1. The proceedings were heard by the Tribunal on 28 and 29 August 2025. The applicant was represented by Mr Nikjoo of Nikjoo Lawyers, and the respondent was represented by Ms Ren of HWL Ebsworth Lawyers. The documentary evidence consisted of the following material:

(a) Exhibit HB - the hearing book prepared by the respondent (HB) which contained the documents and other material provided by the parties including their statements of facts and contentions (SFIC) and the G documents.[24]

(b) Exhibit R1 - a 3 page extract of documents produced on summons by NSW Police on 28 August 2025.

1. The following people gave evidence at the hearing on 28 and 29 August 2025:

(a) the applicant

(b) Alyce McElroy

(c) Diane McElroy

(d) Dr Billel Rababi

(e) Tammy Harding

(f) Lee Hockey

(g) Sarah MacRae

(h) Chad Onley

(i) Jenna Onley

(j) Melissa Pepper.

1. The witnesses were cross-examined by Ms Ren. Following completion of the oral evidence, the parties' representatives made oral submissions on 29 August 2025. I will refer to the evidence and submissions below.

1. Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of paragraph 501(6)(a) (substantial criminal record), on the basis of paragraph 501(7)(a), (b) or (c); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. The character test referred to in s 501(3A) is set out in s 501(6). Notably, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7)). For the purposes of s 501(6)(a), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
2. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[25]
3. Where the cancellation decision is not revoked, the applicant may apply to the tribunal for review of the non-revocation decision.[26]
4. Therefore, the issues for determination by the Tribunal are as follows:

(a) whether the applicant passes the character test for the purposes of s 501 of the Act, as defined in s 501(6);[27]

(b) if not, whether there is another reason why the original cancellation decision should be revoked.[28]

1. The applicant properly conceded that he does not pass the character test under s 501(6)(a) because he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a 'substantial criminal record' as defined under s 501(7).[29] Therefore the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Hence the question in issue is whether there is 'another reason' why the original cancellation decision should be revoked. As stated by Deputy President McMillan KC in Byers and Minister for Immigration and Multicultural Affairs:[30]

Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to examine the factors relevant to a decision to assess if there is 'another reason' why the Cancellation Decision should be revoked. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and to undertake an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked. Deciding whether or not to be satisfied that 'another reason' exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.[31]

1. The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) must be applied. The relevant provisions of the Direction are set out in Annexure B below.
2. The Tribunal's task in applying the Direction was discussed by the Full Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL) [32] who stated:

[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction ... is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.[33]

1. The Full Court's comments in CRNL about the 'balancing process' involved are particularly important:

The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction 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.[34]

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

1. In accordance with paragraph 8.1(2) of Direction two key factors must be taken into account when assessing whether a non-citizen should be permitted to remain in Australia:

(a) the nature and seriousness of the non-citizen's past conduct; and

(b) the risk posed to the Australian community should the non-citizen reoffend or engage in further serious conduct.

8.1.1 THE NATURE AND SERIOUSNESS OF THE CONDUCT

1. The relevant factors that the tribunal must have regard to under this consideration are the following:

(a) and (b) whether the crimes fall into the category of "very serious" or "serious"

(e) the frequency of the non-citizens offending and/or whether there is any trend of increasing seriousness

(g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

1. The applicant acknowledged the seriousness of his past offending, which includes drug supply and driving offences.[35] However, the applicant submitted that the Tribunal should focus on the substantial steps he has taken towards rehabilitation. This aspect will be discussed below when the Tribunal considers paragraph 8.1.2 of the Direction - the risk to the Australian community.

1. The respondent noted the applicant's extensive criminal history and made submissions about the seriousness of the latest offences which are set out above under the heading 'Criminal history'. The Minister referred to the agreed facts in relation to each of the drug supply offences, which stated that 'the sole basis of these supplies was to obtain financial gain to purchase prohibited drugs and satisfy his own addiction'.[36]
2. The Minister further argued that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.[37] For the applicant's most recent drug and driving offences the Local Court imposed a 4 year aggregate sentence which was then varied on appeal to an aggregate term of 3 years and 2 months. Therefore, the Local and District Courts regarded the applicant's offending as serious as per paragraph 8.1.1(c) of the Direction.[38] The respondent noted that when sentencing the applicant on 11 March 2024, Magistrate Perry considered that each of the applicant's 3 counts of ongoing drug supply of methamphetamine were 'above the low range' and 'at midrange'. Similarly, Judge Baker noted that there were around 180 individual supplies of drugs to the community and found that each of those offences was a serious offence.[39]
3. With respect to paragraph 8.1.1(e) of the Direction, the respondent submitted that.

