MIGRATION - decision of delegate of Minister not to revoke mandatory cancellation of visa - character test - Direction no. 110 - protection of Australian community - nature and seriousness of criminal offending - risk to the Australian community should the Applicant commit further offences or engage in other serious conduct - strength, nature and duration of ties to Australia - expectations of the Australian community - extent of impediments if removed - aggravated burglary with intent in dwelling - assault occasioning bodily harm - minor criminal history prior to offence - Applicant a 53-year-old year old citizen of New Zealand - Non-Revocation Decision is set aside

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) - Schedule 16 Part 5 section 24

Administrative Review Tribunal Act 2024 (Cth) - s 111(3)

Migration Act 1958 (Cth) - sections 15, 189, 196, 197C, 198, 499(1), 499(2A), 501(3), 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)(b), 501CA(4)(b)(ii), 501E, 501F, 503

Migration Regulations 1994 (Cth) - Schedule 5 cl 5001

AJL20 v Commonwealth of Australia [2020] FCA 1305

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

FYBR v Minister for Home Affairs [2019] FCAFC 185

Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022

Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 247

Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; (2024) 418 ALR 152; (2024) 98 ALJR 610; [2024] HCA 12

Luu v Minister for Immigration and Multicultural Affairs (1998) FCA 1021; (1998) FCR 304

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234

Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273

Stoneley v Minister for Immigration & Multicultural Affairs [2025] FCA 143

Administrative Review Tribunal, Migration, Protection and Character Practice Direction, 21 May 2025 - paragraph 5.12

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021) - 8.1.1, 8.4

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024) - paragraphs 7, 8, 8.1, 8.1.1, 8.1.2, 8.5, 9

The decision in this matter was made and provided to the parties on 17 June 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]

1. Mr Garland has sought review of a decision of a delegate of the Respondent (Minister) dated 6 April 2022, not to revoke the cancellation of his Special Category (Class TY) (subclass 444) visa under s 501CA(4) of the Migration Act 1958 (Act).[2]

1. Mr Garland was born in 1971 in New Zealand[3] and remains a citizen of New Zealand. He arrived in Australia in November 1988, aged 16.[4]
2. On 31 August 2016 Mr Garland was convicted in the Perth District Court of Western Australia of 'aggravated burglary with intent in dwelling' and 'assault occasioning bodily harm'.[5] He was sentenced to 5 years' imprisonment for 'aggravated burglary with intent in dwelling' and did not receive a penalty for 'assault occasioning bodily harm'.[6]
3. On 7 January 2025 the Minister cancelled Mr Garland's visa under section 501(3A) of the Act (Cancellation Decision),[7] on the basis that Mr Garland had a substantial criminal record within the meaning of section 501(6)(a), and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory.
4. On 7 January 2019 and again on 9 December 2021 the Minister advised Mr Garland that he may make representations to seek revocation of the cancellation decision.[8] On 28 December 2021 Mr Garland made representations to the Minister requesting revocation of the Cancellation Decision under s 501CA of the Act.[9]
5. On 5 April 2022, pursuant to s 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision (Non-Revocation Decision).[10]
6. On 13 April 2022[11] Mr Garland made an application for review with the Tribunal.[12] At this time the Tribunal was bound by Ministerial Direction no. 90 (Direction 90).[13] Direction 90 provided that in considering the nature and seriousness of the non-citizen's criminal offending or other conduct, decision-makers must have regard to types of crimes and conduct. Direction 90 provided that, without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community (such as the elderly or disabled) are considered by the Australian Government and community to be serious.[14] Further, Direction 90 provided that the Australian community would expect that the Government can and should cancel the visa of a non-citizen who has engaged in conduct including the 'commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled'.[15] The sentencing remarks of Judge Stone of the District Court of Western Australia described the victim as 'vulnerable', but did not elaborate on the reasons why he was described that way, apart from that Mr Garland was 'a much larger man than [the victim]'.[16]
7. On 29 June 2022 the Tribunal, differently constituted, affirmed the Non-Revocation Decision (2022 Tribunal decision).[17] In the 2022 Tribunal decision the Tribunal accepted the sentencing Judge's assessment of the victim as being 'vulnerable', and, regarding the 'violent nature of the offending against a vulnerable victim', found that the nature and seriousness of the conduct weighed strongly against the revocation of the Cancellation Decision.[18]
8. Mr Garland's application to the Federal Court for judicial review of the 2022 Tribunal decision was dismissed on 23 March 2023.[19] His subsequent appeal to the Full Court of the Federal Court was dismissed on 25 August 2023.[20]
9. Mr Garland appealed to the High Court. On 6 September 2024,[21] and following the decision of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[22] the Minister conceded Mr Garland's appeal, and the matter was remitted by the High Court to the Tribunal.[23]

