The Tribunal has also taken into consideration the evidence and material the Applicant provided to the Department and contained in the Hearing Book.[1] The Applicant did not file any further material in support of his application with the Tribunal.

Arachichi v MICMSMA | Case summary | Zoe

CTHARTA

Arachichi v MICMSMA

austlii:cth/ARTA/2026/233

ARTA|2026-02-20

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General information, not legal advice.

At a glance

Source facts

Court

ARTA

Decision date

2026-02-20

Source

Original judgment source is linked above.

Judgment (76 paragraphs)

[1]

The Applicant is a 28-year-old New Zealand citizen. He arrived in Australia on 15 December 2004, aged 7, holding a Subclass 444 visa.
On 4 March 2025, the Applicant's Class TY Subclass 444 Special Category (Temporary) visa was mandatorily cancelled under s 501(3A) of the Act as a delegate was satisfied he did not pass the character test because he had a substantial criminal record and was serving a sentence of 12 months imprisonment, on a full-time basis, in Woodford Correctional Centre in Queensland (Qld) for an offence against a law of the Commonwealth, a State or a Territory.
On 6 March 2025, the Applicant made representations in accordance with an invitation given to him under s 501CA(3), requesting the cancellation decision be revoked.
On 27 November 2025, the delegate of the Respondent decided they were not satisfied the Applicant passed the character test (as defined by s 501) or that there was another reason why the cancellation decision should be revoked. Accordingly, the power in s 501CA(4) was not enlivened and the Applicant's Class TY Subclass 444 Special Category (Temporary) visa remained cancelled. The Applicant was notified of the decision on 28 November 2025.
The Applicant applied to the Tribunal for review of that decision on 29 November 2025.
A hearing was held on 2 and 3 February 2026 via Microsoft Teams. Mr Jonathan Djasmeini from Clayton Utz appeared for the Minister. The Applicant was self-represented. The Applicant's aunt (RV) and his mother (AC) appeared as witnesses. The Applicant was given the opportunity to give evidence, ask questions and make oral submissions.

[7]

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

[16]

Paragraph 8.1.1(1) of the Direction sets out the factors which the Tribunal must have regard to in considering the nature and seriousness of the Applicant's offending and other conduct to date and includes, in summary:
- violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children and acts of family violence are viewed by the Australian government and the Australian community very seriously. (8.1.1(1)(a))
- causing a person to enter into or being party to a forced marriage; crimes committed against vulnerable members of the community (such as the elderly and the disabled) or government representatives or officials; any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test; and crime committed while the non-citizen was in immigration detention are considered by the Australian government and the community to be serious conduct. (8.1.1(1)(b))
- the sentence imposed by the court for the crime(s). (8.1.1(1)(c))
- the impact on any victims of offending or other conduct and their family. (8.1.1(1)(d))
- the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness. (8.1.1(1)(e))
As noted above, the Applicant was convicted of several offences on 12 November 2024 which resulted in his imprisonment for a period of 12 months and led to the cancellation of his visa. This included:
- three counts of contravention of domestic violence order (aggravated) which he was sentenced to 9 months imprisonment.
- one count of contravention of domestic violence order (aggravated) which he was sentenced to a 12-month term of imprisonment.
- three counts of obstruct police officer and one count of assault police officer which he was sentenced to 3 months imprisonment.
- two counts of failure to appear in accordance with undertaking which he was sentenced to one-month imprisonment.
- unauthorised dealing with shop goods which he was not further punished.
- breach of orders imposed on 28 July 2022 for which the suspended sentence was fully invoked.[5]
In the sentencing remarks of Beenleigh Magistrates Court, Magistrate O'Driscoll [6] refers to an agreed schedule which outlined the Applicant's misconduct in relation to the charges before it, including the breach of the domestic violence [order] on 7 August 2022 in relation to a street disturbance when the Applicant went to pick up his son from his then partner, TP, and a verbal argument went on to the street and neighbours became involved. On the same day, the Applicant obstructed police by swiftly walking out the back of the dwelling, away from the officers and attempted to abscond police custody.[7] The Applicant failed to appear on 7 December 2022.[8] Another breach of domestic violence [order] on 10 December 2022, involving "another verbal argument, returned to a physical altercation" where TP tore the Applicant's shirt and continued to assault him, and the Applicant shaped up to TP in a motion to strike her. The Applicant then walked away towards the station and decamped from police arrival at the location. "Another obstruct police" on 9 March 2023 when the Applicant was told to stop by police, and he immediately turned and ran away. Police gave chase on foot and the Applicant was told multiple times to stop. He was later intercepted by police and physically restrained. "Another fail to appear" on 6 April 2023 and "breach of domestic violence" on 26 October 2023 that involved a verbal altercation, then physical confrontation during which the Applicant punched TP on the top of the head and dragged her off a chair resulting in members of the public calling police. Magistrate O'Driscoll noted it was a matter of some concern that this was another public incident, and that TP stated she felt stressed and began scratching at her neck and punching her left eye. There was another breach of domestic violence on 18 May which was captured by CCTV footage in respect to contact. "Then the Gillette Fusion razor blades from Woolworths".[9]
His Honour took into consideration a number of factors including the Applicant's confirmation that he was fully aware of the domestic violence protection order, his previous convictions in relation to past conduct of domestic violence, the Applicant's completion of two rehabilitation programs, his plea of guilty and the time served in pre-sentence custody. However, Magistrate O'Driscoll noted what was of greatest concern was the Applicant's criminal history, which by his count included 13 breaches of domestic violence order. This included the "first lot" in November 2021 for which the Applicant served 27 days imprisonment for multiple offences, 108 days of pre-sentence custody for another breach of domestic violence order and then a suspended order for imprisonment. While His Honour observed that the Applicant was a victim of domestic violence, as well as a perpetrator, he noted "the whole idea of the legislation is to prevent domestic violence in the future" and considered an order for imprisonment the only appropriate penalty.[10]
The Applicant confirmed in the hearing the history of his offending as detailed in the criminal check results report. When asked if he had anything to say in relation to these convictions, the Applicant stated that his actions at the time were unacceptable. The Applicant was taken to the sentencing remarks of Magistrate O'Driscoll, as outlined above, and he acknowledged they were the facts of his most recent convictions in November 2024 and had no further comment with respect to the sentencing remarks.
Records indicate the Applicant was released on parole on 12 November 2024.[11] On 8 January 2025, the Parole Board of Queensland confirmed the decision to indefinitely suspend the parole order in circumstances where the Applicant was not residing at his nominated address, had failed to report, was being questioned in relation to further contraventions of domestic violence order on 19 December 2024 and 25 December 2024, and had failed to be under the supervision of Queensland Corrective Services such that "the risk you pose to the community of reoffending is unacceptable and cannot be mitigated by supervision".[12] In the Queensland Corrective Services Advice to Parole Board Report, it was noted that the Applicant's prior management via inter-agency response team and previous assessments had indicated needs in the areas of domestic violence perpetrator and criminal attitudes. It had been identified the Applicant presents with a propensity for physical, verbal and emotional violence towards his intimate partner and the Applicant's use of violence appears to continue to elevate in the levels of both risk and harm. "His repeated and consistent demonstration of domestic violence behaviours to the aggrieved and failure to engage with the Agency to address his identified ongoing areas of need, is indicative of his ongoing anti-social cognitions and removes the ability to appropriately manage his risk in the community".[13]
According to Queensland Court Outcomes, the Applicant was convicted on 19 March 2025 of two counts of contravention of domestic violence order (aggravated offence) and sentenced to 4 months imprisonment (concurrent) on one count and was not further punished on the second count.[14] One charge arose from an incident which occurred on 19 December 2024 when police received a report regarding a disturbance. Police records provide that despite TP's denial that she had been involved in a disturbance with a male when police attended the scene and found her alone, CCTV footage showed a male and female (the Applicant and TP) engaged in a verbal disturbance. Police spoke to the informant who stated she had heard yelling, with the female (TP) screaming "call the cops, he put his hands on me". The informant was not willing to provide a statement in relation to the incident. Police also spoke to a witness who drove past the male and female having a verbal argument however noted "nil physical altercation sighted".[15] The second charge was related to an incident on 16 January 2025 when the Applicant and TP were located together by police and the Applicant attempted to evade police.[16]

