Written reasons for this decision will be provided within seven days hereof.

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MIGRATION - mandatory cancellation of visa - whether 'another reason' to revoke cancellation under section 501CA(4)(b)(ii) of Migration Act, 1958 (Cth) - applicant recidivist offender with substantial past drug-dependence issues - country of removal Chile from which applicant departed when aged 5 - interests of minor child - child not in care of mother - removal of biological father very serious in circumstances - responsible Government agency stresses importance of contact with father - decision set aside in unusual circumstances of case

Migration Act 1958 (Cth)

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (25 January 2023)

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 (7 June 2024)

1. On 1 December 2025, I delivered my decision in this matter. I had concluded that the preferable decision was to set aside the decision under review and to substitute a decision that Mr Hall Infante's visa cancellation be revoked. Given this conclusion, it was appropriate for Mr Hall Infante to be released as soon as practicable from immigration detention, and so I decided to publish my decision without reasons. I indicated that a statement of reasons would follow within seven days. I now publish my statement of reasons.
2. This is an application by Mr Esteban Alejandro Hall Infante seeking a review of a decision by the respondent's delegate dated 15 March 2024. By this decision, the delegate[1] declined to revoke the cancellation of Mr Hall Infante's visa[2] that had taken place earlier, and mandatorily so, under s 501(3A) of the Migration Act 1958 (Cth) ('the Act') following his conviction and jailing in respect of a serious assault. I shall describe that offending in due course.
3. Mr Hall Infante sought an internal review of the cancellation decision. The delegate tasked with the determination of that review had two questions to address under section 501CA(4)(b) of the Act. The first was whether Mr Hall Infante passed the so-called 'character test' elaborated under s 501 of the Act. Given his conviction, Mr Hall Infante could not pass this test.[3] The second was whether there was 'another reason' - that is, apart from Mr Hall Infante passing the character test - for the cancellation decision to be revoked. In this latter regard, the delegate was obliged to apply any direction issued under s 499 of the Act. The delegate applied the then applicable Direction no. 99.[4] Having weighed the various considerations required to be addressed under this direction, the delegate found that, on balance, they did not favour a revocation of the cancellation decision; and the delegate formally found that there was not 'another reason' for the cancellation decision to be revoked. The delegate, accordingly, took no action under s 501CA(4)(b) to revoke the cancellation decision.

1. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions as the internal-review delegate. I have already indicated that the review delegate's answer to the first question was correct. In respect of the second question, I must apply the most current direction issued under s 499 of the Act.[5] In this case, the most current direction is Direction no. 110[6] ('the Direction').
2. I make the following prefatory remarks concerning the Tribunal's jurisdiction.[7] In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate's decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[8] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate's reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate's reasoning if that is the correct or preferable decision on the evidence before it.
3. I should note by way of further background that Mr Hall Infante has already had one review of the delegate's decision. This review was undertaken by the Tribunal's predecessor, the Administrative Appeals Tribunal. By its decision dated 6 June 2020,[9] the Administrative Appeals Tribunal affirmed the decision under review; but this decision was quashed by consent by the Federal Court on 20 November 2024. It was agreed that the Tribunal had failed to engage with Mr Hall Infante's representations concerning barriers to finding employment or housing in Chile and that this error was material. The matter was remitted to this Tribunal by the Federal Court for determination according to law.[10]
4. In fulfilment of the Federal Court's order that the Tribunal determine the matter according to law, I conducted a full de novo merits hearing. At the hearing before me, Mr Glenister appeared for the applicant; Mr Vines, for the respondent. I am grateful to them both for their measured advocacy and helpful submissions.
5. I would finally note by way of background that the hearing of the matter was postponed on several occasions at Mr Hall Infante's request.

1. I have decided that the preferable decision is to set aside the decision under review and substitute a decision that the cancellation of Mr Hall Infante's visa be revoked. I now set out the background facts and my reasons for this conclusion.

