CRNL v Minister for Immigration, Citizenship and Multicultural Affairs | Case summary | Zoe

CTHARTA

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs

austlii:cth/ARTA/2025/591

ARTA|2025-05-20

View original source

General information, not legal advice.

At a glance

Source facts

Court

ARTA

Decision date

2025-05-20

Source

Original judgment source is linked above.

Judgment (188 paragraphs)

[1]

The Applicant, born 1989, is a 35-year-old citizen of New Zealand who first arrived in Australia when he was 2 years old on 7 August 1992.
On 1 August 2024, the Applicant's Subclass 444 visa was mandatorily cancelled pursuant to subsection 501(3A) on the basis that he had a substantial criminal record and, at the time of the decision, the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (the original decision). The Applicant was notified of the cancellation decision and invited to make representations about revoking the original decision.
On 2 August 2024, the Applicant was released on parole and moved to immigration detention at the Brisbane Immigration Detention Centre.
On 27 August 2024, the Applicant requested revocation of the mandatory cancellation of his visa and made representations in that regard.
On 24 February 2025, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant's visa with that decision notified to the Applicant and a Statement of Reasons provided on 25 February 2025. That is the reviewable decision before the Tribunal.
On 2 March 2025, the Applicant applied to the Administrative Review Tribunal (the Tribunal) seeking review of the delegate's decision.
The Applicant and the Respondent's representative participated in person in a hearing before me on 12 and 13 May 2025, with the Applicant giving sworn evidence. The Applicant was advised of his right to invoke the privilege against self-incrimination prior to him giving evidence and indicated that he understood this right.
On 12 May 2025, I also heard sworn oral evidence from the following witnesses called by the Applicant:

[8]

Pursuant to paragraph 501(6)(a), a person does not pass the character test if they have "a substantial criminal record". Paragraph 501(7)(c) relevantly provides that a person has a substantial criminal record if they have "been sentenced to a term of imprisonment of 12 months or more".[4]
The Applicant concedes that he does not pass the character test on the basis that he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more as per subsection 501(7)(c). The Respondent in paragraph 18 of its SFIC refers to the Applicant being sentenced to 18 months imprisonment for the offence of 'Enter premises and commit indictable offence' committed on 29 December 2023, an offence for which the Applicant was sentenced on 4 June 2024_._ Additionally, however, it is not in dispute that on 4 June 2024, the Applicant was sentenced to a term of imprisonment of 21 months in respect of one count of 'enter dwelling and commit indictable offence' committed on 3 October 2023 and other offences. Further, as a result of cumulative sentences of one month for each of the three convictions (failing to appear in accordance with the undertaking of 1 March 2023, failing to appear on 11 April 2023 and failing to appear on 27 June 2023), the total sentence imposed was 24 months.[5]
I note that the delegate in the reviewable decision and the Respondent in written submissions, refer to the sentence imposed on the Applicant on 4 June 2023 as being 21 months[6] however I am satisfied that the three one-month sentences imposed by the magistrate were cumulative to the other sentences and that the actual total sentence imposed was 24 months.
The 24-month sentence was made up of concurrent and cumulative sentences for various offences including a breach of probation order on 15 August 2023, failure to give statutory declaration on 5 September 2023, fraud - dishonest application of property of another on 4 October 2023 (x 2), possessing dangerous drug on 30 December 2023, dishonestly induced delivery of property on 30 December 2023, possess utensils or pipes etc for use on 15 December 2023 (x 2), unlawful use of motor vehicles aircraft or vessels on or about 3 October 2023, enter premises and commit indictable offence on 29 December 2023, enter dwelling and commit on or about 3 October 2023, breach of order imposed on 15 August 2023, the aforementioned three failures to appear and a further failure to appear on 8 May 2024 (for which a conviction was noted without further punishment).[7]
The sentence of imprisonment was more than 12 months and it follows that the Applicant has a substantial criminal record and accordingly does not pass the character test. This was the basis upon which the Minister's delegate found that the Applicant did not pass the character test and was not contested by the Applicant. The first criterion for mandatory cancellation of the visa in subparagraph 501(3A)(a)(i) is therefore met.
Further, the evidence shows, and it is not disputed that at the time of the original decision to cancel his visa on 1 August 2024, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution for offences against the law of the State of Queensland. The second requirement for mandatory cancellation of the visa is therefore satisfied pursuant to paragraph 501(3A)(b).
Both requirements having been met for mandatory cancellation of the visa, I am satisfied that the 1 August 2024 original decision to cancel the Applicant's visa was legally effective[8] such that subsection 501CA(1) was enlivened permitting consideration of whether the mandatory visa cancellation can be revoked under subsection 501CA(4), which provides as follows:

[16]

(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 noncitizens 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 noncitizen'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.

[51]

