1. Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's policy guidelines ('General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)'), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

The purpose of the visa holder's travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. In his submission to the Tribunal dated 24 June 2025 the applicant states that he travelled to Australia in November 2019 on a Tourist visa and was granted a Student visa in July 2020 and another one in December 2022. He has completed a number of courses in Australia and in June 2023 he was granted a Subclass 485 visa. The applicant provided to the Tribunal evidence of his course completion. The applicant refers to his employment, in the occupation of cook / chef in regional NSW, stating that his employment is relevant to his study and that he is fulfilling the purpose of the visa. The Tribunal accepts that the applicant is fulfilling the purpose of his stay in Australia as he has completed study in Australia and is engaged in an occupation that is relevant to his study. The Tribunal accepts that the applicant has the support of his employer who has provided written evidence to the Tribunal, and that the employer is willing to sponsor the applicant for a further visa.
2. As for the compelling need to remain in Australia, the applicant told the Tribunal that his niece lives in Melbourne and, traditionally, he has a 'special status' with his niece as a maternal uncle. This is addressed more fully below. The applicant also refers to his employment and the contribution he makes to his employer and the community more broadly. However, as the applicant is due to stand trial in early 2026, the Tribunal is of the view that he will not be required to leave Australia before that date, whether or not he has a compelling need to remain in Australia.

The extent of compliance with visa conditions

1. There is no evidence of any non-compliance with visa conditions.

The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)

1. The cancellation of the applicant's visa will have significant repercussions for his ability to seek another visa in the future and to gain permanent residence. (This is discussed more fully under the legal consequences, below). The Tribunal accepts that the limited visa options resulting from the cancellation may cause significant hardship to the applicant.
2. The applicant told the Tribunal that his father is old and does not work and his mother has health issues. He states that since his arrival in Australia he has been financially supporting his family overseas. The applicant states that if his visa is cancelled, his parents will not have any financial support as he is the only one able to support them. The Tribunal does not accept that the cancellation of the applicant's visa will result in financial hardship for his parents, given that the applicant's visa was due to expire on 29 June 2025 and has expired at the time of this decision. Irrespective of the outcome of this review, the applicant would be required to seek another visa, with permission to work. Notably, his more recent evidence to the Tribunal is that he does not presently hold a visa and he might therefore not have the permission to work if he is an unlawful non-citizen. It is the applicant's status as an unlawful non-citizen due to the expiry of the visa, rather than the cancellation of the visa, that can cause financial hardship. The Tribunal cannot speculate as to whether the applicant would be granted another visa with permission to work and how long that process might take.
3. The applicant states that the cancellation of the visa would emotionally affect his parents as he was thinking of a better future in Australia and he planned to apply for the subclass 482, or another, visa. (In his July 2025 written submission the applicant concedes that he cannot apply for the subclass 482 visa but has outlined other visa options.) The Tribunal is unconvinced by the claim that the applicant's parents would be emotionally affected if his visa is cancelled primarily because there is little evidence before the Tribunal to indicate that the applicant's parents have a meaningful understanding of the Australian immigration system and that they appreciate the difference between different visa types. If the applicant's claim is that the cancellation if his visa will preclude his permanent residence in Australia in the future, the Tribunal has formed the view, as noted above, that the applicant's ability to gain a permanent visa in the future is, at present, completely speculative. It is notable that the setting aside of the present cancellation will not enable the applicant to remain in Australia due to the expiry of his visa and the applicant will need to seek another visa to be able to remain in Australia. It cannot be assumed that any other visa would be granted.
4. The applicant told the Tribunal that he has been planning a better future and to have a business with his sister and that is not possible if his visa is cancelled. The Tribunal accepts that the applicant will have limited visa options if his visa is cancelled but his ability to remain in Australia and build a better future and work with his sister are dependent on the applicant being granted another substantive visa.
