MIGRATION - Class BB Subclass 155 Five Year Resident Return visa cancellation - failure to pass good character test - whether there is another reason to set aside the visa cancellation - convicted of importing commercial quantity of controlled drug - additional considerations - risk of harm - risk of discrimination - Ministerial Direction No. 110

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Regulations 1994 (Cth)

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Coker v Minister for Immigration and Border Protection [2017] FCA 929; (2017) 160 ALD 588

Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

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

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56

Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

GJJF and Minister for Home Affairs (Migration) [2019] AATA 930

Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126

Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461

Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153

Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; (1997) 73 FCR 187

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs [2022] HCA 26

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582

Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545

Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531

Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)

1. Mr Martinez seeks review of the Minister's (the Minister or the Respondent) delegate's 11 February 2025 decision to cancel his Class BB Subclass 155 Five Year Resident Return visa (the Visa).[1]
2. The hearing was held in Brisbane on 11 and 12 February 2025. Dr Donnelly of counsel represented Mr Martinez. Ms Williams of Minter Ellison Lawyers represented the Respondent.
3. This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (Cth) (the Act), the Tribunal is required to make a decision by 6 May 2025. On 6 May 2025, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review.[3] The Tribunal now gives its reasons for its decision.
4. Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.

1. Mr Martinez is a fifty-six-year-old[4] Chilean citizen who has resided in Australia since either 1989 or 1991.[5]
2. On 12 December 2018 His Honour Judge Hunt of the New South Wales District Court convicted Mr Martinez of one count of Import/Export commercial quantity border controlled drug/plant and sentenced him to a term of seven years and three months' imprisonment with a non-parole period of four years and three months (the Index Offence). [6]
3. On 15 June 2023 the Respondent cancelled Mr Martinez's Visa. Mr Martinez made representations. The Respondent's delegate reviewed the decision, deciding to decline to exercise their discretion to set aside the cancellation on 11 February 2025 (the reviewable decision) and notified Mr Martinez's representative on the same day.[7]
4. On 17 February 2025 Mr Martinez lodged an application with the Tribunal for review of the reviewable decision.[8]

1. Section 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act are the sources of the Tribunal's jurisdiction in this matter.
2. Under s 501CA of the Act, the Respondent may revoke a visa cancellation decision if:

(a) representations have been made by the person in accordance with the invitation;[9] and > > (b) the Respondent is satisfied that: > > > (i) the person passes the character test;[10] or > > > > (ii) there is another reason why the original decision should be revoked.[11]

3. The Tribunal is satisfied that Mr Martinez made the representations required by s 501CA(4).[12]

1. In the reviewable decision, the Respondent's delegate cancelled Mr Martinez's Visa on the basis that he had failed the character test[13] once the delegate had considered the test in the context of his criminal record, defined in s 501 of the Act and as required under s 501CA(4)(b)(i) of the Act.
2. The Tribunal is satisfied, based on its own assessment of his criminal record, that he does not pass the character test.[14]
3. Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person either passes the character test, or there is another reason why the original decision should be revoked. This latter question is the Tribunal's task in this matter.[15]
4. Subsections 49 - 50 of the ART Act provide that the Tribunal's procedure is within its discretion and review applications are to be considered with as little formality and technicality as a proper consideration of relevant matters permits. Section 52 of the ART Act states that the Tribunal 'is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate'.
5. When assessing and considering the factors weighing for and against whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to comply with Direction 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[16]
6. Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[17]
7. Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. 8. The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations. 9. Paragraph 8 of the Direction specifies the following primary considerations:

(1) the protection of the Australian community from criminal or other serious conduct.

(2) whether the conduct engaged in constituted family violence.

(3) the strength, nature and duration of ties to Australia.

(4) the best interests of minor children in Australia.

(5) the expectations of the Australian community.

1. Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:

(a) the legal consequences of the decision.

(b) the extent of impediments if removed.

(c) the impact on Australian business interests.

1. The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter's specific circumstances affect this weighting.[18] The individual and cumulative weighing process is a matter for individual decision‑maker exercising the relevant power under s 501 of the Act.[19]

1. The Tribunal received written evidence during the hearing, which is attached to this Decision and marked 'Annexure A.' The parties' respective Statements of Facts, Issues and Contentions (SFIC)[20] are included within Annexure A. The Tribunal has considered both SFICs.
2. The Tribunal also heard testimony from Mr Martinez.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

1. When considering this Primary Consideration 1, the Direction provides that the Tribunal should bear in mind that the Australian government's highest priority is the Australian community's safety. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence.
2. The Tribunal has considered the nature and seriousness of Mr Martinez's conduct to date and assessed the relevant evidence and contentions.
3. Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to consider two limbs of inquiry:

(a) the nature and seriousness of the non-citizen's conduct to date; and > > (b) the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.

Paragraph 8.1.1: The Nature and Seriousness of Mr Martinez's Conduct to Date

1. Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, when relevant, in considering the nature and seriousness of Mr Martinez's criminal offending or other conduct to date.
2. The Index Offence is described in the sentencing judge's reasons.[21]
3. Summarising Ms Williams' contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[22]

(a) Mr Martinez was convicted of importing a commercial quantity of border-controlled drugs (cocaine) and sentenced to seven years and three months imprisonment with a non-parole period of four years and three months. The offending involved planning and importing 9.92 kilograms of cocaine with an estimated street value between $1.8 million and $3.6 million. The sentencing judge assessed the offense as being in "the mid-point of the mid-range of objective seriousness" and noted Mr Martinez took "an active leading and organisational role in the importation."

(b) Mr Martinez also had prior convictions for driving offenses and obtaining money by deception, demonstrating what the Minister contends is a pattern of disregard for the law and an upward trend in offense seriousness, as acknowledged by Mr Martinez in his SFIC.

(c) The Respondent contends that that the Tribunal must treat Mr Martinez's conduct, specifically his conviction of import commercial quantity of border-controlled drug, as very serious.

