Best interests of minor children in Australia

1. Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.
2. In this case, the applicant submitted that her children are minors who may be affected by a non-revocation decision.[77]
3. In the applicant's request for revocation of the cancelation of her visa made to the department the applicant also identified the grandchildren of Mr Cooper and her godchildren as minors who will be affected by a non-revocation decision.[78] Mr Cooper has three grandchildren. The applicant has two godchildren being the children of her friend, Ms Heath.
4. As to the applicant's children, on 27 April 2023, the applicant's parents (the children's grandparents) were granted interim parenting responsibility for the applicant's biological children by way of an order of the Family Court of Western Australia ('family court order').[79] As a result of the family court order the applicant's children currently reside with the applicant's parents in New Zealand. The Tribunal notes that as the applicant's children are not in Australia, their best interests do not fall for consideration under this primary consideration. However, it is open for the Tribunal to consider the best interest of the applicant's children as part of the 'Other considerations' under paragraph 9 of Direction 110.
5. As to Mr Cooper's grandchildren, the applicant's evidence was that her relationship with Mr Cooper was now 'fluid' in that they are no longer in an intimate relationship. Nevertheless, her evidence was that they remained friendly. Mr Cooper's daughter Kira Cooper provided a statement[80] to the Tribunal in support of the applicant claiming that she had known the applicant for three years during which she had become a big part of her family's life. The applicant's evidence was that she did see the grandchildren once per week,[81] but that has become less because of her changed relationship with Mr Cooper. While the Tribunal accepts that the applicant's relationship with Mr Cooper has changed as claimed, based on the applicant's evidence the Tribunal finds that her relationship with Mr Cooper as a friend will continue upon her release from prison and that she will continue to have contact with his grandchildren. Based on the applicant's own evidence the Tribunal finds that the applicant's relationship with Mr Cooper's grandchildren is non-parental and limited given the duration of their relationship. As such the Tribunal gives the applicant's relationship with Mr Cooper's grandchildren some weight in favour of revocation.
6. The applicant's evidence was that she continues to see her godchildren every week.[82] The applicant was previously employed as a disability carer for the mother of her godchildren. There was no evidence that the applicant had been their primary care giver, or that she would assume such responsibility upon being released into the community. As such the Tribunal gives the applicant's relationship with her godchildren some weight in favour of revocation.
7. As a result, the Tribunal places some weight on the best interests of the minor children in favour of revoking the delegate's cancellation decision.

1. Paragraph 8.5(1) of Direction 110 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, 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 enter or remain in Australia_._
2. Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.
3. Critically, paragraph 8.5(4) states:

This consideration is about the expectation of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

1. In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community is an 'expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter'.[83] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[84] In doing so the Tribunal is required to consider the specific circumstance of the Applicant's case.[85]
2. The respondent submits that the applicant's conduct is contrary to the expectations of the Australian community because the general expectation of the community is that it expects the Government will not allow non-citizens who have engaged in a serious breach of Australian laws to enter or remain in Australia.[86] The respondent submits that the community expectations apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.[87]
3. While the Tribunal accepts that the applicant has committed a serious offence, she has been assessed as having a low risk of reoffending if released into the community. The Tribunal has placed great weight on the applicant's background and the circumstances in which her index offending occurred. The Tribunal notes that the applicant's offending occurred over a relatively short period and in circumstances where she was subjected to family violence and under duress to repay her ex-husband's drug debts. The applicant has previously been a responsible member of the community having been employed as the state manager of a coffee distribution company and owning and operating a landscape gardening business and cleaning business. In addition, the applicant did not offend while on bail for an extended period[88] and was assessed as having a low risk of reoffending.[89] Further, in prison the applicant has genuinely engaged in rehabilitation programs, including the Cyrenian House - Wandoo Rehabilitation Prison Therapeutic Community Rehabilitation Program and the SMART Recovery Online Training. While it has been assessed that there is some risk the applicant will reoffend because of her not being able identify anti-social behaviours, she has been assessed as having made considerable gains in identifying the impact of her substance abuse, creating a prevention plan, addressing consequential deficit thinking and unhelpful thinking styles, demonstrating improved decision-making skills and engagement in prosocial leisure pursuits.
4. While the Tribunal has found that there is a low risk of the applicant reoffending upon her release to the Australia community, it considers that the applicant does not represent an unacceptable risk to the Australia community. As such, the Tribunal has given some weight to this consideration in favour of revoking the cancellation decision.

