....................[SGD].....................

MIGRATION - Class BB Subclass 155 Five Year Resident Return visa cancellation - failure to pass good character test - whether there is another reason to set aside the visa cancellation - convicted of Attempt to possess prohibited drugs with Intent to Sell or Supply - Indonesian citizen- Ministerial Direction No. 110

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Regulations 1994 (Cth)

Misuse of Drugs Act 1981 (WA)

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56

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

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126

Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461

Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153

Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; (1997) 73 FCR 187

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs [2022] HCA 26

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545

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

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531

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)

1. Mr Gautama seeks review of the Minister's (the Minister or the Respondent) delegate's 22 April 2025 decision (the reviewable decision) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the 20 May 2020 decision (the cancellation decision) to cancel his Class BB Subclass 155 Five Year Resident Return visa (the Visa).[1][2]
2. On 28 April 2025, Mr Gautama applied to the Tribunal for a review of the reviewable decision.[3]
3. The Tribunal heard the matter in Brisbane on 1 July 2025. Mr Gautama represented himself. Ms Wilson of Minter Ellison Lawyers represented the Respondent.
4. This was an expedited matter. On 14 July 2025, the Tribunal met its obligation[4] by providing its decision and reasons.[5]

1. Mr Gautama is a thirty-nine-year-old[6] Indonesian citizen.
2. He first arrived in Australia with his mother and brother in 2000 when he was approximately fourteen.[7] The family went back to Indonesia at some point in 2001 and returned to Australia in 2003, when the applicant was seventeen old. He has resided in Australia for approximately twenty-two years.[8]
3. The Respondent noted its acceptance that Mr Gautama spent approximately two of his formative years in Australia.[9]

On 8 October 2019 Her Honour Judge Davis of the District Court of Western Australia convicted Mr Gautama of the charge of Attempt to possess prohibited drugs with Intent to Sell or Supply. The judge sentenced Mr Gautama to five years and six months' imprisonment against a maximum possible penalty of life imprisonment[10], (the Index Offence).[11] Mr Gautama has also been convicted or charged with other criminal offences (the Offending Record) which are addressed below.

1. The Tribunal's jurisdiction comes from s 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act.
2. Under s 501CA of the Act, the Respondent may revoke a visa cancellation decision if:

(a) representations have been made by the person in accordance with the invitation;[12] and > > (b) the Respondent is satisfied that: > > > (i) the person passes the character test;[13] or > > > > (ii) there is another reason why the original decision should be revoked.[14]

3. The Tribunal is satisfied that Mr Gautama made the representations required by s 501CA(4).[15]

1. The Respondent's delegate cancelled Mr Gautama's Visa on the basis that he had failed the character test because of his criminal record and sentencing.[16],[17],[18]
2. The Tribunal is satisfied, based on its own evaluation of Mr Gautama's criminal record and sentencing that he does not pass the character test.[19]
3. Section 501CA(4) of the Act is a discretionary power. The Minister or their delegate may revoke the cancellation if they are satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. The Tribunal's task in this matter is the latter question.[20]
4. When deciding whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to comply with Direction 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[21]
5. The Tribunal can choose how to conduct its procedures. It can be informal and less technical as long as it fairly considers the matters at hand. [22] Section 52 of the ART Act says that the Tribunal does not have to follow the rules of evidence. Instead, it can decide how to gather information in a way it finds suitable.
6. Paragraph 5.2[23] sets out principles that provide a framework within which the Tribunal should approach its task.[24]
7. Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other Considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. Primary Consideration 1 is generally to be given greater weight than other primary considerations. 8. Paragraph 8 identifies the Primary Considerations. Paragraph 9(1) sets out a non-exhaustive list of Other Considerations. 9. The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter's context affects this weighting.[25] The individual and cumulative weighing process is a matter for individual decision‑maker exercising the relevant power under the Act.[26]

1. The Tribunal received written evidence during the hearing. The exhibit register is attached to this Decision and marked 'Annexure A'.
2. Both parties' Statement of Facts, Issues and Contentions (SFICs)[27] are referenced within Annexure A and the Tribunal has considered these.
3. The Tribunal heard testimony from Mr Gautama.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

1. The Direction states that, for Primary Consideration 1, the Tribunal must remember that the Australian community's safety is the Government's priority. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence.
2. The Tribunal has considered the nature and seriousness of Mr Gautama's conduct to date and assessed the relevant evidence and contentions.
3. Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to consider two limbs of inquiry:

(a) the nature and seriousness of the non-citizen's conduct to date; and > > (b) the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.