1. The hearing took place in Perth on 4 and 12 June 2025. Both parties were legally represented.
2. The following documents were marked as exhibits:

(a) Mr Garland's statement dated 16 April 2025 including annexures TMG-1, TMG-3, TMG-4 (Exhibit A1);[24] > > (b) Statutory declaration of Fiona Leanne Baker dated 7 April 2025 (Exhibit A2); > > (c) Remittal Bundle filed by the Minister on 17 March 2025 (Exhibit R1).

3. Mr Garland gave oral evidence and was cross-examined. As his other witnesses had already provided evidence for the 2022 Tribunal decision, Mr Garland and his partner, Ms Baker, were the only witnesses who gave oral evidence in these proceedings.
4. I was also assisted by:

(a) the Applicant's Statement of Facts Issues and Contentions, dated 30 April 2025 (Applicant's SFIC); and > > (b) the Minister's Statement of Facts, Issues and Contentions, dated 14 May 2025 (Respondent's SFIC).

Migration Act

1. Under sections 501(3) and (3A) of the Act, the Minister must cancel a person's visa if he or she is satisfied that the person does not pass the 'character test', and the visa holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State or a Territory.
2. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is set out on section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
3. Once a person's visa is cancelled under s 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision. If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that: [25]

(a) the person passes the character test; or > > (b) there is another reason why the original decision should be revoked.

4. That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason why the original decision should be revoked.[26]
5. Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.

1. On 7 June 2024, the Minister issued Direction no. 110 under s 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
2. Paragraph 5.2 of Direction 110 sets out mandatory principles which 'provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA'.
3. These principles include the following:
   1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­ citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   2. The safety of the Australian Community is the highest priority of the Australian Government.
   3. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   4. The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
   5. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
4. Paragraph 8 of Direction 110 sets out the primary considerations which must be taken into account in making a decision under s 501CA(4). These are:

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

(b) family violence engaged by the Applicant (if any);

(c) the strength, nature and duration of the Applicant's ties to Australia;

(d) the best interests of minor children in Australia affected by the decision; and

(e) the expectations of the Australian community.

1. Paragraph 9 of Direction 110 sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:

(b) extent of impediments if removed; and

(c) impact on Australian business interests.

(a) information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;

(b) the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and

(c) one or more primary considerations may outweigh other primary considerations.

1. LPDT concerns the question of materiality if a jurisdictional error is made. The High Court said:[27]

Unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met . . .

2. LDPT was decided in April 2024, about eight months after the Full Court's decision in Garland FCAFC.
3. The Full Court had found in Garland FCAFC that the Tribunal had erred in its approach to Direction 90 at [8.1.1(1)(b)] and [8.4(2)(c)],[28] by reference to the sentencing remarks in which the District Court Judge had said the victim of the crime for which Mr Garland had been convicted was 'vulnerable'. The sentencing Judge had considered that Mr Garland being 'much larger' than the victim of the relevant crime and being at home alone, made the victim vulnerable. However, the Full Court found that this did not amount to the victim being vulnerable within the meaning of Direction 90, which had a specific statutory context.
4. Having found there was a relevant error, the Full Court then determined that the error was not material, so that despite there being an error, the appeal failed on the basis that there was no reasonable prospect that the ultimate decision could have been any different.
5. The statutory context and use of the term vulnerable in Direction 90 remains in Direction 110, albeit differently located. Consequently, in this review no question of vulnerability of the victim arises.

