Xian and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2288
•21 October 2025
Xian and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2288 (21 October 2025)
Applicant:Jing Xian
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4524
Tribunal:Senior Member N Burns
Place:Melbourne
Date:21 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the applicant’s visa.
................................[S. G. D.]................................
Senior Member N Burns
Catchwords
MIGRATION – review of a decision not to revoke mandatory cancellation of visa under section 501CA(4) of Migration Act 1958 – character test – Direction 110 – primary and other considerations – Non-Revocation set aside – another reason to revoke the mandatory cancellation
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
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 7HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Secondary Materials
Direction no 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (dated 7 June 2024)
Statement of Reasons
On 1 August 2025 Mr Xian (the applicant) lodged an application with the Administrative Review Tribunal (the Tribunal) for a review of a decision made by a delegate of the Minister (the Respondent) on 29 July 2025 not to revoke the mandatory cancellation (on 22 October 2024) of his Class BB (Subclass 155) Resident Return visa under s 501CA(4) of the Migration Act1958 (Cth) (the Act).
The issues for the Tribunal to determine on review are whether the applicant passes the character test, and, if not, whether there is another reason the cancellation of his visa should be revoked.
BACKGROUND
The applicant is a 22-year-old man from the People’s Republic of China (hereafter China). He came to Australia on 11 September 2013 aged 10, holding a Class AH (Subclass 101) Child visa. He was granted the Class BB (Subclass 155) Resident Return visa on 22 January 2019.
The applicant’s mother (Shunli) and older half-brother (Chen, now aged 27) came to Australia in 2009 where she married her now husband (the applicant’s stepfather) leaving the applicant with his maternal grandparents in China. The applicant’s mother is an Australian permanent resident whilst Chen and the applicant’s stepfather are Australian citizens. The applicant never knew his biological father. The applicant has four younger half-brothers, all born in Australia and Australian citizens. His maternal grandmother also presently lives with the applicant’s family in Australia, holding a bridging visa whilst awaiting an outcome on a Parent visa application.[1]
[1] Shunli’s statement dated 11 September 2025, Applicant’s hearing bundle (AHB) p 15.
On 18 June 2022 the applicant (along with others) participated in home invasions on three properties in different Melbourne suburbs, armed with weapons (the index offending). He was subsequently arrested, placed on remand, and then released on bail. On 8 December 2023 the applicant was sentenced to a total period of imprisonment of five years and six months (allowing for concurrent sentences), with a non-parole period (NPP) of three years at the Country Court of Victoria for the following offenses:
·Aggravated home invasion (steal) – Offensive weapon: 54 months
·Aggravated burglary – Offensive weapon: 4 years
·Attempted Aggravated Burglary – Offensive weapon: 48 months.
·Criminal damage (2 counts): 12 months on each count.[2]
[2] National Criminal History Check dated 2 May 2024, G-Documents pp 51 – 52.
The applicant sought an appeal of his sentence, which was unsuccessful.
Whilst on bail from 19 August 2022 to 21 July 2023,[3] the applicant lived with his family in Sunshine (where he had been living leading up to and at the time of the index offending), worked with Chen in his landscaping and renovation business, and abided by relevant bail conditions including curfew and reporting as required. After being sentenced he spent eight months at Loddon Prison (regional Victoria) from 8 December 2023 before moving to Parkville Youth Justice Centre (Melbourne) on 16 July 2024.[4] The applicant’s sentence expires on 8 May 2029. His earliest possible parole date is 7 November 2026.[5]
[3] G-Documents, p 314.
[4] Youth Justice Custodial Progress Report, AHB p 153.
[5] Joint hearing bundle (JHB) p 143.
On 22 October 2024 the applicant was notified his visa was cancelled under s 501(3A) of the Act because he had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory.
On 23 and 28 October 2024 the applicant made representations in accordance with an invitation given to him under s 501CA(3)(b), requesting the cancellation decision be revoked. Further representations were made by the applicant on 19 November 2024 and 10 June 2025, which included his signed statement dated 15 May 2024.[6] In his reasons for requesting revocation the applicant expresses remorse for his victims which, along with being close to his family in Australia – his home for the past 13 years – means he will never reoffend. He states on reflection at the time he was feeling lost and involved with the wrong crowd.
[6] AHB pp 1 – 5.
As noted, a delegate of the Minister decided not to revoke the cancellation decision on 29 July 2025. That decision is the subject of the current review.
A hearing was held on 2 and 3 October 2025 at the Melbourne registry with both parties represented. The Tribunal heard evidence from Ms Carla Ferrari, forensic psychologist, via video link, as well as from the applicant, the applicant’s mother (Shunli Xian), his older brother (Chen Xian) and his younger brother aged 13 (YB2) in person. Shunli and Chen were assisted by an interpreter in the Mandarin and English languages.
The Tribunal notes prior to the hearing on 2 October 2025 the Respondent submitted a 46-page document titled ‘Summary of Prosecution Opening – Plea’ dated 14 September 2025 related to the matter between the applicant (and five others) and the Director of Public Prosecutions. At hearing the Respondent explained the document provided a more fulsome explanation of the index offending involving the applicant (discussed further below), which may be useful during cross examination. The representative, whilst noting a copy of the document was in their possession, objected to the fact it had not been tendered as evidence for the hearing beforehand, allowing the applicant enough time to meaningfully consider it. If the Tribunal decided to accept the document, the representative contended it should not be given significant weight, with the focus instead on the judge’s sentencing remarks in this matter.
The Tribunal accepted the document into evidence,[7] adjourned the hearing for 20 minutes for the representative to read the document, and then another ten minutes after the hearing resumed so that the representative could remind the applicant that he does not have to answer questions during cross examination that may incriminate him. The Tribunal notes during cross examination the Respondent did not appear to rely on this document in any significant way.
[7] R - 1
Whilst accepting this document into evidence, the Tribunal agrees with the representative that it should be given limited weight given it reflects the prosecution’s plea in the matter, which was ultimately decided by the sentencing judge, who in their comments took into account the prosecution’s plea. The Tribunal has taken into account the sentencing remarks, and the parties’ related submissions in weighing up relevant primary considerations in this case, discussed in more detail below.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:
the person does not pass the character test because of a substantial criminal record; and
the person is 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.
A person has a ‘substantial criminal record’ in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
On the material before it – which includes a copy of the applicant’s national criminal history check – the Tribunal accepts the applicant has ‘a substantial criminal record’ and was serving a sentence of imprisonment at Parkville Youth Justice Centre at the time of cancellation. Both parties accept the applicant does not pass the character test. Accordingly, the Tribunal finds that the applicant does not pass the character test, and his visa is subject to mandatory cancellation.
The Tribunal has considered whether there is another reason why the mandatory cancellation of the applicant’s visa should be revoked: s 501CA(4)(b)(ii). In doing so it has had regard to the primary and other considerations contained in Part 2 of Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’), as required.
Paragraph 6 of the Direction provides that decision makers be informed by the principles in paragraph 5.2 of the Direction, as follows:
(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 non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(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.
