ZKKG and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1189

ZKKG and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1189 (1 August 2025)
Applicant:ZKKG
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3670
Tribunal:General Member K Thornton
Place:Melbourne
Date:1 August 2025
Decision:The Tribunal affirms the decision under review.

...............[SGD].........................................................
General Member K Thornton
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Absorbed Person visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – very serious offence – murder – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration & Border Protection [2018] FCA 650
DOB18 v Minister for Home Affairs [2018] FCA 1999
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
NZYQ v Minister for Immigration,Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The Applicant is a 55-year-old citizen of Türkiye. She seeks review of a decision made by the delegate of the Respondent not to revoke the mandatory cancellation of her Absorbed visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the following reasons, the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is defined by s 501(6). Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that the Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) provides that an application may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
Direction 110
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
Such a direction has been given under s 499 of the Act, being Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).
Paragraph 5.1 of the Direction contains the Objectives. Paragraph 5.1(1) provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa or cancellation of their visa.
Paragraph 5.2 of the Direction contains principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501. The factors (to the extent they are relevant in a particular case) that must be considered in making a decision under s 501 of the Act are identified in Part 2 of the Direction.
The principles as set out under paragraph 5.2 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 non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of the Direction deals with taking the relevant considerations into account. It provides as follows:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction states that the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) of the Direction provides that in making a decision under ss 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with their provisions. Those considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
The Tribunal will now set out the relevant visa background of the Applicant and the events that led to the non-revocation decision being made
BACKGROUND
Arrival into Australia and Visa history
The Applicant arrived in Australia on 22 June 1973 as a three-year-old with her mother, father and older brother.[1]
[1] Exhibit R1, 626.
According to immigration records, she has departed Australia once for a brief period on 28 December 1983 and returning on 29 February 1984.[2] She has otherwise remained in Australia.
[2] Ibid 777.
On 1 September 1994, the Applicant was granted an Absorbed Person visa.[3]
[3] Ibid 771.
On 20 December 2002, the Applicant was convicted and sentenced in the Supreme Court of Victoria to one charge of murder.[4] She was sentenced to 21 years’ imprisonment with a non-parole period of 17 years.[5] She served the entirety of that sentence.
[4] Ibid 644.
[5] Ibid.
On 9 March 2017, the Applicant’s Absorbed Person visa was cancelled under s 501(3A) (cancellation decision).[6]
[6] Ibid 771.
On 10 March 2017, the Applicant made representations seeking revocation of the cancellation decision.[7]
[7] Ibid 741.
On 25 February 2020, a delegate of the Respondent decided not to revoke the cancellation decision.[8]
[8] Ibid 832.
On 4 June 2020, the Federal Court ordered that this matter be remitted back to the Minister for reconsideration.[9]
[9] Ibid 785.
On 18 July 2022, the Applicant was released from prison and placed in immigration detention.[10]
[10] Ibid 93.
On 17 August 2022, a delegate of the Respondent again decided not to revoke the cancellation decision.[11] On 17 May 2024, the Federal Court ordered that this matter be remitted back to the Minister for reconsideration.[12]
[11] Ibid 1007.
[12] Ibid.
On 6 October 2022, the Applicant applied for a Protection (Class XA) visa.[13] That visa has been subject to a separate visa refusal process by the Respondent. It forms part of a separate Tribunal application and decision.[14]
[13] Ibid 468.
[14] Being Tribunal proceedings 2025/3769.
The Applicant was subsequently advised that a protection finding has been made in her favour.[15] She was found to satisfy the criterion in s 36(2)(a) of the Act and the criterion in s 36(1C).[16] Consequently, the protection finding means that the Applicant cannot be removed to Türkiye.[17]
[15] Ibid 1995.
[16] Ibid 42 [58].
[17] Ibid 42 [59].
On 12 May 2025, a delegate of the Respondent decided not to revoke the cancellation decision (the non-revocation decision).[18] The Applicant was notified of the decision the same day.[19]
[18] Ibid 606.
[19] Ibid 603.
Bridging Visa R
On 12 May 2025, the Applicant was granted a Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) by a delegate of the Minister.[20] That same day she was released from immigration detention.
[20] Ibid 563.
The Applicant’s BVR was granted subject to certain conditions.[21]
[21] Ibid 566-70.
Application for review
On 21 May 2025, the Applicant lodged an application for review of the non-revocation decision.[22]
[22] Ibid 588.
Tribunal proceedings
A Case Management Directions Hearing was conducted in this matter by telephone on 2 June 2025. Both parties were represented at the Directions Hearing. The Tribunal issued directions for the management of the matter and listed the matter for hearing. The parties agreed that the two applications (regarding the Absorbed Person visa and the Protection visa) should proceed to a joint hearing.[23]
[23] Being matters 2025/3669 (regarding the Protection visa) and 2025/3670 (regarding the Absorbed Person visa).
On 8 July 2025, the Tribunal’s orders were varied by consent and new dates were set down for the filing of certain documents including a combined Hearing Book.
The Tribunal hearing was conducted on 22 and 23 July 2025 in person at the Tribunal’s Melbourne registry. The Applicant was represented by Ms Ruth Hamnett of counsel, instructed by Ms Carina Ford and Ms Nina Merlino of Carina Ford Immigration Lawyers. The Respondent was represented by Ms Laura Mills of counsel, instructed by Mr Adam Cunynghame of Sparke Helmore Lawyers.
The Applicant gave evidence and was cross-examined. She did not require the use of an interpreter. Prior to giving evidence, she was informed by her counsel of the privilege against self-incrimination and the Tribunal was advised that she understood this privilege.
The Applicant also called evidence from the following witnesses:
(a)Dr Emily Kwok, Clinical and Forensic Psychologist;
(b)The Applicant’s son;
(c)The Applicant’s mother; and
(d)The Applicant’s brother.
Dr Emily Kwok and the Applicant’s son gave evidence via video as each was based interstate. The Applicant’s mother and brother gave evidence in person. The Applicant’s mother was assisted by a Turkish interpreter.
The Tribunal received into evidence a Hearing Book which was lodged on 18 July 2025 (in accordance with the Tribunal’s directions) totalling 2,081 pages of material which comprised of the following:
(a)G-documents for Tribunal proceeding 2025/3669;
(b)G-documents for Tribunal proceeding 2025/3670;
(c)Respondent’s Tender Bundle comprising summonsed material from Corrections Victoria, Department of Justice and Community Safety and the Victorian Office of Public Prosecutions;
(d)Respondent’s Statement of Facts, Issues and Contentions;
(e)Applicant’s Statement of Facts, Issues and Contentions and additional material comprising two additional statements of the Applicant, Psychologist Report of Dr Kwok and annexures, and further statements from the Applicant’s brother, the Applicant’s son, the Applicant’s mother and a medical letter in regard to the Applicant’s son.
ISSUES TO BE DETERMINED
There are two issues that need to be determined by the Tribunal. They are:
(a)Whether the Applicant passes the character test; or
(b)Whether there is ‘another reason’ why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.
In addressing the second issue, the Tribunal is bound to consider the relevant primary and other considerations of Direction 110 to the specific circumstances of the Applicant’s case. The Tribunal is required to read, identify, understand and evaluate the representations and must bring its mind to bear upon the facts stated in them or the arguments and opinions put forward and appreciate who is making them.[24] The weight to be afforded to the representations is a matter for the decision-maker.[25]
CONSIDERATION
[24] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 598 [24].
[25] Ibid.
Does the Applicant pass the character test?