1. Mr Hall Infante was born in Chile in 1990. His mother is Chilean by birth and now a naturalised Australian citizen; his father is Australian. Mr Hall Infante emigrated to Australia when he was about five years of age together with his mother, father and brother. He found it difficult to settle into Australian life, and he experienced a degree of racism and some difficulty at school, he said. I accept this evidence.[11] He undertook his schooling in Victoria. He left half-way through year 11, he said, and undertook a roof-tiling apprenticeship for some three months before he became a metal fabricator. He has also had a casual job with his father but only for one month.
2. He worked as a metal fabricator for some three years before his mother fell ill. Mr Hall Infante has a brother with special needs[12] and a sister (who was born in Australia). He said that he began to look after his mother, who had leukaemia and has required chemotherapy, from about the age of twenty-one. She refers to that assistance in a statement.[13]
3. Mr Hall Infante has a son from a prior relationship who was born in 2016, and to whom I shall refer as 'B'. Due to Mr Hall Infante's drug and alcohol problems and those of B's mother, which exposed B to risk, B was removed immediately into state care. An order currently exists that prevents Mr Hall Infante from access except in the company of the child's carers (Mr Hall Infante's mother and sister). I understand the child is presently living with Mr Hall Infante's sister.
4. Mr Hall Infante maintains contact with B by phone, and the child has visited him at the Yongah Hill Immigration Detention Centre, where he is currently resides. I accept the evidence given by Mr Hall Infante that B's mother does not presently play any role in B's life, and that she is now his former partner.
5. Mr Hall Infante's father travels internationally for his work and is only intermittently in Australia. He gave evidence at the hearing before me.
6. I accept Mr Hall Infante's evidence that it would be difficult for him to move back in with his mother and brother were he to be released into the community. Mr Hall Infante does not have, in fact, a clear plan as to where he would live upon his release into the community. He would need support. Mr Hall Infante's father indicated that he would be prepared to assist his son to find appropriate accommodation and work should the Tribunal set aside the decision under review. I accept that evidence although the help that would be offered remained somewhat sketchy on the evidence before me.
7. Mr Hall Infante said that he began using marijuana when he was in year 6 at school. He then moved on to other drugs, the main drug being methylamphetamine. He was abusing both methylampthetamine and alcohol regularly by the age of nineteen. That is consistent with the District Court of WA's most recent sentencing remarks.[14]
8. I now turn to Mr Hall Infante's criminal offending. His criminal record was before me in evidence.[15] It is a lengthy one. In 2009, he appeared before the Armadale Magistrates Court (WA). He had engaged in dangerous and unauthorised driving while holding a learner's permit only. The dangerous driving caused harm to three passengers. He received a number of fines and also a suspended seven-month period of imprisonment. He was disqualified for driving for eighteen months. The statement of material facts was in evidence before me.[16] The vehicle Mr Hall Infante had been driving at excessive speed collided with a tree after he had lost control. A number of passengers were injured in a significant way, and at least one victim had to spend an extended period of time in hospital.[17] Mr Hall Infante did not have a qualified person with him in the vehicle at the time and he was not displaying 'L' plates as required by law.
9. On 9 November 2010, Mr Hall Infante appeared before the Magistrates Court in Fremantle (WA) in relation to disorderly behaviour in public. He received a fine of $600 on that occasion.
10. On 20 April 2011, Mr Hall Infante appeared again before the Fremantle Magistrates Court because he was driving without a lawful authority to do so. He was fined $300 on that occasion. On 19 May 2012, Mr Ian Hall Infante was again found to be driving without lawful authority and received both a fine of $150 and a licence disqualification of three months. On 20 November 2012, he was again found guilty in the Magistrates Court of driving without an authority and yet again on 31 July 2013. He received fines of $400 and $600, respectively.
11. On 21 August 2013 he was fined for driving an unlicensed vehicle to which he had attached false plates and while not having an authority to drive. He received three fines of $200, $400, and $200, respectively. All this offending reflects a quite defiant attitude towards the legal regime governing road conduct, which is an important aspect of community safety and regulation.
12. On 24 May 2016, he appeared before the Magistrates Court for a number of charged offences including breach of a bail undertaking, failing to give his name and address as a driver and dangerous driving, as well as driving whilst he had no authority to do so. This offending again attracted fines which are detailed in the criminal record, and disqualification.
13. On 6 December 2016, Mr Hall Infante was found guilty of two offences; namely, possession of stolen or unlawfully obtained property (in relation to which he was fined $100) and common assault and circumstances of aggravation (for which he received a fine of $800). These offences mark in my opinion a different sort of offending and because he had turned to violence and criminality. The offending involved, it would appear, an assault upon Mr Hall Infante's mother, who was intervening to try to prevent the escalation of an assault Mr Hall Infante was committing upon his then girlfriend.[18] The girlfriend was, it would appear, pregnant at the time.[19] The record indicates that Mr Hall Infante also assaulted his brother severely by hitting him on the head with a chair causing him to fall to the floor in a semiconscious state.[20] Mr Hall Infante was found to have a stolen credit card in his possession.[21]
14. On 20 December 2016, Mr Hall Infante was found guilty of three offences; namely giving false personal details to police and to breaches of bail. In relation to this offending, he received a fine of $500 for each count.
15. On 10 January 2017, Mr Hall Infante was found guilty of common assault in circumstances of aggravation, which I note was a second offence for him, and was fined $2,000. He had punched his partner in the face after a dispute over money, it would appear.[22]
16. On 18 April 2017, he was found guilty of possessing an article with intent to injure or disable a person and was fined $1000.
17. On 3 October 2017, Mr Hall Infante was found guilty of serious offences. He was found guilty of unlawfully assaulting a person in circumstances of aggravation and inflicting bodily harm and endangering the life health or safety of a person. In relation to this first offence he was given an eight-month concurrent sentence to be backdated to 22 April 2017 and in relation to the second offence he received a term of imprisonment of one year and four months to be concurrent with the first sentence again backdated to 22 April 2017.
