Written reasons for this decision will be provided within a reasonable time hereof.

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MIGRATION - mandatory cancellation of a visa - section 501 of Migration Act - applicant a citizen of New Zealand - applicant does not pass character test - whether 'another reason' for cancellation decision to be revoked - applicant guilty of serious offence of drug trafficking - not a significant enterprise - committed family relationship - interests of partner - decision set aside and substituted

Migration Act, 1958 (Cth)

Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92

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

1. These are my written reasons for the decision I made and published on 2 July 2025.
2. This is an application by Mr Ken Faraimo Roy Jnr Salanoa seeking a review of the decision of the respondent's delegate dated 7 April 2025.[1] By this decision, the respondent's delegate declined to cancel the revocation of Mr Salanoa's visa.[2] The cancellation had taken place earlier, and mandatorily so, following Mr Salanoa's conviction of two counts involving the supply of illicit drugs. Mr Salanoa received two sentences for this offending, one of which was three years and two months and the other twelve months. Part of these sentences was required to be served on a full-time basis in jail. In this circumstance, the respondent was obliged to cancel Mr Salanoa's visa under s 501(3A) of the Migration Act, 1958 (Cth) ('the Act'). I shall describe the offending in more detail in due course.
3. Mr Salanoa made a timely application for an internal review. The internal-review delegate had two questions to consider under s 501CA(4)(b) of the Act. The first was whether Mr Salanoa passed the so-called 'character test' as elaborated under s 501(6) and (7) of the Act. Given the sentences to which I have already referred and the terms of s 501(6)(a) and 7(c), Mr Salanoa could not pass the test, and the delegate's conclusion in this regard was clearly correct. The second question, which arose if the answer to the first question was no, was whether there was 'another reason' - that is, a reason other than Mr Salanoa passing the character test - warranting the revocation of the cancellation decision. In addressing this second question, the delegate was required to apply any direction issued under s 499 of the Act. The delegate applied Direction no. 110 ('the Direction').[3] After weighing the various considerations required to be addressed under the Direction, the delegate concluded that, on balance, there was not another reason warranting the revocation of the cancellation decision. The delegate found that the threshold condition for exercising the power under s 501CA(4)(b)(ii) of the Act had not been met. The delegate decided, therefore, not to take action to revoke the visa cancellation.[4]

1. I must address the same two questions as the delegate. I have already indicated that the delegate decided the first question correctly. I make the following prefatory remarks[5] in respect of the second question. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate's decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[6] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate's reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate's reasoning if that is the correct or preferable decision on the evidence before it.
2. At the hearing before me, Ms Ranjith appeared for Mr Salanoa; Mr Plitsch, for the respondent. I am grateful to them both for their helpful submissions in what was undoubtedly a difficult case.

1. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Salanoa's visa be revoked. I set out below the background facts and then my reasons for this conclusion.

