YPTN and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2080
•14 October 2025
YPTN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2080 (14 October 2025)
Applicant/s: YPTN
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4425
Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:14 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), to set aside the decision under review made by a delegate of the Respondent on 28 July 2025 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
...............................[SGD]..............................
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct - family violence committed by the non-citizen - the strength, nature and duration of ties to Australia – best interests of minor children in Australia - expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – impact on Australian business interests - decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 666
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7
QXNS v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1369Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Statement of Reasons
INTRODUCTION
The Applicant’s Class BB Subclass 155 Five Year Resident Return Visa[1] was mandatorily cancelled[2] on 25 June 2024. Just over a year later, on 28 July 2025, a delegate of the Respondent refused to revoke that decision.[3] There followed an Application to this Tribunal seeking merits review of that second decision comprising the “decision under review” for present purposes. Shortly after receipt of the instant application, the Tribunal made usual and necessary procedural Directions governing the progress of this matter up to and including the hearing which proceeded before me on an in-person basis on 8 and 9 October 2025.
[1] Hereinafter referred to as “the visa”.
[2] Pursuant to s 501(3A) of the Migration Act 1958 (Cth), hereinafter referred to as “the Act”.
[3] Pursuant to s 501CA(4) of the Act, hereinafter referred to as “the decision under review”.
THE TWO ISSUES BEFORE THE TRIBUNAL
There are two issues before the Tribunal. The first is whether the Applicant passes the character test. There is no contest between the parties that does not do so. In April 2024 at a District Court of an Australian mainland state, the Applicant received a head sentence of two years for two counts respectively convicted as “choking suffocation strangulation domestic relationship”[4] and “assaults occasioning bodily harm – domestic violence offence.”[5]The Applicant does not pass the character test as a matter of law.[6] He has received a sentence of imprisonment of 12 months or more[7] and thus has a “substantial criminal record”[8] which, in turn, compels this Tribunal to find he does not pass the character test.
[4] Pursuant to specific sections of a Criminal Code of an Australian mainland state.
[5] Pursuant to specific sections of a Criminal Code of an Australian mainland state.
[6] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[7] Section 501(7)(c) of the Act.
[8] Section 501(6)(a) of the Act.
The second issue is whether there is another reason why the decision under review should be revoked. In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[9] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[10] has application. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction are 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 noncitizen 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 noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
[9] Pursuant to section 501C(4) of the Act.
[10] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as “the Direction.”
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
1.protection of the Australian community from criminal or other serious conduct;
2.whether the conduct engaged in constituted family violence;
3.the strength, nature and duration of ties to Australia;
4.the best interests of minor children in Australia; and
5.expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The Nature and Seriousness of the Applicant’s conduct
The Applicant’s conduct spawning his two abovementioned convictions involved the commission of crimes of a violent nature against a woman[11] as well as being acts of domestic violence for which a sentence was imposed.[12] The Direction mandates that such conduct is viewed very seriously by the Australian Government and its constituent community. There is little or nothing to cavil with the proposition and finding – consistent with what is mandated in the Direction – that this Applicant’s offending should be labelled with that very serious descriptor. The Applicant readily conceded as much during the instant hearing.
[11] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[12] Paragraph 8.1.1(1)(a)(iii) of the Direction.
With reference to the sentences imposed on the Applicant as a guide for assessing the nature and seriousness of his conduct, paragraphs 8.1.1(1)(c) of the Direction initially precludes sentences for both violent offending against a woman[13] and offending involving family violence[14] from being taken into account. However, this paragraph 8.1.1(1)(c) does not preclude sentences imposed for “violent and/or sexual crimes.”[15] I do not think the Direction’s authors intended for paragraph 8.1.1(1)(c) to not apply in circumstances where a non-citizen has committed (and received sentences for) crimes of violence against a woman and/or family violence.
[13] Paragraph 8.1.1(1)(a)(ii)
[14] Paragraph 8.1.1(1)(a)(iii).
[15] Paragraph 8.1.1(1)(a)(i).
In the Direction, these two categories of offending appearing in paragraph 8.1.1(1)(a) carry qualifying words such that (1) crimes of a violent nature against women can be taken into account for the exercise compelled by paragraph 8.1.1(1)(a) “regardless of the sentence imposed” and (2) acts of family violence can be taken into account for the exercise compelled by paragraph 8.1.1(1)(a) “regardless of whether there is a conviction for an offence or a sentence imposed.” Whereas the third category of offending referred to paragraph 8.1.1(1)(a) is expressed as “violent and/or sexual crimes” simpliciter with no qualifying words.
I will therefore treat paragraph 8.1.1(1)(a)’s reference to “violent and/or sexual crimes” as a “catch-all” which facilitates the taking into account of a sentence(s) imposed for a crime(s) of violence which undoubtedly was a feature of the Applicant’s conduct sentenced in April 2024. On this basis, I will take into account the sentence imposed on the Applicant in April 2024 comprising a head custodial term of two years’ imprisonment to be suspended for an operative period of two years after serving 12 months in actual custody. Custodial terms are viewed as a reflection of the objective seriousness of the offending being punished and are otherwise the last resort of a judicial sentencing officer.[16]
[16] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
The Applicant received this not-insignificant sentence as a first-time offender with no prior criminal history. Paragraph 8.1.1(1)(c) of the Direction thus militates in favour of a finding that his offending should now be assessed as being very serious.
The Applicant’s offending has clearly impacted its victim. This much is clear from her victim impact statement appearing in the material.[17] That statement speaks for itself and there is no requirement to quote in graphic detail the very serious physical and psychological injuries she suffered consequent upon the Applicant’s conduct. This victim impact statement was made available to the Applicant in the course of preparing for the instant hearing and I am satisfied procedural fairness was afforded to him. Be that as it may, the documented and undeniable impacts experienced by the victim as a result of the Applicant’s conduct do now speak to the very serious nature of his offending.[18]
[17] Hearing Book, p 377. Hereinafter “Hearing Book” will be referred toas “HB”.
[18] Pursuant to paragraph 8.1.1(1)(d) of the Direction.
The Applicant has only two recorded convictions that were dealt with at the one sentencing episode in April 2024. He is not a frequent offender and given the singularity of his offending history, nor can it said or found that his conduct betrays any trend of increasing seriousness.[19] This singularity also means there is no discernible cumulative effect(s) of any repeated offending.[20] Having regard to the three relevant paragraphs of paragraph 8.1.1(1) of the Direction[21] which are relevant to this Applicant’s conduct, I will find that the totality of his unlawful conduct in Australia has been very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[19] Pursuant to paragraph 8.1.1(1)(e) of the Direction.
[20] Pursuant to paragraph 8.1.1(1)(f) of the Direction.
[21] That is, paragraphs 8.1.1(1)(a); (c) and (d) of the Direction.
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence …..; and
(c) 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.
Sub-paragraph 8.1.2(2)(a): the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In the present matter, it is not necessary to look beyond the abovementioned victim impact statement to comprehend the nature of the harm that would be occasioned on a victim were the Applicant to recommit conduct of the type sentenced in April 2024. In addition to the very serious physical and psychological harm she suffered, she also claims to have experienced a financial impact which she expressed in these terms:
‘FINANCIAL IMPACT:
After the assault on the [actual date redacted; November 2020], I initially had to take time off from work as I was battered & bruised and not in a sound state of mind to be able to function or think clearly.
