MIGRATION - mandatory cancellation of visa - Chilean citizen - theft - property offences - family violence - drive while disqualified - possess prohibited drug - failure to pass character test -serious offending - whether another reason mandatory cancellation should be revoked - Ministerial Direction No. 110 applied - decision set aside

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Cas CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35],

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876

Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003

Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

1. Mr Ruiz Vergara seeks review of a decision, made on by a delegate of the Minister on 10 September 2025, refusing to revoke the mandatory visa cancellation of his Class BF Transitional (Permanent) visa. On 3 December 2025, the Tribunal decided to set aside the decision under review. These are the reasons for that decision.
2. The parties appeared at the hearing by video. Mr Ruiz Vergara was self-represented and gave oral evidence and was cross examined at the hearing. No other witnesses appeared at the hearing.
3. The review had initially been listed for hearing 19 and 20 November 2025. At the outset of the hearing, it became apparent that documents provided by the applicant to the Tribunal had not been received by the respondent. To allow compliance with sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth), and for the respondent to have two clear business days to consider the documents, the Tribunal adjourned the hearing, and the hearing proceed on 24 and 25 November 2025 instead.
4. The parties have provided the following documents in the proceeds, which were marked as follows:

(i) A hearing book provided by the respondent numbered pages 1 - 684 and marked 'exhibit 1'. > > (ii) A bundle of documents provided by the applicant totalling 90 pages and marked 'exhibit 2' > > (iii) A treatment plan provided by the applicant, dated 16 June 2025 and marked 'exhibit 3' > > (iv) A letter regarding the applicant's attendance in his treatment plan dated 23 June 2025 and marked 'exhibit 4'. > > (v) A further letter provided by the applicant regarding his treatment program, dated 23 June 2025 and marked 'exhibit 5' > > (vi) A verdict and judgment record provided by the applicant marked 'exhibit 6'.

5. The respondent had also provided an amended statement of facts, issues and contentions on 31 October 2025.
6. In deciding the outcome of this review application, the Tribunal has considered the evidence the material contained in the exhibits, the evidence of Mr Ruiz Vergara given at the hearing, and the submissions made in writing and at the hearing.

1. Mr Ruiz Vergara is 52 years and was born in Chile. He arrived in Australia on 18 October 1983 at age 10.
2. On 20 September 2024, Mr Ruiz Vergara was convicted and sentenced to 12 months imprisonment for various criminal offences. Based on those convictions and the full-time sentence imposed on 14 October 2024, Mr Ruiz Vergara's visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth).
3. Mr Ruiz Vergara subsequently sought revocation of the visa cancellation and on 10 September 2025, a delegate determined not to revoke the cancellation decision.[1]
4. On 15 September 2025, Mr Ruiz Vergara made this application to the Tribunal for review of the decision. [2]

1. Section 501 of the Migration Act is relevant to a decision to refuse or cancel a visa on character grounds. The Minister may refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test (s 501(1)). A person does not pass the character test if the person has a substantial criminal record (s 501(6)(a)). Relevantly, for the purposes of the character test, a substantial criminal record applies if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
2. Mr Ruiz Vergara was convicted in a Magistrate Court on 20 September 2024, for the following offences:

(i) Receiving tainted property (2 counts)

(ii) Enter premises and commit indictable offence by break (4 counts)

(iii) Fraud - dishonest application of property of another (4 counts)

(iv) Attempted enter premises and commit indictable offence by break

1. He was sentenced to an aggregate of 12 months imprisonment.[3]
2. Pursuant to subsections 501(6)(a) and 501(7)(c) of the Migration Act, Mr Ruiz Vergara does have a substantial criminal record as he was sentenced to a term of imprisonment of 12 months, and so he does not meet the character test.
3. Pursuant to section 501CA(4) of the Migration Act, the decision to cancel the visa may be revoked if the applicant made representations seeking revocation of the mandatory visa cancellation decision and the Tribunal is satisfied that:

(a) the person makes the necessary representations - paragraph 501(CA)(4)(a); and > > (b) The Tribunal is satisfied that: > > > (i) that the person passes the character test as defined by section 501 of the Migration Act - subparagraph 501CA(4)(b)(i); or > > > > (ii) that there is another reason why the original decision should be revoked - subparagraph 501CA(4)(b)(ii).

4. Mr Ruiz Vergara did make representations seeking revocation of the mandatory visa cancellation decision as is required by paragraph 501(CA)(4)(a).[4]

Is there another reason why the original decision should be revoked? subparagraph 501CA(4)(b)(ii)

1. As Mr Ruiz Vergara does not pass the character test as required by s 501 of the Migration Act, the issue for this Tribunal to consider is whether there is another reason why the original decision should be revoked pursuant to s 501CA(4)(b)(ii).
2. Pursuant to section 499(1) of the Migration Act, the Minister may give written directions to a body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1). In this case, the Tribunal is required to comply with "Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction 110), made under s 499(1).
3. Clause 5.2 of Direction 110 provides the principles to be considered when deciding whether to revoke a mandatory cancellation under s 501CA of the Migration Act. The principles are:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege. Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

4. Informed by those principles, the Tribunal must first take into account the primary considerations contained in Part 2 of Direction 110 in deciding whether to revoke a mandatory cancellation of a non-citizen's visa. The primary considerations are set out in clause 8 and the other considerations are set out in Clause 9.
5. Mr Ruiz Vergara submits that the original decision should be revoked. The Minister contends there are no reasons that carry sufficient weight or significance to satisfy the Tribunal that the original decision should be revoked.

Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct - 8.1

1. When considering the protection of the Australian community, the Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Entering or remaining in Australia is a privilege and there is an expectation that non-citizens are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[5]
2. The Tribunal has also considered:
   • the nature and seriousness of the Mr Ruiz Vergara's conduct to date; and
   • the risk to the Australian community, should Mr Ruiz Vergara commit further offences or engage in other serious conduct.[6]

Nature and seriousness of the Mr Ruiz Vergara's conduct - 8.1.1

1. Paragraph 8.1.1 of Direction 110 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which relevantly includes:

a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: > > i. violent and/or sexual crimes; > > ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; > > iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed; > > ...

c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

1. Aside from the offences for which Mr Ruiz Vergara was convicted on 20 September 2024, a results report from the Australian Criminal Intelligence Commission shows the applicant has a lengthy criminal history in Australia spanning from 1992 to 2024.[7] Those offences largely relate to various drugs, fraud, property (including break and enters) and theft offences. There is also a conviction recorded for contravening a family violence intervention order and unlawful assault on 18 October 2012.
2. On 20 February 2018, Mr Ruiz Vergara's visa was mandatorily cancelled because on 15 June 2017 the Victorian Magistrate's Court at Melbourne you were convicted of multiple offences of theft and property offences, and he was sentenced to an aggregate of 21 months imprisonment.[8] In the transcript for the court proceedings in relation to those convictions the magistrate relevantly stated the following at the time:

In this particular case the accused, as I've said, is 43 years of age. He has pleaded guilty to these offences and I take what has been said on his behalf into account. As indicated, in my view, they are professional-type burglaries where the aim, in the metropolitan city or CBD, was to break into commercial premises and steal types of items that would be readily sold on to people or consumers. The offences, as I already indicated, some of them are aggravated by the fact that he was placed on bail. > > One cannot ignore, of course, the original offence back in 2011 where there was a house burglary where the owner of occupier of the house confronted the accused upon coming home. In my view, that would be a particularly unpleasant experience in relation to it. To have a person illegally break into your house at night, to come home to see someone who had been into your house and (indistinct) your house. > > In my view, in relation to these matters, I've already indicated that drug addiction may be an explanation for it but it's not a mitigating factor. The accused has breached four court orders in the past and breached a suspended sentence or community corrections orders. Further, looking at the CISP report, he has been placed on the CISP program three times. He completed it in 2012 but failed to complete it in 2007 and 2014. He has breached bail conditions and committed offences whilst on bail. These are serious offences and there's multiple. There's 20 burglaries. > > In my view, in this particular case general deterrence is particularly relevant and specific deterrence as well in this particular case. The accused has received terms of imprisonment in the past for similar offending to little avail. This calls, in my view, for denunciation for this type of offending. The fact is in these particular matters that these were planned burglaries of offices. In my view, in light of the accused man's past history, his prospects of rehabilitation are guarded, at its best possibly dim. I'm not sure about the conclusion. > > In my view, in this particular case, it requires an immediate custodial sentence to be imposed upon these matters, something to reflect and deter Mr Ruiz from committing further offences. It seems to me in this particular case that if he continues to reoffend in this way he can only expect to continue to spend time in prison. The community has a right an expectation that people who continue to offend in this serious way will be placed in custody if they fail to rehabilitate.

3. He subsequently appealed that conviction and the appeal was dismissed.
4. In a letter dated 15 May 2019, Mr Ruiz Vergara was notified that a decision has been made to revoke the cancellation of the visa.[9]
5. It is noted that the Mr Ruiz Vergara subsequently engaged in further offending after revocation of that first cancellation.[10]
6. On 21 March 2022, Mr Ruiz-Vergara was convicted of multiple dishonesty offences, where he was sentenced to two years imprisonment, wholly suspended for the duration of a drug and alcohol treatment order.
7. On 18 January 2024, the Mr Ruiz Vergara was convicted of various fraud and dishonesty offences, as well as break and enters and possession of a knife in a public place or a school. Mr Ruiz Vergara's previous drug and alcohol treatment order was revoked, and he was sentenced to three months imprisonment.
8. On 20 September 2024, Mr Ruiz Vergara was of convicted offences including receiving tainted property, break and enter, fraud and dishonesty.
9. The transcript of the court proceedings for the convictions on 20 September 2024 reveal that Mr Ruiz Vergara pleaded guilty to the offences and the transcript relevantly provides the following statement from the sentencing magistrate:

