The likelihood of the non-citizen engaging in further criminal or other serious conduct: The Tribunal's consideration

1. Assessing the likelihood or risk of Mr Ashley engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the testimony of Mr Ashley, Ms Messer and Mr Payton Ashley in particular, as well as the documentary evidence before it.
2. The Tribunal starts the evaluation by asking if there is 'a' risk.[42]
3. Both superior courts and the Tribunal have extensively considered the issues surrounding the assessment of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn.[43]
4. This assessment requires a 'future‑focused assessment'[44] of the risk an applicant poses should they reoffend, taking into consideration the nature of any harm and its probability. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[45] the High Court held that past actions are legitimate but qualified predictors of future behaviour. The majority observed that past events 'are not a certain guide' and, depending on circumstances, the probability of an event occurring could be so low as to be 'safely disregarded', or at the other extreme 'may border on certainty'.[46] The majority also observed there are several factors in making such evaluations, and that it is 'ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events'.[47]
5. The Tribunal must determine the realistic level of risk posed by Mr Ashley as at the time of its decision,[48] with the question being "how serious the risk [is], or whether the risk should be "tolerated"'[49], to the extent that it could be considered an unacceptable risk.[50]
6. When assessing whether Mr Ashley poses 'more than a minimal or trivial likelihood of risk,' the Tribunal should consider all 'available information and evidence' pertaining to his re-offending risk, and the 'rehabilitation achieved'. [51] In undertaking this task, the Tribunal understands that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. The degree of risk that may be acceptable to the community is "inversely related" to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.[52]
7. The Tribunal's consideration of the risk or likelihood of Mr Ashley engaging in further criminal or serious conduct will involve assessing the factors that:

(a) facilitate the risk; or, > > (b) conversely, hinder or retard the risk.

8. Adopting this approach enables the Tribunal to assess the risk and then address Her Honour Justice Mortimer'[53]s question in Murphy as to 'whether the risk should be "tolerated"' by the Australian community.

The factors that facilitate the risk of re-offending.

1. It is unclear, beyond acknowledging the consumption of alcohol[54], what drove Mr Ashley to commit the Index Offences. Mr Ashley's uncontested evidence is that he no longer has issues with alcohol consumption.

The factors that hinder or reduce the risk of re-offending - Rehabilitation, remorse and other factors

1. The Tribunal considers that Mr Ashley has demonstrated[55] and continues to demonstrate considerable insight, behavioural changes and remorse regarding his Index Offences and his Offending Record[56].
2. There are two examples in the evidence of this. The first is his testimony regarding his voluntary decision to remove himself from the family home amidst what appears to have been a toxic relationship with his wife in an effort to reduce the tensions and turmoil in the household that were affecting his children.
3. The second is his 2017 conviction. The Tribunal must accept the conviction. That said, Mr Ashley's testimony was that he clearly paid for the drinks he bought and the money he withdrew and then, when confronted by the police some five days later, chose to plead guilty to avoid a court appearance. The Tribunal is struck by his resigned law-abiding approach to this situation, his immediate and almost reflexive guilty plea and the fact that it was the service station worker, rather than Mr Ashley, who three times failed to successfully enter the cash withdrawal correctly and who appears to have failed to charge Mr Ashley for the fuel. Mr Ashley accepted his position and did not contest it. This is not the behaviour of a recidivist.
4. His uncontested testimony is that he has reduced his alcohol consumption to a shot of tequila every fortnight and an alcoholic drink at birthday parties.
5. Twenty-three years have elapsed since the Index Offences. Mr Ashley seems not to have taken part in any organised sexual offending rehabilitation programs for the reasons mentioned elsewhere in these reasons. His testimony eloquently showed his remorse, insight and resulting behavioural changes, as well as the evidence surrounding his involvement in large-scale youth taekwondo and cheerleading events without issue or concern being raised.
6. Even without formal sexual offending rehabilitation, this extended period of twenty-three years without significant offending is a substantial and near-dispositive risk management factor in its own right in view of Guo, especially when considered with the crimogenic fact that male offending declines with age.
7. Mr Ashley testified that he was not offered enrolment in formal rehabilitation courses while in jail and surmised that it was because he was only in jail for eight months.[57] He made it clear that he would have taken these courses if they had been offered to him.
8. The evidence shows that he was a low risk prisoner in jail with his one positive drug test later being clarified and justified as the consequence of prescribed medication.[58]
9. From the testimony, Mr Ashley's children and Ms Messer are his immediate family. They collectively are dynamic risk management or protective factors and also constitute the focus or lens that Mr Ashley applies to how he lives his life.
10. Considered together, the elapsed time, the lack of offending, Mr Ashley's age and his focus on his family provide an extensive set of static and dynamic risk factors that appear to have successfully hindered and prevented any serious offending since the Index Offences.

The Tribunal's Risk Analysis and Consideration

1. The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Ashley's offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
2. It has applied Guo, noting that how past events help predict the future depends on:

(c) how likely those events happened, > > (d) how often they occurred, > > (e) the conditions surrounding them, and > > (f) the chance that new events could change the usual pattern.

3. When assessing if Mr Ashley might re-offend, the Tribunal looked at several factors. It considered his Index Offences, the time between the Index Offences and this hearing and his behaviour during that time. It also considered his extensive expressions and demonstrations of remorse and insight starting from almost immediately after the Index Offences, and his subsequent behavioural changes over the period in question. It also assessed how unacceptable the consequences of his future actions could be for the Australian community.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: The Tribunal's finding

1. The Tribunal finds that a risk exists to the Australian community should Mr Ashley commit further offences or engage in other serious conduct.
2. The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers this re-offending risk to be negligible.
3. The consequences if Mr Ashley were to re-offend in the same manner as the Index Offence are substantial, and the Australian community's tolerance for such re-offending is likely negligible. The Tribunal finds that the combination of the negligible risk, Mr Ashley's protective factors and his awareness of the consequences of any future re-offending overall generate a level of risk that is tolerable.

