1. Under s 501(3A)(a)(i) and (ii) of the Act, the Minister must cancel a visa that has been granted to a person if the person does not pass the character test. Pursuant to s 501(6), a person does not pass the character test if:
   1. The person has a substantial criminal record (as defined by subsection (7));

1. Subsection 501(7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
2. As noted above, the Applicant was sentenced to an aggregate sentence of imprisonment of one year and six months on 11 September 2024.
3. Given this, the Tribunal finds that the Applicant does not pass the character test and his Subclass 444 visa is subject to mandatory cancellation.
4. Accordingly, the Tribunal must determine whether, pursuant to s 501CA(4)(b)(ii), there is:

... > > another reason why the original decision should be revoked. > > ...

1. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
2. 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') on 21 June 2024. It is expressed to apply to the Administrative Appeals Tribunal (AAT) in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction (as noted above, this now applies to the Administrative Review Tribunal).
3. Clause 5.2 of Direction 110 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.[6]

1. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. 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.[7]

THE APPLICANT'S REQUEST FOR REVOCATION OF THE CANCELLATION OF HIS VISA

1. The Applicant made a written request to have the mandatory cancellation of his Subclass 444 visa revoked on 1 December 2024.[8]
2. In summary, the Applicant asked for his visa to be reinstated because he had spent the majority of his adult life in Australia, where he had worked in Sydney as a roofer, scaffolder and construction tradesperson during that time. He also asked for the relationships that he had developed with people in Australia over the past 16 years to be considered. The Applicant noted that he had recently discovered that he had a daughter living in Sydney and that, if given the opportunity, he wished to pursue a relationship with her.
3. The Applicant stated that his time in immigration detention had placed immense pressure on his family and close friends and the decision to cancel his visa had shocked them. The Applicant acknowledged that there was no excuse for his offending and stated that he took responsibility for his actions, and that from now on, he had made a conscious decision to change his life, to be more aware and present, and to be a law-abiding citizen. He indicated that he had enrolled in the SMART Recovery Program and was undertaking drug and alcohol counselling on an ongoing basis with a psychologist weekly, as well as undertaking voluntary drug testing fortnightly. In relation to reducing his risk of offending in future, the Applicant said that he would change his surroundings and reduce negative influences and people in his life. He also stated that he had greater awareness of the triggers that led him into certain situations and knew better how to remove himself to a better place.
4. The Applicant reiterated that he had worked for the past eight years in construction as a qualified scaffolder and roofer, and had also been involved in community art projects in the Northern Beaches region.
5. The Applicant reiterated that he had spent his whole adult life in Australia and indicated that if he were removed, he would have to start his life all over again in New Zealand, which would be extremely difficult for him. Although he had family members there, he was disconnected from them.
6. The Applicant also addressed an issue raised with him by the Department; namely, that he had filled out his incoming passenger card in 2008 incorrectly, as he had said that he did not have any criminal convictions in New Zealand when in fact he did. The Applicant explained that he had dyslexia, which affected his reading, spelling and maths. He stated that it was his first trip overseas and he was nervous about how to answer the question on the passenger card correctly. He said that he was not sure what the question meant; that is, whether it meant he had been in jail or in a gang in New Zealand, which he had not. He knew that he had lost his driving privileges there for a period and paid an associated fine, but he was unsure whether this was a conviction or not, so he panicked and left the question blank, but he maintained that he did not intend to deliberately conceal his New Zealand offences.
7. In addition, the Applicant said that reading over the records of his offending was not pleasant, and they did not reflect the fact that he was raised to be a good Christian. He stated that most of his offending occurred when he was under the influence of alcohol, which he had used since his teenage years onwards, and which had been a problem for him. He felt sure that without the drinking, he would not have offended in the way that he did, and he stated that he had now reached a crossroads in his life where he no longer wanted to drink. He said that he had stopped drinking and was actively working with a psychologist to address his drug and alcohol problem to break the cycle and take proactive steps towards being healthier, including cutting ties with friends who were still in the party lifestyle. He said that he had a love interest in Sydney which he wanted to take to the next level, and that he wanted a chance to work on himself, which he had already begun doing, including recently undertaking a Circle of Trust program. The Applicant acknowledged that he had made many mistakes in his life but was older and tired now, and wanted to change.
8. The Applicant also provided character references from two friends, Natalie Richardson and a woman the Tribunal will call LG.

RESPONDENT'S SUBMISSIONS AS TO WHY THE VISA CANCELLATION SHOULD NOT BE REVOKED

1. In the Respondent's Statement of Facts, Issues and Contentions dated 14 October 2025,[9] the Respondent's representative argued that the Applicant did not pass the character test as a result of his substantial criminal record, and further argued that there was not another reason to revoke the cancellation of his Subclass 444 visa.
2. The Respondent's representative contended that primary consideration 1 (protection of the Australian community), primary consideration 2 (family violence) and primary consideration 5 (expectations of the Australian community) weighed against revocation of the cancellation of the Applicant's visa. Further, it was submitted that those considerations outweighed the countervailing considerations in the Applicant's favour including primary consideration 3 (strength, nature and duration of ties to Australia), primary consideration 4 (best interests of minor children) and other considerations (extent of impediments if removed).
3. It was noted that on 11 September 2024, the Applicant was convicted in the Manly Local Court of various offences including (some of these offences having had multiple counts):

• Damage property by fire/exp (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.[9]

1. The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

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.[10]
2. The Tribunal is directed to 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.[11]
3. Decision-makers should consider the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[12]

1. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[13]
2. The Applicant's Criminal Intelligence Commission Check Results Report[14] lists the following offences committed by the Applicant:
   • Fail/refuse to undergo breath analysis - Manly Local Court, 31 March 2010 - fined $900 and disqualified from driving for 12 months from 14 November 2009;
   • Common assault (DV) - T2 - Manly Local Court, 18 May 2012 - fined $500;
   • Use offensive language in/near public place/school Downing Centre Local Court, 29 November 2013 - fined $500;
   • Resist officer in execution of duty - T2 - Downing Centre Local Court, 29 November 2013 - fined $500;
   • Assault occasioning actual bodily harm T2 - Downing Centre Local Court, 19 December 2016 - 18 month Intensive Corrections Order commencing 19 December 2016;
   • Possess or use prohibited weapon without permit - T2 - Manly Local Court, 23 December 2020 - fined $300 and weapon forfeited;
   • Custody of a knife in a public place - first offence - Manly Local Court, 23 December 2020, fined $300 and weapon forfeited;
   • Use offensive weapon with intention to commit indictable offence - Manly Local Court, 23 February 2022 - fined $700;
   • Possess graffiti implement with intent to contravene s 4(2) - Manly Local Court, 23 February 2022 - fined $200;
   • Destroy or damage property (DV) - Manly Local Court, 31 May 2022 - conviction with conditional release order of 12 months commencing 31 May 2022;
   • Intentionally mark premises without consent - aggravated - Manly Local Court, 5 July 2023 - fined $1,200;
   • Destroy or damage property (DV) - Manly Local Court, 5 July 2023 - call up - breach, fined $600;
   • Possess/attempt to, prescribed restricted substance - Manly Local Court, 11 September 2024 - two year Community Correction Order commencing 11 September 2024;
   • Hinder or resist police officer in the execution of duty - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Assault police officer in execution of duty without actual bodily harm - T2 - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Common assault T2 - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Common assault T2 - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Common assault T2 - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Contravene prohibition/restriction in AVO (Domestic) - Manly Local Court, 11 September 2024 - two year Community Correction Order commencing 11 September 2024;
   • Hinder or resist police officer in the execution of duty - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Assault police officer in execution of duty without actual bodily harm T2 - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024;
   • Resist or hinder police officer in the execution of duty - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024; and
   • Damage property by fire/expense less than $2,000 - Manly Local Court, 11 September 2024 - imprisonment (aggregate) one year and six months commencing 15 February 2024.
3. In her sentencing remarks,[15] Magistrate Stapleton of the Manly Local Court observed that:

... > > What I look at, it is the pattern of offending and certainly there is a pattern of violence and resistance to the police and whether there is any... escalation of the offending over a period of time, noting that three sets of papers relate to March and May of this year, 2024, but the older set of papers relates to the decision to burn down, it appears more than one tent, at the campsite which people were using on public land at Dee Why. That is 2022, which is nearly two years ago... I just want to note that in relation to an offence of property damage by fire, it is about the value of the property and the manner of the setting of the fire. These are the matters for consideration and note that the maximum penalty for an offence of this type is ten years. The other two matters which are before the Court for this matter is a resist police, which is 12 months, and an offence of assault police, which is five years... the following facts are for consideration. It was shortly before 4.30pm on Monday 3 October [2022]. A witness attended the sand dunes and saw the offender standing amongst the tent city there at the wildlife reserve. That person could see the tents at the location were alight and Mr Redfern, who has already been named as the person to whom [the Applicant] was directing his behaviour, was running away. The offender was holding something called a butane gas blow lighter. Some other individuals there and they saw the offender chasing Redfern and he dropped something... which they saw to be the butane gas blow lighter. Triple-O was called, the police and the fire brigade show up... In relation to this matter there are three charges. Damage to property - burn down the tents and I say plural because that is what it says - resist police, assault police. So the circumstances then were that a tent or tents were set fire to and on a scale of serious, very serious and most serious, bearing in mind it is a public place, bearing in mind it is flammable but not particularly valuable material although no doubt valuable to the individuals who could not afford probably to live anywhere else. I categorise it as between serious and very serious. > > ... > > For the violence to police, it is in the following form. Constable Lacy(?) approached [the Applicant] and informed him he was under arrest. He raised his hands towards Constable Lacey who swatted his hands to one side and took hold of his right wrist. Constable Patterson(?) took hold of his left wrist. The offender yanked his arm away from Constable Lacey and after a short intervention which involved capsicum spray, the offender continued to keep his arms straight out and refusing [sic] to place them behind his back, resisting police. He was sprayed again and then he kicked Constable Lacey's right temple and made a threat, 'get off me... or I'll hurt you.' Constable Lacey suffered the cut to his right wrist... I categorise it as a resist police between serious and very serious, and the assault by kicking him in the temple as between serious and very serious but getting closer to very serious because it was with his foot and it was to his head... in relation to that matter [the Applicant] immediately told police that he was wanting Redfern to be evicted from the tent site because he thought he was a person with a criminal sexual interest in children. I pause to observe that if [the Applicant] had concerns about that, he should have told police which is what a responsible adult would do. Not just run him off the place by burning his tent down. > > ... > > Anyway, the next matter I propose to deal with... is another offence of resist police... This is the only matter which is before the Court in respect of this matter and it was he resisted Constable Champion(?. So Constable Champion attended as a result of police calls to the tent community to investigate a domestic violence type matter. When police were asking the questions about the female and where he was going, he said 'don't touch me. If you put your hands on me, I'll do what I've got to do.'... They followed him and then they told him he was not free to leave as he was suspected of being involved in a DV offence. He then ran from police and Constable Champion, attempting to perform her duty attempted to grab hold of his left wrist to apprehend him and he pulled away saying 'get your hands off me.' He swept his right arm with a clenched fist towards Constable Champion... On a scale of serious, very serious and most serious, I categorise it as between serious and very serious. I will get over to the aggravating feature which is a pattern of behaviour of not respecting constables when they ask him to enter into an arrest or otherwise respond to whatever the situation is that they are speaking to him about. > > ... > > [T]he next matter... is a contravene... It was 10 May, he was seen in contravention of the AVO - which is not a pattern for him - of order 2, not to be with [named female]. Police saw him walking along the street. They went and spoke to him and they arrested him and he did not resist. On a scale of serious, very serious and most serious, he was with her when he was not permitted to be with her. Although that is refusing to respect the court order and the meaning of the word 'no,' I regard it as a low end matter and I call it serious. > > ... > > I turn now to what I regard as the most serious set of offences, even though the damage property by fire is seven years. These common assaults against the four workers at McDonalds were the most serious matters in terms of offending committed by this offender which are before the Court.... It was 2.30 on Tuesday 21 May 2024. The offender arrived at Maccas at Beacon Hill... Tessa is the manager and was notified by one of her crew members that he was in the workers section of the premises. He was attempting to grab buns. Being the manager, it was her job to tell him that he could not be there and he needed to leave. She noticed that he appeared to be intoxicated so she asked him to sit down as she was worried he would fall over. He kept telling her he loved her repeatedly. That would be frightening, one might think... Anyway, he followed her around the store re-entering the staff only areas. He was once again asked to leave. She is behaving at this point - and bearing in mind, she is only 20... - with a great deal of dignity and respect for him. He walked towards her and another staff person who is just a bit younger... intervenes. His name is Jonah(?). The offender grabbed Jonah in a bear hug around the shoulders. Tessa... said he couldn't touch Jonah. The offender made his way back towards Tessa and using his hands - and I know that there is CCTV footage of all of this because it is in such detail - using his hands grabbed her... on the shoulders and pushed her backwards. Due to this action, she hit the wall behind her. She was feeling scared for her safety at this point. > > ... > > Jonah came back and said to the offender that he needed to let Jonah go. The offender - and his is part of an assault - has grabbed Tessa on her waist. She said 'you're not allowed to touch me.'... The offender is described as getting gradually angrier and angrier. More erratic to the point that the manager said 'all right, let's call the police.' He has then pushed... Tessa up against the toilet wall and she has defended herself by putting her hands up towards the offender. A witness made his way to Tessa's aid and she was able to get away from the offender. Throughout this - and this is not part of the assault but part of what I would call the offender's total disinhibition and maybe that is because he was drug affected or alcohol affected. It is not apparent that he has got any kind of psychosis - kept making kissing gestures towards the manager. > > The offender was made aware that they were now waiting for the police to arrive and then he became aggressive towards Harry(?), another staff member who was slightly older, aged 24... Whilst speaking to Harry, the offender raised his fist towards Harry's face and hovered it near his face. Harry felt intimidated. Police arrived. Police attempted to speak to him about what had happened. The offender appeared to be agitated as though he was under the influence of an unknown substance... The offender became belligerent with police. He made closed fist gestures towards them. He has walked towards the police and police have attempted to grab him by his left arm to detain him in an improvised defensive wrist lock technique. The offender, making a fist, has lashed out at Officer Cooper swinging his left and right hand, contacting with Officer Cooper's right shoulder. He ripped Constable Cooper's shirt. Police deployed capsicum spray... The offender swung his right fist again towards Officer Cooper but this time struck him on the forearm. He was taken to the ground where he has continued to lash out in an aggressive manner. This is described as a resist. He said to Officer Cooper on four times, 'I'm going to kill you.' He was later searched and found to be in possession of six tablets of prescribed drug... Later on police asked the ambulance to come along to treat him because he has kicked the victim... Officer Cooper, with his right leg, contacting his right foot. Police called the ambulance to treat the offender and his response has been to assault the officers. All the more reason to think... that he is suffering under the influence of various substances. Perhaps alcohol. Perhaps drugs. Anyway, I categorise these offences of violence as being between serious and very serious... > > I now turn to his criminal history to see if that history aggravates these offences because he has been previously convicted of serious offences... He was first in Local Court in 2009. He has been convicted of offences to do with alcohol, violence and violence to police, a knife matter, possession of a prohibited weapon matter, graffiti matter... one domestic violence damage to property matter - he is not a man known for domestic violence. He had no offending between 2015 and November 2020. Between November 2020 and January 2022, he had no offending. It is apparent from his Court history that he has lived around Manly for many years. I have seen a Justice Health report ordered by Magistrate McGlynn and dated 1 July 2024. This Justice Health report was ordered with respect to the McDonalds matters because of his erratic and strange behaviour. > > ... > > So Dr Chew examined the offender... on 1 July and he got a history... which is useful to have... [The Applicant] is of Samoan and Scottish heritage. He was born in New Zealand. He was adopted by a religious family. He has an adopted sister and three brothers who are the biological children of his parents. He was homeschool [sic] and left school at 13 and went farming... He decided to move to Australia. He denied any past psychiatric history. He has no formal diagnosis or treatment. He denied being the victim of abuse or trauma, although he said at school he was involved in a lot of fights. He was motivated to abstain from alcohol and illicit drugs. He was open to the possibility of residential rehab... He is a man with a strong work ethic, although this is difficult if it is always raining and you are a roofer. In his opinion, there was no evidence of psychosis. He was motivated to engage in treatment, he has a substance use disorder. He has struggled over the years with cannabis, alcohol and methamphetamine. His main focus of treatment should be a holistic approach to his substance use. > > ... > > I turn next to the sentencing assessment report. In that report, it was noted that he has no post-release accommodation and will be requiring support from the housing services. There is an AVO in place to protect the complainant in the AVO matter and in respect of Mr Redfern. I think this just summarises it perfectly, 'Mr Smith has a history of alcohol and other drug-fuelled violent and aggressive offences which appears to indicate an ongoing poor attitude towards prosocial living.' I described it in relation to the McDonalds matter as absolutely no inhibition and by inhibition I mean a sort of psychological barrier which prevents you from engaging in violence to the police when they are just trying to do their duty. When you see a uniform, apart from the contravene AVO, it appears to be a spur. Rather than submit, say, 'all right, let's talk about it,' whatever, he resists then he commits an offence perhaps of intimidation... He offered excuses, minimisations and justifications for his actions with respect to all of the offences. He regarded the damage property, he reported he had been intoxicated when he decided to act... He holds a poor opinion of the police. He believes they are merely revenue raisers for the city. He has a lengthy history of substance abuse, he presents with characteristics... He previous went to NA [Narcotics Anonymous] but decided to stop going as he thought they were not problematic for him anymore, which is often what happens and then of course he relapsed. He admitted to being homeless and rough living requires him to be on his guard to protect himself and his belongings. He has got a hypervigilant stance. He showed little insight into the impact of his behaviour on the community or victims... > > Anyway, he has been supervised in the past. He was deemed satisfactory... He is a medium risk of reoffending, they recommend a whole lot of programs. I am told... that [he] being well motivated has already done most of them whilst he has been on remand... I do note that he has pleaded guilty which is a statement of remorse, which I accept as acceptance of criminal responsibility and that he is remorseful... > > He said to me that he has got a lot of respect for the police. I do not think so. He says he just loses that respect when he is feeling he is unfairly dealt with. I cannot see that the police... have been heavy handed with him at all. They just need to do their duty. They cannot be put off... It is noted that he is a person who may benefit from being on the NDIS if he had a condition which permitted that and he says he has good prospects for rehabilitation. > > ... > > So in relation to these matters, a couple of them... do not warrant a custodial sentence. That is the contravene AVO of 10 May. In respect of that matter, as I have noted apart from a domestic violence damage to property matter, he is not a person known for contravene AVO or domestic violence of a physical type. I PUT HIM ON A COMMUNITY CORRECTION ORDER FOR TWO YEARS ON A PROMISE TO BE OF GOOD BEHAVIOUR AND APPEAR BEFORE THE COURT IF CALLED TO DO SO. HE IS TO REPORT TO SUPERVSION... WHEN HE IS RELEASED. > > ... > > In relation to... the McDonalds matter which is the offence of being in possession of the particular prescribed restricted substance, Modafinil, which apparently he was using as some form of substitute for an in fact prohibited drug, again, I do not think that this is a custodial matter.... COMMUNITY CORRECTIONS ORDER FOR TWO YEARS, REPORT TO ST LEONARDS, ABSTAIN FROM DRUGS. > > Now I turn to the more serious matters. In respect of these matters, I am satisfied it is a case for an aggregate sentence and I propose to apply that provision which results in the following indicative sentences. In respect of the first charges in time... burn the tents down 3 October. Maximum penalty ten years in custody. Indicative sentence nine months. For the offence of resist police, indicative sentence sequence 2, three months. For the offence of assault police, indicative sentence of six months. > > In respect of the... single matter of resits police, and indicative sentence... of three months. In respect of the most serious matters, which were the violence towards the McDonalds workers and the police when they intervened... in respect of the assault of ... Tessa... the manager, eight months. That is sequence 1. Sequence 2, in respect of the common assault of Jonah who came to her aid, six months. In respect of the common assault of Harry... an indicative sentence of four months. In respect of sequence 6, which is assault Constable Cooper, six months. In respect of the offence of resist Constable Cooper, three months... > > It is now appropriate for me to consider the actually aggregate sentence which I do... by considering the principles of totality and proportionality. In relation to totality, there is the fact that these offences of violence against the three individuals at McDonalds and the police officer were all on one occasion. In respect of the violence to police and the resist at the tent fire event, that is also on the one occasion. IN THE CIRCUMSTANCES, I AM SATISIFED THAT THE APPROPRIATE AGGREGATE SENTENCE IS ONE YEAR AND SIX MONTHS. > > ... > > HAVING REGARD TO THE SERIOUS NATURE OF HIS OFFENDING, I AM SATISIFED THAT IT IS A CASE FOR A FULLTIME CUSTODIAL SENTENCE. > > ...

