Young and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 1215

Young and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1215 (24 July 2025)

Applicant:Paul Shane Young

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2025/3453

Tribunal:General Member J Cipolla

Place:Sydney

Date:24 July 2025

Decision:The decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class BS Subclass 444 Special Category (Temporary) visa – substantial criminal record – trafficking in dangerous drugs – decision not to revoke cancellation affirmed.

LEGISLATION

Migration Act 1958 (Cth) s 501CA (4)

CASES

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617

FYBR v Minister for Home Affairs [2019] FCAFC 185

Irving V Minister (1996) FCA 663

SECONDARY MATERIALS

Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)

STATEMENT OF REASONS

CANCELLATION DECISION

1. On 25 July 2024 Mr Paul Shane Young (the Applicant) Subclass 444 Special Category (Temporary) visa was cancelled by a delegate of the Department under s 501(3A) of the Migration Act (the Act).

2. The delegate was not satisfied that the Applicant passed the character test because of the operation of s501(6)(a) (substantial criminal record) and on the basis of s501(7)(c) because he was serving a sentence of imprisonment, on a full-time basis in the Woodford Correctional Centre in Queensland for an offence against a law of the Commonwealth, State, or Territory and that the term of imprisonment was for 12 months or more.

3. On 26 July 2024 the Applicant made representations to the Department seeking revocation of the cancellation decision.

4. On 23 April 2025 a decision was made by a delegate of the Department finding that there was not another reason why the cancellation decision should be revoked.

   BACKGROUND

5. The Applicant was born in Hamilton, New Zealand in November 1969. He is a New Zealand citizen.

6. The Applicant has one sibling a sister, Debbie, who resides with her husband and three children in Brisbane, Australia.

7. The Applicant’s parents separated when he was 13 years old, and he describes the separation as having a profound impact upon him. Both his parents remarried, and the Applicant states that he did not have a close relationship with either of his stepparents.

8. The Applicant’s father passed away in 2004 from pancreatic cancer. The Applicant’s mother passed away in 2023 from lung cancer. The Applicant states that his only remaining blood relative is his sister Debbie.

9. The Applicant moved to Auckland when he was 17 years old and started working initially in the retail industry and later in the hospitality industry. The Applicant states that over time he learned to be one of the best bartenders in Auckland and quickly progressed to a management position. The Applicant gained experience in New Zealand in a wide range of front of house positions which included cocktail bartender, nightclub manager and promotions manager. He also worked as a fine dining waiter progressing to a restaurant manager which is the career trajectory that led him to Australia.

10. The Applicant visited Australia from New Zealand in 1993 for 3 days. The Applicant returned to Australia in 1995 to reside and worked in one of Sydney’s oldest clubs as a cocktail bartender. In 1997 the Applicant travelled back to New Zealand to attend his sister’s wedding and to attend to some family commitments and was in New Zealand for a few months.

11. In 1998 the Applicant moved to Melbourne and worked as a cocktail bartender and then relocated to the Gold Coast where he worked in a hospitality position at the Marina Mirage. The Applicant relocated to Brisbane and worked in a number of restaurants and wine bars in that city. The Applicant then relocated to the Whitsundays, working in the hospitality industry in Airlie Beach. The Applicant has also worked in Perth and Cairns.

12. In 2022, the Applicant decided to relocate back to Cairns in Far North Queensland working for a busy Italian restaurant and the Applicant stated during the period that he worked for this employer he progressed to the position of restaurant supervisor.

    OFFENDING HISTORY

13. The evidence indicates that the Applicant was convicted of traffic offences in New Zealand in 1989 and 1990. Those convictions related to driving a motor scooter without a licence, operating a vehicle carelessly and drink driving, which led to the imposition of a fine and a 7 month driving disqualification.

14. The Applicant’s offending history in Australia commenced in 2006 at which time he was convicted on 21 November 2006 by the Cairns Supreme Court with trafficking in dangerous drugs, possessing dangerous drugs, and receiving or possessing property obtained from trafficking or supplying.

15. As a consequence of this offending the Applicant was convicted to a term of imprisonment of three years, suspended for four years, after serving nine months imprisonment with a pecuniary penalty of $4000 on all charges.

16. The Applicant spent nine months in prison before being released back into the community in 2007.

17. In a statement that the Applicant provided to the Department with respect to the revocation of his cancelled visa the Applicant noted that the conviction in 2006 occurred “at a time in my life where I was having some major health issues and I needed to pay for an operations (sic) on my knee. I made some very bad choices that led me into a dark place which led me to be imprisoned for 3 years to serve 9 months then to be suspended for a period of 4 years”.

18. The Applicant claims that after this offending and his release from prison that he moved to Perth, Western Australia to get a fresh start and move on from his mistakes. The Applicant stated that because of his experience in the hospitality sector that he obtained employment in some of Western Australia’s busiest high-end venues working in waitering positions and progressing to restaurant management positions. The Applicant stated that he remained in Western Australia for seven years before returning to Cairns in 2014. The Applicant states that two weeks into his new employment in Cairns the business owner found out about his criminal history. The Applicant claims that he explained to his employer that his criminal offending occurred eight years prior to him accepting the position and that he was not hiding his history. The Applicant stated that his employment was consequently terminated.

19. The evidence before the Tribunal indicates that during the time the Applicant was residing in Western Australia he was convicted of a drink-driving charge in the Perth Magistrates Court on 18 October 2011, for which he was disqualified from driving for four months and fined $500. On 19 September 2012 the Applicant was convicted in the Perth Magistrates Court with driving with no authority to do so (fine suspended) for which he was fined $200.

20. The Applicant’s next offending occurred in Cairns in 2016 at which time he was convicted in the Cairns District Court with a range of offences. This included unlawful possession of weapons, possessing dangerous drugs, and producing dangerous drugs. The Applicant was sentenced to a term of imprisonment of two years to be suspended for a three-year period after serving 296 days at the Lotus Glenn Correctional Centre.

21. In his statement to the Department seeking revocation of the cancellation of his visa, the Applicant stated that with regard to the 2016 offending that it occurred at a time “where I was financially unstable, and an opportunity came about to take a job on a Cannabis farm. I regret leaving Perth as I had left my criminal past behind in 2007. I take full responsibility for my actions, drugs of any nature destroy lives”.

22. The next offending occurred in 2017 which led to convictions in the Cairns Magistrates Court on 24 February 2017 for possessing utensils or pipes that had been used with respect to drug usage for which the Applicant was convicted and fined $200. Also, on 29 August 2017 the Applicant was convicted of breaching a suspended sentence that had been imposed on 4 March 2016, with respect to his convictions for producing dangerous drugs. The Applicant was convicted to the rising of the court. In legal terms being sentenced to the rising of the court means a short period of imprisonment for the duration of the court session. It is a sentence where the offender is held in custody until the court adjourns for the day.

23. In his statement to the Department seeking revocation of the cancellation of his visa the Applicant stated that after serving a term of imprisonment at the Lotus Glen Correctional Centre that he left the Tablelands of North Queensland where he had been residing and returned to Cairns.

24. The Applicant stated that at this time he was consumed by depression and had bad health issues with respect to his kidneys. The Applicant stated that he was in and out of hospital during this period and that he had a kidney removed as well as a high tibial osteotomy on his right leg. The Applicant stated that during this period he became addicted to pain medication. The Applicant stated that his pain was compounded by living with bad osteoarthritis.

25. The Applicant stated that he eventually got himself to a level where he believed that he could return to work and started dropping off resumes. The Applicant described obtaining work in a good restaurant in Cairns as a restaurant and bar manager, in what he described as a premier venue. The Applicant stated that the job came with a good salary, along with a one-bedroom unit which was included in the salary package. The Applicant stated that over the next year he was performing well in the job, but the pressure of long hours and the required high performance started taking its toll. The Applicant in his statement to the Department seeking revocation stated that he “started using ice & cocaine to motivate me to complete all the work I was getting behind in. After a time, everything became too much, and I got sent home from work that day. I had the weekend off, the following Tuesday we came to a mutual understanding that we would part ways. As I was living in their one-bedroom unit, they were nice enough to give me one month rent free to find alternative accommodation”.

26. The Applicant stated that he found work with a previous employer in Cairns which lasted two weeks before the COVID 19 pandemic shut the whole of the hospitality industry in Queensland down. The Applicant stated he was under financial constraint and that in 2021 he started purchasing wholesale drugs and selling them for a profit to live.

27. The evidence before the Tribunal indicates that the Applicant was convicted in the Cairns Magistrates Court on 28 July 2021 with possessing dangerous drugs and with possession of utensils or pipes that had been used. The Applicant was convicted and placed on a reconnaissance to be of good behaviour for six months and fined $500.

28. On 6 March 2023 the Applicant was convicted in the Cairns Supreme Court with trafficking in dangerous drugs. The Applicant was imprisoned to a term of 8 years and 6 months with a declaration that the time spent in pre-sentence custody be deemed as time already served under this sentence, a period of 122 days that was served between 4 November 2022 and 5 March 2023. The court imposed a parole eligibility date of 4 September 2025.

29. In his statement to the Department seeking revocation of his cancelled visa the Applicant stated that he was convicted and sentenced for the trafficking in dangerous drugs charges to a period of 8 years and 6 months imprisonment with an earliest parole eligibility of 34 months. The Applicant stated that he was two thirds of the way into his prison sentence and claimed, “I am a totally different person with new morals and know this is my last chance of changing my life”.

    SUPREME COURT SENTENCING COMMENTS

30. Chief Justice Bowskill in the Supreme Court of Queensland in Cairns made a number of comments and observations in his sentencing remarks of 6 March 2023.