1. Summarising Dr Donnelly's contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[23]

(a) While the Index Offence does not fall within the categories of violent or sexual crimes outlined in Paragraph 8.1.1(a) of the Direction, it is still considered extremely serious, as evidenced by Parliament's designation of a life-imprisonment maximum penalty for commercial drug importation offences. > > (b) The Index Offence engages Paragraph 8.1.1(b)(iii) as it forms a basis for a negative character assessment under s 501(6)(c) of the Act. > > (c) The severity of the sentence reflects the sentencing judge's view of the Index Offence as very serious. Judge Hunt highlighted the large quantity of the drug, the sophisticated planning required for importation, and the significant potential harm to the Australian community.[24] > > (d) Though there is no identifiable individual victim, the courts have consistently noted that large-scale drug trafficking contributes to diffuse or widespread societal harm, including community health issues, substance dependence, flow-on effects of property crime, violence, community deterioration, and strain on healthcare, social services, and law enforcement agencies.[25] > > (e) Mr Martinez's historical pattern of offending demonstrates an escalation in gravity, from relatively minor offences to an organised, large-scale drug importation. This cumulative pattern weakens any claim that the drug offence was a one-time incident, suggesting instead a pattern of non-compliance with the law.[26] > > (f) The Index Offence was prosecuted and finalised in Australia under Commonwealth law, even though some planning activities took place overseas. Since the conviction is under Australian law and the sentencing remarks were delivered in an Australian court, this conduct is unequivocally an offence under an Australian statute.[27] > > (g) Based on these considerations, Mr Martinez's involvement in importing a commercial quantity of cocaine is a matter of significant gravity. When combined with the prior offending and the substantial custodial sentence, the conduct reflects a very serious breach of Australian criminal law.

The Tribunal's consideration: The nature and seriousness of Mr Martinez's conduct

1. When assessing the nature and seriousness of Mr Martinez's criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
   • Whether Mr Martinez's criminal offending and conduct to date belongs within the types of crimes or conduct viewed very seriously by the Australian government and the Australian community;[28]
   • the sentences imposed for his criminal offending;[29]
   • the impact of his offending or other conduct on any of its victims and their families, where information in this regard is available and where Mr Martinez has been afforded procedural fairness;[30]
   • the frequency of his offending and the trend of increasing seriousness;[31] and
   • the cumulative effect of his repeated offending.[32]
2. The Tribunal, after assessing the evidence and the parties' contentions, assesses that Mr Martinez's Index Offence can at a minimum be considered a serious crime under Paragraph 8.1.1(1)(b)(iii).
3. Considering Paragraph 8.1.1(1)(c), the Tribunal notes the sentencing judge's assessment of the Index Offence, reflected in Mr Martinez's sentence. The Tribunal considers that this sentence adds weight to the argument that the Index Offence should be objectively categorised under the Direction as very serious rather than serious.
4. The Tribunal accepts Dr Donnelly's contentions regarding Paragraphs 8.1.1(1)(d), (e), (f) and (i) of the Direction.
5. The Tribunal does not consider that Paragraphs 8.1.1(1)(g) and (h) are enlivened from the evidence.

The Tribunal's finding: The nature and seriousness of Mr Martinez's conduct.

1. The phrase 'without limiting the range of conduct' in Paragraphs 8.1.1(1)(a) and (b) of the Direction highlights their non-exhaustive nature. The Tribunal is not bound by the views of the Australian Government or community[33] and judgements about the seriousness of drug-related offending turn on the specific circumstances of each case.[34] The Tribunal assesses Mr Martinez's conduct as very serious because:

(a) He trafficked and sought to import a significant commercial quantity of cocaine. Such conduct reflects a disregard for Australian law and community interests. > > (b) Custodial dispositions are a last resort and represent the most severe sanction available to the courts.[35] A total effective sentence of fifty-one months' imprisonment is considerable, regardless of where it sits in the context of a statutory maximum. > > (c) His offending was not short-lived, impulsive, or due to immaturity. He was between fifty-one and fifty-two years of age when he committed the Index Offence, which can be characterised as displaying considerable organisation and planning. Had police not intervened, there is no evidence he would have ended his involvement.

2. Having regard for the framework principles at cl 5.2 of the Direction and the relevant and applicable aspects of Paragraph 8.1.1 referred to above, the Tribunal finds that Mr Martinez's offending should be characterised as very serious.

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

1. Summarising the relevant aspects of Paragraph 8.1.2 of the Direction:

(a) In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.

(b) When deciding whether a non-citizen poses a risk to the community, decision‑makers should cumulatively consider:

1. How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
2. How likely it is that the non-citizen will commit another crime, looking at:
   • Evidence of how likely they are to re-offend.
   • Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.

(c) The objective is to carefully weigh the seriousness of the possible harm if the non-citizen re-offends, the likelihood of their re-offending, and any evidence of change when making decisions about a non‑citizen's risk to the community.

1. Summarising Ms Williams' contentions on this point as the Tribunal understands them:[36]

(a) The Respondent argues that the potential harm from any reoffending would be so serious that even a small risk of it reoccurring is unacceptable. Paragraph 8.1.2 of the Direction requires consideration of both the nature of potential harm and the likelihood of reoffending.

(b) The Respondent acknowledges several factors in Mr Martinez's favour:

1. His expressions of remorse.
2. The sentencing judge's assessment of him as having "good prospects of rehabilitation."
3. His conduct in jail as a "model prisoner."
4. His family support and employment prospects.

(c) However, the Respondent contends that while the documented psychological assessments identified his mental health issues (depression, anxiety, and adjustment disorder) as contributing to his offending, there is insufficient evidence that Mr Martinez has actively sought or received targeted treatment to address these issues.

(d) While his close family relationships are acknowledged as protective factors against reoffending, the Respondent notes these relationships existed during the time of his Index Offence and that financial pressure to provide for his family was cited as a motivating factor in his criminal conduct.

(e) The Respondent submits that the Tribunal should maintain a very low risk tolerance given the seriousness of Mr Martinez's offending and that the protection of the Australian community consideration weighs heavily against revocation of the visa cancellation, consistent with Paragraph 7(2) of the Direction which indicates this consideration should generally be given greater weight than other factors.