The Tribunal needs to consider whether the Applicant passes the character test according to the definition in s 501(6)(a) of the Act. That section provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
On 20 December 2002, the Applicant was sentenced to a term of imprisonment of 12 months or more. This means that she has a substantial criminal record according to the definition in s 501(7) of the Act. A person who has a substantial criminal record does not pass the character test according to s 501(6)(a) of the Act. The Applicant concedes that she does not pass the character test.[26]
[26] Exhibit R1, 1931 [2].
The Tribunal therefore makes a finding that the Applicant does not pass the character test. Consequently, she cannot rely on s 501CA(4)(b)(i) as a basis to revoke the cancellation of her visa.
Is there another reason why the cancellation decision should be revoked?
The remaining issue to be determined is whether there is ‘another reason’ why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. Direction 110 provides that the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.[27] The primary and other considerations have been considered below.
PRIMARY CONSIDERATIONS
[27] Direction 110, 5.1(3).
Primary consideration 1: Protection of the Australian community
Paragraph 8.1 of Direction 110 provides:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
In accordance with paragraph 8.1(1), the Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has also had regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been law abiding, respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal has also given consideration to the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 8.1.1(1) provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors identified at paragraph 8.1.1(1)(a) to (i) of Direction 110.
The Direction identifies a non-exhaustive list of crimes or conduct that may be considered very serious or serious by the Australian Government and the Australian community. Crimes or conduct that may be considered very serious include:
i. violent and/or sexual crimes;
ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
Crimes or conduct that may be considered serious include:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

The nature and seriousness of the Applicant’s criminal offending for the offence of murder was set out by his Honour Justice Nettle in passing sentence on the Applicant on 20 December 2002.[28] The Applicant’s offending may be summarised as follows.
[28] Exhibit R1, 646-67.
Circumstances of the offending
The victim in this matter was an 81-year-old World War II veteran who was widowed and living alone.[29] He retired from full time employment at the age of 60 and thereafter developed a home business supplying coin operated pool tables to a number of hotels.[30] The nature of his business meant that he was in the habit of keeping relatively large amounts of cash at home.[31]
[29] Ibid 647 [3], 763.
[30] Ibid 647 [3].
[31] Ibid.
He was previously married for 50 years before his wife died of cancer in 1997. Her death left him profoundly lonely. He sought companionship through an escort agency where he met the Applicant who was working as a prostitute with the agency at the time.[32]
[32] Ibid [4].
The Applicant had been a heroin user since 1997 or 1998. At the time she met the victim, she was on the methadone program, but it did not appear that the victim was aware of this at the time.[33]
[33] Ibid [5].
After a period of time, the Applicant moved into the victim’s home and he began to support her. However, she moved out only after a month or so. The victim reported to police in July 1999 that jewellery and a fax machine had been burgled from his home and he suspected that the Applicant had committed the theft. The Applicant was later convicted of that burglary.[34] (The Applicant’s prior convictions will be considered later in these Reasons).
[34] Ibid [6].
In or about May 2001, the Applicant formed a relationship with her co-offender. He too was a heroin user. Not long after they met, the Applicant moved into the co-offender’s father’s home. For the next five months or so, the Applicant and her co-offender experimented with cocaine and amphetamines.[35]
[35] Ibid 648 [8]-[9].
On the evening of 21 September 2001, the Applicant took cocaine and probably also heroin. Her co-offender also took cocaine but probably no heroin. They also took a number of benzodiazepine tablets. The co-offender also took a number of amphetamine tablets.[36] The pair then went out driving in the co-offender’s vehicle. He complained to the Applicant about a lack of money to buy petrol. The Applicant said she knew a place where they could get plenty of money and directed him to drive towards the victim’s house. They parked a couple of blocks away and walked to the victim’s house, arriving at about 1.00am on the morning of 22 September 2001. They then entered through the rear of the house.[37]
[36] Ibid 649 [10].
[37] Ibid [11].
Once inside, the Applicant told her co-offender to enter the victim’s bedroom and tie him up and blindfold him so that she could come in unrecognised. The co-offender did so. The Applicant called out to her co-offender as to whether she could enter the room, and when he told her she could, she entered the room.[38]
[38] Ibid [12].
Over the following four hours, the Applicant and her co-offender ‘individually and collectively’ subjected the victim to ‘a sustained interrogation, physical torture and mutilation, in an endeavour to prise from him the whereabouts of jewellery and other valuables believed to be kept on the premises’.[39] At some point, the pair dragged the victim, who was still bound, to a chest of drawers to get him to point out where his Visa card was kept. At another point, the victim tried to roll from the bed, with his hands bound, and fell to the floor on his back. The Applicant and the co-offender kicked the victim on several occasions as he lay on the floor. At some point, the blindfold came away from the victim’s eyes and it is assumed that he recognised the Applicant.[40]
[39] Ibid [13].
[40] Ibid 649-50 [14].
At another stage, the Applicant asked the co-offender to get out of the room so she might be alone with the victim, which he did. The Applicant then subjected the victim to a further period of interrogation and torture with a knife. At some point during this period, the co-offender returned from ransacking the rest of the property. On one such return visit, he saw the Applicant use the knife to poke out one of the victim’s eyes. On another visit he saw the victim try to reach for something to strike the Applicant, which the co-offender stopped by kicking the victim. On another occasion, the co-offender saw the Applicant use the knife to cut off part of the victim’s penis while he was still alive. She also used the handle of the knife to ‘pummel’ the victim around the head and face.[41]
[41] Ibid 650 [15].
His Honour found that:[42]
By the processes to which they subjected [the victim], [the Applicant] and [the co-offender] undoubtedly caused him excruciating pain and terror and, finally, before they could get him to reveal where the valuables were located, they caused him to die from the injuries which they inflicted.
[42] Ibid 652 [16].
The pair remained on the property for several hours, ransacking the property, and vandalising it. At about 5am, one or both of them set the house alight leaving the victim’s body and house to be incinerated.[43] The forensic pathologist who conducted the post-mortem examination on the victim’s remains concluded that because of the number and location of injuries, the victim died before the fire.[44]
[43] Ibid [17].
[44] Ibid 654 [24].
The fact that this offending is very serious is not in dispute between the parties. The Applicant accepts that her conviction for murder constitutes a very serious crime.[45] The Respondent also submits that this crime should be viewed seriously by the Australian Government and the Australian community.[46] His Honour Justice Nettle described the nature and gravity of the offence of the murder as follows:[47]
Murder has long been regarded as the most serious of all crimes, but also as being one in which the circumstances vary to such an extent as between individual cases that an examination of the circumstances will lead to a wide range of sentences, both at the head sentences and non-parole periods.
Bearing that in mind, I take as the starting point in this case that the murder of which [the Applicant] and [the co-offender] are both guilty was a murder of a most hideous and heinous kind. It was premeditated, at least to the extent that they believed there to be money and valuables on the property and that they went there with the intention of using such level of violence as might prove necessary in order to get the money and the valuables. It was committed in cold blood. It was committed in the home of an octogenarian in the early hours of the morning where it was known that he would be found asleep alone and unarmed. They subjected him to a vicious and sustained attack, first by kicking him and bashing him and then with a knife in ways which most civilised human beings could not begin to imagine. They remorselessly subjected him to excruciating pain and terror. And, finally, at least one of them set his house alight with him in it, in what I am satisfied beyond reasonable doubt was an ill-executed attempt to cover up the evidence of their outrageous wrongdoing.
[45] Ibid 1936 [27].
[46] Ibid 1919 [71].
[47] Ibid 655 [28]-[29] (citation omitted).
