, the Applicant was injured in another workplace accident which left him immobile and incapable of working for six months. When he returned to work in May 2014, the Applicant had limited movement and was constantly shifting his weight between his left and right legs to relieve the pain and remain mobile. This led to complications in his hips and problems with his lower back. The pain he was experiencing made him a candidate for chronic pain treatment at Westmead Hospital. He was also provided the option to have back fusion surgery, both knees replaced and a hip replacement. The Applicant was reluctant to pursue the surgical options because there was a low chance they would eliminate his pain and high chance of other complications. His conditions continued to worsen.
The Applicant was prescribed the opioid ‘Endone’ to relieve pain. The medication was initially effective, but its efficacy reduced over time. He was advised to increase the dose of Endone, which made him groggy and unable to function properly. He began using more of the painkiller than he was prescribed so that he could get out of bed and also began to “self-medicate” when he was put on shift. He had discovered that ‘ice’ and ‘GBL’ were effective painkillers that also enabled him to stay awake and function. The Applicant commenced a gradual transition from prescribed medications to nonprescribed illicit substances to manage his pain.
By 2018, the Applicant was regularly using illicit drugs. He experienced periods of up to a week without sleeping. The cycle continued and his dependency deepened, and he was spending approximately $900 a day on illicit drugs. He was no longer able to support his family, financially, functionally or emotionally.
Rehabilitation and remorse
Although he was aware of his increasing drug use and dysfunction, it is the Applicant’s evidence he did not appreciate the full extent of his problems until he was arrested and held on remand. He began to appreciate how deeply addiction had taken a hold of his life and the impact it had on his family. He found the experience of being incarcerated also brought home the seriousness of his offending. He was chastened by the experience and ashamed of his behaviour, noting at the hearing his entire family, including his parents, were present for his sentencing.
The Applicant spent more than three years being held on remand, during which his rehabilitation options were limited. After being sentenced, he completed a Connect Program, Positive Lifestyle and actively sought psychological treatment since 2023, which he reports helped him manage without drugs. While in prison the Applicant participated in counselling.[21] A report from psychologist H El-Hassan confirms his active participation in treatment during 2023. The Applicant sought psychological treatment fortnightly, but the actual frequency of treatment fell short owing to corrective services administrative arrangements.[22] The Applicant also found relief and guidance in speaking to other inmates who wanted to change.
[21] Applicant’s Tender Bundle p.9 at [48].
[22] G7, p.118.
Upon returning to New Zealand, the Applicant referred himself to a 12-step based program focused on addiction recovery. The program, which he attends for two-hours every week, is designed for people who want to remain free from alcohol or drugs. The Applicant has also sought and been assessed for referral to mental health services.[23]
[23] Applicant’s Tender Bundle p.10 at [50]-[51].
Clinical psychologist and neuro physiologist Dr D Rowe assessed the Applicant on 25 May 2021 and administered psychological tests. According to the sentencing remarks, Dr Rowe opined that the Applicant’s dysfunctional upbringing and exposure to violence during his youth likely contributed to his aggression related problems and left him vulnerable to succumbing to similar antisocial activities in 2018 and 2019.[24]
[24] G7, p.117-118.
Dr Rowe assessed the Applicant as suffering from a ‘chronic pain disorder, a substance use disorder’ and a ‘major depressive disorder’. He opined that due to the cognitive impairing effects of the Applicant’s major depressive disorder and chronic pain disorder, he would have had difficulty inhibiting any behaviours relating to the use of illicit substances and he would not have adequately considered the consequences of his offending behaviour. Dr Rowe concluded there was a causal connection between the Applicant’s offending behaviour and his mental health condition at the time of the offences.[25]
[25] Ibid.
The Applicant continues to experience some pain from his injuries. He does not use painkillers as he has been able to rely on physical exercises and changes in his lifestyle to combat the pain. He reports this approach has overall been very effective for pain management and beneficial for his mental health.
The Applicant is no longer in contact with friends and associates he used drugs with. The Applicant does not drink alcohol and has not done so for 10 years. He explained in his evidence that he stopped drinking alcohol because he did not like the person he became when he drank and wanted to make better use of his time.
Should the Applicant return to the community he has a job offer from a previous employer and plans to re-engage with support services for his mental health and substance abuse. He identifies strong protective factors including the ongoing support of his wife, children, parents, siblings and extended family and friends in the community.
A ‘Sentencing Assessment Report’ prepared by NSW Corrective Services assessed the Applicant as a medium risk of reoffending. The report notes the Applicant’s drug dealing was motivated by the need to fund his own habit and he had never sought financial gain or to fund a lavish lifestyle through his dealing. The author of the report noted that the Applicant attributed blame for his addiction solely on his own poor choices. The report stated that at no stage did the Applicant minimise the risk his behaviour posed to the community or the harm his offending had done to his family. He is reported to have provided clear insight into his decision-making and appeared honest throughout the interview. The Applicant also expressed a willingness to commit to community corrections supervision and to undertake community service work if so sentenced.[26]