31. Chief Justice Bowskill noted that the Applicant had pleaded guilty to all the offences before the court and stated “I’m taking your pleas of guilty into account in your favour, in reducing the penalty that otherwise would have been imposed on you. It does show that you have taken responsibility for your actions, and that you are willing to assist the course of justice”.

32. Chief Justice Bowskill noted that the Applicant had failed to attend a previous sentencing hearing and that with respect to this “it has been explained to the court on the basis, in part, of not understanding when the sentence was to happen, and then panicking knowing the inevitable outcome. So, I do not regard that is having a significant impact on the value of your plea in the circumstances”.

33. Chief Justice Bowskill noted that the use of illicit drugs in the community caused misery and that the amount of crime that is driven by the use of drugs is described as “unbelievable” noting that “this Court is taken up day in and day out, dealing with serious criminal offences, all of which find their source in drug use”.

34. Chief Justice Bowskill stated that the Applicants “actions enable drugs like cocaine, meth, and MDMA and cannabis to get out to a whole lot of people, causing a lot of damage and a lot of harm, a lot of offending, sometimes deaths. That is why this sort of offence is treated so seriously by the Courts, because you are not just hurting one person-you’re not even just hurting five people. You could be hurting hundreds of people by facilitating the distribution of those drugs into our community”.

35. Chief Justice Bowskill noted the Applicant’s criminal history and described it as being a serious one. He noted that the Applicant had a conviction from 2006 for drug trafficking which led to a sentence of imprisonment. Further that the Applicant had a conviction in 2016 for producing dangerous drugs and also possession of drugs which led to a further term of imprisonment and that the Applicant had more recent convictions for possession. Chief Justice Bowskill stated that when the Applicant’s home was the subject of a search in July 2021, he was found to be in possession of a small amount of cannabis along with an iPhone and a MacBook. It was noted that the Applicant was cooperative with the police and provided passcodes with respect to his seized devices and that emails were found within the devices that led to the detection of the offending.

    APPLICANTS STATEMENT

36. After the Applicants Subclass 444 visa was cancelled, the Applicant submitted a form to the Department of Home affairs on 26 July 2024 seeking revocation of the cancellation. In setting out his reasons for revocation the Applicant stated “I have lived in Australia for 31 years, yes, I have a criminal record but the (sic) is not violence. I recently lost my mum to stage 4 lung cancer, so I’ve lost both my parents to cancer. My sister is my last living blood relative who resides in Brisbane Australia”.

37. In the form the Applicant was asked to describe the current impact on family members of his offending behaviour. The Applicant stated that he was trying to mend his relationship with his sister Debbie who lived in Australia but if he was sent back to New Zealand the relationship may never mend. When addressing the factors that explain his offending he wanted the decision-maker to take into account that “I have bad depression & anxiety through years of family history. I have applied myself and worked hard in Australia, it is my home. I am doing things to better myself with my criminal behaviour with courses & building a support network. I have no violent history, very limited family. Please let me stay in Australia and give me one last chance”.

38. The Applicant stated that he had completed a number of courses whilst in detention. The Applicant acknowledged that he had previously received a warning with respect to his offending behaviour in 2006. The Applicant advised that he had tried to do as much as he could whilst in prison such as engaging in drug courses, resilience courses and substance intervention courses. The Applicant stated that whilst he had been in prison he had been given a low classification. The Applicant advised that he had worked in a number of busy restaurants throughout Australia and that he had been involved in the training of staff during periods he held management roles.

39. The Applicant stated that an impediment to him returning to New Zealand was the fact that he suffered with anxiety and depression for which he was currently taking 45mg of Mertazapin. The Applicant advised that he had not lived in New Zealand since the 1990s and has no human connections to that country. The Applicant expressed that “I am very remorseful and sorry for my past, even if I even Jay-walk you can send me back to New Zealand. I am pleading for one last chance to prove my good nature”.

40. The Applicant also provided a personal statement which is dated 21 August 2024. The Applicant makes reference to his early family life and schooling in New Zealand. The Applicant makes reference to his post school life which led him into the hospitality industry. The Applicant makes reference to his relocation to Australia, and the fact that he had lived in Sydney, the Gold Coast, Cairns, Melbourne, Brisbane and Perth.

41. The Applicant addresses why he believes there is no risk that he would reoffend in the future. In addressing this consideration, the Applicant states that “I have been incarcerated for 22 months and have maintained very good behaviour in custody. I haven’t been involved in any negative incidents or received any breaches of discipline. I have been employed in the prison and I am currently working in the sewing workshop. Queensland Corrective Services gave me a risk of reoffending (RoR) of 1, which was based on a comprehensive case management review of my criminal history. This is the lowest score possible and shows they believe I pose a low risk of reoffending once I am released from prison. I have been reclassified and given a low-security classification (see attached documents) and I will be transferred to Palen Creek Correctional Centre once I have submitted my revocation”.

42. The Applicant addressed the strength, nature and duration of his ties to Australia noting that his last living blood relative, his sister Debbie, aged 53 is resident in Australia. The Applicant advised that Debbie lives in Brisbane and works for Queensland Health and is married with three children and that he is attempting to re-build family ties with her as part of his rehabilitation. The Applicant states that he lost his parents to cancer. The Applicant requests a last opportunity to prove that he is rehabilitated. The Applicant once again references the courses that he has done during imprisonment.

43. The Applicant noted that he came to Australia as a 24-year-old and had lived continuously in Australia for 31 years and had only returned to New Zealand on one occasion for the wedding of his sister. The Applicant stated that he has no close relatives in New Zealand. The Applicant acknowledged that this was his last opportunity to turn his life around and prove to the people that have supported him that he is reformed.

44. The Applicant also provided a supplementary letter dated 21 August 2024 described as ‘my final word’. The Applicant stated that over the 22 months he had been in prison that he had a significant amount of time to think about his previous actions. The Applicant stated that he had been undertaking courses to make him a better person and had been attempting to address his depression and anxiety issues for the first time in his life. The Applicant stated that he suffers with a liver issue which he hopes to be able to have treated in the future and that he has also struggled with arthritis. The Applicant stated that he plans to build up a network of medical and professional people around him to address his health-related issues. The Applicant stated that when he is released back into the community that he will be under the supervision of the parole office for a period of five years. The Applicant stated that he hoped to be able to provide references from family, friends and work colleagues and employers to support his application for revocation.

    APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS

1. The Applicant provided a statement of facts issues and contentions to the Tribunal dated 27 June 2025 which has been duly considered.

2. The Applicant concedes that he does not pass the character test.

3. The Applicant took issue with paragraph 34 of the respondents SFIC which claims that Queensland Corrective Services had assessed him as a flight risk and on that basis a recommendation had been made that he remain housed in a high security facility. The Applicant describing this assertion as false and misleading. Indeed, the Applicant maintains that he had been deemed suitable to be transferred to a low security facility, namely a prison farm.

4. The Applicant believes that there was another reason why the cancellation decision should be revoked.

5. The Applicant relies on recent evidence of rehabilitation that he had achieved through attending courses in prison, certificates of completion of courses that he has undertaken, the development of a relapse prevention and wellness plan along with a discharge action plan with respect to him re-entering the community. The Applicant states that he hopes to be given an opportunity to test his rehabilitation knowledge and skills and coping strategies post release into the community.

6. The Applicant stated that he had been recommended to be transferred to a low security prison facility however, he had decided to put his transfer on hold and remain in a high security prison. The reason for this was to enable him to engage in a program available to prisoners in a high security setting called the High-Intensity Substance Intervention (HISI) program which the Applicant believed that he needed to engage in to address his serious drug offences. The Applicant stated that the prison farm did not offer this four-month program. The Applicant stated that he was on a waiting list to engage in the program due to the large number of prisoners wishing to attend. The Applicant stated that there were no positions available until 25 February 2025 and the Applicant has now completed the course.

7. The Applicant states that it is important for the Tribunal to take into consideration the significant efforts that he has made whilst in prison with respect to rehabilitation and engaging in reform opportunities. The Applicant stated that his engagement in programs in prison had given him an opportunity to address his mental health, his addiction issues, and relapse prevention and offending prevention. The Applicant submits that these courses had changed the way that he would conduct himself in the community upon release.

8. The Applicant conceded that methylamphetamine’s were a very powerful and addictive drug that impacts thinking and reasoning. The Applicant noted that as a consequence of his imprisonment he had been drug-free for over 34 months. The Applicant stated that “I am feeling very healthy and proud of how far I have come and how my mindset is and I believe and are confident with strong support network & agencies I can remove this drug permanently from my new healthy lifestyle change”.

9. The Applicant notes that he understood that this would be his last and final warning from the Australian government and that the cancellation of his visa had taken a toll on his mental health. However, the Applicant noted that he had used the cancellation to turn his life around and was looking forward to being released into the community to pursue a healthier lifestyle and future going forward. The Applicant noted that “decision-makers have never experienced addiction in their lifestyle and unfortunately don’t believe that people can change and I’m confident that I’m in this category”.

   RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS

10. The Tribunal received a statement of facts, issues and contentions from the Respondent dated 13 June 2025 which has been duly considered.

11. The submission notes that the key issue for the Tribunal to determine is whether there is another reason why the cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act, having regard to the primary and other considerations contained in Direction 110. The Minister contends that the Tribunal should not be satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked and therefore the Tribunal should affirm the decision under review.