Paragraph 8.1.1: The Nature and Seriousness of Mr Gautama's Conduct to Date

1. Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (i)) for the Tribunal to assess. The Tribunal, where relevant, must consider these when considering the nature and seriousness of Mr Gautama's criminal offending or other conduct to date.
2. The Index Offences are described in the sentencing judge's reasons.[28]
3. Mr Gautama's Offending Record includes possessing drug paraphernalia and possessing a prohibited drug.[29]
4. The Tribunal's understanding of Ms Wilson's contentions about this element of Primary Consideration 1 can be summarised as follows:[30]

(a) The Respondent contends this consideration weighs heavily against revocation due to the serious nature of Mr Gautama's offending and the risk of future harm. > > (b) Mr Gautama planned to undertake drug distribution as a commercial venture, attempting to possess 238 grams of methylamphetamine with 78% purity ordered through the Dark Web.[31] > > (c) The Respondent emphasises Mr Gautama's expressed desire to become a full-time drug dealer and argues that his longstanding substance abuse raises significant concerns about relapse and reoffending. > > (d) The Respondent questions Mr Gautama's remorse, noting his statement "By truth I say that I, did not do it"[32] and argues he has not participated in rehabilitation programs.

5. Mr Gautama's contentions here, as understood by the Tribunal, are:

(a) Mr Gautama submitted that his Index Offence does not meet any of the enumerated offending set out in Paragraphs 8.1.1(1)(a) or (b) and consequently the Tribunal should find that his offending was neither very serious nor serious.[33] > > (b) One part of Mr Gautama's argument, as the Tribunal understands it, is that he only browsing the 'Dark Web' and 'chatting' to other users. He claimed that a 'miscommunication' resulted in him ordering 238 grams of 78% purity methamphetamine.[34] He said that he had never paid for the methamphetamine and had only given the other party his name and physical address.[35] > > (c) During examination-in-chief, he affirmed his extant statements.[36] > > (a) The context in which he committed the Index Offence was that he was working as a fly-in/fly-out worker, was a recreational methamphetamine user and associated with people who were using drugs and selling drugs.[37] > > (b) He claimed the first he knew of the drugs was arriving home from work and finding that a package had been delivered.[38] > > (c) He admitted to using the messaging application Wickr to discuss buying drugs, although he later said that he did not remember discussing prices and payment.[39] > > (d) He admitted to telling a court-appointed psychologist that he wanted to earn a living selling drugs.[40] He subsequently said that he wanted to sell drugs and that if that could support his family by doing so, he would.[41] > > (e) He said he did not know that methamphetamine comes with an increased risk of addiction and psychosis, or that supplying drugs could harm other people. He also said that he was not aware that his attempt to deal drugs could contribute to the drug trade.[42] > > (f) In cross-examination, he emphasised that his offending was not very serious, that it was an attempt to possess drugs and that he did not accept that it was serious offending. > > (g) When challenged about his review application where he wrote "By truth I say that I, did not do it",[43] he said that it was a miscommunication and that he did not understand the question or its purpose. > > (h) In cross-examination, he admitted to starting to use cannabis when he was fifteen and methamphetamine when he was twenty-seven. He did not consider himself to be a longstanding methamphetamine user, describing his drug use as recreational.[44] > > (i) In cross-examination, he also initially said that he did not consider his drug use to be problematic but then conceded that it was problematic. He stated that he did not want to go back to jail.

The Tribunal's consideration: The nature and seriousness of Mr Gautama's conduct

1. When assessing the nature and seriousness of Mr Gautama's criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
   • Whether Mr Gautama's criminal offending and conduct to date belongs within the enumerated types of crimes or conduct viewed either very seriously or seriously by the Australian government and the Australian community;[45]
   • the sentences imposed for his criminal offending subject to the stated exceptions;[46]
   • the frequency of his offending and any trend of increasing seriousness;[47] and
   • the cumulative effect of his repeated offending.[48]
2. Assessing Paragraphs 8.1.1(1)(a) and (b), the Tribunal considers that his Index Offence is not included in the enumerated offence types classified as very serious or serious.
3. However, the Tribunal, differently constituted, has previously recognised that drugs "cause real and serious harm to the Australian community".[49] Additionally, the imposition of a custodial imprisonment must be viewed as a reflection of the Index Offence's objective seriousness, as recognised in paragraph 8.1.1(1)(c) of Direction 110 and confirmed by Senior Member Tavoularis in Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
4. Paragraphs 8.1.1(1)(a) and (b) both state "without limiting the range of conduct". This implies that types of offending other than those enumerated may be considered as either very serious or serious in terms of the Direction.
5. The sentencing judge observed:[50]

"... it has to be immediate imprisonment and the reason why is because methylamphetamine is such a destructive and addictive drug. It really does lead to misery for addicts and their families. It also does lead to most of the criminal offences we see in the courts before this State. It really is a scourge on our society."