I have had countless appointments with my GP, Psychologist, 2 x ENT Surgeons, Medical Imaging appts, Osteopath, Chiropractor, Massage therapy.
I have also had to take time off to attend one of the Court dates.
I used up all my leave entitlements very quickly initially, which meant I have had to work without time off for an extended period, before 1 had the ability to take any more time off for a real holiday or have time off to spend with my boys.
Victims Assist has approved for the upcoming Septorhinoplasty operation costs, however I have still incurred out of pocket expenses for ongoing medical appointments.’[22]
[22] HB, p 379.
I will therefore find that the nature of the harm to individuals and/or the Australian community resulting from further unlawful conduct[23] by this Applicant would range from physical, psychological and potentially catastrophic harm as well as causing a victim demonstrable financial or material harm.
Sub-paragraph 8.2.2(b): the likelihood of the non-citizen engaging in further criminal or other serious conduct
The absence of clinical opinion.
[23] That is, the type of conduct sentenced in April 2024.
Most usually in cases such as this, a self-represented and under-resourced Applicant is not in a position to commission independent, contemporaneous[24] clinical opinion identifying (1) predispositive factors behind the subject offending; (2) the clinician’s opinion about necessary rehabilitative engagement to place those factors under remedial management and control; and (3) the clinician’s views about an Applicant’s future recidivist if now returned to the community. And also most usually in these types of cases, the absence of such contemporaneous clinical opinion makes any assessment of a person’s recidivist risk exponentially more difficult and uncertain.
[24] That is, contemporaneous with the hearing before the Tribunal.
The absence of such clinical opinion in the present case is not a hindrance to accurately assessing the Applicant’s recidivist risk. This is so for two reasons. First, having observed the Applicant’s demeanour across the two days of this hearing has convinced me of his intelligence, perspicacity, resilience and capacity to properly organise his thoughts and present them in a logical and erudite way. Given these qualities, the Applicant’s evidence around his recidivist risk was both compelling and well presented. While this does not displace the evidentiary reality of there being little clinical opinion about recidivism, the Applicant’s evidence is of such quality as to attract a satisfactory degree of reliance for the present assessment of the risk he represents.
Second, it is possible to seriously ask the question about whether the Applicant needs any such ongoing clinical rehabilitation at all. The learned sentencing Judge who dealt with him in April 2024 did not think so. In the sentencing remarks His Honour noted:
“Secondly, providing conditions in the Court’s orders that will permit you to be rehabilitated. I must say, on my appreciation of all the circumstances, that is not a terribly important purpose for you because there is no real suggestion that you need any further degree of substantial degree of rehabilitation. As I have already said, you have never committed a criminal offence either before or in the three and a half years since this happened.”[25]
[My emphasis and underlining].
[25] HB, p 105, lines 30-35.
I respectfully agree with the above-quoted observation of the learned sentencing Judge. Since His Honour made those findings, the Applicant has spent time in actual prison custody and, upon expiration of that period, was then taken into immigration detention. As will be seen, His Honour’s prediction has been validated when regard is had to the Applicant’s exemplary conduct in both criminal custody and immigration detention. The phrase “model prisoner (or detainee)” is not something that should be bandied about carelessly. But this Applicant has been of such exemplary behaviour in both institutions and, even more impressively, has put himself at the service of those administering these institutions as a conduit through which fellow prisoners and detainees can ventilate their own concerns and difficulties. I am readily satisfied that any absence of contemporaneous clinical opinion does not impede this Tribunal’s capacity to make reliable findings about the Applicant’s recidivist risk upon a return to the community.
The Respondent’s position
In its SFIC,[26] the Respondent - and to my mind, with respect, correctly – makes certain concessions. The Respondent acknowledges the Applicant has expressed “some remorse”[27] but counterpoints that concession with a submission “….that the Applicant has demonstrated limited accountability, in circumstances where he appears to contest the circumstances of his offending for which he was convicted,…”[28] The response to this submission is that the Applicant has been representing himself throughout this process relating to his visa and was not aware of authorities such as HZCP[29] which, for all intents and purposes, preclude this Tribunal from going behind the factual circumstances of the conduct relied upon by the sentencing Court in April 2024. At the instant hearing, when I made this preclusion known to the Applicant he abandoned any challenge to the factual circumstances of his offending on which he was sentenced.
[26] Denoting “statement of facts, issues and contentions.”
[27] HB, p 13, [36].
[28] HB, p 13, [36].
[29] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Respondent acknowledges the Applicant has provided strong and convincing letters of support from his family members and that “…he has been a model prisoner inmate during his time in custody and detention and has held positions of “high responsibility” including Head Cook, Café Assistant and Unit Gardener,…”[30]The Respondent rejects the singularity of the Applicant’s offending conduct and instead says “…the fact that the Applicant’s family violence offending occurred during the course of one night does not detract from the very serious nature of the Applicant’s offending and the significant physical and psychological impacts the victim.”[31] While that may be true in respect of the harm occasioned by the Applicant’s conduct, the Respondent says nothing about the relevance of the singularity of the Applicant’s offending on his recidivist risk. In my view, this singularity most certainly speaks in favourable terms to his recidivist risk. He had never committed such conduct prior to the conduct grounding the index offence and has not done it since.
[30] HB, p 13, [37].
[31] HB, p 13-14, [37].
A contention is put (by the Respondent) about there being very limited evidence about the Applicant having “…engaged with any further rehabilitation courses or programs addressing family violence offending or the underlying factors which led to his offending.”[32] It is a contention safely displaced by the learned sentencing Judge’s findings (1) that the Applicant “…really led a blameless existence before this offending”[33]; (2) that it was not terribly important that the Applicant required any further substantial rehabilitation; and (3) that the Applicant had “…never committed a criminal offence either before and after this offending.”[34]
[32] HB, p 14, [38].
[33] HB, p 14, [38].
[34] HB, p 14, [38].
The Respondent submits that “…insufficient time has passed since the Applicant’s offending in November 2020 to establish that the Applicant will refrain from further offending, noting that the Applicant has spent time in custody and in immigration detention during that time, and remains subject to the conditions of the Domestic Violence Order [“DVO”] which is to continue until December 2025.”[35] I think this contention can be challenged on several grounds. There were three and a half years between the commission of the conduct and the sentencing during which the Applicant did not re-offend. He was on bail for that period and never breached it. This is surely not an “insufficient” period of time for the Applicant to satisfactorily prove his recidivist bona fides. He has also satisfactorily done so for the year and a half he has spent removed from the community in either prison or immigration detention. So for the cumulative and not “insufficient” period of five years since the index offending, the Applicant has not re-offended nor been the subject of any reportable incident in either prison or immigration detention.
[35] HB, p 18, [51].
Further, his release into the community while still subject to the terms of a DVO is something that speaks positively to his recidivist risk, not negatively. Those terms compel him to do and refrain from doing certain things that are directly referable to the conduct spawning the index offending. He has never breached that order. As well, there does not seem to be any evidence of the victim applying to extend the DVO beyond its current end date of December this year.