At the time of these offences, the first offence - offences, it seem, were in April of this year, three months after he was on parole, which related to him using- it says a victim's card that had been stolen for two purchases, as the prosecutor has fairly brought to my attention and submitted, offences of low value, $58.85 and $97.97. > > The other offending then - there is a number of offences between dates of the 22nd 15 and the 25th of June. A number of vehicles are targeted in a carpark area and property stolen. It - there was also one attempt to open a car door. The facts say that the defendant, it seemed, had travelled there in a scooter with distinctive red markings, and he was bold enough to use the cards, it seems, of one of the victims of the cars he had just broken into to get a taxi away from where he had committed the offences. The more serious offences, though, when it comes to the property and the value - charges for 10 and 11 on page 2 of 5 - when the police did go to his address, they located a brand new vehicle light bar, which was hidden behind a couch, throttle controller, exhaust remote, tyre deflator, a CP AP machine bearing "Property of PA Hospital" located with a black pouch with patient - there were patient details, multiple wallets, small green Makita nut-driven bit holder box, G-Scan 2 automotive scan tools, student card, library card, state library card, cinema card in the name of [...]. > > ...I do consider the more - that that is particularly serious offending, the amount of property found by - the amount of property found by police. In relation to Mr Ruiz Vergara's antecedents - again, considering the lateness of the day on a Friday afternoon, I will be brief in what - in what - my sentencing remarks - is that Mr Ruiz Vergara was born in Chile. His family fled the Pinochet regime. They came to Australia. Mr Ruiz Vergara is educated. He has several qualifications and has a good work history. He has children, and I am told his daughter has recently had a baby. I also will take into consideration. I also will take into consideration, as I know Mr Ruiz Vergara, as almost all of those sentences on his Queensland criminal history were by me, and his previous diagnosis of severe drug dependency. And on - it - his lawyer has submitted that he had lapsed into drug use again, considering the death of his grandmother, who had raised him as a child, as his mother was a young mother. > > How I might deal with it, then, today - I could either make cumulative periods of imprisonment, then, for totality reasons, I would reduce the head sentences - head sentence or I will deal with it, though, in the following way. There were periods of imprisonment, but, instead, I will declare the time in pre-sentence custody. All 5 periods of - all periods of imprisonment will be concurrent with each other and concurrent with his current period of imprisonment. > > ... In relation to - and if you follow the document that I have given you by the court, I will - I will follow that with the sentencing remarks. Fraud - two months' imprisonment; fraud - two months' imprisonment; fraud - two months' imprisonment; attempted enter premises - three months' imprisonment; enter premises - nine months; enter premises - nine months; enter premises - nine months; enter premises - nine months; enter premises - nine months - if I have said them all, that is - of each of those enter premises - nine months - receiving tainted property - 12 months; receiving tainted property- 12 months. > > It is a head sentence of 12 months' imprisonment. All periods of imprisonment are concurrent with each other and concurrent with your current sentence. I declare as time already served 77 days between the 5th of July '24 and the 19th of September '24. Considering your antecedents, your drug dependency, that your parole will automatically be cancelled as a consequence of today's sentencing- I am told by your lawyer parole actually had not been cancelled, which suggests you were doing well on parole. You also tell me you were doing well on parole, and you lapsed into use at- due to news you had received regarding family. So your eligibility date for parole is today, the 19th of September '24.

10. Mr Ruiz Vergara's previous cancellation and revocation is demonstrative that he has been "formally warned, or... otherwise...made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status" (paragraph 8.1.1(1)(h)). He continued to offend following his previous revocation which demonstrates the seriousness of his offending.
11. The criminal check reveals that Mr Ruiz Vergara has been convicted offences which may be regarded as violent crimes (paragraph 8.1.1(1)(a)(i)):

(a) On 6 February 2003, Mr Ruiz Vergara was convicted of intentionally causing injury and intentionally damaging property. > > (b) On 28 September 2004, Mr Ruiz Vergara was convicted of recklessly causing injury and criminal damage (intent damage/destroy). > > (c) On 18 October 2012, the applicant was convicted of contravening a family violence intervention order, unlawful assault and possessing a controlled weapon without excuse.

12. In relation to the contravention of a family violence order, Mr Ruiz Vergara stated at the hearing he could not remember the exact circumstances and that it may have involved his now deceased ex-wife around the time of their separation.
13. In relation to the offences which might be considered violent, there are offences of intentionally causing injury and recklessly causing injury. Mr Ruiz Vergara stated at the hearing that they were regarding the same offence, and that the offence had been reduced from intentional to reckless. The Tribunal accepts that was the case. Mr Ruiz Vergara stated that the offence may have involved a cab driver chasing him, grabbing him and putting him back in his vehicle.
14. Mr Ruiz Vergara has also been convicted of possession of a knife in a public place. He stated that he had because it was a tool he was using to do exhibition setups. He has also charged with possession of controlled weapon without excuse which he stated was a box cutter which he needed for work. Those crimes involve violence but were committed some time ago.
15. As stated above, Mr Ruiz Vergara has a lengthy criminal history comprised of numerous and varied offending between the years of 1992 and 2024 including 18 counts of burglary, 16 counts of theft, 2 counts of theft from a shop and multiple dishonesty offences. When he was sentenced to imprisonment which was wholly suspended for the duration of a drug and alcohol treatment order, Mr Ruiz Vergara failed to complete the drug and alcohol treatment order. He stated that he failed to complete the drug and alcohol treatment order with two weeks left, because he needed to return to work.
16. There is little evidence of the impact of the offending or conduct on any victims.
17. Mr Ruiz Vergara has also received numerous sentences for his offending over the years, including terms of imprisonment such as 12 months (paragraph 8.1.1(1)(c)). The offending has been frequent, but there has not been any obvious trend of increasing seriousness (paragraph 8.1.1(1)(e)). The repeated offending has had a detrimental effect on the Australian community (paragraph 8.1.1(1)(f)). Mr Ruiz Vergara has also committed numerous theft/financial-related crimes, which are likely to have caused economic and psychological detriment to the community.
18. Having considered the evidence, the Tribunal finds that the nature and seriousness of the Mr Ruiz Vergara's criminal offending to date, would be viewed very seriously by the Australian Government and the Australian community, especially in relation to the violent offences involving family violence and assault.