1. Considering the sentencing judge's comments, no limitation on the enumerated offending in Paragraphs 8.1.1(1)(a) and (b) and the custodial sentence, the Tribunal finds that Mr Gautama's Index Offence, based on the seeking of commercial gain as the sentencing judge found[51], can be assessed to be very serious.
2. Addressing Paragraph 8.1.1(1)(c), his five year and six month sentence can be characterised as falling in the middle of the scale in terms of severity as the maximum sentence is life imprisonment.
3. Applying Paragraphs 8.1.1(1)(e) and (f), the Tribunal considers that Mr Gautama's singular Index Offence cannot be described as frequent, nor possessing any trend of increasing seriousness or cumulative effect.

The Tribunal's findings: The nature and seriousness of Mr Gautama's conduct.

1. Having regard for the framework principles at Paragraph 5.2 of the Direction and the relevant and applicable aspects of Paragraph 8.1.1 referred to above, the Tribunal finds that Mr Gautama's Index Offence should be characterised as very serious.

Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. When assessing Paragraph 8.1.2(1) and(2)(a) and (b)'s requirements, decision-makers must recognise that the Australian community's willingness to accept future risk diminishes proportionally as the gravity of potential harm escalates, with certain conduct being so severe that any possibility of recurrence may constitute an intolerable risk.
2. The evaluation of the risk posed by a non-citizen re-offending requires cumulative consideration of both the potential consequences should the individual commit further criminal or serious misconduct, and the probability of such future offending occurring, which must be determined by examining available evidence regarding reoffending likelihood and demonstrated rehabilitation progress at the time of decision-making, with particular weight given to community-based behaviour since the most recent offence, while ensuring that the Tribunal's decisions are not postponed to allow completion of rehabilitative programs.
3. Mr Gautama's contentions on his risk of re-offending as the Tribunal understands them are:[52]

(a) He admitted not undertaking any organised rehabilitation or attending counselling.[53] > > (b) In cross-examination he claimed that rehabilitation was not recommended to him. > > (c) He said that he did not intend to use the 'Dark Web' again.[54] > > (d) He equivocated as to whether he accepted his conviction for the Index Offence.[55] > > (e) He stated that he considers himself to be of good character and is not a significant re-offending risk.[56] > > (f) In cross-examination, he said that he does not consider his past use of methamphetamine to be problematic and is not currently using drugs.[57] > > (g) He admitted to using drugs while on bail for the Index Offence.[58] > > (h) He denied that his social network contributed to his drug use.[59] > > (i) When asked what his plans are to avoid drug use if released back to the Australian community, he said that his plan was to "Just not do it."[60] > > (j) He accepted Ms Wilson's suggestion that browsing the Dark Web is an example of poor decision making on his part.[61]

4. Summarising Ms Wilson's contentions here as the Tribunal sees them:[62]

(a) The Respondent contends this consideration weighs heavily against revocation due to the serious nature of Mr Gautama's offending and the risk of future harm.

(b) Mr Gautama planned to undertake drug distribution as a commercial venture, attempting to possess 238 grams of methylamphetamine with 78% purity ordered through the Dark Web.

(c) The Respondent emphasises Mr Gautama's expressed desire to become a full-time drug dealer and argues that his longstanding substance abuse raises significant concerns about relapse and reoffending.

(d) The Respondent questions Mr Gautama's remorse, noting his statement "By truth I say that I, did not do it" and argues he has not participated in rehabilitation programs.

The Tribunal's finding: The nature of the harm to individuals or the Australian community were Mr Gautama to engage in further criminal or other serious conduct

1. The Tribunal's evaluation of the evidence about Mr Gautama's Index Offence and Offending Record, combined with Mr Gautama's and Ms Wilson's submissions as summarised above, leads it to find that he may cause serious physical, financial and psychological harm to members of the Australian community if he re-offends in future like he did in his Index Offences.

