MIGRATION - visas - cancellation of visa on character grounds where substantial criminal record - request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) ('the Act')- consideration of Ministerial Direction No. 110 - consideration of ss 501(3A), 501(6) and 501(7) of the Act - Legal consequence of cancellation - decision under review is set aside.

Migration Act 1958 (Cth)

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252.

Minister for Home Affairs v HSKJ [2018] FCAFC 217.

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

Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.

Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 117.

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

Plaintiff S22 - 2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36.

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

1. Ms Hyndman is a citizen of New Zealand who came to Australia when she was approximately six years old. She has a lengthy criminal history involving stealing and fraud. On 15 October 2024 she was sentenced to a number of stealing offences as well as receiving tainted property and fraud, and sentenced to various concurrent terms with the longest being for a period of imprisonment of 15 months.
2. As she had been sentenced to a term of imprisonment of more than 12 months, her visa was cancelled by operation of the Migration Act 1958 ('the Act'). Where a person's visa is cancelled because they have been sentenced to a term of imprisonment of more than 12 months and are serving their sentence, the person can seek revocation of this cancellation.
3. Ms Hyndman sought revocation of the cancellation of her visa. For the cancellation of her visa to be revoked, Ms Hyndman must show either that she meets the character test, or that there is another reason the original decision should be revoked. On 4 August 2025, a delegate of the Minister for Immigration and Citizenship decided not to revoke the cancellation of her visa.
4. Ms Hyndman has applied for review of the decision not to revoke the cancellation of her visa. She does not dispute that she does not meet the character test, but argues that there is another reason the cancellation of her visa should be revoked.
5. For the reasons that follow, the cancellation of her visa should be revoked.

1. Ms Hyndman has two older brothers and her mother in Australia. Her father died in January 2024. She has six children, all of whom are Aboriginal and Torres Strait Islander children.
2. Ms Hyndman has struggled with a heroin addiction since she was young. Following a period in rehabilitation arranged by her parents, she qualified as a hairdresser and worked in hairdressing. She met her long time partner and her heroin use increased.
3. Ms Hyndman's eldest son is 27 years old, and has a child who is 6 weeks old. Her remaining five children are from a long-term relationship with a Nunuckle man. During the relationship they lived with her partner's mother, and Ms Hyndman is close to his mother. Ms Hyndman experienced family violence in this relationship which has now ended. She has two adult daughters, as well as twin daughters and a son from this relationship, with the youngest three children being minors. Ms Hyndman's adult daughters each have a child. Her eldest daughter has a child who is two years old, and her other adult daughter has a child who is four weeks old.
4. Ms Hyndman's twin daughters are 14 years old and her mother, Mrs Maureen Hyndman, is their guardian until they turn 18 years of age. Her youngest child is seven years old and is in foster care. His foster carers also currently care for Ms Hyndman's two youngest grandchildren.

1. Under s 501(3A) of the Act, the Minister must cancel a non-citizen's visa if (among other things) the person does not pass the character test because they have a substantial criminal record as defined by s 501(6)(a), and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory.
2. The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act.
3. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
4. A person who has a visa cancelled under s 501(3A) may seek revocation of that decision in accordance with s 501CA of the Act.
5. As soon as practicable after a visa is cancelled under s 501(3A) of the Act, the person must be sent a notice including relevant particulars and invited to make representations about revocation of the decision to cancel their visa.
6. Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked.

1. Ms Hyndman was convicted of stealing after previous conviction (two counts) in the Magistrates Court of Queensland at Beenleigh, for which she was sentenced to a term of imprisonment of 15 months for each offence to be served concurrently.
2. As she has been sentenced to a term of imprisonment of more than 12 months, Ms Hyndman has a substantial criminal record test as defined in s 501(7)(c) and does not meet the character test in s 501(6)(a) of the Act.
3. The remaining issue is whether there is another reason the cancellation of her visa should be revoked.

1. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.

1. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These 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 measurable 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1]

1. The Direction also sets out matters to be considered in making a decision. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration ... (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.[2]

1. The Direction contains five primary considerations, which are:

(1) The protection of the Australian community from criminal or other serious conduct; > > (2) Whether the conduct engaged in constituted family violence; > > (3) The strength, nature and duration of ties to Australia; > > (4) The best interests of minor children in Australia; > > (5) The expectations of the Australian community.[3]

2. The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
3. The primary and other considerations have been considered in turn.