[24]

Accordingly, in determining whether the Applicant committed an act of family violence, the Tribunal is required to consider whether the Applicant's conduct involved violent, threatening or other behaviour by the Applicant that coerced or controlled a member of his family, as defined by the Direction, or caused the family member to be fearful.
As discussed above, the Applicant was convicted of three counts of contravention of domestic violence order (aggravated) which he was sentenced to nine months imprisonment (concurrent) and one count of contravention of domestic violence order (aggravated) which he was sentenced to a 12-month term of imprisonment (concurrent) on 12 November 2024. The Tribunal accepts on the Applicant's evidence, and the material before it, that the Applicant had been in an intimate partner relationship with TP.
The sentencing remarks of Magistrate O'Driscoll sets out the circumstances of the incidents to which these charges relate and includes an incident on 10 December 2022 involving a verbal argument during which TP tore the Applicant's shirt and continued to assault him, and the Applicant "shaped up" to TP in a motion to strike her and an incident on 26 October 2023 that involved a verbal altercation, then physical confrontation during which the Applicant punched TP on the top of the head and dragged her off a chair.[25] The Sentencing Schedule notes that during this particular incident the Applicant then began walking away and TP followed him, punching him and ripping his shirt. This enraged the Applicant and TP felt threatened and ran across the road and sought refuge whilst asking members of the public to call the police. In TP's statement to police, she mentioned the Applicant had made several comments about "ending me" and she believed he had threatened to kill her. TP also stated that she was very fearful of the Applicant.[26]
Prior to this the Applicant was convicted of 11 counts of contravention of domestic violence order on 8 November 2021. One of these charges related to an incident on 23 July 2021 when the Applicant became verbally aggressive, grabbed TP by the throat with one hand when she sat on the edge of the bed, pushed TP to a laying position on her back and wrapped his other hand around her throat for approximately 5 seconds before releasing her. The Applicant punched TP in the face approximately twice before being told to leave by TP's mother.
In addition to the above, the Tribunal finds the Applicant has been convicted of contravening the domestic violence order on multiple other occasions (9 June 2021, 5 August 2021, 9 August 2021, 19 August 2021, 20 August 2021, 21 August 2021, 23 August 2021, 24 August 2021, 25 August 2021, 26 August 2021, 12 February 2022, 26 January 2022, 29 March 2022, 7 August 2022, 19 December 2024, 16 January 2025). The information before the Tribunal does not suggest that the Applicant's conduct on these occasions involved violence, threatening or other behaviour that coerced or controlled TP or caused TP to be fearful. For example, the Tribunal notes that the contraventions of 5, 9, 19, 20, 21, 23, 24, 25 and 26 August 2021 involved the Applicant making multiple calls to TP during which they had conversations which were described as being "general in nature", according to the sentencing scheduled (defence).[27] The Tribunal finds this aspect of the applicant's offending falls outside the scope of 8.1.1(1)(a)(iii).
The Tribunal observes from the sentencing remarks of the Beenleigh Magistrate's Court that the Applicant was fully aware of the conditions of the domestic violence order. The Applicant acknowledged the seriousness of his offending during the hearing and stated that his actions were unacceptable and placed others at risk and that he pleaded guilty and took full responsibility for his actions.
The Tribunal refers to the Advice to Parole Board Report which states that the Applicant's index offences relate to multiple contraventions of the active domestic violence order which police facts indicate included occasions when the Applicant physically and verbally assaulted TP, called her derogatory names, and punched her in the head with his fist as she tried to get away from him. It was also stated in the report that police information indicated the Applicant engaged in "verbal and physical violence behaviour" towards TP, inclusive of lethality factors such as strangulation and coercive control behaviours through the expression of jealousy and accusations of infidelity, particularly within the period that TP was pregnant with their child.[28]
The Tribunal is satisfied on the basis of the information before it with respect to TP's reaction to the Applicant's conduct during the incidents discussed above that the Applicant's behaviour caused TP to be fearful. Accordingly, the Tribunal is satisfied the Applicant has committed an act of family violence as defined by the Direction. The Australian Government and the Australian community view this type of conduct very seriously: paragraph 8.1.1(1)(a) of the Direction.

[40]

