The Applicant submitted that this primary consideration weighs against Mr Fotia, but not to any great extent as his conduct does not raise serious character concerns. There are also relatively extensive written submissions interpreting this consideration (ASFIC [109]-[123]). These acknowledge that the Direction presents a normative proposition, but note the Tribunal is to form a view as to weight.
It is contended in the Respondent's written submissions that this primary consideration weighs heavily against revocation (RSFIC [46]). The submissions rely upon the Respondent's position that Mr Fotia's has a history of serious repeat offending that engages this expectation.
The Direction indeed expresses explicitly in normative terms two linked expectations derived from the principles [8.5(1)]. Mr Fotia has clearly breached the expectation that he obey the law in Australia. I have also found above that his conduct can be considered serious, taken overall, and therefore the expectation that he not be allowed to remain in Australia is also engaged.
I also consider, based upon my earlier findings, that the Applicant's conduct does not rise to the level of serious character concerns as contemplated in the Direction [8.5(2)]. This is due to the overall age and profile of his offending history.
Accordingly, I find that this primary consideration weighs against revocation.
[2]
There is no evidence or submissions engaging the other consideration addressing impact on Australian business interests and accordingly this weighs neutrally.
[3]
This other consideration bears 'legal consequences' as a heading, but is primarily directed toward an appreciation of the management of unlawful non-citizens under the Act, including their detention, and whether their forcible return to a place may raise fears of harm (defined in terms of protection obligations) [9.1(1)-(2)].
The Applicant contends that the legal effect of non-revocation is to effectively bar Mr Fotia from further applications for an Australian visa due to the nature of regulations made under the Act. It is also contended that an assumed 'absorbed person visa' would also be cancelled (RSFIC [125]). The Respondent did not make written or oral submissions on this other consideration.
Protection obligations do not arise for consideration in this matter, and accordingly I take note of the fact that non-revocation would mean that Mr Fotia would remain in immigration detention until deported to Italy. I accept, however, that it may well ultimately be a legal consequence of such an outcome that he may face a substantial difficulty in any future visa application.
Overall, given the main focus of this primary consideration, I consider that it weighs neutrally.
[4]
I noted by way of background that Mr Fotia has only made one return trip to Italy. He stated in evidence that he does not believe that he has any extant family connections, nor any other social links to his country of nationality. Mr Fotia described his brief experience of Italy orally and in writing as - essentially - unwelcoming and he considers return to Italy to be a form of death sentence.
Mr Fotia gave evidence about his numerous medical conditions including diabetes, and high blood pressure and cholesterol. I note the medico-legal report from a consulting cardiologist, dated 31 October 2024 (G15), which outlines numerous further conditions but also expands upon the Applicant's own evidence about a heart condition. The report describes a 2024 procedure connected with Mr Fotia's atrial fibrillation, and various risks and support needs. Mr Fotia stated in evidence that he is on several medications for his conditions including for depression and anxiety.
Mr Fotia explained in evidence that he communicates with his father in a mix of Italian and English. He also stated that he understands none of his immediate family would move with him to Italy and may be unlikely to travel there. The Applicant also stated his understanding that, not having worked in Italy, he would not be entitled to a pension.
I note that in his report, Mr Ford expresses the view that deportation may have a detrimental effect upon the Applicant's mental health.
The Applicants submissions at the hearing stressed his lack of social, family and economic links in Italy and Mr Fotia's health conditions. Given these factors, his age, and the likely impact of removal upon his mental health, it was contended that this other consideration carries considerable weight in favour of revocation. The Respondent highlighted Mr Fotia's language ability and contended he would receive adequate health care in a country of the standing of Italy. It is contended this other consideration attracts only minimal weight in favour of revocation (RSFIC [49]).
The Direction establishes a modest threshold, in that impediments are assessed with respect to a person attaining a basic standard of living commensurate to that of a fellow national [9.2(1)]. In light of Mr Fotia's age and health, I consider deportation to Italy to carry some real, and potentially highly consequential, impediments. I consider health care most likely to be commensurate with Australia but there would be a difficult period of transition. Nonetheless, I consider the lack of family and social supports to be detrimental given Mr Fotia's deep roots in Australia and his ongoing mental health challenges. Publicly available information suggests that there may indeed be some pension benefits available.
Overall, I consider that this other consideration weighs heavily in favour of revocation.
[5]
Of the primary considerations, I have found that the protection of the Australian community and expectations of the Australian community weigh against revocation. I have also found that the strength, nature and duration of ties to the Australian community weigh heavily in favour of revocation, and the best interests of minor children also weighs in favour of revocation.
Of the other considerations, I have found that the extent of impediments if removed weighs heavily in favour of revocation and that legal consequences of the decision and impact on Australian business interests weigh neutrally.
The Direction provides (at [7]) that the first primary consideration is generally to be given greater wight than other primary considerations, and that primary considerations generally be given greater weight than other considerations. One or more primary considerations may outweigh others.
In this matter, while Mr Fotia has in the past clearly breached the expectation that he be law abiding, his conduct does not raise serious character concerns. Moreover, I consider that he is entitled to benefit from the relatively higher tolerance that may be afforded individuals who have otherwise contributed to Australia for a substantial period of time.
Accordingly, I find that there are countervailing considerations including his low risk of reoffending and his social connections which include carer responsibilities, that amount to another reason why the mandatory cancellation decision should be revoked.
[6]
For the reasons given above, the Tribunal sets aside the decision under review and substitutes it with the decision that there is another reason why the mandatory cancellation of the Applicant's Class BF Transitional (permanent) visa should be revoked.
Cases Cited (1)
Fotia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2026] ARTA 524 (5 February 2026)