Informed by these principles, the Direction also sets out matters to be considered in deciding to refuse a visa application, or to revoke (or not) the cancellation of a visa, identifying primary considerations and other considerations. Paragraph 7 of the Direction states as follows:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (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.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 9 of the Direction states that the Direction does not limit the matters the Tribunal can consider.
The primary considerations that must be taken into account by the Tribunal are set out in paragraph 8 of the Direction as follows:
(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
(5) Expectations of the Australian community
The Tribunal must also take into account other considerations (paragraph 9 of the Direction). These include:
a)Legal consequences of the decision
b)Extent of impediments if removed
c)Impact on Australian business interests
In weighing up these considerations in the applicant’s case, the Tribunal has taken into account the submissions and documentary material lodged by the parties, and the oral evidence of the applicant and the other witnesses including the expert testimony of Ms Ferrari.
PRIMARY CONSIDERATIONS
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[8]
[8] Paragraph 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[9]
[9] Ibid
Paragraph 8.1(2) of the Direction requires decision-makers to:
a)consider 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.
Nature and seriousness of the applicant’s conduct
This primary consideration involves taking into account the nature and seriousness of the applicant’s past offending, which is the index offending that occurred on 18 June 2022.
The Tribunal notes the applicant was found guilty of one count of affray by the Sunshine Magistrates Court on 23 July 2024, relating to events on 28 May 2022 to which he received a fine (of $750). No conviction was recorded. As contended by the representative[10] (and accepted by the Respondent), for reasons set out in WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465, the Tribunal is prevented from sections 85ZR and 85ZS of the Crimes Act 1914 (Cth) from taking this finding of guilt into account.
[10] Applicant’s Statement of Facts, Issues and Contentions (SOFIC), AHB pp 1 – 78.
The Tribunal accepts the applicant has no other offending history and this is his first time incarcerated.
The circumstances of the home invasions on three different residences on 18 June 2022 and the applicant’s involvement are set out in the sentencing judge’s remarks dated 8 December 2023.[11] In summary:
·First house (Hampton Park): the applicant and several others attended a residential home on around 1.20am occupied by three persons (including a young child). The applicant held a metal bat, as did some others, whilst others held machetes. The applicant entered the house by climbing through a window and smashed a window at the side of the house and inside the house before leaving through the front door. Other members of the group also damaged vehicles close to the house.
·Second house (Noble Park): the applicant and several others attended a residential home at about 2.36am occupied by a woman, her two sons (one aged three, the other 17) and the woman’s 19-year-old niece. Several of the co-offenders smashed windows, entered the house, and used weapons to try and smash open a door.
·Third house (Dandenong): the applicant and several others attended a residential home at about 1.45am occupied by two persons (a male and female). The applicant who carried a metal baseball bat, smashed a window at the front of the house before returning to the cars.
[11] G-Documents, pp 55 – 167.
The factors which the Tribunal must have regard to in considering the nature and seriousness of the applicant’s criminal offending and other conduct are set out in paragraphs 8.1.1(1) of the Direction as follows (in summary):
·Without limiting the range of conduct that may be considered very serious, violent and/ or sexual crimes; crimes of a violent and/ or sexual nature against women or children regardless of the sentence imposed and acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed are considered very serious, and viewed very seriously by the Australian Government and the Australian community: 8.1.1(1)(a);
·Without limiting the range of conduct that may be considered serious, the following types of crimes or conduct are considered by the Australian Government and the Australian community to be serious: causing a person to enter into or being party to a forced marriage (other than as a victim); 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; 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)) and crimes committed while the non-citizen was in, during an escape from or after an escape from immigration detention, or an offence against section 197A of the Act, which prohibits escape from immigration detention: 8.1.1(1)(b);
·With the exception of crimes of a violent and/or sexual nature against women or children; acts of family violence or crimes relating to forced marriage, the sentence imposed by the courts for the criminal offending: 8.1.1(1)(c);
·The impact on any victims of the offending or conduct and their family, where this information is available if the applicant has been afforded procedural fairness: 8.1.1(1)(d);
·The frequency of offending and/or whether there is any trend of increasing seriousness: 8.1.1(1)(e);
·The cumulative effect of repeat offending: 8.1.1(1)(f);
·Whether the non-citizen has provided false or misleading information to the Department: 8.1.1(1)(g);
·Whether the non-citizen has re-offended since being formally warned or otherwise being made aware in writing of the consequences of further offending: 8.1.1(1)(h);
·Where the offence was committed in another country, whether the offence or conduct is classified as an offence in Australia: 8.1.1(1)(i).
Whilst accepting the index offending was of a serious nature, the representative contends the applicant’s actual conduct was confined and limited (compared to his co-offenders) to smashing a single window with a bat at the first house and smashing a window at the third house: he did not engage in violence against a person; had no personal contact with the victims (including women and children); did not know who would be in the house and did not enter the second and third houses. Further, he had no role in the planning or organising of the offending; had limited knowledge it would occur; and his involvement decreased significantly after the first incident. The representative refers to the Federal Court’s recent decision in Ives v Minister for Immigration and Multicultural Affairs [2025] FCA 1033 (Ives) to support his contention in this regard, which held any consideration of the nature and seriousness of the non-citizen’s conduct to date ‘…is naturally directed to the person’s actual conduct, as opposed to the particular offence with which they happen, for whatever reason, to be charged’.
The representative also contends the applicant’s charges were mostly by way of complicity and included several rolled-up charges.
As well, in considering the sentence imposed by the courts (paragraph 8.1.1(1)(c)) the representative described the sentencing regime under which the applicant was sentenced as highly unusual and controversial, required to fix (for example) a NPP of at least three years unless the Court finds that a ‘special reason’ exists, which he argues is a stringent test. The representative noted the applicant’s sentence was at the very lowest range possible when compared with the maximum allowable sentences under the restrictive laws of Victoria. The sentencing for some of the applicant’s co-offenders who were under 18 at the time are set out as a comparison in the applicant’s SOFIC.
The Respondent refuted the representative’s contention that the applicant was an unwitting and unwilling attendant at the home invasions on 18 June 2022; that his actual conduct was limited and confined; and the offending was unusual, or what the applicant understands to be ‘more typical violent offending’.[12] The Respondent highlighted (among other things) the applicant’s evidence during cross examination at hearing that he had been involved in fights at school prior to the offending; was aware of how fights occurred between groups prior to the offending; knew persons he was with carried weapons; and on the night of the index offending had sent a text message (to ‘Sista’: a friend who later became the applicant’s girlfriend), indicating the ‘boys’ were planning something, as set out in the sentencing remarks. The applicant also accepted he took videos that night.
[12] Applicant’s SOFIC, ibid.