In the Applicant's statement to the Department, he acknowledged his past offending and referred to the deliberate and sustained steps he had taken to rehabilitate and address the causes of his behaviour as part of his commitment to change and ongoing efforts to rebuild his life and relationships. This included completing behavioural change and domestic violence courses which he asserted had given him the tools to understand and manage his emotions, take accountability for his choices, and build healthy, respectful relationships. The Applicant claimed that through this process he has gained a clear understanding of the damage he caused through his offending.[39] The Applicant provided consistent evidence during the hearing regarding the rehabilitation courses he has engaged in which he claims have helped him understand the root causes of his offending, the harm caused to the victims and the community, and the importance of removing himself from negative attitudes. He contended that he was no longer the person who committed those offences. He stated that he has taken steps to address the issues that contributed to his offending and has gained genuine insight into his behaviour and is committed to ensuring it never happens again. The Tribunal notes that in the letters from the Applicant's family members and friends, repeated references are made to the Applicant's positive qualities, expression of remorse for his actions, and his commitment to rehabilitation and personal growth, with the support of his family.
The Applicant identified his use of drugs as being a significant contributing factor to his offending.[40] He also claimed to have been homeless prior to entering into the relationship with his former partner TP and "living in constant instability". The Applicant stated that during this time, he used drugs as a way to cope with the stress, trauma and uncertainty of living on the street. Further, he did not possess the skills to communicate in a healthy way or manage conflict.[41] The Applicant also identified his relationship with TP as being a risk of him offending in the future and asserted that for this reason, "he had left the mother of his children for good".[42]
The Tribunal has taken into consideration the evidence of the programs the Applicant has completed whilst incarcerated and in immigration detention. This includes numerous drug and alcohol, anger and behaviour management, domestic violence, and positive parenting programs. It has also had regard to the reintegration plan the Applicant produced in the event that he is able to remain in Australia. As part of this plan, the Applicant asserted that he has a full-time position available to him which will provide him with a steady income enabling him to support himself and his family. He also stated that he will have stable accommodation with his parents and siblings, who are also committed to assisting him with his reintegration and rehabilitation. The Tribunal notes the Respondent's submission that this is a plan and there is no guarantee the Applicant will follow through with what he has proposed, particularly in light of his history of non-compliance with court orders and previous plans for rehabilitation. The Respondent also expressed a degree of scepticism with respect to the Applicant's potential engagement with services outlined in the reintegration plan, noting that based on his evidence during the hearing, most of these services were contacted following the cancellation of his visa. The Respondent submitted the Applicant's intention in contacting those services was to increase his prospect of obtaining his visa back. In response, the Applicant reiterated that there is a plan "in play" and regardless of what he has done in the past, he is willing and able to change, and his family intend to support him, as his mother and aunt confirmed during the hearing.
The Respondent observed that the Applicant's offending appears to be attributable to his drug use, his relationship with the mother of his children, and lack of skills to communicate in a healthy way and manage conflict. The Respondent accepted the Applicant had expressed some remorse and provided evidence of completing a number of rehabilitative courses including in relation to his drug use and domestic violence. However, the Respondent contended that there remains a risk of the Applicant reoffending for a number of reasons. The first being that whilst the Applicant suggests that he has left the mother of his children for good, the Applicant and TP have a consistent history of returning to their relationship and/or contact.
Secondly, the evidence suggests that the Applicant's drug use is long-standing, having commenced methamphetamine at the age of 9, and also having used cocaine. Any abstinence appears recent, with the last reported use around June 2024. It was submitted that any rehabilitation in that regard is recent, arising from a background of being incarcerated and in immigration detention, and as such is yet to be tested in the community. In these circumstances, it was submitted the Tribunal should be cautious in accepting the Applicant has rehabilitated.
Thirdly, any rehabilitation specifically geared towards the Applicant's family violence has either not been taken up, not been effective (with the Applicant offending further after completion) or is recent. The Respondent noted in the hearing that in the sentencing remarks of Magistrate O'Driscoll, reference was made to the Applicant having previously undertaken the Man-Up program, however following this, the Applicant continued to re-offend, insofar as to breach the conditions of his parole and be convicted of further offences of contravention of a domestic violence order.
Fourthly, while the Applicant suggests that his family and social links may be protective factors, the Respondent submitted that this should not be accepted. It was contended that rather than serving as a protective factor, the Applicant's children, access to them, and any co-parenting relationship appear to be clear triggers for his drug use and offending. It was also noted that at least some of the Applicant's family members appear to minimise his offending and blame the victim, raising concerns about the extent to which they would offer meaningful support. Further, despite the Applicant's parents and siblings relocating to Australia for the Applicant, he failed to draw on their support, and experienced extended periods of homelessness including most recently in December 2024, and despite his mother's effort to assist, the Applicant failed to comply with his parole requirements, breached his parole order, and was convicted of further breaches of the domestic violence order. It was submitted that whilst the Applicant's family might be identified as a protective factor, they have not been proven to be effective in the past.
The Respondent also noted that the Applicant continued to engage in violent behaviour whilst incarcerated. In the absence of further information or oral submissions, the Tribunal gives this no weight in assessing the likelihood of the Applicant engaging in further criminal or other serious conduct and risk to the Australian community.
The Respondent contended that the Applicant presents at least a medium risk of reoffending. However, even if the Tribunal finds the risk of reoffending low, it was submitted that it is entitled to conclude that a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious (citing Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30]). Given the seriousness of the crimes committed by the Applicant, the Respondent submits that the Tribunal should have a very low risk-tolerance for any risk of future harm and noting that the protection of the Australian community is generally to be given greater weight than other considerations, this consideration weighs heavily against revocation.
The Tribunal has taken into consideration the Information Notice issued by the Parole Board of Queensland dated 8 January 2025, which stated the Applicant was considered to pose an unacceptable risk of committing an offence and a serious risk of harm to someone else.[43] In the Advice to Parole Board Report dated 3 January 2025, the Applicant's history of non-engagement with services was detailed. It was noted that due to the Applicant's propensity for physical, verbal, and emotional violence towards his intimate partner, it was recommended he engage with a Men's Behavioural Change program. It was further recommended that case management focus on increasing the Applicant's coping mechanism and ensuring engagement with his DVO conditions whilst also maintaining contact with his son. However, despite ongoing efforts to engage the Applicant with YFS in the Responsible Men's Program, he failed to do so. The report noted that there was no evidence that the Applicant had addressed any of his identified needs during the period of supervision.[44] It is apparent on the information before the Tribunal that the Applicant has previously been provided with opportunities to address his behaviour and obtain assistance with issues which he has attributed to his offending, yet he has squandered those opportunities and continued to engage in conduct which he himself has identified as unacceptable.
Similarly, the Tribunal has had regard to the fact that the Applicant's previous participation in rehabilitation programs such as Man Up Champion Change Program and Fear-Less Triple P Online Positive Parenting Program, as was referred to in the sentencing remarks of Beenleigh Magistrate Court,[45] did not appear to result in any change to his behaviour, given that he proceeded to re-offend. In this respect, the Tribunal agrees with the Respondent's submission that the Applicant's participation in a rehabilitative program to address domestic violence had not been effective in the past.
The Tribunal has some concern as to whether the Applicant's efforts to address the various issues impacting his conduct will in fact reduce the risk of him reoffending or engaging in behaviour which would pose a risk to the community. The Tribunal notes the Applicant's evidence in the hearing that when he was on parole, he did not follow through with what he was required to do and that he takes full responsibility for that. With respect to him reoffending after he had engaged in rehabilitative programs such as Man Up, the Applicant explained that he continued to offend as there was a lot going on at the time and he started using drugs again. The Applicant's evidence during the hearing was that previously he had not addressed his drug problem because he was "lost", too ashamed to ask for help, and "too damaged".
The Tribunal acknowledges the submissions raised by the Respondent with respect to the Applicant's past compliance with the requirements of his parole order and his rehabilitative efforts, and the concern that the Applicant's commitment to his rehabilitation appears to have largely coincided with the cancellation of his visa. Although the Tribunal is satisfied the Applicant has engaged in multiple programs/courses covering the gambit of issues identified as factors relevant to his offending, having regard to the circumstances in which his engagement has occurred, that being whilst he has been incarcerated and in immigration detention, that his engagement (and abstinence) has been of a relatively short duration and within a controlled environment, and his history of non-compliance as discussed above, the Tribunal has some reservations as to the long term effectiveness of the Applicant's learnings and commitment to changing his life.
The Tribunal notes that the Applicant's family has been represented as a strong protective factor in relation to the Applicant reoffending. The Tribunal received evidence from the Applicant, his mother, and his aunt during the hearing about factors which contributed to his offending in the past such as his drug use and homelessness which coincided with his parents and siblings living in New Zealand and how their presence in Australia and support are central to him maintaining the positive changes that he has made in his life. The Tribunal accepts on the evidence before it, that the Applicant's family constitute a significant protective factor. However, it is somewhat concerned by what can be characterised as a lack of acknowledgement of the seriousness of his offending. In this respect, the Tribunal refers to the Applicant's mother's evidence during the hearing, when she was questioned about his criminal history, that she was not aware of the details surrounding the Applicant's numerous breaches of the domestic violence order, including how he had breached it. While the Tribunal accepts AC's assertions that she is not familiar with the court system, the Tribunal is troubled by AC's apparent lack of knowledge or appreciation of the Applicant's offending and has difficulty accepting that this establishes a sound basis upon which she can adequately support the Applicant with his rehabilitative needs. The Tribunal is mindful of the fact the Applicant's parents and siblings had returned to Australia from New Zealand sometime in 2023 to support the Applicant, however this did not negate those issues which impacted his behaviour or prevent him from offending.
The Tribunal has also taken into consideration the Applicant's relationship with TP in light of the Respondent's contention that there remains a risk of the Applicant reoffending in circumstances where despite the Applicant's assertions that he is no longer in a relationship with TP, and does not intend to resume a relationship with her, the Applicant and TP have a consistent history of returning to their relationship and/or contact. The material before it suggests that the Applicant's relationship with TP had been volatile from when it commenced in early 2021 (or the end of 2020).[46] As was noted in the sentencing remarks of Beenleigh Magistrates Court, the Applicant's relationship was described as toxic, with cross-orders in existence, so the Applicant was a victim of domestic violence, as well as a perpetrator.[47] Child safety documents refer to the orders being breached by both parties numerous times.[48] While the Applicant and his mother both asserted that the Applicant's relationship with TP, the mother of his children, has ended, the Tribunal observes that their separation was approximately a year ago, given the Applicant was convicted of one count of contravention of domestic violence order on 19 March 2025 because he was located with TP on 16 January 2025, and the Applicant was subsequently in custody prior to being imprisoned. In these circumstances, the Tribunal is unable to be satisfied that the Applicant's assurances regarding him not having any future relationship or contact with TP is persuasive.
Having regard to the above, the Tribunal considers the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate insofar as it relates to TP if they were to resume their relationship but otherwise low with respect to the risk to the Australian community generally.

