3. In his evidence, the Applicant accepted responsibility for the index offending. He could not recall some specific details of the incident, which he said was because he was under the influence of multiple different illicit drugs at the time of the offence.

1. In July 2017, the Applicant was fined for failure to appear in accordance with undertaking and on 9 February 2024 he was convicted without punishment of breach bail condition.
2. On 5 November 2024, the Applicant reportedly struck another detainee in immigration detention. The details are recorded in a Behaviour Management Plan (BMP) prepared by Serco officers. It is recorded that the victim had spat on a photograph of the Applicant's children and the Applicant had expressed remorse for his actions. The BMP notes the behaviour was 'out of character' as the Applicant had 'not been the subject of any violent or anti-social incidents since [his] arrival' at the detention centre.[17] At the hearing, the Applicant acknowledged the incident and confirmed the account in the BMP was accurate.
3. The Applicant provided false information to the Government by failing to decare his previous criminal history on an incoming passenger card dated 4 September 2019 when he returned to Australia from New Zealand. At that time, he had recorded a conviction for failure to appear in accordance with undertaking in July 2017. At the hearing the Applicant explained that he did not deliberately provide false information and did not understand the difference between a conviction and an offence with no conviction recorded. I note that the NCHC confirms in 2017 the Applicant had charges related to drug possession which were not recorded as convictions. However, failure to appear, for which he was issued a $400 fine, was recorded as a conviction. In the circumstances, I accept he may have been unsure if he was required to declare the offending and afford his failure to do so limited weight.
4. In a written submission made on behalf of the Applicant, it is submitted that the index offences do not meet the criteria as very serious or serious given the 'aberrant nature' of the index offence. Having regard to the sentencing remarks, I am satisfied that the Applicant's index offending was a violent crime that is viewed very seriously by the Direction. I also take into consideration the Applicant's conduct in detention and that his offending history, while limited, demonstrates a trend of increasing seriousness.
5. Overall, the Applicant's conduct to date is considered very serious.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. Paragraph 8.1.2 of the Direction provides in part:[18]

In considering the need to protect the Australian community (including individuals, groups or institutions) 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 the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. > > In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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:

1. information and evidence on the risk of the non-citizen re­ offending; and
2. 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).