1. Summarising Dr Donnelly's contentions on this point as the Tribunal apprehends them:[37]

(a) In assessing the protection of the Australian community from harm, it is noted that the Government's tolerance for future harm becomes lower as the seriousness of potential harm increases. > > (b) Mr Martinez's importation of border-controlled drugs poses a direct and substantial threat to the health, safety, and well-being of Australian residents. If the applicant were to continue or resume involvement in drug importation or drug-related criminal enterprises, it could facilitate the distribution of harmful substances, exacerbate public health crises, and place strain on law enforcement and social services. > > (c) His history of deception and dishonesty offences demonstrates a capacity to inflict economic harm on individuals, businesses, and potentially government agencies. Such conduct erodes trust in financial transactions and can have detrimental ripple effects on victims and the wider community. Criminal activity of this nature has broader social repercussions that undermine community confidence in legal and regulatory frameworks. In light of his offending record - particularly the recent drug importation offence - the risk posed to the Australian community is not negligible. > > (d) Regarding the likelihood of reoffending, multiple psychological reports confirm that Mr Martinez's participation in drug importation was motivated by acute financial desperation rather than an entrenched criminal inclination. Despite prior convictions, he has not shown a pattern of violent or drug-related offending. Evidence from psychologists and family members establishes that his offending arose predominantly from heightened financial pressures, including lost business opportunities, the breakdown of his marriage, and the burden of supporting four children. > > (e) Mr Martinez has consistently expressed deep remorse for his actions, both in letters to the court and in statements to the Respondent's department. He acknowledges the far-reaching harm his offence caused not only to himself and his family but also to the broader community. Crucially, he has not attempted to deny or diminish his role in the offence, instead being forthright about his motivations. > > (f) He has undertaken and completed a variety of rehabilitative programs while incarcerated, including Drug Awareness and Positive Lifestyle Programs, Emotional Wellbeing, Anger Management, and Thinking Skills Courses, and Religious and Chaplaincy Programs. Multiple work supervisors in the correctional setting have attested to his diligence, reliability, and willingness to learn new skills. The chaplain at Parklea Correctional Centre describes Mr Martinez as remorseful, humble, and proactive in personal reform. > > (g) His daughters, sister, and extended family remain dedicated to aiding his reintegration, offering stable accommodation, emotional support, and supervision. He has secured a full-time position with Sky Blue Pools Pty Ltd upon release, with the employer highlighting his communication skills, industry knowledge, and cooperative nature. His longstanding history of lawful work reflects a consistent capacity to earn a living through legitimate means. > > (h) Considering his genuine remorse, constructive use of custodial time, substantial familial and social support, confirmed employment, and the absence of an entrenched criminal lifestyle, he is assessed as presenting a very low risk of reoffending. While his Index Offence was serious, the circumstances suggest it was an isolated lapse stemming from acute financial hardship rather than a reflection of persistent criminal intent. > > (i) Despite these mitigating factors, this primary consideration weighs against Mr Martinez.

The Tribunal's finding: The nature of the harm to individuals or the Australian community were Mr Martinez to engage in further criminal or other serious conduct

1. The evidence before the Tribunal dealing with Mr Martinez's Index Offence supports the Tribunal inferring that there may be serious harm to members of the Australian community if Mr Martinez re-offended in a similar fashion to his Index Offence in the future.

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

1. Assessing the likelihood or risk of Mr Martinez engaging in further criminal or serious conduct, the Tribunal has evaluated and considered his testimony and the documentary evidence before it, including the statements of his daughters and his son-in-law.
2. To start, the Tribunal notes that the threshold here is whether there is 'a' risk.[38]
3. The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn.[39]
4. This element of the Direction requires a 'future‑focused assessment'[40] 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),[41] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, 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'.[42] 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'.[43]
5. The Tribunal's task is to determine the realistic level of risk posed by Mr Martinez as at the time of its decision,[44] with the question being "how serious the risk [is], or whether the risk should be "tolerated"'[45], to the extent that it could be considered an unacceptable risk.[46]
6. When assessing whether Mr Martinez poses 'more than a minimal or trivial likelihood of risk,' the Tribunal must consider all 'available information and evidence' pertaining to his risk of re-offending, and the 'rehabilitation achieved'. [47] In undertaking this task, the Tribunal acknowledges 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.
7. Senior Member Taylor observed a qualification to this tolerance in Dharma and Minister for Home Affairs,[48] in that 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.
8. The Tribunal's consideration of the risk or likelihood of Mr Martinez 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.

9. Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer'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. Mr Martinez claims his financial position and the pressures resulting from this position drove him to commit the Index Offence. His testimony shows that his earlier fraud offence was also the result of financial pressure. His testimony also demonstrated his clear understanding about how his financial situation led to his offending.

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

1. The Tribunal accepts that Mr Martinez is remorseful but notes that his testimony often centred on the effects of his Visa being cancelled, the ensuing risk of deportation and its impact on his immediate family rather than the potential harm his Index Offence could have caused the Australian community. It is also clear to the Tribunal that shame is a significant protective factor here.
2. In addition to the formal rehabilitation courses Mr Martinez undertook in jail, it is clear to the Tribunal from the evidence that he demonstrated exemplary conduct while in jail in terms of both working hard and observing prison rules. The offer of employment from Sky Blue Pools Pty Ltd should Mr Martinez be released back to the Australian community builds on these traits and establishes them as ongoing protective factors. Mr Martinez also clearly articulated his efforts to obtain an appointment with a psychologist in his oral evidence in contradiction to the Respondent's contention that he has not sought treatment. This suggests both insight and a recognition of the need for action and agency on his part.
3. It is also clear from the documentary evidence that Mr Martinez's four adult daughter and their partners have provided substantive support to him and will likely offer him significant support if he is released back into the Australian community. While his immediate family clearly did not act as an effective risk management factor in the period leading to the Index Offence, their informed acceptance of Mr Martinez's offending and incarceration and the future oversight they are likely to impose based on their statements suggests that the calculus has changed in this respect.

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 Martinez's offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
2. In doing so, it has applied the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
3. In making its finding on the likelihood of Mr Martinez re-offending, it has then considered what the combination of his Index Offence, his displays of remorse and what he has achieved in his life since offending say about his character, as well as assessing the extent to which the consequences of his offending in future are likely to be unacceptable to the Australian community.

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

1. The Tribunal finds that a risk exists to the Australian community should Mr Martinez 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 small.
3. The consequences if Mr Martinez 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 risk, Mr Martinez's current and future protective factors and his awareness of the consequences of any future reoffending here produce a risk that is tolerable.

Conclusion: Primary consideration 1: Protection of the Australian community

1. The Tribunal finds that Mr Martinez' offending is very serious, that the consequences of any such future offending of the type that Mr Martinez has previously engaged in could result in serious harm to members of the Australian community and that the likelihood of his future reoffending is small. In view of the Index Offence's very serious nature and impact, the Tribunal considers that any risk that it may be repeated is tolerable.
2. The Tribunal further finds that in its totality, this consideration weighs in favour of affirming the reviewable decision.

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

1. There is no evidence that Mr Martinez has committed family violence within the meaning of the Direction. This primary consideration carries neutral weight.

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

1. Primary Consideration 3 directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Martinez's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
2. The Tribunal must also consider the strength, nature and duration of any other ties that Mr Martinez has to the Australian community, having regard to:[49]

(c) how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that: > > > (i) less weight should be given where the Applicant began offending soon after arriving in Australia; and > > > > (ii) more weight should be given to time the Applicant has spent contributing positively to the Australian community > > (d) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

3. The evidence before the Tribunal in relation to this Primary Consideration involves the evidence and testimony from Mr Martinez's wife and daughter.
4. Summarising Dr Donnelly's contentions on this Primary Consideration as the Tribunal understands them:[50]

(a) Paragraph 8.3 of the Direction requires a careful evaluation of the scope and significance of a non-citizen's ties to Australia, particularly when they have immediate family members who are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely. This includes consideration of the impact of any adverse decision on those family members' emotional and practical circumstances, as well as a broader assessment of the non-citizen's community links, contributions, and overall integration in Australia.