[45]

The second primary consideration in Direction 110 relates to family violence and is said to reflect the Australian Government's serious concern 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 said to be proportionate to the seriousness of the family violence engaged in by a non-citizen.[50]
The consideration is relevant where the person has been convicted or otherwise had charges proven of family violence, or there is information or evidence from independent sources indicating the Applicant has committed family violence.[51]
In considering the seriousness of the family violence several factors must be taken into account including the frequency of the conduct, whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved, and reoffending after formal warnings about the consequences of further acts.[52]
'Family violence' is defined in paragraph 4 of the Direction as violent, threatening or other behaviour by a person to coerce or control a member of a person's family or cause them to be fearful. 'Member of a person's family' includes a person who has, or has had, an intimate personal relationship with the Applicant.[53]
The Tribunal finds on the material before it that the Applicant has been convicted of offences that involve family violence. This includes a number of incidents which were detailed in the sentencing remarks of Beenleigh Magistrate's Court such as on 10 December 2022 when the Applicant had his shirt torn and he was assaulted by TP and he "shaped up" in a motion to strike her, and on 26 October 2023 the Applicant punching TP on the top of her head and dragging her off a chair. The Applicant was first convicted of contravention of domestic violence order on 8 November 2021.[54] Of the 11 counts, this included an incident on 23 July 2021 when the Applicant grabbed TP, wrapped his hand around TP's throat for approximately 5 seconds, and punched her in the face twice.
For the reasons discussed above, the Tribunal is not taking into consideration several of the Applicant's breaches of the domestic violence order (9 June 2021, 5 August 2021, 9 August 2021, 19 August 2021, 20 August 2021, 21 August 2021, 23 August 2021, 24 August 2021, 25 August 2021, 26 August 2021, 12 February 2022, 26 January 2022, 29 March 2022, 7 August 2022, 19 December 2024, 16 January 2025) as it is not satisfied on the information before it that the Applicant's conduct on these occasions involved violence, threatening or other behaviour that coerced or controlled TP or caused TP to be fearful.
As discussed above, the Applicant's offending involved the Applicant engaging in verbal and physical violence towards TP including punching and strangulation, calling her derogatory names, and coercive control behaviours through the expression of jealousy and accusations of infidelity, all of which are behaviours which can constitute family violence.[55]
It accepts the Applicant's previous partner, TP, meets the definition of member of the person's family unit as she was in an intimate personal relationship with the Applicant at the time these offences occurred.
Having regard to the material before it, the Tribunal is satisfied the Applicant's behaviour caused TP to be fearful. It has taken into consideration the record of an interview dated 26 July 2021 conducted with TP after she presented to a hospital emergency department following the incident on 23 July 2021. Records indicate that TP reported the Applicant had strangled her for 5 seconds and had punched her on the bridge of her nose twice. She reported that the Applicant had physically assaulted her a week before by punching her on the lip and nose. TP described the ongoing violence perpetrated by the Applicant as psychological, physical, and controlling, and of being fearful of the Applicant.[56]
The Respondent referred to the submissions made in relation to the consideration 'protection of the Australian community', noting that there is somewhat of an overlap between the two considerations and contended that the Applicant's family violence conduct should be viewed very seriously, and this consideration weighs heavily against revocation.
The Applicant submitted that his actions "as a man" at that time is not who he is now, that numerous things contributed to his offending, and he has learned his lesson. He asserted that he has had time to reflect on his behaviour and expressed his commitment to not repeating the same mistakes in the future.
The Tribunal accepts that the Applicant has demonstrated acceptance of responsibility for his offending and has shown remorse for his actions. It also accepts that the Applicant has taken steps to address his behaviour and family violence offending by completing a number of rehabilitative courses. The Tribunal acknowledges the Respondent's submission that the rehabilitation undertaken by the Applicant is limited, recent, and yet to be tested in an unsupervised environment.
Despite the Applicant's somewhat recent efforts to change his behaviour and obtain an understanding of the damage caused by his actions, as he asserted, having regard to the frequency of the conduct, the cumulative impact of the repeated acts of violence against the Applicant's former partner, and particularly the Applicant's re-offending after being made aware by the court and police about the consequences of further acts of family violence, the Tribunal considers the Applicant's family violence conduct to be very serious. As such, the Tribunal finds this primary consideration weighs strongly against revocation.

[47]