18. I had the sentencing remarks before me.[23] The sentencing Court refers to the fact that Mr Hall Infante has been before the Court a number of occasions. The Court refers to the offences as being serious. Both offences carried a maximum term of seven years. There was an assault upon a female passenger in a car, his then girlfriend, while Mr Hall Infante was driving the car. She was punched a number of times to the face and upper body before she was able to escape. When police later attended the premises where the applicant was, Mr Hall Infante deliberately drove his vehicle in an extremely dangerous and reckless manner towards police officers and damaged their vehicles. Mr Hall Infante was unable, it is recorded,[24] to participate in an interview because he was drug-affected at the time.
19. It is noteworthy that both offences were judged to call for immediate terms of imprisonment, although there were guilty pleas. Terms of imprisonment were thought to be necessary because of the need for personal deterrence. The assault received a term of 10 months, discounted by 20 per cent, making it 8 months; the other charge received 20 months with a 20 per cent discount are bringing it back to 16 months. The applicant was judged suitable for parole.
20. As a result of this offending, I note that Mr Hall Infante's visa was cancelled on 1 November 2017. It was, however, reinstated on 22 January 2019. So it is clear that from the moment the Minister notified Mr Hall Infante that he was thinking of cancelling Mr Hall Infante's visa, Mr Hall Infante was aware of the risks he would take if he committed further criminal offences.
21. Mr Hall Infante was convicted on 12 December 2019 of possessing drug paraphernalia and he received a fine of $400. So his dependence on, and misuse of, drugs continued after his jailing. On 9 January 2020, Mr Hall Infante was found guilty of breaching a police order and was fined $500.
22. On 24 March 2020, a number of offences were dealt with. The applicant was found guilty of common assault in circumstances of aggravation. He received a six-month suspended sentence in relation to this offending. The offending is described in the statement of material facts.[25] Mr Hall Infante assaulted his partner on two separate occasions on 31 January 2020 and 9 February 2020, and also damaged the side mirror to her car. He was arrested and agreed to a bail condition that he not approach the victim. He approached her, nevertheless. He was sentenced as follows. For each of three breaches of a protective bail condition, he received a suspended six-month term of imprisonment; for the common assault he received a six-month suspended period of imprisonment; and for the criminal damage to the victim's car he received a four-month suspended sentence. All sentences were concurrent except for one in respect of a breach-of-bail-conditions offence, which was made cumulative. The sentences were suspended in each case for one year from 24 March 2020. These were clearly serious offences.
23. On 31 March 2020, Mr Hall Infante was found guilty of driving without an authority and was fined $200. On 30 June 2020, he was found guilty of driving whilst having no authority to drive and was disqualified for a period of nine months and received a fine of $400. On 15 July 2020, he exceeded the speed limit by between 10 and 19 km an hour, and was fined $200.
24. Mr Hall Infante was found guilty of stealing on 22 December 2020 and received a community-based order of six months.
25. There follows an appearance in the Magistrates Court on 11 May 2021. Mr Hall Infante was found guilty again of driving without an authority and was disqualified for nine months and fined $400. He was also found guilty of exceeding the speed limit between 10 and 19 km per hour and fined $200; and he was found guilty also of driving without an authority and disqualified for nine months and fined $1,000. He was also found to be in a place without lawful excuse and fined $400. He was further found guilty of breaching a conditional suspended imprisonment order and was fined $500 globally.
26. In addition, there were five sentences imposed in respect of the breach of the conditional sentences of 24 March 2020. These resulted in five concurrent sentences of six months to be served from 11 May 2021. The sentencing remarks were before me, and I have read them and rely upon them.[26]
27. A further charge of stealing was heard by the court on 8 June 2021 and that received a fine of $100.
28. On 6 September 2021, Mr Hall Infante's visa was cancelled again, but it was subsequently determined within the Department that the cancellation was legally invalid, and it was not proceeded with.
29. On 3 December 2021, he was found guilty of disorderly behaviour in a police station or lock-up and was fined $500. At this stage, he was in police custody following his offending on 20 December 2022, to which I now turn.
30. I now come to the last of the offending. The sentencing remarks were before me and I accept and rely upon them.[27] On 20 December 2020, Mr Hall Infante was taking a rideshare. The nature of the agreement was that the passenger's drop-off address could not be changed once the booking had been made. Mr Hall Infante was annoyed by this requirement as he wanted to alight elsewhere. When the vehicle stopped at the prebooked address, Mr Hall Infante used his elbow to assault the driver in the face and neck region, he punched him in the shoulder area, and then punched him around the left side of the neck area. Mr Hall Infante grabbed the driver's phone and phone holder. He threw the phone-holder back at the driver as well as some stones (which did not actually hit the car or the driver). The driver did not require medical treatment, but he did have some soreness with neck and tingling in his ear. He had to take one day off work.
31. The sentencing Court referred to the fact that Mr Infante had had a serious alcohol and drug misuse problem and that by the age of nineteen he was using methamphetamines on a daily basis. The Court found that this use involved him in a mental-health decline.[28]
32. The Court found that Mr Hall Infante had an entrenched history of methamphetamine use and suffered from depression and anxiety. The Court also found that Mr Hall Infante was showing some signs that he understood that what he had done was wrong that he accepted personal responsibility and was remorseful.[29]
33. The Court referred to a report, the Whitehaven report, it had before it, which detailed some of Mr Hall Infante's troubled background.[30] The Court had earlier referred to the violence that he had suffered at home because his father was violent and abused alcohol.[31] The Court seemed to accept that it was not unsurprising that Mr Hall Infante had developed drug issues in light of his background.[32]
34. The Court referred to the driver being terrified and also being unaware how far the violence would proceed. [33] The Court accepted that Mr Hall Infante was on a suspended sentence at the time and that this was an aggravating feature of the offending. The Court concluded that even with the threat of imprisonment hanging over him, Mr Hall Infante was not able to comply with the law.[34] The Court referred 'to the depth of [his] difficulties controlling [his] anger'.[35] The Court concluded that a suspended sentence would be 'wholly inappropriate'.[36] A sentence of two years and two months was imposed backdated to 1 July 2021 with eligibility for parole after 13 months of the sentence had been served. Mr Hall Infante's visa was then mandatorily cancelled on 27 September 2022 as required by s 501(3A) of the Act.