1. The Direction requires decision-makers to keep 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 as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[4]
2. Decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the community if the Applicant commits further offences or engages in other serious conduct (clause 8.1(2) of the Direction).

1. In the period 2000 - 2024, Ms Hyndman has been convicted of 40 counts of stealing and 30 counts of fraud. She has convictions for possession of drugs and some offences relating to breaching conditions of probation and bail and failing to appear. She has been convicted on one occasion of possessing explosives.
2. Ms Hyndman was frank when discussing her offending history, acknowledging she committed all the offences for which she was convicted. She explains that the theft offences relate to the purchase of drugs or food and clothing for herself and her children or her partner and his family. For example, she described stealing perfume from a chemist and stealing tools from a shop to swap for drugs.
3. The possession of ammunition she explained as having a bullet in her handbag that she did not realise was live, and had intended to make a necklace from the bullet. She did not realise possessing this item was an offence.
4. There are a considerable number of offences that involve either finding a receipt for items and taking an identical item from a shelf and seeking a refund or returning goods to stores. In giving evidence, her mother said that if she sent Ms Hyndman or the children clothes, she would remove hangers and labels so they could not be returned. Ms Hyndman said these offences relate to her drug use and that of her partner.
5. The transcript of proceedings where she was sentenced to imprisonment for 15 months by Magistrate Elliot for stealing and fraud at a time when she was on parole, six days after she was released from prison. The value of the goods in that case was over $4,600 from 11 charges.

1. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[5] Clause 8.1.1(1) sets out matters to which the tribunal must have regard.
2. Of these, Ms Hyndman's criminal offending does not fall into categories specified by the Direction as conduct that the Australian government and the Australian community regard as very serious or serious.
3. She has faced increasing terms of imprisonment, commencing with six months in 2017 and increasing due to the repeated nature of her offending. Her offending is frequent, but there is no trend of increasing seriousness. Her repeated offending has a cumulative effect that weighs against her.
4. The remaining factors in this consideration, including the effect on victims, providing false or misleading information, offending after a prior warning and offences committed out of Australia do not apply.
5. Overall, the nature and seriousness of the conduct weigh moderately in favour of not revoking the cancellation of her visa.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[6] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[7]

1. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[8]
2. The respondent argued there would be financial and psychological damage to the community should Ms Hyndman reoffend. This places the effect of her offending as being of greater severity than is apparent from the information before me as there are no reports of psychological harm to those who observed her offending, nor is there information to show Ms Hyndman behaved aggressively in her offending.
3. In sentencing, it was submitted by police that because of Ms Hyndman's conduct, shops raise prices and innocent members of the public have to pay for her bad behaviour, and I consider this the more likely harm that would occur should she commit further offences.

Likelihood of the Applicant engaging in further criminal or other serious conduct

1. This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision (cl 8.1.2(2) of the Direction)

Information and evidence on the risk of the Applicant engaging in further criminal or serious conduct

1. Ms Hyndman was assessed by Dr Luke Hatzipetrou who is a forensic psychologist. Dr Hatzipetrou considered Ms Hyndman had a history of chronic polysubstance dependency disorder and prolonged exposure to domestic violence. It is reported Ms Hyndman suffered physical assaults coinciding with her partner's withdrawal from illicit drugs or his demands for her to source drugs.
2. Dr Hatzipetrou assessed Ms Hyndman's risk of reoffending using the Level of Service Inventory - revised (LSI- R) which resulted in a low / moderate risk, and Dr Hatzipetrou has also undertaken a framework of Risk, Needs and Responsivity which also returned a low to moderate risk. On being advised that Ms Hyndman had acknowledged using heroin once in the past two years, Dr Hatzipetrou said this would make her risk go further toward the moderate range.
3. Dr Hatzipetrou reports Ms Hyndman has symptoms of PTSD and explained that a diagnosis of PTSD would require more than the two sessions he had conducted. This is because a factor in this diagnosis is the persistence of symptoms over time and collateral information supporting the self-report of symptoms.
4. An explanation provided for Ms Hyndman's offending was that she was threatened by her previous partner and was required by him to obtain money for heroin. Her mother gave evidence that she observed injuries consistent with family violence such as Ms Hyndman having a black eye and broken teeth, and the children told her about the behaviour at home including that Ms Hyndman had to sleep at the end of the bed. I accept threat of violence and actual violence from her partner was a cause of her offending. However, the criminal offending and her heroin use continued after the breakdown of this relationship, and she explains this as being continued due to her drug use and lifestyle.
5. Ms Hyndman's offending is clearly linked to her drug use and the need to support her family. In the past it has also been driven by the need to appease her partner by obtaining drugs. The end of that relationship and her plan to move away from her previous environment is positive, and early signs are promising on her abstinence from drugs. Overall, her risk of engaging in further criminal conduct is low to moderate.