12. Having regard to the nature and seriousness of the Applicant’s offending conduct, the submission notes that the circumstances of the Applicant’s index offending were that in 2020 and in 2021 he was involved in the purchase of wholesale amounts of methylamphetamine, cocaine, MDMA, and cannabis from his co-offender, and then selling them in small amounts to end-users. In terms of his distribution model the Applicant utilised a sophisticated system of dark web correspondence and crypto currency. The submission notes that the Applicant was held on remand after his arrest until his sentencing.

13. The Minister’s contention is that the Applicant’s index offending should be viewed as serious and contends that the imposition of a custodial sentence must be viewed as a reflection of the objective seriousness of the offences involved.

14. The Minister’s representative makes reference to the sentencing remarks with respect to the index offending which highlighted the seriousness of the offence, and where the sentencing Judge when sentencing the Applicant and his co-offender noted that:

    “your actions enable drugs like cocaine, methylamphetamine, MDMA and cannabis to get out to a whole lot of people, causing a lot of damage and a lot of harm, a lot of offending, sometimes deaths. That is why this sort of offence is treated so seriously by the Courts, because you are not just hurting one person-you are not even just hurting five people. You could be hurting hundreds of people by facilitating the distribution of those drugs into our community. And likewise, Mr Young, your actions are the same”.

15. The Minister’s representative contends that the number of the Applicant’s criminal convictions totalling approximately 15, ought to be considered as serious or very serious. The submission notes that at the time of the Applicant’s arrest for the index offending that he had been convicted of offences that included weapons offences, drugs offences, traffic offences, a three-year prison sentence in 2006 for trafficking in dangerous drugs and an offence in 2016 for producing dangerous drugs which led to a sentence of imprisonment. The submission notes that when the Applicant was sentenced for the index offending that the judge noted that his criminal history was serious. The submission notes that it is the Minister’s contention that the Applicant’s criminal history demonstrates a trend of increasing seriousness and frequency.

16. The submission notes that in 2006, the Applicant was formally warned about the consequences of further offending in terms of his migration status and that despite this warning, the Applicant continued to commit offences including the offence of producing dangerous drugs in 2016 and the index offending in 2020-2021.

17. The Minister contends that the Applicant’s conduct demonstrates a wilful disregard for the law and authority and these factors weigh heavily against revocation.

18. In addressing risk to the Australian community, the submission notes that the health, social and economic harm of drugs in the community is well documented. The submission notes that the Applicant has attributed a significant proportion of his offending to depression and anxiety but has not provided medical evidence to the Tribunal with respect to any mental health concerns and whether his mental health conditions played a contributory role in his offending.

19. The submission notes that the Applicant attributed his criminal offending to financial hardship and that this hardship was impacted by the lockdowns during the global pandemic. The submission makes reference to the Applicant’s statement in which he advised that he took both ice and cocaine to help him to stay on top of the heavy workload in far North Queensland when his workplace became busy, and the Minister contends that the Applicant because of his drug history is at risk of resorting to drug use again in the future if he finds himself in a high stress situation.

20. The Minister acknowledged the security classification that had been given to the Applicant in prison which noted his risk of reoffending was low. However, the Minister noted that Queensland Corrective Services determined in August 2024 that the Applicant could be a flight-risk and it was recommended that he remain in a high security facility. The Minister noted the materials indicated that whilst the Applicant was serving time in a low-security facility in 2006-2007, that he absconded from the facility and was placed in a higher level of security accommodation. This component of the Minister’s contentions at paragraph 34 of the Minister’s SFIC was retracted at hearing by the Minister with an acknowledgement that it was incorrect. The Tribunal has not given any consideration to the retracted information.

21. The Minister contends that the Applicant had sought to minimise the seriousness of his offending conceding that his criminal record did not include violent offences.

22. The Minister’s contention was that the risk factors which led to the Applicant offending had not been satisfactorily addressed, the Applicant over time had shown a continued disregard for the law and the Applicant demonstrated limited insight into the seriousness of his offending conduct.

23. It was noted that the Applicant had undertaken a number of courses whilst incarcerated. The Minister contends that the Applicant’s commitment to rehabilitation courses was inconsistent with his past behaviour and could be viewed as being opportunistic in nature.

24. The Minister referred to the Queensland Corrective Services Integrated Offender Management System record dated 24 August 2023. In that record the Applicant was assessed to have intact impulse control, sound judgement and sound insight. His overall mental health was assessed as ‘unremarkable’. The Minister contends that the assessment was made with reference to the Applicant’s mental health and did not provide any detail with respect to the Applicant’s insight into the seriousness of his offending and the harm that he may pose to the Australian community and hence it should be afforded negligible weight.

25. The submission notes that even if the Tribunal was to find that the Applicant’s risk of reoffending is low, something that is not accepted by the Minister, that a decision-maker is entitled to conclude that even a low risk of offending is unacceptable given the gravity of the harm that may eventuate from further offending.

26. Having regard to protective factors the submission notes that the Applicant provided limited evidence with respect to concrete plans for continued drug rehabilitation treatment or mental health treatment in the future and with respect to supporting treatment to avoid him slipping into recidivism in the future.

27. The submission notes that the Applicant had failed to provide an independent or expert therapeutic assessment of the risk of recidivism. The Tribunal acknowledges the difficulty that the Applicant (being unrepresented in the review) would have in collating such evidence from within prison.

28. The submission notes given the seriousness of the crimes committed by the Applicant that it is the Minister’s contention that the Tribunal should have a very low risk-tolerance for any risk of future harm and that on balance the protection of the Australian community was to be given greater weight to other considerations, and that this consideration weighed heavily against revocation.

29. Having regard to family violence the submission noted that there was nothing in the materials to indicate that the Applicant had engaged in family violence conduct and hence the Minister accepted that this consideration should be afforded neutral weight.

30. Having regard to the strength, nature and duration of ties to Australia the submission noted that the Applicant’s only immediate family member in Australia is his sister who resides in Brisbane with her three adult children. The Applicant also has an aunt and two cousins in Australia. The submission notes that the Applicant has limited ties to his adult sister but accepts that this consideration may weigh somewhat in favour of revocation.

31. The submission notes that the Applicant had resided in Australia for a continuous period of 30 years and arrived in Australia as a 26-year-old and did not spend his formative years in Australia. The submission notes that the Applicant had contended that he had made a positive contribution to the Australian community through his work in the hospitality industry. Taking into account the Applicant’s familial and social ties along with his long-standing period of residence in Australia the Minister accepted that this consideration weighed moderately in favour of revocation.

32. Having regard to the best interests of minor children the Minister noted that there were no minor children and hence this consideration should be afforded neutral weight.

33. Having regard to expectations of the Australian community it was the Minister’s contention that this primary consideration weighed heavily in favour of non-revocation. The reason for this was that the Applicant, through his offending history, particularly his index offending had put members of the Australian community at risk. The Applicant had failed to obey Australian laws during his period of residence in Australia and had engaged in serious conduct in breach of community expectations and hence the Australian community would expect the government not to allow the Applicant to remain in Australia.

34. Having regard to other considerations the submission noted that the Tribunal is required to consider the legal consequences of the decision. The submission noted that there was no evidence that the Applicant was covered by a protection finding and hence Australia’s non-refoulement obligations were not enlivened.

35. The submission also acknowledges that the Applicant would be liable to be removed from Australia, that he would be held in immigration detention until such time as his removal could be facilitated, and he would be unable to satisfy special return criteria or apply for another visa whilst in Australia with the exception of a protection visa. The Minister contends that the Tribunal should afford this consideration neutral weight.

36. Having regard to the extent of impediments if the Applicant was removed to New Zealand the submission noted that there would be no substantial language or cultural barriers that the Applicant would need to overcome. The Applicant has a step-father and step-mother available to him in New Zealand. The Minister contends that the Tribunal should not accept the Applicant has a lack of immediate family support in New Zealand. The submission noted that the Applicant is currently taking antidepressant medication and has liver problems and arthritis but submits that the Applicant would be eligible for health care in New Zealand as a New Zealand citizen. The Minister acknowledged that the Applicant was 55 and may be close to retiring but contended that the Applicant would be able to maintain employment in the hospitality industry in New Zealand and would be eligible for social welfare payments in New Zealand. He would also be eligible for the age pension from the age of 65. The Minister accepted that this consideration could be afforded some weight in favour of revocation. The Minister noted that there was no evidence of an impact on Australian business interests in the event that the Applicant was removed from Australia.

37. Overall, it was the Minister’s contention that the considerations that weigh against revocation of the cancellation of the Applicant’s visa outweigh the considerations in favour of revocation.

    REVIEW HEARING

38. The Tribunal conducted a review hearing on 14 July 2025. The Applicant appeared in the Brisbane Registry of the Tribunal and the hearing was convened via video conferencing facilities. The Applicant was not represented. The Minister was represented by Ms Tatersall from Minter Ellison.

39. At the outset of the review hearing the Tribunal explained the process of merits review, the respective issue in the review and how the hearing would be conducted. As the Applicant was not represented the Ministers representative agreed it would be appropriate for the Tribunal to take the Applicant though his evidence.

40. The Applicant made an opening statement to the Tribunal. The Applicant stated that his incarceration had been a hard road. He advised that during his incarceration he had gained a lot of weight and had struggled with depression. The Applicant stated that he believed that there was another reason to revoke the cancellation of his visa. The Applicant made reference to paragraph 34 in the Ministers statement of facts issues and contentions claiming that he had never been categorised as a flight risk whilst in prison and that this contention was completely incorrect.