5. In his submission of 21 July 2025 the applicant states that his employer is willing to support him to apply for a Subclass 407 visa, given the value that he brings to the employer, and that option would only be available to him if the cancellation is set aside. The applicant provided a letter of support from his employer Mr Huang. The Tribunal is mindful that this evidence contradicts the applicant's oral evidence that he intends to engage in a business with his sister but the Tribunal accepts the applicant's and his employer's evidence that there is another visa option available to the applicant that may not be available if his visa remains cancelled. That is, the Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant and potentially to his employer due to the future visa limitations and the exclusion period.
6. As for the hardship to the employer, the Tribunal notes that the applicant is not permitted to work as an unlawful non-citizen and in his submission of 21 July 2025 he confirms that he has not applied for a visa and is an unlawful non-citizen. Thus, if the applicant and his employer do comply with their obligations under the Migration Act, the applicant would cease his employment. (It is not apparent from the employer's statement of 21 July 2025 that this has occurred.) The applicant's own evidence is that he is eligible to apply for a Bridging E visa but that process may take time. In these circumstances, the Tribunal does not consider that, at least in the immediate future, it is the cancellation of the visa, rather than the applicant's status as an unlawful non-citizen, that may cause hardship to the employer.
7. The applicant also refers to potentially being unable to travel to other countries but there is no evidence before the Tribunal concerning any migration requirements concerning other countries that would preclude the applicant's entry as a result of the visa cancellation. The Tribunal does not accept that claim.
8. The applicant refers to the hardship of being unable to contest and manage his criminal matters in Australia, as he notes he cannot apply for a criminal justice visa that must be initiated by the DPP. The Tribunal is not convinced that the applicant will be removed from Australia prior to the commencement of his trial although the Tribunal acknowledges that there is a possibility that the applicant may be detained as an unlawful non-citizen if his visa remains cancelled and if he is not granted another visa. As noted elsewhere, that possibility exists even if the present cancellation is set aside, noting that the applicant will remain as an unlawful non-citizen.
9. The applicant refers to the presence in Australia of his sister and niece, who are Australian citizens. The applicant states that he has travelled to Australia to support them, has lived with these relatives for a number of years previously and developed extensive family ties. The applicant refers to the support he has provided to the family and his relationship with his niece and states that the close relationship continues despite his relocation. There are before the Tribunal statements from the applicant's sister, the applicant's own statement, as well as other evidence concerning their relationship such as photographs and evidence of contact. There is evidence that the applicant's sister sought to arrange bail for him and to pay a security. The Tribunal is prepared to accept that the applicant has a close relationship with his sister and niece, although the fact that the applicant is able to maintain a meaningful relationship with his family in Australia despite not living in the same household would suggest that he would equally be able to maintain that relationship if he was living in another country.
10. The applicant also submits that if his visa is cancelled, he will be precluded by the exclusion period from returning to Australia. The Tribunal accepts that this is so. The applicant refers to the different time zones that may hamper his communication with his family in Australia and the Tribunal accepts that communication may be more difficult (but not impossible) if the applicant resides overseas. The Tribunal is mindful, however, that at present the applicant does not have a visa that would enable him to remain in Australia and must apply for another visa. He may or may not be granted one. It is not necessarily the application of the exclusion period that may prevent the applicant's ability to remain in Australia and to interact with his family here.
11. The applicant refers to his romantic relationship and claims that he and his partner live together and may be considered as being in a de facto relationship but in his submission of 21 July 2025 the applicant states he does not wish to rely 'significantly' on this relationship. Nevertheless, the applicant refers to supporting his girlfriend and claims that this consideration should be given weight. However, the applicant presented very little evidence of the relationship and no evidence from this 'girlfriend' to support his assertions. The Tribunal is unwilling to give weight to the applicant's evidence in the absence of probative evidence of the relationship and the partner's circumstances.
12. Overall, the Tribunal accepts that hardship would be caused to the applicant and others if his visa is cancelled.