The Respondent noted further the applicant accepted he was in the company of several other boys that night, armed with weapons and terrorising homes and the people in them, therefore accepting the seriousness of the offending. The Respondent agreed the applicant did not himself directly perpetrate the acts of the several other men in the first instance (for example), however argued that goes no way to reducing his (or any of his co-offenders) culpability. To the contrary, the Respondent argues the offending was intended to terrorise the occupants of the houses as remarked by the sentencing judge, as noted, rendering the attacks particularly serious offence examples.
The Respondent goes on to contend the fact the applicant was acting as part of a group increased the seriousness of the offending rather than decreased his culpability. He also notes the applicant’s conviction is immune from challenge in this proceeding as are the ‘essential facts’ on which the conviction was based.[13]
[13] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] per Bromberg J (upheld on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202)
Further the Respondent contends the representative’s submission that the applicant’s charges reflected in large part complicity and rolled up charges distracts from the Tribunal’s task to consider the nature and seriousness of the conduct, noting Ives does not stand that individual conduct is divorced from group conduct. The Respondent submits the applicant did not simply smash two windows that night: he participated in three violent home invasions together with a ‘gang’ of violent youths (some of whom carried machetes), which among other things left women and children cowering in their bathrooms.
For these reasons (and others, below) the Respondent submits the Tribunal must find the applicant’s conduct was very serious and of a violent nature.
In their written and oral submissions to the Tribunal there was some back and forth between the parties about whether the applicant’s role in the index offending involved ‘crimes of a violent nature against women or children’, which the Direction gives as an example of the type of conduct viewed very seriously by the Australian government and Australian community.[14] The Respondent contends the index offending was plainly violent and each of the three incidents involved violence against women, and the first and second incidents involved violence against children (a baby in the first incident, and a three-year-old boy in the second incident). The representative contends the applicant was not physically violent to any persons, including women and children, as noted earlier.
[14] Paragraph 8.1.1(1)(a)(ii).
The Tribunal notes the Direction does not limit the conduct considered as very serious at paragraph 8.1.1(1)(a)(ii). What is not in dispute is the index offending included several offenders being near and entering the residential homes that were occupied (some by women and children) armed with weapons (baseball bats and machetes) and smashing windows and parts of the property. While the Tribunal accepts the applicant’s role – as set out in the sentencing remarks – was limited to smashing a window at the first house, and entering that house, and smashing a window at the third house, he was present at all three houses with several others armed with weapons; he himself held a baseball bat. At hearing the applicant said whilst not involved in the planning of the home invasions, and unaware if anyone was in the houses, he was not surprised there were people at home given it was nighttime.
In his statement the applicant states what he did during the offending is accurately described by the sentencing Court; acknowledged how much fear they caused the victims; and that he thinks if something like that happened to his family ‘how terrified they would be, and also how hard it would be to cope with the financial loss’. He states he feels regret and is ashamed. He reiterated as such at hearing.
The representative suggests the sentence imposed on the co-offenders who were under 18 at the time might assist to help understand how seriously Courts viewed the offending. The Respondent contends there is no ambiguity about how serious the County Court viewed the offending in the sentencing remarks noting the judge described the ‘attacks’ as ‘particularly serious examples of these offences’ that must be met with stern punishment’; and because sentencing takes into account the individual circumstances of a particular offender, such comparisons are unhelpful, suggesting a more helpful comparison would be with the (three) offenders who were sentenced together with the applicant, noting the applicant received the equal highest of those offenders.
As highlighted by the Respondent, in his remarks the sentencing judge also noted the conduct was ‘intended to terrorise the occupants of these houses’ and was ‘the sort of wanton violence and destructiveness that cannot be tolerated’. Further, the judge commented that ‘the numbers of offenders, the nature of the weapons used together with the sheer ferocity of these attacks make particularly serious examples of these offences’.[15]
[15] Sentencing remarks, G – Documents pp 55 – 167.
With respect to the applicant specifically, the sentencing remarks record: ‘The seriousness of the offending and the statutory scheme under which you must be sentenced dictate that a term of imprisonment with a 3 year non parole period must be imposed’.[16] Even accepting there was a minimum NPP of three years, and the sentence imposed fell short of the potential maximum sentence, it nonetheless indicates the seriousness of the applicant’s offending: 8.1.1(1)(c).
[16] Paragraph 150, Sentencing remarks, G – Documents p 87.
The Tribunal accepts the sentencing judge viewed these offenses committed by the applicant in the context of several offenders undertaking aggravated home invasions armed with weapons, as serious.
With respect to the impact on any victims of the offending (paragraph 8.1.1(1)(d)), the representative contends the wording of the relevant paragraph explicitly suggests the Tribunal should avoid speculation as to the harm that may have been caused to victims and their families where no information is available or where the applicant has not been provided with natural justice in relation to any such information or inferences to be drawn from it.
The representative contends the impact of the groups’ conduct was significant but noted it was caused by a group of 16 offenders at the first property, 17 at the second, and 12 at the third, many of whose roles in causing harm was far greater than the applicant, who was not involved in planning or leadership of the group. The impact directly caused by the applicant consisted of breaking two windows at the first property and one at the third.
As highlighted by the Respondent, the judge’s sentencing remarks note the financial harm caused by the group to the first property was estimated at approximately $46,000, and also resulted in financial hardship and psychological impact for the residents at the second and third properties, having regard to their victim impact statements before the Court. The Tribunal accepts this to be a considerable impact.
There is no indication that the applicant has provided false or misleading information to the Department, or that he has offended after being formally warned, or since otherwise been made aware about the consequences of further offending in respect of his migration status.
There is no other known criminal offending (to have regard to) in Australia or any other country and this was the applicant’s first custodial sentence. The Tribunal is satisfied there is no indication of a trend of increasing seriousness in relation to the applicant’s offending, although notes he has been incarcerated for the past three years. Nonetheless he did comply with relevant conditions whilst on bail for around 12 months, including not reoffending or contacting co-offenders. This indicates a commitment to a pro social lifestyle and refraining from criminal conduct in the future.
Taking into account these considerations, the Tribunal is satisfied the applicant’s conduct in relation to the index offending can be viewed as very serious.
Risk to the Australian community
Paragraph 8.1.2 of the Direction requires decision makers to bear in mind 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. Further, some conduct and the harm that would be caused, if repeated, is so serious that any risk that may be repeated is unacceptable.
In assessing the risk that may be posed to the Australian community, the Direction sets out the following factors decision makers must have regard to, cumulatively, at paragraph 8.1.2:
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) …
Therefore, the Tribunal is required to have regard – on a cumulative basis – to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct, and the likelihood of him doing so. 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.[17]
Nature of the harm
[17] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; and Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
As noted, the applicant has been convicted of a number of offences, along with others, some of which can be considered very serious: particularly aggravated home invasion with a weapon. The Tribunal considers if the applicant were to reoffend in a similar manner there is a substantial risk of harm to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
In considering the likelihood of further offending in the applicant’s case[18] the Tribunal has had regard to risk assessments, evidence of rehabilitation, and protective factors among other things, taking into account the parties’ contentions and the material before it about these matters, as follows.
[18] Paragraph 8.1.2(2)(b)(i).