1. Mr Garland, by his counsel, concedes that he does not pass the character test in sections 501(6)(a) and 501(7)(c) of the Act.[29] Therefore, the sole live issue for consideration, in accordance with Direction 110, is whether there is another reason why the Cancellation Decision should be revoked.[30] The Applicant has raised a number of other matters for consideration,[31] all of which are procedural or admissibility issues, and I deal with them below.

1. Mr Garland's criminal history is set out in the following table:

Exceed the speed limit by 30 - 40 kilometres per hour

1. As can be seen from this, until 24 May 2014, he had committed no violent crimes and his criminal history, until that time, is quite minor.
2. On 31 August 2016 he was convicted by the District Court of Western Australia of 'aggravated burglary with intent in dwelling' and received a sentence of 5 years' imprisonment.[32] He was also convicted of 'assault occasioning bodily harm' for which he received no penalty. [33] The conviction for 'aggravated burglary with intent in dwelling' gave rise to the Cancellation Decision.

1. Mr Garland concedes that he fails the character test in section 501(6) of the Act because his conviction and the sentence imposed for it[34] means he falls within the meaning of section 501(7), having been sentenced to a term of imprisonment of 12 months or more. That concession is properly made as his failure to pass the character test arises as a matter of law.[35] I find that he has failed the character test.

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

1. Given that the power to revoke the Cancellation Decision is only enlivened if there is 'another reason', within the meaning of section 501CA(4)(b)(ii) of the Act, and the concession as to the character test, the evidence and submissions at the hearing were directed at this question.

1. Mr Garland's overriding submission is that there is another reason why he should be able to remain in Australia, despite his concession regarding the character test.
2. Mr Garland also raises questions regarding the extent to which I should consider Mr Garland's police interview, the trial judge's charge to the jury, and the sentencing remarks, as well as the extent to which I should consider Mr Garland's cross-examination at the 2022 Tribunal hearing, and whether I should accept Mr Garland's retraction of his earlier admission that he committed the offence for which his visa was cancelled.[36]
3. The gravamen of the submissions made in respect to the police interview, the charge to the jury, and Mr Garland's cross-examination at the first Tribunal hearing at which he represented himself, is whether, as a result of Mr Garland's accepted substantial hearing deficient, and in particular the fact he did not have functional hearing aids on those occasions, Mr Garland was afforded a fair opportunity to have his case put by being able to understand and properly participate in the process in which he was participating. In the end, that is not a matter that I need concern myself with. Given the success of Mr Garland's appeal to the High Court, and the findings as to error in the original Tribunal decision made in Garland FCAFC, my role is to ensure he has a fair hearing on this occasion. In doing so, questions as to how the processes he was engaged in prior to this hearing progressed do not really arise for consideration. I do accept that having a substantial hearing deficit placed Mr Garland at a disadvantage and I do accept that, whether out of frustration, embarrassment, socialisation, or for some other reason, he was not always able to clearly articulate his needs for assistance, or his lack of a clear understanding of what was being said.
4. The question of whether Mr Garland can advance a case which attacks the underlying factual basis of the conviction for which he was imprisoned for 5 years in August 2016, is of a different nature. I do not accept that I can consider a challenge to the underlying facts of the offending, nor do I accept that the challenge which is made by Mr Garland is a challenge which would be permissible at law, as being a case where the challenge to the factual circumstances of the conviction is permitted because the conviction itself does not form the basis of the exercise of the administrative discretion which is being challenged in this Tribunal.[37] This is a case in which the conviction plainly forms the basis for the exercise of the power under section 501(2) of the Act.

1. Direction 110 at 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[38]

1. Mr Garland's criminal history which gave rise to the Cancellation Decision and his entire criminal history is set out above at paragraph [32]. It is plainly not extensive nor, save for the conviction in August 2016 for which his visa was cancelled, can it be described as serious.