I had regard to the circumstances of each of the criminal charges for which a conviction was recorded against the Applicant. The circumstances of the charges are summarised in paragraphs 7 to 18 of the Respondent's SFIC and I have had regard to all matters in those paragraphs. The Applicant did not take issue with any of the matters noted in those paragraphs.
In relation to the prior conviction on 4 October 2018, the details of the offending are set out in the court records[14] and were acknowledged by the Applicant at hearing as having occurred with him being picked up by the police at the place where he and a friend were getting drugs (methamphetamine). He said he had first used methamphetamine at a friend's wedding and then used it a few times afterwards but nothing further happened after this occasion. He then did not use drugs again until late 2022/early 2023 following the breakdown of his relationship with Ms Nadin, the mother of his eldest son.
In relation to the prior convictions on 15 August 2023, there are no sentencing remarks in evidence, however the Verdict and Judgment Record in evidence in relation to the convictions on these dates show that the relevant offences included several offences committed on 28 January 2023 (enter dwelling and commit), on 1 February 2023 (possessing dangerous drugs, possess utensils or pipes etc and unlawful possession of suspected stolen property), on 3 February 2023 (possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4, possessing anything used in the commission of crime defined in part 2, possession of a knife in a public place, possess utensils or pipes etc that had been used, possess property suspected of having been used in connection with the commission of a drug offence x 2), on 10 February 2023 (enter premises and commit indictable offence), on 1 March 2023 (failure to appear in accordance with undertaking), on 11 April 2023 (failure to appear in accordance with undertaking), on 6 May 2023 (contravene direction or requirement police officer and breach of bail condition), on 8 May 2023 (failure to appear in accordance with undertaking and unlawful use of motor vehicles aircraft or vessel), on 10 June 2023 (fraud - dishonesty gain benefit/advantage), on 13 June 2023 (stealing), on 14 June 2023 (enter premises and commit indictable offence by break), on 27 June 2023 (failure to appear in accordance with undertaking).
As regards the circumstances of the convictions against the Applicant on 4 June 2024, the sentencing remarks of Acting Magistrate Whitbread (the magistrate) on 4 June 2024[15] refer to the Applicant being sentenced for very serious offending, complicated by the fact that he had failed to take opportunities given to him. The magistrate noted the high rating given to the Applicant by Ms Moore in supporting him such that a conclusion was reached that when not on drugs, the Applicant is a good person. It was noted that the Applicant had committed a spate of offences over a fairly short period and that drugs had caused the Applicant to commit some serious offending. The magistrate noted that he had referred to the facts of the offending and that the only thing not before the court was the exact details of the drugs when the Applicant was given 12 months imprisonment on the previous occasion, but that it was clearly a significant amount of drugs, or a significantly serious offence, to involve that penalty. The magistrate noted that the sentence on the prior occasion was tailored to help the Applicant out and yet the Probation and Parole officer stated that the Applicant had given some lip-service to the probation officer/order. The magistrate stated that the Applicant breaking into people's homes was particularly serious offending, notwithstanding that the Applicant was probably intoxicated by drugs at the time and stated that there had been significant loss and damage caused to members of the community, including violation of their homes. The magistrate further observed that although a large number of the offences were at the lower end of the scale, they showed a terrible prevalence of offending by the Applicant when on drugs. It was noted that the Applicant was committing serious offences while subject to parole and previous convictions for similar offences making things worse for him. The magistrate further noted the Applicant's poor response to the previously imposed community-based order and that just turning up, sometimes, was not enough.
The Applicant at hearing confirmed the circumstances of all of the offending against a background of the breakdown of his relationship with Ms Nadin in 2022. He said that he was heartbroken and lonely. Initially he stayed in his car or hotel rooms but then ultimately obtained an apartment at Surfers Paradise on the Gold Coast, some distance from where Ms Nadin, the Applicant's eldest son and Ms Nadin's daughter were living at Nerang, but still close enough for him to have contact with the children. Initially he was having regular contact with the children including doing school runs when able to around his retail job and he was also taking the children out with him. This situation changed when his car was written off in an accident that was not his fault and because of subsequent insurance issues of the driver at fault delaying him having his own vehicle for transport. This resulted in difficulty having as much contact with the children as he had previously bene having. He was feeling very depressed and ashamed of the relationship breaking down - which was not of his choice. He started going out and met people in Surfers Paradise. He was a long way away from his childhood friends in Sydney. The people he was hanging out with were the wrong type of people and were doing drugs and also committing crimes, which was thought to be cool. He started using drugs; initially every few weeks, then just on days off work and then gradually all of the time. He spiralled out of control and eventually also lost his job and then, later, his apartment.
The Applicant gave detailed evidence about each of the offences in relation to which he was convicted. His evidence was that in relation to each of the crimes committed, his recollection is that he was under the influence of drugs on each occasion. He initially committed (break and enter) crimes as it was thought to be cool with the people with whom he was hanging out. In due course, there was also a financial incentive. The Applicant agreed that his offending became very regular and that despite opportunities being given to him including probation and being released after serving time from July to August 2023, he continued to offend, including break and enters, stealing offences and driving under the influence offences. The Applicant said that he tried to refrain from drug use when he was released, based upon time served, in August 2023. He felt at the time that his sentencing should have been harsher than it was. He said his first attendance on probation didn't even involve a drug test which he thought it would. He said he thought there would also be more engagement on the part of the probation officers but acknowledged that he didn't make genuine efforts to engage himself. He said that upon being released he was engaging with the same people. He was receiving Centrelink benefits when he was released and he was initially sober and was very remorseful but he went back to using drugs. He was living in his van at the time. He had started seeing Ms Moore on a casual basis earlier that year but he would only see her when he wasn't using drugs as she was not 'in to that scene' at all. He agreed that he engaged in further offending after his release including further stealing and unauthorised use of a motor vehicle. The Applicant agreed that he continued to offend even after finding out that Ms Moore was pregnant, likely around November 2023. He became concerned at that time and realised he needed help quitting drugs. He then ended up being incarcerated again in January 2024 as a result of his continued offending and was ultimately sentenced on 4 June 2024 with time served recognised and parole granted from August 2024.