(b) Mr Martinez's immediate family includes four daughters - three Australian citizens and one permanent resident - as well as two young grandchildren who remain in Australia. Additionally, his sister is an Australian citizen residing locally. All his children, now adults ranging from their late twenties to mid-thirties, have spent most, if not all, of their lives in Australia. Their statements consistently describe a deep and enduring relationship with their father. The sister, who has lived in Australia for nearly three decades and built a stable life here, emphasises her close bond with her brother.

(c) The emotional and practical repercussions of Mr Martinez being deported on his family members are particularly pronounced. Each daughter underscores how his current absence while incarcerated has already weighed heavily on them, noting the distress of missing key family events such as weddings, graduations, and the births of grandchildren. The daughters detail that they attend prison visits frequently to maintain Mr Martinez's morale and their family connection. His sister highlights her chronic health condition (ulcerative colitis), which requires specialist treatment and periodic medical intervention, explaining that Mr Martinez has previously played an essential role in providing emotional and logistical support during her flare-ups.

(d) Mr Rodriguez, a psychologist who assessed the applicant commented on the potential for co-morbid depression and anxiety among family members if Mr Martinez is deported. Although the psychologist's findings rely on Mr Martinez's personal account rather than clinical assessments of each family member, his opinion underscores that the ripple effects of Mr Martinez's removal could extend beyond mere sadness and could manifest in serious mental health challenges for his immediate family.

(e) Mr Martinez arrived in Australia in 1991 at approximately 22 years of age and has lived here for over thirty-three years. Although he did not arrive as a minor, the duration of his residence nevertheless represents the vast majority of his adult life, during which he has established extensive community, social, and professional networks. The evidence shows that Mr Martinez sustained consistent employment in various roles, including painting, construction, and even operating businesses involved in mining and exploration. Letters from former and prospective employers repeatedly describe his reliability, strong work ethic, and willingness to take on supervisory or leadership duties.

(f) While his serious offending led to incarceration, it appears that his initial criminal conduct surfaced decades after he first arrived in Australia. References consistently frame the offence as an aberration rather than part of a patterned history of wrongdoing. Mr Martinez has continued to engage in constructive activities in custody - undertaking rehabilitation programs, attending workshops, and obtaining certificates - indicative of a broader commitment to personal improvement and community participation.

(g) In addition to his daughters and sister, Mr Martinez has a network of extended relatives, friends, and professional contacts who are either Australian citizens or permanent residents. The evidence collectively portrays Mr Martinez as someone who maintains cooperative working relationships, plans to resume lawful employment, and has supportive friends and acquaintances. Multiple statements confirm that, aside from immediate family, others in his personal sphere remain willing to aid him with housing, employment, or financial support upon release.

(h) When viewed in its entirety, his overall network of social ties and his lengthy, positive involvement in Australian life reflect a strong level of integration. His removal would disrupt not only his immediate family but also these extended and professional relationships in ways that many references view as unjust and harmful to the broader community.

(i) Taken together, the considerations under Paragraph 8.3(1) and Paragraph 8.3(2) of the Direction strongly suggest that the strength, nature, and duration of his ties to Australia favour setting the mandatory cancellation of his Visa aside. His immediate family members stand to suffer acute emotional and practical harm if he is deported. Concurrently, his broader social and professional relationships highlight a long-standing, beneficial presence in the Australian community, cultivated over more than three decades of residence.

(j) This primary consideration weighs in favour of setting the reviewable decision aside.

1. Summarising Ms Williams' contentions on this consideration as the Tribunal understands them:[51]

(a) Mr Martinez has established substantial ties to Australia over a period of almost 34 years, having arrived in 1991. His immediate family connections include four adult daughters, a sister and brother-in-law, two grandchildren, and a third grandchild expected in mid-2025. His family has provided detailed statements emphasising their close relationship with him, their concerns for his wellbeing if deported, and the significant emotional impact his absence has had on them. > > (b) Family members have also expressed that Mr Martinez's current circumstances have negatively affected their mental health and caused them distress. Additionally, Mr Martinez has played an essential role in providing emotional and logistical support to his sister, who has a chronic health condition requiring periodic medical intervention. The Respondent accepts that these factors weigh in favour of revocation. > > (c) While the Minister submits that there is limited evidence of the applicant contributing positively to the community through charitable activities, it is acknowledged that the applicant has maintained consistent employment over the past 25 years. The Respondent accepts this factor weighs in favour of revocation but contends that the weight provided to this consideration should not outweigh countervailing considerations.

2. The Tribunal now considers these contentions and the evidence before it in terms of each subparagraph of Paragraph 8.3.

1. Mr Martinez's immediate family are in Australia, being his daughters, their partners, their children and Mr Martinez's sister. The Tribunal considers that Mr Martinez's immediate family are either Australian citizens, permanent residents or have the right to remain in Australia indefinitely.
2. Based on the written and oral evidence, it appears that there are especially close and enduring bonds between Mr Martinez and his daughters. A decision to affirm the reviewable decision would likely cause sustained emotional hardship and a negative psychological impact on Mr Martinez's immediate family, as well as a loss of close physical support for his sister in terms of helping her with her chronic health condition and a diminution in any relationship between Mr Martinez and his grandchildren.

1. While the written evidence indicates Mr Martinez arrived in Australia in 1991, the oral evidence suggests he arrived in 1989. He has resided here since then, working continuously except when injured. His Index Offence occurred some twenty-eight years later.[52] Regardless of when he arrived, the Tribunal consequently considers and finds that Mr Martinez did not begin offending soon after arriving in Australia.
2. The uncontested evidence demonstrates that he has made sustained and significant positive contributions to the Australian community over the long course of his working career.

1. The family links identified above also make out the strength and duration of Mr Martinez's links to Australia under this paragraph.
2. The Tribunal also considers it likely that Mr Martinez probably developed social ties beyond his immediate family during both his residence and working life in Australia. He gave oral evidence about prior volunteer work with his church and about his plans to involve himself again with the church if released into the community.

1. The Tribunal considers that a decision leading to Mr Martinez's removal will cause emotional hardship and likely have negative psychological impacts on each member of his immediate family.
2. Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
3. The impact of affirming the reviewable decision on his immediate family and his friends as well as his positive contributions to the Australian community give this finding strong and substantive weight.