Conclusion: Primary Consideration 1: Protection of the Australian community

1. The Tribunal finds that Mr Ashley' offending is very serious, that the consequences of any such future offending that repeated the Index Offence and related convictions could result in very serious harm to members of the Australian community and that the likelihood of his future reoffending is negligible.
2. The Tribunal finds that, in its totality, this consideration weighs moderately but not dispositively in favour of affirming the reviewable decision.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN**

1. Paragraph 8.2 emphasises the Government's serious concern about allowing non-citizens who commit family violence to enter or remain in Australia. It is enlivened by this matter's facts.
2. The High Court has held that paragraph 8.2 of a previous but comparable Ministerial Direction[59] 'involves a field of operation separate' to the other primary considerations.[60]
3. Decision-makers must consider several key factors in the Direction when assessing how serious the family violence is: [61]

(a) how often the violence occurred and whether it worsened over time;

(b) the frequency, trend and cumulative impact of repeated violent acts;

(c) what rehabilitation the person has achieved since their last violent act (including whether they take responsibility, understand how their behaviour affected victims and witnesses like children, and have worked to address underlying causes); and

(d) whether they re-offended after being formally warned by courts, police or other authorities about the consequences of further violence, including potential immigration consequences.

The Tribunal's consideration: Family violence committed by the non-citizen

1. Mr Ashley conceded that he had committed family violence as the Direction defines it.[62]
2. The parties differ on the weight they ascribe to this consideration.
3. As the Tribunal understands them, the substance of Dr Donnelly's contention on this Consideration are:[63]

(a) The only evidence suggesting family violence is a 25 June 2018 DVO in favour of Mr Ashley's ex-wife, Ms Hobbs, resulting from the 2018 coffee table incident. The order required Mr Ashley to maintain good behaviour and refrain from domestic violence. It ran for its full five-year term until 24 June 2023, with no breaches alleged and no subsequent orders sought. No other evidence of violence, threats, or intimidation exists in police, medical, or other records. > > (b) In regard to the 2018 coffee table incident, Mr Ashley states he returned home from work to find his wife yelling at their sons. When he did not respond, she threw coffee at him, and he knocked over a coffee table while trying to avoid the splash. Police were called by a neighbour, and Mr Ashley accepted the DVO without contesting his wife's version to avoid conflict and maintain access to his children. > > (c) The 2018 coffee table incident constitutes an isolated domestic dispute of minimal severity, characterised by the absence of physical assault, repetitive conduct, or behavioural escalation. The evidence demonstrates that this single occurrence, which took place approximately seven years ago, was appropriately managed through limited civil intervention measures and has not recurred during the intervening period.

4. Summarising Mr Sypott's contentions as the Tribunal understands them: [64]

(a) The Direction defines 'family violence' as violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful. > > (b) This primary consideration applies where there is information or evidence from independent and authoritative sources indicating the non-citizen has perpetrated family violence and has been afforded procedural fairness. The Respondent contends there is evidence available to the Tribunal that Mr Ashley has engaged in repeated conduct constituting family violence. > > (c) The Tribunal (differently constituted) has consistently described family violence as abhorrent, calling it "a corrosive blight on the Australian community" that is "plainly abhorrent" and "warps and destroys the healthy bonds that should exist between partners and within families." > > (d) The available evidence demonstrates a pattern of concerning behaviour. In 2004, prison records expressed concern about Mr Ashley's treatment of his partner by phone, noting he "swears and tells her what to do", was "very aggressive on phone," and "very argumentative and foul mouthed when making phone calls."[65] In 2007, Ms Hobbs applied for and was granted a private domestic violence order against Mr Ashley.[66] On 25 June 2018, a five year DVO was made protecting Ms Hobbs. > > (e) There is inconsistent evidence regarding the basis for the 2018 DVO and whether Ms Hobbs was a victim or aggressor. Mr Ashley suggests police issued the order upon seeing house damage and he did not dispute his wife's version of events. However, police records indicate that during an argument about daily matters, after coffee splashed on Mr Ashley's leg, he turned around, began yelling at Ms Hobbs, and flipped over the coffee table, causing spillage and breakage. Police arrived and both parties provided the same version of events. Police observed wet floors and damage that Mr Ashley had cleaned up. When questioned, he admitted his behaviour was unacceptable and acknowledged having regular verbal arguments with Ms Hobbs. > > (f) Since Mr Ashley was served with the protection order application and had the opportunity to dispute both the underlying facts and the application itself, the Tribunal should accept the facts set out in the police records over his more recent evidence. > > (g) The Respondent argues this primary consideration should weigh heavily in favour of cancelling Mr Ashley's visa.