The Tribunal therefore finds that this offending was very serious and has taken this into account. The Tribunal has also taken into account the Applicant’s prior convictions which are dealt with below.
Prior convictions
Prior to being sentenced to murder on 20 December 2002, the Applicant had prior convictions spanning from 16 March 2000 through to 5 February 2002.[48] Those criminal priors are summarised below.
[48] Ibid 643-5.
On 16 March 2000, the Applicant was convicted and sentenced at the Broadmeadows Magistrates’ Court to one charge of Assault with intent to rob. She was sentenced to eight months’ imprisonment which was suspended for 18 months. She was ordered to serve three months of that sentence in prison.[49]
[49] Ibid 645.
On the same date, she was convicted and sentenced to seven charges of Theft, two charges of Obtain property by deception, and one charge each of Go equipped to steal, Burglary and Handle stolen goods. For this offending she was sentence to a Community Based Order for 18 months. She was ordered to perform 200 hours of unpaid community work over this period. The Applicant was also convicted of a charge of State false address and Use heroin. She was convicted and discharged on these offences.[50]
[50] Ibid.
On 18 May 2000, the Applicant was convicted and sentenced at the Melbourne Magistrates’ Court on two charges of Theft, two charges of Obtaining property by deception, and one charge each of Make false document, Client loiter for prostitution, Burglary, Handle stolen goods, Failing to answer bail and Possess heroin. For this offending she was sentenced to an aggregate term of three months’ imprisonment which was wholly suspended for 12 months.[51]
[51] Ibid.
On 23 February 2001, the Applicant was convicted and sentenced at the Ringwood Magistrates’ Court of one charge of Burglary, three charges of Theft, two charges of Make false document, one charge of Handle stolen goods, two charges of Possess property being proceeds of crime, and one charge each of Use heroin, Unlicensed driving, and Theft from shop. For this offending she was sentenced to an aggregate term of five months imprisonment which was suspended for one year. She was ordered to serve three months of this sentence in prison.[52] On this occasion she was also re-sentenced for breaching her prior suspended sentence and prior Community Based Order. Her Community Based Order was cancelled, and the Applicant was re-sentenced to an aggregate term of three months’ imprisonment. For the breach of suspended sentence, the Applicant’s sentence was reinstated, and she was ordered to serve three months imprisonment. Both terms of imprisonment were ordered to be served concurrently.[53]
[52] Ibid 644.
[53] Ibid.
On 5 February 2002, she was convicted and sentenced at the Melbourne Magistrates’ Court of three charges of Failing to answer bail, five charges of Obtaining property by deception, and one charge each of Burglary, Theft, Handle stolen goods, State false name, Use heroin and Possess heroin. For this offending she was sentenced to an aggregate term of six months imprisonment. The Applicant was also convicted and sentenced on one charge of Unlicensed driving for which she received a sentence of one month imprisonment. Finally, she was also convicted and sentenced for one charge of Drive in manner dangerous under the influence of drugs and was sentenced to nine months’ imprisonment. Each of the terms of imprisonment were ordered to be served concurrently.[54]
[54] Ibid.
The circumstances of the Applicant’s prior offending are contained in a report dated 18 March 2022 by Dr Suzanne Vidler, Forensic Psychologist.[55] The Report was prepared by Dr Vidler for the purposes of assessing the Applicant for a Detention and Supervision Order, under the Serious Offenders Act 2018 (Vic).[56] Dr Vidler conducted an interview and assessment with the Applicant on 2 March 2022 over a period of six hours. The interview and assessment took place whilst the Applicant was in prison.[57]
[55] Ibid 1564-1615.
[56] Ibid 1564.
[57] Ibid.
The Applicant reported to Dr Vidler the circumstances of her prior offending as follows:[58]
The first, involved [the Applicant] travelling on a tram and feeling the victim touch her on the backside. When they exited the tram, [the Applicant] reported that she had verbally abused the victim and claimed that he had began pushing her. In response, [the Applicant] reported that she had pushed back resulting in the victim falling and the two of them having a “scuffle” on the ground.
…
on the 29/01/2000, [the Applicant] and a co-offender attended the Preston Market and stole elderly female’s purses. In one purse was the victims address and house keys, hence they travelled to the victims’ home and stole $5000 worth of jewellery. They then purchased and used heroin and shortly after observed an elderly man carry a large amount of cash. They proceeded to follow the man for two hours, including boarding a bus with him. Upon exiting the bus, [the Applicant’s] co offender yelled that he had stolen $50 from [the Applicant] resulting in a passer by grabbing the victim and “returning” the $50 to the women. During this altercation a fight broke out and the victim sustained bruising and head injuries.
…
Regarding the second incident, [the Applicant] reported that she and a friend were in a shopping mall when her friend stole a women’s handbag. [The Applicant] claimed that she grabbed the bag off her friend and returned it to the victim. Despite this, [the Applicant] stated that she had later been identified as the perpetrator in a line up. According to the Summary of Charges (22/02/2002), [the Applicant’s] co-offender for the above offence had attempted to steal the victim’s handbag and was successful in stealing the victim’s phone. [The Applicant] had retrieved the phone from her co-offender, suggesting to the victim that she would return it, however ultimately refused, and drove away with the co-offender. When interviewed by police, [the Applicant] asserted that she was trying to help the victim and denied assaulting her.
[58] Ibid 1577-8 [45]-[46].
The Applicant advised Dr Vidler that these offences were motivated by the need to acquire funds to support her illicit drug use.[59] She also admitted that some of the offences were planned but others were opportunistic in nature.[60] Dr Vidler noted that her prior offences indicated a preference for targeting elderly victims.[61] The Applicant also acknowledged to Dr Vidler that most of her violent offences were against strangers and considered those offences to be impulsive.[62] The Applicant recognised that violence has been prevalent throughout her life, however, she denied being the perpetrator of much of the violence. She told Dr Vidler that she attributed her offending history to drugs and the criminal scene associated with sex work and drugs.[63]
[59] Ibid 1578 [47].
[60] Ibid.
[61] Ibid.
[62] Ibid.
[63] Ibid.
Factors under 8.1.1(1) of the Direction
The Tribunal has had regard to the factors identified at paragraph 8.1.1(1) of Direction 110 as follows.
The Applicant engaged in a violent crime according to paragraph 8.1.1(1)(a)(i) of the Direction. The Tribunal has had regard to the sentence imposed for her crime pursuant to 8.1.1(1)(c). The sentencing judge regarded the offending of which the Applicant engaged in as ‘a murder of a most hideous and heinous kind’.[64] His Honour accepted that the Applicant was significantly affected by drugs at the time of the murder and made allowance for that.[65] His Honour considered that the fire was a ‘calculated and callous, even if ineffectual attempt’ to cover the Applicant and her co-offender’s involvement in the crime, and it was taken into account as an aggravating factor.[66] His Honour noted that her plea of guilty was not forthcoming until the morning of the trial, and therefore the lateness of the plea should be reflected in the reduction of a sentencing discount that might have otherwise been allowed.[67] His Honour also took into account the Applicant’s personal circumstances which included a ‘seriously dysfunctional’ childhood which included instances of family violence and sexual abuse.[68] The Applicant also suffered family violence in her first marriage which resulted in a hospital admission on one occasion.[69] Her three children from that marriage were taken from her by the Department of Human Services, and a fourth child she conceived was also cared for by others.[70] The Applicant commenced work at an escort agency approximately eight years prior to her offending.[71]
[64] Ibid 655 [29].
[65] Ibid 659 [39].
[66] Ibid [41].