1. I must consider the nature and seriousness of Mr Garland's criminal offending and other conduct.[39] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[40] and that certain criminal or other conduct is considered serious.[41] The scope of what I may consider as either very serious or serious is not limited to those matters specifically included in Direction 110.[42]
2. Mr Garland concedes that both the Australian Government and the community consider the offence which gave rise to the Cancellation Decision is 'very serious' within the meaning of paragraph 8.1.1(1)(a) of Direction 110.[43] This concession is made in the context of the conviction plainly being a violent offence so that it comes within the clear words of the Direction.
3. Mr Garland's involvement in the offence was described by the sentencing Judge in the following terms:

At about 9.30 pm on 29 May 2014 the complainant, [the victim], returned to his unit in [suburb] from work. He entered the unit after closing but not locking the security front door and front wooden door. > > After he turned on the TV he heard the sound of the security front door and expected to hear a knock on the front wooden door. You then entered the unit via the front wooden door. You were followed by another male intruder. > > You were both wearing balaclavas and dark clothing. As [the victim] approached you, you grabbed him by the wrists whilst the other intruder reached over your shoulder from behind and struck [the victim] on the head three times with a metal bar before [the victim] fell to the ground where he was struck on the jaw and shin. You and the other intruder left without saying anything.[44]

4. On the facts as accepted by the sentencing Judge, Mr Garland's role was clearly less violent than that of the other offender. Whilst I accept that the offence itself is very serious, I would only characterise Mr Garland's role as serious.
5. Mr Garland has three traffic convictions, all of which date back to the end of the last century. None of these offences are serious and he has not committed any further traffic offences. Whilst I accept the Minister's submission that Mr Garland has not had the opportunity to commit traffic offences since his incarceration, Mr Garland worked as a freight and tow truck driver between 1996 and his incarceration in August 2016, so he had plenty of opportunity to offend against traffic laws, but did not. I do not place any weight on the traffic offences.
6. Mr Garland has one conviction for possession of a small quantity of cannabis in January 2012, and received a fine of $200.[45] This is not a serious offence and has not been repeated. I do not regard it as having any weight.
7. The Minister contends that Mr Garland has provided false information to the Department by confessing to the crime for which his visa was cancelled, which conduct falls within paragraph 8.1.1(1)(g) of Direction 110.[46] Having accepted, as the Minister contends, that it is not open to me to reconsider the underlying factual matrix of the offending, including whether Mr Garland was a participant in the crime for which he was convicted, it seems to me that it would be unfair to draw an adverse inference from the fact that Mr Garland, in seeking to demonstrate contrition, made a confession, which contains a series of inaccurate statements, for the purposes of the Minister's consideration of his visa cancellation in 2021. Mr Garland's evidence was that he had been advised by other detainees whilst in detention that he had to make a confession, and assisted in doing so. This was plainly very poor advice. Mr Garland was convicted of the crime, did not appeal and served his full sentence without seeking parole, which speaks more of his acceptance of the conviction than any so called confession written years after the events and in very particular circumstances.
8. The Minister also points to an incident in Acacia Prison in October 2016 in which Mr Garland was apparently wrestling[47] with another prisoner prior to being transferred to Bunbury Prison for his own safety. No charge was laid in respect of this incident and given the paucity of information regarding it I do not give it any weight.
9. The only other incident the Minister points to is bad language which Mr Garland used towards detention staff on one occasion in August 2022. Nothing came of it and I do not give it any weight.
10. In my view, having regard to all the evidence, I have concluded that Mr Garland's offending which gave rise to the Cancellation Decision was serious, but in the light of his previous non-violent history and the minor nature of his other offending and conduct, it weighs only slightly against revocation.

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

1. I must also consider the risk to the Australian community should Mr Garland commit further offences.[48] This requires an assessment of the nature of the harm should Mr Garland engage in further criminal or other serious conduct,[49] and an assessment of the likelihood of Mr Garland engaging in that type of conduct.[50] There is no statutory constraint on the way I am to assess that risk, other than the requirement for me to adopt a rational and probative approach to the assessment.[51]