4. The Tribunal considers that, of the Applicant's recent offences, at least one could classified as very serious, as per cl 8.1.1(1)(a)(iii) of Direction 110. This is the offence of destroying or damaging property (domestic violence) for which the Applicant was convicted with a 12 month conditional release order on 31 May 2022, and which relates to an incident on 1 May 2022 during which the Applicant threw a brick through the living room window of a woman with whom he had previously had a sexual relationship, and whom he believed owed him money, while the woman and another person were inside the living room.[16]
5. The Tribunal notes that at hearing, the Applicant denied that he was in a relationship with the woman in question, maintaining that this offence therefore did not constitute domestic violence. He further indicated that he did not intend to injure the woman (or the other person) by throwing the brick through the window and felt that his actions were justified as he believed that the woman had diverted significant Centrelink payments to which he was entitled into her bank account. However, the Tribunal has regard to the definition section of Direction 110, which indicates that 'family violence' includes intentionally damaging or destroying property of a family member, and that a 'a member of the person's family' is defined to include a person who has, or has had, an intimate personal relationship with the relevant person. In this case, the Applicant acknowledged that he had had a sexual relationship in the past with the woman in question, although he described it as one that he did not regard as serious. Nevertheless, the Tribunal finds that this constitutes family violence and is therefore to be characterised as very serious, regardless of whether there is a conviction for the offence or a sentence imposed.[17]
6. The Tribunal notes that there is another offence which could be characterised as involving domestic violence, being contravention of an Apprehended Violence Order (AVO) granted to another woman against the Applicant, when the Applicant was seen in her company in May 2024.[18] However, as noted by the sentencing Magistrate on 11 September 2024, although a breach of an AVO, it was not seen to be a serious one, a view with which the Tribunal concurs.
7. The Tribunal regards the offences involving assaults on police and resisting arrest and/or hindering police in the execution of their duty to be serious offending, as per cl 8.1.1(1)(b)(ii).
8. Noting that the examples provided in cl 8.1.1(1)(a) and (b) are not exhaustive, the Tribunal also considers the tent burning/property damage offence to be serious (given the vigilante nature of the Applicant's actions and the potential for greater damage had the fire not been contained) and it also considers the assaults on the McDonalds staff to be serious, given their age and positions.
9. There were no victim impact statements provided to the Court or the Tribunal. However, as noted above, the sentencing Magistrate clearly identified that the Applicant had intimidated the McDonalds workers, Mr Redfern (whose tent he burned), at least one woman with whom he had previously been in a sexual relationship, and at times, various police officers.
10. There is also a trend of increasing seriousness in the Applicant's offending, from the relatively minor offending in 2009 to the serious offences in 2022 and 2024. As noted by the Respondent's representative and conceded by the Applicant, the Applicant has been offending from 2009, shortly after he arrived in Australia in 2008, to when he was jailed in September 2024, with the longest period during which he did not offend being approximately four years.
11. The Tribunal acknowledges that the Applicant has not offended since being convicted in September 2024; however, he has been in jail and then in immigration detention from that time to date.
12. The Applicant conceded that he provided false or misleading information to the Department, by not disclosing his previous New Zealand offences on his incoming passenger card when he travelled to Australia in 2008.[19] The Tribunal notes his explanation that he was unsure whether he had to disclose the fact that his New Zealand driver's licence had been suspended and he had been fined for drink driving in 2006 as he was not sure if this counted as a conviction.[20] The Tribunal further notes that at the time the Applicant completed the card, he was 20 years old and had not travelled overseas before. It accepts that he has dyslexia and this causes him to find paperwork difficult. Given these factors, the Tribunal accepts that his failure to disclose his New Zealand driving offence(s) was not deliberate, but rather inadvertent, and it does not consider this to be a serious matter in the scheme of things.
13. There is no indication that the Applicant has reoffended after being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending to his migration status. However, as noted above, he has been either in jail or immigration detention since being sentenced in September 2024 so his ability to reoffend has been limited.
14. Overall, the Tribunal considers the majority of recent offences for which the Applicant was convicted to be serious and this weighs heavily in favour of not revoking the cancellation of his Subclass 444 visa, as does the cumulative effect of the Applicant's continued offending over an 11 year period with few breaks.
15. The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
16. Apart from the criminal offences set out above at paragraph 99, there is no other evidence of serious behaviour or conduct of concern in relation to the Applicant.

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. Clause 8.1.2 of the Direction states, in part:[21]

(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:

(i) information and evidence on the risk of the non‑citizen re-offending; and

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

1. This requires an assessment of the nature of the harm, should the Applicant engage in further criminal or other serious conduct.[22] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[23] There is no statutory constraint on the way that risk is assessed by the decision-maker, other than the requirement of a rational and probative basis for the assessment.[24]

1. In order 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.[25]
2. The Tribunal considers that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very serious, given his past offending includes assaulting and resisting police officers carrying out their duties, setting fire to another person's property, assaulting and intimidating young staff at a McDonald's outlet, throwing a brick through the window of an acquaintance and smashing car windows. It also gives weight to the Magistrate's sentencing remarks, which indicate that the applicant's actions, particularly in relation to the McDonalds incident, would have put his victims in fear. This weighs heavily in favour of not revoking the cancellation of his Subclass 444 visa.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. The Tribunal is to consider information and evidence on the risk of the Applicant reoffending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant's most recent offence_._