The Respondent’s SFIC concludes with two risk assessments. After suggesting the Applicant has not participated in rehabilitation courses dealing with family violence offending as a means of addressing propounded “…underlying causes which led to his offending…”[36] the Respondent says the Applicant’s recidivist risk should be assessed as “…a significant risk.”[37]A couple of paragraphs in the SFIC later, the submission becomes one of there being “…an unacceptable risk that the Applicant may reoffend in the future.”[38]
[36] HB, p 18, [50].
[37] HB, p 18, [50].
[38] HB, p 18, [52].
To be fair to the Respondent’s representative, it should be noted that documents such as SFIC’s are drafted on the basis of written material available to the author at the time of drafting which, of course, is before the substantive hearing. They are not written with the benefit of hearing the Applicant’s oral evidence and observing his demeanour at the hearing. After having had that opportunity, the Respondent’s representative readily and, in my respectful view, correctly conceded during closing submissions that the Applicant represented a low recidivist risk, but that even such a level of risk is unacceptable. The Respondent says this is because the harm that would ensue from recommission of the Applicant’s family violence offending is so serious that [to quote the Direction]: “…any risk that it may be repeated may be unacceptable.” [39]
The Applicant’s position: insight
[39] Paragraph 8.1.2(1) of the Direction.
It can be said without equivocation that this Applicant presented as a credible, forthright and intelligent witness. There can be no doubt he is aware (or has become aware) of why the criminal law of this country regards his past conduct as so very serious and intolerable. The Applicant is 51 years of age. Has not lead an itinerant life drifting from one bout of addiction to the next or moving from one place to another with no fixed abode. He acquired his residential home about 20 years ago and still owns it. That is the property to which he will return if successful in these proceedings. He is – or has been caused to become - the mainstay of the family around him. He completed schooling to year 12 and has always worked in remunerative employment to provide for himself and those reliant on him.
His resilience does, I think, derive from his intelligence and broadly-based intellectual curiosity. He is interested to learn about things most people are not concerned about. He is motivated to improve both his own life and the lives of those around him. His previous partner (not the victim of his offending) had chronic substance abuse problems and passed away in 2021. They had a son together, but such were her difficulties with illicit drugs that the Applicant was compelled to raise their son as a single parent since that son was five years of age. When the Applicant’s father passed away over 20 years ago, it was the Applicant who took his mother in to live with him and his son. She continues to reside in the Applicant’s home.
When the Applicant’s now 16 year old niece was experiencing significant mental health issues but felt her relationship with her own father (who resides 600 kilometres away from her and who sees her about once a fortnight) was too poor for her to discuss her issues with him, it was the Applicant who stepped up and played (and continues to play) the fatherly guiding role in that niece’s life. He is “the” reference point for all of the family members around him
In terms of being motivated to improve the lives of others around him beyond just family members, it is notable that while in both prison and immigration detention, the Applicant has created and implemented self-help programs for fellow prisoners and detainees. He says:
‘The events of that night have had a profound and lasting impact on my mental
wellbeing. In the time since, I have undertaken extensive personal study into the nature of human emotions, behavioural triggers, and the connection between mental health and physiological factors, including the effects of gut dysbiosis on cognitive function and emotional regulation. This research has been part of a broader eƯort to gain a deeper understanding of the underlying factors that may contribute to conflict and emotional dysregulation.My purpose in pursuing this knowledge has been to identify and understand the warning signs—both internal and external—that may lead to high-risk or emotionally charged situations. This self-reflective work has been vital in ensuring that I never again find myself in a position where such circumstances could arise. It has also contributed significantly to my ongoing rehabilitation, personal growth, and commitment to leading a mindful and peaceful life moving forward.
Looking ahead, my intention is to continue rebuilding my life in a meaningful way, with the ongoing support of my family. I am committed to living a life grounded in
accountability, purpose, and personal growth. It is also my sincere hope that I cancontribute positively to the broader community by sharing the insights I have gained through my own journey. To this end, I have been delivering newsletters and free life coaching workshops focused on themes such as presence, purpose, and mindfulness, with the aim of supporting others who may be facing adversity or seeking personal transformation.’[40][40] HB, p 139.
The material contains about 120 pages of examples of the above-quoted newsletters and coaching workshops both devised and run by the Applicant to improve the lives of fellow prisoners and detainees.[41] The material also contains reference to a recent proposal from the Applicant to the governing authorities of the detention centre in which he now finds himself. The proposal carries the title “Detainee-Led Garden Project at [location redacted] Immigration Transit Centre”. The objectives of this proposal are stated as:
‘Objectives
- Improve the mental and physical health of detainees through outdoor, hands-on activity.
- Provide detainees with an ongoing sense of purpose and daily structure.
- Foster pride and ownership of shared spaces, leading to greater care and respect for the
facility.
- Create a calm, beautiful, and nurturing environment within the centre.- Strengthen community bonds and positive attitudes among detainees through cooperative and creative efforts.’[42][41] HB, pp 715-823.
[42] HB, p 700.
The intended outcome of this Detainee-Led Garden Project is put in these terms:
‘Conclusion
The Detainee-Led Garden Project is a practical, low-cost initiative with high-impact benefits for both the individual and the broader detention environment. It will encourage a healthier mindset, cultivate community spirit, and lead to a more pleasant and respectful living space. By investing in this project, the centre not only enhances the daily lives of its residents but models the importance of purpose, care, and dignity for all who live and work within its walls.Prepared by
[The Applicant] (Detainee in D5)22/06/2025’[43][43] HB, p 702.
As mentioned, this desire to improve the welfare of others is a principle the Applicant has applied to himself. He seems to have reached a level of profound insight into what he has done, how it has impacted the victim and how seriously his conduct has impacted his own life, in particular, his ongoing capacity to hold a visa to remain here. In his SFIC, he says: “I wish to express in the strongest way possible that I completely appreciate and understand the seriousness of the crime I was accused and convicted of, and in no way do I condone or belittle the seriousness of such crimes.”[44]He does not intend for any of his written submissions to “…be interpreted as an attempt to diminish, downplay, or absolve myself of responsibility for my actions.[45]
[44] HB, p 37, [42].
[45] HB, p 37, [43].
He fully acknowledges that ‘…my actions and choices contributed to the physical and emotional harm the victim has experienced. I cannot stress this point enough.’[46] He is of the belief that ‘…the character I have demonstrated throughout my life shows that I hold the safety and well being of others in the highest regard. I do not, and could never, take lightly the seriousness of these crimes or the injuries that were suffered. I recognise them as deeply serious matters.’[47] This recognition can be seen in the Applicant’s payment of $700 in compensation to the victim in the period following the offending.[48]
[46] HB, p 37, [43].
[47] HB, p 37, [44].
[48] HB, p 106.
The Applicant’s intellectual curiosity has caused him to conduct research into the subject of domestic violence. He notes: ‘My research into domestic violence has helped me understand what I have experienced and also what the victim was going through. This research has also helped me to identify key indicators and red flags which are precursors to physical violence.’[49]
The Applicant’s position: rehabilitation and remorse
[49] HB, p 41, [77].