1. In deciding whether there is 'another reason' to revoke the cancellation of the Applicant's visa, the Tribunal must consider the 'Other considerations' listed in Direction 110. These considerations are not exhaustive.[90]

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

1. In her personal circumstances form, the applicant indicated that she had concerns for her safety if she was returned to New Zealand.[91] She identified these concerns as a fear of harm from her ex-husband, who was previously violent toward her, as well as general concerns about her children.[92] While the Tribunal makes no comment as to its outcome, it is open for the applicant to make an application for a protection visa, upon which any claim regarding Australia's non-refoulement obligations would be fully considered.[93] In the event she applied for a protection visa the applicant would not be liable for removal until the protection visa application is finally determined.[94] If a protection finding is made, the applicant would not be liable for removal unless one of the events in s 197C(3)(c) of the Act takes place. As such, it is for the applicant to make a protection visa application where any non-refoulement claims she wishes to make can be assessed and determined.
2. The applicant has not made any application for a protection visa. As such section s 197C(3) of the Act is not engaged, and the immediate legal effect of the Tribunal's decision to affirm the decision would be that she is liable for removal from Australia as soon as reasonably practicable.[95]
3. If the mandatory cancellation of the applicant's visa is not revoked, the applicant will be unable to satisfy the special return criteria in cl 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) and will accordingly be ineligible for most classes of visa that would enable her return to Australia.[96]
4. In circumstances where the applicant's removal and exclusion from Australia are intended purposes of the statutory scheme, and these purposes underlie the considerations in Direction 110, the Tribunal gives this consideration neutral weight.

1. Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the applicant may face if removed from Australia to New Zealand in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
2. The applicant is 40 years old with no declared health issues that may impede her resettlement in New Zealand.[97] The applicant submits that if she is returned to New Zealand she would experience difficulty finding employment and housing. In addition, she claims that she would struggle without her established support network.[98] The applicant further submits that she would be placed in an uncomfortable and difficult position in having to avoid negative family members (including her ex-partner) if removed to New Zealand.[99] The applicant's evidence was that she has no contact with her family including her siblings. Her evidence was that even though she is in regular contact with her children, she does not speak to or have any engagement with her parents in New Zealand.
3. The applicant conceded that she will not experience substantial language or cultural barriers in New Zealand. In addition, as a New Zealand citizen the applicant accepted that she would have the same official level of medical, social welfare and economic support as generally available to other citizens in New Zealand. Nevertheless, her evidence was that she did not have the same social network and support in New Zealand and would face difficulties in obtaining employment and establishing herself if she is returned to New Zealand. In this regard the Tribunal refers to VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649 at [428] in which Deputy President Sosso stated:

Australians and New Zealanders both speak the English language and are culturally almost indistinguishable. The legal and political structures of both societies are similar as are the medical and social welfare systems.

1. Nevertheless, the Tribunal accepts that the applicant will likely face some emotional and economic hardship re-establishing herself without her Australian support network. However, the applicant has skills and work experience that can be applied in New Zealand for the purpose of obtaining employment and a productive life in New Zealand.
2. The Tribunal gives this consideration some weight in favour of non-revocation of the cancellation decision.