1. Clause 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community from harm, the Tribunal should have regard to the Government's view that the Australian community's tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.
2. In assessing the risk posed by Mr Ruiz Vergara to the Australian community, decision-makers must consider, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence on the risk of the non-citizen reoffending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. In relation to the nature of the harm to individuals or the Australian community should Mr Ruiz Vergara engage in further criminal or other serious conduct, the Tribunal finds that any future offending from Mr Ruiz Vergara of a similar nature could cause significant harm to members of the Australian community, including physical and psychological harm in the commission of violent acts, physical and psychological harm in the commission of acts possession and trafficking of illicit drugs; and financial harm and property damage in the commission of theft-related acts.
2. In the sentencing remarks made by the Magistrate on 15 June 2017, the Magistrate made the following remarks:[11]

In my view, in relation to these matters, I've already indicated that drug addiction may be an explanation for it but it's not a mitigating factor. The accused has breached four court orders in the past and breached a suspended sentence or community corrections orders. Further, looking at the CISP report, he has been placed on the CISP program three times. He completed it in 2012 but failed to complete it in 2007 and 2014. He has breached bail conditions and committed offences whilst on bail. These are serious offences and there's multiple. There's 20 burglaries. > > In my view, in this particular case general deterrence is particularly relevant and specific deterrence as well in this particular case. The accused has received terms of imprisonment in the past for similar offending to little avail. This calls, in my view, for denunciation for this type of offending. The fact is in these particular matters that these were planned burglaries of offices. In my view, in light of the accused man's past history, his prospects of rehabilitation are guarded, at its best possibly dim. I'm not sure about the conclusion.

3. The Minister made submissions that Mr Ruiz Vergara has demonstrated a clear failure to address his drug use, even after the previous revocation which would have been expected to have positively impacted his risk of recidivism. His criminal history contains numerous call ups for instances on which Mr Ruiz Vergara was unable to remain free from offending, demonstrating a flagrant disregard for the law. The Minister submits that Mr Ruiz Vergara has on previous occasions expressed aspirations to rehabilitate which have been unsuccessful and that his offending behaviour should be considered to now be entrenched and apparently unresolved, such that he harbours a very high risk of reoffending.
4. The documents provided to the Tribunal contain a series of three recent psychological reports from the same psychologist. The final report is dated 10 July 2025.[12] It indicates that Mr Ruiz Vergara attended 10 sessions from 17 February 2025 to 23 June 2025. The sessions occurred after Mr Vergara was referred by a mental health nurse for the assessment and treatment of adjustment issues on a background of substance use, grief and loss, and childhood sexual abuse. The information contained in the report is based on Mr Ruiz Vergara's self-reporting, psychological assessment scores and clinical observation.
5. The report notes the following:

(a) Mr Ruiz Vergara is currently single after his long-term partner passed away due to bowel cancer nine years ago. Mr Ruiz Vergara has two adult daughters and three grandchildren who all live in Melbourne as do his parents and other extended family. > > (b) At the time of writing the report, Mr Ruiz Vergara had spent the previous 3 weeks in immigration detention after having spent 5 to 6 months in prison on charges of fraud, receiving stolen possessions, and breaking and entering. He had stated that his father was taken away twice by the Pinochet regime for one night but returned in the morning before the family left Chile. Mr Ruiz Vergara stated that his father protected the children from understanding the extent of the danger in Chile but that as an adult he recognizes that his father was involved in views that were politically opposed to the regime. Mr Ruiz Vergara reported that he was bright and achieved good grades but struggled with impulsivity, energy and sitting still as well as experiencing bullying and racism in Australia. > > (c) Mr Ruiz Vergara was sexually abused by a priest at a Catholic school but did not tell his parents until much later. Mr Ruiz Vergara's parents took him to a psychologist at the time due to his abnormal behaviour, but he did not reveal that the abuse had occurred until he was an adult. Mr Ruiz Vergara had heart issues when he arrived in Australia, but this was treated, and he has recovered despite initially having a poor prognosis and ignoring directions not to play sport. > > (d) Mr Ruiz Vergara left school in Grade 11 and has worked various careers as an auto mechanic, on the wharves, in construction, and completed an engineering degree but never worked as an engineer. > > (e) Mr Ruiz Vergara has found interpersonal relationships, especially with authority figures, difficult and was prone to obsessional thinking that could result in prolonged periods of anxiety, low mood and social withdrawal. Mr Ruiz Vergara has also been prone to obsessional cleanliness and order within his life which appeared consistent with obsessive compulsive disorder. He described getting bloody noses from periods of obsessive concentration. > > (f) In 2008, Mr Ruiz Vergara and his wife bought a house, and he had to travel long distances to work each day. This resulted in increased time away from his family. The couple remained together for the children, but there were extended periods in which he and his wife lived separately. It was during that period in 2008 that he first started using heroin after being offered it by a man who worked near him and travelled on the same train. He stated that he formed a heroin addiction. > > (g) Mr Ruiz Vergara's ex-wife wife had long-term kidney issues requiring dialysis. She developed bowel cancer and died 18 months later. Although they were separated by that stage, Mr Ruiz Vergara supported her during the period. Mr Ruiz Vergara ceased heroin use in 2016 while in jail four months and after his wife passed. > > (h) In approximately 2019, Mr Ruiz Vergara moved to QLD to avoid association and triggers for his past criminal lifestyle. He continued to have employment and positive relationships with his children but started using methamphetamine which again led to criminal habits, mainly around theft and his most recent imprisonment. > > (i) The report notes that Mr Ruiz Vergara has recently commenced 15mg Mirtazapine and that this was helping him sleep and to not feel restless. The report records that Mr Ruiz Vergara has demonstrated strong motivation to engage in therapy attending every appointment without prompting and demonstrating completion of exercises, activities, and assessments outside of therapy sessions. > > (j) Mr Ruiz Vergara had identified a desire to consider the impacts of childhood sexual abuse on the pattern of substance use and low mood and difficulties with interpersonal relationships that have impacted aspects of his life. He stated that he has avoided more meaningful engagement with treatment over the course of his life as he has found it challenging and difficult to build trust and safety with a clinician. > > (k) Mr Ruiz Vergara was initially experiencing some periods of low mood and sleep disturbance which had already somewhat improved prior to treatment commencing with the mirtazapine medication. Mr Ruiz Vergara has completed some psychoeducation around attention deficit hyperactivity disorder, attachment (anxious-ambivalent) and the impact of trauma. He has also completed trauma focussed cognitive work on establishing safety in a therapeutic relationship. Mr Ruiz Vergara had not yet engaged in specific memories around the abuse, and the report notes that was considered sensible given that Mr Ruiz Vergara would experience more success with such a direct approach in in a more stable situation without stress of possible deportation impacting him. The report notes that it is quite probable that Mr Ruiz Vergara may not need to engage in such direct treatment around unpacking the specific memories because of the gains he had already made. > > (l) Mr Ruiz Vergara has completed work around examining the underlying schema around the abuse and to challenge the evidence behind these schemas and other beliefs. The report records that Mr Ruiz Vergara has been able to deconstruct beliefs of self-blame and guilt that may have impacted unhelpful thinking patterns that contributed to feelings of self-worth and difficulties previously in managing relationships. Mr Ruiz Vergara has also identified his history of triangulation avoiding discussing problems and difficult emotions with his supports and instead seeking out avoidance with work or substance use. > > (m) Mr Ruiz Vergara has been able to build his relationships with his daughters while undertaking therapy so that he can more directly address his emotions without falling into similar patterns of avoidance. Mr Ruiz Vergara had also explored his obsessive-compulsive traits and identified patterns of cleanliness, ordering, symmetry, and checking that were rated as 'severe' by a completed Yale Brown OCD screener and which had a reasonable impact on his mental state throughout his life. The report notes that Mr Ruiz Vergara had learned to manage some compulsive cleanliness while in immigration and that may have been an aspect of his overall improvement in mood. Mr Ruiz Vergara has set some new homework activities about challenging some rituals around cleanliness and order and will continue to engage in this work in ongoing treatment. > > (n) The report notes that Mr Ruiz Vergara has engaged in values-based work setting goals and planning for maintenance of his current functioning once he is no longer in immigration detention. He identified supports in the community that he would engage in as well as planning to retain regular exercise and social contact that have been beneficial for him and he has identified the avoidance of were precursors to his past mental health, substance use, and offences. > > (o) Mr Ruiz Vergara is applying the treatment he has completed to his current situation and for planning for future maintenance of progress. He is continuing to engage in other supports such as Drug Arm counselling and has completed outcomes measures indicate that he is not currently experiencing any mood or anxiety symptoms.

6. The Tribunal accepts that Mr Ruiz Vergara has taken responsibility for the crimes he has committed, and which have led to the cancellation of his visa. In written submissions he stated:

I feel profound guilt and shame for the harm I have caused. This is not just because of the consequences I now face, but primarily for the impact on the victims of my offenses, my family who have suffered deeply because of my conduct, and the Australian community whose trust I have broken. I am genuinely committed to making amends and living a life that proves I am worthy of a second chance. Dealing with the consequences of my visa cancellation has been immensely challenging, but I understand that these consequences stem directly from my choices.[13]

7. In the written submissions and at the hearing, Mr Ruiz Vergara described that his life had been defined by both trauma and drug addiction. He submitted that his criminal conduct has been a consequence of unaddressed, long-term mental and emotional distress, often manifested through addiction, rather than an inherent propensity for violence.
8. Mr Ruiz Vergara detailed the circumstances surrounding his sexual abuse by a Catholic priest. He stated that his parents had wanted him to get an education in a Catholic school and so he had to complete his holy communion. While he was undertaking his lessons for his holy communion, the abuse occurred, and he stated that a lot of his problem has flowed from that abuse. Regarding the abuse, Mr Ruiz Vergara has provided supporting evidence having been awarded compensation as part of a redress scheme.[14] I accept that Mr Ruiz Vergara conduct and addictions have flowed from his trauma. I also accept that his offending has been a consequence of his addiction, a lot of it being committed at the height of his drug addictions. I also accept that previously Mr Ruiz Vergara has undertaken drug rehabilitation and relapsed into drug additions.
9. However, I am satisfied from the most recent psychologist reports that Mr Ruiz Vergara has gained greater insight than he previously has about the reasons for his addictions and the reasons for them. I accept that he is presently not taking drugs and is committed to continuing treatment and remaining free from drug use and criminal activity. The evidence also demonstrates that he has continued to undertake drug and alcohol counselling and education while in jail and in immigration detention.[15] His record from his time in jail record no incidents while he was in jail, and he regularly shared a cell with another inmate.[16] He has engaged and is willing to engage in continuing treatment to ensure he avoids the triggers and stressors that have arisen previously. I accept that Mr Ruiz Vergara has also previously failed to deal with his trauma but has now engaged in treatment and will continue to engage in treatment to ensure he does not fall into addiction again. Mr Ruiz Vergara has previously had his visa cancelled, however, unlike the present circumstances he has not spent time in immigration detention, and I accept that it will serve as a significant deterrent so that Mr Ruiz Vergara will not reoffend. Mr Ruiz Vergara also presently has a current department of housing residential tenancy agreement[17] which is continuing and to which he can return to reside. He has the support of his daughters. I am also satisfied from Ruiz Vergara's work history that he can readily seek employment. He has also provided letters from employees willing to employ Mr Ruiz Vergara. [18] He stated he would remain in Queensland and maintain his relationship with his daughters in Melbourne who have indicated they may move to Queensland to be near him.
10. In conclusion, I accept that the nature and seriousness of the Mr Ruiz Vergara's offending conduct is serious and that if he were to reoffend, such offending would have the potential for significant harm to the Australian community. Mr Ruiz Vergara is committed to remaining on a path towards full rehabilitation and not reoffending. In those circumstances the Tribunal considers that the risk to the community overall is very substantially reduced despite his offending being serious. The Tribunal has found Mr Ruiz Vergara is remorseful for his actions, has gained insight into his offending, his psychological profile and substance abuse and has taken steps toward rehabilitation. In those circumstances, the Tribunal finds that this consideration weighs against revocation of the cancellation of the Mr Ruiz Vergara's visa.