The applicant's offending has been frequent and increasingly serious: His convictions evolved from driving offences to more serious offences for the supply of prohibited drugs. On 9 December 2011, the applicant was convicted of 'Supply prohibited drug>indictable quantity (no cannabis) SI' and sentenced to 300 hours of community service .... And yet, this conviction did not deter him. The applicant was again convicted of drug offences on 11 March 2024. His most recent conviction of drug supply offences were sustained over a period of time. These offences were prolific and frequent in which he supplied methamphetamines on at least 185 occasions over a period of over 2 months.[40]

1. The respondent also made submissions about the cumulative effect of the applicant's repeated offending, as per paragraph 8.1.1(f) of the Direction, commenting that the applicant has been convicted of driving offences no less than 17 times from 16 August 2006 to 11 March 2024, indicating a 'high disregard for the law'. Further, said the respondent, the cumulative effect of his driving offences and egregious disregard of traffic law has the potential to cause significant harm to members of the public on the road and the applicant's repeated drug supply offences adds to the seriousness of his offending. The cumulative effect of these very serious offences is that they have caused significant physical and psychological harm to the Australian community.[41]
2. The Minister argued, pursuant to paragraph 8.1.1(g) of the Direction, that the applicant's failure to disclose his three prior driving offences on his incoming passenger card on 11 March 2010 reflects his willingness to be dishonest and mislead the Department. This conduct reflects poorly on the applicant and is a factor against revocation of the cancellation decision.[42]
3. During the hearing, the respondent adduced evidence of an incident that occurred in July 2012 where the police put the applicant in a headlock to stop him resisting police. The applicant was placed in the rear of a police vehicle where he kicked the side doors and swore at police.[43] The respondent said that this evidence is relevant to paragraph 8.1.1(b)(ii) of the Direction, that is, crimes committed against government representatives or officials due to the position they hold or in the performance of their duties. He was later convicted of the offences of 'behave in offensive manner in/near public place/school and destroy or damage property (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 noncitizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the noncitizen reoffending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.

1. The applicant acknowledged that the risk of him reoffending is a matter for the Tribunal to consider and assess in determining whether the protection of the Australian community requires the applicant's ongoing exclusion. [55]
2. However, the applicant submitted that the Tribunal can be comfortably satisfied that the risk of recidivism in this matter is low, when considered in light of all the circumstances. The applicant stated that he is now acutely aware of the consequences of his past offending. The cancellation of his visa and the potential for permanent separation from his children and extended family have had a profound deterrent effect. He has demonstrated remorse, insight into his offending, and has actively engaged in rehabilitation programs, including anger management, alcohol awareness, and thinking skills courses while incarcerated.[56] These factors, coupled with his ongoing parole supervision until 10 July 2026, provide strong external and internal incentives to remain offence-free.[57]
3. In light of these factors, the applicant submitted that the risk he poses to the Australian community is low and manageable. The applicant pointed to the following factors and evidence in support of this contention:
   • he has strong family support and has secured an offer of employment upon release, both of which are critical protective factors that reduce community risk[58]
   • Judge Baker noted his good prospects of rehabilitation, highlighting that his risk of reoffending is low[59]
   • Judge Baker's assessment is supported by the Corrective Services risk assessments, which have rated his risk of reoffending as "medium ... to low"[60]
   • the report of the clinical psychologist Dr Billel Rababi assessed his risk of reoffending as low, based on the mitigating factors that have been mentioned above.[61]
4. During the hearing, Mr Nikjoo referred to Judge Baker's sentencing comments on the question of rehabilitation as follows:

Mr McElroy, in his evidence, described the fact that he has attempted to and has addressed his drug addiction whilst in custody. He also gave evidence that at the time at which he was arrested, he was seeking to address that as well, and that was only interrupted when he was arrested. In addition, Mr McElroy has given evidence that he has not taken drugs whilst in custody, that he is a member of Narcotics Anonymous and he is committed to staying drug-free both in custody and when he is released into the community. Mr McElroy gave evidence that his primary focus when he is released is to support his family and to be there for his family and his children.

Having heard Mr McElroy's evidence, I found him to be a persuasive witness. I do accept that he is remorseful and committed to his rehabilitation and staying drug-free. It is clear that he has been able to achieve that over the course of his time in custody. How he goes once released into the community, of course, will be a matter for him. He will experience further difficulties, no doubt, when he is released. But on his evidence today, I found him to be persuasive in his evidence that he is committed to rehabilitation.