The circumstances in which ground of cancellation arose.

1. The ground for cancellation arises because the Tribunal has formed the view that the applicant's presence in Australia may be a risk to the safety of a segment of the community. The ground for cancellation does not arise because of relationship breakdown.
2. The circumstances of the alleged offending are set out above and the Tribunal has had regard to the Police Facts Sheet. The Tribunal acknowledges the applicant's denial of any wrong-doing.

The past and present behaviour of the visa holder towards the Department

1. Nothing adverse is known about the applicant's behaviour towards the Department.

Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140

1. There are not persons whose visas would, or may be subject to consequential cancellation.

Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia's non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal

1. If the applicant's visa is cancelled, and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he will be detained indefinitely. The applicant told the Tribunal that he may be granted a Criminal Justice visa to await his trial in 2026 but it is up to the DPP to initiate this process.
2. If the applicant's visa is cancelled, there would be restrictions on the applicant's future visa applications as he would be subject to the exclusion period in PIC 4013 and restrictions imposed by s. 48 of the Act. The applicant also submits that he may be prevented from travelling to other countries but as noted elsewhere, there is no evidence before the Tribunal to support that assertion.
3. The applicant told the Tribunal that his visa would have expired on 29 June 2025. That is, the applicant would not be a holder of a substantive visa irrespective of the outcome of this review. The applicant told the Tribunal that if his visa is cancelled, he will not be able to apply for other visas and might not be able to work but if his visa is reinstated, he was planning to apply for a Subclass 482 visa. The applicant subsequently informed the Tribunal that he is not entitled to seek that visa but can apply for a subclass 407 visa and his employer has offered support. The Tribunal notes that due to the expiry of the applicant's visa, the applicant will be an unlawful non-citizen whether or not the present cancellation is set aside. The applicant's own evidence to the Tribunal is that while he is eligible to apply for Bridging E visa, that might take a long time, given the character considerations, and he may not be granted that visa and be detained. In the Tribunal's view, the possibility of the applicant remaining an unlawful non-citizen and being detained is not the consequence of the present decision but a consequence of the expiry of his visa and character issues. The Tribunal notes that even if the cancellation is set aside and the applicant applies for another visa onshore, there is no guarantee that he will be granted a Bridging visa in association with that application.
4. The Tribunal accepts that if the applicant's visa is cancelled, a legal consequence of that decision is that the applicant may have very limited ability to seek another substantive visa onshore and, conversely, if the visa is not cancelled, the applicant does have the option of seeking another visa. However, the Tribunal does not consider that the possibility of the applicant being detained as an unlawful non-citizen and any hardship arising from such detention and from the uncertainty of visa status, is necessarily a consequence of the cancellation of his visa.

Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia's non-refoulement obligations

1. There is no evidence to indicate, and the applicant does not claim, that Australia's protection obligations arise in this case. In terms of family unity, the applicant's 'girlfriend', sister and niece live in Australia while his parents remain overseas. The cancellation of the visa need not result in the applicant having to depart Australia immediately while the setting aside of the cancellation does not result in the applicant being able to remain in Australia as a lawful non-citizen. The applicant will have the option of seeking other visas in the future. The Tribunal does not consider that principles of family unity will be breached as a result of the cancellation.
2. The applicant told the Tribunal that his niece lives in Melbourne and he has a special status as a maternal uncle as they had lived together in the past and they are close. The applicant states that he was invited to come to Australia by his sister to help raise the child, he used to live in the same household and take the child to school and pick her up. The applicant's evidence is that he lives in Newcastle and when the sister lived in Newcastle, they were very close but his sister's family have now moved to Melbourne. The applicant states that since his sister moved to Melbourne, they call each other frequently and his sister had visited him many times. The applicant submits that such visits and such a relationship would not be possible if he was to leave Australia as a result of his visa being cancelled.
3. The applicant provided a number of statements and other material in his submission of 21 July 2025. The Tribunal is prepared to accept that the applicant has a close relationship with his Australian sister and her family, but the Tribunal does not consider that the decision on the present visa would affect the applicant's ability to interact with his niece. The applicant can continue to speak with his sister and niece whatever visa he holds or if he does not hold a visa at all (even if the present cancellation is set aside). The cancellation of the present visa is unlikely to result in the applicant having to depart Australia as he is likely to remain in Australia to await the trial. The Tribunal is also mindful that the applicant's parole conditions would prevent him from travelling interstate to visit his sister and niece. Thus, the Tribunal does not accept that the cancellation of the present visa would affect the applicant's ability to interact with his niece or his relationship with her and it is his own evidence that despite living in different states, they have been able to maintain a close relationship.
4. In terms of the applicant's longer term ability to remain in Australia, this will be determined by the applicant's eligibility to be granted another substantive visa rather than the cancellation of the present visa, which has expired. In the circumstances, the Tribunal does not consider that the cancellation of the visa would adversely affect the best interests of the child.