5. Mr Ashley, Mr Ashley Jr and Mr Payton Ashley testified about the 2018 coffee table incident. Payton's account appears the most consistent and objective of the three witnesses (all of which differ in some respects from the police account[67]).
6. Payton's account suggests that Ms Hobbs may have flipped the coffee table towards Mr Ashley causing the coffee cup on it to fly towards Mr Ashley and deposit its contents on him.
7. Mr Sypott raised concerns about the nature of Payton's evidence on the basis of Payton's Attention Deficit Hyperactivity Disorder (ADHD) diagnosis. The Tribunal acknowledges these concerns but notes the research that supports the counter-argument that people with ADHD can also display hyperfocus which may enhance their recall of details.[68] The Tribunal considers and finds that of the four accounts of the coffee table incident (the police report, Mr Ashley's testimony, Mr Ashley Jr's testimony and Payton's testimony), Payton's is internally consistent, aligned with the established facts of the incident and demonstrated, even after cross-examination, that Payton was well-placed to observe what happened.
8. The Tribunal finds that, in its totality, the testimony and evidence of the 2018 coffee table incident is qualified and contested but tends to support Dr Donnelly's contentions.
9. The Tribunal finds that the 2004 prison evidence of Mr Ashley's verbal conduct towards Ms Hobbs constitutes information from an independent and authoritative source[69], but that prior to this hearing Mr Ashley had not been afforded procedural fairness in terms of formally learning of and addressing this information. There is no evidence of this verbal conduct's impact on Ms Hobbs.
10. The Tribunal finds in relation to the 2007 DVO that its existence goes to support arguments regarding the frequency of Mr Ashley's family violence offending and its cumulative impact. There is insufficient evidence to evaluate this DVO beyond that finding.
11. Mr Ashley has not committed any further family violence acts since 2018. He appears to the Tribunal to have accepted a disproportionate share of responsibility for the family violence in the Ashley-Hobbs household, attesting to his enhanced insight on family violence. Details of his rehabilitation are set out above. None of his family violence conduct involves physical violence. His actions in leaving the household and separating from Ms Hobbs demonstrate significant insight and understanding into the impact of his behaviour, at significant personal emotional cost.
12. In relation to Dr Donnelly's argument on proportionality, while family violence concerns are appropriately accorded serious consideration in visa cancellation decisions, the evidence in this matter describes an isolated domestic dispute of limited severity, characterised by the absence of any physical assaults, repetitive conduct, or behavioural escalation.
13. The proportionality principle, as established in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 goes to administrative discretion, not factual findings. It requires that administrative decisions demonstrate "evident and intelligible justification" and avoid giving "excessive weight - more than was reasonably necessary" to particular factors, particularly where this would constitute "an obviously disproportionate response."
14. The 2018 incident was addressed through civil remedial measures without subsequent recurrence. Under the Direction's framework, while temporal factors have reduced the mitigating effect compared to previous directions, courts maintain that characterising conduct must be proportionately to actual harm caused, as established in NBMZ v Minister for Immigration and Border Protection[70], where Justice Buchanan found characterisations must not be "out of all proportion" or "exaggerated and unbalanced."[71]
15. Consistent with the Direction's requirement for individualised proportionality assessments, it is valid to assess that this factor should be accorded diminished weight when determining whether visa cancellation is justified. The Direction establishes a hierarchy of family violence seriousness, distinguishing between conduct involving physical violence, weapons, or patterns of escalation versus isolated, non-physical domestic disputes.
16. While maintaining a "zero-tolerance approach to family violence," the Direction requires assessment of the specific nature and seriousness of conduct rather than the categorical treatment of all family violence as equally serious.
17. The application of proportionality principles in this matter involves a discretionary consideration of the actual risk to the Australian community's safety rather than speculative assessments, particularly where the conduct represents an isolated incident of limited severity, managed through appropriate civil intervention and without subsequent recurrence over a substantial (2018 - 2025) period.

1. The Tribunal finds that Mr Ashley has engaged in family violence. His actions were never physically violent, have not happened again and the evidence supports the Tribunal taking a nuanced and moderate view of his behaviour.

Conclusion: Primary Consideration 2: Family Violence committed by the non-citizen

1. The Tribunal finds that this consideration weighs only moderately in favour of affirming the reviewable decision.

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

1. This consideration requires the Tribunal must consider how its visa decision will affect Mr Ashley's immediate family members who are Australian citizens, permanent residents, or have the right to stay in Australia indefinitely. It must also assess the strength and nature of his other ties to the Australian community.
2. When evaluating his community ties, the Tribunal looks at how long he has lived in Australia (especially if he arrived as a young child). It should give less weight to this time if he started offending soon after arrival and more weight to periods where he contributed positively to the community. The Tribunal also considers the strength, duration and nature of his family or social connections with Australian citizens, permanent residents, and others who have the right to remain in Australia permanently.
3. Summarising Dr Donnelly's contentions on this Primary Consideration as the Tribunal reads them:[72]

(a) Mr Ashley arrived in Australia nearly three decades ago as a twenty two year old. His twenty nine years of uninterrupted residence means that every meaningful aspect of his adult life has developed in Australia, directly engaging the Direction's guiding principle of extended tolerance for long-term residents.

(b) His immediate family consists of his de facto partner Rebecca Messer and five children: Dakota, George, Payton, Child A and Child B, all of whom are Australian citizens or permanent residents. His siblings William, Thomas, Richard, Thelea and Betina also live in Australia. His estranged wife Ms Hobbs attests that he has always prioritised family welfare, bearing primary financial responsibility while sharing daily parenting duties, with the family depending on him for emotional support, stability and income.

(c) Dakota and Payton have ADHD. Payton also has a major depressive disorder. They rely on their father's practical guidance for medical treatment, employment and daily challenges. Mr Ashley has fostered productive pathways for his children: Dakota is apprenticed in the mechanical trade, George plans to join the Australian Army, and Payton is building a culinary career. His steady guidance and income have been essential to these developments.

(d) Beyond his immediate family, Mr Ashley maintains close relationships with his in-laws, Linda and Ian Hobbs, providing daily assistance to Mrs Hobbs who has limited mobility. He also stays connected with a large network of aunts, uncles, cousins, nieces and nephews. His de facto partner Ms Messer describes their four year relationship, noting how he left a violent marriage and rebuilt his life. She portrays him as reformed and hardworking, recently appointed as a Health and Safety Officer, acknowledging his past crimes while emphasising his twenty three years without reoffending.

(e) Mr Ashley has worked continuously, spending over three years with Volvo Trucks, and volunteers at his children's taekwondo and cheerleading events. After twenty nine years of residence and service, his community roots are described as deep and irreplaceable.

(f) The evidence demonstrates that cancelling his Visa would separate him from his long-term de facto partner, deprive five children (including two with documented medical conditions) of their primary carer and breadwinner, disrupt his elderly in-laws who depend on his daily support, and remove a positively engaged community member and employee.

(g) Given the strength, nature and duration of his ties, combined with the severe hardship that would affect his immediate and extended family, this primary consideration strongly argues against cancellation. The submission contends that substantial weight should be given to allowing Mr Ashley to remain, considering his nearly three-decade contribution to Australian family life, workforce participation and community service.