The Tribunal's consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct

1. Assessing the likelihood or risk, and their attendant consequences, of Mr Gautama engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the documentary and oral evidence before it.
2. Both superior courts and the Tribunal have extensively considered the issues surrounding the assessment of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn.[63]
3. To start, the Tribunal notes that the relevant threshold is whether there is 'a' risk.[64]
4. This assessment requires a 'future‑focused assessment'[65] of the risk an applicant poses should they reoffend, taking into consideration the nature of any harm and its probability.
5. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[66] the High Court held that past actions are legitimate but qualified predictors of future behaviour. The majority observed that past events 'are not a certain guide' and, depending on circumstances, the probability of an event occurring could be so low as to be 'safely disregarded', or at the other extreme 'may border on certainty'.[67] The majority also observed there are several factors in making such evaluations, and that it is 'ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events'.[68]
6. The Tribunal must determine the realistic level of risk posed by Mr Gautama as at the time of its decision,[69] with the question being "how serious the risk [is], or whether the risk should be "tolerated"'[70], to the extent that it could be considered an unacceptable risk.[71]
7. When assessing whether Mr Gautama poses more than a minimal or trivial likelihood of risk, the Tribunal must consider all available information and evidence pertaining to his risk of re-offending and the rehabilitation achieved[72], recognising that the Australian community may accept some risk associated with non-citizens holding visas. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs[73], the community's tolerance is qualified where the degree of acceptable risk is inversely related to both the likelihood of re-offending and the type of possible harm that could be caused by such further offending.
8. The Tribunal's consideration of the risk or likelihood of Mr Gautama engaging in further criminal or serious conduct will involve assessing the factors that:

(a) facilitate the risk; or, > > (b) conversely, hinder or retard the risk.

9. Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer's question in Murphy as to 'whether the risk should be "tolerated"' by the Australian community or whether Mr Gautama's offending and the harm it could have caused, if successfully repeated, is so serious that any risk of repetition is unacceptable.[74]

The factors that facilitate the risk of re-offending.

1. Mr Gautama's oral evidence in cross-examination and the sentencing decision[75] support a finding that Mr Gautama wanted to earn a living selling drugs. There was no clear countervailing evidence removing financial gain as a factor that could facilitate the risk of him re-offending.
2. Based on the evidence, the Tribunal considers that Mr Gautama's personal attitude to drug use, his desire to make money from drugs, poor decision-making and his social network and relationships have contributed to his offending and are factors that increase the risk that he may re-offend.
3. The pre-sentencing psychological report appears to be equivocal and does not provide an assessment of whether Mr Gautama presents as either a low or a high risk of re-offending.[76]
4. The separate pre-sentencing report[77] states that Mr Gautama:

"appeared to have little concern towards the scourge methyl amphetamine represents for the broader community and did not offer any expressions of regret toward the impact his offending behaviour may have had for others."

1. While Mr Gautama's oral evidence offered a more nuanced view of his acceptance of responsibility and ownership for his offending, it was not dispositive.

The factors that hinder or reduce the risk of re-offending - Rehabilitation, remorse and other factors

1. There is no evidence before the Tribunal of Mr Gautama undertaking any organised or formal rehabilitation or counselling or drug intervention programs. This is despite the sentencing judge observing that he was motivated to rehabilitate himself. [78]
2. Mr Gautama's mother and brother may constitute a risk management factor, but if so, it is a static one that did nothing to stop him offending and based on the sentencing decision, may have been a factor in the Index Offence as he wanted funds to support them.
3. His future plans if released into the community involve seeking FIFO work which may constitute a dynamic risk management factor given the prevalence of workplace drug testing in FIFO roles.

The Tribunal's Risk Analysis and Consideration

1. The Tribunal has evaluated the evidence above, especially the factors that appear to have contributed to Mr Gautama's offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
2. It has applied Guo in its evaluation_,_ acknowledging how past events help predict the future depends on:

(a) how likely those events happened, > > (b) how often they occurred, > > (c) the conditions surrounding them, and > > (d) the chance that new events could change the usual pattern.

3. Conducting this evaluation, the Tribunal notes that the Index Offence appears only to have happened once, but the conditions such as Mr Gautama's need for commercial gain make it likely that he may re-offend in a similar manner if he needs money in future. There was no evidence of new events, such as rehabilitation, to qualify this likelihood.
4. In deciding if Mr Gautama might re-offend, the Tribunal also considered his Index Offence, his qualified expressions of remorse and accepting responsibility, the lack of risk management factors and the factors that helped facilitate his offending. It also assessed the degree to which the consequences of any future re-offending like his Index Offence could be unacceptable to the Australian community.