1. Ms Hyndman has been generally free of drug use for the last two years, admitting to using heroin on one occasion. She plans to remain drug free and is on an opiate replacement program. The Respondent points to her previous involvement in an opiate replacement program and subsequent relapse into drug use and further offending.
2. Much of the rehabilitation Ms Hyndman has planned lies in the future, with attendance at narcotics anonymous in the same location as her mother and enquiries made about residential rehabilitation at Odyssey House.
3. Ms Hyndman is currently undertaking a Certificate IV in Drug and Alcohol studies, and states she is guaranteed employment on completion of the course. She commenced this course in September 2025.
4. While she has relapsed in the past following an opiate replacement program, this occurred in the context of a continuing relationship with her partner and returning to the same environment. The prospects of success of the opiate replacement program are greater with the ending of this relationship and relocation to live with her mother out of the environment associated with her drug use.

1. Ms Hyndman is no longer in the long term relationship that featured in much of her drug use. Her mother gave evidence that she does not think this relationship will re-commence as Ms Hyndman's partner now has a child with another woman, and the 'final straw' was that Ms Hyndman saw how her partner had failed to care for his mother. Her mother said that Ms Hyndman knows the relationship is over and wants to make the most of her time with her children.
2. Ms Hyndman plans to relocate to live with her mother and two minor daughters if released from immigration detention. This is in a different town to where she has lived, and is not a location she has lived previously. This removes her from the environment that featured in her drug use in the past, and places her with her mother and two daughters, with her son in foster care nearby.
3. Ms Hyndman's mother is very supportive and was an impressive witness with obvious commitment to the two children living with her and for whom she is a guardian until they turn 18 years of age. Her mother frankly stated that not all in the family were in support of Ms Hyndman living with her, however she was willing to support Ms Hyndman in her ongoing efforts for rehabilitation and was proud of what she had achieved with her rehabilitation to date. Her mother has a four-bedroom home and there is room for Ms Hyndman to live there. Her mother said she would support Ms Hyndman's ongoing rehabilitation.
4. While none of Ms Hyndman's children are in her care, she does intend to assist her mother. She has maintained contact with her children throughout her time in the community, in prison and in immigration detention and I accept she wants to be a part of their lives in the future.
5. Ms Hyndman is now aware of the consequences of her offending and being removed from Australia should she offend again.

Conclusion on the protection of the Australian community

1. Overall, the protection of the Australian community weighs in favour of not revoking the cancellation of her visa but given the nature of the risk and the protective factors, this does not weigh heavily in favour of not revoking the cancellation.

1. Ms Hyndman has not committed any acts of family violence, and this consideration does not weigh for or against revoking the cancellation of her visa. Ms Hyndman has experienced family violence from her previous partner of over 20 years, and this is taken into account in her risk of reoffending.

THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

1. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Clause 8.3 of the Direction requires a consideration of:
   • The person's immediate family members who are Australian citizens, permanent residents or who have a right to remain indefinitely in Australia; and
   • The strength, nature and duration of any other ties she has to the community having regard to:
     • how long she has lived in Australia; and
     • family or social links with people who are Australian citizens, Australian permanent residents or people who have an indefinite right to remain in Australia.