1. Mr Salanoa was born in September 1998. He is a citizen of New Zealand. He arrived in Australia with his family at the age of eight. He first lived in Brisbane and completed his primary and secondary schooling there. He met his future partner while at school, when he was just 16 years of age. She gave evidence on his behalf at the hearing. They moved to Darwin in due course to support her job opportunities. In his evidence to me, Mr Salanoa described his relationship with his partner as having had 'lots of ups and downs' but that overall it was a strong relationship. Despite an initial separation in 2023, the couple reconciled and they now have a child. The relationship has survived Mr Salanoa's jailing.
2. Mr Salanoa and his partner gave evidence that their relationship foundered in 2023 after he had an affair. He was required to leave her family home where they had been living as a couple. I accept his evidence that he was greatly upset and felt anxious after the separation. He had no fixed accommodation, and he said that he engaged in the offending behaviour 'for survival'. I do not accept, however, that his changed circumstances left him so poor or threatened that he had no choice but to engage in the criminal offending of which he was convicted. I do accept that Mr Salanoa began to associate and live with an undesirable group of people after his separation, and that they introduced him to the possibility of making money from drugs; but I do not accept, as an objective fact, that Mr Salanoa was overborne to a degree where he had lost control over his life choices.
3. I turn now to Mr Salanoa's criminal offending. There are two convictions only in his criminal history, which was before me in evidence.[7] I also had the sentencing remarks before me,[8] and I accept and rely upon them. The first conviction involved the supply of a commercial quantity of MDMA, and the second involved the supply of less than a commercial quantity of cannabis. The offending occurred sometime between 12 and 27 July 2023. It was engaged in for the purposes of financial gain. On 26 July 2023 police executed a search warrant at the premises where Mr Salanoa was living at the time. The sentencing remarks record exactly what was located on Mr Salanoa's person and in his bedroom.[9]
4. The sentencing remarks also record[10] that police seized in total police 126.46 g of MDMA and 220.84 g of cannabis. A commercial quantity of MDMA is prescribed to be 25 g, and so the amount seized was approximately five times this threshold amount. The quantity of cannabis seized was a little less than half the prescribed commercial quantity but more than the trafficable quantity of 50 grams. The sentencing remarks record that an analysis of Mr Salanoa's mobile phone revealed messages that evidenced a supply of dangerous drugs.[11]
5. There was some $6000 in cash located, which Mr Salanoa admitted was being used to fund the purchase of more drugs for on-supply.
6. The Court made the following observations. The supply of MDMA was assessed to be in the mid-range of offences of this type. Mr Salanoa was found to have been engaged in a 'low- level drug-supply enterprise' for commercial gain.[12] He was described as the principal of the enterprise, which I accept. The commercial gain which Mr Salanoa had made and which he had anticipated making in the future was not particularly high but it was also not insignificant, according to the Court.[13]
7. So far as the second count is concerned (that involving the supply of cannabis), this was found to be on the border of the low and mid-ranges for such offences. Otherwise, the same findings in respect of the nature of the enterprise were made as were made in relation to the first count.[14]
8. The Court rejected Mr Salanoa's submission that he engaged in the criminal activity for survival. The Court also rejected the suggestion that the amount of the commercial from the enterprise was no more than sufficient to enable Mr Salanoa to survive. As the Court found, this was 'not a sophisticated or large enterprise', but it was more than 'casual dealing'. I accept these findings.[15]
9. The Court found that Mr Salanoa's prospects of rehabilitation were good.[16] The Court found he had a relatively good work history and was capable of undertaking employment. He had also complied with reasonably onerous bail conditions whilst awaiting sentence. Early guilty pleas were entered which were evidence of a degree of remorse. A discount of 20 per cent was given in these circumstances.
10. The Court referred to the particularly serious nature of the offending.[17] Personal deterrence was found not to have a significant role to play, however, given Mr Salanoa's lack of a prior criminal history.[18]
11. The Court imposed the following sentences: in respect of the first count, a term of imprisonment of three years and two months was imposed commencing on 9 June 2024 and expiring on 8 August 2027; and in respect of the second count, a term of imprisonment of twelve months was imposed commencing on 9 October 2026 and expiring on 8 October 2027.
12. The total sentence of imprisonment that was imposed amounted therefore, to 3 years and 4 months commencing on 9 June 2024 and expiring on 8 October 2027. One year of the sentence was to be served full-time in jail with the balance of the sentence being suspended. This suspended sentence is still in force, and it will remain in force until 8 October 2027. The Court pointed out to Mr Salanoa that he must not commit another offence punishable by imprisonment to avoid having to serve the suspended part of the sentence in jail.[19]
13. Mr Salanoa was released from jail as directed by the Court, but was then transferred to immigration detention.
14. The remaining matter of fact to which I wish to refer in brief is the birth of a child to Mr Salanoa and his partner,[20] who reconciled prior to his imprisonment. The child is now some six or seven months old.

1. With this summary of the facts in mind, I come to the Direction. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [22] - [25] below.
2. The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
3. Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
4. First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen's conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
5. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight 'generally' to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should 'generally' be given greater weight over other considerations.