The Applicant acknowledges he has not completed an actual rehabilitative course on domestically violent conduct. He squarely addresses this issue in his written statement. Those reasons – at least the reasons relevant for present purposes – are as follows: (1) he has never been dealt with for any family violence offending at any time prior to the subject incident; (2) his general disposition is one of a caring, supportive and nurturing person who has always promote the best interests of those around him; and (3) as I have quoted earlier from the sentencing remarks, the learned sentencing Judge said that on His Honour’s ‘…appreciation of all the circumstances, that it is not a terribly important purpose for you that you need any further substantial degree of rehabilitation…you have never committed a criminal offence either before and after this offending.’[50]
[50] HB, p 39, [62].
The Applicant now understands that ‘Instead of believing that the victim and I could fix it ourselves, I should have sought professional counselling for us. I know that if I had been more attentive to the victim’s cry for help, I would have listened better and communicated in a more open manner rather than being closed off to any discussions around us living together.’[51] As mentioned earlier, the Applicant has, in quite detailed terms, researched the topic of domestic violence. During the 12 months of this research, he has compiled a library of material from the world’s top spiritual teachers. He listens to the podcasts of these people everyday. The net result of this research can be gleaned from the following paragraphs of the Applicant’s statement which are worth quoting in full:
[51] HB, p 40, [65].
‘I have spent a lot of time researching the triggers and warning signs of domestic violence and ways to avoid situations that may escalate into violence.
Some of the signs of abusive behaviour in domestic relationships I have
researched include:
• telling you that you never do anything right;
• showing extreme jealousy of your friends or time spent away from them;
• preventing or discouraging you from spending time with others, particularly friends, family members, or peers;
• insulting, demeaning, or shaming you, especially in front of other people;
• preventing you from making your own decisions, including about working or attending school;
• controlling finances in the household without discussion, such as taking your money or refusing to provide money for necessary expenses;
• pressuring you to have sex or perform sexual acts you’re not comfortable with;
• pressuring you to use drugs or alcohol;• intimidating you through threatening looks or actions;
• insulting your parenting or threatening to harm or take away your children or pets;
• intimidating you with weapons like guns, knives, bats, or mace;• destroying your belongings or your home.
Apart from the comments made in the victim’s impact statement, there is no other evidence to suggest that I have ever displayed the attributes described above.’[52]
[Internal references omitted].
The Applicant’s position: protective factors
[52] HB, pp 40-41, [69]-[71].
I have identified the following protective factors referred to in the Applicant’s written material and which he also canvased during his oral evidence: (1) he remains committed to a pattern of remorse which is expressed through action; (2) he has immediate employment available to him by becoming involved as the primary administrative gatekeeper for his son’s building and construction business; (3) he is committed to a continuation of the development of his free life-coaching website and newsletter (to which I referred earlier); and (4) upon a return to the community he has a firm determination to make meaningful contributions to it for the remainder of his life.
The Applicant’s position on recidivist risk distils into the following submission: ‘The way I have lived my life, the accountability I accept, and the remorse I carry all demonstrate that I am not a risk to the Australian community.’[53] As will be seen later in these Reasons, I will reach the same conclusion.
Findings about risk.
[53] HB, p 42, [86].
It seems clear from the material that the Applicant is seriously committed to the betterment of others. If he is committed to improving and rehabilitating others, it is more likely than not that he can do the same thing for himself. I am of the view that he already has done so. True it may be that he does not now produce independent clinical opinion about recidivist risk. But as the learned sentencing Judge effectively said, he does not need to do so. This is so because the Applicant, via his own intellectual means, has researched, understood and implemented specific strategies aimed at there never being a repeat of the conduct given rise to the index offending.
He had lead a blameless and exemplary life before the fateful events giving rise to his two convictions. He no doubt was involved in other personal relationships in the past and none of them gave rise to any of the conduct for which he was convicted. Indeed, the Applicant faced far greater than usual challenges in his relationship with the mother of his son. She was a chronic user of illicit drugs which effectively claimed her life in 2021. Her difficulties with illicit drugs were so severe for such a long time that the Applicant was compelled to solely parent his son from the very young age of five years right up into the son’s adulthood. Despite his past wife’s difficulties with drugs and the no doubt severe disorientation that would have caused her moral and behavioural compass, the Applicant never transgressed into any abusive conduct towards her or any other partner he may have had.
Of course, people in relationships frequently quarrel and always will. It emerged in the evidence that the victim of the Applicant’s conduct was pressing him for a marital or other permanent commitment and it was this non-committal attitude of the Applicant that was the primary source of tension between them. She is entitled to ask for a more permanent commitment given the length of their then relationship. Conversely, the Applicant is entitled to refuse to so commit. What he was not entitled to do was to allow that primary source of tension to toxify to the point where it became a trigger for his conduct.
I am satisfied the Applicant has well and truly learned and comprehended how such relationship triggers initially emerge and eventually toxify to the point where they result in the conduct for which he was convicted and for which he went to prison and is now at risk of being deported. It is surely to give rise to an imbalanced outcome if a person such as this Applicant who has a singularity of offending after initially coming here as a three year old and residing here for 48 continuous years is denied a visa to remain here with his family who adore him and the broader community which very deeply respects him.
Such is the quality of the Applicant’s superbly presented submissions and other material that it can only lead to a finding that he represents nothing more than a low risk of committing a similar offence in the future. I want to qualify that finding by saying that his risk is on the lower side of low – if I may be permitted to use that phrase. He is of no greater risk to the Australian community than the average ‘Joe Citizen’ who could sit next to any of us on the train on the way home from work this evening.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
CONCLUSION OF PRIMARY CONSIDERATION 1:
With reference to the weight attributable to this Primary Consideration 1:
a) I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
b) I have found that the nature of the harm to individuals and/or the Australian community resulting from further unlawful conduct[54] by this Applicant would range from physical, psychological and potentially catastrophic harm as well as causing a victim demonstrable financial or material harm; and
c) in terms of risk profile, I have assessed that in terms of the here and now, the Applicant represents a low risk of reoffending and that such risk is at the low end of ‘low’. I have reached this recidivist risk finding with the Direction’s dictum that the safety of the Australian community is “...the highest priority of the Australian Government”[55] at the forefront of my mind.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a moderately heavy, but not dispositive, level of weight in favour of this Tribunal affirming the decision under review.
[54] That is, the type of conduct sentenced in April 2024.
[55] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant accepts that this Primary Consideration 2 is engaged for present purposes. He takes no backward step in this regard and in his written submissions openly concedes that ‘I acknowledge, with deep regret, that I was convicted of a single act of domestic violence. I accept responsibility for my part and the harm caused.’[56] Paragraph 8.2 of the Direction compels two additional inquiries: (1) it is necessary to ascertain who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.
[56] HB, p 43, [89].
Who are members of the Applicant’s family?