The Tribunal's finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. The Tribunal finds that a risk exists to the Australian community should Mr Gautama commit further offences or engage in other serious conduct.
2. The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers that this re-offending risk to be material and substantial.
3. The Tribunal finds that the combination of a material and substantial risk of re-offending and the likelihood of causing serious harm when re-offending weighs heavily in favour of affirming the reviewable decision. The adverse consequences if Mr Gautama were to re-offend in the same manner as the Index Offence are substantial. As a consequence, the Australian community's tolerance for such re-offending is likely negligible. The Tribunal finds that the combination of the risk of re-offending, the type of harm resulting from re-offending, Mr Gautama's limited rehabilitation and his existing protective factors combine to produce a risk that is not tolerable.

Conclusion: Primary consideration 1: Protection of the Australian community

1. The Tribunal finds Mr Gautama's Index Offence is very serious. Future offences like his could harm the Australian community. The chance of him re-offending is material. Given the assessed nature of the Index Offences and his Offending Record, the Tribunal considers, based on its findings, that the combination of the material risk of repeating these actions combined with the consequential likely harm is unacceptable.
2. The Tribunal further finds that, in its totality, this consideration weighs strongly in favour of affirming the reviewable decision.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

1. This is a neutral consideration as there is no evidence Mr Gautama has engaged in family violence.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA**

1. Primary Consideration 3 directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Gautama's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
2. The Tribunal must also consider the strength, nature and duration of any other ties that Mr Gautama has to the Australian community, having regard to:[79]

(e) how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that: > > > (i) less weight should be given where the Applicant 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 > > (f) 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.

3. As the Tribunal understands them, Mr Gautama contends:[80]

(a) He came to Australia to undertake a Year 10 education, went back to Indonesia and returned to Australia in 2003.[81] He undertook further education and grew up in Perth. > > (b) His immediate family consists of his mother and his younger brother.[82] > > (c) He has two aunts, an uncle and two cousins in Australia.[83] > > (d) He affirmed his written evidence[84] that he had volunteered to assist with Indonesian - Australian community events.[85] > > (e) He has a grandmother and a nephew in Indonesia.[86] > > (f) His younger brother suffers from a mental health issue. He receives a disability pension. Mr Gautama's mother and a disability worker help support the younger brother, but he can live independently to an extent.[87] He does not work. Mr Gautama is not aware of any diagnosis about his brother's issue.[88] Mr Gautama is concerned at how isolated his brother is. > > (g) He agreed that his absence while in prison had not affected support being provided to his brother.[89] He agreed that he communicated with his brother by telephone and video while he was in detention.[90] He was guarded about maintaining contact in the same way if removed to Indonesia.[91] > > (h) Mr Gautama has social and work friends but did not wish to name anyone or provide how many friends he had.[92]

4. The Tribunal summarises Ms Wilson's contentions on this consideration as follows:[93]

(a) The Respondent accepts this factor weighs in favour of revocation but argues the weight should be limited. > > (b) Mr Gautama has resided in Australia for approximately twenty-two years since age 14, has immediate family members (mother and brother) in Australia, and claims to have made positive contributions through cultural participation and paid employment. > > (c) Mr Gautama suggests he has made some positive contributions to the Australian community by way of participation in Indonesian cultural events and employment.[94] However, there is no independent evidence to corroborate the nature and extent of his employment or community involvement.

1. The Tribunal now considers these contentions and the evidence, including the letters of support referenced above, in terms of each subparagraph of Paragraph 8.3. In doing so it benefited from an agreed schedule identifying Mr Gautama's immediate family (including any minor children)[95], extended family and social and work contacts. These people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[96]
2. In evaluating references from family members and friends, the Tribunal is conscious that they can often be framed in the best possible light for an applicant regarding the latter's offending, while other members of Australian society might consider the offending unacceptable. Care must be taken about the weight placed on references from family members and friends.
3. Mr Gautama arrived in Australia in 2000, stayed a year, went back to Indonesia and then returned to Australia in 2003. He has resided here since then.
4. The Tribunal finds that:

(a) Mr Gautama spent approximately three of his formative years in total in Australia. > > (b) He did not begin offending soon after arriving in Australia.[97] > > (c) He has made some positive contributions as a volunteer to the Australian community.[98] > > (d) He has made positive contributions in paid employment as a trades assistant to the Australian community.[99] > > (e) His immediate family consists of his mother and younger brother. He has a network of friends but declined to identify them.

5. Based on its consideration and findings against this Primary Consideration, the Tribunal finds that affirming the reviewable decision would adversely impact his mother and brother[100] with whom Mr Gautama is close.[101] They are likely to be saddened and suffer emotional disquiet and possibly some loss of support if he is removed. Given the evidence before the Tribunal, this Primary Consideration weighs moderately in favour of setting the reviewable decision aside.

Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.

1. The Tribunal gives this Primary Consideration moderate weight towards setting the reviewable decision aside.

PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.**

1. This is a neutral consideration as no minor children would be affected by the decision.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY**

1. Paragraph 8.5(1) is a deeming provision. It relies on Paragraph 8.5(4) and sets a community standard for the outcomes of serious behaviour or an unacceptable risk of such behaviour.
2. Paragraph 8.5(2) extends the threshold to certain specified types of conduct.
3. Paragraph 8.5(3) states that the Australian community's expectations apply even if the non-citizen does not pose a clear risk of physical harm to the community.
4. Paragraph 8.5(4) aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 ("FYBR"). FYBR explains that the 'deemed community expectation' usually leads to visa cancellation. However, it also states that the decision-maker must decide if acting on this expectation is appropriate in each case.[102] [103]
5. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 417 ALR 36, the High Court clarified that when assessing this Primary Consideration, the Tribunal is not required to attribute knowledge of an applicant's personal circumstances to the hypothetical Australian community. Instead, the Tribunal must instead apply the Australian Government's views as articulated as a norm described in Paragraph 8.5(1) without independently assessing community expectations in a particular case and then weigh its finding against other relevant matters as required by the Direction's balancing framework.
6. Observing Paragraph 8.5's norm, the Tribunal has also considered the guidance informed by the principles set out in Paragraphs 5.2(1) to (8) of the Direction.

1. Mr Gautama's Visa was not a temporary visa with limited stay conditions. Subparagraph 5.2(5)'s low tolerance does not apply as a result. [104]
2. The Tribunal has summarised Mr Gautama's contentions as follows:[105]

(a) Since Australia may afford a higher level of tolerance of criminal or other serious conduct for non-citizens like me, who have lived in the Australia community from a very young age. Then, I am part of the entitlement to a decision to revoke the visa cancellation.

3. Summarising Ms Wilson's arguments as the Tribunal understands them:[106]

(a) The Respondent contends this consideration weighs heavily against revocation, arguing that the Australian community expects persons who commit serious criminal offences should not continue to hold visas, regardless of whether they pose measurable risk of physical harm.

1. First arriving in Australia in 2000 and again in 2003, Mr Gautama has resided here for an approximate total of twenty three years. The length of this period of time engages Paragraph 5.2(6)'s higher tolerance.
2. The Tribunal has also found Mr Gautama's Index Offences to be very serious. These findings balance and militate against Paragraph 5.2(6)'s higher tolerance acknowledged above. Paragraph 8.5(2) states that the Australian community expects the Australian government should cancel the visas of non-citizens involved in very serious conduct.[107]
3. The Tribunal is satisfied that Mr Gautama has breached the Australian community's expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community expects the Australian Government not to allow him to remain in Australia. This expectation is not reduced by the tolerances assessed above.
4. The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.

Conclusion: Primary consideration 5: Expectations of the Australian community

1. This consideration weighs in favour of affirming the reviewable decision.

1. The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.

OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION

1. Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
2. A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:

(a) Their status in Australia is unlawful.

(b) They are subject to being detained or removed.

(c) Any other visas they hold or any visa applications they have made are cancelled or refused.

(d) They are prohibited from applying for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[108]

(e) Periods of exclusion from Australia and special return criteria may apply.

(a) The Respondent accepts the Tribunal must consider that affirming the decision will result in Mr Gautama remaining unlawful, being liable for removal, and being unable to apply for most future visas. However, the Respondent argues these consequences should be afforded neutral weight as removal and exclusion are the statutory scheme's intended purposes.

2. Mr Gautama made no specific contentions on this consideration.

1. After evaluating the above, the Tribunal finds that this Other Consideration carries moderate weight in favour of setting the reviewable decision aside.

OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED

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

(a) The non-citizen's age and health;

(b) Whether there are substantial language or cultural barriers; and

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

1. Summarising Ms Wilson's contentions as the Tribunal apprehends them:[110]

(a) The Respondent acknowledges Mr Gautama may face some practical, financial and emotional hardship upon return to Indonesia, particularly regarding substance abuse treatment. However, the Respondent argues any impediments will be limited long-term, noting Mr Gautama has cultural connections to Indonesia, transferable work skills, and family support through his grandmother who resides there.