[67] Ibid 659-70 [42].
[68] Ibid 656 [31].
[69] Ibid [32].
[70] Ibid 656-7 [33].
[71] Ibid.
Having regard to the gravity of the offence, the aggravating and mitigating considerations, the Applicant was sentenced to 21 years imprisonment with a non-parole period of 17 years.[72] The Tribunal considers that the sentence of 21 years’ imprisonment reflects the very serious nature of the Applicant’s offending and takes this into account.
[72] Ibid 665-6 [64].
The Tribunal has also taken into account the impact of the offending on the victim’s family pursuant to paragraph 8.1.1(1)(d) of the Direction. His Honour noted in the sentencing remarks that the victim's son and daughter and daughter-in-law had made victim impact statements.[73] It was noted that the victim’s family ‘search without results for answers as to why a man they love so much and who offered offence to no one’ should be the recipient of such ‘atrocious malevolence’.[74] The Tribunal has had regard to the impact of the Applicant’s offending on the victim’s family and has taken this into account.
[73] Ibid 665 [63].
[74] Ibid.
The Tribunal notes that since March 2000, the Applicant’s offending has been frequent and has increased in seriousness. Prior to her conviction for murder, the Applicant was sentenced for breaching a Community Based Order and a suspended sentence. She had served time in custody previously but was not deterred from continuing to offend. The Tribunal considers that the Applicant’s offending since March 2000 was frequent and increased in seriousness (paragraph 8.1.1(1)(e)).
The Tribunal has taken into account the cumulative effect of the Applicant’s repeated offending. Her most recent offending resulted in the death of an innocent member of the Australian community. As mentioned above, she was not deterred by the imposition of a previous Community Based Order or previous sentences of imprisonment. The Tribunal has taken this into account under paragraph 8.1.1(1)(f) of Direction 110.
There is no evidence that sub-paragraphs (g), (h) and (i) apply to the Applicant’s circumstances.
In conclusion, the Tribunal considers that the nature and seriousness of the Applicant’s conduct is of the upmost seriousness and depravity. The gravity of her offending was reflected in the head sentence of 21 years’ imprisonment. The Tribunal considers her offending is very serious and this factor weighs very heavily against the Applicant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction 110 provides as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should   the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other                   serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.

This paragraph requires decision makers to consider the risk to the Australian community should the non-citizen engage in further offending or other serious conduct. In assessing risk, decision-makers are required to have cumulative regard to the nature of the harm should the non-citizen engage in further criminal or other serious conduct. Decision-makers must consider the likelihood of that occurring taking into account information and evidence on the risk of re-offending, and evidence of rehabilitation achieved at the time of the decision, giving weight to the time spent in the community since their most recent offence.
The Applicant submits that she does not pose any real risk to the Australian community.[75] It is submitted that the Applicant is now a 55-year-old woman who has spent ‘20 years accepting her offending and rehabilitating herself’.[76] The factors that were present in her life at the time of the offending such as extreme substance abuse, alcohol abuse, unresolved childhood trauma and immensely poor mental health have since been managed and are being treated.[77] The Applicant is aware of the continual need to engage in counselling in the community and has expressed a commitment to engage in alcohol and drug counselling for a minimum period of 12 months for relapse prevention and psychological therapy.[78] The Tribunal has had regard to the most recent psychological report prepared by Dr Emily Kwok, Forensic and Clinical psychologist (dated 22 June 2025).[79] In that report, Dr Kwok assessed the Applicant’s risk at the higher end of the medium range. However, Dr Kwok also took into account the fact that the Applicant had just recently returned to the community at the time of her assessment following a very lengthy period of incarceration.[80] The Applicant therefore notes Dr Kwok’s recommendation that ‘more time is required for her to adjust to community living and build her support system.’[81]
[75] Ibid 1939 [44].
[76] Ibid 1940 [46].
[77] Ibid.
[78] Ibid.
[79] Ibid 1973-85.
[80] Ibid.
[81] Ibid 1940 [46], 1982 [62].
Dr Kwok noted that the Applicant’s risk of reoffending can be reduced with treatment of dynamic risk factors and the provision of support in the community. Dr Kwok noted that the Applicant's family is a key protective factor in her rehabilitation. The Applicant also points to the many courses and vocational programs undertaken in prison to further her rehabilitation. The Applicant submits that she has demonstrated a commitment to improving and stabilising her mental health. She has engaged in counselling and psychological therapy in prison and has found this immensely beneficial. In oral evidence to the Tribunal the Applicant said she has engaged with a social worker and psychologist whom she sees regularly. She said she has contact with the social worker approximately once a week and has seen the psychologist twice since her release into the community. She expressed a desire to re-enter the workforce but has been counselled against this by her social worker and psychologist at this stage. According to the Applicant's evidence, her social worker is making arrangements for her to engage in drug and alcohol counselling. Since her release from immigration detention, the Applicant has been residing with her elderly mother in a one-bedroom unit. She has the support of her mother and brother who live nearby. The Applicant is also supported by her adult son who resides interstate. She told the Tribunal that she hopes to open a business one day making jewellery and is currently writing a book on her personal experiences.
The Respondent notes that the Applicant has been assessed as a medium-high risk of reoffending and a medium-high risk of violence and that such risk is an unacceptable risk.[82] The Respondent also refers in written submissions to the report of Dr Kwok and the report of Dr Vidler. The Respondent notes that Dr Kwok assessed the Applicant’s risk of reoffending using the Level of Service/Case Management Inventory (LS/CMI) which is a risk and need assessment tool.[83] The LS/CMI score suggests that the Applicant’s general risk/need is in the high range of medium and that she has a high-medium risk of further offending in general. The Respondent also notes that the Applicant’s LS/CMI score was mainly contributed by her current psychosocial difficulties including unemployment, lack of prosocial leisure/recreation activities and limited social supports.[84]
[82] Ibid 1922 [90].
[83] Ibid 1920 [83].
[84] Ibid 1921 [84].
Dr Vidler conducted a comprehensive assessment of the Applicant in 2022. The Respondent notes that Dr Vidler’s opinion was that the Applicant posed a moderate to high risk for violence and that her risk of violence will increase particularly in the context of interpersonal stress and conflict, inadequate support/treatment/supervision and relapse of alcohol and other drugs.[85] The Respondent submits that having regard to the factors identified in these reports there is a sufficient risk of reoffending and recidivism.[86] The Respondent submits there is a risk the Applicant will cause harm to the Australian community including serious harm given the nature of the Applicant's prior offending.[87] The Respondent has accepted the Applicant’s tragic personal history which was marked by physical abuse, sexual abuse and domestic violence. The Respondent noted that while the Applicant’s personal past circumstances are tragic and traumatic, such matters do not mitigate against her risk of reoffending.[88] The Respondent notes that Justice Nettle recognised that these matters may contribute to the Applicant's prospects of rehabilitation which he described as ‘at best a long term possibility and more probably a “forlorn hope” such that the public needs to be protected from her propensity to offend’.[89]
[85] Ibid 1922 [89].
[86] Ibid [91].
[87] Ibid.
[88] Ibid 1922-3 [92]-[93].
[89] Ibid 1923 [93].