1. I turn now to the Direction. In these matters I usually set out certain prefatory remarks, and I do so again in the following four paragraphs.
2. The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
3. Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
4. First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia and, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen's conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
5. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight 'generally' to the protection of the Australian community over other primary considerations, it also provides that primary considerations should 'generally' be given greater weight over other considerations.

1. I turn now to apply the Direction. Paragraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. I am directed to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I must 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 will be law-abiding and will not cause or threaten harm to individuals or the Australian community. I bear all this steadily in mind.
2. Subparagraph (2) provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen's conduct to date and to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
3. I turn now to consider the nature and seriousness of the non-citizen's conduct. Paragraph 8.1.1(1) sets out a number of matters to which I should have regard in assessing the seriousness of the Mr Hall Infante's conduct.
4. I have carefully read the respondent's submissions in relation to the offending.[37] I agree with them. There is no doubt that Mr Hall Infante has a very extensive criminal history. There have been multiple offences over many years as submitted by the respondent. There have been many dangerous incidents. There have been assaults, including upon family members, dangerous driving leading to injury, threatening behaviour towards police, criminal damage, multiple driving offences, weapons offences, disorderly behaviour and trespass offences, and drug offences. There have also been antisocial dishonesty offences. Many of these offences were committed against the backdrop of breaches of bail conditions, restraining orders, and suspended imprisonment orders.
5. Taken as a whole, the offending history must be regarded as very serious indeed and as evidencing seriously antisocial trends. In addition, Mr Hall Infante has clearly had serious drug-dependence issues. The fact that his offending was influenced by drug- misuse only heightens the seriousness of the offending because the offending was for that reason uncontrolled and potentially more dangerous than it might otherwise have been.
6. I must have regard also to the sentences imposed by the courts, although not in relation to offences involving harm to women or children, or involving acts of family violence (because these are always to be taken very seriously irrespective of the sentence imposed).[38] The sentences have frequently involved jail terms. Even when the sentence has been suspended, that sentence should be taken very seriously as an indicator of the gravity of the offence. The fact that a sentence has been suspended is not of itself a factor that indicates offending is not serious; it reflects, rather, the court's judgment that the convicted should be given an opportunity to reform himself or herself.
7. I must have regard to the impact of offending on any victims of the offending.[39] I do not have explicit detail in this regard. I do have a reference that the victim of the last offending was terrified, as I have mentioned, and was not in a fit state to attend work for one day. I may also infer that the acts of violence directed towards Mr Hall Infante's family members were extremely confronting experiences for them. He is a strong, younger man, described as being of solid build and standing 182 cm tall.[40] Much of the offending has occurred in the unpredictable environment of drug-induced aggression. Some of the victims have been female, and one of them was pregnant (his partner) at the time of two of the assaults. So, it is safe to conclude that the offending must have had a severe impact.
8. The offending in question has also been frequent, self-evidently.[41] There has been a trend of increasing seriousness as well. Court orders and suspended sentences have been ignored. Even when Mr Hall Infante's visa was in issue, he did not desist from his antisocial offending. It is quite clear that Mr Hall-Infante's offending had become persistent and heedless of the consequences both to the community and to himself. Some of it has been directed at police, and I take into account, therefore, that the offending has involved Government employees exercising authority in the community in the public interest.
9. There is a cumulative effect of repeated offending, particularly in respect of the same victims of family violence.[42] I take this into account.
10. I have already referred to the fact that Mr Hall Infante had been formally warned about the consequences of future offending when his visa was first cancelled.[43] He was aware from the date the initial notification letter was sent to him that his behaviour had put at risk his visa status in Australia.
11. All in all, when I take into account the factors required to be addressed under paragraph 8.1.1(1) of the Direction, there is no doubt that Mr Hall Infante's offending must be regarded as very serious indeed. I note further in this connection that Mr Hall Infante's behaviour was deemed serious enough to warrant his child's removal from his care (and from the care of the mother) soon after birth. That is an important feature of this case, in my opinion, because it shows just how unreliable and indeed, potentially dangerous, Mr Hall Infante was at that stage of his life.
12. Under paragraph 8.1.2 of the Direction, I must have regard to the risk to the Australian community should Mr Hall Infante commit further offences or engage in other serious misconduct. By subparagraph (1), I am to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, are so serious that any risk that it may be repeated may be unacceptable. I bear this principle in mind.
13. By subparagraph (2) I must have regard to two matters 'cumulatively'; namely, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and the likelihood of his so doing.
14. A wide range of harm is implied by Mr Hall Infante's behaviour in this case. Physical injury of a serious nature is implied by much of the offending. As I pointed out, much of the offending has been influenced by drug misuse, which heightens the risk to individuals in the community because the behaviour is more uncontrolled in this circumstance than it might otherwise be. There has been property damage and also theft. These have an impact upon the owners of property or, in the case of the police vehicles, upon the public purse. This impact should not be minimised.
