MIGRATION - mandatory cancellation of visa - Philippine citizen - fraud - failure to pass character test - serious offending - whether another reason mandatory cancellation should be revoked - Ministerial Direction No. 110 applied - decision set aside

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138

FYBR v Minister for Home Affairs [2019] FCAFC 185

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

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

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

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

1. Ms Navarro seeks review of a decision made on 8 April 2025, refusing to revoke the cancellation of her five year resident return (Class BB) (Subclass 155) visa under subsection 501CA(4) of the Migration Act 1958 (Cth).
2. Ms Navarro is 33 years and is a citizen of the Philippines. She arrived in Australia on 29 March 2015. She was 23 years at the time and has resided in Australia permanently since arriving. Ms Navarro obtained a bachelor's degree in management accounting in 2012. Following her graduation, she was employed by a Brisbane based accounting firm (from the Philippines). She subsequently took up employment in the United Arab Emirates and then moved to Australia in 2015 and sought employment in another workplace.
3. Ms Navarro's visa was cancelled because she had been convicted of fraud for dishonestly gaining a benefit as an employee for an amount over $100,000. She was sentenced by the District Court of Queensland to a term of imprisonment of four years and six months.
4. Ms Navarro was initially notified that her visa was cancelled on 7 August 2024. On 29 August 2024, Ms Navarro requested revocation of the cancellation of her visa. On 8 April 2025, a delegate of the Minister decided not to revoke the visa cancellation decision. Ms Navarro subsequently made this application on 10 April 2025 seeking review of the decision not to revoke the cancellation.
5. Section 13 of the Administrative Review Tribunal Act 2024 provides that an application may be made to the Tribunal for review of a decision. Section 500(1)(ba) of the Migration Act allows for an application to be made to the Tribunal for review of a decision of a delegate of the Minister not to revoke a decision to cancel a visa. The Tribunal has jurisdiction to review a decision to refuse to grant a visa under s 501(1) of the Migration Act, where the application for review is lodged within nine days after the decision is notified: s 500(6B). In her application, Ms Navarro states she was notified of the decision on 9 April 2025 and the application for review was lodged on 10 April 2025, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the review application.
6. The review application was heard over two days on 18 and 19 June 2025. The parties appeared by audio visual link from the Brisbane Registry. Both parties were represented at the hearing.
7. Ms Navarro gave oral evidence and was cross examined at the hearing. The following witnesses for the applicant also appeared and gave evidence at the hearing:

(i) Mr Paladan, the applicant's husband; > > (ii) Ms Piat, a psychologist and expert witness for the applicant; > > (iii) Ms Manalac; > > (iv) Ms Howells; > > (v) Ms King.

8. The parties also provided a joint bundle of evidence which was marked 'exhibit 1'.
9. In deciding the outcome of the application, I have considered the evidence of the witnesses at the hearing and the material contained in exhibit 1.

1. Section 501 of the Migration Act is relevant to decisions to refuse or cancel a visa on character grounds. The Minister may refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test (s 501(1)). A person does not pass the character test if the person has a substantial criminal record (s 501(6)(a)). Relevantly, for the purposes of the character test, a substantial criminal record applies if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
2. It is not in dispute between the parties that Ms Navarro does not meet the character test. On 21 June 2024, Ms Navarro was convicted of one count of fraud - dishonestly gain benefit/advantage by employee value of at least $100,000 in the District Court of Queensland. Ms Navarro was sentenced to a term of imprisonment of four years and six months.[1] On that basis, Ms. Navarro does not pass the character test.
3. Pursuant to section 501CA(4) of the Migration Act, the decision to cancel the visa may be revoked if the applicant made representations seeking revocation of the mandatory visa cancellation decision and the Tribunal is satisfied that:

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

4. Representatives for Ms Navarro made representations seeking revocation of the mandatory visa cancellation decision as is required by paragraph 501(CA)(4)(a).[2]

IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? SUBPARAGRAPH 501CA(4)(B)(II)