[57]

Notably, paragraph (iii) refers to acts of family violence regardless of whether there is a conviction for an offence of a sentence imposed. The Applicant disclosed in his revocation request that there is a current Protection Order in place with him named as respondent in relation to the aggrieved Ms Samantha Znebeanek,[16] as is also referred to in the Respondent's SFIC, at paragraph 44, where it is noted that there is a Protection Order in place against the Applicant until 16 October 2028.[17]
The Applicant was questioned at length about the allegations of the Aggrieved in relation to the Protection Order and his relationship with Ms Znebeanek. The Applicant's initial evidence to the Tribunal was that Ms Znebeanek was someone that he met on the Gold Coast when she was living in her van. His evidence was that he did not have a relationship with Ms Znebeanek but he agreed that he had been intimate with Ms Znebeanek and that it was possible that he was the father of a baby born to Ms Znebeanek in November 2023 (as best he understands). The Applicant was questioned about a letter dated 12 August 2023[18] from him that was provided to the Court in relation to his 15 August 2023 appearance. It was noted that, contrary to the Applicant's initial oral evidence to the Tribunal, his letter to the Court contained contradictions in relation to both his relationship with Ms Nadin and his relationship with Ms Znebeanek.
The 12 August 2023 letter refers to the Applicant being contacted out of the blue, three years prior to that time, by an old girlfriend and being that told that he had a 10-year-old son, with him then moving to Queensland to be close to his son and he and the girlfriend reconnecting and then of his devastation when the relationship broke up in August 2022. The letter goes on to refer to Ms Znebeanek as his new partner and that he had not used drugs since he found out, in June 2023, that Ms Znebeanek was pregnant. The content of this letter was contradictory to the Applicant's evidence to the Tribunal as to the circumstances of his relationship with both Ms Nadin and Ms Znebeanek. The Applicant said that he wrote the letter at the time so that his solicitor could hand it over to the judge. He said that the details of his relationship in the letter were not true and said he was trying to get out of trouble at the time. When queried what difference it would have made to have told the truth in the letter, in accordance with the evidence given to the Tribunal if that is contended what the truth is, the Applicant's evidence was that part of the difficulty was that for the whole of his eldest son's life, Ms Nadin had been claiming Centrelink benefits on the basis that she was a single parent. He said that there had been periods they weren't living together, including from 2014 to 2018, but there had also been times they were living together. The Applicant said he was also saying things that weren't quite true in relation to Ms Znebeanek with a view to helping himself. The Applicant suggested it was under his solicitor's instruction. I rejected that suggestion by the Applicant and said that ultimately it was a matter for him what instructions he provided to his solicitor and the veracity of the information in the letter.
As regards the allegations of family violence made by Ms Znebeanek supporting the Protection Order, as detailed at the records of Queensland Corrective Services produced under Summons,[19] the Applicant rejected all allegations stating that the allegations only came about because Ms Znebeanek's mother attended at the Runaway Bay police station to return his goods that Ms Znebeanek had held whilst he was incarcerated from July to August 2023. On questioning, the Applicant although disagreeing with the details of the allegations, did acknowledge some of the general factual scenarios as having occurred. However, he further contended that Ms Znebeanek was likely further motivated in making false allegations against him to obtain a Protection Order, because of the priority that she would receive for public housing as the aggrieved in relation to a Protection Order.
The Direction at paragraph 4(1) defines 'family violence' as meaning "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes them to be fearful". A member of a person's family includes a person who has, or has had, an intimate personal relationship with the relevant person.
While the Applicant's evidence to the Tribunal was that his relationship with Ms Znebeanek was casual, he did not dispute that he had been intimate with her and that he was possibly the father of her baby. I am satisfied and find that Ms Znebeanek was a member of the Applicant's family for the purposes of consideration of the Protection Order.
I note that the Applicant denies the detail of the offending alleged in relation to the Protection Order and that no convictions have been made in relation to any of the allegations. Oral submissions on behalf of the Respondent at hearing in this regard were that the fact of the Protection Order alone is not necessarily reflective of family violence having been proven. On this basis I have not had regard to there being any acts of family violence by the Applicant for the purposes of paragraph 8.1.1(1)(a) of the Direction.
The oral submissions of the Respondent were that the circumstances surrounding the Protection Order were nonetheless of concern with respect to the broader actual circumstances of the case and of the Applicant. As discussed with the Applicant at hearing, I hold concerns about the reliability of his evidence generally given the inconsistencies in his evidence to the Tribunal as compared to as set out in the 12 August 2023 letter to the Magistrates Court and his willingness previously to not represent the whole truth 'to get out of trouble' which concerned me was behaviour he could repeat, including in evidence to the Tribunal. Ultimately, I accept the evidence of the Applicant as to his relationships with Ms Nadin and Ms Znebeanek as given to the Tribunal, and not as set out in his 12 August 2023 letter to the Magistrates Court, including because of the substantiation of aspects of those relationships provided by Ms Davis in evidence. Nonetheless, the circumstances canvassed do not reflect favourably on the Applicant.

[100]