The Applicant contends that if she remains on her BVR she will receive substantially fewer supports, particularly with respect to housing and healthcare.[90] The Applicant also submits that there is a potential for the Applicant to be disproportionately subjected to further extra- curial punishment if she is removed to Türkiye.[91] The Respondents submits that these submissions should not be accepted because, firstly, it is not presently possible for the Applicant to be removed to Türkiye by reason of the protection finding which has been made.[92] Secondly, the Respondent submits that the exercise of the power of cancellation of a visa by reference to the fact of prior criminal offending does not involve the imposition of a punishment for an offence and does not involve the exercise of judicial power (such that it would amount to a form of extra-curial punishment).[93] The protection of the Australian community consideration involves an assessment of the Applicant’s past conduct, present circumstances, and likely future conduct and is necessarily prospective in nature, looking forward to the position of the Australian community, if by a decision favourable to the Applicant, she is permitted to enter or remain in Australia.[94]
[90] Ibid 1938 [39].
[91] Ibid 1936 [29].
[92] Ibid 1924 [98].
[93] Ibid [100].
[94] Ibid.
The Respondents submits that this consideration should weigh heavily against the Applicant.[95] The Respondent notes that the Applicant's conduct was extremely serious and that her risk of reoffending and violence has been assessed as the higher end of the medium range. In these circumstances the Respondent submits that this primary consideration should outweigh all other countervailing considerations.[96] In closing submissions, the Applicant submitted that she is not a risk to the Australian community and that this primary consideration should actually weigh in her favour.
[95] Ibid 1924 [101].
[96] Ibid.
The Tribunal has considered the reports of Dr Kwok and Dr Vidler. The Tribunal has given greater weight to the report of Dr Kwok as it represents the most recent report of the Applicant’s risk and present mental health. Dr Kwok gave evidence consistent with her written report that the Applicant presents a medium risk of reoffending and that her risk is placed at the higher end of that range. Dr Kwok opined in her written report and in oral evidence to the Tribunal that the Applicant needs to engage in alcohol and drug counselling and that this should occur for a period of at least 12 months in order to reduce the risk of relapse.
The Tribunal notes with concern that the Applicant engaged in drug taking in prison and in immigration detention. She was also involved in a number of violent incidents with fellow inmates and staff both in prison and immigration detention. In her oral evidence to the Tribunal she stated she consumed cannabis in immigration detention and told the Tribunal this occurred once every three to four months. She told the Tribunal she consumed marijuana to ease the stress of the detention environment. She maintained that she no longer has that stress in the community, and she is engaged with a social worker and psychologist and will shortly engage in alcohol and drug counselling. The Tribunal accepts that the Applicant is engaged with those support services, but cautiously notes that the Applicant has only been in the community for a few months. Her ability to abstain from drug and alcohol use long-term has not been tested.
The Tribunal considers that this is a case where the risk of future harm is so serious that any risk it would be repeated is unacceptable. If the Applicant were to engage in similar offending, this could cause the death or serious injury of a member of the Australian community. The Tribunal considers such a risk as unacceptable and has taken this into account. The Tribunal notes Dr Kwok’s assessment that the Applicant is at the higher end of the medium range of reoffending.
The Tribunal has also had regard to the principles in the Direction and notes that the safety of the Australian community is the highest priority of the Australian Government.[97] The Tribunal has also had regard to the principle that 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.[98] The Tribunal has also had regard to the principle that 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.[99] It is accepted that the Applicant has lived most of her life in Australia, having arrived here as a three year old with her family. However, the Tribunal considers that the criminal conduct engaged in by the Applicant is so serious that tolerance of such offending is not reduced by the fact that the Applicant has lived in Australia for most of her life. It has been considered as a factor, but the circumstances of her offending are so heinous, it would be difficult to imagine that the Australian community would afford tolerance of such conduct, even if the non-citizen has lived in Australia from a very young age.
[97] Direction 110, 5.2(2).
[98] Ibid 5.2(7).
[99] Ibid 5.2(6).
The Tribunal considers that this primary consideration weighs very heavily in favour of not revoking the mandatory cancellation decision. The Tribunal has attributed greater weight to this primary consideration as it is permitted to do under paragraph 7(2) of the Direction because of the very serious nature of the Applicant’s offending, and the medium-high risk of her reoffending.
Primary consideration 2: Family violence committed by the non-citizen
There is no evidence that the Applicant has engaged in family violence. This primary consideration is not relevant to the Tribunal’s consideration and is given no weight.
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia. This primary consideration also provides that where consideration is being given to cancel a visa or whether to revoke the mandatory cancellation of the visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
The Applicant submits that the following immediate family members in Australia will be impacted if the Applicant’s visa is refused. They are:
(a)The Applicant’s mother: The Applicant’s mother wrote statements in support of her daughter and gave oral evidence to the Tribunal. She is currently aged 77 years old and resides with the Applicant. She came to Australia in 1973 and is an Australian citizen.[100] She is aware of the Applicant’s offending and remains supportive. She doesn’t think that she would re-offend.[101] When asked how she can be sure, she said she knows her daughter and she knows she wouldn’t behave that way in the future. She told the Tribunal that they have a close relationship, and that the Applicant has been an enormous help to her now that she is in the community. She described her health conditions which make daily activities difficult. She said that the Applicant helps her with the cooking and cleaning, and in turn, she supports her daughter by taking her to appointments and providing practical and emotional support. The Applicant’s mother told the Tribunal about her difficult marriage which was marred by violence, which unfortunately the Applicant and her mother were exposed to. She told the Tribunal that her marriage to her husband was an arranged marriage, and that the relationship was ‘not good.’ She said her husband was violent, a gambler, and they lost the family home as a result.[102] She said that a non-revocation decision would have a devastating impact on her. She requires assistance with daily living and has been relying on her adult son for support previously. She told the Tribunal her adult son is the full-time carer of his wife, and that juggling both roles of looking after his wife and mother was difficult. She said it made a huge difference for the Applicant to reside with her on a full-time basis. She doesn’t know what she would do if the Applicant were to be removed from Australia. The Applicant’s mother said she has some relatives in Türkiye but they have stopped communicating with her because of the Applicant’s offending. She said the Applicant does not speak the language and she would not have any family support available to her. She told the Tribunal she could not travel to Türkiye to be with her daughter, that she is in poor health and relies heavily on the Applicant for daily support.
(b)The Applicant’s brother: The Applicant’s brother provided statements in support of the Applicant and gave oral evidence to the Tribunal. He told the Tribunal that they are close, and whilst they have had their ups and downs, he still loves and cares for her as his sister. He is aware of the Applicant’s offending and prior criminal history.[103] He described his upbringing as ‘not good’ and said that their father was a violent man. He said his mother did his best to shield him and the Applicant from their father’s violence. He is the full-time carer of his wife who has a spinal injury, and he said it has been difficult to juggle looking after his elderly mother and his wife whilst the Applicant was detained. He said that the burden has now been relieved with the Applicant’s release into the community. He firmly believes that she won’t re-offend. He also said he believed the Applicant is very remorseful for her conduct, and that she has paid a heavy price for her offending. He said a non-revocation decision would have a devastating impact on him and on his immediate family members. He said that the Applicant looks after their elderly mother by cooking and cleaning for her.[104] He also told the Tribunal that they don’t have any contact with family members in Türkiye and the Applicant would not cope if she had to be deported there.
(c)The Applicant’s son: The Applicant’s son provided written and oral evidence to the Tribunal. He confirmed he is aware of the Applicant’s criminal offending and prior convictions.[105] He gave evidence that his mother was a quiet and loving mother who always did her best to try and protect him and his siblings from their abusive father. He said he was happy to have reconnected with the Applicant and would live with her if he could. He said he has an extremely close relationship with his mother and is grateful to have her back in the community. Although he resides interstate, he plans on coming to visit her as soon as he is able. He also visited her in prison and moved to Melbourne for a period of time so he could be close to her. He has said he has tried to talk to the Applicant about her offending, but he understands it is very difficult for her to open up. He is prepared to support her in the long-term to assist her to rebuild her life again in the community. He said that a non-revocation decision would devastate their family and that he would again feel like he has lost his mother.