The representative notes when determining the acceptability of the risk there is an inexorable link between the nature and type of offending (and the harm that would flow from it) and the likelihood of that offending being repeated. The representative argues it is open to find although his offending was at the upper end of seriousness, the risk of it occurring is sufficiently low such that the risk becomes acceptable.
The representative implored the Tribunal to look at what the applicant actually did on 18 June 2022, in order to assess whether or not he poses a perceptible risk to the community. Whilst his participation was concerning, the representative contends in terms of his risk – even taken at the highest – relates to him entering properties and causing damage and fear as part of a larger group. The impact caused by the group as a whole on 18 June 2022 cannot be attributed to the applicant alone, he contends further, and it would not accurately represent the actual risk posed by the applicant to the community.
The representative emphasises the evidence before the Tribunal indicates the applicant is low risk of reoffending. According to Ms Ferrari that overall risk assessment remains unchanged despite several incidents in youth detention (discussed below). The representative highlights Ms Ferrari also notes that there is no such thing as zero risk, and the applicant scored the lowest possible risk rating in the assessment which measures risk of future violence.
As well, the representative contends that unlike other cases which have not been tested in the community, the applicant had an extended period of bail wherein he demonstrated he can abide by relevant conditions, laws, and community expectations and showed he could turn his life around as commented on by the sentencing judge.
The Respondent contends given the nature and seriousness of the index offending – being violent home invasions with weapons – the nature of harm that may result including significant psychological and physical harm means any risk that may be repeated is unacceptable to the Australian community.
As well the Respondent contends there remains a real risk of the applicant reoffending given his involvement in several incidences in youth custody; the applicant has admitted to getting into some fights whilst at school; he acknowledged as a teen he used drugs and alcohol recreationally; and his prospects of refraining from reoffending or engaging in other serious conduct has been largely untested, aside from the time spent on bail, all of which relies on the Tribunal giving him the benefit of doubt that he has truly reformed.
The Respondent accepted there is substantial evidence of the applicant’s rehabilitation, including completion of relevant educational and vocational courses whilst in custody, as does the Tribunal. The material before the Tribunal shows he studied and worked whilst at Loddon Prison, was compliant, and engaged: there is no indication of poor prison behaviour.[19] He has not worked at the youth justice centre (as it is not available) but has attended courses and programs. The Tribunal accepts that was the case. Also, that prior the applicant abided by relevant bail conditions, and engaged in supervision during that time.
[19] Assessment report: Transfer from prison to a youth justice centre dated 25 June 2024, G – Documents, pp 310 – 315.
With respect to risk assessments the material before the Tribunal indicates the most recent risk assessments were undertaken by Ms Ferrari who, as set out in her report dated 6 May 2025,[20] found the applicant was ‘low’ risk for general reoffending (using the Level of Service/Case Management Inventory (LS/CMI), and low risk for violent reoffending (using the Historical, Clinical, Risk Management – Version 3 (HCR-20 (version 3)).
[20] G – Documents, pp 231 – 252.
At hearing Ms Ferrari explained what she took into account utilising these risk assessments used to reach these conclusions: for example, looking at how a person responds to treatment and supervision with respect to the HCR-20 (version 3).
Ms Ferrari gave evidence that she has since read the reports about several incidences the applicant has been involved in since moving to the youth justice centre. She said given they do not include any credible threats or actions of violence they have no bearing on the particular item of the HCR-20 (version 3) (of a total of 20 items rated) and therefore would not change the overall risk rating of low risk of future violence. Ms Ferrari acknowledged two items informing the HCR-20 (version 3) risk assessment potentially may be updated as a result of the incidences, including related to the clinical item for instability noting recent instability in youth custody. However, she noted this has not been daily or frequent and appears to occur often in the company of others: not due to the applicant’s own instability of mood, but instead highlights his own impressionability and acquiescence to peers. Ms Ferrari said the other item relates to treatment or supervision reports: however, given the applicant has also engaged positively with treatment, supervision, and his general conduct does not indicate a pattern of defiance (and would only be several incidents recorded over his whole time in custody), Ms Ferrari’s evidence was that she would likely rate this risk factor as only partially present. She confirmed changes to these items would not alter the overall risk assessment as low for future violence in the applicant’s case. Ms Ferrari emphasised that the applicant is surrounded by anti-social peers in custody and generally is pro social and does not associate with anti-social peers (including whilst on bail).
During cross examination the Respondent questioned Ms Ferrari in depth about these incidences in custody, and what they might mean in terms of her assessment of the applicant’s future risk of reoffending. Ms Ferrari said some of the incidences in custody fit with the themes she set out in her report related to his offending and in general about the applicant fearing facing ostracism by peers, being bullied through school, and going along with others in situations when feeling trapped or facing ostracism if not.
Ms Ferrari confirmed that none of these incidences – in isolation or cumulatively – affect her risk assessment in relation to the applicant. She clarified whilst there might be some change to some items (as noted), overall, her opinion of the risk level does not change based on these items. Ms Ferrari also noted there is limited information in the incident reports of the applicant engaging in deliberate, planned violence against others, which is what the specific violence item in that risk assessment requires.
Ms Ferrari also gave evidence during cross examination about the applicant’s young age – at the time of offending and now – noting his personality traits are not fixed, and he is still developing, which may take up until around the ages of 25-30. In response to being asked how her assessment of the applicant’s risk levels of reoffending take this period of development into account, Ms Ferrari explained that she looks at several factors including his engagement in education and employment (where possible) in custody, and what positive support and safety mechanisms are in place when he returns to the community. Also, she considers, what was in place prior to the offending which in the applicant’s case included his involvement in study, sports, social activities and employment, as well as other positive contributions to the community. She added whilst on bail the applicant was able to quickly reintegrate into those supports in the community.
Ms Ferrari’s evidence was that if the applicant similarly has the right structure and routine around him, any negative personality traits, and residue risk can be mitigated: in contrast to being surrounded by young anti-social people in custody.
Overall Ms Ferrari in her psychological assessment report and oral evidence at hearing assesses the applicant’s prospects for rehabilitation and leading a pro social lifestyle are good, noting with the exception of the time of the index offending he has generally modelled pro social behaviour throughout his life, and has very strong family support.
The applicant has been involved in 22 incidents since he moved to the youth justice centre in July 2024, as set out in a Youth Justice Custodial Progress Report dated 16 September 2025[21] and Client Incident Report Forms.[22] The case manager who authored the September 2025 report described the incidents as mostly involving the applicant covering his observation window, possessing contraband, refusing staff directions, verbally abusing and intimidating a teacher, and property damage.[23]
[21] JHB pp 151 – 157.
[22] JHB pp 170 – 265.
[23] JHB p 153.