In terms of an assessment of his prospects of rehabilitation and risk of reoffending, in light of what I said, I do find that Mr McElroy has good prospects of remaining drug-free. I find that he has good prospects of rehabilitation in that respect and his risk of re-offending is lowered as a result of that. I find that the pro-social and supportive family structure that exists will assist Mr McElroy. But equally, I also find that he is committed to his rehabilitation. Those matters are to his credit and in favour in terms of the subjective assessment in this matter.[62]

1. The respondent discussed the nature of the harm in paragraph 8.1.2(2)(a) of the Direction, arguing that the nature of the applicant's offending, if repeated, would cause significant physical and psychological harm to members of the community. The respondent provided data from the Australian Institute of Criminology which shows that the impact on the Australian community in terms of lost productivity, healthcare and drug attributable crime arising from methamphetamine use is higher than that arising from the use of other illicit drugs.[63]
2. The respondent further argued that the applicant has been repeatedly convicted of driving while disqualified. The tribunal has previously noted the disastrous impact on the Australian community of a rising road toll.[64] The applicant has shown contempt for those laws, and in doing so has placed others at risk of harm. The respondent noted that on 21 June 2023, the applicant was convicted of multiple driving offences and sentenced to terms of imprisonment of 1 to 2 months. Despite the imposition of a custodial sentence for driving offences, this did not deter him from further offending on 11 February 2023 and 14 March 2023 for which he was convicted on 11 March 2024.[65]
3. Referring to paragraph 8.1.2(2)(b) of the Direction (regarding the risk of reoffending and the evidence of any demonstrated rehabilitation) the respondent contended that although the applicant had expressed remorse for his offending and has engaged in some drug and alcohol counselling the Tribunal ought to be guarded about the applicant's risk of reoffending.[66] The respondent noted that the applicant has a lengthy criminal history showing repeated and frequent offending. While the applicant states that he has been clean from drugs for two years, the applicant has been in custody during this period. As the applicant has been in custody or in immigration detention from 17 March 2023 to present the applicant's ability to abstain from drugs in the community remains untested. Although the applicant has engaged in some drug rehabilitation while in custody by engaging in Narcotics Anonymous, the extent of his rehabilitation appears to have been limited. While the applicant may claim that he is supported by family and friends, these protective factors were in existence at the time of his offending as well.[67]
4. The respondent acknowledged that the report of Dr Rababi assessed the applicant's risk of reoffending as low, but said this does not mean no risk.[68] Moreover, the respondent noted that Dr Rababi's risk assessment was contingent upon the applicant's continued engagement in key rehabilitative activities such as Narcotics Anonymous, Alcoholics Anonymous, the completion of the safe driving course and ongoing psychological treatment for a minimum period of 12 months.[69] Dr Rababi's report stated: '[s]hould he maintain these commitments, the likelihood of reoffending is expected to remain low'.[70]

DISCUSSION OF 8.1.2: RISK TO THE AUSTRALIA COMMUNITY

1. In Tanielu v Minister for Immigration and Border Protection[71] Mortimer J (as she then was) referred to the judgment of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice[72] as follows:

[95] The Court summarised the task in determining "unacceptable risk" in this way (at [111]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

[96] At [124]-[125], the Court described the difficulty inherent in prediction of risk:

Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have.

1. The Tribunal notes her Honour's observation that the prediction of risks is in a large part a matter for expert opinion. The Tribunal was provided with the expert opinion of Dr Rababi which assessed the applicant as having a low risk of recidivism provided the applicant continues to engage in key rehabilitative activities.
2. As regards the use of illicit drugs, the Tribunal notes that the applicant testified during the tribunal proceedings that he has ceased using illicit drugs and has been 'clean' since he was arrested in March 2023.[73] This testimony is supported to some extent by the pre-release report made by NSW Corrective Services on 22 October 2024 which stated that the applicant was subject to a urinalysis test on one occasion while housed at Clarence CC and produced a negative sample.[74] The Tribunal also notes that it is a condition of the applicant's parole that he is prohibited from drugs unless prescribed.[75] Judge Baker's comments in the District Court that the applicant was seeking to address his drug addiction at the time of his arrest was corroborated in the present proceedings by Chad Onley who testified that the applicant had approached him at this time about drug and alcohol rehabilitation services.[76]
3. Other witnesses testified[77] or provided statements[78] that they had offered the applicant employment upon his release from detention, and this is a key protective factor for his rehabilitation. He has very strong support from his family and friends. I acknowledge the respondent's comments that this support was also present during his offending, but I observe that his family and friends continued to support him through the new challenge created by his immigration detention.[79]
4. The applicant was very emphatic about his commitment to rehabilitation in his testimony.[80] Like Judge Baker in the District Court, I found the applicant to be persuasive in his evidence that he is committed to rehabilitation. The commitment was also supported by other witnesses called by the applicant.[81]
5. Overall, I am satisfied that the applicant will take the necessary steps to engage in the stipulated rehabilitation programs including the safe driving course.