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

1. The Tribunal gives this consideration 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. This Primary Consideration is enlivened as Mr Martinez has two grandchildren under the age of eighteen.
2. Summarising Dr Donnelly's arguments as it understands them:[53]

(d) Under s 501CA of the Migration Act, decision-makers must consider the best interests of any minor children who are, or would be, affected by a visa cancellation, refusal, or non-revocation decision. In this case, the relevant minor children are the applicant's grandchildren: Child A, born in 2020 (aged four); and Child B, born in 2023 (aged one). > > (e) Mr Martinez has resided in Australia since 1991 and, based on multiple statements from his daughters and extended family, he has been a constant presence and support for his children and, more recently, for his grandchildren. His daughters' statements affirm Mr Martinez's close bond with his family and the frequent contact amongst the immediate family prior to his imprisonment and subsequent immigration detention. > > (f) Although both grandchildren are quite young, multiple statements indicate that Mr Martinez's involvement, even if limited by incarceration, has been meaningful to the children's mothers. The mothers have actively facilitated visits and maintained communication so the applicant can develop and retain a bond with his grandchildren. The duration of the relationship with both grandchildren, while naturally shorter due to their ages and Mr Martinez's recent incarceration, is still described as significant from the perspective of familial connection. > > (g) Multiple family members have affirmed that Mr Martinez intends to take a positive, supportive role in his grandchildren's lives. They describe him as a loving grandfather who has contributed emotional and, in the past, practical support to the family. His daughters' statement underscore Mr Martinez's strong motivation to rehabilitate and re-establish himself within his family upon release. Both note his desire to be present for milestones and to provide financial stability through employment offers already secured. > > (h) His prior conduct - the importation of a commercial quantity of a border-controlled drug - resulted in his incarceration and the mandatory cancellation of his Visa. However, psychological reports detail his mental health struggles, financial desperation, and manipulation by a half-brother in Chile, providing context for his offending. Both reports identify his genuine remorse and his low-to-moderate risk of reoffending. > > (i) His daughters unanimously describe severe emotional distress arising from his absence. For Child A and Child B, continued separation would limit the development of a meaningful grandparental bond and deprive them of day-to-day interaction, support, and guidance. The mothers' statements emphasise the importance of Mr Martinez's cultural and emotional influence on his grandchildren's upbringing. > > (j) While the grandchildren's mothers - and in Child A's case, the father - are clearly the primary caregivers, there is no indication of another paternal or maternal grandfather figure readily available. Several statements reference Mr Martinez as the primary male figure in certain aspects of family life, particularly for moral and emotional guidance. No evidence has been presented to suggest there is another individual who can replace the role of Mr Martinez as a grandfather. > > (k) Given the ages of Child A and Child B, neither child has provided a direct statement or articulated personal views. The closest insight into the children's experiences comes from the observations of their parents, who note the excitement or comfort the children display when visiting Mr Martinez or speaking with him. Although these impressions are second-hand, they indicate a positive connection when contact has been possible. > > (l) There is no evidence suggesting any risk of family violence, abuse, or neglect by the applicant towards his grandchildren or any other family member. Multiple statements, including those from the prison chaplain and workshop supervisor, describe Mr Martinez as kind, helpful, and family oriented. No direct physical or emotional harm to Child A or Child B is alleged in the evidence. However, several statements suggest that Mr Martinez's incarceration and possible deportation have caused significant emotional distress within the family. > > (m) Having regard to all factors, the evidence strongly indicates that it is in the best interests of Child A and Child B for Mr Martinez to remain in Australia. His longstanding residence in this country, his demonstrated remorse and very low risk of reoffending, and the critical emotional and familial support he provides weigh heavily in favour of avoiding ongoing separation. His potential deportation would deprive his grandchildren of a key paternal figure, likely causing emotional hardship for both the children and their mothers. > > (n) This primary consideration weighs in favour of setting the reviewable decision aside.

3. Summarising Ms Williams' arguments as the Tribunal understands them:[54]

(a) Paragraph 8.4(1) requires the Tribunal to determine whether a visa refusal or non-revocation of cancellation is in the best interests of minor children in Australia affected by the decision. This primary consideration applies only to children under 18 years of age at the time the decision is expected to be made, as specified in paragraph 8.4(2).

(b) Mr Martinez has identified two minor grandchildren who will be affected by the decision:

1. Child A, born in 2020
2. Child B, one year old, born in 2023

(c) Additionally, one of Mr Martinez's daughters is expecting a second child (Mr Martinez's third grandchild) later in 2025.

(d) Mr Martinez acknowledges that his involvement in his grandchildren's lives has been limited by his incarceration but submits that he has made concerted efforts to build relationships with them. His family describes him as a loving grandfather who intends to take a positive, supportive role in his grandchildren's lives. The Respondent accepts the evidence that Mr Martinez has established relationships with his grandchildren.

(e) The Respondent contends that any weight afforded in favour of revocation should be tempered by the fact that the relationship is non-parental, as outlined in Paragraph 8.4(4)(a). Mr Martinez's grandchildren have their parents (the applicant's daughters and their partners) currently fulfilling parental roles, and Mr Martinez would still be able to communicate with them via electronic means if he is removed from Australia.

(f) While accepting that this consideration weighs in favour of revocation, the Respondent contends that the Tribunal should afford it only moderate weight, in accordance with Paragraphs 8.4(4)(a) and 8.4(4)(f).

(a) The minor children, being the two grandchildren, are between fifteen and thirteen years away from adulthood. > > (b) The two grandchildren have parents. Mr Martinez's role is and would be non-parental. > > (c) Their relationship with Mr Martinez is currently and necessarily constrained by their ages and his incarceration. > > (d) Arguments going to Mr Martinez's role as a grandfather are, to a degree, aspirational. > > (e) This is balanced by the apparent close relationships enjoyed by Mr Martinez's immediate family and the extent to which the grandchildren are enmeshed within this familial network. > > (f) The individual interests of the two grandchildren cannot be differentiated on the evidence before the Tribunal.

2. On balance, each grandchild'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 that provides:

'The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.'

2. In addition to the above, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. Paragraph 8.5(2) also provides 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 character concerns because of conduct, in Australia or elsewhere, of the following kinds:

(g) acts of family violence; > > (h) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (i) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; > > (j) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; > > (k) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; > > (l) worker exploitation.

4. Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):

'This consideration is about the expectations of the Australian community as a whole, and in this respect, decision‑makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.'

5. Clause 8.5(4) of the Direction aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 ("FYBR").
6. Acknowledging the diversity of reasoning in FYBR, the Court's plurality held that "Expectations of the Australian community" is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[55]
7. The reasoning in FYBR establishes that the 'deemed community expectation' will in most cases call for cancellation of a visa, but 'the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine.'[56]
8. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court stated the following about this primary consideration, albeit in the context of an earlier but comparable Direction:

Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case".

Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.[57]

1. The Tribunal notes the High Court of Australia also refused an application for special leave to appeal from the orders in FYBR, holding at [301]- [303] that 'there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.'[58]
2. Observing the norm contained in paragraph 8.5, the Tribunal has also considered the guidance informed by the principles set out in paragraphs 5.2(1) to (8) of the Direction. In summary these are:

(a) The Australian government's highest priority is the Australian community's safety. > > (b) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa. > > (c) 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. > > (d) 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. > > (e) 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. > > (f) In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally 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. > > (g) 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. > > (h) Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.

3. 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 Martinez's Visa was a Subclass 155 Five Year Resident Return 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. [59]
2. Arriving in Australia in 1989, Mr Martinez has resided here for approximately thirty-six years. This period of time enlivens Paragraph 5.2(6)'s higher tolerance.
3. The Tribunal has found Mr Martinez's Index Offence to be very serious. This finding outweighs the higher tolerances acknowledged above, 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.[60]
4. The Tribunal is satisfied that Mr Martinez 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 tolerances assessed above.
5. Dr Donnelly concedes that this consideration weighs in favour of affirming the reviewable decision.[61]
6. Ms Williams contends that that the expectations of the Australian community apply regardless of whether Mr Martinez poses a measurable risk of causing physical harm to the Australian community.[62]
7. 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 are prohibited from applying for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[63]

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

(a) Mr Martinez indicated 'yes' in his personal circumstances form when asked if he had concerns about returning to his country of citizenship, Chile, identifying his primary concern as having no support or family there. While he did not make non-refoulement claims before the delegate, his submissions to the Tribunal indicate he fears harm if removed to Chile. > > (b) Specifically, Mr Martinez submits that he faces risk of harm from criminal associations connected with his half-brother in Chile. He contends that given the nature of his offence and his association with criminal networks, he is at risk of retaliation or coercion if returned to Chile. He claims that individuals connected to his offending and the broader drug trafficking network in Chile remain active, presenting a credible risk of harm. These concerns are corroborated in a statement by his co-offender and son-in-law. > > (c) The Respondent contends that limited information has been provided to substantiate the claimed risk of harm, noting that no such claim was raised previously. The Respondent argues that Mr Martinez may make an application for a protection visa, during which any claims regarding Australia's non-refoulement obligations would be fully considered, as outlined in Paragraph 9.1.2(2) of the Direction and supported by Plaintiff M1/2021 v Minister for Home Affairs.[65] > > (d) If Mr Martinez applies for a protection visa, he would not be liable for removal until the application is finally determined under section 198(5A) of the Act. Furthermore, if a protection finding is made, he would not be liable for removal unless one of the events in section 197C(3)(c) of the Act occurs. > > (e) The Respondent accepts that if cancellation is not revoked, he will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 of the Migration Regulations 1994, which constitutes a relevant legal consequence that the Tribunal must consider. > > (f) The Respondent contends that Mr Martinez is not the subject of a protection finding, nor have substantiated non-refoulement claims been raised. Furthermore, his removal and indefinite exclusion from Australia are intended purposes of the statutory scheme and underlie the considerations in the Direction. Accordingly, the Respondent argues that the Tribunal should afford this consideration only limited weight in favour of revocation.

(a) There are several adverse legal consequences that follow from a non-revocation decision by the Tribunal. > > (b) First, section 501E of the Migration Act prohibits a person from applying for a visa while in the migration zone if their visa was previously refused or cancelled under sections 501, 501A, 501B, or 501BA, and the decision was not set aside or revoked. This restriction applies regardless of whether the person was aware of the visa application or if it was made on their behalf. However, exceptions exist, allowing applications for protection visas or other visas specified in the regulations. Additionally, the prohibition does not apply if the Respondent personally grants a permanent visa or if the person was previously granted a visa under these exceptions. > > (c) Second, Schedule 5 of the Migration Regulations 1994 (Cth) outlines special return criteria under regulation 1.03. Criterion 5001 specifies that an applicant must not be a person who left Australia under a deportation order issued under various sections of the Migration Act, including section 200, or earlier provisions in force before 1 September 1994. It also excludes individuals whose visas were cancelled under section 501 before 1 June 1999 due to criminal conduct and character concerns. Furthermore, applicants are ineligible if their visas were cancelled under sections 501, 501A, or 501B and the cancellation has not been revoked or a permanent visa has not been granted by the Respondent personally. Similarly, those whose visas were cancelled under section 501BA are ineligible unless the Respondent has personally granted them a permanent visa after the cancellation. Schedule 5 imposes a permanent bar on re-entry to Australia if a non-revocation decision is made. The applicant will be permanently ineligible to return. > > (d) Third, a non-revocation decision will result in the applicant remaining in immigration detention until their removal from Australia under section 198 of the Migration Act. During this period, the applicant's personal liberty will remain restricted until the removal process is carried out. > > (e) These adverse legal consequences are severe and significantly detrimental to the applicant. This other consideration weighs in the applicant's favour.

3. Dr Donnelly separately contended that Mr Martinez faces a significant and credible risk of harm (the 'risk of harm' consideration) if he is returned to Chile, particularly from criminal elements connected to his half-brother there.[67] While expressed as an additional consideration, the Tribunal has considered it in tandem with Other Consideration (a). While Ms Williams observed that there was no independent evidence of this risk, Mr Martinez's oral evidence on this point during the hearing was cogent and not significantly contested.
4. Mr Martinez 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.
5. 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.
6. Mr Martinez'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 moderate 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:[68]