According to one of the incident reports,[24] on 14 August this year it appears some individuals were upset on discovering most of the party food prepared for the applicant’s birthday had been eaten, and at one stage the applicant ‘wrestled’ with staff. The report states the applicant was banned from the kitchen for a few days afterwards, and he and another person ‘functioned on a behaviour plan following day after incident’. At hearing the applicant gave evidence that the person he was with became angry when he realised most of the party food was gone (on returning to the unit after attending a program) which led to a physical altercation between two boys. The applicant said he was not involved but the guards held everyone back, including him. The Respondent queried the applicant’s account given the case manager in her report notes the applicant had become ‘heightened and attempted to involve himself, wrestling with the staff member, resulting in him being restrained and placed in his room.’[25] The applicant reiterated that although he was present, he was not involved in the argument or physical alteration: but acknowledged staff held him back (along with others). He said because he was at the front it may have looked on the camera that staff had to push him back, but he disagreed that was the case.
[24] JHB pp 174 – 178.
[25] JHB p 153.
Another incident report[26] records on 3 May this year the applicant became upset when a staff member told him to stop throwing a football in the kitchen and after the football was confiscated, smashed a frypan onto a wall, destroying it. At hearing the applicant accepted that is what occurred as set out in the incident report, agreeing it was childish and adding that he is embarrassed.
[26] JHB pp 186 – 189.
In another incident report[27] it is recorded on 2 April this year the applicant became verbally abusive to staff when asked to return a second mattress, and later threw food items around the kitchen in frustration. He was banned from the kitchen for a period of time. At hearing the applicant said he cannot remember swearing at staff but accepted he was frustrated, and this did not give him the right to trash the kitchen.
[27] JHB pp 198 – 2011.
In another incident report[28] it is recorded on 25 August 2024 the applicant and another person became involved in a verbal and physical altercation with each other during a table tennis game. At hearing the applicant acknowledged he had an argument with another person, but the other person swung (a punch) first: the applicant stood his ground, and someone jumped up and stopped the fight. This accords with the description in the incident report (at Part 5). The report does not indicate any follow up.
[28] JHB pp 262 – 265.
The incident reports also record drug paraphernalia found in the applicant’s room on 8 March 2025 in the form of a ‘makeshift bong’ and ‘a suspicious package located and hidden in the curtain, later tested positive for Ephedrine.[29] It records the items were removed, the applicant was addressed and there was no further follow up. In another incident report[30] it is recorded on 19 March 2025 a shampoo bottle containing a glove wrapped around a small plastic bag containing green vegetable matter was retrieved from the applicant’s room, confiscated, and the applicant was issued an operation manager warning for contraband. During cross examination at hearing the applicant acknowledged he had been found in possession of marijuana whilst at the youth centre; smoked with some boys who bought a bong into his room (and left it); but said he had no idea about Ephedrine. The Respondent suggested because the applicant gave evidence that he did not share a room this should not be accepted.
[29] JHB p 207.
[30] JHB pp 209 – 211.
As contended by the representative the Tribunal accepts these incident reports should be treated with some caution given the allegations have not been tested and the applicant has not been convicted of any offenses arising out of them. It accepts the applicant has been involved in some incidents since arriving at the youth centre in the middle of 2024, and based on the applicant’s evidence at hearing accepts this included the applicant acting out of frustration (for example when he smashed the frypan). The applicant also acknowledged he has smoked marijuana in youth detention, which the Tribunal accepts.
The Tribunal notes and gives weight to Ms Ferrari’s evidence that these incidences do not show a pattern or intent that would alter the applicant’s low risk ratings (for general recidivism and violence). Also, her evidence that the applicant’s drug and alcohol use in the past and taking into account his acknowledgment of smoking marijuana in youth custody does not add to his risk profile in any significant way (and that drugs and alcohol was not linked to the index offending).
The Tribunal accepts the applicant has undergone several vocational and other programs whilst in prison and youth detention and abided by bail conditions for a 12-month period, including abiding by curfew and reporting as required. The Tribunal accepts on the evidence before it that the applicant has ceased contact with his co-offenders – apart from one who resides in youth detention with him – a key risk factor in his case.
The applicant’s mother’s evidence to the Tribunal was that she believes the applicant when he says he regrets his actions, and in realising the hardship his incarceration has brought his family, will never reoffend. She has observed him maturing over the past three years whilst in prison.
At hearing Chen said he believes the applicant has learnt his lesson, and matured, noting more recently he talks about his future, and how to help his family when released. Chen said the applicant asks more about how their mother and brothers are and it is evident he thinks more deeply how to support their family. The applicant told Chen he regrets what he did: to the victims and his family as a consequence of his offending.
At hearing during cross examination, given the applicant’s mother and brother knew little about the incidents (discussed earlier) the applicant was involved in at the youth centre, the Respondent argued the applicant has not matured as they suggested and continues to present a risk to the Australian community. Whilst the Tribunal agrees some of the incidences may indicate a level of immaturity – as acknowledged by the applicant in part – it does not necessarily follow that he has not matured at all, or that his mother and brother’s limited knowledge about the incidences undermines their evidence that, in their view, he has matured.
Several letters from staff and support persons from the youth centre (and precinct) are included in the material before the Tribunal which speak to the applicant’s honesty, respect, engagement in programs, and remorse.[31]
[31] These include from: Rev. Father Siosifa Tongia, Chaplain, Parkville Youth Justice Centre (undated), JHB p 80; Jessica F Tongia (undated), Cultural Team, Parkville Youth Justice Centre, JHB p 79; Fatima Ismail, Youth Justice Centre, progress report dated 16 September 2025; Stanley Pinano, Cultural Liaison Officer, Youth Justice Custodial Services, AHB p 17; Nur Mohd Sarip, Cultural Liaison Officer, Department of Justice and Community Safety, 25 August 2025, AHB p 18; and Tom Cheshire, Parkville College Teaching Team Leader, 22 August 2025, AHB pp 18 – 19.
Also included in the material is a report of a conference the applicant attended recently with youth detention staff, his mother, Chen, and his former basketball coach (among others). The report of the conference records, among other things, that the applicant spoke clearly about his role in the offending and took accountability for his actions.[32]
[32] Community Conference Outcome Report dated 19 September 2025, JHB pp 81 – 89.
Given the Tribunal has found the applicant’s past offending was very serious, it considers the nature of the harm to individuals, or the Australian community should the applicant engage in further criminal or other serious conduct of that nature to be serious. His past offending has caused property damage and psychological harm to the victims.
The Tribunal considers however, the likelihood of the applicant engaging in further criminal or other serious conduct, is low, as reflected in the results of the most recent risk assessments undertaken by Ms Ferrari. Furthermore, it accepts he has strong family support, employment prospects, and overall good rehabilitation prosects once released from prison, as indicated by the judge in his sentencing remarks. Although his family support and employment were in place at the time of the index offending, there is evidence of him maturing to some extent since then and undertaking programs and work in custody. This has been tempered by reports of incidents whilst in youth custody (as noted) but not to an extent that alters his low-risk ratings. The applicant has ceased contact with his co-offenders (except one who is in detention), and indicated remorse for the offending, including for what he has put his family through.