15. I do regard the likelihood of Mr Hall Infante engaging in further criminal conduct as real at the present time. I think it is appropriate to give Mr Hall Infante some credit in this regard for the rehabilitation that jail and immigration detention have effected upon him. His life has assumed a more orderly pattern since entering jail and immigration detention. That has been a positive for him. He has also had a prolonged opportunity, extending over some years now, to reflect upon his behaviour and exactly where his behaviour has led him. The experience of immigration detention has brought him to the threshold of deportation, and another Tribunal in fact affirmed the decision under review. He well understands how close he is to compulsory deportation to a country of which he has only a vague memory. Chile is clearly not an attractive alternative for Mr Hall Infante. I do believe also that I should follow the remarks of the sentencing Court which indicated that the so-called 'Whitehaven report' dated 4 August 2022[44] referred to his positive engagement in counselling and to his efforts to address his drug-dependence issues. The Court regarded Mr Hall Infante's progress in this regard as 'mitigatory'.[45]
16. Nevertheless, there is a real risk of recidivism. My assessment in this regard is informed by Mr Hall Infante's past behaviour. He has had the benefit of many appearances before the Courts where he received non-custodial sentences. Drug dependence has been an ongoing issue for him and has caused him to breach the law repeatedly. He did not desist from criminal offending even though his visa was to his own knowledge clearly at risk. He has had a distorted perspective on his life, influenced by a substantial drug dependence. He has been unable to reform his life despite very serious deterrents that existed. I am unable at this point to say that Mr Hall Infante's risk profile is low. I do believe, however, he has made a start because the experience of jail and immigration detention has been salutary for him.
17. All in all, I assess the risk at the present time as real and therefore substantial because if there is any return to drug use, Mr Hall Infante will relapse into criminal behaviour with the serious potential consequences for the community. The possibility of relapse into drug use is real. Nevertheless, I also accept that it appears that Mr Hall Infante is, finally, on a path to rehabilitation. I also accept that he does also have a genuine wish to become more involved with his son, B, and this provides a positive incentive for him in his life.
18. I note again that the risk that I have assessed to exist must be taken into account 'cumulatively' with the nature of harm to individuals or the Australian community should Mr Hall Infante engage in further criminal or other serious conduct.
19. I turn now to consider family violence as required by the Direction.[46] The Direction requires me to give this separate consideration. This emphasises its importance.
20. Paragraph 8.2(1) of the Direction indicates that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. I bear that in mind. I note that the Government's concerns in this regard are said to be proportionate to the seriousness of the family violence engaged in by the non-citizen.
21. The family violence in this case has been perpetrated against Mr Hall Infante's partners and his mother and brother. Some of the aggression has occurred against a pregnant partner. I refer again here to my earlier observation that the child was deemed to be at risk and removed from the care of Mr Hall Infante which reflected a view of the risk he posed to the child's welfare in a general sense. I do regard the instances of family violence as very serious. His assault upon his mother was serious. The brother, who has special needs, was also in a vulnerable position, yet was assaulted and of course Mr Hall Infante's partners were female and vulnerable. One of the partners was pregnant. The assaults were significant.
22. I have had regard to the matters required to be addressed in subparagraph (3) of paragraph 8.2. I think that there has been quite some frequency in Mr Hall Infante's family-violence conduct, and to the extent that it has been frequent, I regard the violence as representing a trend of increasing seriousness. Moreover, it would be strange to suppose that the charged offences were the only instances of family violence. I take into account in a general sense that Mr Hall Infante most probably engaged in other acts of family violence. There is a cumulative effect of repeated acts of family violence particularly on long-suffering domestic partners. I take that into account.
23. As far as rehabilitation is concerned, I am not persuaded that Mr Hall Infante understands the impact of his behaviour on the persons he has abused in this regard or has finally accepted full responsibility for his conduct. I accept that he has made efforts to address factors which contributed to the conduct as referred to in the Court's sentencing remarks. Some violence postdates the point in time at which the applicant was formally warned of the consequences to his visa status of criminal offending. That is an important matter to bear in mind.[47]
24. All in all, I regard the applicant's family-violence offending as very serious.
25. I must have regard to the strength, nature, and duration of Mr Hall Infante's ties to Australia under paragraph 8.3 of the Direction. I am directed to take into account the impact of my decision on immediate family members in Australia by subparagraph (1). Mr Hall Infante's deportation would have an impact upon B, his son, and I refer to this below. I attach some, but limited, weight to the interests of Mr Hall Infante's mother. She has been the victim of significant violence. But I do take into account the letter from her, and it is only natural that she would be greatly concerned about her son's prospects in Chile were he to have to leave for that country.[48] I do not attach any weight to the interests of the brother or of the sister. There are no other interests I need to weigh under this part of the Direction.
26. By paragraph 8.4, I must consider the best interests of minor children in Australia. I take into account here the best interests of B, Mr Hall Infante's son. It is an important feature of this case that B does not, on the evidence before me, have a current relationship with his biological mother, but is being cared for by Mr Hall Infante's mother and more particularly his sister. On the evidence before me, it is not clear that B's biological mother will have any significant role in his life in the immediately foreseeable future. This is an important feature of the matter because the effect of a decision to affirm the decision under review will be to deprive B of any in-person contact with his father in circumstances where the mother is not presently fulfilling a parental role.
27. I pay particular regard to the views of the Western Australian Department of Communities as expressed in correspondence dated 7 February 2023.[49] The letter is written on behalf of the Department by B's case manager. The letter requests that Mr Hall Infante's visa cancellation 'be reconsidered and his visa reinstated'. The letter confirms that B with Mr Hall Infante's sister and that B has supervised contact with Mr Hall Infante, facilitated by the department.
28. The letter continues as follows:

The Department considers it important for [B] to have contact, where possible, with his father and will continue to work with Mr Hall Infante to facilitate this. To enable [B] to continue to establish and develop an ongoing and sustainable relationship with his father, it is strongly preferred that Mr Hall Infante remain resident in Western Australia. The Department is of the opinion that it is of critical importance for a child's developing sense of identity that he has ongoing and consistent contact with his biological family, preferably on a face-to-face basis.[50]

1. That is an important document because it sets out the responsible state Government agency's views as to B's interests.
2. I acknowledge that less weight should 'generally' be given where there is no existing relationship and or there have been long periods of absence or limited meaningful contact.[51] The word 'generally' signifies in this context a generalised proposition that I need to bear in mind, but which should be qualified to meet the particular circumstances of any given case. I do believe that some significant weight needs to be given to the admittedly nascent relationship between B and Mr Hall Infante because of the absence of the mother in this circumstance and also because of the important and independent views expressed by the relevant state Government authority, to which I have referred above.
3. I must also have regard to the extent to which Mr Hall Infante will be likely to play a positive parental role in the future. I accept that if Mr Hall Infante were to resume a drug habit and antisocial conduct, it would be better if the relationship ended now as an in-person one. But there is some hope, as I have said, and it is reflected in the most recent sentencing remarks, that Mr Hall Infante is finally on a path of rehabilitation.
4. I do accept that another person who already fulfils a parental role in relation to that child (namely, Mr Hall Infante's sister). I also have regard to the interest shown in the child by Mr Hall Infante's mother, and by his father, although he is not always in Australia. Nevertheless, it is appropriate to proceed on the basis that this child will be substantially affected by the absence of both the biological mother and father and that Mr Hall Infante's absence in Chile would have a significantly negative effect in due course on B.
5. I do weigh, however, as I am required to weigh,[52] that B was at some risk of being subjected to violence both at the time of the pregnancy, and at birth. B was removed from Mr Hall Infante's and his partner's care shortly after birth. B was removed because of the incapability of the parents to be trusted to render appropriate care to the child.
6. I do weigh all these matters, as I am required to do; but I nevertheless assess that B's best interests do weigh strongly in favour of a revocation of the cancellation decision.
7. I must now weigh the expectations of the Australian community under paragraph 8.5. By subparagraph (1), I note that the Australian community expects non-citizens to obey Australian laws while in Australia. Where non-citizens engage in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, 'as a norm' - albeit not as inflexible rule - the Australian community expects the Government not to allow them to remain in Australia. That expectation is clearly applicable in this case.
8. By subparagraph (2), not revoking a mandatory cancellation decision may be appropriate simply because of character concerns or offences that have been committed. Instances in this regard follow, and these include acts of family violence, the commission of serious crimes against women children or other members of the community, and the commission of crimes against government representatives (including the police) in the performance of their duties. Mr Hall Infante's offending has occurred in these categories. I note that by subparagraph (3), the expectations expressed in paragraph 8.5 apply whether the non-citizen is at risk of committing further harm to the community. Paragraph 8.4(4) requires me not to independently assess the community's expectation in a particular case, but to apply the considerations as given in the Direction. All in all, this consideration counts strongly against Mr Hall Infante.
9. By section 9, I must have regard to so-called 'other' considerations. A non-exhaustive list of three such considerations is given. One of the considerations is the extent of impediments if removed, and I note here again that the failure to consider these was the agreed error that the Administrative Appeals Tribunal made when it decided the matter against Mr Hall Infante. I do believe I should give some weight to this factor. I accept that Mr Hall Infante does not have more than basic spoken Spanish. I accept that he would find it difficult to settle into a country in circumstances where he is not literate in the written language and has an imperfect command of the spoken language. I believe also that the lack of familiarity he has with the country − he left when he was approximately five years of age − is an important factor to weigh. Nevertheless, he is able-bodied and in time should be able to secure some sort of manual employment.
10. I think I should also weigh as another consideration (because I have not yet considered it) Mr Hall Infante's own interest in maintaining contact with his son, B, as an in-person relationship. I believe he genuinely wishes to play this role now that he has commenced on a path of rehabilitation. I give this factor some weight in my decision.

