(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

1. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
2. Section 501(6) of the Act defines the 'character test.' Relevantly, in part, s 501(6) states:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or........

1. Section 501(7) provides that a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
2. If an Applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal's satisfaction that there is 'another reason' to do so.[7] In Plaintiff M1/2021,[8] the High Court referred to how representations made under s 501CA(4) of the Act should be approached:
   1. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).

1. On 7 June 2024, Direction No.110 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA ('Direction 110') came into effect. Direction 110 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. It is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.
2. Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.
3. The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

1. Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:

a) legal consequences of the decision; > > b) extent of impediments, if removed; > > c) impact on Australian business interests.

2. A decision maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[9] Colvin J when considering an earlier Direction stated:[10]

'Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.'

(a) does the Applicant pass the character test, as defined in s 501 of the Act? If not; > > (b) is there another reason why the original decision should be revoked?

1. The following statements were provided to the Tribunal in support of the Applicant's application for review:

(a) Applicant's statement entitled Reason for revocation.[11]

(b) Statement by Desiraye Katrina Solomon dated 11 August 2025.

(c) Statement by Hela Po-Ching dated 21 August 2025.

(d) Statement by Sylvia Po-Ching dated 23 August 2025.

(e) Statement by Makarena Puru undated.

1. The statements by Ms Solomon, Ms Hela Po-Ching and Ms Sylvia Po-Ching were not supplied to the Tribunal in accordance with the two-day rule. Nevertheless, the respondent has consented to them being considered for the purposes of this decision.
2. In addition, the Tribunal was provided with:

(a) Respondent's Statement of Facts, Issues, and Contentions dated 29 September 2025.

(b) Respondent's Supplementary Documents.

(c) G Documents.

(d) Hearing Book.

1. The character test is defined under s 501(6) of the Act. It provides that a person does not pass the character test if they have a 'substantial criminal record' as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a 'substantial criminal record' if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.[12]
2. In this case, on 5 September 2024 the Applicant was found guilty by the Local Court of New South Wales at Gosford of five counts of sexually touching another person without consent and sentenced to an aggregate term of 15 months imprisonment ('the index offence'). Having been sentenced to a term of imprisonment greater than 12 months, the Applicant concedes that he does not pass the character test for the purposes of the Act.
3. Based on the Applicant's own admission and the documentation provided, the Tribunal finds that the Applicant has a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. The Tribunal finds that the Applicant does not pass the character test and that the requirements of s 501CA(4)(b)(i) are not met. As a result, the Applicant cannot rely on s 501CA(4)(1)(a) of the Act for the cancellation of his visa to be revoked.

Whether there is another reason the visa cancellation decision should be revoked

1. The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant's visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.

1. Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[13] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant's conduct and the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct.[14]