1. To determine the risk to the Australian community if Mr Garland committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should he reoffend.[52]
2. Mr Garland concedes that the harm that members of the Australian community if the violent crime for which he was convicted, including the home invasion aspect of the crime, if repeated could include 'psychological harm, serious physical injury, impairment or even loss of life.'[53] This is an appropriate concession to have made.
3. Whilst I also accept that there is potentially very real damage done to the community at large through any repetition of the traffic offences, given the long passage of time and the fact that Mr Garland was in a position to reoffend for 17 years whilst working as a truck driver, I do not regard this as having any weight. I have come to a similar conclusion in respect to the minor drug offence.
4. Ultimately, accepting that the home invasion crime is serious, I consider the nature of the harm which may be caused if Mr Garland reoffend in a similar manner to his past history, to be serious.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. To determine the risk to the Australian community if Mr Garland committed further offences or engaged in other serious conduct, I must also consider the likelihood of reoffending if he is permitted to remain in the Australian community.[54]
2. Mr Garland contends that he has 'displayed exemplary conduct' during his time in prison and immigration detention, despite 'stressful and trying circumstances', which he submits is a 'strong testament to the fact that the likelihood of him re-offending or being a risk to anyone is extremely low'.[55] I accept this submission despite the two incidents I have highlighted above at paragraphs 50 and 51.
3. The risk assessment for Mr Garland, undertaken in November 2016 upon his incarceration, rated him as being at high risk of reoffending:

He was assessed as being a high risk of reoffending based largely on his associations with criminal peers; namely members of the Lone Wolf and Rebels OMCG, and criminal attitudes which are accepting of violence as a means of conflict resolution and drug culture.[56]

4. There is no evidence at all that Mr Garland is or has been a patched member of any outlaw motorcycle gang. Indeed, his evidence was that he is not and never has been a member. The associations which are referred to are, apparently, that Mr Garland knows three men who are members of a motorcycle gang.

(a) The first of these, Mr C, was Mr Garland's boss at a tow truck company but left the company in around 2008 - 2009. The last time Mr Garland saw Mr C was in 2014 when they both attended the same funeral. There is no evidence to suggest that Mr C and Mr Garland continue to have any contact. > > (b) The second of these is Mr A, the former partner of Mr Garland's fiancé who shares a young adult son with her. Mr Garland knew Mr A for 10 - 15 years before Mr A joined the motorcycle gang. The last time Mr Garland saw Mr A was in Acacia Prison in 2016. There was apparently an incident in prison in late 2016 which led to Mr Garland being transferred from Acacia to Bunbury for his own protection. Mr Garland was the victim of the incident, not the aggressor. > > (c) The third of these men is Mr Garland's brother who lives in New Zealand who was a member of a motorcycle gang at some time. There is no evidence as to whether this New Zealand-based brother remains a member of the motorcycle gang or whether he is in any contact with Mr Garland.

5. The mere fact Mr Garland has known, in various capacities, three individuals who are or were members of motorcycle gangs, without more, is not sufficient in my view to suggest that he is at a moderate or high risk of reoffending as a result of these so-called 'associations'.
6. The second factor which was relied on by the assessor in prison was Mr Garland's criminal attitudes. This was not a matter on which he was cross-examined and there is no evidence regarding that. Mr Garland does not have a history of violence, other than the convictions for the single offence. Furthermore, he appears to be a gentle man who, as a result of his hearing disability, has a relatively isolated life and tends to keep himself to himself.
7. In my view, the likelihood of Mr Garland engaging in further criminal or serious conduct is very low.

Conclusion on the protection of the Australian community

1. Having regard to the nature and seriousness of the Applicant's conduct, and the risk to the Australian community should he commit further offences or engage in other similar conduct, I have concluded that that this consideration weighs only slightly against revocation.