Best interest of applicant's minor children in New Zealand

1. As referred to above the applicant has three minor children aged 16 years, 12 years and 9 years who will be affected by a non-revocation decision.[100]
2. The applicant's children now live in New Zealand with their grandparents because of the family court order made on 27 April 2023. The applicant's evidence was that as their parent, prior to her incarceration, she was responsible for the care of her children for their entire lives. Her evidence was that they spent the formative part of their lives in Australia[101] and as such have a well-developed social network in Australia.
3. The applicant's evidence was that the family court order was only granted as a result of her incarceration and that her biological children would otherwise continue to be in her custody.[102] The applicant's evidence was that she does not have a good relationship with her family in New Zealand and that she holds concerns that her children are being subjected to the same negative influences she experienced as a child growing up in New Zealand. The applicant believes that their interests are not being fostered by their grandparents and that there are fewer opportunities for them in New Zealand.[103]
4. By a statement dated 9 June 2025[104] the applicant's eldest daughter stated that she hated living in New Zealand with her grandparents. She described life with her grandparents as toxic and gave evidence to the effect that it has had a negative impact on her younger sister's mental health. As a result, she expressed a strong desire be reunited with her mother in Perth as soon as possible.
5. It was the applicant's evidence that her children are the focus in her life. It is her greatest concern that she has been incarnated during the most formative part of their lives. As a result, she makes every effort to keep in touch with them on a regular basis. The applicant currently has regular contact with all three of her daughters by two telephone calls a day with additional calls on the weekends. The applicant is also in contact with them two or three times a week via MS Teams video for approximately 30 minutes on each occasion. In addition, her daughters travel twice a year from New Zealand to Perth to visit the applicant in person for a full week at a time.
6. The applicant's evidence was that it is her intention to make an application to the Family Court to regain parental control upon her release from prison.[105] The Tribunal notes that the family court order was not made by consent. The applicant's mother made an application for the children to reside with her in New Zealand which was granted despite the applicant and Mr Cooper's invitation for alternative arrangements to be put in place.[106] It was not clear to the Tribunal if any application by the applicant to regain parental control would be opposed. In any event, the issue as to whether the applicant can regain parental control of her children will be a matter to be determined by the Family Court.
7. In any event the applicant's evidence was that her children are the focus of her life, and she will make application to the court upon her realise from prison. In such circumstances the Tribunal gives this consideration some weight in favour of revoking the cancelation decision.

1. Paragraph 9.3 of Direction 110 provides that a decision maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened, as the applicant has not been employed since before her prison term. This consideration is not enlivened and carries neutral weight.

1. The Tribunal has considered the specific circumstances in relation to the applicant. Given the applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
2. The primary consideration is the protection of the Australian community. While the applicant's offending was serious, for the reasons above the Tribunal has found that the applicant does not pose an unacceptable risk to the Australia community. Having considered the expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal has found that the applicant is an acceptable risk to the Australian community. As such, the Tribunal is satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.

1. The Tribunal revokes the decision under review.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.

..................[sgd]..............................

[4] Applicant's Statement of Facts, Issues and Contentions, [11].

[10] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J); [103] (O'Bryan J).

[11] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 ('Plaintiff M1/2021'), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

[12] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23].

[19] Migration Act 1958 (Cth) s 501(7).

[20] Applicant's Statement of Facts, Issues and Contentions, [11].

[26] MJNN and Minister for Home Affairs [2019] AATA 3205, [54]-[55] (Senior Member Evans).

[31] S1, 1.

[33] Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.

[34] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ('Guo'), [574]-[575]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].

[35] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

1. [39] Direction 110, paragraph 8.1.2(1).

1. [45] Mesarich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 430.

[48] S2, 68.

[52] S2, 69.

[55] G24, 152-155; HB, 312-313.

[58] Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446, [30].

[71] Direction 110, paragraphs 8.3(2)(a)(ii), 8.3(2)(b).

[83] FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 ('FYBR'), [66]-[67], [91], [101], [104].

[85] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [98]-[109] (Beach J).

[90] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409 [86].

[93] Direction 110, paragraph 9.1.2(2); Plaintiff M1/2021 (n 11), [30].

[94] Migration Act 1958 (Cth) s 198(5A).

[95] Ibid, s 198.

[96] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003, [12]-[14] (Feutrill J).

[105] Applicant's Statement of Facts, Issues and Contentions, [26].