Overall, and even taking into account the youth centre incidences, the Tribunal is satisfied the applicant is genuine in his commitment to refrain from further offending and rebuilding his life after prison, including not associating with negative peers, working with his brother, and helping his family, who remain a significant protective factor.
For these reasons and based on the material before it, the Tribunal considers the applicant’s risk of reoffending to be low. Nonetheless if the visa cancellation is revoked there remains some level of risk to the Australian community, even if low. If the applicant’s index offending were to reoccur, the Tribunal considers the consequences to the Australian community would potentially be very serious.
Given the nature and seriousness of the applicant’s offending, and the risk to the Australian community should the applicant commit further offenses or other serious conduct, the Tribunal accords this primary consideration significant weight towards not revoking the visa cancellation.
Family violence committed by the non-citizen
Whether the conduct engaged in constituted family violence is a primary consideration: paragraph 8.1 of the Direction. In this case there is no evidence of any family violence committed by the applicant, as agreed by the parties. The Tribunal gives this primary consideration neutral weight.
Strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction requires the Tribunal to also consider the strength, nature and duration of the applicant’s ties to Australia. Paragraph 8.3(1) requires considering 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.
The Tribunal accepts the applicant has been in Australia since 2013, from the age of 10, which is a substantial period of time, covers his formative years, and as contended by the representative, makes up more than half of his life. A period of nine years (almost) had lapsed after his arrival before he began offending. He has been in custody for the last three years.
The material before the Tribunal indicates the applicant has the following immediate family members here: his mother; stepfather; older half-brother (Chen); and four younger half-brothers. They are all Australian citizens, with the exception of the applicant’s mother. The applicant’s grandmother resides with the rest of his family but is not an Australian citizen or permanent resident, and there is no indication she has a right to remain in Australia indefinitely.
Limited evidence of any impact on the applicant’s stepfather in the event he has to leave Australia has been provided, and as pointed out by the Respondent, the applicant told Ms Ferrari they never had a close relationship, and he had not visited him in custody. At hearing the applicant said there was an adjustment period after he arrived in Australia aged 10, because he never had a father: it took a while to get along. In his statement the applicant said they argued sometimes, but mostly had a supportive relationship. The Tribunal accepts the applicant is not particularly close to his stepfather, although given the otherwise close family unit, it accepts if he has to leave Australia it is likely to adversely impact his stepfather, even if indirectly in terms of the emotional (and practical) impact on the rest of his family.
The Tribunal accepts the applicant is particularly close with his mother who visits him regularly in detention, and whom he speaks to over the phone most days. She gave evidence, which the Tribunal accepts, about the emotional difficulties she and the applicant faced due to being separated for several years whilst his visa was being organised and arrangements made for him to come to Australia, and his difficult childhood in China. When she found out her son’s visa was cancelled the applicant’s mother told the Tribunal she felt like her whole world was falling apart. She could not stop crying, and was taken to hospital, before commencing mental health treatment in the community. At hearing the applicant’s mother said presently she takes anti-depressants and sleeping pills to help manage her mental health symptoms. The Tribunal accepts her evidence in this regard. A discharge summary from Footscray Hospital dated 20 August 2025 provided indicates she was admitted to the hospital presenting with major depression and psychosis.[33]
[33] Western Health ED Discharge Summary, AHB p 35.
The Tribunal accepts the applicant’s mother would be significantly affected if the applicant left Australia, including in terms of her mental health (as does the Respondent). Her evidence about the assistance the applicant provided her, her husband, Chen and his younger brothers – particularly following her husband becoming injured and unable to work (when the applicant was around 11) – was consistent with the applicant’s evidence and Chen’s evidence to the Tribunal. If the applicant has to return to China, Chen told the Tribunal the impact would be greatest on his mother, who is psychologically vulnerable due to her poor mental health: he said he would have no idea how to comfort her. The Tribunal accepts his evidence in this respect.
Chen gave evidence, which the Tribunal accepts, that prior to his incarceration he had come to rely on the applicant to help with his business, particularly in dealing with the public given he is quite introverted. This included in the almost 12-month period whilst the applicant was on bail. He said the share of family and household responsibilities has fallen more on him since his brother has been incarcerated, including caring for his father, who can no longer drive. He also noted his mother’s mental health has deteriorated in the context of the applicant’s offending and visa cancellation and she no longer works. Chen described the applicant as a proactive family member prior to imprisonment, in terms of organising birthday events, and getting his younger siblings involved in extracurricular activities such as basketball and breakdancing.
Chen added that everyone in their family is important and if the applicant leaves a piece of his heart will be taken away, as well as his dreams for growing his business with the applicant’s help. On cross examination he agreed with the Respondent that he can hire someone else to help with his business, but noted the difficulties finding and training people who will stay. Chen reiterated that most of the burden to do with his family including caring for his sick father, falls on him. The Tribunal accepts his evidence in this regard.
At hearing the Respondent questioned the closeness of Chen’s relationship with the applicant given according to her report the applicant told Ms Ferrari they were not particularly close and had a period of estrangement and fall out some time ago. Although the Respondent also accepted the evidence that they had resumed communication since, and Chen’s support and visits in custody, accepting therefore that non revocation would have some adverse impact on Chen. The Tribunal agrees, particularly given the evidence – which it accepts – that Chen has had to assume even more caring and financial responsibility for his entire family in the wake of the applicant’s incarceration, his father’s declining health, and his mother’s mental health challenges. It accepts that apart from some Centrelink payments, Chen’s income from his business is the only other source of income for their large family.
The Tribunal also accepts the cancellation would likely have an adverse impact on the applicant’s four younger brothers who he speaks to regularly and who visit him in custody. The nature of their relationships, and possible impact if the applicant leaves Australia is explored further in respect to the primary consideration of best interests of minor children, below.
In his evidence to the Tribunal YB2 said he visits the applicant in prison sometimes and speaks to him regularly over the phone. He said he will be heartbroken, as will his mother and the rest of his family if his brother has to leave (Australia). YB2 reiterated the positive impact the applicant had on him and his other brothers prior to incarceration, for example by encouraging them to play basketball, at hearing and in his letter dated 26 September 2025[34] provided prior. The Tribunal accepts YB2’s evidence in these respects.
[34] JHB p 92
Given the age gap between the applicant and his younger brothers, his extroverted personality, together with his stepfather’s age and work-related injuries resulting in limited mobility, the Tribunal accepts the applicant played a parental role of sorts to his younger siblings prior to being incarcerated. The Tribunal considers his role helping them with their studies and them considering him a role model and mentor may have been exaggerated to some extent, noting the applicant had left school at the end of year 11 (prior to the offending) and on his own evidence was feeling a bit lost. Nonetheless, overall and for the reasons above the Tribunal accepts the impact on the applicant’s immediate family members if the visa remains cancelled and he returns to China is likely to be significant.
The material before the Tribunal includes letters of support from several of the applicant’s (pro social) friends, and his former basketball coach in Australia attesting to the nature of their relationship and his character.[35] The Tribunal accepts the applicant has strong friendships and social links with Australian citizens and/or permanent residents that would be adversely impacted if he had to leave.