1. I now turn to weighing the considerations I have identified. The Direction focuses strongly on the antisocial aspects of criminal offending, risk to the community, and community expectations. Whilst it is not exclusive of other considerations, I believe I should begin with that strong focus. There is no doubt that Mr Hall Infante's behaviour in the community has been antisocial in the extreme. He has ignored his legal and moral responsibilities.
2. Mr Hall Infante developed a drug addiction and has engaged in very serious criminal offences. Although I believe he has begun on a path of rehabilitation, I have concluded that at the present time he still poses a real threat to the community because of the risk of relapse into drug abuse. His behaviour has involved family violence, which as I have said, is given particular emphasis by the Direction. I have already indicated that the community-expectations consideration counts substantially against him.
3. There have been police officers who have been threatened by his unregulated behaviour, and vulnerable family members have been physically assaulted. The criminal assaults have most recently extended to community members engaging in ordinary activities (like driving a ride-share vehicle). I must give that very serious weight and I do so.
4. All in all, therefore, there are very strong factors weighing against Mr Hall Infante. That is undoubtedly the case.
5. But as I have said in the past, the Direction makes it plain that very serious consideration must be given to the specific circumstances of a case. The Direction is not to be applied in a vacuum without due regard to the specific circumstances of the case: paragraph 5.3 of the Direction.
6. There are very unusual circumstances in this case. I think particularly here of B's interests, which are a primary consideration under the Direction. B is in the care of his paternal aunt (Mr Hall Infante's sister) and does not have contact with his own mother. He is still young, and it is in his interests, in my opinion, that he develop a relationship with Mr Hall Infante, although I accept that any recidivism by Mr Hall Infante would be prejudicial to B's interests. I bear in mind here the responsible state Government Department's views of B's interests. I must weigh that in circumstances where the biological mother is not on the evidence before me a part of the child's life. The child was removed from her shortly after birth.
7. These are important matters to consider. In my opinion, this case has given rise to very difficult considerations to weigh precisely because of the very unusual features of the child's life arrangements at the present time. I have given B's interests considerable weight in the specific circumstances of this case. I also weigh, although to a more limited degree, the impediments to Mr Hall Infante of returning to Chile: they are not insurmountable or indefinite.