1. In considering the nature and seriousness of the Applicant's offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The Direction indicates that violent crimes are viewed seriously by the Australian Government and the Australian community.
2. In this case the applicant has a lengthy criminal history that commenced from 1998 to 2024[15] that appears to be broadly connected to her abuse of alcohol and drugs. Her offences include aggravated robbery, shoplifting and dishonesty offences. The applicant has also committed numerous offences related to driving without a license, drugs and driving with a drug present in her blood. Because of her offending the applicant has received penalties ranging from fines, licence disqualification, probation, community service, intensive corrections orders, suspended prison terms and terms of imprisonment.[16]
3. On 2 March 2001 applicant pleaded guilty to the index offence and was sentenced by the District of New South Wales at Newcastle (the District Court) to a term of imprisonment of 2 years.[17] The circumstances of the applicant's index offending are detailed in the sentencing remarks of the District Court dated 2 March 2001 and described by the Court as being very serious.[18] On 6 April 2000, the applicant occupied the drivers seat of a motor vehicle parked outside the female victims flat. The applicant's co-offender and former partner[19] grabbed the female victim by the throat while as she entered the carport entrance to her flat and forced her to the floor of the vehicle occupied by the applicant.[20] As instructed by her co-offender the applicant drove the vehicle while he forced the female victim to remove her underclothes and threatened to cut her throat. The applicant then drove the vehicle back to the victims flat where the applicant and her co-offender ransacked the victims flat and continued to make death threats against the victim.[21] The victim's brother the arrived at premises upon which he was threatened and ordered to strip off his clothing by the applicant and her co-offender.[22] During the course of the incident jewellery and a mobile phone were stolen for the female victim which were subsequently found in possession of the applicant.[23]
4. During the sentencing remarks the Judge noted the offences faced by the applicant were extremely serious.[24] His honour accepted that the applicant had been under the influence of her partner and co-offender but noted that he held serious reservations as to whether the applicant will be able to maintain a trouble-free life and keep out of the spotlight of the police.[25]
5. On 10 August 2005 the applicant was convicted of obtaining money by deception and sentence 4 months imprisonment.[26]
6. On 11 November 2005, the applicant was convicted of bringing stolen goods into Queensland and unlawful use of a motor vehicle for which she was sentenced to 3 months and 6 months imprisonment respectively.[27]
7. By a letter dated 27 July 2009[28] the department issued a warning to the applicant that any further criminal convictions could result in the applicant's visa being cancelled and her being removed from Australia ('the departments warning').
8. From 2007 to 2017 the applicant was not convicted of any criminal offences.[29]
9. Finally, on 19 December 2024 the applicant plead guilty and was convicted in the NSW Local Court at Newcastle of larceny and sentenced to 3 months imprisonment ('the larceny offence').[30] In the sentencing remarks the Magistrate referred to the fact that the applicant had plead guilty and noted that at the time of the offence the applicant was on a community corrections order that had been reduced on appeal to nine months.[31] The Magistrate also noted that the applicant had the additional benefit of having the sentence reduced from an intensive corrections order to a community corrections order. However, the Magistrate noted that despite these benefits the applicant committed further offences constituting an escalation of her offending.[32] The Magistrate noted that the applicant's dependency on drugs had not been addressed by the community corrections order in circumstances where it was the applicant's intention to sell the stolen items to buy heroin.[33]
10. The Tribunal finds that the index offending was a very serious offence in circumstances where the offence involved a violent attack on the female victim her own home. [34] Paragraph 8.1.1(1)(c) of Direction 110 reflects the fact that the Tribunal does not need to consider the Applicant's sentence to the extent that it constitutes a crime or conduct mentioned in paragraph 8.1.1(1)(a)(ii), (a)(iii) or (b)(i) of Direction 110. Nevertheless, the Tribunal observes that imposition of a custodial sentence is the most serious type of punishment in the hierarchy of sentencing options. As such, on an objective basis the fact that a custodial sentence was imposed on the applicant reflects the seriousness of her offending.[35]
11. Paragraph 8.1.1(d) directs the Tribunal to consider the impact of the offending on any victims where this information is available. The statements provided in relation to the index offending refers to the fact that the female victim was left upset and shaken by the attack. [36] Given the circumstances of the offence, Tribunal accepts that the female victim was greatly impacted by the index offence and that she was left her shaken and upset as stated.
12. It is significant that the applicant's offending has occurred over an extended period. While the applicant was not convicted of any offence between 2007 and 2017, she has continued to engage in a sustained pattern of unlawful behaviour by which she has displayed a complete disregard for the law and community safety. The cumulative effect of the applicant's offending has been an escalation of the seriousness of her offending over an extended period.[37]
13. Having considered paragraph 8.1.1 of Direction 110, based on the sentencing remarks of the Court in relation to the index offending together, the fact that she has reoffended after receiving the departments warning[38] and the cumulative effect of the applicant repeated offending[39] the Tribunal finds the nature of the applicant's conduct to be serious. As a result, the Tribunal places significant weight on this consideration in favour of affirming the cancellation decision.

1. Paragraph 8.1.2 of the Direction 110 provides that in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal 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 information and evidence on the risk of the non­citizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.

2. In measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.__[40] Her Honour stated that, to determine an unacceptable risk, one must evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future.
3. The Tribunal is required to assess the risk posed to the Australian community if the Applicant re-offends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[41] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, (as her Honour then was) considered the notion of risk and its nexus to future possibility. Her Honour noted:[42]

'That is, part of the Tribunal's task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.'

4. In Minister for Immigration and Ethnic Affairs v Guo_[43]_ the High Court considered the extent to which past events can be a guide to the future. The Court stated:

'Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.'

1. As such, in the process of determining the chance of something occurring in the future a conclusion will need to be formed concerning past events.[44] Assessing what is likely to happen in the future based on past events involves questions of degree. In Minister for Immigration and Ethnic Affairs v Guo the court held that:[45]

'The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity....'