[26] G7, p.113-114.
Protection of the Australian community – conclusion
The Applicant has demonstrated insight into his offending, the causes of his conduct and the harm he had caused to his family and the Australian community. He has used these insights to address the factors that contributed to his past conduct, most notably his mental health and pain management. I accept the Applicant is genuinely remorseful for his offending and identified protective factors which will prevent further offending behaviour. Those protective factors were present during the period of his offending, but I accept they will be of greater utility as the Applicant has learnt from his experience and how to manage pain without drugs.
While the offending was serious, for these reasons I find that there is a low risk that the Applicant will reoffend. As such, the primary consideration of the protection of the Australian community is afforded medium weight in favour of not revoking the mandatory cancellation decision.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Subsection 8.2(1) of Direction 110 provides that the Australian government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’.
Subsection 8.2(3) of the Direction specifies the following factors must be considered where relevant when considering the seriousness of family violence:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
the extent to which the person accepts responsibility for their family violence related conduct;
the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
efforts to address factors which contributed to their conduct; and
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
As there is no credible evidence to indicate the Applicant has engaged in conduct that constitutes family violence, this consideration weighs neutrally.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. 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 first arrived in Australia when he was 8 years old and has largely been resident in Australia since his arrival. He was educated in this country and spent most of his formative years in Australia. Since arriving in Australia, he has established his life here through his employment and starting a family with his wife. His immediate family members in Australia include his three minor children who normally reside in Australia, his adult son and his wife.
The Applicant’s extended family in Australia includes his mother, father, two brothers, sister, father-in-law, mother-in-law, cousin, five nieces and three nephews. Letters of support have been provided by family members attesting to his good character and impact his removal would have on them.[27] He has contributed to the Australian community through his employment including as a crane operator and construction worker in the past.
[27] G11, p.147-156.
The Applicant’s mother is in poor health having suffered multiple strokes. She currently lives on her own and is cared for by family members, primarily the Applicant’s sister and her partner. Should his visa be reinstated, the Applicant intends for his mother live with his family.
The Applicant’s eldest son was born in September 2004. He was involved in a car accident in 2022 when he was 17 years old and sentenced to juvenile detention. The Applicant and his son maintain contact and reports having a good relationship with his son’s mother.
The Applicant has strong ties to Australia. His family and friends residing in Australia would be expected to experience emotional, practical or financial hardship if the cancellation decision is not revoked. I accept that the Applicant has contributed to the community through his volunteer work and participating in rugby league.
The strength, nature and duration of the Applicant’s ties to the Australian community weigh heavily in favour of revoking the mandatory cancellation decision.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has three sons aged under 18 years. CN is 17 years old, BN is 15 years-old and MN is 12. BN and MN currently reside with their mother, while CN has moved to New Zealand to be closer to the Applicant. In addition to his own children, the Applicant has five minor nieces and one minor nephew in Australia.
The Applicant maintains daily communication with his sons through messaging and phone calls. He is intent on rebuilding his family and the relationships he has with his sons and wants to be physically present for them.
The Applicant has a particularly close relationship with his youngest son MN. CN is 17 years old and was traumatised by the loss of a close friend in violent circumstances. CN has become withdrawn and distant, and the Applicant wishes to support him, and they currently live together in New Zealand. When he was in Australia, CN was receiving appropriate support including counselling which has been interrupted or suspended by his moving to New Zealand to spend time with the Applicant. Should his visa be reinstated, CN plans to return to Australia with the Applicant.
The Applicant acknowledges his offending has been detrimental to his children. He reports his children became withdrawn and stopped participating in family activities in his absence. Though he never used drugs in front of his children, the Applicant acknowledges that his drug use has affected his family. The Applicant claims to have maintained a strong relationship with his nieces and nephew. He sees his other nieces and nephews at family events.
The Applicant’s three children and his nieces and nephew all have parental figures who can provide them with emotional and financial support. Although there is limited documentary evidence, based on Mrs Winikerei’s statement I am satisfied that the Applicant’s three minor children would suffer psychological and practical consequence should his visa not be reinstated. I accept that he is expected to play an important role in his family and to provide support and guidance to his sons. I am satisfied that it will not be possible to fully perform that role if he is not living in Australia.
For these reasons the best interest of minor children weighs very heavily in favour of revoking the cancellation decision.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.