Paragraph 4(1) of the Direction defines family violence to mean “…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…or causes the family member to be fearful.” The Direction (at paragraph 4.1) defines “member of a person’s family” to include “…a person who has, or has had, an intimate personal relationship with the relevant person.” I am satisfied that the domestic partner / victim of the Applicant’s conduct for which he was sentenced in April 2024 was a member of the Applicant’s family for present purposes.
Did Any of the Applicant’s conduct constitute family violence?
As mentioned, ‘Family violence’ in the Direction is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’. This definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
It is plain from the circumstances of the subject incident that the Applicant committed his conduct in the context of a domestic relationship he conducted with the victim at that time. This conduct easily meets the threshold of ‘conduct comprising violent, threatening or other behaviour’ that caused the domestic partner / victim to be fearful. I will find that it was conduct that was ‘violent, threatening…that caused [the victim] to be fearful.’ I am satisfied that his conduct giving rise to his convictions in April 2024 does comprise domestic violence for present purposes.
Is the Applicant’s conduct captured by paragraph 8.2 of the Direction?
The Applicant’s family violence conduct was the subject of two convictions imposed on him in April 2024. The charges were proffered as domestic violence–type charges and he was sentenced on the basis of family violence committed in a relationship. Accordingly, this conduct must now be found to fall within the auspices of paragraph 8.2(2)(a) comprising conduct culminating in the Applicant having ‘…been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence.’
The resulting findings must be that (1) the Applicant’s conduct towards his domestic partner comprises family violence against that victim; and (2) this Primary Consideration is relevant to determination of the instant application. I so find.
Assessment of the seriousness of the Applicant’s family violence conduct
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. The Applicant’s family violence conduct has not been frequent. It is not possible to gauge any trend of increasing seriousness because there is no such prior conduct against which the conduct for which he was convicted in April 2024 to be compared. I will therefore put this paragraph to one side and render it neutral for present purposes.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. The Applicant has not committed repeated acts of family violence. There is a singularity to his family violence offending. I will therefore put this paragraph to one side and render it neutral for present purposes.
Paragraph 8.2(3)(c): requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This sub-paragraph compels three enquiries:
(i) first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. As noted earlier, the Applicant has convincingly accepted responsibility for his conduct. I so find;
(ii) second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. I have recounted the extent of the Applicant’s inquiries and researches into domestic violence. In addition to that, he has devised and promoted self-help courses for fellow prisoners and/or detainees. I am satisfied (and I will find) that this Applicant has well and truly comprehended the impact of his behaviour on his former partner/victim; and
(iii) third, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a non-citizen to address the factors which contributed to their family violence conduct. The Applicant concedes he has not completed specific rehabilitative courses around domestic violence. But this is a rare case where the Tribunal has before it a very well informed Applicant who, by his own intellectual rigour, has sought to understand precisely what went wrong in that singular bad moment of his former relationship and to put in place specific personal practices and protocols to prevent it happening again.
Sub-paragraph 8.2(3)(d): raises the question of whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. Two things can be said about this specific component of the Direction referrable to this Applicant. First, the conduct for which he was convicted in April 2024 was also the subject of a duly-made domestic violence order. That order will no doubt have contained the usual warnings about the consequences of breaching it. The Applicant has never breached that order, which remains in place until December of this year which means he will remain subject to it if now returned to the community. Second, the learned sentencing Judge configured the sentence such that the Applicant served 12 months in actual custody and the balance 12 months was suspended for an operative period of two years. While I accept he has been removed from the community since the time he was sentenced in April 2024, it should not be ignored that there is no indication or evidence of him doing anything that could remotely threaten the conditions around the suspended balance of his custodial term.
Having regard to the Applicant’s conduct in the realm of domestic and family violence as referenced in the remarks of the learned sentencing Judge who dealt with him in April 2024, I am of the view that none of the sub-paragraphs 8.2(3)(c) facilitate a finding about the nature of the Applicant’s family violence conduct. He has absolutely accepted responsibility for his family violence conduct; he has comprehended the impact of his domestically violent conduct on that victim; and he – via his own intellectual rigour - has made the necessary rehabilitative efforts to address whatever factors contributed to his singular episode of family violence conduct.
Conclusion: Primary Consideration 2
Taking into account my findings about the various components of paragraph 8.2(3)(a)-(d) referable to the Applicant’s domestic and family violence conduct, I am of the view (and I find) that this Primary Consideration 2 confers a moderately heavy, but not dispositive, level of weight in favour of this Tribunal affirming the decision under review.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(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.
The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The evidence around the Applicant’s ties to Australia.
In addition to the Applicant’s oral evidence, the instant Hearing also received oral evidence from the Applicant’s:
·adult son;
·mother;
·brother;
·sister in-law;
·work colleague;
·two nephews;
·de-facto partner of his son,
·a further sister in-law;
·a niece
Paragraph 8.3(1): Assessment of ties to immediate family members
There is little or nothing to cavil with a finding that, in terms of his immediate family, the Applicant is, for all intents and purposes, the fulcrum or the central hub around which the rest of his family revolves. The evidence demonstrated he has played a pivotal and crucial role in the lives of his immediate family members. When his father died, the Applicant willingly took his mother in to live with him and has cared for her for something like two decades. He was the sole and primary parental figure in the life of his son from that son’s age of five years because the Applicant’s former wife (and mother of that son) was so afflicted by illicit substance addiction that she effectively disqualified herself from any parental role in the life of that son. As mentioned earlier, she tragically took her own life in 2021.
The Applicant rallied around his adult son whose life was seriously threatened by a diagnosis of stage 1 bladder cancer which required surgery and the usual and regular additional remedial treatments. This condition may return and the Applicant’s vigilant role around the welfare of his son remains ongoing. The Applicant has two brothers, one of whom resides locally and who gave oral evidence at the instant Hearing. That brother spoke lovingly and convincingly of the crucial role the Applicant plays as the epicentre of their family. The Applicant’s other brother lives 600 kilometres from him and he has always had a poor relationship with his now-16 year old daughter, Child M. Child M (the abovementioned niece) has always lived locally to the Applicant and it was he who assumed the fatherly-parental role for Child M because she has had mental health difficulties of her own. The Applicant’s very important role in her life was verified by Child M herself, who made the effort to attend the Hearing and verify the Applicant’s role in her life.
The abovementioned de-factor partner of the Applicant’s son also spoke convincingly and lovingly of the Applicant in her oral evidence. She confirmed and verified – as perhaps an outsider to the family – just how crucial the Applicant’s role as the family patriarch has been over the years and just how disruptive his nearly two year removal from their lives has been for virtually all of them. The abovementioned two nephews, although barely into their 20’s, referred to the Applicant as an inspirational person who played the role of not just a loving uncle, but also as a surrogate father to them.
The Applicant’s mother, despite her relatively advanced years, made the effort to attend the Hearing and give oral evidence. She lost her husband over two decades ago and he and she had conducted a number of small businesses together, most notable of which was a hairdressing business. She confirmed the absolutely critical role the Applicant plays in her life from both an emotionally supportive perspective but also from a material one as well. She did not mask the devastation she would feel and experience if he were to be permanently removed from her life and returned to the United Kingdom. The evidence did not convince me that the Applicant’s two other brothers would pickup the cudgels of caring for her, both emotionally and materially. Further, the material discloses the Applicant’s mother may perhaps be at the early stages of dementia which makes the Applicant’s role in her life even more critical.