1. Ms Hyndman's mother, brothers and six children are in Australia. It is not contended they are other than Australian citizens or permanent residents.
2. There is not a great deal of information about the effect on Ms Hyndman's older brothers if she is removed from Australia, and her mother said her eldest son worries about Ms Hyndman living with her, but they support her as well.
3. Ms Hyndman's oldest son is an electrician and lives with his partner and their child some distance away. He provided a statement that he is building a bond with Ms Hyndman, and wants her to be there for his son when he is born. He said it breaks his heart to think of what it would do to his siblings if Ms Hyndman were removed. He states it would affect him, his siblings, his grandmother, and his uncle if Ms Hyndman is removed from Australia.
4. There is little information from her two adult daughters, however it appears they have had their own struggles with addiction and imprisonment. At least one of her daughters is currently in prison and both of her granddaughters are currently in foster care with Ms Hyndman's youngest son. The Respondent pointed out that some of the offending occurred in the company of one of her daughters when her daughter was a minor.
5. Ms Hyndman has a close relationship with her mother, who has continued to support her and her children over many years of drug use. Her mother is now 72 years old and while in good health would benefit from Ms Hyndman's assistance with managing the household and the children.
6. Ms Hyndman's twin daughters are in the ongoing care of her mother until they turn 18 years of age. One of her daughters has autism and the other is reported to be struggling at school and is awaiting further assessment. Her mother said Ms Hyndman has maintained connection with her minor daughters while in prison and made them cards and headbands. Letters from the children to Ms Hyndman were provided.
7. Her youngest child is in foster care, and his foster carers are currently seeking orders to retain his care until he turns 18.
8. Ms Hyndman has three grandchildren. One lives with her son and his partner and her other grandchildren are currently in foster care with her youngest son.

1. Ms Hyndman arrived as a young child, with her first convictions recorded in 2016 when she was 35 years old.
2. Other than her immediate family, she has ties to her nieces and nephews. Her mother's sister and her husband are in Australia.
3. Ms Hyndman's children are Aboriginal and Torres Strait Islander, and she has ties to the Nunuckle community. She lived with her husband's mother for over 20 years during the time she was with him, and their families retain ties. She formed a close attachment to her partner's mother, a Nunuckle woman, who is now cared for out of her home.
4. The family's ties with this community remain deep, with Ms Hyndman's youngest child and two of her grandchildren currently living with a foster family. Mrs Maureen Hyndman said they have all worked hard at keeping the children and grandchildren connected, and that she has become friends with the foster family. They arrange regular time together both as part of caring for the children and socially.
5. Ms Hyndman said she 'does a bit of that', being involvement in the Nunuckle community, and spends time on the island with the children's family as well as involvement in NAIDOC. She said her children have connection to the local Indigenous community where her mother lives being involved in the Deadly Choices program and cultural liaison officers.
6. Overall, the strength, nature and duration of Ms Hyndman's ties to Australia weigh heavily in favour of revoking the cancellation of her visa.

BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under clause 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
2. Ms Hyndman has six children, three of whom are minors. None of the minor children are in her care. She has three grandchildren who are two years, six weeks and four weeks old.
3. The psychology reports records that her younger three children suffered opiate withdrawal at birth. Her mother contacted the Department of Child Safety as she feared for the wellbeing of the children due to drug use and family violence.
4. The three minor children were placed in the care of Ms Hyndman's parents, however the youngest is now with foster carers who are seeking a guardianship order until he turns 18. It is not suggested that Ms Hyndman's minor children will return to her care. The foster carers also currently care for her two granddaughters.
5. Ms Hyndman's twin daughters are 14 years old and live with her mother. Her mother is 72 years old and said she would benefit from Ms Hyndman's presence in the house to assist with tasks around the home. Her mother is assisted by her sister and her sister's husband who also live in the same town and act as emergency contacts for the twins.
6. Ms Hyndman's minor children and granddaughters remain in contact through formal arrangements for contact and from the friendship that has developed between Mrs Maureen Hyndman and the foster carers.
7. Considering first Ms Hyndman's minor children, she has remained in contact with all her children however there have been periods of absence and they have not been in her care for a considerable period. It is not intended they will return to her care.
8. Her twin daughters have additional care needs, and her mother would benefit from her assistance. Her twin daughters would also benefit from having their mother back in their lives, with Ms Hyndman's mother saying this will give them some emotional support following the death of their grandfather. Her mother acknowledged there were concerns about having Ms Hyndman back in their lives and playing a positive role, but they have talked as a family and she and the children want to give Ms Hyndman a chance to establish a relationship with them while drug free. This is not without some tension as her mother acknowledged there were concerns about Ms Hyndman being a positive role model for the children in the past.
9. There are prospects of Ms Hyndman playing a positive role in the children's future, however this would also require a lengthy period of stability and rebuilding these relationships. Her daughters have four years until they turn 18, and her son has over 10 years.
10. There is little information on the effect of the prior conduct on her children, however they have been removed from her care, which Ms Hyndman's accepts was in their interests at the time. Ms Hyndman does put the bests interests of her children at the fore when considering ongoing care arrangements for them, accepting that it was in their best interests to be in the care of her parents at the time they were removed from her care.
11. The removal of Ms Hyndman from Australia would be to the detriment of the children. They have maintained contact and it would remove the opportunity for the children to build their relationship with Ms Hyndman. The children are Nunuckle, and this provides an additional tie they have to Australia and they would not relocate to be with Ms Hyndman both due to their current care arrangements and due to their heritage. It was submitted for Ms Hyndman that as the children are Indigenous, the separation from a parent has an additional impact on them.
12. I accept the known views of the children are that they want contact with Ms Hyndman. Given their ages, this could be by electronic means.
13. As they suffered opiate withdrawal at birth, there is some evidence of physical trauma arising from Ms Hyndman's conduct, however other than the fact of them being currently placed in the care of others, there is little information about the care of her children and any physical or emotional trauma they have suffered from that care.
14. Overall, the best interests of her minor twin daughters are to have Ms Hyndman in their care and living with them. This weighs slightly more heavily than in the case of her son who is in foster care elsewhere.
15. I accept that it is in the best interests of her grandchildren for her to remain in Australia and due to the young age of her youngest granddaughter, communication is more difficult by electronic means. Should Ms Hyndman's rehabilitation continue to be successful, there is a prospect of her playing a positive role in the lives of her grandchildren in the 12 - 17 years before each of them turn 18 years of age.
16. Overall, this consideration weighs moderately to heavily in favour of revoking the cancellation of her visa.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
2. Clause 8.5(2) 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 the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. It is not for the Tribunal to itself assess the expectations of the Australian community, the expectations are those set out in the Direction.[9]
4. Ms Hyndman's conduct does not fall within the categories of conduct specified as those where the Australian community expects her visa to remain cancelled.
5. However, Ms Hyndman has failed to obey Australian laws and this has included repeated breach of probation and failure to appear. She has continued to commit offences despite penalties escalating due to her repeated offending. This is a breach of the expectation that a non-citizen will obey Australian laws while in Australia. It does not attract the expectation that is attributed to serious conduct or an unacceptable risk of serious conduct.
6. The majority of Ms Hyndman's offending occurred in the context of family violence perpetrated against Ms Hyndman and chronic drug addiction, and there is a notable lack of any violent behaviour or conduct involving the sale or trafficking in drugs. As a result, this consideration weighs only slightly in favour of not revoking the cancellation of her visa.

(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):

Legal consequences of decision under s 501 or 501CA

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[10] Ms Hyndman does not claim to be owed protection.
2. In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act.
3. If the cancellation of her visa is not revoked, Ms Hyndman will be prevented by s 501E of the Act from applying for visas other than a protection visa or a Bridging Visa R (Removal Pending) while in the migration zone. She will also be subject to special return criteria that provides for permanent exclusion from some types of visas should she apply for those visas.[11]
4. The Respondent submits that this is the intended legal consequence of the decision, and therefore does not attract weight for or against revoking the cancellation, relying on Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.
5. As I have said previously, in this decision Charlesworth J considered that Parliament 'must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in that person's visa being restored,' and could attract neutral weight if correctly considered.[12] In coming to this conclusion, Charlesworth J distinguished Singh v Minister for Immigration, Migrant Services and Multicultural Affairs,[13] where Rangiah J stated the Tribunal treated as possible a known legal consequence of detention and removal from Australia. This was an error because the Tribunal considered these consequences were inevitable given the Tribunal's deferral of the Applicant's claims for protection. Attributing a neutral weight in the circumstances of that case attributed to Parliament's preference for the making of an adverse decision to an Applicant such that these consequences will ensue, where no such intention is in s 501CA(4) of the Act.[14]
6. The Full Court of the Federal Court in Taulahi v Minister for Immigration and Border Protection[15] found that where a decision is made by the Minister personally under s 501(3) of the Act, the Minister is bound to consider the legal consequences of the decision. In that case this was because of the legal framework in which the decision is made,[16] however in the current context this is because the Direction requires the legal consequences to be considered. The consequences to be considered are the direct and immediate consequences of the decision.[17] In this case these legal consequences are that Ms Hyndman will be detained and removed from Australia, and would be unlikely to be able to return. This is intended by the legislation.
7. The weight to be ascribed to representations of an Applicant is a matter for the Tribunal on the facts of the individual case.[18]
8. The legal consequence of the decision also include that Ms Hyndman will be permanently separated from her children, in circumstances where they have particular ties to the community as Aboriginal and Torres Strait Islander Peoples, and from her support network in her mother and family. Dr Hatzipetrou states this will reduce her opportunity to engage in ongoing rehabilitation and counselling. In these circumstances, the legal consequences of the decision weigh in favour of revoking the cancellation of her visa.