This 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, without independently assessing the community's expectations in the particular case.
The Applicant has failed to obey the law and his criminal offending was very serious and would be expected to be removed from the community.
Having regard to his serious offending, this consideration weighs heavily against revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1)   Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)   the non-citizen's age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
While he would not be expected to face any significant language or cultural barriers in New Zealand, the Applicant has not had contact with friends or relatives in New Zealand since he was a child. He lacks an existing support network in New Zealand, and gave evidence that his life has been very difficult since returning on 6 November 2024. The Applicant returned with the intention of working so that he could provide financial assistance to his family, but is yet to find a job. He has found it difficult to transfer his experience and licenses from Australia to New Zealand, and is working on his computer skills and finding alternative employment in the meantime.
The Applicant has been provided transitional housing for three months but in the medium term he faces uncertainty regarding accommodation. The Applicant has been diagnosed with anxiety and depression, which I acknowledge may be aggravated by his being isolated from his family. However, I accept the Respondent’s submission that he would be able to access welfare and health services in New Zealand of a similar high standard to those widely available in Australia.
While the impediments the Applicant faces may not be insurmountable, I accept he is facing genuine practical difficulties resettling and re-establishing himself in New Zealand. Without his family or an existing support network in that country, the Applicant faces additional difficulty.
This consideration is afforded limited weight in favour of revoking the cancellation of the Applicant’s visa.
CONCLUSION
In balancing the primary and other considerations, the protection of the Australian community weighs against revocation, particularly given the serious nature of the Applicant’s offending. However, this consideration is afforded less weight owing to his remorse and the low risk of further offending. The protection of the Australian community weighs heavily against revoking the cancellation decision.
The best interests of the Applicant’s three minor children weigh in favour of revoking the cancellation decision and their interests are afforded significant weight. The effect of the cancellation on the Applicant’s family – notably his wife and mother – support significant weight being apportioned to the primary consideration of the Applicant’s strength, nature and duration of ties to Australia. The impediments he faces in New Zealand weigh in favour of revocation and are afforded nominal weight.
On balance, I find that the correct and preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution, the decision of 24 November 2023 to cancel the Applicant’s visa is revoked.

Dates of hearing: 15 & 16 January 2025

Solicitors for the Applicant:
M Mamarot, South West Migration & Legal Services

Counsel for the Respondent: K Tang, 8 Wentworth Chambers

Solicitors for the Respondent: L Liu, Hunt & Hunt Lawyers

Dates of hearing:	15 & 16 January 2025
Solicitors for the Applicant:	M Mamarot, South West Migration & Legal Services
Counsel for the Respondent:	K Tang, 8 Wentworth Chambers
Solicitors for the Respondent:	L Liu, Hunt & Hunt Lawyers