1. As to the nature of harm to individuals or the Australian community should the person engage in further criminal or other serious conduct, The Tribunal accepts the Respondent's submission that if the Applicant was to re-offend in the future in the same or similar manner, she would likely expose members of the Australian community to serious psychological, physical and financial harm.[46]
2. The Respondent submits that the harm caused by the applicant's offending is so serious, that any risk it may be repeated by the Applicant is unacceptable. The applicant attributes her offending to addiction to drugs.[47] Her evidence was that her drug addiction started at the age of 18 and while she was a victim of domestic abuse.[48] The applicant states that after a '10-year period of both cessation of criminal activity and freedom from substance abuse' she started using drugs again after becoming involved in another domestic abusive relationship.[49]
3. The evidence before the Tribunal indicates that the applicant has history of using cannabis, methylamphetamine and heroin.[50] On 27 April 2017 and 4 November 2020 the applicant was convicted for driving with the presence of an illicit drug (methylamphetamine) in her blood.[51] In addition, the Tribunal notes that the sentencing remarks of the Court in relation to the larceny offence observed that the applicant's intention was to sell the goods to buy heroin.[52]
4. The applicant has acknowledged the role drugs has played in her offending conduct and has participated in the following programs to address her addiction to drugs ('the rehabilitation programs') :

(a) On 8 March 2004 the applicant completed a Magistrates Early Referral into Treatment (MERIT) program.[53] The initial treatment for the MERIT program required the applicant to attend Lakeview Detoxification Unit at Belmont Hospital as an in-patient[54] and admittance to the WHOs Residential Rehabilitation Program.[55]

(b) The We Help Ourselves Residential Treatment of Opioid Dependence rehabilitation program at Cessnock until 5 May 2005[56] The tribunal notes that the Probate ad parole Pre-Sentence Report dated 1 July 2004[57] refers to the applicant stating that following her discharge from the WHOs program she sank into 'deep depression and resorted to drug use in an attempt to escape her life.'[58]

(c) On 17 June 2004 the applicant was admitted to the James Fletcher Hospital for detoxification and depression treatment.[59]

(d) In August 2023 the applicant completed a MERIT program and a detox program through her local hospital for the management of her heroin dependence.[60]

(e) In 2024 the applicant engaged in Community Corrections counselling and pharmacotherapy treatment.[61]

1. The applicant claims[62] that during her recent prison sentence she commenced the pharmacotherapy maintenance treatment program, Buvidal Injection which is administered monthly. The applicant claims to have spoken to the doctor at the detention centre about being able to commence drug and alcohol counselling.[63] In addition, she intends to recommence trauma counselling.[64] The applicant also claims[65] that if returned to the community she will keep busy and will surround herself with the right company as a strategy to avoid the risk of reoffending.
2. Notwithstanding the fact the applicant has acknowledged her drug use has contributed to her offending she appears to have little insight into seriousness of her offending and the impact it has had on victims. The applicants claim[66] that her recent criminal record has not caused 'any actual physical harm' to the Australian community displays limited insight to her actual offending and the affect it has had on the community. Further, her claim that the longest sentence she received was very minimal, being four months additionally displays a lack of understanding of a custodial sentence being the most serious type of punishment in the hierarchy of sentencing options. Incredibly, the applicant attributed the fact that she had been sentenced to relative short period in prison as a reason for her not completing any course of program that would help her avoid any further offending[67]. The applicant does not address the fact that despite numerous opportunities to engage in rehabilitation by way of Court orders she appears not to have taken them up or has been unsuccessful in completing them.
3. Despite having participated in the rehabilitation programs referred to above, the continued to commit offences in 2005 and 2006 that included possess a prohibited drug,[68] affray[69], drive vehicle with illicit drug present,[70] posses/attempt to prescribe restricted substance,[71]drive while disqualified.[72] While the applicant was not charged with any offences between 2007 and 2017, she recommenced in 2017. The applicant claims that she reoffended because of her drug use and because she had commenced an abusive relationship. However, it appears that she was charged with driving a motor vehicle with illicit drug present in blood prior[73] to the entering into another relationship. The Tribunal notes that the Sentencing Report dated 24 October 2023[74] refers to the applicant stating she was stealing to feed her drug habit. The report notes[75] that that the applicant was assessed at a medium to high risk of re offending and that Community Correction had assessed her as unsuitable to undertake community service work because of her drug addiction and unresolved mental health issues.[76] Therefore, based on the applicant failure to apply herself to the rehabilitative program by continually reoffending and the sentencing report assessment, the Tribunal does not accept the applicant evidence that she will engage in rehabilitation interventions in the community in relation to her substance abuse and refrain from reoffending if released into the community.
4. The Tribunal notes that pursuant to paragraph 8.1.2 of the Direction 110 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 becomes lower as the seriousness of the potential harm increases. Further, in assessing the risk that may be posed by the Applicant, the Tribunal must have regard on a cumulative basis to the nature of the harm to individuals or the Australian community and the likelihood of the Applicant engaging in further criminal or other serious conduct.
5. In this case the index offending is very serious. The applicant has then continued to reoffend for the purposes of feeding a drug habit. As a result, she has continued to place the Australia community at risk for the purposes of satisfying her own addiction. As such, the Tribunal finds that the Applicant's offending represents an unacceptable risk to the Australian community and as such this consideration weighs strongly in favour of affirming the cancellation decision.