1. The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia to their home country, in establishing themselves and maintaining basic living standards taking into account the Applicant'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.
2. Ms Hyndman is now 44 years old, with a history of substance use and is currently on an opioid replacement program. She has symptoms, but no confirmed diagnosis, of PTSD.
3. Dr Hatzipetrou states removing Ms Hyndman would be a 'major destabilizing event, and even more so, would increase the likelihood of mental health decline which in turn will reduce her capacity to engage in work and establish stable living conditions. Furthermore, there would be an increased risk of drug relapse.' While acknowledging there are good mental health services in New Zealand, Dr Hatzipetrou said Ms Hyndman easily panics and is overwhelmed, and there would be a risk she would not seek help for her mental health because this was too hard. He said it is difficult for a person to achieve positive outcomes, even when engaged with mental health services, in the absence of a support network.
4. Ms Hyndman will return without support. Her mother has an elderly sister in New Zealand and three or four nieces and nephews but they are unable to provide her any support. Ms Hyndman's mother said she would be able to provide little financial support to Ms Hyndman if she were to return to New Zealand.
5. There will be few language or cultural barriers to Ms Hyndman living in New Zealand.
6. Overall, Ms Hyndman's particular vulnerabilities as a person who has experienced family violence and who has a relatively recent history of sobriety in the context of long term drug abuse adds to her difficulty in reestablishing herself in another country.
7. This factor weighs in favour of revoking the cancellation of her visa.

1. Clause 9.3 provides that 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 would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. There is no information before me that the cancellation of Ms Hyndman's visa will affect Australian business interests, and this consideration does not weigh for or against revoking the cancellation of her visa.

1. Ms Hyndman does not pass the character test, and the Tribunal must consider whether there is another reason the decision to cancel her visa should be revoked, having regard to the primary and other considerations in the Direction.
2. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed. There has been judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Direction, including that the 'other' considerations are not 'secondary' and the other considerations need not be considered secondary in all cases,[19] and may outweigh primary considerations depending on the circumstances of the case.[20]
3. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs_[21]_ said '[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.'[22]
4. In this case, the protection of the community weighs somewhat in favour of not revoking the cancellation of her visa in light of the seriousness of the conduct, the risk to the community should she reoffend, and the likelihood of her again committing offences. This is in the context of her offending occurring against a background of family violence and chronic drug addiction, which is only recently resolving. Her rehabilitation is incomplete. That she has repeatedly offended does mean the expectation of the community is that her visa should remain cancelled, however this is not to a large degree.
5. Ms Hyndman's minor children are not in her care, however their best interests are that the cancellation of the visa is revoked. The best interests of minor children and the primary consideration of the strength, nature and duration of her ties to Australia weigh in favour of revoking the cancellation. The legal consequences of the decision in Ms Hyndman's particular circumstances weigh in favour of the cancellation being revoked, and the extent of impediments if removed to New Zealand also weighs in favour of revoking the cancellation.
6. Bringing these considerations together, there is another reason the cancellation of Ms Hyndman's visa should be revoked.
7. The decision not to revoke the cancellation of her visa is set aside and substituted with a decision to revoke the cancellation of her visa.

1. The decision under review is set aside and substituted with a decision that the cancellation of Ms Hyndman's visa is revoked.

[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 ('the Direction').

[9] Plaintiff S22 - 2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36, Minister for Immigration, Citizenship and Multicultural Affairs v HRSN [2023] FCAFC 68.

[11] See Special Return Criterion 5001(c), Schedule 5, Migration Regulations 1994.

[13] [2024] FCA 1273.

[15] [2016] FCAFC 117.

[18] Plaintiff M1/2021 [2022] HCA 17 at [24] citing Peko-Wallsend (1986) 162 CLR 24 at 41; Abebe v Commonwealth (1999) 197 CLR 510 at 580 [197]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 176 [33].

[19] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

[20] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] - [37].

[21] [2023] FCA 252.

[22] [2023] FCAFC 138, [23].