1. There is no evidence of family violence. Consequently this consideration is irrelevant.

The strength, nature and duration of ties to Australia

1. In accordance with paragraph 8.3 of Direction 110, I must also consider the strength, nature and duration of Mr Garland's ties to Australia.
2. Mr Garland arrived in Australia in 1988 at age 16 and has spent nearly 37 years living in Australia, including having been incarcerated since August 2016.[57]
3. Mr Garland worked continuously from 1989 until his imprisonment. His working life has included time as a cleaner, then as an ore handler at BHP in Port Hedland, and from 1996 as a truck driver both in the freight and towing industries.
4. His family in Australia comprises a brother, a sister, a niece and two nephews and a cousin. All of these people are New Zealand citizens, but all have been living in Australia for very many years.
5. Mr Garland provided a number of letters of support from friends and family members, including a statement from his partner, Ms Baker, with whom he has been in a relationship since 2014 and has known since 2001.[58] They are engaged to be married.
6. Ms Baker gave evidence before me and struck me as a pragmatic, sensible and supportive woman, despite the numerous challenges her life has had. She has a son who, whilst at 22 years of age is an adult, requires some assistance with his life as a result of him having autism spectrum disorder. Ms Baker is also the carer for her elderly mother who has cancer and a neurological condition, so that she requires daily assistance. Ms Baker has moved to her mother's home, where she lives in the garage and can provide accommodation and support to Mr Garland.
7. She has maintained a close relationship with Mr Garland throughout his prison term, and in detention where she is in daily communication with him. The relationship struck me as genuine and committed.
8. Ms Baker's former husband, from whom she separated in 2012, was a patched member of an outlaw motorcycle club. She maintains some minimal contact with him as a result of them sharing a son. There is no evidence at all that she is, or ever has been, active in the club or that she maintains a relationship with her former partner other than as strictly necessary because of their shared son.
9. Mr Garland has one older brother, Karena, who lives on the Gold Coast and who describes himself as close to his brother. This brother has offered to assist Mr Garland with accommodation and employment.[59] This brother's daughter, Krystal-lee, has also written a letter of support who tells of Mr Garland being available on the phone to assist her as her only uncle in Australia.[60]
10. Mr Garland has a cousin, Mr Cruse, who works in the construction industry and has been living in Australia for over 30 years, now in Bunbury for over 18 years.[61] Mr Cruse describes how Mr Garland is respected in the Kiwi/Maori community and how he has assisted many members of that community get established in WA, including in obtaining employment. Mr Garland has provided temporary accommodation for newly arrived members of the Kiwi/Maori community and is well respected. Mr Cruse was a regular visitor to Mr Garland in Bunbury prison and maintains telephone contact with him whilst he is in detention. Mr Cruse has also offered accommodation to Mr Garland.
11. Mr Garland also has ties in the Indigenous community. Mr Mervyn Eades, a respected Noongar elder, from Ngalla Koort, says Mr Garland 'is well respected in the Indigenous community and has helped many Indigenous persons.'[62] Mr Eades also advises that Mr Garland would be able to undertake back-to-work accredited training with Ngalla Koort, obtain mentoring support, and access that organisation's pathways to employment opportunities.
12. Mr Jesse Gray-Morgan, Manager of Mainfreight, for whom Mr Garland worked prior to going to prison in 2016, describes him as:[63]

[A] reliable and hardworking employee who constantly demonstrated professionalism and dedication to his role. > > [W]ell-regarded by both management and his colleagues. He was punctual, responsible and always willing to go the extra mile to ensure his work was completed efficiently. His strong work ethic, commitment to safety, and ability to work well under pressure made him a valuable member of our team.

13. Mr Gray-Morgan says he would gladly offer Mr Garland opportunities to work in the future.
14. Mr Tom Picconi, who has known Mr Garland for over 20 years, describes a close relationship with Mr Garland, with whom he speaks most days.[64] He also offers support and accommodation.
15. Mr Ian Mitchell, a Justice of the Peace, also wrote to say he has known Mr Garland for over 20 years through work in the tow truck industry.[65] He describes Mr Garland as 'extremely professional and absolutely honest'. Mr Mitchell and his wife offer their support upon Mr Garland's release.
16. Overall, I conclude that the strength, nature and duration of Mr Garland's ties to Australia weigh strongly in favour of revocation of the Cancellation Decision.

Best interests of minor children in Australia affected by the decision

1. Mr Garland does not identify any minor children in Australia who would be affected by the decision. Consequently this consideration is irrelevant.

1. I am required to consider the expectations of the Australian community as set out in paragraph 8.5 of Direction 110. The consideration of this question, as with the others, is done against the background of the principles set out in paragraph 5.2 of Direction 110 and specifically in this case, those matters set out in paragraphs 5.2(2), 5.2(3) and 5.2(4).
2. The first sentence of paragraph 8.5(1) is a reflection of the rule of law as it applies to both citizens and non-citizens.[66] The remainder of paragraph 8.5(1) sets out the expectations of the Australian community as a norm. I accept that this deems what the expectations of the community are and so precludes me from undertaking any assessment of what, in any particular factual circumstances, the actual expectations of the Australian community might be.[67] That proposition itself is contained in paragraph 8.5(4) of Direction 110. The utility of this approach by Government in order to assist decision-makers is obvious.
3. Paragraph 8.5(2) also provides guidance by saying:

Non-revocation of the mandatory cancellation of a visa 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... continue to hold a visa.