2. Summarising Mr Gautama's contentions as the Tribunal understands them:[111]

(a) In his oral evidence he stated that both his physical and mental health were good. He was not under any prescriptions.[112] > > (b) He thinks that his problems if removed to Indonesia would involve earning money, finding work, starting over and lacking support. He would likely live in Jakarta. He can speak Bahasa Indonesian.[113] > > (c) He said that he did not speak regularly with friends in Indonesia and stated that they did not know about his current situation.[114] > > (d) He said that he had no formal qualifications but could work as a trades assistant after his experience with qualified tradespeople. He has also worked on a manufacturing line.[115] He was concerned about not knowing what working conditions are like in Indonesia.[116] > > (e) He said that he was familiar to an extent with Indonesian culture, food and language.[117] > > (f) In jail he has worked in the kitchen and as a cleaner.[118] > > (g) He stated that his family would experience difficulty if he is removed to Indonesia but acknowledged that he has effectively been separated from them since 2019, staying in touch by telephone and jail visits.[119] > > (h) He said that he expected the difficulty his family would experience if he is removed would still remain as "We need each other to be together".[120]

1. The Tribunal must assess and consider the extent of any impediments that Mr Gautama will face in establishing and maintaining basic living standards if removed from Australia.
2. The phrase "(in the context of what is generally available to other citizens of that country)" in Paragraph 9.2(1) is of significance because it establishes the measure by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision. As both parties have contended that at the time of this decision Indonesia is the most likely destination that Mr Gautama may be sent to, the Tribunal will compare Australia and Indonesia for this consideration's purposes.

Subparagraph 9.2(1)(a) - the non-citizen's age and health

1. Mr Gautama is thirty-nine.
2. The Tribunal considers, based partly on its evaluation of Primary Consideration 3, that Mr Gautama likely faces a loss of some emotional support due to separation from his immediate family if he is removed to Indonesia.

Subparagraph 9.2(1)(b) - any substantial language or cultural barriers

1. The Tribunal considers that Mr Gautama, based on his oral evidence, would not face significant linguistic difficulties if he is sent to Indonesia.
2. The Tribunal does not consider that Mr Gautama will face cultural issues if he is removed to Indonesia.

Subparagraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country

1. The evidence[121] and contentions before the Tribunal indicates that Mr Gautama will likely have relatively less social, medical and economic support in Indonesia than in Australia. Consequently, the Tribunal considers that Mr Gautama may be confronted by impediments in maintaining basic living standards if removed to Indonesia.

1. The Tribunal has considered above the extent of any impediments that Mr Gautama, if removed from Australia to Indonesia, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
2. Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely, if Mr Gautama is removed from Australia, that he would face some emotional and practical hardship. He is likely to face short-term difficulties in establishing social, medical and economic support - difficulties that may be exacerbated by a lack of an extensive support network. He is unlikely to face cultural or language barriers.
3. The Tribunal finds that this Other Consideration carries weight in favour of setting aside the reviewable decision.

OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS

1. There is no evidence and testimony before the Tribunal enlivening this consideration. The Respondent contends that it carries neutral weight.

1. The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1)).[122]
2. Mr Gautama contended that s 201 of the Act and what he termed the "10-year rule"[123] prevented his removal from Australia as he had been lawfully resident in Australia for ten years or more.
3. In response, Ms Wilson contended that this interpretation was essentially incorrect, that s 201 does not apply to visa cancellations, that Mr Gautama's time in Australia is only relevant to Primary Considerations 3 and 5 and that consequentially this additional consideration has no weight.
4. The Tribunal considered s 201 and concludes that it is not applicable in this matter. This additional consideration has no weight.

1. The statutory framework poses two issues for the Tribunal to address:

(a) character test: whether there is a reasonable suspicion that Mr Gautama does not pass the character test in terms of s 501(6)(b), and whether Mr Gautama satisfies the Tribunal that he passes the character test,[124] and, if not,

(b) exercise of discretion: whether there is another reason whether the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.

1. The Tribunal was satisfied that Mr Gautama did not pass the character test.
2. The Tribunal has applied the Direction to this matter's specific circumstances in determining whether there is 'another reason' to set aside the reviewable decision.
3. The Tribunal assessed the evidence against Primary Consideration 1 and found that Mr Gautama's offending is very serious. It also found that the consequences of any such future offending like the Index Offence could result in very serious harm to members of the Australian community. It assessed the likelihood of his future re-offending as material. The Tribunal further found that Primary Consideration 1 in its totality weighs strongly in favour of affirming the reviewable decision.
4. Primary Consideration 2 carries neutral weight.
5. The Tribunal found that Primary Consideration 3 carries moderate weight towards setting the reviewable decision aside.
6. Primary Consideration 4 carries neutral weight.
7. The Tribunal found that Primary Consideration 5 weighs in favour of affirming the reviewable decision.
8. The Tribunal found that the legal consequences of the decision regarding Mr Gautama's Visa carry moderate weight in favour of setting the reviewable decision aside.
9. The Tribunal found that the extent of impediments Mr Gautama would face if he were removed to Indonesia or Indonesia carry weight in favour of setting the reviewable decision aside.
10. Other Consideration (c) and the Additional Consideration carry neutral weight.