41. The Minister’s representative advised that the Minister conceded there was an error at paragraph 34 of the respondent’s SFIC. The Minister stated that regard should only be had to the first sentence of the paragraph, namely that the Applicant in a report dated 6 August 2024 had been assessed as having a low risk of further general offending and that the remainder of the paragraph (referable to the Applicant being a flight risk and hence his retention in higher security accommodation) should be deleted and that no regard should be had to that contention.

42. The Applicant stated that he had only remained in a high security prison facility to enable him to undertake a drug rehabilitation course that was not offered in a low security environment. The Applicant stated that he had never escaped from a prison, that he had never been deemed to be a flight risk and he had been assessed as being suitable to be moved to a lower grade facility. The Applicant stated that he had a good prisoner record.

43. The Applicant stated that with respect to his rehabilitation that he had undertaken a 4-5 month high-intensity intervention program to address his drug abuse history. The Applicant stated that he wanted the Tribunal to give weight to these factors with respect to his rehabilitation.

44. The Ministers representative made a brief opening statement. The Ministers representative noted that it was the Minister’s position that there was not another reason or reasons to revoke the cancellation of the Applicant’s visa. With respect to Direction 110 it was submitted that significant weight should be given to primary consideration 1 and primary consideration 5 against revocation of the Applicant’s visa.

45. The Applicant advised that he was born in Hamilton New Zealand in 1969. The Applicant stated that he had one sister, Debbie, who lived in Brisbane with her husband and three children.

46. The Applicant advised that from memory, he arrived in Australia in 1993, and returned to New Zealand in 1998 to attend Debbie’s wedding.

47. The Applicant advised that he had lived in Queensland, New South Wales, and Western Australia during the time that he had been resident in Australia.

48. The Applicant confirmed that he had traffic offences in New Zealand relating to drink-driving and driving a motor scooter without a licence to do so.

49. Reference was made to the Applicant’s offending history in Australia. The Applicant stated that with respect to his first offending in 2005 that he was having medical problems in Australia with his knees. He advised that the waiting list for surgery in the public system was 18 months. The Applicant advised that to undergo surgery privately cost $14,000. The Applicant stated that he opted for the private system due to public delays. The Applicant underwent surgery at the Cairns Private Hospital undertaken by Dr Shepherd. The Applicant advised that the initial surgery did not go well and that there was a need for revision keyhole surgery. The Applicant then underwent rehabilitation post-surgery.

1. The Applicant stated that he went down the pathway of selling drugs to pay for the operation and that he was selling ecstasy tablets. The Applicant described himself as a low-level drug dealer selling a couple of hundred ecstasy tablets. The Applicant stated that he came to the attention of the police when they attended his residence with a search warrant at which time they found cannabis and ecstasy tablets. The Applicant stated that as a consequence of this offending, he was subject to a term of imprisonment of 10 months which he served in the Lotus Glen facility in Mareeba in the Atherton Tablelands. The Applicant stated there was no parole oversight when he was released back into the community.

2. The Applicant confirmed a drink driving charge in Western Australia in October 2011 but could not recall the no authority to drive conviction in Western Australia in September 2012.

3. The Tribunal asked the Applicant about his offending leading to a raft of convictions in the Cairns District Court on 4 March 2016. The Applicant stated that he had returned to Cairns from Western Australia. The Applicant stated that he returned to Cairns for a job in a restaurant. The Applicant stated that he drove 6000km from Western Australia to Cairns. The Applicant stated that he was only three weeks into the position when he left his employment due to the owner finding out about his criminal history. The Applicant stated that as a consequence of the loss of his job, he was traumatised and that he met up with an old friend from his 2006 incarceration. The Applicant advised that he was offered a job on a cannabis farm helping in its operation. The Applicant stated that the offending from 4 March 2016 relates to the operations on the cannabis farm. The Applicant stated that five people were charged for the offending. The Applicant stated that having regard to the unlawful possession of weapon charge, that he did not know how to shoot a gun or deal with a weapon but noted that all of the offenders were charged and convicted of the same offences. The Applicant stated that there were three principal offenders and two low-level workers of which he was one. The Applicant confirmed that this offending led to a term of imprisonment in 2016.

4. The Applicant stated that he should have stayed in Western Australia and not returned to Queensland. The Applicant stated that he should not have hung around the wrong people. The Applicant stated that during this period he started taking drugs again. The Applicant stated that around 2 to 3 weeks before being charged with the offending leading to the 2016 convictions, he was thinking of not participating in the offending, however he ended up engaging in the offending which led to a further term of imprisonment.

5. The Applicant confirmed that he was convicted of breaching a suspended sentence in the Cairns District Court on 29 August 2017, and confirmed a conviction in the Cairns Magistrates Court on 28 July 2021, for possession of dangerous drugs namely cannabis and possession of utensils or pipes, namely a bong.

6. The Applicant was asked about his offending that led to convictions in the Cairns Supreme Court on 6 March 2023 for trafficking in dangerous drugs. The Applicant stated that during the time of the offending the hospitality industry in Queensland was closed down as a consequence of the Covid 19 pandemic. The Applicant described going down the wrong path again.

7. The Applicant confirmed that he had extensive work experience in the hospitality sector.

8. The Tribunal asked the Applicant why he believed the risk of him reoffending had been mitigated. The Applicant stated that whilst he had been imprisoned, he had completed the HISI program over four months dealing with his drug addiction.

9. The Applicant confirmed that he had been addicted in the past to methamphetamines and cocaine. The Applicant advised that prior to his engagement in the HISI course that he had never engaged in drug rehabilitation in the past.

10. The Applicant believed that there are a number of factors that would mitigate risk in his case. The Applicant stated that he could contact organisations such as Lives Lived Well and Drug Arm. The Applicant stated that he would be overseen by a parole officer in the community. The Applicant believed that he may be able to derive support from his sister Debbie, from old employers, and that he was strongly motivated to turn his life around. The Applicant stated that he wanted to have an opportunity to prove himself in the community

11. Having regard to his relationship with Debbie the Applicant stated it was not a close relationship, however it was a relationship that he hoped to be able to rebuild. The Applicant claimed that when his mother was dying from lung cancer that it brought, he and Debbie closer together for a time, however his sister had been disappointed with his criminal history to date. The Applicant stated that it was difficult to mend relationships whilst being locked up in prison.

12. The Applicant advised that he had the support of a friend in the community Ms Alexandra Crighton, who had provided a statement to the Department in support of the Applicant.

13. The Applicant was asked what impediments he would have to re-establishing a life in New Zealand. The Applicant stated that he had not maintained contact with his step-parents for many years, that his mother had passed away. The Applicant claimed that he would struggle getting back into the hospitality industry in New Zealand. The Tribunal noted that hospitality skills were universal in their application and that the Applicant’s Australian experience would be directly transferable to New Zealand. The Applicant agreed that this may be the case.

14. The Applicant identified the strongest points to be considered with regard to revocation. Firstly that he wanted to turn his life around and wanted to be a model citizen. The Applicant stated that he did not have a violent history and had never been in a fight during his life and was not an angry person. The Applicant stated that he needed to turn his life around, that he was 55 years old, and that he only had 10 to 20 years left on earth. The Applicant stated that he wanted to get into a good routine and get through his parole. The Applicant wanted to move on with his life and that he wanted to rebuild a relationship with his sister.

15. The Applicant was questioned by Ms Tatersall the Minister’s representative.

16. The Applicant was taken to movement records in the joint tender bundle which indicated that he relocated to Australia in 1995.

17. The Applicant confimred that he had been imprisoned in Australia on three occasions.  The first term of imprisonment was from November 2006 for 10 months.

18. The Applicant confirmed that he was sentenced to a second term of imprisonment on 4 March 2016 and that his presentence custody from 11 May 2014 to 2 March 2015 was considered as time already served under the sentence. The Applicant stated that this sentence was nine months in duration.

19. The Applicant stated that he was sentenced to his third term of imprisonment on 6 March 2023 and that his pre-sentence custody between 4 November 2022 and 5 March 2023 was taken into consideration with respect to that term of imprisonment. The Applicant confirmed that as a consequence he had been in prison since 4 November 2022.

20. The Applicant advised that he spent around 13 months living in Perth Western Australia. Upon returning to North Queensland in 2006, the Applicant ended up being sentenced to a period of imprisonment of 10 months. The Applicant stated that when he was released from prison that he returned for a period to Western Australia. The Applicant confirmed that apart from periods of residency in Western Australia and a period in Sydney, that he had predominantly lived in Cairns in North Queensland. The Applicant stated that he had also spent some time on the Gold Coast and a short period of time in Brisbane prior to relocating to Cairns.

21. In terms of relatives the Applicant confirmed that his sister Debbie resided in Brisbane with her three children and husband and that he had an aunt and two cousins living on the Central Coast. The Applicant advised that the last time that he spoke with Debbie was around 3 to 4 months ago.

22. The Applicant confirmed that he had limited support from his sister during the term of his imprisonment. During their mother’s illness the Applicant stated that he was in prison and was not able to support his sister. The Applicant stated that prior to that, he would contact his sister about once a month and he advised that she worked in a hospital in Brisbane and was sometimes hard to get a hold of. The Applicant confirmed that his sister had not provided him with a statement and that his sister had struggled with depression since the loss of their mother.

23. Ms Tatersall noted that the evidence indicated that Debbie was not supportive of the Applicant and of his bid to stay in Australia. The Applicant stated that he had always treated Australia as his home and that he did not think that his sister would want him to be removed. The Applicant stated that he needed to remain in Australia to repair his relationship with Debbie. The Applicant stated that when he was living in North Queensland and his sister was in Brisbane that he would contact her from time to time through email or by phone. The Applicant advised that he had no contact with his aunt and two cousins on the Central Coast. The Applicant stated that the last contact that he had with Debbie was when his late mother and Debbie visited him in prison.