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

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

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

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

1. When considering the protection of the Australian community, the Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Entering or remaining in Australia is a privilege and there is an expectation that non-citizens are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[3]
2. The Tribunal has also considered:

(a) the nature and seriousness of the Ms Navarro's conduct to date; and > > (b) the risk to the Australian community, should Mr Navarro commit further offences or engage in other serious conduct.[4]

Nature and seriousness of the applicant's conduct - 8.1.1

1. The schedule of facts produced from the District Court of Queensland records that at the time of offending Ms Navarro was employed accountant by Muro Accountants.[5] In March 2022, Ms Navarro was appointed to do accounting work for a client, Accurate Building and Construction. Over an almost four-month period, between 15 August 2022 and 8 December 2022, Ms Navarro made 24 transfers to various accounts in her name. The amounts ranged between $1,983 to $23,557 and totalled $204,388.16. The schedule of facts provides that on each occasion the Accurate Building and Construction files were altered. Ms Navarro made the alterations of the bank details after hours. The schedule of facts records that Ms Navarro used the funds for everyday living expenses and sent funds overseas. On occasion, upon receipt of the transfer of funds from Accurate Building and Construction, she would make payments to customers on the outstanding invoices in smaller amounts. An example is provided in the schedule of facts:

a. For example, on 16 August 2022, the defendant diverted funds that were meant to be paid Denari Earth Builders, to her Commonwealth Bank Account ending in 59{)9, in the amount of $4,026.00. On 18 August 2022 at 5:16pm, the defendant then reversed the payment of$4,026.00 on Xero. She then entered that $2,046.00 had been paid to the customer and transferred the amount.

2. The amounts that were paid back totalled $93,667.64, which meant Ms Navarro retained a total of $110,711.52.
3. At the hearing, Ms Navarro explained that the amounts transferred back were to balance the books and to avoid detection. She also stated that she did not intend to transfer the amounts after hours to avoid detection, but rather she would be busy during the day and would only have time to arrange the transfer after hours.
4. On 13 December 2022, Awesome Flooring, a customer of Accurate Building and Construction contacted the company requesting payment for an overdue invoice for $6,908. The company reviewed its records and noted the bank account number for the customer had been changed to an unknown account, not related to the customer or the company. Further investigation uncovered multiple transfers to unknown accounts to the company. The matter was subsequently referred to police.
5. The schedule of facts records the Ms Navarro was arrested at Muro Accountants on 9 June 2023. She was subsequently taken to a police station and exercised her right to silence and was charged and released on bail.
6. On 21 June 2024, in the District Court of Queensland, the applicant was convicted of one count of:

fraud - dishonestly gain benefit/advantage by employee value of at least $100,000

1. Ms Navarro then was sentenced to a term of imprisonment of four years and six months with the term of imprisonment to be suspended after serving a period of 16 months imprisonment.[6]
2. Subclause 8.1.1(1)(a) of Direction 110 specifies that the following types of crimes as viewed very seriously by the Australian Government and Australia Community.

(i) violent and/or sexual crimes;

(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

1. The Tribunal accepts that Ms Navarro's offending does not fall within any of those specified categories.
2. Subclause 8.1.1(1)(b) specifies that the following types of crimes as viewed seriously by the Australian Government and Australia Community:

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

(iv) iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention

1. The Tribunal also accepts that Ms Navarro's offending does not fall within any of those specified categories.
2. However, subclauses 8.1.1(1)(a) and (b) do not limit the range of offences that may be considered as serious/very serious.
3. Subclause 8.1.1 also requires the Tribunal to have regard to the following:

(i) the sentence imposed by the courts for a crime or crimes. > > (ii) the impact of the offending on any victims of the offending or other conduct and their family, where information in this regard is available. > > (iii) the frequency of the offending and/or whether there is any trend of increasing seriousness. > > (iv) the cumulative effect of repeated offending. > > (v) whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. > > (vi) whether the applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the applicant's migration status (noting that the absence of a warning should not be considered to be in the applicant's favour). > > (vii) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