1. The Tribunal has set out above its findings on the weight attributable to the Direction's Primary Considerations and the Other Considerations.
2. The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations. It followed the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21] and in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCFCA 138 to assess these findings and weights holistically to reach a conclusion.[125]
3. The Direction states that Primary Consideration 1 is "generally" to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word "generally" preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake[126], Aksu[127], and Lu[128] cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.
4. Overall, the Tribunal considers that in this matter Primary Consideration 1's greater weight is appropriately engaged given the nature and history of Mr Gautama's offending. Having conducted a comprehensive and integrated view of its findings and the weights it has attributed to them, this Tribunal finds that it is satisfied that there is not another reason to set the reviewable decision aside.

1. Applying s 105 of the ART Act, the Tribunal affirms the 22 April 2025 Respondent's delegate's decision to cancel Mr Gautama's Class BB Subclass 155 Five Year Resident Return visa.

Amended Statement of Facts, Issues and Contentions (SFIC)

Applicant Statement of Facts, Issues and Contentions

Asylum Seeker Resource Centre Article - 'Offshore health crisis deepens: Advocates call on Labor to reinstate Medevac legislation'

The Melbourne Anglican Article - 'Calls for Royal Commission amid Indonesia health failures'

ABC News Article - UNHCR calls for immediate transfer of refugees out of Manus Island, Indonesia to 'humane conditions'

Parties' agreed schedule of the applicant's immediate and extended family, social and work relationships and minor children in Australia

[2] Unless the context indicates otherwise, the Tribunal has used bold font to emphasise selected passages.

[4] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).

[5] Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 [41]-⁠[48].

[12] Pursuant to s 501CA(4)(a) of the Act.

[13] Pursuant to s 501CA(4)(b)(i) of the Act.

[14] Pursuant to s 501CA(4)(b)(ii) of the Act.

[16] Migration Act 1958 (Cth) s 501(6).

[18] As defined in s 501 of the Act and as required under s 501CA(4)(b)(i) of the Act.

[20] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.

[21] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].

[22] Administrative Review Tribunal Act 2024 (Cth), ss 49-50.

[23] The Direction's paragraphs will be capitalised as 'Paragraphs' in these reasons.

[25] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.

[26] Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582, 587 [23] (Mortimer J, as her Honour then was); CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCFCA 138; [28].

[27] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.

[31] The dark web is a hidden part of the internet accessible only through specialised software like the Tor browser, which encrypts and anonymises user traffic.

[33] Exhibit A1 and Applicant's oral evidence.

[37] Applicant's examination-in-chief and Exhibit R1: G7, 46.

[40] Applicant's cross-examination and Exhibit R1: G7, 46.

[45] Direction; [8.1.1(1)(a) and (b)].

[49] Kanara and Minister for Immigration and Citizenship [2011] AATA 132 at [32] per Senior Member Toohey

[63] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424, [95]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.

[64] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].

[65] CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211, [90] (Kerr J); see also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).

[66] (1997) 191 CLR 559, 574 ('Guo').

[70] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) ('Murphy') [37].

[72] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 ('GJJF'); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 ('Roberts'); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 ('GJJF') (n 52) [48]- [52]; Roberts, (n 53) [27].

[73] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].

[74] Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424, [95];

[76] Exhibit R3: S2, 56, point 8.

[77] Exhibit R3: S3, 75.

[81] Exhibit R1: G11 and the Applicant's oral evidence.

[83] Applicant's oral evidence and Exhibit R1: G11.

[86] Applicant's oral evidence and Exhibit R1: G11.

[102] Ibid at 473 [75]- [76] (Charlesworth J).

[103] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 417 ALR 36, [51]-[52].

[104] Clause 155, Migration Regulations 1994.

[108] Section 501E of the Act. Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.

[112] Applicant's examination-in-chief.

[113] Applicant's examination-in-chief.

[114] Applicant's examination-in-chief.

[115] Applicant's examination-in-chief.

[122] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.

[124] Section 501(2) of the Act.

[125] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870; CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCFCA 138; [28].

[126] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).

[127] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).

[128] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.