4. Mr Garland's offences are not, in my view, of a nature that it comes within paragraph 8.5(2) of Direction 110.
5. I have dealt with the risk to the community if Mr Garland were to reoffend earlier in my reasons. I came to the view that Mr Garland only poses a low risk to the Australian community.
6. In this case whilst the safety of the Australian community is always of the utmost importance, Mr Garland's one serious conviction, for an offence which was committed over a decade ago and for which he has served his entire prison term, without seeking parole, combined with his exemplary conduct in prison, is not of a nature which would cause me to consider that it should disqualify him from continuing to live in Australia.
7. I therefore find that the expectations of the Australian community weigh only slightly against revocation.

Legal consequences of decision under section 501 or 501CA

1. I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[68] There are no relevant non-refoulment obligations.
2. This consideration also makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision. These legal consequences include:

(a) the Applicant's unlawful status;

(b) becoming subject to detention and/or removal, pursuant to sections 189, 196, 197C and 198 of the Act;

(c) the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;

(d) a prohibition on applying for other visas, pursuant to section 501E of the Act; and

(e) periods of exclusion and special return criteria may apply, pursuant to section 503 of the Act and special return criteria 5001 of the Migration Regulations 1994 (Cth).

1. Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[69] Under s 189 of the Act, Mr Garland was required to be detained and removed as soon as reasonably practicable under s 198.[70] At the time of the hearing Mr Garland was in immigration detention and had been since his release from prison in 2021.
2. I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of section 501. However, in my view the consequences of liability for removal on an individual applicant should not be ignored, irrespective of them being intended by the Parliament.[71] It is worth noting that the Parliament has not evinced any preference as to the outcome of a review like this one, and a positive outcome of the review will of course avoid the adverse consequences of the legislative scheme.[72]
3. If deported, Mr Garland would be excluded from Australia for an indefinite period which would mean that he is effectively exiled from his family, and in particular his fiancé. Given the strength these ties, this will plainly be as very significant loss for him, and for them.
4. The Minister accepts that Mr Garland's ties to Australia, built over 37 years of residency from quite a young age, weigh in favour of revocation.
5. I find that this consideration carries moderate weight in favour of revocation of the Cancellation Decision.

1. Paragraph 9.2 of Direction 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraph 9.2(1) are:

(a) the applicant's age and health; > > (b) whether there are substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to the Applicant in their country.

2. This applicant is a citizen of New Zealand, aged 53 who has lived in Australia since he was aged 16 years. He has a hearing disability that has plainly impacted his life to date and will undoubtedly impact his future. He now wears hearing aids that are fit for purpose and provide him with the necessary assistance for his daily life.
3. The Minister submits that Mr Garland will likely face some emotional hardship if he is deported. However, he submits that the impediments he will face are unlikely to be insurmountable, given that he is a citizen of New Zealand[73] all the usual health, social and economic services available to citizens of New Zealand would be available to him. Whilst that is correct to an extent, Mr Garland will plainly have difficulties in New Zealand reintegrating into a country which he left in 1988 and to which he has few real ties.
4. I have concluded that the extent of impediments to be faced by Mr Garland if he is removed weighs moderately in favour of revocation.

1. There is no evidence that any business interests would be affected by this decision. Consequently, this consideration is irrelevant.

1. I have found that Mr Garland does not pass the character test under s 501 of the Act.
2. I have therefore considered if there is another reason why the Cancellation Decision should be revoked, giving regard to the considerations set out in Direction 110, and weighing the various considerations in accordance with paragraph 7 of the Direction, and in accordance with the authorities which bind my decision making.
3. In determining the weight to be applied to each individual consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and according to the guidance provided by Direction 110.
4. Of the primary considerations, I find:

(a) the protection of the Australian community and the expectations of the Australian community both weigh only slightly against revocation and should only be given slight weight in the circumstances; > > (b) Mr Garland's ties to Australia weighs strongly in favour of revocation, and should be given significant weight in the circumstances; and > > (c) family violence and the best interests of minor children are not relevant to my decision.