Family violence committed by the non-citizen.

1. The Tribunal notes that paragraph 5.2(8) of Direction 110 provides:

'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 measurable risk of causing physical harm to the Australian community.'

1. Direction 110 defines family violence to mean 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful'. The examples of behaviour that may constitute family violence include assault and a sexual assault or other sexual abusive behaviour.[77]
2. Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Tribunal notes that paragraph 8.2(2) of Direction 110 provides that this consideration is relevant in circumstances where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence and the non-citizen has been afforded procedural fairness.
3. In this case there is no eveidece to suggest the applicant has committed any act of family violence. As such the Tribunal affords this consideration neutral weight.

The strength, nature and duration of ties to Australia.

1. Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the Applicant's immediate family are his father, stepmother, two brothers, two stepbrothers and a stepsister.
2. Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:

(a) how long the Applicant has resided in Australia, including whether the Applicant 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 Applicant has spent contributing positively to the Australian community; and

(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 was born on 8 October 1979 (45 years old) in Christchurch New Zealand. She attended school in Christchurch New Zealand until year 10. On 30 May 1996 (16 years of age) the applicant travelled to Australia with her mother and brother.[78]
2. In or about 1996 the applicant commenced a hairdressing course at Newcastle, Australia but did not complete the course.
3. The applicant's work experience in Australia has been limited. By her personal circumstances form the applicant claimed that she worked as a receptionist and administrative assistant for a company known as Silver Chief in Queensland from 2007 to 2008. However, the Court Duty Officer Report dated 8 January 2007[79] and the NSW Corrective Services report dated 8 January 2007[80] state that the applicant moved to Queensland in early 2006 and returned to Newcastle approximately 9 months later. As a result, the applicant conceded that to the Tribunal that she had worked for Silver Chief for approximately in 2006 for approximately 9 months. In addition, the applicant's evidence was that in 2018 to 2019 worked as a seamstress for a firm known as Winning Blinds. The applicant otherwise confirmed to the Tribunal that she had not been employed while living in Australia and that for most of her time in Australia she had been the recipient of welfare payments.
4. The applicant's immediate family in Australia includes her mother, brother, sister-in law, adult son and adult daughter and two minor sons born 27 January 2010 and 19 January 2012.[81] The applicant's minor sons live with the applicant's mother and has been their legal guardian since they were aged four years and 16 months respectively. The applicant's mothers' evidence was that she is responsible for the minor sons care and maintenance nevertheless, from time to time the applicant has helped support her sons when she is able.[82] The applicant mother claimed that the applicant maintains contact with her minor sons on the telephone but is absent when she is using drugs. The applicant is aware that her mother is aging and would like to be more present with her.[83]
5. The applicant's adult son has two children born in 2023 and 2024 and the applicant's adult daughter has one child born in 2024. The applicant claims that prior to her incarceration in 2024 she was in regular contact with her adult son and daughter and their children.[84] However, her evidence was that her son lives away for her as a result she does not see him or his children often. Additionally, the applicant's son lives away for the applicant and as a result she sees him or his children often.[85] The Tribunal notes that neither the applicant's adult son or daughter have provided any statement or evidence to the Tribunal.
6. The applicant also has a cousin living in Australia. Statements were provided to the Tribunal in support of the applicant by her cousins Sylvia Po-Ching, Helena Po-Ching and Desiraye Solomon. The applicant's evidence, however, was that her cousin's live interstate and as a result she has limited contact with them. In circumstances where her cousins have had limited contact with the applicant, did not appear before the Tribunal to give evidence in support of the applicant and appear to be unaware of these proceedings, the Tribunal places little weight on their statements in support.
7. The Tribunal accepts that the has family and extended family in Australia, including grandchildren and cousins. However, the applicant has a history of offending that commenced approximately 2 years after her arrival in Australia. The applicant's lifestyle, in particular, her addiction to drugs and offending, has limited her contact with her family. The applicant's mother is the guardian of her two minor children, with the applicant prevented by court order from living with her mother and two minor children.
8. Nevertheless, the Tribunal accepts that this consideration weighs in favour of the applicant. As a result, the Tribunal gives this consideration some weight in favour of revoking the cancellation decision.