The Respondent's written and oral submissions included that the Applicant has a clear history of resorting to drug use when stressed, that there is an absence of evidence that he has taken meaningful steps to address the underlying causes of his offending or substance use and that he has not spent any time in the community since his most recent offending such that the Applicant remains an ongoing moderate to high risk of reoffending.
The Applicant submitted that despite the identified issues, he now is very aware of the consequences of his offending, including the implications for his migration status. He said that he has identified that he cannot again live on the Gold Coast, where he was influenced in a negative manner and that his immediate plans if releases to the community would be to live with his mother in Sydney and to get himself set up and save money, noting that he would also have the support of his childhood friends in Sydney. He said one of his childhood friends, Mr Bedford, has indicated that work will be available to him to assist him in re-establishing himself. The Applicant said that, ultimately, he and Ms Moore will be looking to reside together but the focus initially will be on his rehabilitation which is best supported for him back with his mother. The Applicant also spoke of rehabilitation and support options he has explored that he could avail upon release, including an Advanced Health Plan to access 10 sessions of psychological counselling and connecting with either Alcoholics Anonymous or Narcotics Anonymous (although is preference would be to connect with Alcoholics Anonymous as his view is that he should restrain from associating with others that may have drug issues). Ms Davis' and Ms Moore's evidence was consistent with these plans expressed by the Applicant.
In the absence of independent psychological evidence in relation to the Applicant's risk of re-offending, I am limited to considering the above matters in relation to the Applicant's risk of reoffending. I accept as conceded by the Applicant that there cannot be said to be no risk. However, I am also not satisfied that the evidence supports that the risk is high notwithstanding the Applicant's continued reoffending after release from incarceration in August 2023. I am satisfied that the Applicant genuinely was not aware of the consequences for his migration status of his offending until August 2024 and I put some weight on the rehabilitation courses he has undertaken whilst incarcerated and detained, albeit limited. Having regard to all of these matters, I conclude that the likelihood of the Applicant engaging in further criminal or other serious conduct upon release to the community cannot be assessed as less than medium.

[104]

The Applicant acknowledges that there can never be no risk of him committing further offences or engaging in other serious conduct, but submitted that having had the opportunity to reflect over an extended period of being incarcerated and detained (over 16 months in total), now being aware of the consequences to his migration status (which he was not aware of prior to August 2024), having had the benefit of rehabilitation courses during his time away from the community, and having the support of his partner Ms Moore and his family, particularly his mother, Ms Davis are all factors supporting that he is a low risk of re-offending.
The Respondent raised concerns in this regard with the seeming lack of knowledge of Ms Moore and Ms Davis, up to an acknowledged few days prior to the hearing, of the extent of the Applicant's offending. Whilst Ms Moore and Ms Davis might not be aware of all of the exact detail of the Applicant's offending, I am satisfied that they are generally aware of the very serious nature of his offending and, further, are committed towards supporting the Applicant in the community and with rehabilitation. I am further satisfied based upon the statements of Mr Bedford and Mr Macaskill that the Applicant will also have the support of long-term friends including as regards employment. Nonetheless the Applicant's offending was repeated and has not been retested in the community.
I have cumulatively had regard to the nature of the harm to the individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct, which I have assessed as not less than medium, in assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. I consider there is a risk of future harm given the assessed medium likelihood of the Applicant engaging in further criminal or serious conduct which cannot currently be categorised as below medium. The nature of the Applicant's offending included repeated offending. I find that the offending is very serious and there is a risk not able to be assessed below medium of the Applicant reoffending.

[129]

Written submissions on behalf of the Respondent acknowledge the family relationships identified by the Applicant in Australia, although it is suggested that whilst the Applicant has relationships with his mother and sister, they are not close relationships. Further, it is noted that although the Applicant has had contact with his eldest son in the community, his eldest son lives with Ms Nadin (his mother) and the Applicant has not spent any time in the community since his youngest son was born. The Respondent concedes that this consideration weighs in the Applicant's favour but submits that it should be afforded moderate weight given the evidence suggests a limited relationship with his mother and sister, and limited involvement with his children.
Oral submissions at hearing on behalf of the Respondent continued to be that the evidence suggests that while they clearly have an ongoing relationship with the Applicant, the relationship with his mother and sister is not very close and as regards his sister, they appear to have a limited ongoing relationship. It was submitted that there was little evidence of the relationship of the Applicant with his father and his brother. Further it was submitted that the Applicant has had limited contact with his eldest son for a number of years and the Applicant's evidence was that if he remains in Australia, he has no intention of continuing to live on the Gold Coast where his eldest son lives, with no suggestion that his eldest son will move from the Gold Coast, such that the relationship with his eldest son is likely to be of little difference, and will continue to be more by electronic means, whether the Applicant remains in Australia or not. It was also noted that the evidence seemed to suggest a somewhat difficult relationship between the Applicant and his eldest son's mother, Ms Nadin, from whom the Applicant has been separated since 2022. Consistent with the written submissions, it was maintained that moderate weight only should be attributed to this consideration.
The Applicant submitted that he has very strong ties to Australia including very close relationships with family members and also with Ms Moore, his partner. His evidence and Ms Moore's was that they communicate several times a day and write copious letters to each other. Further, whilst acknowledging that his rehabilitation plans necessarily mean that he will not be residing in the same state as his eldest son, and likely not in the same town/city as his youngest son, at least initially, that his ability to have contact with both of them, including for example on school holidays with his eldest son, is much greater being in Australia. The Applicant submitted that very significant weight should be placed on this consideration.
Having regard to the considerations required by paragraph 8.3 of the Direction as outlined in the preceding paragraphs, I am satisfied that the Applicant has very strong ties to Australia. I am satisfied that the Applicant and Ms Moore have a continuing and strong relationship, which has persisted despite the Applicant's incarceration and detention and in difficult circumstances, with an obvious joint commitment to the best interests of their son, which they both see being best served by them being a family unit. I reject the Respondent's submissions that the Applicant does not have close relationships with his mother and sister. Ms Davis' evidence at hearing made it very clear that although there was a period of less regular contact throughout 2023, the usual relationship between her and the Applicant is very close and that she is very involved with the Applicant's future plans and is committed to his rehabilitation. I am satisfied that the Applicant has a close relationship with his sister and accept, as noted in her statement, that she was not available to attend the hearing to give evidence because she has a young son and is expecting (a baby) again.[31] I am also satisfied, based upon the Applicant's oral evidence at hearing, that he has a good relationship with his father and brother. The Applicant's father and brother both live in Sydney. The Applicant acknowledged he is not in much contact with his brother but said that he is in contact with his father, although mainly by text, because his father is not 'much of a talker'. He said his father is aware of his criminal convictions and circumstances, similar to his mother's awareness. Whilst the Applicant may have less contact with them than he does, for example, with his mother and sister, I am satisfied that the Applicant enjoys good relationships with them, particularly with his father. Further, I accept the Applicant's evidence that his father's circumstances are such that if the Applicant is removed to New Zealand, he is unlikely to ever see his father again due to the limitations on his father's ability to travel overseas.
Having regard to all of the evidence and submissions in relation to this consideration, I conclude that Primary consideration 3 weighs very heavily in favour of revoking the original decision to cancel the Applicant's visa.