(a) Based on the extensive evidence provided, Mr Martinez will face very serious impediments in establishing himself and maintaining basic living standards in Chile. > > (b) Mr Martinez is fifty-six years old and has a significant medical history, including a work-related accident in 1999 that resulted in chronic neck and back pain and 45% loss of movement in his right foot. These impairments affect his mobility and ability to engage in physically demanding work, which could be a primary source of employment in Chile given his background in construction and trade work. > > (c) Furthermore, multiple psychological assessments indicate that Mr Martinez suffers from severe depression, anxiety, and adjustment disorder, conditions that have worsened due to incarceration. Deportation will likely exacerbate these mental health issues, especially given his complete absence of family support in Chile and his strong emotional distress at the prospect of removal. The available evidence demonstrates that deportation will significantly impact his mental and physical well-being, as he lacks access to ongoing medical treatment and a support network in Chile. > > (d) While it is acknowledged that Mr Martinez was born in Chile and retains proficiency in Spanish, his integration into Chilean society presents significant challenges. Since arriving in Australia in 1991, he has spent over 34 years in Australia and has assimilated into Australian culture. His primary language of communication in his professional and personal life has been English, as evidenced by his employment and community ties in Australia. > > (e) Although departmental records indicate he has travelled to Chile for business, these visits were brief and do not equate to sustained engagement with Chilean society. His ability to navigate modern Chilean bureaucratic, financial, and social systems will be severely impaired by his long absence. Unlike the experience of Chilean nationals who have resided continuously in their home country, Mr Martinez has not built a contemporary support system or familiarity with the evolving economic and legal frameworks of Chile. > > (f) Mr Martinez will have no family support, financial assistance, or established residence in Chile upon removal. Unlike Australian citizens who may have state-funded welfare and healthcare access, his ability to secure adequate medical care, stable employment, and housing in Chile is uncertain and precarious. Mr Martinez's entire immediate family, including his four daughters, grandchildren, and sister, reside in Australia. His deportation would sever his vital family support network and leave him completely isolated in Chile. > > (g) The Chilean healthcare system is marked by disparities, with limited access to affordable, quality healthcare for non-residents or individuals without social security contributions. Given his chronic physical injuries and mental health conditions, the lack of accessible and affordable healthcare in Chile would result in a deterioration of his health. > > (h) While Mr Martinez has a history of employment in Australia, his ability to secure work in Chile is highly uncertain. He lacks a local professional network and faces age-related barriers to employment in a competitive job market. His history in construction and trade work is unlikely to provide him with stable employment due to his physical limitations. Additionally, his psychological profile suggests that the stress and isolation of removal will likely exacerbate his mental health issues, making it even more difficult for him to find and maintain employment. > > (i) The evidence from psychological reports and family statements confirms that deportation will have severe mental health consequences for Mr Martinez. His children and extended family in Australia have expressed deep concerns about his well-being, potential homelessness, and psychological decline if removed to Chile. The psychologists' reports show depression, anxiety, and emotional instability. Given his existing psychiatric history and the traumatic impact of deportation, he faces a substantial likelihood of developing more severe psychological conditions, including suicidal ideation. > > (j) Considering Mr Martinez's age, medical conditions, absence of social and financial support, limited economic opportunities, and severe psychological distress, it is submitted that he will face very serious impediments if removed to Chile. The cumulative effect of these factors strongly weighs against his deportation and in favour of revocation. > > (k) This other consideration weighs in Mr Martinez's favour.

2. Summarising Ms Williams' contentions as the Tribunal apprehends them:[69]

(a) The Respondent acknowledges that Mr Martinez would likely face short-term practical, financial, and emotional hardship upon return to Chile due to a lack of close family and social support. However, the Respondent contends that any barriers to employment are not insurmountable, and therefore the practical and financial hardships will diminish over time.

(b) The Respondent submits that the extent of impediments faced by Mr Martinez in the long term would be limited for the following reasons:

1. Mr Martinez lived in Chile until young adulthood and is fluent in Spanish, suggesting he would not experience substantial cultural or language barriers.
2. Mr Martinez has demonstrated proficiency in maintaining consistent employment and running businesses in Australia, including as a painter and in gold mining operations that required travel to Chile. His history of regular travel to Chile for work indicates he has or could develop professional contacts there.

(c) Mr Martinez is fifty-six years old with a previous work-related injury. He currently takes pain medication for his leg, has reportedly lost 45% of movement in his right foot, and may require surgery. Medical records indicate he was referred to an orthopaedic surgeon in January 2025. Psychological assessments cite symptoms of depression, anxiety, and trauma, with recommendations for counselling.

(d) While Mr Martinez's family has raised concerns about his mental health and access to medical support in Chile, the Respondent notes that his medical records do not indicate he is currently taking medication for mental health conditions. Furthermore, there is no evidence suggesting he would be unable to obtain necessary medical, health, or welfare services in Chile. Publicly available information indicates that Chile's public health infrastructure is robust and well-functioning.

(e) Accordingly, the Respondent contends that this consideration should be given only moderate weight in favour of setting the reviewable decision aside.

1. This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Martinez, if removed from Australia to Chile, 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 Martinez is fifty-six.
2. Mr Martinez is in only moderate physical health due to a prior work injury. He has or has had depression or depressive symptoms for a sustained period since his separation from his wife.
3. In assessing Mr Martinez's mental health in terms of his anxiety and depression claims, the Tribunal acknowledges the Federal Court's decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[70] and particularly paragraphs [12] - [14] of that decision. It is more likely than not that, if he is deported to Chile, his depressive symptoms or depression would be exacerbated. In turn, this health-related issue would adversely affect his efforts to achieve basic living standards there.
4. The Tribunal considers, based in part on its assessment of Primary Consideration 3, that Mr Martinez likely faces a significant and substantial loss of emotional, psychological and potentially financial support due to separation from his immediate family if he is removed to Chile.

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

1. The Tribunal considers that Mr Martinez, based on his oral testimony and the evidence before the Tribunal, would not face any significant linguistic difficulties if he returned to Chile.
2. The Tribunal, applying the same reasoning, also considers that Mr Martinez 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. The evidence before the Tribunal indicates that Mr Martinez likely faces relatively less social, medical and economic support in Chile than in Australia. 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. Consequently, the Tribunal considers that Mr Martinez may be confronted by impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other Chilean citizens.
2. Mr Martinez does not appear to have any active personal social networks available to him in Chile.

1. The Tribunal has considered above the extent of any impediments that Mr Martinez, if removed from Australia to Chile, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
2. Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely, if Mr Martinez is returned to Chile, that he would face emotional, psychological, practical and financial hardships, as well as 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. After assessing its totality, the Tribunal finds that this Other Consideration carries significant weight in favour of setting aside the reviewable decision.

OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS

1. There is no evidence and testimony before the Tribunal enlivening this consideration.

1. The statutory framework poses two issues for the Tribunal to address:

(a) character test: whether there is a reasonable suspicion that Mr Martinez does not pass the character test in terms of s 501(6)(b), and whether Mr Martinez satisfies the Tribunal that he passes the character test,[71] and, if not,

(b) exercise of discretion: whether there is another reason whether the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.

1. The Tribunal found above that it was satisfied that Mr Martinez did not pass the character test.
2. The Tribunal has applied the Direction to this matter's specific circumstances in determining whether there is 'another reason' to set aside the reviewable decision.
3. Addressing Primary Consideration 1, the Tribunal found that Mr Martinez' offending is very serious, that the consequences of any such future offending of the type that Mr Martinez has previously engaged in could result in serious harm to members of the Australian community and that the likelihood of his future re-offending is small. The Tribunal further found that Primary Consideration 1 in its totality weighs in favour of affirming the reviewable decision.
4. Primary Consideration 2 is neutral.
5. The Tribunal found that Primary Consideration 3 carries strong and substantive weight towards setting the reviewable decision aside.
6. Primary Consideration 4 carries moderate weight in favour of setting the reviewable decision aside.
7. The Tribunal found that Primary Consideration 5 weighs in favour of affirming the reviewable decision.
8. The Tribunal found that the legal consequences of the decision regarding Mr Martinez's Visa weighs moderately in favour of setting the reviewable decision aside, in tandem with the 'risk of harm' additional consideration.
9. The Tribunal found that the extent of impediments Mr Martinez would face if he were removed to Chile carry significant weight in favour of setting the reviewable decision aside.
10. Other Consideration (c) carries neutral weight.