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 claims she has two minor children,[86] three grandchildren[87] and nieces and nephews[88] in Australia who will be affected by the cancellation of the applicant's visa.
3. As referred to above the applicant mother is the primary guardian for the applicant's minor sons. The applicant has regular contact with her sons by telephone but has had limited physical contact due to the fact the applicant has been incarcerated more recently and prior because of her drug abuse. The Tribunal notes that the applicant is currently prevented from living with her minor sons by court order.
4. As to her grandchildren the applicant eveidece was that she has regular contact with them by telephone. However, the applicant conceded that because she has been in custody she has not personally meet her two youngest grandchildren born in November 2024 and December 2024 respectively. In addition, despite her claims that she spent every Monday with her daughter,[89] her evidence was that since being placed in custody in October 2024 she has not had any contact with her daughter or granddaughter.
5. Nevertheless, the Tribunal accepts that this consideration weights in favour of revocation. However, in circumstances where the applicant's mother, as guardian, fulfils the parenting role of her minor sons and the relative limited contact the applicant has with her grandchildren, it appears the applicant's involvement in their lives as a positive role model is limited. In circumstances where the applicant has a history of drug abuse and offending, the applicant's role as a positive influence in their lives appears to be limited. As a result, the Tribunal places only some weight to this consideration in favour of revoking the 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, 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 views as above, without independently assessing the community's expectations in the particular case.

1. In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[90] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[91] In doing so the Tribunal is required to consider the specific circumstance of the Applicant's case.[92]
2. The Respondent submits that the Applicant's conduct is contrary to the expectations of the Australian community in circumstances where the applicant has engaged in sustained and repeated offending.[93] It is the general expectation of the community that the Government will not allow non-citizens who have engaged in a serious breach of Australian laws to enter or remain in Australia.[94] In addition, community expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[95]
3. In this case, in addition to the index offence the Applicant has continued to offend over an extended period principally for the purposes of supporting her drug addiction. The Index offence involved a female victim being threatened and violently assaulted. In addition, the applicant has displayed a disregard for the law where she has continued to commit further offences while being subject of the community corrections order and in circumstances where she had received the benefit of having her sentenced reduced from an intensive corrections order to a community corrections order.[96] The applicant's offending arises from her addiction to drugs. Despite having participated in the rehabilitation programs the applicant has not been able to overcome her addiction. The applicant expressed a desire to continue with her monthly Buvidal Injection and engage in outpatient programs such as 'We Help Ourselves' and the MERIT program but was not able to identify a change in lifestyle or circumstances that would deal with her underling issue of drug dependence in the event she was released into the community. In fact, that the applicant's evidence was that if she was released into the community she would return to live with her former partner, John Thornton. That is, the same environment in which he had engaged in her drug abuse and criminal offending in the past. The Tribunal notes that the applicant sentencing assessment report dated 2 December 2024[97] has assessed the applicant as having a medium to high risk of reoffending.
4. The applicant claims[98] that she wants to return to her studies to become a disability worker and gain more certificates to improve her chance of long-term employment. However, the Tribunal notes that a MERIT report dated 5 July 2004 indicates that the applicant was to enrol in a course at Newcastle TAFE commencing July 2004.[99] The applicant appears to have no intention of attending and completing any such course in circumstances where there is no evidence of her having enrolled in the course. There was no eveidece of the applicant having made enquiries about further her education or taking steps to enrol any such course as claimed Therefore, based on the applicant's past behaviour, the Tribunal does not accept the applicant will return to study as claimed.
5. In all the circumstances, the Tribunal is not satisfied that the applicant is an acceptable risk to the Australia community. As such, the Tribunal finds that the applicant is an unacceptable risk to the Australian community. Accordingly, it finds that the general expectation of the Australian community is that the Government will not allow the Applicant, having engaged in such a serious crime, to remain in Australia. As such, the Tribunal has given significant weight to this consideration in favour of not 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.[100]