The third primary consideration requires the Tribunal to consider the impact of the non-revocation 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 the right to remain in Australia indefinitely. It also requires the Tribunal to consider the strength, nature, and duration of any other ties the non-citizen has to the community.
The Applicant arrived in Australia in December 2004[57] as a 7-year-old. Apart from a period of 10 months between October 2015 and July 2016, and 9 months between February 2017 and October 2017,[58] the Applicant has resided in Australia for a period of around 20 years. During that time the Applicant completed Year 11 of high school, and he has worked in various positions including as a labourer, boilermaker, and "formalation".[59]
As the Applicant outlined in his personal circumstances form, his two children, mother, father, three brothers and sister reside in Australia.[60] The Applicant's mother's evidence in the hearing was that she and her husband both hold Special Category 444 visas, three of their children are Australian citizens, as is one of the Applicant's children. She stated that she and her husband are in the process of obtaining Australian citizenship. In addition to this, the Applicant confirmed in the hearing that he has 15 uncles and aunts, 20 cousins, and one grandparent living in Australia. A significant number of the Applicant's family members, including his parents and siblings, live in Queensland. Although the Tribunal finds the evidence before it regarding the status of all the Applicant's family members residing in Australia somewhat unclear, it is prepared to accept that those who are not Australian citizens such as several of the Applicant's siblings, have an indefinite right to remain in Australia, in similar circumstances to the Applicant.
Although 'immediate family' is not defined in the Direction or the Act, the definition of member of the immediate family in regulation 1.12AA[61] limits this to an adult's spouse or de facto partner and dependent children. The Applicant's immediate family members are his two minor children. As discussed later in this decision with respect to primary consideration 8.4, the evidence before the Tribunal indicates the Applicant has a very close and loving relationship with his children.
In the letter from the Applicant's mother, she states that the Applicant's sons desperately miss his love, guidance, and presence, and that his absence has already had an impact on their wellbeing during these formative years. She states that the Applicant's sons need the Applicant to be actively involved in their lives to provide them stability, nurturing, and cultural teachings. The Applicant's mother refers to the courses and programs the Applicant has completed which she states demonstrates his commitment to rehabilitation, personal growth, and change and to becoming a "responsible, law-abiding citizen". Further, the Applicant's mother speaks of the role she and the Applicant's immediate family have played in supporting the Applicant and their dedication to providing the Applicant guidance, encouragement, and stability to assist with his continued growth and rehabilitation.[62]
The Tribunal accepts that the Applicant has maintained very regular contact with his children whilst he has been incarcerated and even more so whilst in immigration detention, with face-to-face visits in addition to daily contact by phone and facetime. The Tribunal also accepts that prior to being detained, the Applicant had a presence in his children's life, although somewhat limited. The Tribunal accepts the Applicant's evidence with respect to his intention to fulfill a full parental role for his children in the future, with the support of his family. It therefore accepts that the applicant's children would be significantly negatively impacted if the applicant has to return to New Zealand.
The Tribunal also accepts the Applicant has a large extended family in Australia. The Tribunal has taken into consideration the numerous letters of support provided by various family members and friends of the Applicant, including several aunts and uncles.[63] Expressed in all the letters is the close relationship the Applicant has with his large extended family and their unwavering support for him. The Tribunal accepts on the evidence before it that the Applicant is a valued member of his extended family and that the repeated expression of care and concern for his wellbeing, and that of his children, is genuine. It also accepts the asserted hardship he and his family, particularly his children, will experience if he is removed from Australia, and the importance of his continued presence in their lives.
During the hearing, the Applicant's mother explained that the Applicant's extended family spend a lot of time together at each other's homes and that the "unity of our whole family" would be a good support for the Applicant. She confirmed that the Applicant's father has organised employment for the Applicant with the company he and the Applicant's uncle work for and that the Applicant will reside in the family home with her, his father and siblings. When asked about the emotional strategies and accountability the Applicant claimed in his reintegration plan she would provide him (noting her qualifications as a social worker), the Applicant's mother discussed the use of breathing techniques to assist the Applicant to stay calm and the importance of him being honest and expressing his feelings.
The Applicant's aunt also provided evidence during the hearing about the strong support system she claimed in her written evidence would continue to guide and uplift the Applicant.[64] The Applicant's aunt referred to the Applicant's relationship with his parents, which she stated has become much stronger since he was incarcerated, as well as with her and her husband (the Applicant's uncle). She also noted that he has several cousins and his maternal grandmother, who are all there for him, and discussed the close relationship the Applicant has with his extended family members. The Applicant's aunt explained that the Applicant has always had a support network, but his circumstances are considerably different to what they were previously (presumably around the time of his offending). When asked to explain how the Applicant's circumstance is different now to previously, the Applicant's aunt stated the Applicant was on drugs, homeless, and in an unstable toxic relationship, whereas now, to her knowledge, he was "off drugs", would not be homeless, and was no longer in a relationship with his ex-partner. The Applicant's aunt stated that the Applicant also has the support of people he has met through the men's group he participated in, who have encouraged him and assured him they will be there for him when he is released.
The Tribunal observes the Applicant's mother's evidence that she, the Applicant's father, and siblings relocated from New Zealand to Australia in 2023 specifically to support the Applicant and his two children. The Tribunal finds their actions consistent with the deep familial bond expressed not only by the Applicant's mother but also numerous members of the Applicant's extended family residing in Australia. The Tribunal notes the Respondent's suggestion that it is unclear whether any decision would result in separation of the family given the Applicant's mother's evidence that they had relocated to support the Applicant and his children. However, when asked about this during the hearing, the Applicant's mother's unequivocal evidence was that having uprooted their life in New Zealand to come to Australia, they have nothing there and this would not be an option. In light of this, the Tribunal accepts the Applicant's mother's evidence in the hearing that the Applicant's removal from Australia would devastate the Applicant's whole family. It finds the impact of the cancellation of the Applicant's visa on his extended family members substantial, particularly for his parents who relocated from New Zealand to Australia to support the Applicant and will potentially have continuing responsibility for the care of the Applicant's children for a significant period of time.
The Applicant claimed in his personal statement in support of merits review that he had helped the homeless since he was young and volunteered with "St Vinnies".[65] When asked about this during the hearing, the Applicant explained that when he was younger, he used to go to church with his grandmother and every Friday they would hand out food and blankets at the train station. He engaged in this activity weekly between the age of 9 and 15 or 16. He also spoke about a food bank operating on Sundays for people to purchase food for a reduced price.
The Respondent accepted that there is some evidence of the Applicant having made some positive contributions to the Australian community, in particular in relation to his employment. It was also accepted that the Applicant has a very extensive family residing in Australia who would be impacted by the decision not to revoke the cancellation of his visa. However, the Respondent submitted the pattern of the Applicant's offending is relevant to and significantly tempers the weight that should be given to his length of residence in Australia. While it was accepted this consideration weighs somewhat in favour of the cancellation of the Applicant's visa being revoked, the Respondent submitted it did not outweigh the countervailing considerations.
The Tribunal finds the Applicant has spent some 20 years living in Australia during which he has completed his education and has had employment in different roles with various companies. The Applicant has also provided evidence of contributions he has made to the community assisting the homeless and those less fortunate. The Tribunal accepts the Applicant has strong family and friendship ties to Australia. Considering all the evidence before it, the Tribunal places significant weight on the strength, nature and duration of the Applicant's ties to Australia in favour of revoking the decision to cancel his visa.