Information and evidence on the risk of the non-citizen reoffending

1. A Pre-Sentence Report dated 15 August 2016[26] for the Applicant, undertaken in relation to the offence of assault occasioning actual bodily harm (relating to an assault of the brother of his employer following an argument) indicated that the Applicant reported a history of binge drinking prior to the offence in February 2015 but claimed to have stopped, and to not have drunk alcohol for approximately three months. It is also recorded that while the Applicant was strongly encouraged to attend an alcohol assessment at a local community health centre, he declined as he considered there was no point as he no longer drank. It is further recorded that the Applicant maintained that he acted in self-defence as he and his then girlfriend were threatened with a gun by the victim and his brother, but that the Applicant did not tell police this as he feared retaliation. The Applicant further stated that he was 'aware that alcohol was a major factor in his offending and he had consumed an excessive amount of cask wine prior to the offence.' The author of the report assessed the Applicant as being at a low to medium risk of reoffending. It was noted that he had the ongoing support of his partner and family in New Zealand and had a history of consistent employment prior to this offending. He was therefore recommended for a Community Corrections Order.
2. The Forensic Psychiatric Report dated 1 July 2024 prepared prior to the Applicant's sentencing by Magistrate Stapleton in September 2024 records that the Applicant told the author that he had not used any drugs for approximately two months prior to his incarceration but that prior to that, he was using a bit of cannabis and methamphetamine more regularly, being intravenously on a daily basis, totalling approximately one gram per week. The Applicant also indicated that on the day of his arrest (in relation to the McDonalds incident) he had relapsed into alcohol use and had consumed an excessive amount of alcohol after witnessing what he thought was a person attempting to jump from a bridge. The author recorded that the Applicant was motivated to abstain from alcohol and illicit drugs and to attend church-based programs and/or Narcotics Anonymous, and was open to the possibility of residential rehabilitation, as well as to the possibility of medical treatment for alcohol abuse. The author's primary diagnosis was that the Applicant had a substance use disorder; in particular, that he had struggled over the years with cannabis, methamphetamine and alcohol but that he was open to undertaking treatment to address these issues.
3. The Sentencing Assessment Report dated 9 September 2024[27] noted that the Applicant hoped to work as a scaffolder again upon release, that he was not eligible for Centrelink (apart from a brief period during the COVID19 pandemic) and that he was homeless and would require housing support upon release. The author states that the Applicant had a history of alcohol and other drug (AOD) fuelled violent and aggressive offences, which appeared to indicate an ongoing poor attitude towards pro-social living. It is further stated that the Applicant offered excuses, minimisations and justifications for his actions with respect to all of the offences listed (being three charges of resisting or hindering police, two charges of assaulting police without occasioning actual bodily harm, damaging property by fire, custody of a knife in public place, three charges of common assault, possessing or attempting to possess a prescribed restricted substance, and contravening an AVO). Regarding the 'damage property' offence, the Applicant reported that he was intoxicated by alcohol and decided to protect the community from someone he believed to be a threat to young persons by setting fire to that person's tent and running him out of the area. It is also noted that the Applicant held a poor view of the police, having come to their attention on many occasions, and he believed that they were 'merely revenue raisers for the city'.
4. The author states that the Applicant has had a long history of methamphetamine/ice and alcohol abuse, and that when he was unable to procure ice, he used non-prescribed Modafinil. He reported using illicit stimulant drugs to keep himself awake in order to continue to consume alcohol. He further reported that he offended during periods of intoxication and therefore had no recollection or ownership of his behaviour. The Applicant disclosed that he had previously been to Narcotics Anonymous meetings but ceased attending as he had decided that drugs were not problematic for him. While he claimed to have been abstinent during his period on remand, this had not been verified by urinalysis testing.
5. The author notes that the Applicant said that being homeless required him to be hypervigilant to protect himself and his belongings, and the author stated that this hypervigilance combined with the Applicant's AOD abuse underpinned his violent offending, as well as his view (in relation to the damage property offence) that he was trying to rid the community of a potential criminal. The author noted that regarding his assaults of police, the Applicant minimised the severity of his behaviour and expressed the belief that he had been provoked. Regarding his AVO breach, the Applicant placed blame on the victim and expressed the view that he had been 'set up,' although he did not express any intention to contact the victim again.
6. The author concluded that the Applicant showed little insight into the impact of his behaviour on the community or his victims. When challenged on this, he did agree that pro-social community members should be able to live freely and participate in the workforce without being assaulted. However, in relation to the police, the Applicant indicated that if they (the police) 'become heavy handed' then they deserved the abuse that they got.
7. The author noted that the Applicant had expressed his willingness to undertake community service and engage in offence-related interventions; however, the author did not consider him suitable for the former due to his unresolved AOD use and his attitudinal issues. It was also noted that the Applicant had previously been supervised by Community Corrections on Intensive Corrections Orders in 2015 and 2018 for alcohol-fuelled domestic violence offences and an assault occasioning actual bodily harm, and his overall response to this supervision was deemed satisfactory with successful completion of a community service work order.
8. Overall, the Applicant was assessed as a Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). He was assessed as unsuitable to undertake community service work due to his unresolved AOD misuse and work, health and safety concerns in relation to community agency staff. The author indicates that if the court were to make a supervised order, then it would be recommended that the Applicant be assessed for his suitability to attend the EQUIPS Foundation Aggression and Domestic and Family Violence programs, be referred to a Men's Behaviour Change Program to address his domestic violence behaviours, be subject to random drug and alcohol testing, be referred to AOD interventions, counselling, programs or residential rehabilitation, be referred to a GP for a possible Mental Health Care Plan and/or referred to a psychologist, and encouraged to engage in community cognitive behaviour treatment exercise including managing stress/anger, conflict resolution and self-awareness.