CONCLUSION ON 8.1.2 RISK TO THE AUSTRALIA COMMUNITY

1. I accept the respondent's submission that it cannot be said that there is no risk of reoffending, but I find that the risk of reoffending at this stage is low based on Dr Rababi's report in combination with the evidence led by the applicant. For the purposes of paragraph 8.1.2 of the Direction, I therefore find that the risk to the Australian community is low.

CONCLUSION ON PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

1. The applicant conceded that this primary consideration weighs against him but submitted that the weight assigned should not be so significant as to outweigh, either individually or cumulatively, the other considerations in his favour.[82] The respondent submitted that the Tribunal ought to find that nature and seriousness of the applicant's offending weighs heavily against revoking the cancellation decision.[83]
2. Taking into account the serious nature of the applicant's previous offending but that the risk to the Australian community is low because the risk of reoffending is low the Tribunal concludes that primary consideration 1 - protection of the Australian community - weighs moderately against revocation.

1. No allegations of family violence were made in the proceedings before the Tribunal, so this consideration is neutral.

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

1. Paragraph 8.3(1) of the Direction requires the Tribunal to consider any impact of the decision on the non-citizen's immediate family members in Australia where those family members are Australian citizens. Paragraph 8.3(2) requires the decisionmaker to have regard to how long the non-citizen has resided in Australia and the strength, duration and nature of any family or social links with Australian citizens.

1. The applicant emphasised that he has lived in Australia for approximately 40 years, having arrived as an infant. This significant period of residence has allowed him to establish deep and enduring familial and social ties including his spouse, three children, two minor nieces, and a nephew, his mother, brother and extended family.[84] He contended that his strong and consistent work history from 2013 to 2022 (with disruption only occurring during the COVID-19 pandemic)[85] demonstrates a commitment to lawful and productive participation in Australian society over many years.[86] Further, his voluntary involvement in community activities, including coaching and supporting his son's soccer team, highlights his positive engagement and integration within his local community.[87] He pointed to his broad network of community support, as evidenced by many letters of support.[88] He submitted that these strong, long-standing family and community ties weigh heavily in favour of revocation.

1. The Minister accepted that these circumstances weigh moderately in favour of revocation but do not outweigh the considerations against revocation.[89]

CONCLUSION ON PRIMARY CONSIDERATION 3 STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

1. As stated above, paragraph 8.3(2) requires the Tribunal to take into account how long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child. In this case the applicant left New Zealand for the last time to come to Australia when was 15 months old[90] and has never returned.[91]
2. The applicant presented as a person who is very involved with his community. This was substantiated by the letters of support by family and friends that were provided to the delegate.[92] Many of the authors of the letters attended the hearing to give evidence about their connection with the applicant and his activities in the community.[93] All the witnesses gave evidence about relationships that were long term, often going from childhood and his willingness to 'step up' for the community.
3. The Tribunal notes in particular the evidence given by the applicant's mother, Diane McElroy, who is in close contact with the applicant and currently travelling fortnightly to visit him in immigration detention.[94] She testified that her health would preclude her from travelling to New Zealand[95] and this testimony was supported by Dr Jenna Onley.[96]
4. The Tribunal considers that the applicant has established strong and enduring links with Australian citizens in his immediate and extended family and community.
5. Taking into account the length of time that the applicant has resided in Australia and the strong and enduring nature of his family and social links with Australian citizens, the Tribunal concludes that this consideration weighs very heavily in favour of revocation.

PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN

1. The applicant is the father of three minor children, all of whom are Australian citizens: IP (17), KM (9) and IM (8). The applicant has nieces and nephews who reside in Australia with his brother Lee Hockey: JH (11), CH (8), AH (6) and AMH (5).[97]

1. The applicant submitted that his three children have been deeply affected by his separation from them.[98] His son KM is particularly vulnerable, with suspected autism and fragile mental health that has been further destabilised by his father's absence.[99] The applicant said that historically he has been an active and present parent, involved in his children's sporting activities and day-to-day lives and continued separation poses a significant risk to their emotional stability and overall well-being.[100]
2. In addition to his children, the applicant states that he shares a strong and nurturing bond with his nieces and nephews and these children would also suffer profound emotional harm from losing direct and meaningful contact with their uncle.[101] Further, when these relationships are collectively considered, the adverse effects on his children, nieces and nephews would be devastating and potentially irreparable. Denying them the physical presence, guidance and support of their father and uncle risks long-term harm.[102]
3. The applicant referred to the evidence that had been led in the proceedings to argue that this primary consideration weighs heavily in favour of revocation and, in and of itself, constitutes "another reason" justifying a favourable outcome in this review.[103]