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. Direction 110 provides that in accordance with s 198 of the Act, an unlawful non-citizen is liable to be removed from Australia as soon as reasonably practicable. For the purposes of s 198 it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.
2. In this case if the cancellation decision is affirmed, the applicant would remain an unlawful non-citizen and be liable for removal from Australia to New Zealand in accordance with s 198 of the Act. Pursuant to s 501E of the Act the applicant would be prevented from applying for another visa while in Australia (save for a a protection visa) and would not satisfy the special return criteria in cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth).[101]
3. The applicant's evidence was that if she is returned to New Zealand, she will be forced to live without her immediate family and would be without their support. The Tribunal notes that the applicant mother's evidence was that the applicant has extended family in New Zealand upon whom she would be able to contact for the purposes of support and guidance upon her arrival. In any event, the Respondent summits that applicant's response to this consideration does not engage the issue of Australia's non-refoulement obligations.
4. The Tribunal notes that the applicant is not subject to a protection finding and did not raise any claims which may give rise to international non-refoulement obligations. Accordingly, 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 himself 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. The applicant is forty-five old years old. She claims she suffers for depression and Post Traumatic Stress Disorder. However, the applicant did not provide any medical reports in relation to her mental or physical condition. In any event there is no suggestion that the applicant would not be able to receive appropriate medical treatment if she is returned to New Zealand.
2. The applicant claims that he she has no contacts in New Zealand. She claims that she has lost contact with any family members she has in New Zealand. However, the applicant mother's evidence was that she would be able to reconnect with family members in New Zealand for the purpose of establishing herself. Nevertheless, given the time the applicant has been in Australia, the Tribunal accepts that if she is removed from Australia to New Zealand, she will experience some difficulty in establishing herself, including emotional hardship due to being separated from her social ties and re-establishing herself without her immediate family.[102] However, the Tribunal has placed great weight on the applicant's mothers eveidece that the applicant will be able to rely on family members in New Zealand for support and guidance upon her arrival in that country. While the applicant has not lived in New Zealand since she was 16 years of age, it is not suggested that the country will be entirely unfamiliar to the applicant. There is no suggestion she would suffer any cultural and language difficulties if returned to New Zealand.
3. Finally, as a New Zealand citizen the applicant would be entitled to any social or medical benefits on the same basis as any other New Zealand citizen. As a result, the applicant would be entitled to medical care including any mental health care on the same basis as any other citizen of New Zealand.
4. In summary, the Tribunal accepts that the Applicant is likely to face some impediments if removed from Australia, but that any weight afforded to this consideration in favour of the Applicant is outweighed by Primary Considerations relating to the nature and seriousness of the Applicant's conduct and, the risk to the Australian community and the expectations of the Australian community. The Tribunal gives this consideration little weight in favour of revocation of the cancellation 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.
2. There is no evidence before the Tribunal to suggest that a non-revocation decision will compromise the delivery of a major project or an important service in Australia or indeed impact any Australian business interests. Accordingly, the Tribunal gives this consideration 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. Having considered the primary and other considerations in Direction 110, the Tribunal affirms the decision under review. In circumstances where the Direction 110 requires that greater weight must be given to the primary consideration of protecting the Australian community from criminal or other serious conduct the Tribunal finds that this consideration outweighs the other considerations given in favour of the Applicant. Paragraph 5.2(2) of Direction 110 states that the safety of the Australian community is the highest priority of the Australian Government. Considering the very serious nature of the Applicant's offences and the risk to the Australian community should she re-offend in a similar manner, any risk that the Applicant may re-offend is one that should not be tolerated by the community.
3. As such, the Tribunal is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.

1. The Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 101 (One Hundred and one) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.

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

[7] 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).

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

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

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

1. [35] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44] per Senior Member Tavoularis.

[37] Paragraph 8.1.1(e) and (f) of direction 110

[38] Paragraph 8.1.1(h) of direction 110

[39] Paragraph 8.1.1(f) of direction 110

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

[41] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 144 ALR 567, 578-579; 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].

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

[43] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574].

[44] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].

[45] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574] - [575].

[46] Paragraph 8.1.2(1) of direction 110

[77] Paragraph 4(1)(a) and (b) of Direction 110.

[90] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].

[92] Kelly [2022] FCA 396, [98]-[109] (Beach J).

[93] Respondents Statement of Fact Issues and Contentions. @ [48]

[94] Paragraph 8.5(2) of Direction 110.

[95] Paragraph 8.5(3) of Direction 110.

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

[101] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA1003 per Feutrill J at [12]-[14].

[102] Paragraph 9.2(1)(c) of Direction 110