[50]

The Applicant has two minor children, Ta MC who was born on 30 September 2021[67] and Te MC who was born on 13 November 2022.[68] Both children were born in Australia. The Tribunal finds the interests of the children diverge only to the extent that there is an age difference of one year between the two boys.
The Applicant's children are currently living with the Applicant's parents. The Applicant's mother explained in the hearing that a guardianship order was made by the Brisbane Magistrates Court giving her and the Applicant's father responsibility for the care of both children, and this can be revoked by the Applicant returning to court at any time. The Applicant's expressed intention, as supported by his mother's evidence during the hearing, is to live with his children in his own home in the future.
The Applicant's mother was asked during the hearing about the impact the Applicant's absence, whilst he has been incarcerated and in detention, has had on the children. She stated that they are used to having physical contact with the Applicant. While they talk to the Applicant every day by phone or FaceTime, the children cry for their father and ask to have sleep overs with "daddy". The Applicant's mother explained that she does not bring the Applicant's children to see the Applicant in person often because it makes them uneasy when they must leave and they ask questions about why the Applicant is not coming back. The Applicant's mother was asked about the stability, nurturing, and cultural teachings she stated the children required from the Applicant. She spoke about the Applicant teaching them various things like tying their shoelaces, opening the door, and using their manners. The Applicant's mother explained that as their grandmother she can teach the children certain things but as their father the Applicant has a different role and responsibilities to his sons. She cannot teach them the Haka or anything to do with their culture as it is a male's role to teach them. When it was noted that her husband, the children's grandfather could fulfil this responsibility, the Applicant's mother responded that her husband is not their father and the children will want to learn from their parent. The Applicant's mother referred to the Applicant's 4-year-old son's repeated questions asking for his father to show and do things for him such as to take him to school and attend show and tell. She explained the Applicant's 4-year-old son is now old enough to identify that other children have their fathers doing these things for them and he asks for his father to do the same.
The Tribunal also refers to the Applicant's uncle's letter in which he talks about the Applicant having a close and loving bond with his children. It was noted by the Applicant's uncle that although the Applicant's parents currently care for his children, he remains a constant and important presence in their lives, providing them emotional stability and support that cannot be replaced and that his absence would create a significant void in their lives.[69]
The Respondent noted that prior to the Applicant's incarceration, his children were living with his parents, and he would see them every second day. Further, the Respondent referred to documents received under summons from Child Safety, which it submitted reveals that the Department was involved with the Applicant and TP's family from prior to the birth of their first child and that various concerns had been raised regarding both the Applicant and TP's ability and willingness to care for the children and their safety. The Tribunal notes that the documents received under summons from Child Safety are not contemporaneous but cover the period 2021 to March 2025. The Tribunal accepts that the material from child safety raises concerns regarding the Applicant's past conduct with respect to his children including their exposure to family violence perpetrated by the Applicant. However, it has also taken into consideration that during this period the Applicant appeared to continue to have contact with both children, although supervised. The Applicant confirmed during the hearing that prior to his incarceration his children were living with and being cared for by his parents, and he would see them every second day. He stated that he would drop them off at day care during the week.
When questioned in the hearing about a child support case note of a meeting held on 8 October 2024 in which it was stated that the Applicant was living in a household which was not suitable for the children to visit and did not appear to be motivated around being an active parent in the children's lives,[70] the Applicant explained that his situation was different at that time. He acknowledged that it was a result of his own doing. He stated as a result of his drug use and offending he had missed so much time with his children, but he wants to be a part of their lives. The Applicant's evidence was that he was previously not in the right state of mind to be the father his children needed and he is grateful that they still recognise him as their father and show him love. He wants to watch them grow, be an asset to the community, and not make the mistakes he has made. Whilst he has been in detention, he keeps in contact with his children every day through video calls, before they go to school and when they finish.
When asked about the extent of his involvement in their lives if he were to get his children back, the Applicant stated that he intends to do everything a parent is required to do, such as taking them to school, to doctor's appointments, and providing for them. The Applicant noted that he would be living with his parents and siblings so even without an order from the court, he will be a part of their lives and able to see them every day.
The Respondent submits that whether the Applicant remaining in Australia would be in the interests of his children is entirely unclear taking into consideration a number of circumstances including the Applicant's offending against their mother, TP, whilst she was pregnant and in front of them; the Applicant's parents are fulfilling the parental role; the Applicant has chosen not to meaningfully engage with his children or relevant rehabilitation; the Applicant can only be seen to play any positive role in their lives in the event that he ceases drug use and offending; and the Applicant can continue to have contact with the children by electronic means.
The Respondent contended that whilst the Applicant's mother's evidence in the hearing was that she and her husband cannot fulfil a parental role, she nonetheless accepted that is what she is currently doing, and it was submitted that there is no reason why they cannot continue to do so. Further, it was unclear as to the extent of what the Applicant's role would be with his children, noting the guardianship order currently in place subject to the Applicant applying to the court. The Respondent accepted the Applicant has a relationship with his children, and this relationship is continuing through the Applicant's contact with them by electronic means. The Respondent submitted this could continue even if the Applicant is returned to New Zealand.
The Applicant submits that he still has a relationship with his children and that they call him their father. He contended that the time he had with them, he tried to be there. The Applicant acknowledged his mistakes and stated that if his children do not have a father figure in their life, "they could take a wrong turn". He wants to be present for his children so he can guide them and be the father they need. When it was put to the Applicant that if he was returned to New Zealand he could continue to video call his children, as he has been doing since he was detained, the Applicant responded that that was not good enough for his children and he has to be physically there for them.
The Tribunal has considered the Respondent's submission that the Applicant has chosen not to meaningfully engage with his children or relevant rehabilitation. The Tribunal accepts that this may have been the case in the past, particularly prior to his incarceration. However, based on the evidence before it regarding the Applicant's regular contact with his children since his incarceration, the Tribunal does not consider the Applicant's past behaviour is indicative of his current and future relationship with his children. The Tribunal acknowledges the change in the Applicant's behaviour coincides with his incarceration; however, it accepts the Applicant's evidence that he has had the opportunity to reflect on his past actions and choices and his commitment to change in order to be a positive role model for his children and provide them with the best possible upbringing. The Tribunal finds this is supported by the Applicant's completion of various rehabilitation programs to address domestic violence, alcohol and substance abuse, and anger management, in addition to parenting courses.[71]
While the Tribunal acknowledges that the Applicant can continue to maintain regular contact with his two young children electronically from New Zealand, it accepts that this would be significantly different to being physically present and playing an active role in their lives. The Applicant has expressed that his highest priority is to be a part of his children's lives and to this end, he has sought to strengthen his skills and demonstrate his commitment to his children by participating in relevant rehabilitation programs. The Tribunal is also mindful of the Applicant's mother's evidence that although the children's mother has phone contact with them, she does not play an active role in their lives. In these circumstances, the Tribunal believes that it would be beneficial for the Applicant's children to have the Applicant located near them as opposed to participate in their life remotely.
Taking into consideration the Applicant's children are aged 4 and 3 years old and the evidence regarding the significance of his presence in their lives, the Tribunal is satisfied the Applicant has the potential to play a positive role in their future up until the age of 18, which is a substantial period of time. It accepts the Applicant has the strong protective factor of his family members to assist him with fulfilling his parental role and that his efforts in addressing issues which contributed to his offending through rehabilitation is motivated by his intention and strong desire to be a positive role model for his children.
The Tribunal considers the best interests of the Applicant's minor children provides substantial weight in favour of revoking the original decision.