1. The Tribunal notes that on 19 December 2022, the Applicant was assessed as suitable for the Magistrates Early Referral Treatment (MERIT) Program, where his treatment might include counselling and monitoring by MERIT and urinalysis.[28] However, a letter of 13 February 2023 indicates that the Applicant did not attend or participate in the MERIT Program and the assessment that he was suitable to participate had been withdrawn.[29]
2. In addition, the Applicant's oral and documentary evidence to the Tribunal indicates that:
   • he requested to undertake the SMART Recovery Program while in immigration detention but this was not available, so he was allocated an AODS psychologist, with whom he had undertaken counselling about his alcohol and drug use since January 2025, and he was continuing with this on an approximately fortnightly basis;[30]
   • he had completed a five-week men's mental health course in early 2025 entitled Circle of Trust - My Healing Matters;[31]
   • he had attended Narcotics Anonymous meetings in the past but did not find them helpful and did not intend to attend any future meetings;
   • if released and allowed to stay in Australia, he preferred not to undertake any residential rehabilitation as it would impede his ability to find and carry out employment, but he planned to continue to see an AODS counsellor or psychologist although he did not yet have a referral to one;
   • he intended to seek work with a former employer if released. He did not have any accommodation lined up if released but believed that he could stay with acquaintances until he could rent somewhere to live. He intended to avoid previous acquaintances who still used drugs and alcohol; and
   • he continued to use drugs and alcohol while in immigration detention but to a much lesser degree than he had when he was in the community prior to going to jail in September 2024.
3. The report dated 23 May 2025 from the Applicant's AODS psychologist[32] indicates that he had attended six sessions as at the date of the report and was a 'reliable and consistent attender who engages actively in therapy, demonstrating good reflective capacity and the ability to apply psychological strategies to address his substance use and emotional wellbeing. [He] presents as a thoughtful and affable individual, and he uses his time in detention constructively... [He] has a history of polysubstance use since adolescence and is currently working towards abstinence. He reports receiving increasingly longer periods without substance use, which is a significant accomplishment given the regular exposure to substances within the detention environment... He has expressed meaningful goals, including returning to work and rebuilding a relationship with his three year old daughter, who is currently in foster care. In addition to his therapeutic engagement, [the Applicant] is compliant with [immigration detention] processes and is observed to interact appropriately and respectfully with both staff and fellow detainees.'
4. The Applicant's oral evidence at hearing included the fact that he had taken buprenorphine while in detention in an attempt to have it prescribed to him, on the basis that it would make his time there 'easier', had also smoked a joint with other detainees on one occasion, and that he last drank alcohol (being a form of home-brewed alcohol) in immigration detention a matter of weeks before the hearing, when offered it in the context of farewelling a detainee who was being released.
5. Overall, the Tribunal considers that while the Applicant has made attempts to address his problematic AOD use (which he conceded to be a major, if not the major factor, in most of his offending over the years), most notably with his AOD counsellor since the start of 2025, he is not currently abstinent and continues to use both illicit drugs and alcohol, albeit to a significantly lesser degree that he previously did while living in the community.
6. While the Applicant's rehabilitation efforts are to be commended, and the Tribunal acknowledges that the Applicant has increasingly demonstrated some insight into his AOD issues and their link to his offending, the Tribunal remains concerned that any serious attempt at rehabilitation by him is very recent, in the context of the Applicant's lengthy and deep-seated substance abuse issues. Moreover, his reduced use of drugs and alcohol and his rehabilitation are untested in the community, and his past history indicates that he has frequently relapsed into problematic drinking and/or drug use, usually leading to further offending. The Tribunal's concerns are amplified by the fact that the Applicant has no guaranteed accommodation upon release and potentially runs the risk of being homeless again, a further factor contributing to his AOD abuse and offending, as identified by the most recent sentencing report.
7. The Tribunal accepts that the Applicant is sincere in his belief that AOD abuse and offending will not reoccur if he is released and permitted to remain in Australia, as he has changed and no longer wants to live that lifestyle, but considers that the Applicant's history to date does not support this view.
8. Overall, the Tribunal considers that - despite the Applicant's current efforts at rehabilitation - he remains a medium risk of reoffending.
9. Taking all of the evidence into account, the Tribunal considers that the Applicant is a medium risk of reoffending and at higher risk of doing so if he resumes problematic drug and/or alcohol use. The Tribunal gives this factor significant weight in favour of not revoking the cancellation of his Subclass 444 visa.

1. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
2. The Direction states that the Government has serious concerns about conferring on non-citizens, who engage in family violence, the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[33]
3. To the extent that the incident outlined in paragraph 103 (breach of an AVO) above may constitute family violence, the Tribunal is satisfied that it was at the low end of the scale. Accordingly, it gives this incident neutral weight in its considerations.
4. However, the Tribunal considers that the 2022 incident in which the Applicant threw a brick through the window of a woman with whom he previously had an intimate relationship to be serious and to constitute family violence (as set out at paragraphs 102 - 103 above) and it gives this some weight in favour of cancelling the Applicant's visa.

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 provides that:

(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:

(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

(ii) 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.

1. As previously noted, the Applicant's adoptive parents, three adoptive brothers and an adoptive sister reside in New Zealand and are New Zealand citizens. The Tribunal will discuss them further when considering the issue of what impediments (if any) the Applicant would face if removed to New Zealand.
2. At hearing, the Applicant confirmed that he does not have a current Australian partner but believes that he is the father of a three-and-a-half-year-old girl, whom the Tribunal will call N, who is an Australian citizen. This is the daughter of Ms LG, an Australian citizen, whom the Applicant has known for some years and with whom he had had a brief sexual relationship. The Tribunal notes that there is no official record of any kind indicating that the Applicant is N's father, although it appears that he has been asked by the NSW Department of Community Services to undertake a DNA test, presumably to establish whether or not he is N's father. The Applicant's evidence at hearing was that he was willing to undergo DNA testing but had been unable to arrange to do this while in immigration detention.
3. As the Applicant's putative daughter is a minor, the Tribunal will discuss her interests in more detail when considering the interests of any minor children who might be affected by the cancellation of the Applicant's visa.

1. The Applicant stated in the statement of personal circumstances that he provided with his request to have his visa cancellation revoked that he had two aunts and two uncles, five nieces and nephews and five cousins in Australia. However, at hearing, he clarified that he does not have five nieces and nephews in Australia, but does have two aunts and two uncles and five cousins in Australia, all of whom were either Australian citizens, permanent residents or had the right to reside in Australia indefinitely.
2. No statements were provided from any of these relatives. The Applicant gave evidence at hearing that he was not close to any of these relatives and conceded that they would not be affected if he were removed from Australia. The Applicant was not sure of the ages of his cousins but said that he thought some of them may be under 18. Their interests will therefore be addressed below in the Tribunal's consideration of the interests of any minor children potentially affected by the cancellation decision.
3. If the Applicant were to be removed from Australia, the Tribunal considers that his extended family here would be able to maintain contact, if they wished to, by such methods as telephone, messaging applications and video conferencing, methods which are commonly used now by family members in different countries or locations. There is no suggestion that the Applicant's family members in Australia were dependent on the Applicant for day-to-day care or financial support or had a close emotional bond with him.
4. Overall, the Tribunal considers that the adverse effect on the Applicant's Australian family members if the Applicant's visa cancellation is not revoked should be given neutral weight.