1. Further acts of armed robbery or drug related offending by the Applicant would have the potential to cause physical, psychological and financial harm to members of the Australian community and place a burden on the criminal justice system.
2. The Applicant submits that he is a low and not unacceptable risk to the Australian community.[19] He is ashamed and deeply sorry for the harm he has caused to the victims of his offending, and his conduct was contrary to his character, morals and values he was raised with. The Respondent contends that the Applicant's offending is so serious that any material risk of reoffending is unacceptable.
3. The Applicant's evidence is that when he committed the index offences, he was struggling with difficult personal circumstances including the effects of his escalating drug use, depression and anxiety. He was experiencing drug induced psychosis, had recently lost his job and was trying to help his heavily pregnant partner. Both his parents were facing health challenges, and as the eldest child he felt obliged to 'step up' and the overall circumstances severely impaired his judgement.
4. Regarding the 9 February 2024 conviction for breach of bail, the Applicant did not receive further punishment. By way of explanation, he said his partner does not drive so went to the shop to buy pain relief for their child. He does not dispute it was a poor decision.
5. Psychologist Dr Emily Kwok prepared a psychological report on the Applicant dated 25 February 2025. In preparing the report, Dr Kwok interviewed the Applicant in immigration detention and had him complete psychometric testing. Dr Kwok gave evidence at the hearing.[20]
6. Dr Kwok reports that the Applicant described frequently getting into trouble at school and being suspended. He said that he lost focus, was easily distracted and his grades were poor in all subjects except for sport and physical education. He was expelled from school at the start of year 11 when he was age 16.
7. The Applicant commenced paid employment after leaving school. He has been employed at various meat processing plants and as a barber. While he was on probation he was a truck driver until he injured his hand. In prison he worked as a welder.
8. In the evidence there are multiple references to the Applicant having depression, anxiety and ADHD and of having experienced drug induced psychosis. However, there is no medical evidence to support the Applicant having a mental health condition or disorder and I accept the Respondent's submission that the Applicant has not been formally diagnosed with a mental health disorder. Nonetheless, based on the evidence, I accept the Applicant's escalating use of illicit substances led him to experience psychological symptoms of depression and anxiety.
9. The Applicant reported that as his drug use increased in the period leading up to the robbery, he was constantly on edge and expecting the worst. He became isolated and when he socialised it was with criminal acquaintances. It was the Applicant's idea to rob the store, which he says was a spontaneous, rather than premeditated offence. He had used methamphetamine (ice) and GHB on the day of the offence, and he and his co-offender were severely under the influence of drugs during the robbery.
10. The Applicant's drug use commenced when he began using marijuana when he was 18 years old. At age 20 he was introduced to 'party drugs' including ecstasy and cocaine which he initially used recreationally. A few years later he began using ice, which he quickly became addicted to. His addiction worsened after he lost his job, and his use escalated during the pandemic.
11. Regarding his drug use, Dr Kwok reports the Applicant told her he stopped using ice after the armed robbery offence. He admitted to receiving Suboxone strips from other inmates when he first arrived in prison, but claims to have stopped using all types of drugs soon after. At the hearing, the Applicant confirmed his continued sobriety and acknowledged that his offending was strongly linked to his use of illicit drugs.
12. Dr Kwok reports the Applicant recognised the relationship between his drug use and criminal activity, as well as the negative impact of antisocial peers. He has also expressed remorse for his offending. She said that when he was asked why he believes he would not reoffend, the Applicant responded that he had reflected on his actions while in prison and detention, he is older and he no longer uses drugs. He cited the responsibility of having a young child to care for, no longer having contact with anti-social peers and connection to church as protective factors. He says is a lot happier now than when he went prison, and has become focused on his family. Dr Kwok is satisfied the Applicant is not currently using illicit drugs.
13. I accept that the Applicant displayed insight into the impact of his behaviours on the victims and taken responsibility for his violent behaviours. He has been enrolled in the OST program for almost a year and attended weekly individual drug and alcohol counselling and participating in SMART recovery in detention.
14. Regarding the risk of further offending, Dr Kwok notes that the Applicant's criminal offending occurred during the period drug abuse. He was heavily intoxicated when he committed the armed robbery. In addition to substance abuse, Dr Kwok identifies the Applicant's antisocial peers, lack of personal responsibility and consequential thinking, antisocial attitudes, and poor coping skills as contributing to his criminal behaviours.
15. Dr Kwok reports the psychometric testing found the Applicant is at 'a somewhat lower risk to engage in aggressive misconduct compared with most people in correctional settings and he is not in particular risk for general misconduct in the community'. She said that psychometric testing revealed the Applicant had endorsed more antisocial traits, behaviours, and attitudes than the general population, but his anger is within the typical range for community adults.
16. Dr Kwok recommends the Applicant continues to engage with a psychologist if he is permitted to return to the community. She recommends the Applicant build coping strategies to prevent him from relapsing into drug use when he is stressed, and work with a psychologist on interpersonal relationships including addressing any presence of dominance and control in his current relationship. She says any lingering antisocial beliefs and attitudes will also need to be modified.
17. The Applicant gave evidence that he has come to understand he did not process difficult emotions and has benefited from treatment and therapy. He appreciates that he still has considerable work to do. The Applicant says he proactively sought help having enrolled in programs and courses to address his mental health challenges and to improve his decision-making skills. He says is a changed person and committed to his rehabilitation. Dr Kwok acknowledges that imprisonment and detention provided the Applicant with opportunities to reflect on the consequences of his behaviours. She accepts his claim that should he be permitted to return to the community he is willing to change his lifestyle and focus on his family and parental responsibilities.
18. The Applicant has taken positive steps towards rehabilitation since being removed from the community. He has provided evidence of having been offered continued counselling by drug ARM and expressed a desire to continue to receive psychological support through Dr Kowk. He has completed rehabilitation courses including Introduction to Drug and Alcohol Awareness, the Breaking Habits Group, Anger Management Techniques, Understanding Drug and Alcohol Abuse, Depression Management, Anxiety Therapy 101, Anger Management and Conflict Resolution and Stress Management.
19. Dr Kwok identifies protective factors that will reduce the likelihood the Applicant will reoffend. These including the relationship he has with his fiancée, caring responsibilities for his son, and accommodation with her family. He is also willing to return to work and claims to have an offer of employment.
20. Dr Kwok's assessment that the Applicant is a low risk of reoffending provided he maintains treatment and significant lifestyle changes. The evidence supports the Applicant being committed to continuing appropriate treatment. While there are very positive indications, particularly in terms of his substance use and social influences, they are yet to be tested in the community.
21. In summary, I am of the view that the Applicant is a low risk of reoffending. I make this finding based on Dr Kwok's report, the Applicant's insight into the causes of his offending, and his considerable progress in addressing the factors that Dr Kwok has stated will ensure he remains at low risk of further offending. I am also mindful that this is the first time the Applicant has been imprisoned or faced the prospect of losing the privilege to reside in Australia, and it is apparent he has been chastened by the experience.