[35] For example: Jim Markovski OAM (former basketball coach), dated 27 July 2022, G-Documents p 489; Bilalli Abok Victorino (friend) dated 15 April 2025, G-Documents p 473; and Renai Swan, mother of Bilalli, dated 15 April 2025, G-Documents p 485.
The Tribunal accepts apart from his maternal grandfather and an uncle, whom he has limited contact (and no relationship with), the applicant’s immediate family members (and grandmother) are in Australia who he is close to.
Overall, the Tribunal accepts the applicant – who has established his life here since aged 10 – has very strong family ties in Australia as well as strong ties to other members of the Australian community. This primary consideration weighs significantly in favour of revocation.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires the Tribunal to determine whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent their interests might differ.
The factors to consider in doing so are set out at paragraph 8.4(4) and include:
·The nature and duration of the relationship between the child and the non-citizen, noting 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;
·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;
·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;
·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;
·Whether there are other persons who already fulfil a parental role in relation to the child;
·Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[36]
[36] Paragraph 8.4(4)(a)-(h).
The applicant’s four younger brothers are minor children: aged 14 (YB1), 13 (YB2), 11 and eight.
The representative contends the evidence provided shows the applicant’s younger brothers love him, consider him a role model and mentor despite his mistakes, and a source of assistance particularly as their father is aging with health issues. The Respondent accepts the best interests of the applicant’s four younger brothers favours revocation, and the applicant’s removal would have a significant impact on their relationships, but not so far as to ‘effectively and permanently severe’ the relationship as argued. The Tribunal agrees with the Respondent on this latter point noting the applicant would be able to keep in contact with his four younger brothers, who do have parents (and an older brother), even if there are issues with their capacity as discussed.
The Respondent contends the applicant’s ability to refrain from offending, rather than his Australian visa status, will have the most direct impact on the quality of relationships he shares with his younger brothers in the future. The Respondent also notes in the past the applicant demonstrated very poor capacity to be a good and dutiful brother to his younger brothers, which caused him being removed from their lives for a period of time and has had a significant deleterious effect on his mother, which has impacted all those she cares for.
The Tribunal accepts the applicant’s mother’s evidence at hearing about the assistance the applicant provided her and his younger siblings prior to his incarceration. This included playing games with them, encouraging them to study (using himself as an example of what not to do), and introducing them to extracurricular activities such as basketball as noted. Also, about the ways the applicant helped her and their family more broadly, including helping Chen with his business, particularly as the applicant’s mother had to take on more of a carer’s role of her husband who is elderly and experiences ongoing issues with his lower back and neck due to a past workplace injury. The applicant’s mother added that since the applicant has been incarcerated Chen’s caring responsibilities for the family – including driving her husband to appointments given he is no longer able to drive – have increased, which has impacted on his work: this has affected the entire family, who rely on that income, plus some Centrelink payments.
The applicant’s mother said she cannot imagine the impact on her younger sons if the applicant has to return to China, who has been with them from a young age.
As noted at hearing YB2 gave evidence to the Tribunal about the potentially devastating impact on himself (and his family) if the applicant has to leave Australia, sentiments which were also set out in his letter.[37] The material before the Tribunal also includes letters from YB1, now aged 14, provided to the Court (dated 25 September 2023) and Department (dated 15 March 2025)[38] which focuses on the kind of big brother the applicant was and the strength of their relationship.[39]
[37] Dated 26 September 2025, JHB p 92.
[38] G-Documents p 483
[39] G-Documents p 411
The Tribunal accepts the applicant has a close relationship with his four younger brothers who continue to visit him from time to time in custody (and talk to him over the phone), has played a parental role of sorts to them in the past, and would want to in the future, if possible. This has become more of a need as the applicant’s mother’s mental health has deteriorated, and his stepfather’s health declined with age and as a result of workplace injuries. The Tribunal accepts it would be in the best interests of the applicant’s four younger brothers (who are minor children) for him to remain in Australia and accordingly gives this primary consideration significant weight in favour of revoking the decision to cancel his visa.
Expectations of the Australian Community
Paragraph 8.5(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The expectations of the Australian community as a whole are to be considered. The Direction directs that 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: paragraph 8.5(4) of the Direction. It is not for the Tribunal itself to determine such expectations.[40] This was emphasised by the Respondent at hearing.
[40] FYBR v Minister for Home Affairs[2019] FCAFC 185 at [66]- [67], [91], [101] and [104].
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.[41]
[41] Paragraph 8.5(1).
The representative contends there is no way of knowing what the Australian community expects in this particular case, acknowledging the consideration has nothing to do with that. He argued nonetheless while the Tribunal must take into account the government’s stated views in this respect, it does not have to adopt them, and that limited if any weight should be given to this consideration, having regard to various countervailing considerations in the applicant’s case. The Respondent notes they are not aware of any authority to support an approach whereby the Tribunal should, as an anterior step in its reasoning, give less weight to the expectations of the Australian community because of other features of the case that it will take into account in its overall evaluation of the relevant considerations. The approach of identifying ‘countervailing considerations’ specifically to downgrade the significance of the expectations of the Australian community is an approach neither supported by the terms of section 501CA, nor the terms of the Direction, the Respondent contends further, with reference to judicial authority including RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 (Horan J).
The Respondent contends having regard to the violence of the applicant’s offending, this consideration weighs heavily against revocation of the visa cancellation. Moreover, the applicant’s conduct raises ‘serious character concerns’ (for the purposes of paragraph 8.5(2)(c) of the Direction) because it included the commission of serious crimes against women and children.
In RCLN (as highlighted by the Respondent) the Federal Court of Australia held that the assessment of community circumstances is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen. The Court held that a decision maker can take into account the personal circumstances of an individual insofar as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the considerations accordingly.[42]
[42] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 [56].
For these reasons, combined with the nature and seriousness of the applicant’s offending, the Tribunal considers that the Australian community would expect the visa cancellation is not revoked in the applicant’s case.
The Tribunal has also had regard to the principles in 5.2 of the Direction (set out earlier) which direct the safety of the Australian community is the highest priority. Although the Tribunal has found the applicant’s risk of reoffending is low, the seriousness of his offending must be considered regardless of the level of risk he poses to the Australian community.
Accordingly, the Tribunal gives this consideration significant weight in favour of non-revocation of the visa cancellation.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen of a protection visa refusal pursuant to paragraph 9.1 of the Direction. This includes having regard to Australia’s non refoulement obligations in respect of unlawful non-citizens.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation. Under s 189 of the Act, the applicant must be detained and removed as soon as reasonably practicable under s 198.[43]
[43] BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 which followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The legal consequence of a decision to set aside the decision not to revoke the applicant’s permanent visa is as if the visa was never cancelled. He will then be a permanent resident of Australia in the manner he was before the visa was cancelled.