1. Summarising Mr Sypott's contentions on this consideration as the Tribunal understands them:[73]

(a) Mr Ashley's immediate family in Australia comprises his five children, three brothers, two sisters and his current partner, Rebecca Messer. Evidence suggests his sons suffer from ADHD and depression, and that cancelling the Visa would detrimentally impact their health. His sons have each provided supportive statements describing his hard work, care and the loss his absence would cause the family. However, these statements are in almost identical terms. > > (b) Although Ms Hobbs (his estranged wife), his two daughters, and Ms Hobbs' parents provided statements supporting Mr Ashley, these should be viewed with significant caution. The statements are dated, appear to have been drafted before Ms Hobbs and Ms Hobbs separated, and do not address the evidence of his family violence. > > (c) Mr Ashley has resided in Australia for approximately thirty years, having last arrived when he was twenty three. He previously spent about eight and half years in Australia as a child between 1979 and 1987, meaning he was present during a portion of his formative years. He states he no longer volunteers at sporting events although he previously did so and has contributed to the Australian community through employment and tax payments, which he expects to continue. However, he has only provided employment history details from 2015 onwards. > > (d) He has numerous extended family members in Australia, including his father-in-law, mother-in-law, ten uncles and/or aunts, and 16 nieces and/or nephews.[74] However, he does not appear to have significant contact with his uncles, aunts, nieces or nephews, and it is unclear whether Ms Hobbs' parents remain supportive of him. > > (e) The Respondent accepts that this consideration weighs in Mr Ashley's favour but contends it should not attract significant weight and does not outweigh the heavy weight of the other primary considerations: protection of the Australian community, family violence, and expectations of the Australian community.

2. The Tribunal now considers these contentions and the evidence, including the letters of support referenced above, in terms of each subparagraph of Paragraph 8.3. In doing so it benefited from an agreed schedule identifying Mr Ashley's immediate family (including any minor children), extended family and social and work contacts. This people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[75]

1. Mr Ashley's immediate family are in Australia, as identified in the contentions above as Ms Messer, his children and his siblings. The Tribunal considers that Mr Ashley's immediate family are either Australian citizens, permanent residents or have the right to remain in Australia indefinitely.
2. The written and oral evidence show that there are especially close ties between Mr Ashley, his children and Ms Messer. Affirming the reviewable decision would most likely create sustained emotional, financial and practical hardship and adverse psychological impacts on Mr Ashley's children and the balance of his immediate family, as well as a loss of close physical support.
3. Ms Messer and Mr Ashley Jr gave testimony that they would likely have to move out of their current accommodation that they share with Mr Ashley as it is his financial contribution that enables them to pay the rent.

1. Mr Ashley came to Australia at five. He went back to New Zealand at thirteen.[76] He returned to Australia when he was twenty-two in 1995. The Tribunal finds that he spent a significant portion of his formative years in Australia. His initial Australian offending was in 2000, some five years after this return. The Tribunal finds that he did not begin offending soon after arriving in Australia.
2. The evidence and testimony support the Tribunal finding that Mr Ashley has worked hard and extensively. He was recently chosen by fellow Volvo workers as a health and safety representative. He also supported his children in state and national competitions for taekwondo and cheerleading, volunteering as a marshal at some of these events. The Tribunal finds that he has materially contributed to the Australian community.

1. In evaluating references from family members and friends, the Tribunal is conscious that these can often frame an applicant's offending in the best possible light. The Tribunal exercises care in evaluating the weight placed on references from family members and friends.
2. Despite this qualification, the Tribunal acknowledges Mr Ashley's in-laws' evidence about the role he plays in his children's lives.

1. Considering the evidence and findings above, the Tribunal assesses that Mr Ashley enjoys substantial and enduring ties to Australia through his immediate family, his work and his volunteering.

1. Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
2. Affirming the reviewable decision would greatly affect his immediate family and his friends. His positive contributions to his immediate family and the Australian community also give this finding very strong and substantive weight in favour of setting the reviewable decision aside.

Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.

1. The Tribunal gives this consideration very strong and substantive weight towards setting the reviewable decision aside.

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

1. Mr Ashely's situation enlivens this Primary Consideration is enlivened as he has two daughters - Child A and Child B - under the age of eighteen.
2. Summarising Dr Donnelly's arguments as it understands them:[77]

(a) Under the Direction, decision-makers must prioritise the welfare of any minor child affected by the visa's cancellation. This obligation aligns with Australia's commitments under the Convention on the Rights of the Child, which protects each child's right to family unity and ongoing parental care. > > (b) Mr Ashley's minor children are his daughters Child A, aged fifteen, and Child B, aged fourteen. Both girls have lived their entire lives in Australia and are currently navigating the middle-to-late stages of schooling, where stability, parental guidance and emotional security are essential. > > (c) Correspondence from Child A and Child B dated 18 January 2023[78] reveals their close bond with their father. They describe him as the anchor of their daily routine, driving them to school and extracurricular activities, supporting them at sporting events, helping with homework, and providing constant reassurance during challenges. Their letters express unconditional love and gratitude, emphasising that his presence provides safety, belonging and motivation to excel academically and socially. > > (d) If Mr Ashley is removed, the consequences for his daughters would be severe. The girls themselves anticipate profound emotional distress and feelings of abandonment, along with likely declines in academic performance and participation in sports and other activities. The loss of their primary role model and mentor would be equally significant, as no alternative caregiver could replicate the support, encouragement and stability he provides. Given both daughters are at formative ages, depriving them of their father's daily involvement risks long-term developmental and psychological harm. > > (e) Weighing these considerations as required by the Direction, the evidence points decisively toward preserving the family unit in Australia. The best interests of Child A and Child B are served only if their father remains with them. This primary consideration therefore carries substantial and decisive weight against any proposal to cancel Mr Ashley's visa under s 501(2).

3. Summarising Mr Sypott's arguments as the Tribunal understands them:[79]

(a) Mr Ashley has identified two minor children who may be affected: Child A and Child B.

(b) Mr Ashley originally stated he had a very good relationship with his children and provided daily emotional, financial and practical support, including taking them to cheerleading commitments. He suggested his removal would have significant adverse consequences for his family. However, more recently he claimed his relationship with his daughters was difficult "due to my ex wife and her whims" and that he was considering seeking full-time care of his daughters as he believed they may have been verbally and emotionally abused. Mr Ashley stated he usually had contact with his daughters every second weekend.