4. The maximum sentence for the offence was 20 years.[7] Ms Navarra submits that the prosecution sought a sentence of six years with a parole eligibility date of "one-third of that head sentence" and Counsel for Ms Navarra submitted a head sentence of four to five years.[8] Ms Navarro was sentenced to imprisonment for a period of 4 years and 6 months, with an order that the term of imprisonment be suspended after serving a period of 16 months imprisonment and that Ms Navarro must not commit another offence punishable by imprisonment within a period of 4 years and 6 months to avoid being dealt with for the suspended term of imprisonment.
5. The Tribunal accepts that there would have been some impact of the offending on both the applicant's previous employer, Munro Accountants, the client Accurate Building and Construction and any suppliers whose invoice payments were delayed such as Awesome flowing. The sentencing Judge noted '[t]he victim has suffered loss and harm and has been adversely affected as a result of your offending'.[9] In her statement dated 16 May 2025, Ms Navarro states that she believes that the client eventually made an insurance claim as she couldn't pay back the sum earlier.[10] While there is no direct evidence from the victims, it can be presumed that there would have been some impact on them.
6. Ms Navarro's offending occurred over almost a 4-month period and in that period the offending was frequent. There were 24 transfers over that period.
7. The Tribunal notes that there is no other criminal history for Ms Navarro, and that she only has one traffic offence for failure to stop at red light on 30 November 2022.[11] There is no evidence before the Tribunal that she has provided misleading information to the Department, she has reoffended again, or that has she committed an offence in another country.
8. The offence was dishonest in nature, and it deprived a business of funds it lawfully owned and resulted in financial harm to Ms Navarro's employer and had the for potential for loss of reputation.[12] Ms Navarro was in a position of trust and breached her professional obligations as an accountant. She offended over a period and took steps to conceal her offending. She only came forward to her employer in relation to the offences once the client began raising concerns regarding payment of an invoice. The applicant made submissions that the sentencing Judge erred on the lower side of sentencing and far below the maximum sentence under Queensland law for the type of offence. However, the sentencing Judge also referred to the offending as 'very serious'. The Tribunal finds that the sentence imposed was significant even if it was less that the maximum. Having considered the evidence and submissions the Tribunal finds that the nature and seriousness of Ms Navarro's offending was serious.

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

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

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

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

ii. evidence of rehabilitation achieved by the time of the decision,

giving weight to time spent in the community since their most recent

offence (noting that decisions should not be delayed in order for

rehabilitative courses to be undertaken).

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

1. Ms Navarra was in the community for two years prior to her sentencing in 2024. She submits that during that time she worked in positions of responsibility where she did not offend. This included a period where her employer kept her on in the original position and assisted her after they were aware of the offence. In that regard she has provided a pay slip from the company a pay slip from Muscillo Romano on behalf of Muro accountants which showed she had been paid for the period up to 8 June 2023,[13] and a series of sms messages indicating that she was referred to a lawyer by her employer. Ms Navarro reported to her psychologist, Ms Piat that she had maintained employment in the correctional centre kitchen while incarcerated.[14] Ms Navarro also reported that continuing to work in accounting may not be feasible given her conviction.
2. Ms Navarra remains in jail until October 2025, when she is due for release.
3. Ms Navarra submits that she does not have a history of criminal offending. She submits that she will be living with her husband and has friends and community support. Ms Navarro stated at the hearing that she did not intend to return to working in accounting, but rather would study. She indicated she may study psychology, however confirmed that she may be limited in her ability to practice. She also indicated she may undertake studies around cooking which she enjoys.
4. In her written statement,[15] Ms Navarro states:

My offending was led by the stress and pressures of sustaining the high care needs of my late grandmother, who was in the Philippines, suffering terminal stage kidney failure at that time. I was supporting her through her hospitalisations, medications, daily living, and substance for her & her carer (my uncle).