1. I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. This is a particularly important principle to bear in mind in this case. I proceed on the basis implicitly accepted in the sentencing remarks; namely, that illicit drugs do pose a very serious threat to the community, and that trafficking for commercial gain is a seriously antisocial activity.
3. Paragraph 8.1(2) of the Direction requires decision-makers to give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
4. I turn now to consider these matters. Paragraph 8.1.1(1) in subparagraphs (a) to (i) specifies a number of matters to which I must have regard. I regard the trafficking in this case as very serious. I note that subparagraph (a) does not limit the range of conduct that may be regarded as very serious. It does not matter, therefore, that drug trafficking is not mentioned specifically. A well-ordered society like Australia's is directly affronted and threatened by the spread of illicit drugs among community members. Illicit drugs have a seriously damaging effect upon the health and well-being of community members. Those who consume drugs are often, or subsequently become, vulnerable, and are frequently drawn into criminal activity to support their illicit habit. Increasing dependence on a drug frequently leads to a disproportionate reliance by the addicted person upon the health system, which is in itself a serious matter. In addition, those addicted to drugs are frequently unable to maintain responsible work patterns, and end up dependent on social welfare payments. This too is a serious matter. From many angles, therefore, the trafficking of illicit drugs is a very serious matter.
5. I take into account the sentences imposed by the Court, as I am required to under subparagraph (c). The aggregate sentence was a long one especially given Mr Salanoa's relative youth and his lack of a criminal record. The sentence marked out, therefore, the seriousness of the offending in the Court's view.
6. The applicant was charged with two counts only of trafficking, and so there is no particular frequency of offending as such for me to consider arising from the charged conduct; but I do take into account the fact that the applicant was engaged in a trading operation and that he must, therefore, have entered other transactions. The Court recorded that the motivation for the offending was not 'survival' nor was the offending of a 'casual' nature only, and that his phone revealed a number of messages indicating trafficking. Those are important matters, and they bear on the cumulative effect of repeated offending to which I must have regard. I regard trafficking in drugs as a highly antisocial act which has wide repercussions for community members.
7. Paragraph 8.1.2 of the Direction concerns risk to the community. Subparagraph (1) provides that in considering the need to protect the community from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and associated harm so great that any risk of repetition may be unacceptable.
8. This principle is an important one to bear in mind in the context of drug trafficking. As I have earlier indicated, drug trafficking strikes directly at the wellbeing of community members and the stability of a well-ordered society. It is a very serious matter to traffic drugs.
9. Subparagraph (2) requires me to address the risk posed by a non-citizen to the Australian community. I am to consider two matters 'cumulatively'.[21] First I must consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. Secondly, I am to consider the likelihood of the noncitizen engaging in that further criminal or other serious conduct taking into account the matters that appear in a paragraphs (i) and (ii) of subparagraph (b) of paragraph 8.1.2(2).
10. Turning to the first of these matters, I accept that the potential harm to the community could be very serious indeed if there were a repetition of the offending that occurred in this case. A person who traffics drugs in the community has no idea of the particular susceptibility of the end-user. As the trade is not tailored to prevent harm but is, to the contrary, engaged in solely for profit-making purposes, the prospect of very serious harm to an end-user is a foreseeable consequence of a decision to traffic illicit drugs. That needs to be borne in mind steadily. I have already noted that drug-trafficking is a seriously anti-social act.