Primary Consideration 2: Whether the conduct engaged in constituted family violence; - 8.2

1. Direction 110 requires the Tribunal to consider whether Mr Ruiz Vergara has been convicted of any offence or had charges proven that involve family violence. Paragraph 8.2(1) of Direction 110 reflects the Australian government's concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia.
2. Paragraph 8.2(2) of Direction 110 provides that this consideration is relevant where:

a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or > > there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

3. 'Family violence' is defined in paragraph 4(1) of Direction 110 as 'violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful'. 'Member of the person's family', for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
4. As noted above on 18 October 2012 in the Magistrates Court of Victoria, Mr Ruiz Vergara was convicted of contravening family violence intervention order and unlawful assault for which he was fined an aggregate of $600.00[19]. As is also noted above, Mr Ruiz Vergara stated at the hearing he could not remember the exact circumstances of the offences and that it may have involved his now deceased ex-wife around the time of their separation. He explained that his wife may have been upset about the fact he was in a new relationship.
5. In considering the seriousness of family violence engaged in by a non-citizen, Direction 110 requires the following factors at paragraph 8.2(3) must be considered where relevant:

the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > the cumulative effect of repeated acts of family violence; > > rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > the extent to which the person accepts responsibility for their family violence related conduct; > > the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > > efforts to address factors which contributed to their conduct; and > > whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

6. I accept that Mr Ruiz Vergara's offence in relation to family violence was situational and in the context of his marriage breakdown. Mr Ruiz Vergara was vague about the details of that offending, but I accept that was because he struggled to recollect the circumstances because of the passage of time, rather than trying to minimise the issue. While there is little information before me about the details of the offending, the $600.00 fine imposed as a penalty implies that the conduct was not on the more serious scale of offending. There is no evidence of a continued or repeated pattern of family violence, and I accept that Mr Ruiz Vergara has taken steps to understand his triggers and how his mental health impacts his relationships.
7. The Tribunal finds that while family violence should be regarded as serious, in the circumstances of this case it weighs moderately against revocation of the cancellation decision.

Primary Consideration 3: The strength, nature and duration of ties to Australia; - 8.3

1. In accordance with subclause 8.3(1), the Tribunal has considered the impact of the decision on Mr Ruiz Vergara'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, Mr Ruiz Vergara has identified the following individuals as comprising his immediate family members in Australia.[20] (G2, p 108):

(a) his parents; > > (b) his two sisters; and > > (c) his two adult daughters and their children.

2. Mr Ruiz Vergara's daughters have both provided letters of support [21]. They both state that Mr Ruiz Vergara has be an important part of their life despite his personal struggles and living interstate. The letters describe Mr Ruiz Vergara as a loving and supportive father and grandfather. Mr Ruiz gave evidence that he maintains contact with his mother but does not speak with his father. I accept that refusal to revoke cancellation of Mr Ruiz Vergara's visa would have a significant emotional impact on his daughters.
3. Subclause 8.3(2)(b) requires the Tribunal to have regard to 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. Subclause 8.3(2)(a)(i) of Direction 110 requires the Tribunal consider if the applicant arrived in Australia as a young child.
4. Mr Ruiz Vergara arrived in Australia in 1983, aged 10[22] Mr Ruiz Vergara has resided in Australia for over 40 years and has never returned to Chile. He arrived in Australia as a child. Mr Ruiz Vergara detailed his significant work history. He has also provided references from friends who reside in Australia:
5. One of his friends describes him as having a caring and loving personality.[23]
6. Another friend states: [24]

... > > Jorge is a kind-hearted, respectful, and quiet individual who has always been there for those around him. I have personally experienced his generosity and support, as he has helped me through difficult times without hesitation. His willingness to lend a hand and his caring nature make him a valued member of our community. > > One of the strongest reasons Jorge should remain in Australia is his deep connection to his family. He has daughters and grandchildren here, whom he loves dearly and communicates with daily. > > Forcing him to leave the country would separate him from the people who depend on him emotionally and who would suffer greatly in his absence. > > While Jorge has made mistakes in the past, these do not define him. He is not a violent or dangerous person, and he does not pose a risk to society. Instead, he is a man who has learned from his past and continues to contribute positively to those around him. Deporting him to a country where he has not lived for many years, and where he likely has little to no support, would be cruel and unnecessary. > > I urge you to consider Jorge's character, his strong ties to Australia, and the impact that deportation would have on him and his loved ones. He is a good man who deserves to stay in the place he calls home. > > ...