(c) The suggestion that Ms Hobbs is not providing adequate parental care for Child A and Child B appears to be echoed in a statement from Mr Ashley Jr. However, no such references appear in Child A and Child B's own statements or in their grandparents' statements. It remains unclear whether any legal proceedings were instituted or are under consideration regarding care arrangements for the children or what the children's current wishes are.

(d) The Minister contends that several factors under Paragraph 8.4(4) apply: Mr Ashley appears to have had periods of absence or reduced contact in the children's lives; given the nature of his previous offending, his conduct may negatively affect the children; and Ms Hobbs currently fulfils a parental role for the children.

(e) To the extent the Tribunal may consider this consideration weighs against exercising discretion to refuse the visa, the Respondent contends it does so only to a limited extent.

1. When deciding whether to cancel a visa, the Tribunal must consider how this will affect any relevant minor children. If there are multiple children involved, each child's situation must be looked at separately since their circumstances may be different.[80]
2. The Tribunal must examine eight key areas: how close the relationship is between the child and the person facing visa cancellation (giving less importance to relationships that aren't parent-child, where there is no real relationship, or where contact has been limited or restricted by courts); whether the person is likely to be a good parent in the future, considering how long until the child turns 18 and any court orders about custody or visitation; how the person's past behaviour and likely future behaviour might affect the child; what would happen to the child if they were separated from this person, including whether they could still stay in touch in other ways; whether other people are already acting as parents to the child; what the child thinks about the situation (giving more weight to older, more mature children's opinions); any evidence that the person has committed family violence against the child or abused or neglected them in any way; and any evidence that the child has been hurt physically or emotionally because of the person's actions.[81]
3. The assessment mandates consideration of eight specified factors: the nature and duration of the relationship between the child and the non-citizen (with reduced weight accorded to non-parental relationships, absence of existing relationships, or limited meaningful contact including court-restricted access); the extent to which the non-citizen is likely to fulfill a positive parental role in future, considering the time remaining until the child reaches eighteen years and any existing court orders regarding parental access and care arrangements; the impact of the non-citizen's prior and likely future conduct on the child, particularly where such conduct may have negative consequences; the probable effects of separation from the non-citizen, taking into account alternative means of maintaining contact; the presence of other persons already fulfilling parental roles; any known views expressed by the child, weighted according to their age and maturity; evidence of family violence perpetration, abuse, or neglect by the non-citizen toward the child; and evidence of physical or emotional trauma suffered by the child as a result of the non-citizen's conduct.
4. This structured approach ensures that children's interests receive appropriate consideration while recognising that such interests may be compromised where the non-citizen's conduct poses risks to the child's welfare or safety.
5. The Tribunal finds:

(a) The minor children are between three and four years away from adulthood. > > (b) The evidence suggests that until recently the relationship between Mr Ashley and each of the two children was close but has become more distant in recent times due to the state of the relationship between Mr Ashley and Ms Hobbs and the limitations imposed by all communications outside of visits by Mr Ashley being restricted to Ms Hobb's mobile telephone. > > (c) Subject to this constraint, the evidence suggests that based on past events, Mr Ashley is likely to play a significant and positive parental and paternal role in the future for each of Child A and Child B. > > (d) There is no evidence showing that Mr Ashley's past conduct and any likely future conduct has had an impact on either of Child A or Child B, whether negative or positive. > > (e) The 2023 statements by each of Child A and Child B suggest that the likely effect of any separation if Mr Ashley is removed from Australia would be negative and deny both daughters the benefit of direct contact with their male parent. Remote communications would appear to be a poor substitute here. > > (f) Ms Hobbs fulfils the primary parental role, but Mr Ashley clearly has a role in view of his current fortnightly visits. > > (g) The views of Child A and Child before the Tribunal are contained in their 2023 support letters.[82] > > (h) There is no evidence before the Tribunal to establish that either child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by Mr Ashley, or has otherwise been abused or neglected by Mr Ashley in any way, whether physically, sexually or mentally; or has suffered or experienced any physical or emotional trauma arising from Mr Ashley's conduct

6. On balance, each child's interests would be best served by setting the reviewable decision aside.

Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision

1. This consideration supports setting the reviewable decision aside and carries moderate weight.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY**

1. Paragraph 8.5(1) is a deeming provision. It relies on Paragraph 8.5(4) and sets a community standard for the outcomes of serious behaviour or an unacceptable risk of such behaviour.
2. Paragraph 8.5(2) extends the threshold to certain specified types of conduct.
3. Paragraph 8.5(3) states that the expectations of the Australian community apply even if the non-citizen does not pose a clear risk of physical harm.
4. Paragraph 8.5(4) supports the Full Court of the Australian Federal Court's reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 ("FYBR").
5. FYBR explains that the 'deemed community expectation' usually leads to visa cancellation. However, it also states that the decision-maker must decide if acting on this expectation is appropriate in each case.[83] [84]
6. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 417 ALR 36, the High Court clarified how the Tribunal is to apply this Primary Consideration. The Tribunal is not required to attribute knowledge of an applicant's personal circumstances to the hypothetical Australian community. Instead, it should rely on Australian Government's views as articulated in the Direction without independently assessing community expectations in the particular case. The Court emphasised that decision-makers should not attempt to infer what community expectations would be with knowledge of the delegate's understanding of an applicant's personal circumstances but rather should apply the relevant norm described as community expectations as set out in the Government's stated views, which is then to be weighed against other relevant matters as required by the Direction's balancing framework.
7. Observing Paragraph 8.5's norm, the Tribunal has also considered the guidance informed by the principles set out in Paragraphs 5.2(1) to (8) of the Direction.
8. Subparagraph 5.2(4) uses the term 'limited stay visa', which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, s 30 of the Act contemplates both (1) 'permanent' visas, which permit a right to remain 'indefinitely'; and (2) 'temporary visas', which provide a conditional right to remain. 'Limited stay,' as used in the Direction, seems to be a reference to non‑permanent or 'temporary' visas.