11. So far as the likelihood of Mr Salanoa re-engaging in this conduct is concerned, I have given this particular aspect of the review application serious consideration. I believe the risk is very low. Mr Salanoa entered jail as a relatively young adult. He did so for the first time. The experience of jail for a young adult is usually impressive. I bear in mind the sentencing Court's assessment that the need for personal deterrence in Mr Salanoa's case was not significant. Mr Salanoa has also experienced immigration detention as the immediate precursor to deportation. That too constitutes a chastening experience. He well understands ‒ because it has been a lived experience for him ‒ that further offending will only see a longer jail sentence and the almost certain prospect of his being deported. He could hardly believe realistically that, having been allowed to remain in Australia once, he would be afforded a further opportunity to do so should he reoffend. I am not satisfied on the evidence before me that Mr Salanoa has a serious dependence upon drugs which would entice him into a trafficking role to support his habit. He has very strong family support (in the form of a partner with whom he has reconciled) and the responsibility I genuinely believe he wishes to shoulder (in the form of care for an infant child). He does have a work history, and I believe he does, therefore, have prospects of obtaining paid work in Australia. The relationship with his partner is now a strong one despite the past difficulties. She is employed, and so the couple do not face a situation of both being unemployed. This is a case where I also believe the presence of a child will tend to solidify a (now) stable relationship rather than further undermine a deteriorating one. Finally, Mr Salanoa remains under a suspended sentence and will remain so until October 2027. That suspended sentence provides a serious deterrent.
12. In making my assessment, I have borne in mind that Mr Salanoa exaggerated the stresses under which he was labouring and the causes of his offending. The sentencing Court made it clear that the transactions in which Mr Salanoa was engaged were not for survival only. I do accept that the absence of a prosocial partner and of a stable home environment at the time of the offending were not helpful to Mr Salanoa; but nevertheless I bear in mind that the choices he made were his own.
13. I also note that I must assess this low risk 'cumulatively' with the seriousness of the harm that might ensue if the offending were repeated. I have assessed the potential harm as very serious. Accordingly, while the risk of reoffending is low, the seriousness of potential harm if the offending behaviour were to be repeated is high.
14. There is no family violence for me to consider: see paragraph 8.2 of the Direction.
15. So far as the strength, nature, and duration of Mr Salanoa's ties to Australia are concerned,[22] I accept that the impact upon Mr Salanoa's partner of his departure will be significant.[23] She indicated in her oral evidence that she would follow Mr Salanoa to New Zealand if he had to leave.[24] I proceed on the basis that this is the more likely consequence of any decision by me to affirm the decision under review because I do accept that the relationship is a genuine one and that Mr Salanoa's partner cares genuinely for him and for the future of their family as an integrated unit.[25] I accept that relocation to New Zealand would be a very large change for her; and that as the mother of a young child, she would value the stability she would more likely have from her settled environment here in Australia. I note that she has the option of returning to stable employment here. I do not say that she would be without all support in New Zealand, but I accept her evidence that her father, who relocated there, lives in rural New Zealand whereas she and her partner would prefer to live in an urban environment such as Wellington to ensure proper job opportunities for them both. Her ongoing welfare as a new mother is an important matter to consider.
16. I do not believe the best interests of minor children arises in this case since the child will join Mr Salanoa in New Zealand (together with Mr Salanoa's partner) if I affirm the decision under review.
17. I must have regard to the expectations of the Australian community. Paragraph 8.5(1) provides that 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, which is the case here, 'as a norm' - albeit not as an inflexible rule - the Australian community expects the Government not to allow the person to remain in Australia. That principle self-evidently has application in this case because drugs are such a serious issue. Indeed, trafficking does give rise to character concerns that must be weighed very seriously under paragraph 8.5(2). I accept the Respondent's submission that trafficking of drugs involves a crime committed against the vulnerable.[26]
18. The expectations outlined in paragraph 8.5 apply whether or not an applicant poses a measurable risk of causing physical harm to the community: see subparagraph (3). Moreover, I am not to assess the expectations in any individual case but proceed on the basis of the Government's views as outlined in the paragraph: see subparagraph (4).
19. So far as other considerations under section 9 are concerned, Mr Salanoa is a young adult and he would not face any particular difficulties relocating to New Zealand arising from a lack of familiarity with language or with its general customs. I proceed on the basis also that New Zealand has a broadly equivalent social welfare system. So, I do not believe there are any impediments of any substance for me to weigh in Mr Salanoa's favour, although there will be the initial difficulties arising from relocation.