(d)The Applicant’s two adult nephews: The Applicant has two adult nephews. One of the nephews wrote a letter in support of the Applicant.[106] He wrote that he has a close relationship with his aunt. He said he visited the Applicant in prison as often as he could and has also brought his two daughters into prison to meet her. He said he will continue to support the Applicant. He wants to reconnect with her as he feels like he has already missed out on so much.[107] The Tribunal has also noted that there is another nephew referred to in the Applicant’s Statement of Facts, Issues and Contentions that would also be impacted by a non-revocation decision.[108]
[100] Exhibit R1, 2077.
[101] Ibid 2079.
[102] Ibid 2078.
[103] Ibid 2069.
[104] Ibid 2071.
[105] Ibid 2072.
[106] Ibid 705.
[107] Ibid.
[108] Ibid 1944.
The Tribunal acknowledges that the Applicant arrived in Australia in 1973 as a three-year-old and has spent the majority of her life in Australia. It is acknowledged that she resided in Australia for a significant period of time prior to being sentenced for her first criminal offence in 2000 at the age of 30.
Prior to her offending behaviour, the Applicant worked part-time jobs after leaving school at approximately 15 years of age. The Tribunal accepts that she has close ties with her immediate family members who reside in Australia. It is acknowledged that the Applicant is working towards re-establishing a relationship with her other three adult children. The Applicant submitted that her immediate family members also serve as a protective factor in the Applicant’s rehabilitation and that a non-revocation decision would have a devastating impact on both the Applicant and her family.
It is submitted on behalf of the Applicant that more weight should be given to the time the Applicant spent contributing positively to the Australian community, given she has lived here most of her life.[109] The Respondent accepts that this factor should weigh somewhat in the Applicant’s favour. The Respondent submits however that less weight should be attributed to this primary consideration because it is unlikely that the Applicant will actually be removed from Australia and therefore the effect of the decision on these family members is likely to be very minimal.[110]
[109] Ibid [59].
[110] Ibid 1926 [112].
The Tribunal is directed to consider the impact of the decision on the Applicant’s immediate family members in Australia.[111] The Tribunal accepts that a non-revocation decision (no matter the practical outcome) would impact the Applicant’s immediate family members in Australia, especially her elderly mother. It is accepted that a non-revocation decision would still create uncertainty and distress to the Applicant and her family. It is also accepted that a favourable visa decision would provide a measure of comfort to the Applicant and her family and would allow her to rebuild her life and commence looking forward to the future.
[111] Direction 110, 8.3(1).

In conclusion, the Tribunal gives this primary consideration moderate weight in favour of revoking the mandatory cancellation decision.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to make a determination as to whether visa cancellation or refusal under s 501, or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Various factors are identified which must be considered where relevant (paragraph 8.4(4) of the Direction).
The Applicant submits that there are four minor grandnieces and one minor grandchild who need to be assessed under this consideration. The Applicant’s nephew provided evidence that his daughters (whom he had two at the time of his written letter) would be impacted by a visa decision.[112] There is no further information or evidence on the two other grandnieces. The Applicant’s Protection visa application form signed and dated 26 August 2022 only identifies three minor nieces.[113] The Applicant’s counsel submitted at the hearing that it was possible that one of the nieces wasn’t born at the time the form was completed or that the niece’s exclusion from that form was possibly an oversight. In any event, the Tribunal accepts that there are four minor grandnieces in Australia who would be impacted by a non-revocation decision. The Tribunal has considered the interests of the grandnieces in accordance with the Direction. There was no information or evidence which suggests how their interests may differ. The names of the grandnieces were also unclear, as one of the nieces was not referred to at all in any of the materials provided by the Applicant. The Tribunal is unable to examine the best interests of that child because there is no information or evidence on the extent to which her interests would be affected. The Tribunal acknowledges that she would be impacted by a non-revocation decision and takes this into account.
[112] Exhibit R1, 705.
[113] Ibid 480.
The Tribunal has given individual consideration to the best interests of each of these children as follows:[114]
(a)The eldest grandniece (Child A): According to records provided by the Applicant, this child was born in 2013 and is currently 11 years old.[115] Child A was born whilst the Applicant was in prison. The relationship between Child A and the Applicant is non-parental. Child A has visited the Applicant in prison as is evidenced by photographs provided by the Applicant.[116] Due to the non-parental nature of this relationship and the fact that there have been long periods of absence, this factor is given less weight (paragraph 8.4(4)(a)). The extent to which the Applicant is likely to play a positive role in Child A’s future is unknown, but it is accepted that there are some years left until Child A turns 18 and the Applicant is likely to remain in the child’s life having been released from immigration detention (paragraph 8.4(4)(b)). The impact of the Applicant’s offending meant that the Applicant was separated from Child A before she was born. Any future conduct would also result in further incarceration and separation and the Tribunal has taken this into account (paragraph 8.4(4)(c)). The Applicant’s protection finding means that she cannot presently be removed to Türkiye so there is unlikely to be any future separation as a result of the Tribunal’s decision (paragraph 8.4(4)(d)). As of the date of the most recent letter (2017),[117] Child A had both her parents in her life fulfilling a parental role (paragraph 8.4(4)(e)). The views of Child A are not known (paragraph 8.4(4)(f)). There is no evidence that paragraphs 8.4(4)(g) and (h) apply to Child A.
(b)The middle grandniece (Child B): According to records provided by the Applicant, this child was born in 2015 and is currently 9 years old.[118] Child B was born whilst the Applicant was in prison. The relationship between Child B and the Applicant is non-parental. The parent of Child B stated that the pair have had phone contact as at the date of his letter to the Department.[119] Due to the non-parental nature of this relationship and the fact that there have been long periods of absence, this factor is given less weight (paragraph 8.4(4)(a)). The extent to which the Applicant is likely to play a positive role in Child B’s future is unknown, but it is accepted that there are some years left until Child B turns 18 and the Applicant is likely to remain in the child’s life having been released from immigration detention (paragraph 8.4(4)(b)). The impact of the Applicant’s offending meant that the Applicant was separated from Child B before she was born. Any future conduct would also result in further incarceration and separation and the Tribunal has taken this into account (paragraph 8.4(4)(c)). The Applicant’s protection finding means that she cannot presently be removed to Türkiye so there is unlikely to be any future separation as a result of the Tribunal’s decision (paragraph 8.4(4)(d)). As of the date of the most recent letter (2017),[120] Child B had both her parents in her life fulfilling a parental role (paragraph 8.4(4)(e)). The views of Child B are not known (paragraph 8.4(4)(f)). There is no evidence that paragraphs 8.4(4)(g) and (h) apply to Child B.
(c)The youngest grandniece (Child C): According to records provided by the Applicant, this child was born in 2022 and is currently 3 years old.[121] Child C was born whilst the Applicant was still in prison (one month prior to the Applicant’s move to immigration detention). The relationship between Child C and the Applicant is non-parental. There is no evidence of contact between this child and the Applicant.[122] This relationship is non-parental (paragraph 8.4(4)(a)). The extent to which the Applicant is likely to play a positive role in Child C’s future is unknown, but it is accepted that there are some years left until Child C turns 18 and the Applicant is likely to remain in the child’s life having been released from immigration detention (paragraph 8.4(4)(b)). The impact of the Applicant’s offending meant that the Applicant was separated from Child C before she was born. Any future conduct would also result in further incarceration and separation and the Tribunal has taken this into account (paragraph 8.4(4)(c)). The Applicant’s protection finding means that she cannot presently be removed to Türkiye so there is unlikely to be any future separation (paragraph 8.4(4)(d)). As of the date of the most recent letter (2017),[123] Child C had both her parents in her life fulfilling a parental role (paragraph 8.4(4)(e)). The views of Child C are not known (paragraph 8.4(4)(f)). There is no evidence that paragraphs 8.4(4)(g) and (h) apply to Child C.