1. The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction).[72]
2. In addition to the 'risk of harm' claim addressed by the Tribunal under Other Consideration (a), Dr Donnelly also contended that there is a risk of discrimination facing Mr Martinez in Chile because of his Australian criminal record. Summarising Dr Donnelly's argument:[73]

(a) Individuals with criminal records, particularly those involving serious offences, face substantial employment discrimination in Chile. Mr Martinez has a documented criminal history in Australia, including a severe conviction for importing a commercial quantity of a border-controlled drug, which resulted in a seven-year, three-month prison sentence. Additionally, his record includes financial deception and multiple driving offences. Given these offences, he will encounter systemic hiring bias, legal constraints, and social stigma in Chile, severely restricting his employment opportunities. > > (b) Extensive research confirms that individuals with criminal records face significant disadvantages in the labour market. A 2023 study in Criminology & Public Policy found that despite legal frameworks intended to promote fair hiring, employers frequently use informal background checks or stereotypes to exclude candidates with criminal histories. A 2022 Criminal Justice and Behaviour study further established that public stigma against individuals with incarceration histories leads to employer reluctance to hire them, even when they demonstrate rehabilitation. Additionally, a 2019 study in the American Journal of Sociology revealed that hiring discrimination is exacerbated in areas with high crime rates, where employers are particularly risk-averse to applicants with prior convictions. > > (c) Chile's legal framework further reinforces these barriers. The Criminal Records Law in Chile (Ley de Registro General de Condenas) permits employers to request criminal records for a range of job sectors, particularly in government, education, finance, and healthcare. Unlike jurisdictions with "Ban the Box" policies, Chilean employers are not restricted from inquiring about an applicant's criminal record at any stage of the hiring process. Research from Punishment & Society (2019) confirms that 88% of surveyed employers oppose hiring individuals with serious drug-related convictions, while those with financial deception offences are perceived as untrustworthy. Such statistics illustrate that Mr Martinez will face near-insurmountable challenges in securing lawful employment in Chile. > > (d) Even in cases where individuals have rehabilitated, significant employment obstacles persist. A 2024 Sociological Science study found that even college graduates with criminal records face substantial hiring disadvantages, showing that professional qualifications do not negate an employer's concerns about prior offences. Research suggests that individuals convicted of drug importation offences face heightened stigma, with employers unwilling to take perceived risks associated with such convictions. Consequently, Mr Martinez will likely be excluded from stable employment, limiting his ability to reintegrate into society and increasing his risk of long-term economic marginalisation. > > (e) Given the legal, societal, and economic realities in Chile, Mr Martinez will encounter widespread and systemic employment discrimination. His criminal history, particularly the drug importation conviction, places him at a severe disadvantage in obtaining lawful work. Employers are likely to reject applications based on background checks, legal discretion, and social bias. Therefore, any assumption that he will successfully reintegrate into Chile's workforce is unrealistic. > > (f) This additional consideration weighs in Mr Martinez's favour.

3. The Tribunal observed to Dr Donnelly that much - but not all - f the research cited in support of this additional consideration related to the United States of America rather than Chile, which point Dr Donnelly accepted. The Chilean-specific research was informative on this additional contention. In terms of the capacity for people in Chile to learn of Mr Martinez's offending history, Dr Donnelly referred to the ubiquity of Internet search applications.
4. While accepting that this additional consideration supports setting the reviewable decision aside, the Tribunal gives it only slight weight.

1. The Tribunal has set out above its findings on the weight attributable to the Direction's Primary Considerations and the Other Considerations.
2. The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[74]
3. In applying this process, the Tribunal has regard to the Direction and specifically Paragraph 7(2):

"The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations." (Emphasis added.)

1. The use of the term 'generally' can be argued to have the implicit effect of negating a decision‑maker's discretion to set aside a decision by always giving Primary Consideration 1 greater weight than the combination of all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
2. The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[75] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[76]
3. Two further authorities offering guidance are His Honour Justice Dowsett's decision in Aksu v MIMA[77] at [10] - [13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and His Honour Justice Sackville's decision in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[78] at [54].
4. The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion:

"(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion." (Emphasis added.)

1. Taken together these points above support the counter-argument that the Tribunal retains a discretion to determine whether 'greater weight' should be given to Primary Consideration 1 in a specific matter.
2. The Tribunal considers that, in this matter, Primary Consideration 1's greater weight is not enlivened. Having conducted and considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations, the Other Considerations and the Additional Consideration in this matter, this Tribunal finds that it is satisfied on the balance of weights and considerations that there is another reason to set aside the reviewable decision.

1. Pursuant to s 105 of the ART Act, the Tribunal sets aside the decision made by the delegate of the Respondent on 11 February 2025 not to revoke the cancellation of Mr Martinez's Visa and substitutes it with a decision to set aside the cancellation of Mr Martinez's Class BB Subclass 155 Five Year Resident Return visa.

I certify that the preceding one hundred and fifty eight paragraphs (158) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave

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

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

[5] Applicant's testimony and Exhibit R1: G38.

[9] Pursuant to s 501CA(4)(a) of the Act.

[10] Pursuant to s 501CA(4)(b)(i) of the Act.

[11] Pursuant to s 501CA(4)(b)(ii) of the Act.

[13] Migration Act 1958 (Cth) s 501(6).

[15] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.

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

[18] 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.

[19] 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).

[20] 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.

[26] Direction, [8.1.1(1)(e) and (f)]

[28] Direction; [8.1.1(1)(a) and (b)].

[33] BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14 (BNY23), [107] (Rangiah, Derrington and Rofe JJ).

[34] McKay v R [2000] FCA 155 [14]-[15] (Spender J).

[35] See for example: Sentencing Advisory Council (Vic), 'Imprisonment' (Web Page, updated 7 May 2024) .

[38] 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].

[39] 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.

[40] 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).

[41] (1997) 191 CLR 559, 574 ('Guo').

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

[47] 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].

[48] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].

[55] FYBR v Minister of Home Affairs (2019) 272 FCR 454 ("FYBR"), at 471-2 [66] (Charlesworth J), and 476 [91] (Stewart J).

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

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

[58] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.

[59] Clause 155.211, Migration Regulations 1994.

[63] 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.

[65] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582

[70] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.

[71] Section 501(2) of the Act.

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

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

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

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

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