[52]

During the hearing it became apparent that the Applicant has two minor cousins, MC who is currently 12 years of age and LC who is 10 years of age. The Applicant's aunt, RC, who is the mother of these two boys, stated during the hearing that the Applicant has a close bond with the boys, especially MC. RC explained that the Applicant had previously lived with her and her family approximately 3 or 4 years ago for approximately 6 months or so, prior to his parents relocating from New Zealand to Australia. They had also taken the Applicant in a few times but that was the longest period he lived with them. She stated that the Applicant was like part of their family and has more of a big brother relationship with her sons even though they are cousins. The Applicant would take them to the skate park and the footy field. One of her son's plays rugby league and the Applicant would go with him to training and watch him play on game day, cheering him on. RC stated that whilst the Applicant was incarcerated, she and her husband would speak to him by phone once or twice a month and the boys would be in the background "yelling out stuff, giving him updates, sending their love, asking if he is okay and stuff like that". She stated that she had taken her sons once to visit the Applicant in immigration detention as they were really missing him. The Applicant is in regular phone contact with both them and her and her husband (the Applicant's uncle). RC confirmed that if the Applicant was removed to New Zealand, her sons would be able to maintain contact with him by phone and FaceTime, as they currently do.
The Tribunal accepts RC's evidence that the Applicant has a good, and what appears to be, close relationship with his two minor cousins, MC and LC. It accepts that prior to his incarceration and detention, the Applicant regularly spent time with his cousins, including periods during which he had lived in the same household. The Tribunal is satisfied that the Applicant has continued to maintain his relationship with his cousins whilst he has been detained and that if the Applicant were released into the community he would remain closely connected to his cousins, considering the strong familial bonds which exists between his extended family members. While the Tribunal accepts the Respondent's submission that the Applicant does not fulfil a parental relationship with his two minor cousins, it is satisfied that they will be affected to some extent if the Applicant is removed from Australia and therefore considers it is in their best interests for the Applicant to remain in Australia.
Although the Applicant's relationship with his two brothers is non-parental, as discussed above the Applicant would be living in the family home if he is able to remain in Australia, in the same household as his brothers. In these circumstances, the Tribunal accepts the Applicant has the potential to be a positive role-model for his brothers. Similarly, as discussed above, it accepts the Applicant's aunt's evidence regarding the close nature of the Applicant's relationship with his cousins and the example he is to them. It therefore accepts that the Applicant's brothers and cousins would be adversely impacted if he was removed from Australia.
Overall, the Respondent submits that this consideration should be given some weight in favour of revocation but does not outweigh the countervailing considerations. Taking into account the above findings, particularly those related to the Applicant's two young children, the Tribunal gives this consideration significant weight towards revoking the cancellation of the Applicant's visa.

[53]

The fifth primary consideration relates to expectations of the Australian community. Paragraph 8.5 provides that the Australian community expects non-citizens to obey Australian laws while in Australia and that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow them to enter or remain in Australia.
Paragraph 8.5(2) indicates that 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 the person should not be granted or continue to hold a visa, and that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious characters concerns through their conduct, in Australia or elsewhere. The Direction identifies specific kinds of conduct considered to raise serious character concerns including acts of family violence and the commission of serious crimes (in this context 'serious crimes' includes crimes of a violent or sexual nature) against women, children and other vulnerable members of the community such as the elderly and disabled.
Paragraph 8.5(3) confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Direction 110 states that the primary consideration is about the expectations of the community, 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 a particular case.[72]
The Respondent contends that the Applicant's sustained and repeated offending is serious, such that the Australian community would expect that he should not continue to hold a visa. Further, the expectation of the Australian community applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community. Accordingly, the Respondent submits that the Tribunal should give this consideration significant weight against revocation.
While the Applicant acknowledged that he had made mistakes, the Applicant submitted that up until a certain point, 2021, he had been law abiding and had a history of ongoing employment and being an asset to the community.
The Tribunal accepts the Respondents contention that the Applicant's offending involves both crimes of a violent nature against women and acts of family violence, which is conduct in breach of the Australian community's expectations and is such that the Australian community would expect the Applicant should not continue to hold a visa.
The assessment of community expectations is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen.[73] As the High Court stated in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 with respect to the equivalent paragraph of an earlier version of the Direction:

[56]

Paragraph 9.1(1) of the Direction requires the Tribunal to be mindful that unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, in accordance with s 198 of the Act and in the meantime, detention under section 189 of the Act (noting also that section 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a non-citizen).
The Tribunal notes that in the Applicant's personal circumstances form, when asked if he had any concerns or fears about returning to his country of citizenship, the Applicant stated that he and his family left when he was so young because of the gang problem in New Zealand and his family having previously experienced such problems.[74] The Applicant has not elaborated any further about this issue or any fears of harm he may face as a result since, including during the hearing when given an opportunity to make submissions in relation to this consideration. The Respondent submitted that it did not consider the Applicant's assertions in his personal circumstances form to give rise to any non-refoulement claims as the evidence is unparticularised and lacking any meaningful detail. In any event, the Respondent submitted, that it is open to and appropriate for the Tribunal to defer any consideration of Australia's non-refoulement obligation in circumstances where it is open to the Applicant to apply for a protection visa. The Tribunal agrees with the Respondent's submission that the Applicant is not subject to a protection finding, nor has any non-refoulement claims been raised before the delegate or the Tribunal. The Tribunal is not satisfied on the evidence before it that the Applicant is at risk of persecution or other forms of serious harm on his return to New Zealand which would enliven Australia's non refoulement obligations.
The Tribunal accepts the Respondent's submission that the legal consequence of it affirming the decision under review would be that the Applicant will remain an unlawful non-citizen, be liable for removal from Australia as soon as reasonably practicable, will not be able to apply for another visa while in Australia (with the exception of a protection visa), and would be unable to satisfy the special return criteria in clause 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth).
The Tribunal has considered the Respondent's contention that in circumstances where the Applicant's removal and indefinite exclusion from Australia are intended purposes of the statutory scheme, and these consequences underlie and are subsumed in the Tribunal's evaluation of other considerations in Direction 110, the Tribunal should afford neutral weight to this consideration. The Respondent referred to the decision Stoneley v Minister for Immigration & Multicultural Affairs [2025] FCA 143 at [32]- [38]. The Tribunal notes that whilst the Court in Stonely noted that the legal consequences of a visa cancellation decision (that being that a person will be liable to be detained, removed from Australia, returned to their home country, prohibited from applying for another visa or subject to periods of exclusion and special return) follows as a matter of statutory construction and it may be stated that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen, the Court noted that Parliament must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in the person's visa being restored.[75] The Tribunal does not consider the decision is authority for the proposition that this consideration should be given neutral weight as a matter of course, as suggested by the Respondent.
Taking into consideration the particular circumstances of the Applicant, in that his removal from Australia will result in him being physically separated from his minor children on an ongoing and long-term basis, and the potential implications this may have on the Applicant's mental health and drug rehabilitation, as he alluded to as a possible adverse consequence of the stress associated with his removal to New Zealand, the Tribunal considers the legal consequences of the decision provides some weight in favour of revocation.