[138]

The Applicant's eldest son is 13 years of age and is the Applicant's biological son with Ms Nadin. The Applicant's evidence at hearing was that he continues to be very close to his eldest son despite being incarcerated and in detention since January 2024.
The Respondent's written submissions included, at paragraph 60 of its SFIC, that as a teenager less weight should be afforded to any consideration of the Applicant playing a positive parental role, for his eldest son, than which would be the case if he was younger pursuant to paragraph 8.4(b) of the Direction.
Oral submissions on behalf of the Respondent included that given the Applicant's stated plans to reside in Sydney in the first instance and to not to return to the Gold Coast if he is released in to the community, and his eldest son's residence on the Gold Coast, there would be little difference in the future relationship between the Applicant and his eldest son should the Applicant be in Australia or New Zealand. The Applicant rejected this submission and said that he and his eldest son have talked; his eldest son knows he (the Applicant) has messed up, they want to be together as much as possible and his eldest son knows that they won't be able to see each other like they used to. However, his eldest son visits with the Applicant's mother in Sydney on his school holidays. He did this on his last school holidays (and the Applicant would have been there with him if not in detention) and is already booked again to visit the Applicant's mother in Sydney for the next school holidays. Whilst his eldest son would ultimately be able to visit New Zealand of his own accord once he turns 18, the prospects of seeing him in person prior to that time are much more limited if the Applicant is in New Zealand compared to if he was, for example, in the community in Sydney with his mother.
The nature of the relationship between the Applicant and his eldest son is biological father/son. The duration of the relationship has been since birth with the Applicant and his eldest son residing together for a significant part of that time; on the Applicant's evidence from 2011 to 2014 and again from 2018 to 2022. The Applicant's evidence was that after the separation from Ms Nadin in later 2022 and throughout 2023/early 2024, he had contact with his eldest son when his transportation arrangements allowed including, for example, taking him to school and back and attending his sporting activities. Further, he has had regular online contact with his son, including playing video games together; more particularly since the Applicant has been in detention rather than incarcerated. The Respondent's written submissions, at paragraph 60 of the SFIC, included that the frequency of the Applicant's crimes and incarceration suggests that the Applicant has not had a very significant relationship with his eldest son since at least the end of 2022. I accept that that is necessarily the case as regards physical contact between the Applicant and his eldest son since January 2024. However, I am satisfied that there was physical contact between the Applicant and his eldest son throughout 2023, albeit of a lesser amount than when they were living together, occasioned likely due to the Applicant's drug use and circumstances throughout 2023 but also contributed to by the Applicant's loss of his car for part of 2023 when it was written off by an accident which was not his fault. Having had regard to all matters, I am not satisfied on the evidence that the relationship between the Applicant and his eldest son is non-parental or that there have been long periods of absence or limited meaningful contact between the Applicant and his eldest son such that less weight should be given to the relationship as stated by paragraph 8.4(4)(a) of the Direction.
The Applicant's eldest son was born in 2011 and will turn 18 in the year 2029, some four years away. As submitted by the Respondent in written submissions, at paragraph 60 of its SFIC, the Applicant's offending behaviour is not behaviour which should be emulated by children including maladaptive coping strategies such as drug use. However, I am satisfied that the Applicant has shown considerable insight into his past behaviour and a desire to play a parental role in the community for his eldest son, albeit with in person contact limited to school holidays in the foreseeable future. Further, prior to his offending in 2023, I am satisfied that the Applicant had largely led an exemplary life in Australia for a very significant period throughout his adult years, gainfully employed and contributing to the community. I am satisfied that there is some positive parental role that the Applicant could play in his eldest son's life prior to him turning 18 if the Applicant remained in Australia.
There is no evidence of the impact of the Applicant's prior conduct on his eldest son other than as to the consequential physical separation from him whilst the Applicant has been incarcerated or in detention. As regards the impact of any likely future conduct, there is no evidence before me to suggest that any likely future conduct would have a negative impact upon his eldest son.
As to the likely effect that any separation from the Applicant would have on his eldest son, the Applicant in his revocation request refers to his eldest son recently being diagnosed with alopecia. The suggestion is that that the underlying cause is stress, including because of him missing the Applicant. There is no medical evidence before me in this regard however I acknowledge that this is a possible impact upon the Applicant's eldest son brought about by physical separation from the Applicant since January 2024. I am satisfied that there is likely a considerable impact upon the Applicant's eldest son if he continues to be physically separated from the Applicant and that other ways of maintaining contact with the Applicant if he were removed to New Zealand, including by electronic means, and, if possible, of visits by the Applicant's eldest son to New Zealand, would not substitute for the positive impact more frequent physical contact between the Applicant and his eldest son is likely to provide if the Applicant is able to remain in Australia. I also accept, as submitted by the Applicant, that without the Applicant being physically present in his eldest son life in Australia, his eldest son is less likely to develop a strong relationship with the Applicant's youngest son and other family members that he would not otherwise necessarily have contact with except via the Applicant.
The evidence before me is that the Applicant eldest son's mother already fulfils a parental role in relation to the Applicant's eldest son.
There is no evidence of the known views of the Applicant's eldest son other than the Applicant's evidence that his eldest son misses him terribly.
There is no evidence that the Applicant's eldest son has been, or is at risk of being, subject to, or exposed, to family violence perpetrated by the Applicant or that the Applicant's eldest son has otherwise been abused or neglected by the Applicant in any way.
There is no evidence that the Applicant's eldest son has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct other than the aforementioned distress of the Applicant's eldest son as a consequence of missing the Applicant's physical presence in his life, a direct consequence of the Applicant's offending conduct.
Having had regard to the above factors in relation to the best interests of the Applicant's eldest son, particularly given the long-standing and close existing relationship between the Applicant and his eldest son, I am satisfied that non-revocation of the original decision to cancel the Applicant's visa is not in the best interests of the Applicant's eldest son.