(d)The Applicant’s grandson (Child D): Child D is the Applicant’s grandson. Child D resides interstate. He is approximately 5 years old. The Applicant has not met her grandson. The Applicant’s son (the father of the child) presently has no contact with Child D.[124] The Tribunal gives this factor less weight due to the nature of the relationship which is currently extremely limited (paragraph 8.4(4)(a)). The extent to which the Applicant is likely to play a positive role in the child’s future is unknown, although it is acknowledged that the Applicant may play a positive role in the future (paragraph 8.4(4)(b)). The impact of the Applicant’s offending meant that the Applicant was separated from Child D before he was born. Any future conduct would also result in further incarceration and separation and the Tribunal has taken this into account (paragraph 8.4(4)(c)). The Applicant’s protection finding means that she cannot presently be removed to Türkiye so there is unlikely to be any future separation as a result of the Tribunal’s decision (paragraph 8.4(4)(d)). There was evidence to the Tribunal that there are already people who fulfill a parental role in relation to the child (paragraph 8.4(4)(e)). The views of Child D are not known (paragraph 8.4(4)(f)). There is no evidence that paragraphs 8.4(4)(g) and (h) apply to Child D.
[114] Direction 110, 8.4(3).
[115] Exhibit R1, 480.
[116] Ibid 764-5.
[117] Ibid 705.
[118] Ibid 480.
[119] Ibid 705.
[120] Ibid.
[121] Ibid 480.
[122] Ibid 705.
[123] Ibid.
[124] Ibid 1968 [16].
The Applicant submits that the relationships with these children provide an enormous incentive for her to remain of good behaviour in the community.[125] The Tribunal accepts that the Applicant is assisting her adult son with regard to building his relationship with Child D and gives this some weight in the Applicant’s favour.[126]
[125] Ibid 1946 [71].
[126] Ibid [70].
The Respondent submits that this primary consideration should weigh very minimally in the Applicant’s favour.[127] This is because the relationship between the Applicant and these minor children is non-parental in nature, and the fact that the Applicant has been separated from them as a result of her time in prison and immigration detention.[128] The Respondent further notes that the Applicant is unlikely to be removed from Australia so the impact of the Tribunal’s decision on the best interests of these children is likely to be further minimised.[129]
[127] Ibid 1927 [118].
[128] Ibid [114]-[116].
[129] Ibid [117].
The Tribunal has had regard to the terms of the Direction and the best interests of these minor children. The Tribunal considers that the minor grandnieces and grandchild will be moderately affected by a non-revocation decision. The Tribunal notes that the relationship between the minor grandnieces and the Applicant is non-parental and there has already been a period of separation due to the Applicant’s time in gaol and immigration detention. The Tribunal accepts, in the Applicant’s favour, that the minor grandnieces are still young, and the Applicant may play a positive role in their lives until they turn 18.
The Tribunal also notes that the relationship between the Applicant and the grandchild is non-parental, and the relationship is currently extremely limited. There may be contact in the future and the Tribunal has taken this into account.
The Tribunal considers that this primary consideration as a whole weighs in favour of revoking the mandatory cancellation decision.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 of Direction 110 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
This primary consideration requires decision-makers to consider the expectations of the Australian community as articulated by the Australian Government, without independently assessing the community’s expectations in a particular case. This ‘deemed community expectation’ must be understood and applied normatively.[130]
[130] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [91].
The Applicant submits that minimal weight should be attributed to primary consideration five when one considers the significant time the Applicant has spent in Australia, her history of abuse and trauma, her age and her time in prison and rehabilitation.[131] It is argued that these are factors in the Applicant’s favour and should be considered when determining the weight to be attributed to this primary consideration. It is ultimately argued that this primary consideration should be given neutral weight given the exceptionally compelling circumstances, in line with community expectation.[132]
[131] Exhibit R1, 1945-6 [67].
[132] Ibid 1946 [68].
The Respondent submits that the Applicant has engaged in serious conduct in breach of the community’s expectations as she has committed a serious crime against a vulnerable member of the community.[133]
[133] Ibid 1928 [123].
The Respondent submits that the reality that the Applicant cannot be removed from Australia in the reasonably foreseeable future, and instead has been granted a BVR, does not disturb the expectation of the Australian community.[134] It is submitted that this factor weighs significantly in favour of exercising the discretion to refuse to grant the Applicant a Protection visa, regardless of whether she poses a measurable risk of causing physical harm to the Australian community.[135]
[134] Ibid [122] citing TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475 [116].
[135] Exhibit R1, 1928 [124].
The Tribunal has had regard to the expectations of the Australian community as articulated in the Direction. The Tribunal has attributed this primary consideration very heavy weight in favour of exercising the discretion to refuse to grant the Applicant a visa. In attributing such weight, the Tribunal has had regard to the nature of the offences the Applicant has committed, including her prior conduct. In her most recent and serious offence, she murdered a vulnerable and elderly member of the Australian community. The Applicant’s conduct raises serious character concerns. The Tribunal notes that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm. In this case her risk has been assessed at the high end of the medium range. She does pose a measurable risk, even if that risk can be ameliorated by the Applicant engaging in counselling and relying on protective factors such as her immediate family.
In conclusion, the Tribunal considers that this primary consideration weighs very heavily in favour of not revoking the cancellation decision.
OTHER CONSIDERATIONS
Other consideration 1: Legal consequences of the decision
Paragraph 9.1 of the Direction provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable for removal from Australia as soon as reasonably practicable in the circumstances specified in that section. This other consideration also deals with Australia’s non-refoulement obligations and the effect of non-citizens that are covered, or not covered, by a protection finding.
In this case, the Applicant is covered by a protection finding. This means that Australia’s protection obligations are engaged, and she cannot be removed to Türkiye under s 198 of the Act. Consequently, paragraph 9.1.1 of the Direction applies.
Following the decision in NZYQ v Minister for Immigration,Citizenship and Multicultural Affairs[136] the Applicant can no longer be held in indefinite detention for the purposes of removal, and she has been released into the community on a BVR. Therefore, the immediate legal consequence of exercising the discretion to refuse the Applicant a Protection visa is that the Applicant would not be removed from Australia, and she would remain in the community on a BVR.
[136] (2023) 97 ALJR 1005.
The Respondent accepts that the Applicant will face greater uncertainty and insecurity as the holder of a BVR rather than a permanent visa, and that this real consequence should be taken into account.[137]
[137] Exhibit R1, 1929 [132]; Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 [3].
The Respondent also submits however that the Tribunal should not speculate as to what may happen in the future or about future decision-making.[138] It is submitted that the Tribunal should not speculate as to whether the Applicant may ultimately be removed to a third country such as Nauru, whether she may make a written request to return to Türkiye or whether the Minister may exercise the power under s 196D(2).[139] Ultimately the Respondent submits that this other consideration weighs in the Applicant’s favour.[140]
[138] Exhibit R1, 1929 [133]; Ali v Minister for Immigration & Border Protection [2018] FCA 650 [33]; DOB18 v Minister for Home Affairs [2018] FCA 1999 [35].