1. The Minister accepted that this consideration weighs somewhat in favour of the applicant but submitted it does not outweigh the heavy weight of the protection and expectations of the Australian community which weigh in favour of cancellation.[104]
2. The Minister acknowledged that if applicant is removed to New Zealand, and his wife and children choose not to join him there, the children will be separated from the applicant for long periods of time, and this is likely to cause significant negative emotional impact. However, the respondent submitted that the applicant's wife and children will be able to return to New Zealand to visit the applicant and maintain regular contact with the applicant from Australia.[105]
3. As regards the applicant's avuncular role to his nieces and nephews, the Minister argued that the applicant has already been away from his nieces and nephews for a lengthy period of time whilst he was in custody and now in immigration detention, and any separation is unlikely to affect them to the same extent as if he had continued contact. The respondent accepted that the applicant's removal from Australia may negatively impact his nieces and nephews' emotional wellbeing, but any impact will be ameliorated both by the children's ability to remain in contact with the applicant in New Zealand if they choose to, and by the fact that the applicant does not have a parental role in relation to the care of the children.[106]

DISCUSSION OF PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN

1. The Direction requires the decision-maker to give individual consideration to the best interests of each child to the extent that their interests may differ. I will note aspects of the best interests of individual children in commenting on the evidence led in the proceedings, but I do not consider that the interests of the individual children differ apart from obvious differences such as whether they are the applicant's children or his nieces and nephews.
2. As regards the applicant's children, the Tribunal is satisfied (pursuant to paragraph 8.4(4)(b) of the Direction) that the applicant is likely to play a positive parental role in the future. This is based on the statements and oral testimony of several witnesses,[107] including the applicant, Alyce McElroy and Diane McElroy. All three witnesses expressed positivity about the applicant assuming greater parental responsibility in the future. Similarly, all three witnesses expressed their view that the interaction between the applicant and each of the three children is beneficial to the children and being separated from him would be detrimental to each of the children (pursuant to paragraph 8.4(4)(d) of the Direction) even considering the time that he has spent in prison and immigration detention.
3. Pursuant to paragraph 8.4(4)(e) of the Direction in relation to each of the applicant's three children there is currently another person who plays a parental role, that is their mother, Alyce McElroy. However, the evidence establishes that applicant has been very involved with his children in the past[108] and anticipates playing a pivotal role in their lives in the future, for example by assisting IP as he learns to drive,[109] supporting KM[110] and being present for IM, who 'wants her daddy home'.[111]
4. As regards the applicant's nieces and nephews, their father, Lee Hockey, is a single parent therefore clearly fulfills a primary parental role. However several witnesses, including Lee Hockey, testified about the support that applicant has provided to Lee Hockey and his children.[112]
5. I note the Minister's arguments that the minor children can stay in contact with the applicant (either remotely or by visiting him) if he is removed to New Zealand. Several witnesses challenged this assertion but, in any case, I infer that the best interests of the children will be served by the applicant continuing in a firsthand role as a parent and uncle by being physically present in the lives of the children.

CONCLUSION ON PRIMARY CONSIDERATION 4 - BEST INTERESTS OF MINOR CHILDREN

1. The Tribunal concludes that this consideration weighs very heavily in favour of revocation.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF AUSTRALIAN COMMUNITY

1. Paragraphs 8.5(1) and 8.5(2) of the Direction state the Australian community's expectation that non-citizens should obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter and remain in Australia. The Tribunal must give effect to this norm.[113]

1. The applicant acknowledged that this primary consideration weighs against him. However, he submitted that it should not outweigh the strong considerations in his favour.[114]

1. The principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act. The respondent acknowledged that the applicant has lived in Australia from a young age and referred to paragraph 5.2(6) of the Direction which provides that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[115]
2. The respondent argued that the Australian community would expect the Australian Government to cancel the applicant's visa considering the serious, recidivist nature of the offending and the term of imprisonment imposed. In giving effect to the norm, the Tribunal should give significant weight to the expectations of the Australian community in favour of cancellation.[116]

DISCUSSION AND CONCLUSION ON PRIMARY CONSIDERATION 5

1. The Tribunal agrees with the respondent that the applicant has committed a very significant breach of Australian law. As discussed above, the applicant's criminal conduct was serious. However, the Tribunal must also consider the principle stated in paragraph 5.2(6) that Australia may afford a higher level of tolerance of criminal or other serious conduct where the non-citizen has lived in Australia from a very young age. The safety of the Australian community takes the highest priority under paragraph 5.2(2) of the Direction and in the discussion above the risk to the Australian community has been assessed as low. Taking these considerations into account, I find that this primary consideration weighs moderately against revocation.