1. She provided a psychologist report completed by Mr Stoker dated 25 May 2024.[16] Mr Stoker did not appear at hearing and was not cross examined. Mr Stoker conducted psychological testing. He notes that in his opinion Ms Navarra was suffering a major depressive Disorder at the time of offending and provided a provisional opinion that she has underlying autism spectrum disorder, namely Aspergers Syndrome and that she should see a specialist to confirm.

1. Ms Navarro has also provided a psychologist report completed Marissa Piat dated 9 April 2025.[17] Ms Piat attended the hearing and was cross examined. She states in the report that the report been prepared for the purpose of addressing
   • whether the Australian community can have confidence that there is little to no risk of Ms Navarro reoffending in respect of fraud,
   • there is real risk to the Australian Public and individual safety if the applicant is released; and
   • what detriment Ms Navarro would face if she was removed from Australia.
2. Ms Piat has set out her qualifications, she is a registered psychologist. She has also attached her curriculum vitae to the report. She confirmed at hearing that she is familiar with the guidelines on persons giving expert and opinion evidence in the Tribunal. Ms Piat conducted two interviews with Ms Navarro. At the hearing she confirmed that the first interview was at the correction centre in person for about 2 hours and the second interview was by video link for about 45 minutes.
3. By way of background to the report, Ms Piat sets out the remarks of the sentencing judge. In relation to Ms Navarro's family, Ms Piat notes that Ms Navarro is the eldest of 3 sisters and that Ms Navarro's parents and sisters remain living in the Philippines. Ms Navarro is also an aunt to two nephews and a niece, and she remains in contact with her family in the Philippines. Ms Navarro described her upbringing as positive and comfortable. Her family placed a high value on education, and she had completed her education to a tertiary level. Ms Piat records that Ms Navarro was raised with strong Roman Catholic values. She has continued her involvement in the Church and up until her incarceration was a member of the Church choir. Ms Navarro stated to the psychologist that she has strong values regarding the importance of family and supporting her family financially.
4. Ms Navarro did not describe any substance abuse history. Ms Piat notes that Ms Navarro had reported experiencing depressive symptoms. She had not engaged in treatment in relation to her mental health and reported that she had developed insight and understanding regarding her need in mental health. Ms Piat refers to Mr Stoker's earlier report which notes a provisional diagnosis with regards to autism spectrum disorder. Ms Piat notes that Ms Navarro was insightful about her rigidity of thinking and how it contributed to self-expectations regarding providing support to her family. She notes that Ms Navarro has engaged in activities to support her mental health and wellbeing while in custody. Including a resilience program, engagement with a clinical practitioner and yoga. Ms Piat also noted that Ms Navarro's depressive and anxiety related symptoms appear to be situational rather than chronic or sustained.
5. Ms Piat notes that Ms Navarro was transferred from a high security prison to a low security prison about a month after going to jail because she was identified as low institutional risk. She notes Ms Navarro was insightful regarding the impact and consequence of her offending and she expressed remorse. She was insightful regarding how her significant financial support to her family was a dysfunctional manifestation of her values regarding support of her family.
6. In relation to risk assessment, Ms Piat noted that there is no validated risk assessment tool which can be utilised to predict risk of recidivism in fraud related offending. Rather Ms Piat used a more generalised risk profile assessment. Ms Piat noted that the offending occurred in the context of Ms Navarra's long standing familial expectations and acute stress associated with her health difficulties. She engaged in the offending because of her rigid cognition regarding supporting her family members and a sense of self-sacrifice to achieve improve health outcomes for her family. Ms Piat concluded that Ms Navarro presented a negligible risk of future recidivism and was not considered to present a risk to the community. She notes that Ms Navarro has a number of protective factors, including a limited criminal history and no criminogenic factors requiring treatment.

Information Notice Security Classification of Queensland Corrective Services

1. Ms Navarro also provided an Information Notice Security Classification of Queensland Corrective Services, dated 23 July 2024.[18] The report is a security classification report. The delegate notes that the offence for which Ms Navarro is currently imprisoned is serious. The delegate also notes that Ms Navarro demonstrated remorse while she was being interviewed. She was assessed as falling into the category of prisoners who pose a low risk of further general offending. Her behaviour in jail was reported to be of an acceptable standard and she has remained breach and incident free.