[139]

The Applicant's youngest son is nine months of age and is the Applicant's biological son with Ms Moore. The Applicant's youngest son was born on the cusp of the Applicant's release from incarceration with the Applicant and Ms Moore initially expecting that the Applicant would be present for his youngest son's birth, however the Applicant's detention then intervened. The Applicant's evidence, supported by that of Ms Moore is that they wish to together provide a close family unit with each other for the Applicant's youngest son. The evidence was that the Applicant has had minimal in-person contact with his youngest son since his birth, including because of the difficulties of Ms Moore travelling from Lismore, where she currently resides with her mother, to visit the Applicant in detention, but that to the extent possible with a baby of his age, the Applicant has had contact with his youngest son via electronic means such as Facetime.
The nature of the relationship between the Applicant and his youngest son is biological father/son. The duration of the relationship has been since birth in August 2024 however the Applicant has been in detention throughout the entirety of his youngest son's life such that their contact has been very limited. The Respondent in written submissions, at paragraph 60 of the SFIC, submits that whilst generally greater weight should be afforded to children who are younger, this weight should be moderated having regard to the Applicant not having spent any time in the community with his youngest son. I accept that the Applicant has not spent any time in the community with his youngest son because of his detention but I do not accept that less weight should be afforded to consideration of the Applicant's youngest son's interests as submitted in this regard. If the Applicant is released to the community, he is likely to have significant contact with his youngest son, albeit not full-time physical contact in the immediate future given the Applicant's rehabilitation plans. I am satisfied on the evidence that the relationship between the Applicant and his youngest son has been such that there has been a long period of absence and limited meaningful contact. However, in the context of the Applicant's youngest son's young age and the general likelihood therefore of the Applicant's youngest son's lack of awareness of this missing period should the Applicant be released into the community in the near future, I am not satisfied that less weight should be given to the relationship as stated by paragraph 8.4(4)(a) of the Direction and as submitted by the Respondent.
The Applicant's youngest son was born in 2024 and will turn 18 in the year 2042, some almost 18 years away. The Applicant has shown considerable insight into his past behaviour and a desire to play a parental role in the community for his youngest son, together with Ms Moore, albeit with in person contact potentially limited initially whilst the Applicant concentrates on rehabilitation and whilst he and Ms Moore ascertain their best future plans in terms of where and when they might reside together with his youngest son. Again, as regards the Respondent's written submissions, at paragraph 60 of its SFIC, that the Applicant's offending behaviour is not behaviour which should be emulated by children including maladaptive coping strategies such as drug use, the Applicant has shown considerable insight into his past behaviour and a desire to play a parental role in the community for his youngest son. Further, and again, prior to his offending in 2023, I am satisfied that the Applicant had largely led an exemplary life in Australia for a very significant period throughout his adult years, gainfully employed and contributing to the community. I am satisfied that there is some positive parental role that the Applicant could play in his youngest son's life prior to him turning 18 if he remained in Australia.
There is no evidence of the impact of the Applicant's prior conduct on his youngest son other than as to the consequential physical separation from him whilst the Applicant has been incarcerated or in detention, and the also consequential impact on his youngest son's mother, Ms Moore. As regards the impact of any likely future conduct, there is no evidence before me to suggest that any likely future conduct would have a negative impact upon the Applicant's youngest son.
As to the likely effect that any separation from the Applicant would have on his youngest son, the Applicant in his revocation request, and Ms Moore in her evidence, refer to the pressure placed on Ms Moore having to care for the Applicant's youngest son without the Applicant's support. Ms Moore's evidence was that she has never left Australia, that all of her family and support are based in Australia and that whilst she would try to visit the Applicant in New Zealand and would want to make it work, it would be very difficult to sustain their relationship long term in separate countries and that it would be hard for her to save enough money to visit or go to New Zealand without the Applicant's support in Australia in terms of her finding work and childcare. As the biological father of his youngest son, I am satisfied that there is likely to be a considerable impact upon the child if the Applicant were to be removed to New Zealand with opportunities for physical contact and the bonding one would expect would occur between the Applicant and his youngest son over the coming important developmental years limited. Given the Applicant's youngest son's young age, I am not satisfied that other ways of maintaining contact, including by electronic means, would be any sort of substitute for the physical presence of the Applicant in Australia for his youngest son.
The evidence before me is that the Applicant's youngest son's mother already fulfils a parental role in relation to the child.
There is no evidence of the known views of the Applicant's youngest son given his young age.
There is no evidence that the Applicant's youngest son has been, or is at risk of being, subject to, or exposed, to family violence perpetrated by the Applicant or that the Applicant's youngest son has otherwise been abused or neglected by the Applicant in any way.
There is no evidence that the Applicant's youngest son has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.
Having had regard to the above factors in relation to the best interests of the Applicant's youngest son, particularly given his young age and the desire of the Applicant and Ms Moore to be in a family unit including for their son's benefit, I am satisfied that non-revocation of the original decision to cancel the Applicant's visa is not in the best interests of the Applicant's youngest son.