I will find that the Applicant’s ties with his immediate family members now militate very heavily in his favour for the purposes of this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(b) Assessment of ties to extended family and social links
The Applicant also has an extensive network of personal friends and social ties in this country. One of them (who gave oral evidence at the instant Hearing) was a work colleague who worked with the Applicant as medical representatives for a pharmaceutical company. This work colleague spoke of the Applicant’s unique level of loyalty and commitment to both their friendship and the work duties they shared. This work colleague described the Applicant’s commitment to his work culminated in him receiving a national award on two occasions as ‘Medical Representative of the Year.’ This witness described these awards as being of major significance in the field of work in which he and the Applicant were engaged. The remainder of the personal character references in the material also speak very favourably of the Applicant and refer to his unique quality of being interested in what those around him are doing and encouraging his friends and colleagues to do even better.
I will find that the Applicant’s ties to extended family and social contacts militate very heavily in his favour for the purposes of this Primary Consideration 3. This finding is predicated on the limiting proviso that each of these extended family and social ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(a): Additional factors to take into account
This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia, taking into account the following factors:
· whether the Applicant arrived here as a young child? [57] The Applicant arrived in Australia in April 1978 when he was three years old. He has lived here on a continuous basis with the exception of about seven months.[58] I will find that the Applicant most certainly did arrive here as a very young child. This component of paragraph 8.3(2) very strongly augments the weight allocable to his ties to this country;
· whether the Applicant began offending soon after arriving here? [59] The Applicant arrived here as a three year old in April 1978. He recorded his only criminal convictions in Australia some 46 years after his arrival. He obviously did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here; and
· the time the Applicant has spent contributing positively to the Australian community during his time here.[60] As I have mentioned earlier, the Applicant has always worked to earn his living and to support himself and those around him. He has a very impressive work history in this country which appears in the material. In addition to the roles referred to at page 125 of the Hearing Book, the Applicant also conducted a hang gliding school business in the early to mid-2000s. He will no doubt have paid more than his fare share of income tax on his remunerative earnings. At page 126 of the Hearing Book, there is a similarly substantial list of the Applicant’s community contributions. On the basis of his very impressive work and community contributions to this country across nearly three decades, I will find that this component of paragraph 8.3(2) of the Direction affords a very heavy level of weight in the Applicant’s favour towards a finding about the strength of his ties to Australia.
[57] Paragraph 8.3(2)(a) of the Direction.
[58] See the movement records at HB, pp 173-174.
[59] Paragraph 8.3(2)(a)(i) of the Direction.
[60] Paragraph 8.3(2)(a)(ii) of the Direction.
Accordingly, I am of the view (and I find) based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction that:
· sub-paragraph 8.3(2)(a): very strongly augments the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because he did arrive in Australia as a very young child of three years of age;
· sub-paragraph 8.3(2)(a)(i): does not impugn the weight allocable to the Applicant for the purposes for this Primary Consideration 3 because he did not begin offending soon after arriving in Australia; and
· sub-paragraph 8.3(2)(a)(ii): does assist the Applicant because of his very impressive employment and community contributions to Australia.
Therefore, each of the three specific sub-paragraphs comprising 8.3(2)(a) (arrived here as a young child); 8.3(2)(a)(i); (did not begin offending soon after arriving here); and 8.3(2)(a)(ii) (very impressive work and community contributions to Australia) serve to very strongly augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction, respectively, relating to his ties to immediate and extended family members in Australia and his social ties in Australia.
Conclusion: Primary Consideration 3
I have referred to the three relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a very heavy level of weight in favour of this Tribunal setting aside the decision under review.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[61] The Direction further requires that the best interests of each child must be considered individually if there is more than one minor child identified.
[61] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[62]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[62] Paragraph 8.4(4) of the Direction.
Identification of relevant minor child/ren
The parties are in agreement that the relevant minor children comprise the Applicant’s two nieces who are:
·Child M – the aforementioned 16 year old niece of the Applicant;
·Child WL – who is a 10 year old niece of the Applicant
I have earlier referred to the nature of the relationship between the Applicant and Child M. That relationship is obviously relevant for the purposes of this Primary Consideration 4. The Respondent concedes that the Applicant also has a good relationship with Child WL and that he sees her on a fortnightly to monthly basis. This is because both of these children are the children of the Applicant’s brother who resides 600 kilometres from the Applicant’s location. This brother uses the Applicant’s residence as the venue at which he spends contact time with both of his daughters who, of course, are also the Applicant’s nieces. The Applicant spoke of most probably taking on a more prominent role in the life of Child WL as she ages and enters her teens. That evidence can be accepted when one has regard to (1) the role the Applicant has played in the life of Child M; and (2) the fact that the father of these two children lives 600 kilometres away from them.
Application of factors at 8.4(4) of the Direction to the relevant children
There is an obviously strong nature and durability to the relationship between the Applicant and Child M. Most probably due to her age, his relationship with Child WL has been perhaps less prominent. There is clearly an existing relationship between him and both children and the contact he has had with them has been both meaningful and important to their well being. There is no Court order impeding the Applicant’s contact with these children. On the contrary, their father uses the Applicant’s residence as the venue for him to spend time with those children.[63]
[63] Paragraph 8.4(4)(a) of the Direction.
Although the children are parented by their mother, there is no denying the reality that their mother wants the Applicant to play a prominent a positive parental role in their futures. The Applicant has about 10 years of cumulative parenting time until both children attain the age of 18 years. Given his impressively performed role in their lives thus far, there is little or nothing to suggest he is not very likely to play a positive parental, or quasi-parental, role in the futures.[64]
[64] Paragraph 8.4(4)(b) of the Direction.
The material has little or nothing to say about any impact experienced by Child WL by the Applicant’s past offending, or any future impact she would experience if the Applicant were to reoffend. Child M told the instant Hearing of her dismay upon learning of the Applicant’s sentence and consequential imprisonment. There is no doubt she would be very adversely impacted by his permanent removal from Australia. It can be safely found Child M has been impacted by the Applicant’s past offending and will very likely be impacted were he to re-offend.[65]
[65] Paragraph 8.4(4)(c) of the Direction.
Both of these children are of the generation that will primarily use telephonic/electronic platforms as a primary means of communication. Of course, they would be able to communicate with the Applicant by non-in-person means were he now returned to the United Kingdom. But that should not be allowed to militate against the Applicant. His personal presence in their lives has been more than that of just ‘the loving uncle.’ Certainly in the life of Child M, he has played a critical role. There is much to suggest he will most likely do the same with Child WL. This type of very close monitoring and mentoring simply cannot be done via telephonic/electronic platforms.[66]
[66] Paragraph 8.4(4)(d) of the Direction.
Both children are primarily parented by their biological mother and there is no denying that on an hour by hour, day by day, week in week out basis, she is their primary caregiver. But even she concedes the Applicant is a critical component of the lives of both of these children. He might not assume a primary parental role in their lives but their mother most certainly has relied, and will continue to rely, on him for parental-type support. There mere fact that the biological mother performs the primary parental role should not be allowed to militate against the Applicant for present purposes.[67]
[67] Paragraph 8.4(4)(e) of the Direction.