Conclusion on protection of the Australian Community

1. If Ms Navarra was to reoffend in the same way again, it would affect an employer and client financially it would harm to those involved and affect the trust of the broader Australian community. Fraudulent offending has the potential to cause substantial financial loss to individuals and businesses, and financial, reputational, and operational challenges to an employer.
2. Ms Navarro's offending was premeditated and continued for a period of almost four months. It remains the case that there are some psychosocial stressors identified by Mr Stoker and the financial pressures that are still present in Ms Navarro's life. Ms Navarro has spent very little time in the community since her offence.
3. However, I accept from the reports of Mr Stoker and Ms Piat that Ms Navarra has indicated remorse about her actions. I accept that Ms Navarra now has insight and understanding regarding her needs in relation to mental health. I note that there is limited supporting evidence of treatment or counselling, but Ms Navarro has provided certificates for wellbeing courses she has completed while in jail.[19] In her written statement Ms Navarro states that the programs have allowed her to gain self-awareness and insight.[20] Ms Navarro has not had any adverse incident's while in jail.
4. While I note that that there is no specific risk assessment tool for reoffending in the context of fraudulent behaviour, I accept that it was suitable for Ms Piat to otherwise concluded from general testing that Ms Navarro is a low risk of reoffending using a generalised diagnostic method.
5. In relation to the risk of Ms Navarro reoffending, the Tribunal accepts that the Ms Navarro has demonstrated remorse and insight into the reason for her offending. She is aware that her rigidity of thinking combined with the pressure of supporting her family in the Philippines has led to her offending. I accept she is intent on not reoffending. Ms Navarro has support from her husband, friends and church community in Australia. Ms Navarro has not committed any other offences, and she recognises that the offence was committed at an isolated time when she was under great pressure while her grandmother needed treatment.
6. While there were multiple transactions, they were committed over less than a 4-month period. Ms Navarro has been working in finance and in Australia from about 10 years.
7. Ms Navarro has spent very little time in the community and has had little opportunity to demonstrate how she acts in the community. However, the Tribunal accepts she is committed to retraining in a field outside accounting and beginning a family with her husband. The Tribunal accepts that the experience of jail has given Ms Navarro an opportunity to recognise the stressors that led to her offending and has had some rehabilitative effect on her.
8. The Tribunal accepts the opinion expressed by Ms Piat, that the risk of the Ms Navarro reoffending is low. The Tribunal finds that Ms Navarro represents a low risk, in the sense of likelihood, of reoffending. In those circumstances the Tribunal considers that the risk to the community overall is very substantially reduced despite her offending being serious.
9. Overall, the Tribunal finds that this primary consideration weighs only slightly against revocation of the cancellation of Ms Navarro's visa.

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

1. Direction 110 requires the Tribunal to consider whether Ms Navarro has been convicted of any offence or had charges proven that involve family violence. There is no evidence or material indicating Ms Navarro has committed a family violence offence and both parties agree that this primary consideration is not engaged. I have given it neutral weight.