1. Despite Mr Hall Infante's very serious and persistent offending in a variety of ways, I have concluded that, on balance, an application of the Direction favours revocation of the cancellation decision. I have therefore decided that there is 'another reason' for the cancellation decision to be revoked under s 501CA(4)(b) of the Act. It follows that I should formally set aside the decision under review and substitute a decision that the cancellation decision be revoked. This was the decision I made and communicated to the parties on 1 December 2025.

I certify that the preceding ninety-four (94) para-graphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

............................[SGND]......................................

[1] The delegate's decision and reasons were before me: see Hearing Book ('HB'), 65ff.

[2] A Class AS Subclass 801 Spouse visa.

[3] As he was sentenced to a term of imprisonment exceeding 12 months, he a 'substantial criminal record', which caused him to fail the test: see s 501(6)(a) and (7)(c) of the Act.

[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (25 January 2023).

[5] Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33.

[6] 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 (7 June 2024). This is now the current direction, since Direction no. 99, which the delegate applied, was revoked by section 3 of Direction no. 110.

[7] What follows in this paragraph are standard observations I include frequently in my decisions in this area.

[8] See, for example, Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33 at [16], [18] - [19].

[11] It is a view he has expressed also to the author of the Whitehaven Report: see HB, 139 at 140.

[19] B was born in September 2016 and the offending occurred in late March.

[37] Respondent's Statement of Facts, Issues and Contentions, HB, 15ff [20]ff.

[38] Paragraph 8.1.1(c) of the Direction.

[39] Paragraph 8.1.1(1)(d) of the Direction.

[41] Paragraph 8.1.1(1)(e) of the Direction.

[42] Paragraph 8.1.1(1)(f) of the Direction.

[43] Cf Paragraph 8.1.1(1)(h) of the Direction.

[47] Paragraph 8.2(3)(d) of the Direction.

[51] Paragraph 8.4(4)(a) of the Direction.

[52] Paragraph 8.4(4)(g) of the Direction.