The views of Child M about any permanent physical removal of the Applicant from her life were ventilated by her in her written and oral evidence to this Tribunal. There is no denying she would be very seriously impacted in that event. Aged only ten years, Child WL is most probably too young to reliably express any views in this regard. There is no doubting that she knows the Applicant as a loving uncle and an otherwise ever present figure in her life.[68] There is no evidence that either of these children have suffered or experienced any of the adverse elements referred to in paragraphs 8.4(4)(g) and (h) of the Direction.
[68] Paragraph 8.4(4)(f) of the Direction.
Allocation of weight to the best interests of the relevant minor-aged nieces
If the Applicant were to be permanently removed to the United Kingdom as a result of an adverse outcome in the instant matter, I am of the view that the factors appearing at paragraph 8.4(4) of the Direction do attract the allocation of a very heavy level of weight to their best interests. The Applicant is more than the typical ‘loving uncle’ in the lives of these children. Given the role he has played in Child M’s life so far, there is every likelihood he will do the same in the life of Child WL. In cumulative terms, this actual and very likely prominent role he has played and will play in the lives of these respective children means their best interests are of great significance in the determination of this matter.
Conclusion: Primary Consideration 4
Having regard to the cumulative weights I have allocated to (1) the best interests of the Applicant’s two minor-aged nieces, I will therefore find that this Primary Consideration 4 is of very heavy weight in favour of this Tribunal revoking the decision under review.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The normative expectation
The expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[69] The Direction explains:
‘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 [in paragraph 8.5(1) – (3) of the Direction], without independently assessing the community’s expectations in the particular case.’[70]
[69] Paragraph 8.5(3) of the Direction.
[70] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
Paragraph 8.5(1) of the Direction is expressed in these terms:
“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.”
Has the Applicant breached the normative expectation?
This Applicant has clearly breached the Australian community’s expectations by his record of very serious criminal offending in this country which is evidenced by his two convictions imposed in April 2024. Therefore, the Australian community, ‘as a norm’, expects the Australian Government not to allow this Applicant to remain in Australia.
Is the Applicant’s conduct alone sufficient to breach the normative expectation?
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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:[71]
(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.
[My emphasis].
[71] Paragraph 8.5(2) of the Direction.
The Applicant has a single sentencing episode for violent offending in a domestic/family paradigm. This conduct engages the abovementioned (and highlighted) paragraphs 8.5(2)(a) and (c). The Applicant has thus undeniably breached the criminal law of this country as I have particularised at [2] of these Reasons.
Are there any factors modifying the Australian community’s expectations?
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:
a) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));
b) the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));
c) Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6));
d) the nature of a 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 a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and
e) the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).
In relation to sub-paragraph (a) of the immediately preceding paragraph [93], the term ‘limited stay visa’ is not defined in the Act. In this case, the Applicant held a Class BB Subclass 155 Five year Resident Return visa until it was mandatorily cancelled on 25 June 2024. This visa permits a person to ‘travel’ to and ‘enter’ Australia within a specified period of time once it is granted.[72] It does not specify a period for which the visa holder can remain in Australia once it is granted. As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the visa held by the Applicant cannot be classified as a limited stay visa.[73] Therefore, the application of this sub-paragraph (a) is not relevant to this Applicant.
[72] Regulation 155.511 of the Migration Regulations 1994 (Cth).
[73] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [93], the Applicant has spent about 47 years in Australia since arriving here aged three years in April 1978. He has spent about 96 percent of his life in this country and is currently aged 51 years. He has a very impressive employment and community contribution history in Australia. He has married in this country and he and his wife have produced one biological child here. Whatever participation in, and contribution to, the Australian community he may have made during his 48 years here cannot, in any remote way, be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is certainly not lowered by this part of the principles in 5.2(5) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph of [93], I repeat that the Applicant arrived in Australia as a three year old some 48 years ago. He has spent about 96 percent life in Australia and he did come here at a very young age. This means the Australian community’s level of tolerance of criminal or other serious conduct by this Applicant is raised.
In relation to sub-paragraph (d) of the abovementioned paragraph [93], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that while the nature of the Applicant’s offending has been very serious, he has only committed a single offending episode. I accept the very serious nature of his conduct but do not consider that the resulting convictions should now constitute offending of such a significantly serious magnitude as to dispel any applicable countervailing considerations working in his favour. As mentioned, this Applicant has a multitude of countervailing considerations working in his favour.
In relation to sub-paragraph (e) of the abovementioned paragraph [93], it may be thought that the Applicant’s two convictions for the very serious offending I have referred to at [2] of these Reasons should comprise conduct of a sufficiently serious nature to now displace any strong countervailing considerations militating in favour of a positive visa outcome. I think such an outcome would be harsh. I have found that the Applicant poses a low recidivist risk for again committing this type of offending. The following countervailing considerations should be borne in mind: (1) the Applicant has experienced and expressed his significant remorse and regret for his conduct; (2) he has always worked to earn his living and will immediately return to remunerative employment if now returned to the community; (3) he has the unconditional love and respect of his immediate and extended family of which he is, without question, the patriarchal fulcrum; and (4) he has the support of a loyal and dedicated social friendship circle. These, to my mind, are strong countervailing considerations in favour of a positive visa outcome for this Applicant.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a moderately heavy, but not dispositive, level of weight in favour of this Tribunal affirming the decision under review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
The Applicant does not express any fear harm upon a return to the United Kingdom. He does not propound a position suggestive of Australia’s non-refoulement obligations being engaged. There is no indication of him making any application for a protection visa. He is not barred from doing so either by s 48A of the Act or s 501E of the Act. Given he has the capacity to make an application for a protection visa, this Tribunal can defer the assessment of whether any non-refoulement obligations are owed to him.[74]
[74] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]-[30].
Be that as it may, it is undeniable the Applicant will experience legal consequences if permanently removed to the United Kingdom. In that scenario, he would be permanently excluded from re-entering Australia. As a consequence, he would not be able to apply for any other visa to stay here except for a protection visa. But this is not a consequence that engages the terms of paragraph 9.1 of the Direction. A further consequence is that he may experience particular impediments if compelled to return to the United Kingdom which, in turn, may also adversely impact the ties he has with people in Australia. The problem for the Applicant is that neither of these two consequences are contemplated for consideration in paragraph 9.1 of the Direction. Any impediments he will face fall for consideration under paragraph 9.2 of the Direction. The impact on his ties to Australia was considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction.
There may well be legal and other consequences for the Applicant if unsuccessful in the instant proceeding. At best, these specific consequences warrant the allocation of nothing more than moderate weight in his favour.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are any substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to that non-citizen in that country.Paragraph 9.2(1)(a): the Applicant is aged 51 years and seems to be in good physical health. To the extent he may have any issues with his mental health, those issues would not be unknown in the United Kingdom and he would be able to access such publicly available healthcare for their treatment as would be available to other citizens of that country. The Applicant’s age and state of physical health are not impediments. Any impediment he may face as a result of his mental healthcare derives from whatever difference there may be in the comparative levels of health of publicly available mental healthcare between Australia and the United Kingdom. I do not think this specific impediment is insurmountable.