24. The Applicant stated that he had a close friend Alexandra Crighton, who had provided a statement. He advised that she lived in Palm Cove in North Queensland and that they kept in touch via email and the last time he had received correspondence from her was a few months ago. The Applicant believed that Alexandra could provide him with support if he was released back into the community.

25. Ms Tatersall noted that the Applicant had provided prospective addresses in Brisbane if he is released back into the community. The Applicant stated there were a number of boarding houses in Brisbane that he could relocate to. When asked whether Alexandra was his only friend the Applicant stated that he had a lot of close friends, however, it was difficult to maintain contact with them whilst he was in prison. The Applicant stated that he wanted to establish a new network of friends in Brisbane and to make a fresh start if he is released into the community. The Applicant confirmed that apart from Debbie he had no other contacts in Brisbane.

26. The Applicant advised that he had never experienced difficulty in finding work in Australia. Ms Tatersall noted the Applicant’s evidence that he would struggle to find work in the hospitality industry in New Zealand. The Applicant claimed that this was the case because his references were from Australia. The Tribunal asked whether in the event the Applicant returned to New Zealand whether he believed he could use his Australian references to obtain work in the hospitality sector, given the universal nature of the industry. The Applicant conceded this may be so. Ms Tatersall noted the Applicant had two stepbrothers in New Zealand, the Applicant confirmed this, but stated that he had nothing to do with them, further he had nothing to do with his stepmother or stepfather. The Applicant advised that he had a cousin in New Zealand that he did not maintain contact with.

27. The Applicant confirmed that he had a relapse plan based on the rehabilitation courses he had undertaken in prison. Ms Tatersall noted that it appeared the Applicant did not have a network of support people in Australia. The Applicant stated that he would try to make amends with his sister and that he would also reach out to other family members to repair relationships.

28. The Applicant advised that he was not sure whether his brother-in-law was supportive of him having a relationship with Debbie.

29. The Applicant conceded that at the time that he required knee surgery, that he had access to the Medicare system in Australia and also had access to Centrelink benefits such as Newstart allowance.

30. The Applicant confirmed that he was using drugs in May 2005 predominantly cannabis and ecstasy. The Applicant advised that he had been using cannabis from his mid-20s and ecstasy from his early 30s. The Applicant stated that he used drugs at this time a couple of times a week. The Applicant stated that the habit was not expensive because he was selling drugs at the time so his drug use was not costing him anything. Ms Tatersall noted that the Applicant had referred to himself as being a low-level dealer, and made reference to the joint tender bundle of HB 264-HB 265. This referred to the fact that the Applicant was found by the police to be in possession of 247 ecstasy tablets. The Applicant stated that he could not comment on this as it was a long time ago.

31. With respect to the 2016 convictions for the production of dangerous drugs, the Applicant stated that both he and his four co-offenders were all charged with the same offences irrespective of their role in the criminal enterprise. The Applicant stated that after he lost his job in Cairns that he made poor decisions leading to this offending. The Applicant confirmed that he was not one of the principles in this offending and described himself as a mere worker. The Applicant described his role in this criminal offending as taking things to the farm, driving, setting up camp, unpacking trailers and making homebrewed alcohol. The Applicant confirmed that he knew that engaging in this enterprise was illegal. The Applicant stated that despite the charges, no dangerous drugs were produced and that he and his co-offenders were caught in the process of setting up the farm for the production of marijuana.

32. The Applicant stated that he started using methylamphetamine in around 2013. The Applicant stated that he was using it every few days. The Applicant stated that he consumed cannabis from time to time. Ms Tatersall noted the Applicant’s evidence that he committed offending between May 2020 and June 2021 due to loss of employment as a result of the global pandemic. The Applicant confirmed that he received pandemic relief in the form of a Newstart allowance of $1200 per fortnight which was just enough to cover his costs of living expenses which included car repayments.

33. The Applicant confirmed that he was using methylamphetamines in 2020 along with cocaine from time to time. The Applicant confirmed that between 2013-2014 and 2021 he was using ice on a regular basis. The Applicant confirmed that his offending was more to do with the use of drugs rather than his financial circumstances. The Applicant was asked about his most recent offending described as a high-level operation assisting a co-offender with the running of a drug supply business. The Applicant stated that he did not wish to say anything to incriminate himself and that he was assisting in order to obtain drugs for personal use.

34. Reference was made to the joint tender bundle at HB 44 paragraph 10, the sentencing comments in the Supreme Court of Cairns. The Crown described the Applicant’s offending as high-end street-level and that the Applicant was buying wholesale amounts and supplying smaller amounts to end-users. The Applicant stated that he was drug affected at this time and that his recollection of the offending was hazy.

35. The Applicant was asked about his familiarity with Suboxone. The Applicant stated that it was used as an alternative for addictive drugs targeting heroin users and ice users. Ms Tatersall noted that the Applicant was found to be in possession of Suboxone in November 2023 whilst in prison. The Applicant confirmed this was correct. The Applicant stated that somebody gave him the Suboxone just after his mother passed away as he was feeling down. The Applicant claimed that he did not use the drug but just carried around in his jocks in a glass case. The Applicant confirmed that the Suboxone was discovered on his person during a strip search.

36. The Applicant stated that he had been abstinent from drugs during imprisonment and for a period of time prior to being imprisoned. The Applicant claimed that he last used drugs in 2021.

37. The Tribunal noted that the Applicant in evidence that he had provided indicated that he used drugs in a work environment in 2020-2021 in Cairns due to the pressure of work. The Applicant confirmed that this was the case and he used drugs to attempt to meet the demands of the job, and that his sister was also cognisant of his drug use. The Applicant claimed that he was struggling with depression at this time. The Applicant claimed that prior to his most recent imprisonment he had not tried to stop using illicit drugs. The Applicant stated that he had never abused alcohol.

38. Ms Tatersall noted that the Applicant had received a previous notification of a prospective cancellation of his visa in 2006 and that this notice did not prevent the Applicant from engaging in further offending. The Applicant confirmed this was the case.

39. The Applicant stated that he hoped to be relocated to a low security prison as part of the next stage in the progress of his rehabilitation prior to being released into the community. The Applicant stated that he had never been deemed by prison officials to be a flight risk. The Applicant stated that there were no adverse entries with respect to his periods of imprisonment apart from the Suboxone incident. The Applicant stated that he was off drugs, that he loves Australia, and he wishes to remain in Australia to rebuild his relationship with his sister. The Applicant stated that he wanted an opportunity to prove that he was a better person. The Applicant acknowledged that drugs had destroyed his life. The Applicant stated that over the course of his career in hospitality he had trained a lot of staff. The Applicant stated that he had never engaged in violence his life. The Applicant stated that he had gained significant weight whilst in gaol. The Applicant stated that he wanted a chance to prove that his drug addiction was behind him. The Applicant stated that he was not able to change the past and that all he could do was change the future.

40. Ms Tatersall noted that the Applicant failed to appear for sentencing before the Supreme Court in Cairns for 16 days. The Applicant stated that at the time he was not ready for sentencing, he advised that his pug dog was in the pound, the Applicant stated that he was preparing himself for a further period of incarceration and that in the past he had always turned up at court and faced his sentencing.

41. Reference was made to the Applicant’s relapse prevention plan located at HB 285 of the joint tender bundle. The Applicant noted that his sister was listed as somebody that could help him with respect to relapse. Ms Tatersall stated that this seemed unlikely given the poor relationship between the Applicant and Debbie. The Applicant stated that he needed to speak to his sister about what support she could provide. Reference was made to HB 301 of the joint tender bundle where the Applicant identified medical cannabis as a treatment that may help reduce his symptoms with respect to drug relapse. Ms Tatersall noted given the Applicant’s addiction history that this could be counter-productive. The Applicant stated that he would need to speak to professionals to see if medical cannabis would work. Ms Tatersall made reference to HB 293 in which the Applicant identifies triggers and lists brothels, pokies and gambling as triggers. The Applicant was invited to comment on this. The Applicant stated that he does not use brothels, that he does not use pokies and that he does not gamble.

42. In a closing submission the Applicant stated that his rehabilitation had not been tested in the community. The Applicant wanted an opportunity to prove that he was a different person. The Applicant stated that he hoped to build a relationship with his sister Debbie. The Applicant hoped to be able to find work in Australia and remain drug-free. The Applicant stated that he would receive oversight through the parole authorities. The Applicant stated that upon release he would build support networks and put his life back together again.

1. In closing Ms Tatersall stated that the Minister’s position was that there was not another reason or reasons to revoke the cancellation of the Applicant’s visa. Ms Tatersall stated that significant weight should be given to both primary consideration 1 and primary consideration 5 with respect to not revoking the cancellation of the Applicant’s visa and that factors such as the protection of the Australian community, nature and seriousness of the Applicant’s offending, risk of offending and the expectations of the Australian community all weighed heavily against the Applicant.

2. Ms Tatersall noted the fact that when the Applicant experienced financial hardship in the past, that he had resorted to criminality such as drug dealing to make a living. Ms Tatersall noted that the Tribunal should be mindful of the fact that the Applicant has not lined up any employment for his release into the community. Ms Tatersall noted that the Applicant had a long history of drug abuse. The Applicant was solely reliant on the rehabilitation courses that he had undertaken in prison preventing relapse. Ms Tatersall submitted that in the Minister’s view based on the evidence the Applicant had no clear plans, had not engaged in an extensive period of rehabilitation, had no relationship with his only sibling Debbie, had only one friend in the community and had not resided in Brisbane for many years. Ms Tatersall argued that the Applicant’s plans left him open to stress with a requirement that he re-establishes his life, finds accommodation, finds employment and forms a circle of new friends. Ms Tatersall posited that there was a significant chance of the Applicant relapsing back into drug use in the future due to this uncertainty.