If the applicant’s visa is cancelled, he would become an unlawful non-citizen, unless granted another visa, which may result in detention and removal from Australia (if paroled and/or at the end of his sentence). There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia because of the cancellation. The applicant would be subject to an exclusion period in relation to future visa applications.
The Respondent, whilst accepting these possible consequences if the Tribunal affirms the decision under review, contends that in circumstances where the applicant’s removal and indefinite exclusion from Australia are intended purposes of the statutory scheme, and these purposes underlie the considerations in Direction 110, the Tribunal should afford negligible weight to this consideration in favour of revocation. Accordingly, he submits this consideration should be given neutral weight.
The applicant is a citizen of China and has not raised any claims to be at risk of persecution or other forms of harm if returned to China. The applicant is not subject to a protection finding within the meaning of s 197C(3).
As noted, presently the applicant is in custody, and is not eligible for parole until November 2026. The representative contended cancellation may impact his parole however it is unclear why that would be the case, as noted by the Respondent. His sentence ends on 8 May 2029, as noted. It is unclear when exactly the applicant will be removed from Australia if the decision under review is affirmed. Nonetheless the Tribunal accepts he could be subject to removal any time (pending parole considerations) which can be stressful for the applicant and his family members, including his mother who has serious mental health issues.
Accordingly, the Tribunal gives this consideration some, albeit limited, weight in favour of revocation.
Extent of impediments if removed
Paragraph 9.2(1) of the Direction provides that decision makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, which in the applicant’s case is China. The Direction states in doing so decision makers should take into account the applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The representative contends without any viable family support, social networks, limited financial support, being unable to read and write Mandarin, and likely stigma he would face for having been removed from Australia for criminal offending (and, possibly, due to being born out of wedlock as he did in the past) the applicant would face enormous – possibly insurmountable – difficulties on return to China. The representative submits his prospects for employment and self-sufficiency given these factors plus the highly competitive youth job market in China (with reference to the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report on China[44] and a report from the Asia Society[45]) and his limited education in China are negligible. Further, the applicant risks traumatisation on return (with reference to parts of Ms Ferrari’s report) to a country where he experienced bullying as a child and would be separated from his family with whom he is close.
[44] Dated 27 December 2024 (at 2.19 – 2.20), AHB p 119.
[45] Dated 3 September 2025, AHB pp 113 – 119.
In her evidence to the Tribunal the applicant’s mother said she is concerned the applicant will not be able to get a job or survive in China without family or other support, being unable to read or write Mandarin, and having a criminal record. In her letter the applicant’s mother emphasised these and related concerns.
The Respondent accepts the applicant would face significant financial and emotional hardship if removed to China.
The applicant is 22 with no apparent physical health issues. It was noted in a recent report from youth justice that the applicant’s mental health had declined to some extent around the time of his visa cancellation, to which he was receiving some support.[46] The Tribunal accepts that is the case.
[46] Youth Justice Custodial Progress Report, 16 September 2025, JHB p 156.
The Tribunal also accepts that whilst he can speak Mandarin, his writing and reading skills are limited, which will impact his job prospects (combined with his criminal record) on return. He only completed two years schooling in China, a place where he experienced bullying due to being born out of wedlock. Also, that he has very limited family or other support in China. At hearing his mother gave evidence that her father remains in China, but he is old and has several health problems, which the Tribunal accepts.
Given these considerations and noting the applicant left China when 10, initially at least he would likely have to rely on financial support from his family here. As noted, at hearing the applicant’s mother and Chen gave evidence, which the Tribunal accepts that the entire family relies on income from Chen’s business – which has suffered to some extent whilst the applicant has been in custody due to Chen having to take on more familial caring responsibilities (including for the applicant’s stepfather who can no longer drive) – and some Centrelink payments. The applicant’s mother said she has stopped work – previously in aged care – due to her mental health issues and caring responsibilities for her husband (and children). The Tribunal accepts her evidence in this regard and accepts any financial support she (or Chen) could provide the applicant if he had to return to China would be limited.
Given the applicant would be returning to China – a place he left when aged 10 – with limited family or other support (including financial support) the Tribunal accepts it is likely to be very difficult for him to establish a life there, including being able to financially support himself.
The Tribunal finds this factor weighs significantly in favour of revoking the visa cancellation.
Impact on Australian business interests
The Direction indicates that this factor is generally only given weight where decision would significantly compromise the delivery of a major project or important service in Australia. There is no indication that this applies in the applicant’s case. Accordingly, the Tribunal finds this consideration carries neutral weight.
WEIGHING OF CONSIDERATIONS
The Tribunal finds the applicant does not pass the character test because of his substantial criminal record. It has determined therefore whether there is another reason why the visa cancellation should be revoked, weighing up the relevant considerations set out in the Direction.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[47]
[47] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs stated that ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together’.[48]
[48] [2023] FCAFC 138, [28].
Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed, as noted.
In considering whether or not the applicant’s visa cancellation should be revoked, the Tribunal has had regard to the primary and other considerations in the Direction, the guiding principles, and the evidence and material before it. As noted, the guiding principles state, among other things, that the safety of the Australian community is the highest priority.
In the applicant’s case the Tribunal has given significant weight to the following primary considerations against revocation: the protection of the Australian community (paragraph 8.1), and the expectations of the Australian community (paragraph 8.5). In doing so, it notes paragraph 5.2 of the Direction states the safety of the Australian community is the highest priority; that paragraph 8.1(1) indicates greater weight must generally be given to the Australian community than other primary considerations; and that greater weight will also generally be given to primary considerations, unless there are some reasons why that general approach should not be adopted.[49]
[49] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [27]
However, weighed against these considerations, the Tribunal has given significant weight to the following primary considerations: the strength, nature and duration of the applicant’s ties to Australia (paragraph 8.3), and the best interests of minor children in Australia (paragraph 8.4). It has also given significant weight to the extent of impediments if removed (paragraph 9.2). Further, the Tribunal has given some limited weight to the legal consequences of the decision (paragraph 9.1).
Although the Tribunal has given the consideration of the protection of the Australian community greater weight than the other primary considerations, it concluded the combined weight of the considerations that weigh in favour of revoking the cancellation of the applicant’s permanent visa outweigh those in favour of cancelling the visa. Specifically, the primary considerations of the best interests of the applicant’s younger brothers (who are minor children), along with the strength, nature and duration of his ties, and other considerations related to impediments if removed and to a lesser extent the legal consequences of the decision, cumulatively weigh in favour of exercising the discretion to revoke the cancellation of the applicant’s visa.
Having weighed up these factors, for the reasons set out above, the Tribunal is satisfied there is another reason why the cancellation of the applicant’s permanent visa should be revoked.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s Class BB (Subclass 155) Resident Return visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
Dates of hearing: 2 & 3 October 2025 Counsel for the applicant: Mr Bryn Overend Solicitors for the applicant: WLW Lawyers Solicitors for the Respondent:
Counsel for the Respondent:
Mills Oakley
Mr G Rossi
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