1. Mr Ashley's Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. This Visa is not classed as a limited stay visa and consequently Subparagraph 5.2(5)'s low tolerance does not apply. [85]
2. Mr Ashley has resided here for approximately thirty-six years, divided between his formative years and his adult years. This period of time enlivens Paragraph 5.2(6)'s higher tolerance.
3. The Tribunal has found Mr Ashley's Index Offences to be very serious. This finding outweighs the higher tolerances acknowledged here, noting that Paragraph 8.5(2) states that the Australian community expects the Australian government should cancel the visas of non-citizens through these kinds of conduct.[86]
4. The Tribunal is satisfied that Mr Ashley has breached the Australian community's expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community 'as a norm' expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the Direction's tolerances assessed above.
5. Dr Donnelly concedes that this consideration weighs in favour of affirming the reviewable decision:[87]

(a) Under the Direction, the Australian community expects non-citizens to observe Australian laws. When a person has engaged in serious wrongdoing or poses an unacceptable risk of doing so, visa refusal or cancellation is ordinarily anticipated by the community. > > (b) This response is warranted even where no ongoing danger can be measured, if the individual's past conduct breaches community standards. Examples include family violence, forced marriage offences, serious crimes against women, children or other vulnerable people (whether violent, sexual or financial), offences targeting government officials, involvement in human trafficking, people smuggling, war crimes, slavery or worker exploitation. Decision-makers must accept these expectations as stated by the Government without needing to independently assess public opinion in particular cases. > > (c) Mr Ashley has committed criminal offences in Australia. In doing so, he has contravened the normative principle that non-citizens must comply with Australian law and consequently breached the Australian community's expectations. > > (d) This primary consideration weighs against Mr Ashley.

6. Mr Sypott contends that that the expectations of the Australian community apply regardless of whether Mr Ashley poses a measurable risk of causing physical harm to the Australian community.[88]

(a) Paragraph 8.5 outlines that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct breaching this expectation, or where there is an unacceptable risk they may do so, the Australian community normally expects the Government to prevent such non-citizens from entering or remaining in Australia. > > (b) Paragraph 8.5 provides the Government's view of Australian community expectations rather than requiring the Tribunal to independently determine community expectations based on Mr Ashley's circumstances or evidence. The Tribunal must give effect to the stated "norm" rather than conduct its own assessment of community views, as established in relevant Federal Court decisions. > > (c) The Respondent contends this primary consideration weighs heavily in favour of exercising discretion to cancel Mr Ashley's Visa. Specifically, Mr Ashley has committed offences involving family violence and sexual crimes which raise serious character concerns under Paragraphs 8.5(2)(a) and (c). Through his offending, he has put members of the Australian community at risk. > > (d) These community expectations apply regardless of whether Mr Ashley poses a measurable risk of causing physical harm to the Australian community, as specified in paragraphs 8.5(3) and 5.2(4).

7. After applying the normative expectation and evaluating the evidence against Paragraph 8.5's qualifications, the Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.

Conclusion: Primary consideration 5: Expectations of the Australian community

1. This consideration weighs in favour of affirming the reviewable decision.

1. The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.

OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION

1. Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
2. A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:

(a) Their status in Australia is unlawful.

(b) They are subject to being detained or removed.

(c) Any other visas they hold or any visa applications they have made are cancelled or refused.

(d) They cannot apply for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[89]

(e) Periods of exclusion from Australia and special return criteria may apply.

(a) There is no claim or evidence suggesting that Mr Ashley engages Australia's non-refoulement obligations (prohibiting return to persecution). > > (b) While Mr Ashley has not raised this, it is accepted that if the Tribunal affirms the decision under review, several consequences follow: he will remain an unlawful non-citizen; be liable for removal from Australia as soon as reasonably practicable under s 189 and 198 of the Act; will not be able to apply for another visa while in Australia (except for a protection visa) under s 501E of the Act; and would be unable to satisfy special return criteria in clause 5001(c) of Schedule 5 to the Migration Regulations 1994, which applies to most visa grants. > > (c) The Respondent accepts that the Tribunal must consider these legal consequences. However, the Respondent submits that Mr Ashley is not subject to a protection finding, nor has he raised any non-refoulement claims before the delegate or the Tribunal. In circumstances where his removal and exclusion from Australia are the statutory scheme's intended purposes, and where these purposes underlie the Direction's considerations, the Tribunal should afford this consideration neutral weight.

(a) Section 501E of the Act creates a general prohibition on lodging further visa applications while remaining in Australia if the Respondent has previously refused or cancelled a person's visa under ss 501, 501A, 501B or 501BA and that decision has not been set aside or revoked. > > (b) The prohibition applies even if the earlier application was made on the person's behalf or they were unaware of it, such as due to being a minor or having mental impairment. It covers refusals or cancellations that are deemed to occur by operation of the Act or regulations. > > (c) Exceptions exist which allow applications for protection visas or other prescribed visas, applications where the Respondent has personally granted a permanent visa beforehand, or applications for visas that would otherwise be barred once the person has already received a protection or other excepted visa. > > (d) If removed from Australia, Mr Ashley will generally be permanently barred from returning under clause 5001 of Schedule 5 to the Migration Regulations 1994. Mr Ashley has been in immigration detention since 31 March 2025. An adverse decision would result in his continued deprivation of liberty until removal from Australia, which represents a consequence of considerable gravity. > > (e) These serious adverse legal consequences if the Tribunal affirms the decision constitute another consideration that weighs in Mr Ashley's favour.

(a) Mr Ashley has not specifically contended that he engages Australia's protection obligations, nor does the information before the Tribunal clearly indicate that non-refoulement obligations arise in relation to him, as opposed to raising a concern about the risk of harm. > > (b) It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia. > > (c) Mr Ashley's Visa was not a protection visa, and he is not barred from applying for a protection visa.

1. The Tribunal finds that in these circumstances this Other Consideration supports setting the reviewable decision aside.
2. The Tribunal further finds that this consideration carries slight weight in favour of setting the reviewable decision aside.

OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED**

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), taking into account:

(a) The non-citizen's age and health;

(b) Whether there are substantial language or cultural barriers; and

(c) Any social, medical and/or economic support available to them in that country.

1. Summarising Dr Donnelly's contentions as the Tribunal comprehends them:[92]

(a) Mr Ashley is fifty two years old. He faces several significant health issues that would complicate resettlement in New Zealand. He suffered a serious workplace accident in 2013 resulting in permanent injuries to his right arm and wrist, including nerve damage and bone fractures requiring surgery. These injuries led to a shortened right arm and ongoing pain. He also has a history of spinal problems, including bulging discs that required surgery, and continues to experience lower back pain and leg symptoms. Additionally, he sustained a prior head injury from an eighty kilogram steel object falling on him. > > (b) He has been diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and depression, both managed with medication. While he maintains he is fit to work, the cumulative impact of his physical and psychological conditions suggests that re-establishing himself in a new environment would be extremely difficult, particularly at his age and without his current Australian family support network. > > (c) Although some medical reports are dated, they demonstrate the seriousness of his impairments. Despite the lack of recent formal assessments, evidence supports that he continues to experience ongoing physical and emotional limitations. > > (d) Returning to New Zealand after decades of absence would likely be destabilising, particularly given his concerns about cultural disconnection and reintegration. The distinct cultural influence of Māori traditions in New Zealand differs significantly from the Australian context he has known since early childhood, requiring considerable adjustment by him. > > (e) Although English is the primary language in New Zealand and some similarities exist between the countries, Mr Ashley has had minimal contact with New Zealand since 1995 and maintains no close community ties. While his mother and two siblings live there, their ability to provide practical or emotional support remains uncertain. > > (f) Mr Ashley holds serious concerns about finding employment in New Zealand due to his age, health issues, and criminal history. While health and welfare services are technically available to him as a New Zealand citizen, their accessibility and quality may not match what he receives in Australia. He would need to establish new relationships with healthcare providers and support networks, which may prove especially difficult given his mental health vulnerabilities. > > (g) Although he could theoretically access basic services in New Zealand, the personal and practical obstacles he faces - combined with his long absence from the country and the severance of strong family and community ties in Australia - mean that impediments to his reintegration would be substantial. These factors weigh significantly in his favour as another consideration supporting his case.

2. Summarising Mr Sypott's contentions as the Tribunal apprehends them:[93]

(a) Mr Ashley contends that removal to New Zealand would result in his daughters growing up in a toxic environment and that he would have problems finding work and re-establishing himself. He also points to several health issues: a damaged nerve in his elbow that may require surgery, previous surgery for multiple disc bulges in his lower spine, depression first diagnosed in 2007, and COPD. Mr Ashley suggests he would suffer "lifelong emotional and psychological trauma as a result of being permanently excluded from Australia." He does have family in New Zealand, including his mother, a brother and a sister.

(b) The Respondent contends that while Mr Ashley may face difficulty establishing himself in New Zealand due to his prolonged residence in Australia, this would only present short-term hardship and would not preclude resettlement. The Respondent notes that Mr Ashley would not face any cultural barriers, would have the same access to social, medical, and economic support as other citizens, and accepts that he is fit to work.

1. Paragraph 9.2 requires the Tribunal to assess and consider the extent of any impediments that Mr Ashley, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
2. The phrase "(in the context of what is generally available to other citizens of that country)" in Paragraph 9.2(1) is of significance because it establishes the measure by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision.

Sub-paragraph 9.2(1)(a) - the non-citizen's age and health

1. Mr Ashley is fifty-two.
2. Based on the evidence presented to the Tribunal, Mr Ashley has only moderate physical health because of past work injuries. He has or has had depression or depressive symptoms since 2007, has COPD and has received significant work injuries to his back and both arms (left elbow and ulnar nerve, right arm), requiring surgery and resulting in permanent impairments. He testified that he suffers bronchitis or a chest infection every winter at present.
3. In assessing Mr Ashley's depression claims, the Tribunal applies Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[94]. If he is removed to New Zealand, it is likely that his depressive symptoms or his depression will be exacerbated. In turn, this health-related issue would likely adversely affect his efforts to achieve basic living standards there and potentially complicate his physical health issues such as COPD.
4. The Tribunal considers, based in part on its assessment of Primary Consideration 3, that Mr Ashley would probably face a substantial and overwhelming loss of emotional and psychological support due to separation from his immediate family if he is removed to New Zealand.

Subparagraph 9.2(1)(b) - any substantial language or cultural barriers

1. The Tribunal considers that Mr Ashley, based on his testimony and the evidence before the Tribunal, would not face any significant linguistic difficulties if he returned to New Zealand.
2. The Tribunal, applying the same reasoning, considers that Mr Ashley is unlikely to face any major cultural issues.

Subparagraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country

1. Dr Donnelly stated in his closing submission that the Maori cultural adjustment argument raised in Mr Ashley's SFIC is not pressed.
2. Mr Ashley testified that his mother and siblings live in or near New Plymouth and that is where he would likely stay and seek support if removed to New Zealand. The Tribunal notes that New Plymouth is over four hours' travel from either Auckland or Wellington. It does not appear to be a large city.
3. The evidence indicates that Mr Ashley will likely have relatively less social, medical and economic support in New Zealand than in Australia. This is especially valid if he lives in New Plymouth. While this is partly due to differences between the two countries and outside the Tribunal's consideration, it is also partly due to his physical and mental condition and the medical supports these likely require. Consequently, the Tribunal considers that Mr Ashley may be confronted by significant impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other New Zealand citizens.
4. Mr Ashley does not appear to have any active personal social networks available to him in New Zealand apart from his elderly mother and his siblings.