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

1. In accordance with subclause 8.3(1), the Tribunal has considered the impact of the decision on the Ms Navarro'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. In her report Ms Piat recorded that Ms Navarro identified one significant relationship in her lifetime, being that with her current husband, Orville Paladan. Ms Navarro commenced a relationship with him in 2012 and they were married in 2019. Mr Paladan is also of Filipino origin and came to Australia and is an Australian citizen. Mr Paladan was not aware of Ms Navarro's offending at the time it occurred. However, he became aware shortly before her arrest and has provided continual support to her. Ms Navarro's imprisonment has had a significant impact on Mr Paladan, he calls her daily and visits her twice on each weekend.[21]
3. In relation to the implications of Ms Navarro's deportation, Ms Piat noted that Ms Navarro's marriage was of good standing. Mr Paladan is now an Australian citizen, and he gave evidence that if Ms Navarro were to return, he would seek to remain living in Australia so that he could financially support his son, wife and family in the Philippines. Ms Piat notes that if Ms Navarro was removed from Australia, it would create a substantial stress for both Mr Paladan and Ms Navarro.
4. An Australian citizen certificate for Mr Paladan has been provided to the Tribunal.[22]
5. Mr Paladan provided a written statement,[23] and appeared at the hearing. Mr Paladan is clearly supportive of his wife. He spoke warmly of his relationship with her and described the positive impact she has had on his life. He also confirmed that if Ms Navarra was forced to return to the Philippines, he would need remain in Australia to support his son in the Philippines. I accept that Mr Paladan and Ms Navarra have a loving and supportive relationship. I also accept that if Ms Navarra were to return to the Philippines that Mr Paladan would choose to remain in Australia. If he did remain in Australia, that may have an impact on the couple's ability to start a family. If Ms Navarra was removed from Australia, it would also have a significant impact on Mr Paladan.
6. Subclause 8.3(2)(a)(i) of Direction 110 requires the Tribunal consider if the applicant arrived in Australia as a young child. Ms Navarro travelled to Australia to settle here permanently in 2013, at the age of 23 years old[24]. Ms Navarro therefore did not arrive here as a young child. Nor did Ms Navarro's offending not commence shortly after her arrival in Australia.
7. Subclause 8.3(2)(a)(ii) of Direction 110 states that 'more weight should be given to time the non-citizen has spent contributing positively to the Australian community.' In her written statement, [25] Ms Navarro states that she has contributed positively by way of being a skilled professional, volunteering as a business mentor for the businesses for the Queensland Government AND being a part of her Church choir. Ms Navarra also provided a statement from her parish priest outlining the contributions she makes to the church community including singing in the choir every first Sunday of the month with another family.[26]
8. In relation to the mentoring position, it is unclear if that will continue if a disclosure is required regarding her offences. I note that it was in her professional position that Ms Navarro committed the offending.
9. I accept Ms Navarro has been a part of her church community and choir, and that slight weight should be given to that as part of her contributions to the Australian community.
10. Subclause 8.3(2)(b) requires the Tribunal to have regard to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. Ms Navarra had initially identified in her personal circumstances form that she has 9 uncles and aunts, 2 nieces and nephews and 8 cousins who reside in Australia.[27] At the hearing she corrected the position to indicate that she had 4 uncles and aunts in Australia. However, she had very little contact with those relatives and the Tribunal gives no weight in that regard.
11. The applicant has provided numerous letters of support from family, social and community connections. Three of them attended and gave evidence at the hearing. Glorious Manalac, Leilani Howells and Mira King. They were all generally aware she was in jail for the offences committed. They all presented as being very supportive of Ms Navarra and spoke of her kindness and generosity.
12. I accept that if the decision is not revoked that it will have a significant impact on Mr Paladan and that weighs heavily in favour of revocation. I also accept that Ms Navarra does have some other ties to friends and her church in the community, however I find those ties weigh only slightly in favour of revocation.

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

1. Clause 8.4 requires the Tribunal to consider whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Both parties agree that this primary consideration is not relevant to this matter.
2. Ms Navarro does not have any minor children in Australia and this consideration is given neutral weight.

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

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

1. None of the kind of conduct referred to subclause 8.5(2) applies in the circumstances of this case.
2. In accordance with clause 8.5 (3) the expectations of the Australian community apply regardless of whether Ms Navarro poses a measurable risk of causing physical harm to the Australian community and in addition, in accordance with 8.5(4) of Direction 110, the Tribunal must consider the expectations of the Australian community as a whole and proceed on the basis of the Government's views expressed in Direction110, without independently assessing the community's expectations in the particular case.
3. Paragraph 8.5 of the Direction expresses a "deemed community expectation" that all persons who have committed serious criminal offences giving rise to character concerns should not be permitted to enter or remain in Australia: FYBR v Minister for Home Affairs,[28] at [75] per Charlesworth J.
4. It is not for the Tribunal to determine for itself what the community's expectations are in a particular case: Minister for Immigration, Citizenship and Multicultural Affairs v HSRN,[29] at [31]-[35] per Moshinsky, Stewart, and Jackman JJ.
5. In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,[30] Horan J stated at [56]:

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

1. Ms Navarro has failed to obey Australian laws and her conduct was serious. The Australian community would expect that she should not continue to hold a visa on account of her serious offending. This consideration weighs against revocation.

