The applicant's evidence to the Tribunal is that the January 2023 charges and sentence of imprisonment has been a huge wake up call to him. He has made significant efforts of rehabilitation and has achieved progress. He points to his 15 months without offending while on bail, the numerous courses and counselling he has undertaken while in prison and detention and his achievement remaining sober and drug free for now almost three years. While there is no independent evidence to corroborate this, the Tribunal notes the absence of any adverse behavioural reports relating to the applicant in jail or immigration detention.
The Tribunal accepts on the evidence that the applicant has undertaken and completed various courses while incarcerated and in immigration detention. Evidence of participation in the Healthy Habits Group (Low Intensity Substance Intervention (LISI) Program[18], Drug ARM program,[19] MISA counselling[20] , SMART Recovery[21] and numerous Universal Class courses undertaken between June to November 2025[22] are before the Tribunal.
The sentencing remarks refer to his period on bail (between 30 March 2023 to 15 July 2024, for which there were strict conditions, he did not offend again while on bail and refer to documents which show that he has demonstrated a capacity to engage in useful work and to be a person able to engage in the community.[23] The Tribunal is satisfied that, contrary to the Respondent's argument that his rehabilitation is untested outside of the controlled environment of prison and detention, he was living in the community on bail for some 15 months without offending. The Tribunal was also impressed by his articulation in his oral evidence of what he has taken and learned from the courses undertaken to date and accepts that he has demonstrated a genuine effort to rehabilitate himself since the index offending.
There is a reference in the materials to the Applicant being assessed as high risk of re-offending by Queensland Corrective Services (referring to a Risk of Re-offending RoR-PV score of 14, that indicates he falls into the category of offenders at a High risk of committing further general offences) in the context of a security classification undertaken in August 2024. Despite this he was found to be able to be managed with a low security classification. Records before the Tribunal relating to his period of incarceration and immigration detention indicate no evidence of any violent or adverse behaviour by the applicant. The RoR-PV document referred to in this material is not before the Tribunal and it is not clear on what information it was based. However, in the absence of any other assessment or report specifically addressing the risk of reoffending, and mindful of the obligation, in paragraph 7(1), to give information and evidence from independent and authoritative sources appropriate weight, the Tribunal gives weight to this recorded information on the issue of the applicant's risk or likelihood of reoffending in addition to the information on his subsequent rehabilitation efforts.
The applicant was approved for parole on 27 May 2025 by the Parole Board Queensland and the Tribunal notes he is subject to parole if released from immigration detention until the end of his sentence, 14 July 2028, and may be subject to drug tests and reporting.[25] There is no parole assessment report in the materials before the Tribunal.
Also before the Tribunal was evidence from the applicant's mother, sister and father.
The applicant's mother provided a written statement confirming her knowledge of his criminal offending and expressing confidence in his reflection and meaningful steps taken including drug rehabilitation. She confirmed the strong and stable support network he has in Australia comprising herself, his father, sister and extended family who are all committed to providing him accommodation, guidance and supervision to support his ongoing rehabilitation.[26] In oral evidence she reiterated this and explained that she has observed the return of his father into his life since his arrest in 2023 has been a great support for him and she believes his father will take responsibility for him.
The applicant's father provided a written statement in support of the application confirming he will provide accommodation and actively support his reintegration through guidance, supervision and stability[27]. This witness was available, but not required by the Minister for cross examination.
Evidence in the form of statements was provided from two of the applicant's long term and close friends who operate businesses and have offered employment to the applicant upon release.[28] The Tribunal accepts that engagement in employment will be a protective factor for the applicant.
The Tribunal found the applicant's mother an impressive witness and gives her evidence some weight on the matter of the family support and guidance available to the applicant. It accepts the applicant has awareness of the embarrassment and impact of his conduct and convictions on his close-knit family and that he is genuinely remorseful. It accepts, on the evidence from the applicant's immediate and close family members with whom he has previously lived and the profound impact the circumstances of the index offending has had particularly on his mother, that the practical and emotional support of his family is a strong protective factor in his rehabilitation efforts.
Considering all of the above the information and evidence of the risk of the applicant re-offending available to the Tribunal and evidence of rehabilitation achieved by the time of decision, as required by paragraph 8.1.2(b) the Tribunal accepts there is some likelihood of the applicant engaging in further criminal or other serious conduct were he to relapse into substance use, but on the strength of his recent rehabilitation efforts and the strong protective factors, together with the strict parole conditions to which he will be bound for a further three years, it finds that the likelihood is low, to moderate.
Overall, having regard to the seriousness of the offending and the moderate to low risk posed by the applicant, the Tribunal finds the consideration of the protection of the Australian community weighs against revocation of the cancellation of the Applicant's visa, but only moderately.