1. The Tribunal has considered above the extent of any impediments that Mr Ashley, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
2. After evaluating each of the three subparagraphs of this Other Consideration (b) and the relevant evidence, the Tribunal finds that it is likely, if Mr Ashley is returned to New Zealand, that he would face substantial emotional, psychological, practical and financial hardships, as well as increased risks to both his physical and mental health. He is likely to face difficulties in establishing social, medical and economic support - difficulties that may be exacerbated by his mental health related issues. He is unlikely to face any language or cultural barriers.
3. The Tribunal notes the testimony that, if removed, he will be unable to prosecute his workers' compensation claim for his latest work injury. This would reduce the financial resources available to him if removed to New Zealand.
4. The Tribunal finds that this Other Consideration carries very substantial weight in favour of setting the reviewable decision aside.

OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS

1. Dr Donnelly's closing submissions contended that there is some marginal weight raised against this consideration because of Mr Ashley's role as a health and safety representative at Volvo Australia in the context of Australia's need for a skilled workforce and the consequential need for Volvo Australia to find a replacement if Mr Ashley is removed.
2. In response Mr Sypott questioned whether this contention is sufficient to be taken into account.
3. The Tribunal finds that this consideration is enlivened and carries very slight weight towards setting the reviewable decision aside.

1. The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1)).[95]
2. Dr Donnelly's closing submissions contended that Mr Ashley may be a family violence victim and that the Tribunal should consider this factor.
3. Mr Sypott contended that the Tribunal should not be satisfied on the evidence that Mr Ashley is a family violence victim and that this additional consideration should not be given any weight.
4. The Tribunal considers that the evidence, such as it is, for this claim comes from the hearsay evidence of Ms Messer and to a lesser extent, the testimony of Mr Ashley Junior and Mr Payton Ashley. There are no independent or authoritative accounts. It is also an open question whether removal to New Zealand would take Mr Ashley away from the threat of family violence against him.
5. The Tribunal finds that this additional consideration attracts no weight.

1. Having regard to the Direction and to the totality of the evidence, the Tribunal holds the view that it should not exercise the power conferred by s501(2) to cancel Mr Ashleys visa.
2. In reaching this conclusion, the Tribunal had regard to the Direction's considerations. With regard to the weight the Tribunal has allocated to each of these Primary and Other Considerations, it finds as follows.
3. Primary Consideration 1 weighs moderately but not dispositively in favour of affirming the reviewable decision.
4. Primary Consideration 2 weighs only moderately in favour of affirming the reviewable decision.
5. Primary Consideration 3 carries very strong and substantive weight towards setting the reviewable decision aside.
6. Primary Consideration 4 carries moderate weight towards setting the reviewable decision aside.
7. Primary Consideration 5 weighs in favour of affirming the reviewable decision.
8. Other Consideration (a) carries a slight weight in favour of setting the reviewable decision aside.
9. Other Consideration (b) carries very substantial weight in favour of setting the reviewable decision aside.
10. Other Consideration (c) carries a very slight weight in favour of setting the reviewable decision aside.

1. The Tribunal has set out above its findings on the weight attributable to the Direction's Primary Considerations, the Other Considerations and the Additional Consideration.
2. The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations as set out above, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[96]
3. The Direction states that Primary Consideration 1 is "generally" to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word "generally" preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake[97], Aksu[98], and Lu[99] cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.
4. The Tribunal has determined and found that, in this particular matter, the greater weight that can generally be given to protecting the Australian community is not applicable in light of the circumstances, the passage of time between the Index Offence and the reviewable decision and the other evidence.
5. After conducting a comprehensive, holistic and integrated assessment of all the specific findings and weights attributed to each relevant primary consideration and other considerations, and additional considerations in this case, the Tribunal concluded that it should not exercise s 501(2)'s discretion.

1. Applying s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 11 February 2025 and substitutes it with a decision to revoke the cancellation of Mr Ashley's Class TY Subclass 444 Special Category (Temporary) visa.

Mr Sypott instructed by Ms Tattersall of Minter Ellison Lawyers.

[1] Unless the context says otherwise, passages quoted in bold font have been emphasised by the Tribunal.

[3] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).

[4] Per Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 [41]-⁠[48].

[6] Exhibit R1: G23, 161; G24, 161; G18, 145.

[8] Exhibit R1: G7, 57 and s 210(2), Criminal Code Act 1899 (Qld). See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.

[12] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].

[13] Migration Act 1958 (Cth) ss 501(2), (6) and (7).

[14] Administrative Review Tribunal Act 2024 (Cth), ss 49-50.

[15] The Direction's paragraphs will be capitalised as 'Paragraphs' in these reasons.

[17] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.

[18] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461, at [57]; Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582, 587 [23] (Mortimer J, as her Honour then was).

[19] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.

[38] Criminal Code Act 1899 (Qld): s 210(1)(a) & (c); Exhibit R1: G10.

[39] Exhibit R3: S2, 57-59 although it is an open question whether the evidence meets the standard prescribed by [8.2(2)(a) and (b).

[42] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].

[43] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.

[44] CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211, [90] (Kerr J); see also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).

[45] (1997) 191 CLR 559, 574 ('Guo').

[49] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) ('Murphy') [37].

[51] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 ('GJJF'); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 ('Roberts'); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 ('GJJF') (n 52) [48]- [52]; Roberts, (n 53) [27].

[52] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26], per Senior Member Taylor.

[57] Testimony, 4 June and Exhibit R3; S2, 98.

[60] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] ('Ismail').

[68] See https://www.forbrain.com/adhd-learning/memory/; https://pmc.ncbi.nlm.nih.gov/articles/PMC6762124/; https://research-repository.griffith.edu.au/server/api/core/bitstreams/84edb2a7-8631-507d-8c8b-4f6d18633cc1/content and https://www5.austlii.edu.au/au/journals/BondLawRw/2024/7.pdf

[70] [2014] FCAFC 38

[71] The High Court decision in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 reinforced that even serious criminal history cannot justify disproportionate restrictions on liberty.

[83] Ibid at 473 [75]- [76] (Charlesworth J).

[84] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 417 ALR 36, [51]-[52].

[85] Clause 155.211, Migration Regulations 1994.

[89] Section 501E of the Act. Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.

[94] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126, see [12] - [14].

[95] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.

[96] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.

[97] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).

[98] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).

[99] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.