[139] Exhibit R1, 1929 [133].
[140] Ibid 1930 [135[.
The Applicant identifies a comprehensive list of legal consequences that a non-revocation decision may have.[141] The Applicant submits as follows:[142]
The consequences of a decision to affirm in [the Applicant’s] case include removal (refoulement), detention, deprivation of redress for wrongs committed in removal or detention processes, ongoing risks to status and prolonged insecurity without adequate support, and, importantly, prevention of access to reunion with her [family].
Without doubt, there are also immediate psychological and health impacts arising from those legal consequences, causing fear, loss of autonomy and dignity, and insecurity.
[141] Ibid 1946-60.
[142] Ibid 1947 [78]-[79].
In regard to removal to Nauru or an unknown third country, the Applicant submits she is liable for removal from Australia under s 198 of the Act if the protection finding is quashed or set aside, or there is a decision that the protection finding would no longer be made, or at her written request.[143]
[143] Ibid 1947 [81].
The Applicant submits that the ‘policy intention and legislative architecture’ providing for the Applicant’s removal to a third country now exists, and consequently the prospect of removal to a third country is ‘real’.[144] The Applicant submits that nothing in the legislation protects the Applicant from detention, refoulement or other serious harm, or breaches of her human rights in any country in which she would be resettled.[145] It is submitted that the most likely third country accepting the Applicant for removal would be Nauru.[146] Removal to Nauru would leave the Applicant vulnerable to persecution. It is submitted that these consequences weigh heavily on the Applicant and affect her health.[147]
[144] Ibid 1948 [82]-[83].
[145] Ibid 1948 [86].
[146] Ibid 1949 [90].
[147] Ibid 1953 [105]-[106].
The Applicant submits there is a ‘real risk of constructive refoulment’ in circumstances where she would be exposed to considerable hardship, insecurity and fear as a BVR holder.[148] The Applicant submits she is subject to a minimum of twenty ‘onerous and restrictive conditions’ on her BVR that impair her ability to rebuild her life.[149] It is submitted she will have to live with ongoing fear with respect to ‘imminent and forcible removal’ which are likely to cause ‘serious present emotional and psychological consequences.’[150]
[148] Ibid 1954 [109].
[149] Ibid 1955 [115]-[117].
[150] Ibid 1956 [121].

The Tribunal has had regard to the legal consequences of a decision to refuse the Applicant her visa. The Applicant is subject to a protection finding which means that Australia’s non-refoulement obligations are engaged and she cannot be removed to Türkiye. Therefore, even if the Tribunal affirms the decision under review, she cannot be removed to that country.
The Tribunal has taken into account the uncertainty and insecurity that the Applicant faces as a holder of a BVR. The Tribunal has also had regard to the conditions under which a BVR holder is subject to. The Tribunal has considered that removal to a third country may occur, and that this uncertainty would weigh heavily on the Applicant. The Tribunal otherwise cannot speculate as to what possible future action could be taken against the Applicant. It is accepted that the mere possibility of removal would cause emotional distress and insecurity to the Applicant.
On balance, the Tribunal finds that this other consideration weighs moderately in favour of revoking the cancellation decision. The Tribunal has attributed this other consideration moderate weight because it accepts that the Applicant is subject to certain legal consequences as the holder of a BVR in terms of the conditions she must adhere to. The Tribunal also accepts that there is a degree of uncertainty and insecurity regarding the potential for future removal. Consequently, this other consideration weighs moderately in the Applicant’s favour.
Other consideration 2: Extent of impediments if removed
Paragraph 9.2 of the Direction states that decision-makers must consider 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). Decision-makers are to have regard to the non-citizen’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
The Applicant submits she has no contact with relatives in Türkiye, and if removed there, she will have no family support or assistance.[151] The Applicant submits she has not lived in Türkiye for over 50 years, does not speak the language and does not know the country.[152] She has diagnoses of PTSD and major depression, major health issues, and other health complications which is also submitted present an impediment to removal as she would not be able to receive the same level of treatment and care she is currently receiving in Australia.[153]
[151] Exhibit R1, 1961 [147].
[152] Ibid.
[153] Ibid 1961-2 [148]-[151].
The Respondent notes that the Applicant cannot be removed to Türkiye, and the Tribunal should not speculate as to whether she could be removed to a third country, such as Nauru. The Respondent submits that this other consideration does not arise in this case.[154]
[154] Ibid 1930 [136].
In this case, the Applicant cannot be removed to Türkiye. The Tribunal cannot speculate as to exactly what impediments may arise if she is removed to a third country, however, accepts as a general proposition, that impediments may be present. The Tribunal considers that this other consideration weighs only very slightly in favour of revoking the cancellation decision, given she cannot be removed to Türkiye, and her removal to a third country is, at this stage, speculative at best.
Other consideration 3: Impact on Australian business interests
Paragraph 9.3 of the Direction states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. There is no evidence that this other consideration is relevant to the Applicant’s circumstances. It is given no weight in the balancing exercise.
CONCLUSION
The Tribunal has found that the Applicant fails the character test as she has been sentenced to a term of imprisonment of 12 months or more. The remaining issue to be determined therefore is whether there is another reason to revoke the cancellation decision. The Tribunal has applied the terms of Direction 110 to the specific circumstances of the Applicant’s case.
The Tribunal has made a finding that the Applicant’s offending is very serious. It involved the murder of an elderly member of the Australian community in his own home. The circumstances of the offending were described by the sentencing court as ‘hideous and heinous’.[155] The Applicant engaged in such offending in breach of the Australian community’s expectations. Consequently, the Tribunal considered that primary consideration one and five weigh very heavily in favour of not revoking the mandatory cancellation decision. The Tribunal has concluded that primary considerations three and four, and other considerations one and two weigh in favour of revocation, but only moderately or very slightly. As permitted by paragraph 7(2) of the Direction, the Tribunal has given greater weight to primary consideration one. The Tribunal has also given greater weight to the primary considerations than the other considerations. The Tribunal has attributed greater weight to primary consideration one because of the nature of the Applicant’s offending. The Tribunal has considered the principles of Direction 110 and considers that this is such a case where the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.[156]
[155] Ibid 59 [29].
[156] Direction 110, 5.2(7).
The Tribunal has had regard to the principle that the safety of the Australian community is the highest priority of the Australian Government.[157] The Tribunal notes the principle that Australia may afford a higher level of tolerance of criminal and other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[158] However, the Tribunal has considered the Applicant’s offence of murder, and the circumstances in which it was committed, as very serious conduct. The Tribunal finds that the community’s tolerance of such conduct would be extremely low, even if that person has lived in Australia from a very young age. The Tribunal accepts that the Applicant had a horrendous childhood and adult life which was marred by extreme violence, abuse and substance abuse issues. However, such circumstances in no way excuse the serious offending that the Applicant has engaged in. 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, and will not cause or threaten harm to individuals or the Australian community.[159] The Tribunal considers that the Applicant has breached this expectation in the most egregious manner.
[157] Ibid 5.2(2).
[158] Ibid 5.2(6).
[159] Ibid 5.2(1).
Therefore, having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied that there is another reason under s 501CA(4)(b)(ii) to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

Dates of hearing: 22 and 23 July 2025

Counsel for the Applicant: Ms Ruth Hamnett

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Ms Laura Mills

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	22 and 23 July 2025
Counsel for the Applicant:	Ms Ruth Hamnett
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Ms Laura Mills
Solicitors for the Respondent:	Sparke Helmore Lawyers