3. Ms Tatersall noted that the fact that the Applicant had been granted parole was not a determinative factor for consideration. Ms Tatersall noted that despite the fact that the Applicant had been assessed as having a low risk of reoffending that the Tribunal should find given the evidence before it that any risk is too great a risk given the nature of past offending.

4. Ms Tatersall noted that the Applicant had limited ties to Australia despite the fact that he had resided in Australia since 1995. It was acknowledged that the Applicant had worked in the hospitality sector and paid tax and trained people, however the weight that should be a apportioned to these factors were counterbalanced by his significant and repeat offending. Apart from tenuous links with his sister, the Applicant’s only other social ties were with Ms Crighton.

   ISSUES

5. The issues for determination before the Tribunal are:

   (a)whether the Applicant passes the character test for the purposes of s 501 of the Migration Act, as defined in s 501(6); and

   (b)if not, whether there is another reason why the original cancellation decision should be revoked.

6. The Applicant has conceded that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. The Tribunal finds on the basis of the evidence before it that the Applicant does not pass the character test.

7. Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to be satisfied that there is another reason why the original decision should be revoked.

8. Direction 110 sets out the principles which provide a framework “within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA”. These are outlined 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.

9. Thus, the question in issue is whether there is another reason why the original cancellation decision should be revoked.

10. This involves giving appropriate weight to the considerations in Ministerial Direction 110 (both primary and other), requiring the Tribunal to examine factors for and against revoking the visa cancellation, and assessing and evaluating those factors to form a view as to whether the cancellation should be revoked.3

11. Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.

    PRIMARY CONSIDERATION 1:

    PROTECTION OF THE AUSTRALIAN COMMUNITY

12. The Direction states that Primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.

13. 8.1. Protection of the Australian community.

    (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.

    (2) Decision-makers should also give consideration to:

    a) the nature and seriousness of the non-citizen's conduct to date; and

    b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct

    The Nature and Seriousness of the Applicant’s Conduct to Date

14. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.

15. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, 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); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

16. The Applicant’s criminal history in Australia commenced in 2005 and has largely involved drug use, possession and trafficking charges.

17. The 2005 criminal history was dealt with by the Queensland Supreme Court in November 2006 and involved the court dealing with a number of summary matters and indictable matters. The summary matters included possession of utensils or pipes for drug use and possession of property suspected of having been used in connection with the commission of a drug offence. With respect to these matters the Applicant was convicted, however, no penalty was imposed. The indicatable matters included trafficking in dangerous drugs, possessing dangerous drugs at a quantity that exceeded the schedule and receiving or possessing property obtained from trafficking or supplying drugs. The indictable matters led to the imposition of a cumulative 10-month prison sentence and a pecuniary penalty of $4000.

18. The Applicant gave evidence that at the time of this offending he was having medical problems with his knees and required $14,000 for an operation. The Applicant advised at hearing that despite having access to Medicare, that the delay in having the operation in the public system was 18 months, and he opted to pay for private surgery. The Applicant’s evidence was that he resorted to selling illicit drugs, namely ecstasy, to pay for the surgery. The Applicant gave evidence that the sale involved a few hundred ecstasy tablets. The Applicant gave evidence that he came to the adverse attention of the authorities when the police armed with a warrant searched his home and found cannabis and ecstasy tablets.

19. The evidence indicates that after serving his term of imprisonment in North Queensland the Applicant relocated to Perth in Western Australia. During the time that the Applicant was living in Western Australia he was convicted in the Perth Magistrates Court on 18 October 2011 for drink-driving, he was disqualified from driving for four months, and fined $500. On 19 September 2012, he was convicted of no authority to drive and fined $200.

20. The evidence indicates that the Applicant relocated back to North Queensland from Western Australia. The evidence indicates that the Applicant engaged in further offending in 2013, soon after arriving back in North Queensland. The evidence indicates that the Applicant was involved in a number of summary offences and indictable offences, offending that occurred between 30 July 2013 and 12 May 2014. This offending was dealt with by the Cairns District Court on 4 March 2016. On that day the Applicant was convicted of unlawful possession of weapons, possessing dangerous drugs in an amount that exceeded schedule 3, possessing anything for use in the commission of a crime, and producing dangerous drugs. For this offending the Applicant was subject to a period of imprisonment with the Applicant being imprisoned to a period of 9 months between 11 May 2014 and 2 March 2015. The Applicant was also subjected to a suspended sentence for 3 years.

21. The Applicant’s evidence at review was that upon returning to North Queensland he started using illicit drugs again, he was hanging around the wrong people and he agreed to be involved in the cultivation of cannabis on a farm in the Atherton Tablelands.

22. The evidence indicates that while the Applicant was the subject of a suspended sentence, he was convicted in the Cairns Magistrates Court on 24 February 2017 of possessing utensils or pipes for drug use. A conviction was recorded and the Applicant was fined $200.

23. As a consequence of the Applicant offending during the term of his suspended sentence, he appeared in the Cairns District Court with respect to the breach on 29 August 2017, with the court finding the breach was proven, a conviction recorded, and the Applicant was sentenced to the rising of the court.

24. The evidence indicates that in the interim period the Applicant continued taking illicit drugs and on 28 July 2021 he was convicted in the Cairns Magistrates Court of possessing dangerous drugs and possessing utensils or pipes for drug use for which a conviction was recorded, the Applicant was subject to a reconnaissance of $500 and a good behaviour period of six months was imposed.

25. The evidence before the Tribunal indicates that despite the Applicant’s conviction history, and the fact that he had been the subject of a breach of suspended sentence, and the fact that on 28 July 2021, he had been subjected to six-month good behaviour bond he continued to engage in offending.

26. The evidence indicates that between 30 May 2020 and 29 June 2021 the Applicant was involved in trafficking dangerous drugs. As a consequence, the Applicant appeared in the Cairns Supreme Court and was convicted on 6 March 2023 with trafficking in dangerous drugs for which a conviction was recorded and the Applicant was subjected to a term of imprisonment of 8 years and 6 months. The Supreme Court noted that the Applicant would have a reduction in his sentence of 122 days for the time he had already served between 4 November 2022 and 5 March 2023, and that he would be eligible for parole on 4 September 2025.

27. Direction 110, 8.1.1(1)(a) refers to consideration of the nature and seriousness of the criminal offending engaged in by the non-citizen and references the fact that violent and or sexual crimes, crimes of a violent or sexual nature against women or children, and acts of family violence regardless of the sentence imposed are viewed very seriously by the Australian Government and the Australian community. The Direction does not limit the range of conduct that may be considered to be very serious. The evidence indicates that the Applicant has not engaged in violent or sexual crimes or crimes of a violent or sexual nature against women or children or indeed in family violence. The Applicant has however engaged in repeat drug trafficking offences and the Tribunal finds that this offending, which causes untold human suffering, falls within the context of very serious offending.

28. The Tribunal has had regard to the sentencing comments of Chief Justice Bowskill in the Supreme Court of Queensland dated 6 March 2023 with respect to the offending that led to the Applicant’s current term of imprisonment. Justice Bowskill noted that:

    “I will pause to note that the maximum penalty for trafficking in drugs such as methylamphetamine, cocaine and MDMA in particular, which is schedule 1 of the Drugs Misuse Act, is 25 years’ imprisonment. This is a significant maximum penalty reflecting how seriously the community regards offending in relation to drugs like those, but also cannabis. My comments in relation to this are directed to both of you. Those drugs cause untold misery in our community. The amount of crime that is driven by the use of drugs-all of those drugs-his unbelievable. This court is taken up day in and day out, dealing with serious criminal offences, all of which find their source in drug use”.

29. Judge Bowskill whilst sentencing both the Applicant and his co-offender noted that:

    “Mr Young, your criminal history is more serious. You have a conviction from 2006 for trafficking, for which you were sentenced to imprisonment. You have a further conviction from 2016 for producing dangerous drugs and also possessing drugs which again, saw you sentenced to imprisonment and more recent convictions for possession”.

30. 8.1.1(1)(b) states that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described in this part of the Direction are considered by the Australian Government and the Australian community to be serious.

31. There is no evidence that the Applicant has caused a person to enter into or to be a party to a forced marriage.

32. There is no evidence that the Applicant has committed crimes against government representatives or officials due to the positions that they hold.

33. It is not clear on the basis of the evidence before the Tribunal that the Applicant’s drug trafficking offending has impacted vulnerable members of the community, such as the elderly or the disabled.

34. Having regard to any conduct that forms the basis for finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-makers opinion (for example, section 501(6)(c)). The Tribunal finds having regard to the Applicant’s past criminal conduct that he is not of good character.

35. The Applicant’s history in prison has been uneventful apart from the breach that found him to be in possession of Suboxone during a strip search. The Applicant gave evidence at hearing that he had been given the Suboxone by another prisoner after the death of his mother from lung cancer and that he just carried the drug around on his person and had not intended on using it.

36. With respect to 8.1.1(1)(c) the Applicant has been the subject of three full time custodial sentences for his offending behaviour. These full-time custodial sentences in the view of the Tribunal are indicative of the seriousness in which the offending behaviour was viewed by the Courts.