1. The applicant told the Tribunal that his visa would have expired on 29 June 2025. There is nothing in s.116(1)(e) that confines the question of risk to the period of the visa which is the subject of the cancellation. The applicant's evidence is that irrespective of the outcome of this review, he would remain in Australia to await the outcome of the trial and he may be granted a Criminal Justice visa. Whether or not his visa is reinstated, the applicant will remain in Australia for some time either as a holder of some visa or as an unlawful non-citizen if he is not granted another visa. The assessment of future risk must therefore be based on the fact that the applicant will be able to live in Australia for some time. The Tribunal is mindful that if the applicant is not granted another visa, he is liable to be detained as an unlawful non-citizen and it is possible that the applicant's immigration detention would reduce the risk to the community.
2. In his submission to the Tribunal of 24 June 2025 the applicant provided a number of character references. The Tribunal accepts that those who provided these character references believe the applicant to be a good person, although these do not mention the charges laid against the applicant and it is not apparent that the referees are aware of the charges.
3. The applicant refers to his community work in Australia and states that this work would be affected if his visa is cancelled. The applicant states that if his visa is cancelled, he cannot apply for another visa. The Tribunal accepts that the applicant will not be able to apply for another visa if his visa is cancelled, but also notes that it cannot be assumed he would be granted another visa even if the present visa is reinstated. Thus, the Tribunal does not accept the applicant's ability to engage in community work would be affected by the cancellation of the present visa, rather than by his ability to meet the requirements for the grant of another visa.
4. The applicant states that he has a good relationship with a female friend, they have been together for three years and may be thinking of a future together. This friend holds a subclass 485 visa and is able to remain in Australia until 2030. The Tribunal is mindful that the applicant has presented no documentary evidence of that relationship and no evidence from that friend. The Tribunal notes that if the applicant does have a de facto relationship with this person and if she were to gain permanent residence in the future, she could sponsor the applicant for a Partner visa. In the meantime, the applicant's interactions with that person can continue as the applicant would remain in Australia at least to await the outcome of his trial, irrespective of the outcome of the review.
5. The applicant provided to the Tribunal a copy of his 2024 Income Tax assessment. The Tribunal accepts that the applicant has paid taxes and the Tribunal accepts evidence of his employment (while noting that the applicant has been an unlawful non-citizen since the cancellation of his visa and does not appear to have held permission to work since that time).
6. The applicant also refers to his conduct at work, his voluntary activities and his contribution to the community, stating that his activities demonstrate he is not a risk to the community. In the Tribunal's view, a risk to the community can exist whether or not a person undertakes voluntary activities and contributes to the community.
7. The Tribunal has considered the totality of the applicant's circumstances. The Tribunal has formed the view that the applicant's presence in Australia is or may be a risk to others (in particular, women in the community) and that there are grounds for cancelling his visa.
8. The Tribunal has formed the view that the alleged offending was of very serious nature capable of causing significant harm to others. The circumstances in which the ground for cancellation arose weigh very heavily in favour of the cancellation.
9. The Tribunal has decided that the cancellation of the applicant's visa would not be in breach of Australia's international obligations. These factors are neutral. There is no evidence of any non-compliance with visa conditions and the Tribunal has determined that the applicant is fulfilling the purpose of his stay in Australia. The Tribunal has accepted the applicant's evidence that he contributes to the community, including through his voluntary activities and employment, and that he has a strong relationship with his family in Australia. These factors weigh against the cancellation.
10. The Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant, particularly as it would effectively preclude him from seeking most other visas in Australia and because of the potentially significantly adverse legal consequences to the decision to cancel. The Tribunal also acknowledges that there is a possibility of the applicant being detained, although that would seem to be a consequence of the applicant no longer having a visa (his visa having expired) rather than of the cancellation of the visa. These factors weigh against the cancellation.
11. Ultimately, the Tribunal has decided that in the circumstances of this case, the correct and preferable decision is to set aside the cancellation of the applicant's visa to enable him to make a further visa application in Australia. As the applicant no longer holds a valid visa, the setting aside of the cancellation will not enable the applicant to remain in Australia. Rather, it will enable him to pursue other visa options. Importantly, any future visa application would necessarily involve an assessment of the applicant's character. Should the applicant commit any further offences, or should he be found guilty of the offences set out above, this will no doubt be relevant to the assessment of the applicant's character in relation to any future application.
12. The Tribunal also places some weight on the fact that the cancellation of the applicant's visa, in present circumstances, is unlikely to result in the applicant having to leave Australia and, as such, will not enhance the aim of protecting the Australian community. This is because the applicant will remain in Australia while awaiting the trial and he has been granted bail. Despite the cancelation of his visa some six months ago, the applicant remains in the community and not in immigration detention, so there is a real likelihood that he will continue to remain in the community even if his visa remains cancelled. In the circumstances where the applicant will be able to remain in Australia and may remain in the community irrespective of the outcome of this review (i.e. where the protection of the community is not enhanced by the cancellation), the Tribunal has decided that the applicant should retain an opportunity of seeking further visas in the future and that the assessment of his conduct should be considered in the context of character considerations in relation to a future visa application.
13. In the circumstances of this case, the Tribunal has decided to give the greatest weight to the hardship that would be caused to the applicant by the cancellation and the legal consequences of the decision to cancel, which would effectively preclude future visa options onshore. The Tribunal determines that in the circumstances of this case, these considerations outweigh others.
14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 485 (Temporary Graduate) visa.

Representative for the Applicant: Carina Ford Immigration Lawyers

[1] Gong v MIBP [2016] FCCA 561

[2] Djokovic v MICMSMA (2022) 289 FCR 21.

[3] See generally, Macquarie Dictionary, revised 3rd edition, 2001.

[4] Macquarie Dictionary, revised 3rd edition, 2001.

[5] Bethell v MHA [2019] FCCA 1740

[6] MZAJA v Minister for Immigration and Anor [2017] FCCA 448