1. As noted above, the Applicant arrived in Australia as an adult in 2008, albeit a young adult, aged 20. He is now 38 years old and has not left Australia since his arrival.
2. On his own evidence, the Applicant began using cannabis and methamphetamine as a teenager in New Zealand, but his issues with significant cannabis, methamphetamine and alcohol use started in Australia and escalated over the years, and appear to have been the main contributing factor to his serious offending from 2009 to 2024.
3. The Tribunal considers that there is not a great deal in the way of countervailing contribution to the Australian community to weigh against these factors.
4. However, the Tribunal accepts that the Applicant has an employment history in Australia mostly in the roofing/scaffolding sector, and it notes that the Applicant was confident he could obtain work in this field again through one of his former employers, a person who also had a criminal record and was therefore sympathetic to people with criminal records looking for work, if released from detention and permitted to stay in Australia. The Applicant also indicated that he would look at doing other physical work, such as removals, if needed, given that roofing and scaffolding work could be affected by the weather.
5. The Tribunal notes that the Applicant does not have property in Australia, either rented or owned, and has experienced significant periods of homelessness, sometimes staying with acquaintances and sometimes staying in a makeshift shelter at the Dee Why Lagoon. He does not have an immediate accommodation option if released from detention and would either have to stay with acquaintances again or obtain assistance from a relevant housing service.
6. Overall, the Tribunal considers that while the Applicant has been in Australia for a reasonably long period (some 17 years), he does not have strong employment or social ties to Australia. The Tribunal also finds that the Applicant's offending started quite soon after he moved to Australia (approximately one year after his arrival as a young adult).
7. The Tribunal considers that, on balance, these factors slightly weigh in favour of not revoking the cancellation of his Subclass 444 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 cl 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.

1. As noted above, the Applicant gave evidence that he strongly believes that he is the father of a three-and-a-half-year-old Australian citizen child, N, whose mother is Ms LG, with whom the Applicant had a brief sexual relationship.
2. The Tribunal is satisfied of the following, based on the Applicant's oral and documentary evidence:
   • Ms LG has never confirmed that the Applicant is the father of her daughter;
   • the Applicant is not on N's birth certificate;
   • no DNA testing has been undertaken to establish that the Applicant is N's father, although the Applicant has now been asked to undertake such testing by the NSW Department of Community Services and wishes to do so. However, he has not yet been able to do so and it is unclear whether or if he will be able to;
   • there are no court orders in place giving the Applicant any rights in relation to N or recognising that he is her father; and
   • N was removed from Ms LG's care and placed in foster care, apparently with Ms LG's brother, earlier in 2025.
3. Therefore, despite the Applicant's sincere conviction that he is N's father, there is no objective evidence to substantiate this. Nevertheless, the Tribunal has proceeded to consider N's interests on the assumption that she is the Applicant's daughter.
4. The Applicant's daughter is three and a half years old, and as such, the Tribunal considers it would be inappropriate to directly seek her views about the effect on her if the Applicant's visa cancellation is not revoked. Although Ms LG provided a written statement dated 6 November 2024[34] in support of the revocation of the cancellation of the Applicant's visa, she did not refer to N, acknowledge that the Applicant was N's father or identify any adverse effect the removal of the Applicant from Australia would have on N.
5. There is no evidence of any assessment of N by any mental health or medical professional in connection with the Applicant (although the Tribunal accepts that it appears that she may have been assessed by the NSW Department of Community Services given she has been removed by them from the care of her mother).
6. At hearing, the Applicant conceded that he has had limited contact with N to date (consisting of a few visits with Ms LG) and has not played any parental role in relation to her. He expressed a strong desire to play a role in her life and to support Ms LG to regain custody of N but at present had no legal basis on which to assert any rights in relation to her.
7. As noted above, it appears that N is currently in foster care with her maternal uncle after the intervention of the NSW Department of Community Services.
8. The Tribunal is therefore satisfied that the Applicant does not presently have a parental relationship with his daughter, and it is unclear whether he will be able to in future.
9. Given N is now three and a half years old, the Tribunal is satisfied that there is considerable time before she turns 18 during which the Applicant could establish an in-person parental role with her. However, this would require the cooperation of Ms LG, N's foster carer and/or the NSW Department of Community Services. It is unclear whether this would be given, particularly given the Applicant's record of offending.
10. The Tribunal also considers that it would be open to Ms LG (or whoever has custody of N in future) to facilitate contact between her and the Applicant via electronic means. The Tribunal considers that if the Applicant were to depart Australia, this would not have a significant adverse effect on N, given she has no existing relationship with the Applicant but could communicate with him electronically in future and/or potentially visit him in New Zealand if she were to be told that he was her father.
11. The Tribunal accepts that it is normally in the best interests of minor children to have ongoing contact with both their parents, where possible, and this has been recognised in Australian case law, such as Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177. However, the Tribunal notes that the Applicant has not had in- person contact with N since 2024 due to his arrest, jail and immigration detention, and that in any case, he had very limited contact prior to 2024. As noted above, it appears that N remains in foster care.
12. The Tribunal has also considered the actual and potential impact on N of the Applicant's prior offending. The Tribunal considers that the Applicant's criminal record may affect his ability to have contact with N, depending on the assessment of the NSW Department of Community Services as to what would be in N's best interests.
13. Given this, while the Tribunal would generally find that it would be in the best interests of N that his visa not be cancelled so that he has the opportunity to establish an in-person relationship with her, it finds that he is not her primary carer, has not played a parental role to date in her life and it remains speculative as to whether he will be able to do so. Under the circumstances, the Tribunal gives this factor a little weight in favour of revocation of the cancellation decision.

1. The Applicant gave evidence at hearing that he had five Australian cousins. Apart from one adult male, which the Tribunal will refer to as B, he did not name the others or provide their details, other than to indicate that he believed that some of them were minors.
2. The Tribunal notes that none of these relatives provided written statements or were called as witnesses on behalf of the Applicant. At hearing, the Applicant indicated that although he got along best with B, he did not have a close relationship or regular contact with any of his cousins, including any who were under 18. He told the Tribunal that he did not believe any of them would be adversely affected if he were removed from Australia.
3. Based on this admittedly limited information, the Tribunal is satisfied that the Applicant has not exercised a parental role in respect of any of his cousins, including any aged under 18.
4. Given the Applicant's self-described almost non-existent relationship with his Australian cousins, the Tribunal is not satisfied that any of them who are under 18 would be distressed if the Applicant had to depart Australia.
5. Given the above, the Tribunal finds that their interests are neutral in relation to the visa cancellation.

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 offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[35]
3. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[36]
5. In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In applying these principles, and given the fact that the Applicant's offending includes serious offences and continued offending over a long period of time, including against police officers, the Tribunal considers that the Australian community would expect the Applicant's visa to be cancelled, and finds this consideration weighs heavily in favour of not revoking the cancellation.

(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.