[145]

The Applicant's eldest nephew and the Applicant's youngest nephew are the Applicant's nephews, his brother's and sister's sons. There is no documentary evidence before the Tribunal as the current age of each of the Applicant's nephews. The Applicant's oral evidence was that his eldest nephew is currently undertaking a fabricating apprenticeship but is still aged under 18 and that his youngest nephew is 11 years of age. The Applicant's evidence was that his brother and his ex-wife have separated and moved to Maitland and keeping in contact hasn't been as easy as when they were living in Sydney but he still had contact with his eldest nephew when he would visit his mother, Ms Davis, in Sydney. He said he has not had a chance to see his eldest nephew in person since he came to Queensland but there has nonetheless been continuing contact. He has also had continuing contact with his youngest nephew, his sister's son.
I am satisfied that the Applicant has been known to each of his nephews since their births. The nature of the relationship is a close familial-like relationship and I am satisfied there has previously been and is existing and meaningful contact between the Applicant and both his nephews, including through extended family links, although that contact has decreased in recent years.
The evidence would suggest that although possibly not 18 yet, the Applicant's eldest nephew is probably not far off turning 18 and that the Applicant's youngest nephew will likely turn 18 within the next six or seven years. As already noted, the Applicant has shown considerable insight into his past behaviour and a desire to be a good influence on others including his nephews.
There is no evidence that there has been any impact of the Applicant's prior conduct on his nephews other than Ms Hall's statement that it has been hard for the Applicant's youngest nephew not having the Applicant around. I am satisfied that any likely future conduct will not have a negative impact on them.
As to the likely effect that any separation from the Applicant would have on his nephews, I am satisfied that there would be some impact upon them given the long-standing familial-like ties, albeit possibly minimal.
The evidence suggests that both of the Applicant's nephews have other persons, their parents, that already fulfill a parental role in relation to each of them.
There is no direct evidence of the known views of the Applicant's nephews.
There is no evidence that the Applicant's nephews have been exposed, or are at risk of being, subject to, or exposed to family violence perpetrated by the Applicant or have otherwise been abused or neglected by the Applicant in any way.
There is no evidence that the Applicant's nephews have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct, other than the general impact that might be expected of being separated from an uncle whilst he has been incarcerated or in detention.
Having had regard to the above factors in relation to the best interests of the Applicant's nephews, I am satisfied that non-revocation of the original decision to cancel the Applicant's visa is not in their best interests.

[146]

There was also discussion at hearing of two other minor children of potential relevance.
The Applicant's evidence was that during a break in their relationship between 2014 and 2018, Ms Nadin gave birth to a daughter in 2016, in relation to whom the Applicant played a stepfather role upon resumption of his relationship with Ms Nadin in 2018. The Applicant's evidence was that he had a close relationship with Ms Nadin's daughter and that he continued to see her, together with his eldest son (her half-brother) after the breakdown of his relationship with Ms Nadin at the end of 2022. The Applicant acknowledged at hearing that he has had no real contact with Ms Nadin's daughter for quite a period of time, that her biological mother and father both play parental roles in her life but said that he will always include Ms Nadin's daughter in his life to the extent he is able. The Applicant submitted that the biggest effect it would have on Ms Nadin's daughter if he were removed to New Zealand is the impact it will have on her half-brother, his eldest son. The Applicant said he did not list Ms Nadin's daughter in his revocation request as a minor child impacted by the decision but that he loves Ms Nadin's daughter. However, he acknowledged that Ms Nadin did not want her daughter having a relationship with him going forward and did not seek to rely upon the impact the decision would have on Ms Nadin's daughter as a relevant consideration. On this basis, I have not had regard to the best interests of Ms Nadin's daughter as a minor child that may be affected by the decision.
Further, as already noted earlier in these Reasons, although there is a possibility that Ms Znebeanek's daughter is his biological daughter, the Applicant has had no contact with her since her birth in November 2023 (other than a sighting whilst shopping) and the Applicant does not seek to have her taken into consideration when considering his position. On that basis, I have also not had regard to the best interests of Ms Znebeanek's daughter as a minor child that may be affected by the decision.

[148]

The Applicant submitted that it is clear from the evidence that the best interests of minor children in Australia, particularly his two sons, are met by him remaining in Australia and he is able to play a direct parental role for each of them such that this consideration weighs very strongly in favour of revocation. He submitted that the maximum possible weight should be put on this consideration because from his point of view it is 'all about the kids'.
The Respondent's written submissions included that the Applicant's sons already have mothers who fulfill a parental role and who have done so for a notable period without the Applicant (paragraph 61 of the Respondent's SFIC). As regards the Applicant's nephews, it was submitted that there is no evidence that they are minor children to which the consideration relates and that, in any event, they are not dependent on the Applicant nor do they have regular interaction or any ongoing meaningful relationship such that no consideration should be attributed to their best interests. In conclusion the Respondent submitted that this consideration should be given moderate weight (in respect of the Applicant's sons).
I acknowledge the Respondent's concerns in relation to the bad example that the Applicant's past behaviour would be for minor children, particularly his sons. Nonetheless as I have recognised, the Applicant has lived in Australia for the majority of his life, and all of his adulthood, and but for one year of that time was gainfully employed throughout adulthood and other than the 2018 conviction had no criminal history until 2023. I recognise these matters and the Applicant's genuine remorse and desire to play a positive parental role in the lives of all four of the noted minor children and particularly in the lives of his sons. Further, I recognise to the extent able the Applicant has retained ongoing relationships with both of his sons. I recognise the desirability of a biological parent playing an active role in a child's life to the extent possible, including when in a partnership with the child's biological mother but also when not. I conclude that it is in the best interests of the minor children canvassed, and in particular the Applicant's sons, that the decision to cancel the Applicant's visa is revoked. I conclude that Primary consideration 4 weighs very heavily in favour of revoking the original decision to cancel the Applicant's visa.