[57]

Paragraph 9.2 requires decision makers to 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. Living standards in this context are those that are generally available to citizens of that country.
When considering the impediments, the Tribunal must take into account the non-citizen's age and health, any substantial language or cultural barriers and any social, medical and/or economic support available in their home country.
The Applicant is a 28-year-old New Zealand citizen who first arrived in Australia in 2004, as a 7-year-old. The Applicant also confirmed in the hearing that he returned to New Zealand with his family in October 2015, coming back to Australia in July 2016. He departed Australia again in February 2017, returning to New Zealand where he remained until October 2017.
The Tribunal is satisfied the Applicant would not encounter any cultural or language barriers if he were removed to New Zealand given that he spent some of his formative years there and had returned there from Australia twice, staying for a period of 290 and 270 days, respectively.
The Tribunal accepts the Respondent's submission that the Applicant will have access to the same level of medical and economic support as what is generally available to other citizens in New Zealand.
The Respondent noted during the hearing that the Applicant has transferable skills he has acquired through his employment history in Australia. The Applicant confirmed in the hearing that he "could find a job anywhere". The Tribunal is therefore satisfied the Applicant would be able to find employment in New Zealand with his past work experience and skills.
The Respondent observed that the Applicant had demonstrated the ability to spend extended time outside of Australia, having departed for prolonged periods of time in 2016 and 2017. However, it is apparent from the evidence of the Applicant and his mother during the hearing, that the Applicant's parents and siblings were residing in New Zealand during those periods. During the hearing the Respondent questioned the Applicant's mother about the possibility of her and the Applicant's father and siblings relocating to New Zealand to support the Applicant if he was removed from Australia. This was in light of the Applicant's mother's evidence that the Applicant's family moved from New Zealand to Australia sometime in 2023, after returning there from Australia around 2016, to assist the Applicant and his children. The Applicant's mother provided clear evidence that this was not a viable option as they had sold everything they owned in New Zealand to move back to Australia to support the Applicant.
In the Applicant's request for revocation form, the Applicant stated that if he was returned to New Zealand he would face "homelessness, no family support, financially unstable, depression, losing my connection with my kid, cultural shock/change, less opportunities, suicidal".[76] In the hearing, the Applicant's evidence was that he would face significant issues if he was returned to New Zealand including isolation from his family. While the Applicant acknowledged that he could maintain contact with his family members living in Australia electronically, he contended this would be wholly insufficient.
When questioned in the hearing about whether he has any family in New Zealand, the Applicant confirmed that he does but indicated that he does not know any of them. He suggested that members of his family living in Australia "most probably" were in contact with his family members living in New Zealand. The Applicant's evidence, when asked if these family members could reach out to his family living in New Zealand to provide him with assistance if he was removed from Australia, was that even though they may share the same blood and last name, that did not mean they were family as he does not know them and therefore there is no connection. The Applicant also referred to the evidence provided by his aunt regarding the situation of his family members living in New Zealand, which included drug use, homelessness and imprisonment, and contended that this "landscape" is not conducive for him returning there to start a new life.
Further, the Applicant submitted that there is a possibility that he could re-experience homelessness and resume using drugs if he is removed to New Zealand. He contended that being removed from Australia would separate him from people central to his rehabilitation and stability and place him in an environment in which he would be isolated and unsupported, which he believes will significantly undermine the progress he has made.
The Tribunal is prepared to accept that the Applicant has no family members in New Zealand who he is in contact with. However, it does not accept his contention in the hearing that he is not familiar with members of his extended family residing in New Zealand given the periods of months he spent living in New Zealand in 2015-2016 and 2017. The Tribunal also refers to the Applicant's aunt's evidence in the hearing that she is in contact with some members of their extended family living in New Zealand and that she had recently travelled there after an uncle had passed away and is travelling there again in April 2026 for a holiday. The Tribunal finds the Applicant's aunt's evidence suggests that there is more of a connection between the Applicant's family members living in Australia and those in New Zealand than what was suggested by the Applicant.
The Applicant's aunt's evidence was that when she (and her family) travel to New Zealand they have no one they can stay with and have to organise their own accommodation. She claimed that a lot of the Applicant's family members are experiencing homelessness and living "off grid" so there was no one he could stay with. When asked if she was able to introduce the Applicant to family members in New Zealand who could potentially help him if he is removed there, the Applicant's aunt's evidence was that a lot of the Applicant's family members in New Zealand are either homeless, are addicts, or they are incarcerated.
There is nothing in the evidence before the Tribunal to suggest the Applicant has any medical issues. The Tribunal however accepts that the Applicant has been a drug user since a young age. His evidence in the hearing is that he has remained clean since he was incarcerated and has continued to participate in drug rehabilitation courses to ensure he continues to refrain from drug use. The Tribunal appreciates that as a recovering drug user, there is a possibility that the stress of removal to New Zealand, and the potential emotional, practical and financial difficulties resulting from this, particularly the Applicant's physical separation from his children, could adversely impact the Applicant's well-being, including his rehabilitation from drug use, and lead to him relapsing.
The Respondent accepted that the Applicant may face some emotional hardship due to being separated from his children and social ties. The Respondent contended that while the Applicant may face some obstacles returning to New Zealand, including some practical and financial difficulties in establishing himself, they are not insurmountable, and that this consideration weighs minimally against revoking the cancellation of the Applicant's visa.
The Tribunal accepts that the Applicant wishes to remain in Australia, where he has family and a support network, and more importantly his two young children. It accepts the Applicant's submission that his removal would devastate his family, especially his children, and would remove the protective factors that support his rehabilitation and result in him experiencing hardship and instability.
Taking into consideration all the factors above, the Tribunal gives this consideration some weight in favour of revoking the decision under review.

[59]

As discussed above, the Applicant does not pass the character test as defined by section 501 of the Act because he has a "substantial criminal record" as defined in section 501(7) of the Act. The Tribunal has to decide whether there is another reason why the cancellation should be revoked under s 501CA(4), having regard to Ministerial Direction 110. The weight to be given to each factor is a matter for the Tribunal to determine.[79]
The Tribunal has had regard to the primary and other considerations in the Direction, the guiding principles as set out in paragraph 5.2 of the Direction and the evidence and material before it. Relevantly, the Tribunal notes that the Direction states the safety of the Australian community is the highest priority and that non-citizens who engage or have engaged in criminal and other serious conduct, such as family violence, should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
For the reasons discussed above, the Tribunal has found the nature and seriousness of the Applicant's conduct to date to be very serious and that there is a low risk to the community generally should the Applicant commit further offences or engage in other serious conduct. For this reason, it considers the protection of the Australia community weighs heavily against revocation. It also has found that the family violence consideration and expectations of the community weigh strongly against revocation.
The Tribunal finds the strength, nature and duration of the Applicant's ties to Australia and the best interest of minor children considerations weighs very significantly in favour of revocation and should be given significant weight in the circumstances.
Of the other considerations, the legal consequences of the decision and extent of the impediments to the Applicant if removed from Australia provides some weight in favour of revocation. The impact on Australian business interests is neutral for the reasons provided.
While the Tribunal has found that there are a number of considerations which weigh in favour of the Applicant, it has taken into consideration the fact that the primary consideration in 8.1 is generally given greater weight than the other primary considerations. It has also had regard to the principles in 5.2, in particular 5.2(6) 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. However, it has balanced this against the principle in 5.2(8) that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not revoking the visa, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Nevertheless, the Tribunal finds the primary considerations of the best interest of minor children in Australia affected by the decision and the strength, nature and duration of the Applicant's ties to Australia outweigh those considerations that weigh against revocation.
Having weighed all the relevant considerations, for the reasons outlined above, the Tribunal is satisfied that there is another reason to revoke the original decision to cancel the Applicant's Subclass 444 visa.

Arachichi v MICMSMA

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Judgment (76 paragraphs)

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Legislation Cited (5)

Cases Cited (10)

SCSD and Minister for Immigration and Citizenship (Migration) [2026] ARTA 233 (20 February 2026)