Paragraph 9.2(1)(b): the primary language spoken in both the United Kingdom and Australia is English. The Applicant’s first language is English. The United Kingdom and Australia share very similar cultural norms, beliefs and practices. I will find there are no substantial language or cultural barriers impeding the Applicant’s return and re-settlement in the United Kingdom.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in the United Kingdom. First, with reference to economic support, it can be noted the Applicant is both an intelligent and resourceful person who has successfully made his way in this country. True it may be that he will be starting relatively afresh in the United Kingdom but would probably be able to draw on some kind of financially material support from the sale of an asset(s) in Australia as a means of re-establishing himself in the United Kingdom. But the fact remains that he has few if any work and other contacts in that country. He would be entitled to such government support payments on an interim basis as would be available to other citizens of the United Kingdom. The relative lack of economic support is a genuine but not insurmountable impediment to the Applicant’s return and resettlement in the United Kingdom.
Second, with reference to medical support available to him in the United Kingdom, to whatever extent he might experience a recurrence of his mental health symptoms in the United Kingdom, the Applicant will – as I have mentioned above - have access to publicly available healthcare that would be available to other citizens of that country. It is not unreasonable to say (and find) that the public health system in the United Kingdom is not that far removed in nature, style and quality from that which the Applicant has come to know in Australia. I have found that whatever ‘impediment’ he may experience from any medical support perspective derives from whatever differences there may be between the comparative levels of publicly available healthcare between Australia and the United Kingdom. The question of medical support in the United Kingdom is a possible but not insurmountable impediment to his return and re-settlement there.
Third, with reference to social support available to him in the United Kingdom, it should be noted that due to spending the last 47-48 years of his life in Australia, the Applicant is likely to be faced with a lack of family contacts and/or other socially supportive contacts in the United Kingdom. It can be accepted the Applicant will be hard-pressed to identify anyone in the United Kingdom who could afford him short to medium term accommodation and social support if he were now returned to that country. The question of social support in the United Kingdom is a genuine but not insurmountable impediment to his return and re-settlement there.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to his return and resettlement in the United Kingdom. Any impediment he may face as a result of his mental healthcare derives from whatever difference there may be in the comparative levels of health of publicly available mental healthcare between Australia and the United Kingdom. I have found this impediment is not insurmountable;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in the United Kingdom;
·the relative lack of economic support is a genuine but not insurmountable impediment to the Applicant’s return and resettlement in the United Kingdom; and
·the question of medical support in the United Kingdom is a possible but not insurmountable impediment to his return and re-settlement there; and
·the question of social support in the United Kingdom is a genuine but not insurmountable impediment to his return and re-settlement there.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on Australian business interests
The evidence around an “Australian business interest”
The Respondent contends that any loss of the Applicant’s proposed employment in his son’s building and construction business would not significantly compromise the capacity of that business to deliver its important service in Australia. That ‘important service’ derives from the reality that the son’s business has been responsible for the construction for something like 40 new homes in Australia in the last three years. We are all only too well aware of the critical under-supply of new homes in this country. Any business that plays a role in meeting that under-supply can be safely found to comprise a business delivering an ‘important service’ in this country. The business in question does not have to necessarily be involved in the delivery of a ‘major project’ in Australia. It can be of a size and scope of the son’s business.[75]
112.As mentioned earlier, the Applicant’s son has recently experienced a diagnosis of, and surgical and other treatment for, bladder cancer. The medical advice is that the condition may return which may require further treatment and intervention. The Applicant’s role in the business will be an administrative/managerial one. As best as I understood the evidence, the Applicant will not be working ‘on the tools’ in the son’s business. This much is clear from (1) the employment contract in the material[76]; and (2) the son’s oral and written evidence. I am satisfied that the Applicant would most likely play a very important administrative and other ‘gatekeeping’ role if the son’s medical issues to re-emerge and impact the son’s contributions to the business even if they did not re-emerge.
Arachchi[77]
[75] QXNS v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1369, at [111]-[112].
[76] HB, pp 398-400.
[77] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311.
The question for present purposes is whether the Applicant’s removal to the United Kingdom would significantly impact the delivery of the home building service by the son’s business in Australia. In Arachchi, His Honour Mr Justice Rangiah said:
‘Paragraph 9.4.2 of Direction 90[78] commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
Paragraph 9.4.2 goes on to state that, “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Three observations may be made. First, this qualification applies only where there is a relevant “employment link”. Second, even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances.
The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa. It is unnecessary, in the absence of argument, to consider precisely what is meant by “employment” in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant’s claim was not confined to any “employment link” but was that he had an ownership interest in a business and that his removal from Australia would affect his partner’s business interests.’[79]
[78] Now expressed in identical terms in paragraph 9.3(1) of the Direction.
[79] Arachchi, [68]-[70].
Applying Arachchi to the instant facts, I am, first, satisfied that the son’s building and construction business is not excluded from consideration for present purposes due to its relative scale or importance. Second, I am also satisfied there is a relevant “employment link” between the Applicant and the subject business conducted by the son. Third, it is clear from the evidence that the business would benefit from the Applicant’s administrative and gatekeeping role and that it would be impacted if the son’s medical issues re-emerged. As against all of this, there is the reality that the son’s business has constructed something in the order of 40 homes in the last three or so years even with the Applicant in either prison or immigration detention for at least a third to one half of that three year period. The weight allocable to this Other Consideration (c) must therefore be tempered as a result of this reality
Findings about this Other Consideration (c)
On the basis that the Applicant’s removal to the United Kingdom would – to an as yet unknown extent – compromise the provision of home building services in Australia, I am of the view (and I will find) that this Other Consideration (c) attracts, at best, a moderate level of weight towards restoration of the Applicant’s visa status to remain here.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of moderate weight in favour of revocation;
(b)extent of impediments if removed: is of moderate weight in favour of revocation; and
(c) impact on Australian business interests: is of moderate weight in favour of revocation.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.[80]
[80] See [2] of these Reasons.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a moderately heavy, but not dispositive, level of weight in favour of this Tribunal affirming the decision under review;
·Primary Consideration 2: is of a moderately heavy, but not dispositive, level of weight in favour of this Tribunal affirming the decision under review.;
·Primary Consideration 3: is of a very heavy level of weight in favour of this Tribunal setting aside the decision under review;
·Primary Consideration 4: is of a very heavy level of weight in favour of this Tribunal setting aside the decision under review;
·Primary Consideration 5: is of a moderately heavy, but not dispositive, level of weight in favour of this Tribunal affirming the decision under review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 1, 2 and 5 are dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 3 and 4 and Other Considerations (a), (b) and (c).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), to set aside the decision under review made by a delegate of the Respondent on 28 July 2025 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
122.
123.
124. I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis
..............[SGD]..............
Associate
Dated: 14 October 2025.
Date of Hearing: 8 and 9 October 2025 Representation for the Applicant: Self-represented
Solicitor for the Respondent: Mr Ben Nam (Lawyer) Clayton Utz [
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