1. The Tribunal must take into account the 'other considerations' set out in paragraph 9 of the Direction, where relevant. These considerations include

(a) the legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on Australian business interests.

1. Paragraph 9.1 of the Direction states that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable in circumstances specified in that section, and in the meantime, detention under s 189. The paragraph further notes that s 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of that person.

1. The applicant submitted that the Tribunal must consider the 'legal and practical' consequences of the Tribunal's decision under paragraph 9.1 of the Direction.[117] While no international non-refoulement obligations are engaged, the applicant contended that the legal consequence of the Tribunal's decision would be the applicant's removal to a country from which he would be permanently barred from returning to Australia. Such removal would inevitably sever his ability to maintain a direct and meaningful relationship with his family, which is likely to result in long-term or permanent family separation.[118]

1. The respondent accepted that, in accordance with Special Return Criteria 5001, the consequence of any removal after a visa cancellation is such that the applicant cannot be granted any visa to enter and remain in Australia.[119] The respondent noted that because the applicant had not made any claim for protection from New Zealand the question of whether Australia's non-refoulement obligations are engaged is not relevant to this review.[120]
2. Relying on Stoneley v Minister for Immigration and Multicultural Affairs[121] (Stoneley), the Minister contended that in circumstances where the applicant's removal and indefinite exclusion from Australia are intended purposes of the statutory scheme, and these consequences underlie and are subsumed in the Tribunal's evaluation of other considerations in the Direction, the Tribunal should afford neutral weight to this consideration.[122]

1. The Tribunal agrees with the Minister's interpretation of Stoneley and considers that the applicant's contentions about the legal consequences of the removal are subsumed in the Tribunal's evaluation of other considerations in the Direction. The Tribunal also agrees with the Minister's submission that the applicant's removal and indefinite exclusion from Australia are intended purposes of the statutory scheme. Therefore, the Tribunal affords neutral weight to this consideration.

1. Paragraph 9.2(1) of the Direction requires decision-makers to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country (in the context of what is generally available to other citizens of that country), taking into account the non-citizen's age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.

1. The applicant submitted that he has no ties, support network, or familiarity with life in New Zealand, having never lived there as an adult. He has no family, relatives, or meaningful connection to New Zealand. He would likely face severe hardship if removed, including homelessness, financial instability, and emotional distress arising from permanent separation from his children. These difficulties would be compounded by his mental health vulnerabilities, which have been exacerbated by prolonged detention and family separation.[123]
2. In summary, the applicant argued this consideration weighs heavily in favour of revocation.[124]

1. Relying on paragraph 9.2(1)(b) of the Direction, the respondent argued that the applicant is unlikely to experience significant cultural or language barriers in New Zealand given the similarities between the two countries. The applicant is 41 years of age and has an extensive employment history, which will equip him in finding a job in New Zealand. While the applicant may some difficulty finding employment in New Zealand, these obstacles are not insurmountable.[125] Further, regarding paragraph 9.2(1)(c), the Minister said that New Zealand has a comparable system of social, medical and economic supports to Australia.[126] In particular, the Minister noted that applicant appears to meet the criteria for a determination that he is a 'returning prisoner' under section 17 of the Returning Offenders (Management and Information) Act 2015 (NZ) (Returning Offenders Act) that would place him in the same position as he would be in when released back into the Australian community. The framework established under the Returning Offenders Act would enable the applicant to access structured assistance and relevant services such as accommodation.[127] Therefore, he is unlikely to face significant impediments on return.
2. On balance, the respondent conceded that this consideration weighs in favour of revocation of the visa cancellation, but only to a limited extent.[128]

DISCUSSION AND CONCLUSION ON IMPEDIMENTS TO REMOVAL

1. The applicant is a relatively young man and appears to be in good physical health although I note the evidence led in the hearing that he has several mental health conditions that may be exacerbated by removal.[129] The Tribunal accepts the Minister's submission that there are not substantial language or cultural barriers in New Zealand and that support may be available to the applicant via the framework established under the Returning Offenders Act. However, I accept that the applicant is likely to face severe hardship if removed because he has no social supports or familiarity with life in New Zealand.
2. The respondent properly conceded that this consideration weighs in favour of revocation and the Tribunal finds that this consideration weighs moderately in favour of revocation.