1. The Applicant's offending is very serious and weighs significantly against the revocation of the cancellation of his visa. The Applicant has identified protective factors which will mitigate the risk of reoffending, notably his close relationships in Australia and a family and social circle committed to ensuring he has the support he requires and facilitate his reintegration and ongoing rehabilitation.
2. I accept that the Applicant's remorse is genuine, as is his desire and intention to stay sober should he return to the community. Relative to his period of intense drug abuse, he has accrued a substantial period of sobriety. His offending, the experience of being imprisoned, having his visa cancelled and of being sober for an extended period has caused the Applicant to reflect on his conduct and what he needs to do to be a better person and not repeat his mistakes.
3. The protection of the Australian community weighs heavily against the Applicant and is afforded significant weight.

Primary consideration 2: Family Violence committed by the non-citizen

1. Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Paragraph 8.2(2) provides that this consideration is relevant where a non-citizen has been convicted of an offence involving family violence or there in information or evidence from independent and authoritative sources indicating the non-citizen is or has been involved in the perpetration of family violence.
2. There is no evidence to indicate this primary consideration is relevant. As such, it is afforded neutral weight.

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

1. I am required to consider the impact of the decision on the Applicant'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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

(b) 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.

1. The Applicant has identified close family members in Australia including his mother, father, sister, brother, partner, grandfather, grandmother, four aunties, father-in-law and mother-in-law. His evidence is that his removal from Australia would be devastating for his family.
2. Both the Applicant's parents have serious health issues; his mother requires regular dialysis, and his father is frequently hospitalised due to lung failure. As the eldest sibling, he feels responsible for ensuring their well-being and providing practical care. The Applicant says being incarcerated served to strengthen the bond he shares with his siblings and his family continue to look to him for guidance.
3. The Applicant's partner has albinism and is significantly vision impaired. Prior to his imprisonment, he was her primary carer and provided practical assistance including transport. The Applicant also assisted with caring for his grandfather when his cousins were unable to do so.
4. The Applicant says the non-revocation of the cancellation of his visa would leave his siblings, parents, partner, son and extended family facing immense emotional and financial difficulties and he fears that some may become depressed.
5. Members of the Applicant's family have provided statements in which they outline the support he has provided them. The Applicant's partner, brother and sister-in-law gave evidence at the hearing that they would be deeply affected should he be returned to New Zealand. I accept their evidence as outlined above.
6. The Applicant has provided evidence of having contributed positively to the Australian community through paid employment, volunteering and participation in sport.
7. The Applicant first arrived in Australia from New Zealand in 1988 when he was two years old.[21] I place considerable weight on the fact that he arrived as a young child and has resided in Australia for approximately 26 years.
8. For these reasons, this primary consideration weights strongly in favour of revocation and is afforded significant weight.

Primary Consideration 4: Best interests of minor children affected by the decision

1. Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[22] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[23]

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has identified two minor children who would be affected by the cancellation decision - his two year old son, and his seven year old nephew.
2. The Applicant fears that if he is deported, his son would grow up without a father and appropriate guidance. He believes this would be devastating to his son, who may potentially turn to substance abuse because due to his absence.
3. The Applicant said that his son was showing signs of being stressed by his father's absence. When his son visits him in prison or detention, he cries hysterically for him to come home with him. The Applicant expressed concern that should he be deported, his son may feel like he has been abandoned. Although not formally diagnosed, the Applicant said there are indications that his son may be autistic.
4. The Applicant is godfather to his nephew. The child lost his father to suicide when he was one year old, and he developed a close bond with the Applicant. The Applicant claims his nephew is showing signs of having been traumatised by his absence. I accept the Applicant has acted as a father figure for his nephew as this was confirmed by the child's mother. Raisa Nanai gave evidence her son often asks when the Applicant will be coming home and why he is not with them as much as he used to be.
5. The Applicant has been physically absent for a significant part of his son's life throughout which his partner has fulfilled the primary parental role. Similarly, the Applicant's nephew has been cared for by his mother since the Applicant went to prison.
6. The sum of the evidence supports the Applicant having developed a bond with both minor children, and of having potential to play a substantial parental role in their lives. I consider that not revoking the cancellation to the Applicant's visa would have a substantial negative effect on both children, and their interests weigh strongly in favour of revoking the cancellation of the visa.

Primary Consideration 5: Expectations of the Australian community

1. Paragraph 8.5 of the Direction relevantly provides:[24]

(1) 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.

1. Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather the Tribunal must give effect to the 'norm' stipulated in the Direction.[25]
3. This consideration is about the expectations 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 in the Direction, without independently assessing the community's expectations in the particular case.
4. The Applicant has failed to meet the Australian community's expectation that visa holders obey its laws. I accept the Respondent's contention that the nature of the Applicant's offending - particularly the crimes involving the use of violence and a weapon - is such that the Australian community would expect the Applicant's visa to remain cancelled.
5. The Respondent acknowledges that the Direction provides that the community may afford a higher level of tolerance to criminal or other serious conduct by non-citizens who have lived in Australia from a very young age. The Applicant has resided in Australia from a very young age and has been ordinarily resident in Australia since the age of twenty-two months.
6. Having regard to the Direction and the Applicant's offending, this consideration weighs heavily against revocation.

Legal consequence of decision under section 501 or 501CA

1. Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that the legal consequences of a decision to cancel the Applicant's visa are that the Applicant will be liable to removal from Australia pursuant to section 198 of the Act, and in the meantime, subject to detention under section 189 of the Act. However, those legal consequences flow naturally from the intended operation of the Act.
2. The legal consequence of the decision is that the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).[26]
3. The Applicant has not made any claims relevant to this consideration and submitted that this consideration is appropriately afforded neutral weight, as has the Respondent.
4. Having regard to the intended legal consequences of the cancellation of the Applicant's visa, this consideration is afforded neutral weight.

(1) Decision-makers must consider the extent of any impediments that the non‑ citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country.

1. At 28 years old, the Applicant is a young man in overall good health. In a report by psychologist Greg Hutcheon provided March 2025, it is noted that the Applicant's DSM-V diagnosis comprised a previous history of 'substance use disorder (in remission), probable ADHD in childhood and childhood trauma'.[27] The Applicant has claimed to suffer from other mental health conditions, but it does not appear he has been diagnosed with depression, anxiety or ADHD. In any event, the extent of any treatment he is receiving is currently limited to psychological counselling participation in the OST.
2. The Applicant has expressed fears that returning to New Zealand would jeopardise his rehabilitation. Should the Applicant choose to continue treatment in New Zealand, he would have access to the same level of medical, social welfare and economic support as what is generally available to other citizens in New Zealand.
3. The evidence supports the Applicant's claim not to have access to family or other support networks in New Zealand, and his partner has told him she will remain in Australia should he be deported. Without his family or an existing support network, the Applicant fears the impact on his mental health.
4. I acknowledge that in sentencing the Applicant, Judge Rosengren observed he would be expected to face hardship due to the anticipated cancellation of his visa:

...There is no dispute that the head sentence ought to be greater than 12 months. You, therefore, face deportation at the conclusion of your period of imprisonment unless you are able to get a revocation of the Minister's decision cancelling your visa. You could then be held in immigration detention for an unknown period pending the outcome of any such application. The fact that you have both been living here since your young ages and your extensive family support here means that deportation will be a hardship for you. This does not mean that the sentence should be lessened for the purpose of defeating, avoiding or circumventing the operation of the provisions of the Migration Act, but I do consider it to be a relevant factor to be considered in mitigation here. It will make your time in custody for both of you more onerous and it may well deprive you of the opportunity to permanently reside in Australia.[28]

5. The Applicant would not face any cultural or language barriers in New Zealand, and has transferrable skills and experience that would help him obtain paid employment. Nonetheless, he would be expected to face practical, financial and emotional hardship upon his return to New Zealand.
6. For these reasons, this consideration is afforded moderate weight in favour of revocation of the cancellation decision.

1. The primary considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revoking the mandatory cancellation of the Applicant's visa. The protection of the Australian community is afforded significant weight, marginally mitigated by the Applicant being at low risk of reoffending. The expectations of the Australian community are afforded less weight on account of the Applicant having lived in Australia from a very young age.
2. The evidence supports the Applicant having contributed to the community and his removal would be expected to have a significant impact on his family members and friends. As such, the strength, nature and duration of the Applicant's ties to Australia weigh strongly in favour of revocation. The impediments the Applicant would face in New Zealand weigh moderately in favour of the Applicant. It is in the best interests of the Applicant's son and nephew that he remain in Australia. For the reasons I have outlined, the primary consideration of the best interest of minor children is afforded significant weight in favour of revocation.
3. On balance, the correct and preferable decision is to revoke the cancellation of the Applicant's visa.

1. For the reasons outlined above, the Tribunal sets aside the decision under review and in substitution decides that the mandatory cancellation of the Applicant's visa is revoked.

[2] Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation

of a visa under section 501CA.

[25] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] (Charlsworth J).

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