7. Another friend describes Mr Ruiz Vergara as a dependable and sincere friend, and that he has remorse for his past decisions and a redeemed outlook on his future.[25]
8. Subclause 8.3(2)(a)(ii) of Direction 110 states that 'more weight should be given to time the non-citizen has spent contributing positively to the Australian community.'
9. Mr Ruiz Vergara has referred to working in various jobs including a forklift driver, mechanic, and storeman.[26] He has volunteered at his daughter's school and a lifesaving club and worked for his family business.[27]
10. I find that this consideration weighs strongly in favour of revocation of the cancellation of a visa. Mr Ruiz Vergara came to Australia as a young child, has significant family and friendship ties, particularly with his daughter and has worked and made positive contributions to the Australian community.

Primary Consideration 4: the best interests of minor children in Australia; - 8.4

1. Clause 8.4 requires the Tribunal to consider whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. In considering the best interests of the child, the following factors must be considered where relevant:

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements. > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

2. As noted above, Mr Ruiz Vergara has two adult daughters. One daughter has children aged 2 and 1 years, and the other has a child aged 1 year.[28] Mr Ruiz Vergara also has one minor niece and one minor nephew who reside interstate.
3. Mr Ruiz Vergara's grandchildren reside with their parents' interstate. He states that before he went to jail, he saw them as much as he could.[29] His daughter describes him as a loving grandfather. One of his daughter states in a letter dated 10 September 2025[30]:

Jorge's role as a grandfather further highlights his loving and caring nature. He > > maintains regular contact with my children through FaceTime, and the bond > > they share is truly special. My children adore him. In fact, my partner and I are > > planning to relocate to Queensland to be closer to our parents. as family > > means so much to us, and Jorge is a big part of that.

4. However, Mr Ruiz Vergara does not have primary responsibility for his grandchildren's day to day care or financial needs. I find that this primary consideration weighs slightly in favour of revoking the cancellation of the visa.

Primary Consideration 5: Expectations of the Australian Community; - 8.5

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 remain in Australia.

2. Paragraph 8.5(2) of Direction 110 directs that:

visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. > > a) acts of family violence; or ...

3. In accordance with clause 8.5(3) the expectations of the Australian community apply regardless of whether Mr Ruiz Vergara's poses a measurable risk of causing physical harm to the Australian community and in addition, in accordance with 8.5(4) of Direction 110, the Tribunal must consider the expectations of the Australian community as a whole and proceed on the basis of the Government's views expressed in Direction 110, without independently assessing the community's expectations in the particular case.
4. Paragraph 8.5 of the Direction expresses a "deemed community expectation" that all persons who have committed serious criminal offences giving rise to character concerns should not be permitted to enter or remain in Australia: FYBR v Minister for Home Affairs,[31] at [75] per Charlesworth J.
5. It is not for the Tribunal to determine for itself what the community's expectations are in a particular case: Minister for Immigration, Citizenship and Multicultural Affairs v HSRN,[32] at [31]-[35] per Moshinsky, Stewart, and Jackman JJ.
6. In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,[33] Horan J stated at [56]:

The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] -[67] , [74] -[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] -[30] (Moshinsky, O'Bryan and Cheeseman JJ). The "degrees of tolerance" referred to elsewhere in the Direction "are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion" (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and "in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences": FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the primary and other considerations accordingly.

7. Mr Ruiz Vergara's has been convicted of serious offences including one which involves family violence (paragraph 8.1.1(1)(a) of the Direction). The Tribunal finds that the Australian community would expect the Mr Ruiz Vergara's visa to remain cancelled.
8. This primary consideration weighs strongly against revocation of the cancellation decision.

1. Subclause 9.1 of Direction 110 requires the Tribunal to consider the legal consequences of its decision, taking into account any non-refoulement obligations and whether the applicant is covered by a protection finding.
2. Mr Ruiz Vergara is a Chilean citizen and is not the subject of a protection finding. He has reported that his father was taken twice by the Pinochet regime, which prompted the family to leave Chile under the family reunification scheme. Mr Ruiz Vergara has stated[34]:

... I may face legal consequences in Chile for not completing mandatory military service.

3. These claims are potentially capable of engaging Australia's non-refoulement obligations. Mr Ruiz Vergara is yet to make any application for a protection visa and is not covered by a protection finding. The Tribunal also accepts that the legal consequence of a visa cancellation decision is that Mr Ruiz Vergara will be an unlawful non-citizen and even if a protection application is made, he may continue to be subject to a period of time in immigration detention. Further, even if no protection claim is made, Mr Ruiz Vergara will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth), which is a relevant legal consequence that the Tribunal must take into account: Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 per Feutrill J at [12]-[14].
4. On that basis the Tribunal gives only slight weight in favour of the revocation of cancelation of the visa in relation to this consideration.