1. Under paragraph 9.3 of the Direction, decision-makers must consider any impact on Australia business interests if the non-citizen is not allowed to remain in Australia noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or an important service in Australia.

1. The applicant made no submissions regarding this consideration.
2. The respondent noted that the applicant had established his own business that appears to have employed several people, but the applicant had acknowledged he was no longer able to run his business due to being in custody.[130] The respondent therefore argued that if the applicant's visa remains cancelled and the business cannot be continued, the impact on Australian business interests would be minimal because the evidence does not suggest that the cancellation of the applicant's visa would significantly compromise the delivery of a major project or important service in Australia.[131]
3. The respondent contended that the consideration of the impact on Australian business interests therefore ought to be given neutral weight.

CONCLUSION ON IMPACT ON AUSTRALIAN BUSINESS INTERESTS

1. The Tribunal agrees with the submissions made by the respondent and notes that no evidence was led in the hearing in support of a proposition that cancellation of the applicant's visa would significantly compromise the delivery of a major project or an important service in Australia. I therefore conclude that this consideration should be given neutral weight.

1. I conclude that the consideration of the extent of impediments if removed weighs moderately in favour of revocation and find that the considerations of the legal consequences of removal and the impact on Australian business interests are both neutral.

1. As conceded by his legal representative, the applicant does not pass the character test under s 501(6) of the Act. Therefore, the task of the Tribunal is to synthesise the relevant considerations to reach a single dispositive finding[132] as to whether there is 'another reason' why the mandatory Cancellation Decision ought to be revoked.
2. In doing so, I have had regard to all the primary and other considerations, and I am now required to carry out the evaluative exercise of weighing up the considerations within the overarching framework provided by the Direction.
3. The primary consideration of the protection of the Australian community weighs moderately against revocation of the Cancellation Decision.
4. The primary consideration of family violence is neutral.
5. The primary consideration regarding the strength, nature and duration of the applicant's ties to Australia weighs very heavily in favour of revocation of the Cancellation Decision.
6. The primary consideration regarding the best interests of minor children weighs very heavily in favour of revocation of the Cancellation Decision.
7. The primary consideration regarding the expectations of the Australian community would be that the visa ought to be cancelled, and this consideration weighs moderately against revocation of the Cancellation Decision.
8. Of the 'other considerations' identified in the Direction; the Tribunal finds that the legal consequences of his removal and impact on Australian business interests are neutral and the impediments to removal weigh moderately in favour of the revocation of the Cancellation Decision.
9. Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) should generally be given greater weight than other primary considerations.
10. Having regard to all primary considerations and other considerations in the Direction, I am satisfied that there is 'another reason' to revoke the Cancellation Decision.
11. The decision of the Tribunal is to set aside the Reviewable Decision and to substitute a decision to revoke the Cancellation Decision.

Supply prohibited drug>indictable quantity (no cannabis) SI

Behave in offensive manner in/near public place/school

Destroy or damage property In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

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

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

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

(5) expectations of the Australian community.

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct

8.1.1. The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

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:

[Violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children acts of family violence]

b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australia community to be serious: ...

1. crimes committed against ... government representatives or officials due to the position they hold, or in the performance of their duties; ...

1. 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;

f) the cumulative effect of repeated offending;

g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

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). ...

8.1.2. The risk to the Australian community should the non-citizen commit

further offences or engage in other serious conduct

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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:

1. information and evidence on the risk of the non-citizen re­ offending; and
2. 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). ...

8.2. Family violence committed by the non-citizen

[This consideration is not relevant to the present case]

8.3. The strength, nature and duration of ties to Australia

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) 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.

8.4. Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether cancellation or a refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) 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

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

(2) In addition, 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 the following kind:

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

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on Australian business interests

9.1. Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(l) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(1) Decision-makers must consider the extent of any impediments that the non­ citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

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

(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

[1] G9 HB120-126. In this decision a reference to 'G' refers to the G documents and 'HB' refers to the Hearing Book in the proceedings. 'SFIC' refers to a Statement of Facts and Contentions. The applicant's SFIC was dated 29 July 2025 and the respondent's SFIC was dated 1 August 2025.

[2] G7 HB95-115 see the Act, ss 501(6)(a) and 501(7)(c).