1. Subclause 9.1(1) of Direction 110 requires the Tribunal to "be mindful" that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention. There is no claim, and otherwise nothing on the material to suggest, that Australia's non-refoulement obligations are enlivened in respect of Ms Navarro.
2. The Tribunal accepts that the legal consequence of a visa cancellation decision is that Ms Navarro will be an unlawful non-citizen. Consistent with the principal contained in Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [35], by virtue of that status, she will be liable to be detained, removed from Australia, returned to her home country, prohibited from applying for another visa or subject to periods of exclusion and special return criteria: Act, ss 189, 196, 197C, 198, 501E, 501F. The Tribunal finds neutral weight should be given to this consideration.

1. Subclause 9.2 of Direction 110 requires consideration of the extent of any impediments that Ms Navarro may face if removed from Australia to her home country.
2. Ms Navarro reported concerns to Ms Piat relating to her fertility and had undergone in vitro fertilisation (IVF) which had to date not resulted in a full-term pregnancy. Ms Navarro continues to want to have children with her husband after she is released.
3. Ms Navarro had been diagnosed with thyroid cancer in December 2024. At the hearing she clarified that she had undergone surgery, but that she was continuing treatment because cancer cells had gotten into her lymph nodes and that she was taking medication to see how her body would react and what further steps may be required in the future, including perhaps further surgeries. She indicated that the cancer would never be eliminated. Ms Navarro submits that she will continue to need to undergo treatment for her cancer.
4. Ms Navarro also stated that will need to seek employment in a Manila, about two hours from where her parents are located as there are limited employment opportunities where they live. She also stated that access to medical care and IVF is much more expensive in the Philippines. A Department of Foreign Affairs and Trade report[31] indicates the Philippines is classified as a 'lower middle-income' country, and both mental healthcare and fertility treatments are available but limited. However, as a citizen of the Philippines, Ms Navarro will have the same access to social, medical, and economic support as other citizens including access to IVF.
5. Ms Navarro is 33 years and has family ties remaining in the Philippines, including her mother, father, two sisters, stepson, her in-laws and other related family members.[32] Ms Navarro has lived in the Philippines for much of her life and would not suffer language or cultural barriers. There is nothing to suggest that Ms Navarro would be unable to re-establish herself in the Philippines.
6. The extent of impediment's weigh only slightly in favour of revocation.

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

1. Mr Paladan has a 13-year-old biological son in the Philippines who is currently cared for by Mr Paladan's parents. Ms Navarro and Mr Paladan stated that they were trying to gain custody of his son, but that they had been unable to locate the biological mother at this stage. Ms Navarro states she has a very close relationship with her stepson and in that regard has provided a statement from him and various photos.[33] Ms Navarro stated that they have promised the child that they would bring him to Australia to live with them and she does not want to break that promise to him.
2. Mr Paladan indicated he had sought advice regarding custody.
3. Mr Paladan pays towards the child's tuition in the Philippines,[34] which he stated total an amount of about $1,000 a year. Ms Navarro submits that having to return to the Philippines will impact on the financial capacity of the couple overall and their ability to pay the child tuition.
4. I find that the impact on Ms Navarra's stepson weighs only slightly in favour of revocation. It is noted that Mr Paladan currently pays for his son's expenses while his wife is in jail. Further the inability of Mr Paladan's son to migrate to Australia if Ms Navarra returns to the Philippines whether and whether Mr Paladan and Ms Navarra will gain custody is only speculative.