1. Subclause 9.2 of Direction 110 requires consideration of the extent of any impediments that Mr Ruiz Vergara may face if removed from Australia to Chile.
2. Mr Ruiz Vergara has resided in Australia since he was 10 years old. He has stated:[35]

If I am deported to Chile, I will face significant hardships. First, I have no ties whatsoever in Chile. My family and I left when I was nine years old, and I turned ten on the plane. I cannot speak, read, or write Spanish, and I have never returned as I have no one there. I consider Australia my home. My family - including my mother, father, sisters, daughter, grandchildren, aunts, uncles, cousins, nephews, and nieces - all reside in Australia. I am well settled in this country and have already paid for my past mistakes. > > Second, if I am removed, I will undoubtedly be homeless and unemployed. Additionally, I may face legal consequences in Chile for not completing mandatory military service. I have no one in Chile who can assist me in any way. > > Third, I am deeply concerned that my mental health and addiction issues will deteriorate if I am deported to Chile. Being forcibly removed from my family and friends would leave me shattered. I would suffer lifelong sadness, heartbreak, and insurmountable hardships.

3. Mr Ruiz Vergara is likely to experience language and cultural barriers if he returns to Chile, having spent a large part of his formative years, in Australia.
4. The Tribunal finds that this consideration weighs moderately in favour of revoking the cancellation of the visa.

1. Clause 9.3 of Direction 110 provides that the Tribunal must consider any impact on Australian business interests if Mr Ruiz Vergara is not allowed to remain in Australia. There is no evidence of impact on Australian business interests within the meaning of Direction 110. The Tribunal finds that this consideration is therefore not engaged.

1. Consistent with Direction 110, the Tribunal has given weight of various degrees to the primary and other considerations. Subclause 7(1) of Direction 110 states that appropriate weight is to be given to information and evidence from independent and authoritative sources. Subclause 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations. Subclause 7(3) of Direction 110 provides that one or more primary considerations may outweigh other primary considerations.
2. In the recent decision of the Full Court of the Federal Court concerning the operation of Direction No. 90 in CRNL v Minister for Immigration Citizenship and Multicultural Affairs at [35],[36] the Court found that the Tribunal must weigh and balance the various primary and other relevant considerations outlined in the Direction (in this case Direction 110) against each other but to treat Direction 110 as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
3. The Tribunal has found Mr Ruiz Vergara does not pass the character test and has carefully considered all the evidence before it. The Tribunal has weighed the relevant considerations as guided by Direction 110 in considering whether there is another reason why the cancellation of his visa should be revoked.
4. In relation to the Primary Considerations the Tribunal has found:

(a) The consideration of the protection of the Australian community weighs against revocation of the cancellation of Mr Ruiz Vergara's visa. The nature of Mr Ruiz Vergara's offending should be considered very serious given it is repeated and involves family violence and should he reoffend, it would again cause harm. However, the risk of Mr Ruiz Vergara reoffending has been substantially reduced given his significant efforts at rehabilitation. Mr Ruiz Vergara has shown remorse and insight into the cause for his offending. > > (b) Given he has been convicted of an offence of family violence, the consideration concerning family violence weighs moderately against Mr Ruiz Vergara. > > (c) In relation to the strength, nature and duration of Mr Ruiz Vergara's ties to the Australian community, the Tribunal accepts that if the decision to cancel his visa is not revoked, that it will have significant impact on Mr Ruiz Vergara's relationship with his daughters, grandchildren and his mother. Mr Ruiz Vergara has other ties to friends and community. He has contributed positively and worked in Australia. He arrived in Australia at a young age and has spent most of his life in Australia. The Tribunal finds this consideration weighs strongly in favour of revocation. > > (d) The consideration regarding the best interests of minor children weighs slightly in favour of revocation given the nature of his relationship with his grandchildren. > > (e) The Tribunal consideration regarding expectations of the Australian community weighs strongly against revoking the cancellation of the visa.

5. Of the other considerations, the Tribunal has found there is a potential for Australia's international non-refoulement obligations to be engaged in relation to Mr Ruiz Vergara, but at present they only weigh slightly in favour of revocation. In relation to the extent of impediments if Mr Ruiz Vergara is removed from Australia, the Tribunal finds that they weigh moderately in favour of revocation.
6. The consideration concerning business interests weighs neutrally.
7. Mr Ruiz Vergara has breached the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis Mr Ruiz Vergara's visa should be cancelled. Even taking into consideration that the protection of the Australian Community is 'generally' to be given greater weight than other primary considerations, I find that the other relevant primary considerations outweigh the protection and expectations of the Australian community. The Tribunal has found Mr Ruiz Vergara has undertaken significant treatment and rehabilitation which has allowed him to have insight into the reasons for his addictions and conduct. He has acknowledged his childhood trauma and taken steps to understanding it and how impacts on his offending and addiction. He has undertaken counselling to address his drug addiction. He has strong ties to Australia and has spent most of his formative years in Australia. Further, the extent of the impediments if he is removed from Australia also weighs in favour of revocation of the cancellation of the visa.
8. Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of Mr Ruiz Vergara's visa should be revoked.
9. For the reasons given above the Tribunal sets aside the decision of a delegate of the Minister dated 10 September 2025 not to revoke the mandatory cancellation of the Mr Ruiz Vergara's visa, and in substitution decides that the cancellation of Mr Ruiz Vergara's visa is revoked.

[21] Exhibit 1, p 198 -199 and exhibit 2, p 7.

[31] [2019] FCAFC 185.

[32] [2023] FCAFC 68.

[33] [2024] FCA 876.

[36] [2023] FCAFC 138.