37. With respect to 8.1.1(1)(d) there is no evidence before the Tribunal of the impact of the Applicant’s offending on the victims of his offending apart from the general comments of Chief Justice Bowskill in his sentencing of the Applicant in March 2023. Those comments were referable to the Applicant’s drug trafficking and its wider impact noting that “those drugs cause untold misery in our community”. Judge Bowskill at HB 43 of the tender bundle noted that the actions of the Applicant and his co-offender “enabled drugs like cocaine, methylamphetamine, MDMA and cannabis to get out to a whole lot of people, causing a lot of damage and a lot of harm, a lot of offending, sometimes deaths. That is why this sort of offence is treated so seriously by the Courts, because you are not just hurting one person-you are not even just hurting five people. You could be hurting hundreds of people by facilitating the distribution of drugs into our community”.

38. With respect to 8.1.1(1)(e) the frequency of the non-citizens offending and/or whether there is any trend of increasing seriousness the Tribunal finds as follows. The evidence indicates that despite the imposition of a full-time custodial sentence for drug trafficking in November 2006, resulting in 10 months in prison, the Applicant went on to re-offend during 2013 and 2014. At this time the Applicant was involved in the production of dangerous drugs leading to a second full time custodial sentence imposed in March 2016 for which he served 9 months in prison. The evidence indicates that two full time custodial prison sentences were not enough to dissuade the Applicant from engaging in further offending.  Indeed, the evidence indicates that the Applicant engaged in further serious offending between May 2020 and June 2021 when he was involved in drug trafficking methylamphetamines, cocaine and MDMA, offending which led to the imposition of his current prison sentence. The evidence in the view of the Tribunal is indicative of frequent offending and the nature of the most recent offending involving a sophisticated drug trafficking model which in the view of the Tribunal is indicative of a trend of increasing seriousness.

1. With respect to 8.1.1(1)(f) the Tribunal finds that there has been a clear cumulative effect of repeat offending by the Applicant as evidenced from his offending history from 2005 to 2021 a period of 16 years. The evidence indicates that over the course of his offending history the Applicant has resorted to drug trafficking to meet his expenses and to meet his own addiction to a range of illicit drugs. The Applicant’s criminal history in the view of the Tribunal would have led to countless hours of work for the judiciary, the police, probation and parole, prison officers, welfare officers all of which would have caused a cumulative effect and would have come at a significant cost to the taxpayer.

2. With respect to 8.1.1(1)(g) there is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

3. With respect to 8.1.1(1)(h) the evidence before the Tribunal indicates that the Applicant was formally warned in writing about the consequences of further offending in terms of his migration status in 2006.

4. Having regard to 8.1.1(i) the evidence indicates that the Applicant has committed 2 traffic offences in New Zealand which were a drink driving offence, and not holding a drivers licence, which the Applicant explained was referable to riding a motor scooter without a licence to do so. There is no evidence of the commission of serious offending by the Applicant in another country.

5. Having regard to the Applicant’s history of drug related offending between 2006 and 2021 the Tribunal finds that the nature and seriousness of the offending weighs heavily against revocation of his Class TY Subclass 444 Special Category (Temporary) visa. The Tribunal finds that the factors in 8.1.1 of the Direction that can be weighed in the Applicant’s favour are outweighed by the factors that weigh against him.

6. The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against the revocation of the cancellation of the Applicant’s visa.

7. The Tribunal finds that the nature and seriousness of the Applicant’s offending is reflected by the fact that he has been sentenced to three separate terms of imprisonment, the last resort in the sentencing hierarchy. The Tribunal has had regard to the Chief Justice Bowskill’s sentencing comments in March 2023 which note the serious nature of the Applicant’s most recent offending which is reflected in the maximum term of imprisonment that may be imposed for this type of offending of 25 years. The Tribunal considers the Applicant’s repeated drug trafficking offending to be very serious. This is clearly reflected in the sentencing comments of Chief Justice Bowskill referred to extensively above.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

8. 8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   (1) 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.

   (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

   the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   information and evidence on the risk of the non-citizen re-offending; and

   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).

   where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

9. The Tribunal acknowledges the security classification that had been given to the Applicant by Queensland Corrective Services on 12 August 2024 (HB322), noting that the Applicant had been assessed as a having a low risk of further general offending. The evidence indicates that the Applicant’s current term of imprisonment had been largely uneventful apart from the Suboxone incident in the Brisbane Correctional Centre on 21 November 2023.

10. The evidence provided by the Applicant indicates he has abused illicit drugs for most of his adult life. The Applicant gave evidence that he has struggled with a long-term addiction to methylamphetamines and to a lesser extent cocaine. The Applicant only ceased using these drugs when he was imprisoned with respect to his most recent offending.

11. The evidence indicates that until his current term of imprisonment the Applicant had not undertaken any active steps to address his long-term drug addiction. He had never undertaken counselling or psychological intervention in the community, and he had never attempted to engage with a rehabilitation program or with narcotics anonymous.

12. The Applicant conceded that he had used drugs in the past to deal with workplace pressure and he had trafficked in drugs to meet his own need for illicit drugs.

13. There is no evidence in the sentencing remarks of Chief Justice Bowskill in March 2023 which references the Applicant suffering with anxiety and depression. When seeking revocation of the cancellation decision on 26 July 2024 the Applicant claimed he suffered with anxiety and depression and that he was taking ‘Mertazapin”.   There is no corroborative evidence of a formal mental health diagnosis and the impact such a diagnosis may have contributed to the Applicant’s offending behaviour.

14. The evidence indicates that the Applicant long-term addiction to methylamphetamines has only been addressed during the term of his current imprisonment with attendance in the HISI program. The Applicant provided a certificate of completion this program which consisted of 96-hours of drug rehabilitation that he commenced in February 2025 and completed in June 2025. How this program will translate to drug abstinence in the community is unclear.

15. The Applicant had also engaged in the Drug Arm program in May 2025 developing a relapse prevention plan in which he was required to give thought to the strategies that he would employ in the community to deal with drug related cravings when they arise. The strategies identified by the Applicant included reliance on his sister Debbie. However, of note is the fact that Debbie failed to provide a statement of support or indeed attend the hearing as a witness in proceedings that may result in the removal of her brother to New Zealand.

16. The Tribunal finds that with respect to the relapse prevention plan that much of the plan is contingent on certain things being able to be implemented in the community, such as a general practitioner prescribing medication to circumvent cravings, relevant psychological engagement, and drug addiction counselling. There is no certainty about how this will be implemented in the community given there is no history of any such engagement during the many years the Applicant struggled with drug addiction.

17. In a statement to the Tribunal dated 9 May 2025, the Applicant set out his relapse prevention plan for his prospective release into the community. This includes engagement with drug and alcohol programs, one on one counselling for mental health, access to a psychologist to deal with drug and alcohol issues, attendance at narcotics anonymous meetings and attending the Changing Lives Together program.

18. The evidence indicates that despite a long history of drug addiction and two previous full time custodial sentences for drug related offending that the Applicant had not previously engaged in any drug rehabilitation programs. There is no evidence of engagement with rehabilitation courses during previous custodial terms in 2006 and 2016 and there is no evidence of the Applicant ever seeking to have his mental health or drug addiction issues formally addressed in the community.

19. The evidence indicates that the Applicant’s drug addiction, particularly his methylamphetamine addiction are longstanding. The Tribunal acknowledges the Applicant has experienced an extended period of abstinence from drugs, however it is unclear how his addictions may manifest upon re-entry into the community with the significant stressors that community re-integration will entail.  

20. The Applicant’s prior periods of imprisonment did not mitigate the risk of him engaging in further offending. The fact that he continued to engage in offending behaviour after his first and second terms of imprisonment is indicative of the deep-seated nature of his drug addictions. His propensity to engage in criminality to meet cost of living expenses despite having experienced imprisonment, suggests that imprisonment in the past did not serve to mitigate the risk of future offending.

21. The evidence indicates that the Applicant did not heed the formal written warning given to him by immigration in 2006 about the consequences of further offending on his migration status. Indeed, despite the warning and future ramifications he continued to offend.

22. The evidence indicates that the Applicant has been the subject of a suspended sentence in March 2016 for which he was breached in August 2017. The breach of the suspended sentence shows an underlying disdain for judicial direction and the rule of law and is indicative of the chronicity of his drug addiction. 

23. The Tribunal finds having assessed the evidence that the Applicant’s best laid plans for his prospective rehabilitation have not been tested in the community. The evidence suggests that the Applicant’s engagement with recent programs in prison have largely occurred after the Departmental decision to cancel his visa in July 2024 and not to revoke the cancellation of his visa in April 2025.  The Tribunal accepts the Applicant’s evidence that due to demand he could not get a place in the HISI program until February 2025 which he completed in June 2025.

24. The history of repeat offending after successive terms of imprisonment leads the Tribunal to question the Applicant’s capacity to be of good behaviour going forward and in the view of the Tribunal leads to heightened future risk. Once again this is amplified by the fact that the Applicant has never addressed his drug addictions in a comprehensive way in the past and has been willing to resort to criminality when he has experienced financial constraint and life’s pressures.

25. The assessment of risk requires a decision-maker to evaluate not only the potential consequences of further offending, but also the likelihood that such consequences will manifest.

26. The Tribunal is also concerned by the fact that there are insufficient protective factors in place to ensure that the Applicant will not engage in future offending. The Applicant has no firm plans with respect to accommodation in Brisbane (other than the names of some boarding houses) or in regard to his employment. The Tribunal also notes that the Applicant’s plans to return to Brisbane, are tenuous, as it is a city that he has not lived in for many years. These concerns are compounded by the fact that the Applicant is estranged from his sister Debbie (who lives in Brisbane), and by the fact that he appears to only have one close friend in the Australian community, Ms Crighton, who has offered support, however, she lives in Palm Cove in North Queensland, some 1700 kilometres north of Brisbane.