5. In relation to those other considerations which are relevant, I find:

(a) the legal consequences of the decision weighs moderately in favour of revocation in Mr Garland's case; and > > (b) the extent of impediments if removed weighs moderately in favour of revoking the cancellation of Mr Garland's visa.

6. Paragraph 7(2) of Direction 110 states that primary considerations should generally be given greater weight than the other considerations. It also provides that the protection of the Australian community is generally to be given greater weight than the other primary considerations.
7. I have weighed the considerations in favour of the revocation of the cancellation of Mr Garland's visa and the considerations against revocation. I conclude that the primary considerations of protection of the Australian community and the expectations of the Australian community do not outweigh those considerations which weigh in favour of revocation. Those latter considerations being the strength, nature and duration of Mr Garland's ties to Australia, the legal consequences of non-revocation of the Cancellation Decision, and the extent of impediments he will face if Mr Garland is removed. I am therefore satisfied that there is 'another reason' why the Cancellation Decision should be revoked.

1. The decision of the delegate of the Minister dated 6 April 2022 not to revoke the cancellation of the Applicant's Special Category (Class TY) (subclass 444) visa under section 501CA(4) is set aside and substituted with a decision that the cancellation of the Applicant's visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Clare Thompson SC

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

[1] Section 111(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act); paragraph 5.12 of the Administrative Review Tribunal, Migration, Protection and Character Practice Direction, 21 May 2025.

[12] Mr Garland made an application to the Administrative Appeals Tribunal (AAT). On 14 October 2024, the new Administrative Review Tribunal (ART) replaced the AAT and all matters which were before the AAT were transferred to the ART: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Schedule 16 Part 5 section 24. References to the Tribunal in this decision refer to the AAT prior to 14 October 2024, and the ART from that date.

[13] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

[14] Paragraph 8.1.1(1)(b)(ii) of Direction 90.

[15] Paragraph 8.4(2)(c) of Direction 90.

[17] Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022 (Garland AAT).

[19] Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 247 (Garland FCA).

[20] Garland v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 476; [2023] FCAFC 144 (Garland FCAFC).

[22] (2024) 280 CLR 321; (2024) 418 ALR 152; (2024) 98 ALJR 610; [2024] HCA 12.

[24] During oral evidence Mr Garland corrected paragraph [29] of his statement from noting that he is 'about 178 cm tall' to 'about 183 cm tall'.

[26] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 [66].

[27] [2024] HCA 12; (2024) 280 CLR 321 at [16].

[28] Now [8.5(2)(c)] of Direction 110.

[35] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 [63].

[36] Applicant's SFIC at [119] - [133].

[37] See the discussion in Luu v Minister for Immigration and Multicultural Affairs (1998) FCA 1021; (1998) FCR 304 at 316ff. See too: HZCP v Minister for Immigration and Border Protection [FCAFC 202; [2019] FCAFC 202; (2019) 273 FCR 121; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234.

[38] See also Direction 110 at [8(1)].

[39] Paragraph 8.1(1) of Direction 110.

[40] Paragraph 8.1.1(1)(a) of Direction 110.

[41] Paragraph 8.1.1(1)(b) of Direction 110.

[42] Paragraph 8.1.1(1)(a)-(b) Direction 110.

[47] Exhibit R1, RB02, 112. I note the wording used in the incident report was 'fighting' but it appears on reading the event that this was more akin to wrestling than fighting and there is no suggestion of punches being thrown.

[49] Paragraph 8.1.2(2)(a) of Direction 110.

[50] Paragraph 8.1.2(2)(b) of Direction 110.

[51] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].

[52] Paragraph 8.1.2(2)(a) of Direction 110.

[54] Paragraph 8.1.2(2)(b) of Direction 110.

[55] Applicant's SFIC at [192] - [193].

[66] FYBR v Minister for Home Affairs [2019] FCAFC 185 [69]-[70].

[70] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant's detention had at all times been lawful at [112]-[122].

[71] Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.

[72] Stoneley v Minister for Immigration & Multicultural Affairs [2025] FCA 143 at [36].