[168]

The Applicant at hearing recognised that he could resettle in New Zealand if he had to but said that his main concern was his children. The Applicant said that he accepts, as submitted by the Respondent, that this consideration should only be afforded minor weight.
The Respondent's written submissions included reference to the Applicant having some extended family who continue to reside in New Zealand and noting that although the Applicant has not lived in New Zealand since about two years of age, there are no apparent language or cultural barriers with his movement records suggesting that the Applicant has returned to New Zealand on a number of occasions up until 2015. It was submitted that if returned to New Zealand, the Applicant could maintain basic living standards having access to broadly comparable social security and healthcare to that available in Australia with the Applicant still being quite young, having no health conditions and being able to seek support from extended family in New Zealand. It was conceded that some weight should be attributed to this consideration in favour of the Applicant but that it only be minor weight. Oral submissions on behalf of the Respondent were consistent with these written submissions, including that it was recognised that there was some impediment to the Applicant maintaining basic living standards in New Zealand in the context of the time that passed since he last lived there and his support there.
I am satisfied that there would be some impediment for the Applicant if removed from Australia to New Zealand in that he would have to establish himself there in circumstances where he has not lived there since the age of two and his only ties are extended family. However, given the Applicant's relatively young age, his good health, the lack of substantial language or cultural barriers, a comparable social security and healthcare system in New Zealand, the presence of some of the Applicant's family, albeit extended, in New Zealand and the Applicant's recognition that he could resettle in New Zealand if he had to, I conclude that Other consideration 2 is only of minor weight in favour of revoking the original decision to cancel the Applicant's visa.

[178]

There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding the current Direction).[37] Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. While the Court was considering Direction No. 90, its observations would apply to the Direction (Direction No. 110). The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No. 110) against each other and undertake an evaluation of whether there was 'another reason' why the cancellation should be revoked.[38]
Written submissions on behalf of the Respondent, at paragraph 76 of its SFIC, were that the Tribunal should find that the protection of the Australian community, family violence and the expectations of the Australian community outweigh the considerations in favour of revoking the cancellation decision. Given the Respondent's position in oral submissions that Primary consideration 2 is actually of neutral weight, I took the Respondent's final submissions to be that it is the protection of the Australian community and the expectations of the Australian community which outweigh considerations in favour of revoking the cancellation decision such that there is not 'another reason' why the mandatory visa cancellation decision should be revoked.
As already canvassed the Applicant's oral submissions in relation to Primary consideration 1 included that he acknowledges the seriousness of his crimes and the damage caused to the Australian community and understands why this consideration weighs significantly against him. However, the Applicant stated that he has lived in Australia since he was two years of age and has done all of his schooling in Australia, all of his immediate family including his two sons live in Australia and his whole life has been in Australia except for some short holidays to New Zealand several years ago. The Applicant submitted that more than moderate consideration contended by the Respondent should be given to Primary considerations 3 and 4 and the highest possible weight should be given to his ties to Australia and his minor children in Australia. The Applicant said that he is not sure how weighing the considerations works but that his whole life is on the line and if his visa cancellation is not revoked, it will affect their family unit forever and in particular his children.
I have had regard to the eight principles set out in paragraph 5.2 of the Direction and note that the safety of the Australian Community is the highest priority of the Australian Government. The higher tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community (paragraph 5.2(6) of the Direction) applies to the Applicant given that he has lived in the Australian community for most of his life, that is from two years of age. I have had regard to clause 7 of the Direction and have taken into account that Primary consideration 1 (protection of the Australian community) is generally to be given more weight than other primary considerations and that, otherwise, primary considerations should generally be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations. I note that the process of assigning greater weight to Primary consideration 1 over the other Primary considerations does not require me to automatically assign greater weight to Primary consideration 1 and that the other Primary considerations can in fact be given greater weight than Primary consideration 1. I also note that the weight to be attributed to considerations is a matter for the decision-maker and requires that the individual facts and circumstances of the case be taken into account.
I have weighed and balanced the various Primary and Other relevant considerations outlined in the Direction against each other. In doing so, I have a lingering concern in relation to the identified inconsistencies between the information provided by the Applicant to the Magistrates Court and to the Tribunal as regards the details of his relationships with Ms Nadin and Ms Znebeanek but ultimately accept the evidence as given to the Tribunal.
I find that the Primary considerations of the Applicant's ties to Australia, the best interests of the minor children and the extent of impediments if the Applicant is removed to New Zealand (and particularly the first two of those considerations) combine to outweigh the protection of the Australian community and the expectations of the Australian community.
It follows that I am satisfied that there is another reason why the original decision should be revoked such that subparagraph 501CA(4)(b)(ii) is met. I have previously found earlier in these Reasons that subparagraph 501CA(4)(a) is met. It follows that subsection 501CA(4) is met overall and the original decision not to revoke the mandatory cancellation of the Applicant's visa is revoked pursuant to subsection 501CA(4).

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs

At a glance

Court

Decision date

Source

Judgment (188 paragraphs)

Parties

Cases Cited (8)

Hall and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 591 (20 May 2025)