27. The Tribunal finds that if the plans that the Applicant has for his post detention release into the community are unable to be implemented and he is unable to find employment or housing, there is a real risk of the Applicant lapsing back into drug use and criminality to meet his needs based on his history to date.

28. The Tribunal has considered the likelihood of the Applicant engaging in further criminal conduct or other serious conduct and has had regard to the information and evidence of the risk of the Applicant re-offending and the evidence of rehabilitation achieved to date.

29. As discussed the evidence indicates that when the Applicant has lost employment or engaged with the wrong crowd that he has lapsed back into criminal offending and the evidence indicates that this has happened on more than one occasion. He has not been dissuaded from re-engaging in criminality by prior terms of imprisonment.

30. The Applicant has not engaged in any drug rehabilitation programs or counselling for his long-standing drug addiction whilst he was living in the community.  

31. The Tribunal finds that the plans that the Applicant has for his post detention release into the community are tenuous. If they are unable to be implemented and the Applicant is unable to find employment or housing, there is a real risk of the Applicant lapsing back into drug use and criminality to meet his needs based on his criminal history to date.

32. The Tribunal finds that in circumstances where the crimes that the Applicant may commit in the future could cause physical, financial and psychological harm to the Australian community that overall, this consideration weighs very heavily against the revocation of the cancellation of the Applicant’s visa.

    Conclusion: Primary Consideration 1

33. Primary Consideration 1 weighs very heavily against a decision to revoke the cancellation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

34. There is no evidence before the Tribunal which indicates that the Applicant has engaged in family violence and hence this consideration is afforded neutral weight by the Tribunal.

    Conclusion: Primary Consideration 2

35. Primary Consideration 2 is not relevant and accordingly is given neutral weight.

    PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

36. Having regard to this primary consideration Direction 110 states the following:

    (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

37. The Tribunal must (8.3(1)) consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

38. Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.

39. The evidence before the Tribunal indicates that the Applicant’s mother and father are both deceased. The Applicant as discussed has only one sister Debbie, who is resident in Australia. The evidence indicates that the Applicant and Debbie are estranged and as has been noted Debbie did not provide the Applicant with a statement of support or indeed agree to provide oral testimony to the Tribunal on her brother’s behalf at hearing. The Tribunal finds that the removal of the Applicant from Australia will be impactful on Debbie and on the Applicant, despite the nature of their current relationship, as he is Debbie’s only biological sibling. The Applicant has an aunt and cousins in Australia with whom he is not in contact with.

40. The only person who has provided a statement of support for the Applicant in these proceedings is a friend Ms Alexandra Crighton. This suggests that during the time that the Applicant has been in Australia that he had not forged many close relationships, and one would expect that had he done so those persons would be providing statements of support giving the Applicant is facing permanent removal from Australia. The evidence is such that the Applicant has not demonstrated that he has close ties to Australian citizens, permanent residents or those with a right to permanently reside in Australia.

41. The Tribunal finds that weight should be given to the fact that the Applicant has worked extensively in the hospitality industry whilst in Australia, and accepts that he held a variety of positions, some of which involved the mentoring and training of junior employees. In the view of the Tribunal this is suggestive of a contribution to the Australian community by the Applicant through his employment.

42. The evidence indicates that any positive contribution made by the Applicant to the Australian community through his employment is outweighed by his offending history, and the nature of this offending, which has no doubt impacted the lives of many Australians. His terms of imprisonment have removed the Applicant from the community and inhibited his ability to make a positive contribution during these periods.

43. The Tribunal has also had regard to the fact that the Applicant has resided in Australia for the past 30 years. The evidence indicates that despite the length of time the Applicant has resided in Australia, his ties to Australia appear to be tenuous. The evidence indicates that during the period of residence the Applicant has lived in Victoria, Western Australia, New South Wales and for a significant period in Far North Queensland. During the time he has resided in Australia the Applicant has worked across a variety of jobs in the hospitality sector across those States. Based on the evidence before the Tribunal, apart from Ms Crighton, the Applicant has does not appear to have established a circle of close friends and associates in the Australian community. 

44. When all of these factors are taken into account this consideration is given moderate weight in favour of revoking the cancellation of the Applicant’s visa.

    Conclusion: Primary Consideration 3

45. Primary Consideration 3 is given moderate weight in favour of revocation.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

46. The evidence indicates that the Applicant has never had children, and that this consideration is not relevant, and the Tribunal accordingly gives this consideration neutral weight.

    Conclusion: Primary Consideration 4

47. Primary Consideration 4 should be given neutral weight.

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

48. The Tribunal notes that Primary Consideration 5 of Direction 110 states the following.

    (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.

    (2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.

    a) acts of family violence; or

    b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    f) worker exploitation.

    (3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community

    (4) 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.

1. The Applicant submits that it is his belief that the Australian community should give him one last chance. He states that he has taken proactive steps to address his problems that led to his imprisonment. The Applicant notes that he had lived in Australia for 31 years and that he had only returned to New Zealand on one occasion to attend his sister Debbie’s wedding.

2. The Respondent contends that the Applicant does not meet the Australian communities expectations that he would obey the laws of this country and that community expectation would be that his visa should remain cancelled.

3. The Respondent contends that this consideration weighs heavily in favour of non-revocation. The Minister’s position is that the Applicant through his offending history has put members of the Australian community at risk.

4. The Direction makes it clear, that the Australian community expects non-citizens to obey Australian laws while they are in Australia. When a non-citizen engages in serious conduct in breach of this expectation then the Australian community expects the government not to allow such a non-citizen to remain in Australia.

5. For the following reasons the Tribunal finds that this consideration weighs heavily against revoking the cancellation of the Applicant’s visa. The Applicant’s offending history in Australia commenced in May 2005 and continued through to 2021, during which time the Applicant repeatedly breached Australian criminal law. The offending involved trafficking in dangerous drugs and drug production as well as offending with respect to personal drug use. This was not confined to one occasion but to a number of occasions resulting in three full time custodial sentences being imposed indicative of the serious nature of the offending, given that imprisonment is at the top of the sentencing hierarchy.

6. The Australian community expects that the Australian government should cancel a person’s visa if serious character concerns are raised through the commission of serious crimes. Indeed, the expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.

7. Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community, particularly given the community’s intolerance of trafficking in dangerous drugs weighs very heavily against the revocation of the cancellation of the Applicant’s visa.

   Conclusion: Primary Consideration 5

8. Primary Consideration 5 weighs very heavily against a decision to revoke the cancellation.

   OTHER CONSIDERATIONS

9. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.

   9.1 Legal consequences of the decision

10. Pursuant to Direction 110 at 9.1 the Tribunal needs to take account the fact that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as is reasonably practicable in the circumstances specified in that section of the Act. Accordingly, if the Tribunal does not revoke the cancellation of the Applicant’s visa, he will be held in immigration detention until such time as he can be removed from Australia.

11. Other legal consequences of the decision include a prohibition on applying for other visas, except for a Protection visa or a Bridging R visa under s 501E, and a permanent exclusion from Australia for visas subject to Special Return Criteria 5001(c).

12. The Applicant in this case does not contend that non-refoulement obligations are relevant or arise with respect to him.

13. None of these consequences would be desirable from the Applicant’s perspective and hence this consideration weighs in favour of revoking the visa cancellation.

    9.2 Extent of Impediments if Removed

14. Having regard to consideration 9.2, the extent of impediments if removed from Australia the Applicant contends that he has no close relatives in New Zealand and that he has not maintained any contact with persons in New Zealand since he has been resident in Australia.  The Applicant also claims he would experience difficulty finding work in the hospitality sector in New Zealand based on the fact that most of is experience in the sector was obtained in Australia. The Tribunal does not accept this evidence. The Applicant has provided evidence of his extensive experience in the hospitality sector in New Zealand prior to his arrival in Australia. This no doubt assisted him in obtaining work in the sector in Australia. The Tribunal finds that the Applicant’s work history in Australia in the hospitality sector will no doubt assist him in finding work upon return to New Zealand.

15. The Applicant as a New Zealand citizen would be subject to universal health cover available in that country and to the social security system also available to citizens.

16. The Tribunal finds that this consideration should be given moderate weight in favour of revocation.

    9.3 Impact on Australian Business Interests

17. With respect to ‘other’ consideration 9.3, namely the impact on Australian business interests both the Applicant and the Respondent concede that this consideration does not apply, and that the Tribunal should afford neutral weight to this consideration.

    CONCLUSION

18. Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.

19. Having close regard to the principles in paragraph 5.2 of Direction 110, the Tribunal has taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. The Tribunal has duly considered the matters raised by the Applicant in this review.

20. The Tribunal finds that the following considerations weigh very heavily against a decision to revoke the cancellation:

    (a) Primary Consideration 1, Protection of the Australian community from criminal or other serious conduct;

    (b) Primary Consideration 5, The expectations of the Australian community.

21. Primary Consideration 2 is not relevant and hence given neutral weight.

22. Primary Consideration 3 is given moderate weight in favour of revocation.

23. Primary Consideration 4 is not relevant and hence given neutral weight.

24. To the extent that they are relevant, the Other Considerations are given moderate weight in favour of revocation.

25. Consequently, the Tribunal is not satisfied that there is another reason to revoke the visa cancellation.

    DECISION

26. The decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.