[23] Respondent's SFIC [13] citing G3 HB66-68

[24] The Hearing Book was filed on 20 August 2025

[31] Byers and Minister for Immigration and Multicultural Affairs [2024] ARTA 183 at [29] [footnotes omitted]

[32] [2023] FCAFC 138

[33] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28]

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

[36] Respondent's SFIC [7] citing HB363

[37] Respondent's SFIC at [8], citing Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587

[39] Respondent's SFIC [8], citing G7 HB111 and G6 HB85

[40] Respondent's SFIC [9] citing G3 HB65-66, HB68

[42] Respondent's SFIC [14] citing G21 HB222

[44] See Annexure A, reference H48611950

[45] Transcript 29 August 2025 pages 227 - 228

[46] Transcript 29 August 2025 page 333

[56] Applicant's SFIC [23] citing G11 HB141 and G13 HB160-166

[60] Sentencing assessment report dated 24 January 2022 HB565, Sentencing assessment report dated 14 June 2023 HB558, Sentencing assessment report dated 19 February 2024 HB553

[61] Dr Billel Rababi report dated 14 August 2025, HB657, HB666

[63] Respondent's SFIC [18] citing S Goldmid et al, 'Australian amphetamine users outcomes', Statistical bulletin 03, Australian Institute of Criminology, May 2017, HB 446, 463

[64] Respondent's SFIC [19], citing Bowdler and Minister for Immigration and Border Protection [2018] AATA 347 at [53]

[65] Respondent's SFIC [19] citing HB362-363

[68] Transcript 29 August 2025 page 327

[69] Transcript 28 August 2025 page 188

[70] Dr Billel Rababi report dated 14 August 2025, HB657, HB666

[71] [2014] FCA 673

[72] [2013] VSCA 213

[73] See for example, transcript 28 August 2025 pages 128-129

[74] Corrective Services NSW, Pre-Release Report dated 22 October 2024 HB542, HB546

[75] Corrective Services NSW, Pre-Release Report dated 22 October 2024 HB542, HB550

[76] Transcript 29 August 2025 page 260

[77] Mellisa Pepper transcript 29 August 2025 page 300

[79] See for example Alyce McElroy transcript 28 August 2025 page 129, Diane McElroy transcript 28 August 2025 page 157-158

[80] See for example transcript 28 August 2025 page 100

[81] For example, Sarah MacRae at G15 HB207 and transcript 29 August 2025 page 249 and Alyce McElroy transcript 28 August 2025 page 129-130

[84] For details, see G11 HB134, HB136, HB138, HB140

[85] Applicant's SFIC [29] citing G11, HB141-142, HB146

[88] Applicant's SFIC [30] citing G14 HB200-210; G15 HB211-213; G16 HB 214-215

[92] G14 HB200-209; G15 HB210-213; G16 HB 214-215

[93] The Tribunal notes the evidence of Alyce McElroy, Diane McElroy and Tammy Harding on 28 August 2025, and Lee Hockey, Sarah MacRae, Chad Onley, Jenna Onley and Melissa Pepper on 29 August 2025

[94] Transcript 28 August 2025 page 155

[95] Transcript 28 August 2025 page 167

[96] Transcript 29 August 2025 page 285

[97] Lee Hockey, Letter to the Minister dated 29 July 2025, HB640. During the hearing Lee Hockey testified that he has three children, referring to JH, CH and AMH (transcript 29 August 2025 page 236). The applicant at G11 HB138 refers to Lee Hockey's children as CH, AH and AMH. These differences were not reconciled, and the Tribunal infers that there are at least three children for whom Lee Hockey has parental responsibility.

[98] Applicant's SFIC [32] citing G11 HB136-137; G12 HB153; G17 HB217-219

[99] Applicant's SFIC [32] citing G13 HB168-169.

[103] Applicant's SFIC [35], transcript 29 August 2025 page 318

[107] See for example, Tammy Harding transcript 28 August 2025 pages 206-207; Jenna Onley transcript 29 August 2025 pages 283-284

[108] See for example, Alyce McElroy transcript 28 August 2025 pages 126-127

[109] Applicant transcript 28 August 2025 page 90. "Elves" in the transcript refers to "Ls" in human speech.

[110] Applicant transcript 28 August 2025 pages 44-46

[111] Daine McElroy transcript 28 August 2025 page 163

[112] Transcript 29 August pages 236-237

[113] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104] per Stewart J and Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52]

[117] Applicant's SFIC [39] citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; FRH18 v Minister for Home Affairs [2018] FCA 1769 at [44], [60]

[121] [2025] FCA 143 at [37]; application for review from Stoneley v Minister for Immigration and Multicultural Affairs [2024] AATA 1591

[129] Dr Billel Rababi report dated 14 August 2025, HB662

[130] Respondent's SFIC [59] citing G11 HB146

[132] Byers and Minister for Immigration and Multicultural Affairs [2024] ARTA 183 at [95] and Wallis and Minister for Immigration and Multicultural Affairs [2024] ARTA 624 at [106]-[108] per DP McMillan KC, citing CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] and [35]