Legal consequences of decision under section 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.[37]
2. There are a range of legal consequences of a decision not to revoke the cancellation of the Applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
   • unlawful status;
   • the likelihood of becoming subject to detention and/or removal;[38]
   • refusal of other visa applications and cancellation of other visas;[39]
   • a prohibition on applying for other visas;[40] and
   • periods of exclusion and special return criteria may apply.[41]
3. Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[42] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[43]
4. The Tribunal is satisfied that the Applicant would normally be subject to removal as soon as practicable under s 198, and would be detained under s 189 until then.
5. The Tribunal is satisfied that the Applicant is not subject to a protection finding, as that term is defined in s 197C of the Act. The Tribunal is further satisfied that the Applicant is a New Zealand citizen and he has not raised any non-refoulement claims in relation to that country, either specifically or by implication.
6. The Tribunal is of the view that as a national of New Zealand, the Applicant could be removed there if his visa cancellation is not revoked.
7. Another adverse consequence of the cancellation not being revoked is that there are significant restrictions on the Applicant being able to apply for another visa. As his Subclass 444 visa has been cancelled, he is now subject to s 501E(1) of the Act and would not be able to apply for another visa while in the migration zone (Australia) other than a protection visa or a bridging visa R pursuant to s 501E(2)(a) - (b) and r 2.12AA.
8. The Tribunal acknowledges that the potential loss of Australian permanent residence is the loss of a valuable right, not least to the Applicant's sense of security and certainty_._
9. The Tribunal acknowledges that the potential loss of Australian permanent residence is the loss of a valuable right, not least to the Applicant's sense of security and certainty_._
10. Accordingly, and on balance, the Tribunal considers that the legal effects of cancelling the visa on the Applicant weigh slightly in favour of revoking the cancellation of his Subclass 444 visa.

1. Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
   • the Applicant's age and health;
   • whether there are substantial language or cultural barriers; and
   • any social, medical and/or economic support available to the Applicant in their country.
2. As noted above, the Tribunal is satisfied that the Applicant can be removed from Australia to New Zealand as he is a national of that country and there is no protection finding in respect of that country in relation to him. It has therefore considered the extent of the impediments he might face if he were removed to New Zealand.
3. The Tribunal accepts that although he is a relatively young man in relatively good physical health, the Applicant would have little family support or obvious means of support from other sources (including immediate employment) if removed to New Zealand.
4. In relation to what would happen if the Applicant were to be returned to New Zealand, the Applicant gave evidence that he has limited contact with his adoptive parents (who have now separated) and his adoptive siblings in New Zealand and would not seek their support.
5. In his written and oral evidence, he indicated that he had not lived in New Zealand since he was 20 years old and therefore had spent nearly half his life (and nearly all of his adult life) in Australia, so it would be difficult for him to re-establish himself in New Zealand now. However, he also gave evidence that he was willing to relocate there and that the only reason he had not done so voluntarily before now was because he wished if possible to establish a relationship with his daughter, N.
6. The Tribunal also considers that the Applicant's employment skills gained in Australia (in scaffolding and roofing) would be transferable to New Zealand, and/or the Applicant may be able to find other physical labouring work there. The Tribunal is further satisfied that the Applicant would not face language or cultural barriers in New Zealand given he lived there until the age of 20.
7. The Tribunal considers that it is likely that the Applicant would have access to similar drug and alcohol counselling that he has been able to access in Australia, should he wish to do so, due to the healthcare and welfare services in Australia and New Zealand being comparable: Tera Una and Minister for Immigration and Border Protection (Migration) [2016] AATA 301 at [101].
8. The Tribunal therefore gives this factor neutral weight in favour of revoking the cancellation of the Applicant's Subclass 444 visa.

(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. The Tribunal notes that Direction 110 indicates that this factor is generally only given weight where a decision would significantly compromise the delivery of a major project or important service in Australia. The Tribunal accepts that the Applicant has worked for a number of years for Australian employers as a roofer and scaffolder and that he believed one of his former employers would re-employ him if he were allowed to remain in Australia; however, there is nothing to indicate that his being removed from Australia would significantly compromise the delivery of a major project or important service in Australia.
2. Accordingly, the Tribunal considers that this carries no weight in favour of revoking the cancellation of the Applicant's Subclass 444 visa.

1. The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason why the decision to cancel his 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.
3. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[44]
4. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ('CRNL') 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.'[45]
5. In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
6. Greater weight must generally be given to the protection of the Australian community than other primary considerations.[46] Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[47]
7. In the circumstances of this case, including consideration of the Applicant's efforts at rehabilitation, the Tribunal considers that the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations. The protection of the community in the context of the Applicant's cumulative conduct constituting serious offending over a prolonged period, and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation. The Applicant's ties to Australia carry some weight in favour of revoking the cancellation. The best interests of minor children (in particular the Applicant's putative three-and-a-half-year-old daughter) weighs slightly in favour of revoking the cancellation in this case. Of the other considerations, the legal consequences of the decision weight slightly in favour of revocation, while the extent of the impediments to the Applicant were he to be removed to New Zealand and the impact on Australian business interests carry neutral weight in favour of revoking the cancellation.
8. The Tribunal concludes that the primary considerations of the protection of the Australian community, and the expectations of the Australian community, which weigh strongly in favour of not revoking the cancellation, outweigh the considerations in favour of revoking the cancellation; namely, the strength, nature and durations of the applicant's ties to Australia, the interests of the Applicant's minor alleged daughter, and the legal consequences of the decision.
9. The Tribunal considers that this conclusion is in line with the principles set out in paragraph 5.2 of Direction 110, given that subparagraph 5.2(2) expressly states that the safety of the Australian community is the highest priority of the Australian government, and that the principles emphasise the interests of the Australian community over those of the individual applicant. In this case, the two primary factors that weigh against revoking the cancellation are those relating to the safety of the Australian community and the expectations of the Australian community. The only primary considerations which weigh in favour of the Applicant are his ties to Australia and the interests of his purported minor daughter. However, the Tribunal does not consider that these factors, taken on their own or cumulatively with the legal consequences of the decision and the extent of impediments to the Applicant if removed from Australia, outweigh the primary considerations that weigh in favour of not revoking the cancellation of the Applicant's Subclass 444 visa.
10. Having weighed up the factors, the Tribunal considers that the mandatory cancellation of the Applicant's Subclass 444 visa should not be revoked, and the decision under review should be affirmed.

1. The decision not to revoke the cancellation of the Applicant's Subclass 444 visa under section 501CA(4) of the Act is affirmed.

Solicitors for the Respondent: Ms Jessica Schultz, Mills Oakley Lawyers

[6] 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 ('Direction 110').

[17] Direction 110, cl.8.1.1(1)(a)(iii).

[21] Direction 110, cl 8.1.2(1), (2)(a)-(b).

[24] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

[38] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.

[39] Ibid s 501F.

[40] Ibid s 501E.

[41] Migration Act 1958 (Cth) s503, Special Return Criteria (SRC) 5001.

[42] Ibid s 15.

[43] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant's detention had at all times been lawful at [112]-[122].

[44] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

[45] [2023] FCAFC 138, [28].