1. I turn now to weigh the various considerations. This is not an easy task. I begin with the very strongly antisocial criminal behaviour in which Mr Salanoa engaged. This offending gives rise to very serious character concerns even though I am satisfied Mr Salanoa's risk of reoffending is very low. Moreover, the consequences for the community of recidivism are severe, and a low risk is not 'no risk'. As I have noted, the community-expectations consideration applies even where an applicant poses no risk to the community. There is no doubt in my mind that the Direction speaks very strongly against drug trafficking because of its potential for wide community harm. Strong efforts must be made to protect the community from illicit drugs, and the Direction is squarely based on a need to protect the community from harm. The safety of the community is the highest priority for the Australian Government[27], and it is 'generally' to be given more weight than other primary considerations.[28]
2. On the other hand, Mr Salanoa poses a very low risk of reoffending for the reasons that I have explained. He did not engage in his offending until he had left his long-term relationship (which is now repaired and reinstated). The Court found he had 'a relatively good work history'.[29] There is a stronger financial background for the family as his partner has work from which she has taken leave but to which she has a right of return. Mr Salanoa now has a child to look after. He will be aware that any criminal offending punishable by imprisonment will lead to his having to serve the balance of the suspended part of the sentence. As the date of my decision on 2 July 2025, the balance of the sentence was two years and three months approximately. That is a lengthy time. I accept what the respondent put to me concerning the absence of monitoring and reporting obligations; but the existence of an as yet unserved sentence operates in my view as a most serious deterrent for Mr Salanoa, as does the future prospect of deportation if he reoffends.
3. I have also weighed very carefully the interests of Mr Salanoa's partner, which are important and are a primary consideration. I believe that she would benefit substantially from his remaining in Australia. I believe she has better prospects in Australia than she would have in New Zealand. By 'better prospects', I mean the prospects of support for her are greater here than in New Zealand. She has a job here, and she has organised her life here. She is a young mother. Emigrating to New Zealand would be possible but not desirable for this young mother in the circumstances of her life. I accept her oral evidence that she would follow Mr Salanoa, and I find that this decision would be a reasonable one since she would be acting to preserve the family unit in the interests of her daughter. She would have Mr Salanoa's support in New Zealand, of course, and a connection with her own father, who has relocated there; but having heard her evidence, I believe it would be emotionally hard for her to re-establish herself within a new community. I cannot assume that she would necessarily find work easily. Mr Salanoa's prospects are reasonable here in Australia, and he has had work experience here, which augurs well, although those same skills are transferable to New Zealand, of course.
4. The very low risk of reoffending is an important factor in this case, although I do emphasise again how serious any drug trafficking is.
5. This has not been an easy case. I have decided that, on balance, the preferable decision on the evidence before me, after weighing all the considerations required to be addressed, favours revocation of the cancellation decision. This is very much a decision on balance.

1. Accordingly, I find that there is 'another reason' to revoke the cancellation decision under section 501CA(4)(b)(ii) of the Act. From this conclusion it follows that I should set aside the decision under review and substitute a decision that the cancellation of the applicant's visa

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

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[1] The delegate's decision and reasons were before me at Hearing Book ('HB'), 9ff.

[2] A Class TY Subclass 444 Special Category (Temporary) visa.

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

[5] What follows in the balance of this paragraph is a series of standard observations that I include in all my decisions in this area.

[6] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This case concerned the Administrative Review Tribunal's predecessor, the Administrative Appeals Tribunal, but the same principles apply.

[20] I shall not refer to either the partner or the child by name.

[21] That is, 'in conjunction with': see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.

[23] Cf Paragraph 8.3(1) of the Direction.

[24] This was admitted in cross-examination, although the admission is contrary to what is put by her in her statement at HB, 100 [21].

[25] I note that if I proceeded on the opposite hypothesis (viz, that Mr Salanoa's partner would stay behind in Australia with the baby if I affirmed the decision under review) my final conclusion in this matter to set aside the decision under review would have been a fortiori. That is, I believe I have proceeded on a view of the facts that is more favourable to the respondent in this regard.

[27] Paragraph 5.2(2) of the Direction.