1. Consistent with Direction 110, the Tribunal has given weight of various degrees to the primary and other considerations. Subclause 7(1) of Direction 110 states that appropriate weight is to be given to information and evidence from independent and authoritative sources. Subclause 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations. Subclause 7(3) of Direction 110 provides that one or more primary considerations may outweigh other primary considerations.
2. In the recent decision of the Full Court of the Federal Court concerning the operation of Direction No. 90 in CRNL v Minister for Immigration Citizenship and Multicultural Affairs at [35],[35] the Court found that the Tribunal must weigh and balance the various primary and other relevant considerations outlined in the Direction (in this case Direction 110) against each other but to treat Direction 110 as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
3. The Tribunal has found Ms Navarro does not pass the character test and has carefully considered all the evidence before it and weighed up the relevant considerations as guided by Direction 110 in considering whether there is another reason why the cancellation of her visa should be revoked.
4. In relation to the Primary Considerations the Tribunal found:
   1. The protection of the Australian community weighs only slightly against revocation of the cancellation of Ms Navarro's visa. The nature of Ms Navarro's offending should be considered as serious and should she reoffend, it would again cause harm. However, the Tribunal accepts that the risk Ms Navarro reoffending is low. In those circumstances the Tribunal considers that the risk to the community overall is very substantially reduced despite her offending being serious. The Tribunal has found Ms Navarro was remorseful for her actions, has gained insight into her offending, psychological stressors and had support from her husband, friends and community.
   2. The consideration concerning family violence weighs neutrally.

1. In relation to the strength, nature and duration of Ms Navarro's ties to the Australian community, I accept that if the decision is not revoked that it will have a significant impact on Mr Paladan and that weighs in favour of revocation. I also accept that Ms Navarra does have some other ties to friends and her church in the community, however I find those ties weigh only slightly in favour of revocation.
2. The consideration regarding the best interests of minor children weighs neutrally.
3. The Tribunal consideration regarding expectations of the Australian community weighs against revoking the cancellation of the visa.

1. Of the other considerations, the Tribunal has found that the legal consequences of the decision are neutral. In relation to the extent of impediments if Ms Navarro is removed to Australia they weigh slightly in favour of revocation. The consideration concerning business interests weighs neutrally. The impact on Ms Navarro's stepson also weighs slightly in favour of revocation.
2. Ms Navarro has breached the expectation that she be a law-abiding citizen who respects Australian institutions. She has used her professional position for her own advantage. As a general principle, Direction 110 establishes that on this basis Ms Navarro's visa should be cancelled. However, overall, while considering that the protection of the Australian Community is 'generally' to be given greater weight than other primary considerations, in this case, the other relevant primary consideration outweigh the protection and expectations of the Australian community. The Tribunal has found Ms Navarro has shown great remorse for her actions and has gained insight into the reasons for her offending. There is a low risk she will reoffend. She has strong ties to Australia because of her husband and her community. Further, the extent of the impediments if he is removed weigh slightly in favour of revocation of the cancellation of the visa.
3. Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of Ms Navarro's visa should be revoked.
4. For the reasons given above the Tribunal sets aside the decision of a delegate of the Minister dated 8 April 2025 not to revoke the mandatory cancellation of Ms Navarro's visa, and in substitution decides that the cancellation of Ms Navarro's visa is revoked.

[7] Queensland Criminal Code 1899 s408C (2A).

[19] Exhibit [1790] EngR 2431; 1 HB 465 - HB 468.

[20] Exhibit 1 HB 405.

[21] Exhibit 1 HB 419.

[23] Exhibit 1 HB 243 - HB 250.

[24] Exhibit [1789] EngR 2629; 1 HB 298.

[25] Exhibit 1 HB 414.

[27] Exhibit [1789] EngR 2442; 1 HB 84.

[28] [2019] FCAFC 185.

[29] [2023] FCAFC 68.

[30] [2024] FCA 876.

[31] Exhibit 1, HB 273.

[32] Exhibit 1, HB 79.

[33] Exhibit 1, HB 219 - HB 242.

[34] Exhibit [1790] EngR 2433; 1, HB 476 - HB 488.

[35] [2023] FCAFC 138.