[2]
Primary Consideration 2: Whether the conduct engaged in constituted family violence
[3]
There is no evidence that the Applicant has committed any family violence and this factor is not relevant to the Tribunal's decision.
[4]
Primary Consideration 3: The strength, nature, and duration of ties to Australia
[5]
(1) Decision-makers must consider any impact of the decision on the non-citizen'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) Where consideration is being given to whether to cancel a non-citizen's visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
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.
[6]
The Applicant's immediate family, comprising his mother, father, sister and her children, being three nephews and a niece, reside in Australia.
While he had not listed any other relatives in his Personal Circumstances Form or updated material filed with the Tribunal, in his oral evidence he elaborated that he has many other extended family members in Australia including aunties, uncles and cousins, but did not think to name them all. He referred to two aunties who provided character references, April Maree Taylor[29] and Kim Ruka.[30] He stated that it is his immediate family, his parents and sister that he is most close with.
The Tribunal has considered the written statements provided by the Applicant's mother, father and sister[31], and oral evidence from his mother and sister. His mother spoke of the applicant's background and trauma he had witnessed prior to migrating to Australia as a child, and the responsibilities he took on from an early age. She emphasised that his offending, while not excusable, does not reflect the whole person he is. She gave evidence of the support he provided her and the family and the deep impact it will have on her to not have access to him if he is returned to New Zealand.
His sister's evidence also emphasised the role the Applicant had in her life, and significant support he has provided to her and her children. She indicated that while she returns to New Zealand from time to time, it is not regular and will only become more difficult and inaccessible given she now has four children.
The evidence from the Applicant and his mother is that his father has recently re-entered his life, since the index offending, and has been a strong and positive support for him. His father's written statement[32] confirms that he is willing and available to provide support to him upon release, and that deportation would cause profound and lasting hardship to all of those closest to him.
The Tribunal accepts that the Applicant has very close ties with his immediate family comprising his mother, father and sister and her children, who will all be significantly and profoundly impacted by the decision not to revoke the cancellation of his visa. This is especially so given the significant and critical support role he played within the family during his childhood and the practical and emotional support provided to his mother and sister.
[7]
The Applicant came to Australia with his mother and sister in 1999 at the age of 6 years and has resided here since that time, more than 26 years.
It accepts that in this period he formed all his ties, to family and friends, in Australia. He has completed all of his education here and from 2009 to around 2016 held employment. While no evidence of his past employment is before the Tribunal, it prepared to accept this on his oral evidence
Paragraph 8.3(2)(a) requires the Tribunal to have regard to the length of time the non-citizen has resided in Australia and give less weight where the offending began soon after arrival; and more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Paragraph 8.3(2)(b) requires the Tribunal to have regard to 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.
In this case the applicant was 6 years old when he arrived in Australia. Relevant drug related criminal offending started from 2016, in his early adult years a substantial time after his arrival, and therefore the Tribunal does not afford this consideration lesser weight on this basis. Regarding his positive contributions, the Tribunal accepts on the evidence of his mother and sister that he played a significant supportive role in the family from a very young age. It has also considered the support letters provided from close friends and extended relatives that speak to his hard working and respectful character and support provided for individuals in the community, particularly elderly and those with disabilities.[33] The sentencing remarks of the judge relating to the index offending[34] referred to him having demonstrated a capacity to engage in useful work and to be a person able to engage in the community, and this was taken into account in the sentencing process. The Tribunal accepts that the Applicant has resided here for a substantial period of time and has contributed positively to the Australian community and it gives greater weight to this consideration in accordance with the paragraph 8.3(2)(a).
Given the applicant has resided in Australia since he was a young child, the Tribunal accepts, on the evidence of the support letters referred to above, that he has social links to extended family, friends and associates who have a right to reside in Australia and they are impacted by the decision not to revoke the cancellation of his visa.
On the material before it, the Tribunal accepts that as a long-term resident who arrived during childhood, and whose immediate and extended family resides here, the strength, nature and duration of ties to Australia is a factor which weighs strongly in favour of revocation of the cancellation of the visa.
[8]
Primary Consideration 4: Best Interests of Minor Children in Australia
[9]
Paragraph 8.4 of the Direction requires a decision-maker to consider whether a decision to refuse or not revoke cancellation of a visa is in the best interests of a child (under 18) affected by the decision. The Direction requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
The relevant children identified by the Applicant are the three sons of his sister, born in 2015, 2020 and 2022. Before the Tribunal he and his sister gave evidence that, since he has been in custody, she has had a fourth child, a daughter, in 2025. In his Personal Circumstances Form and Response to the Respondent's SFIC, he states that he lived with his nephews and frequently took care of them. In his oral evidence he described the kinds of assistance he provided, taking them to school and sports training and picking them up and helping with homework. They have visited him while incarcerated and in immigration detention in Brisbane and he asks about them or speaks with them on almost a daily basis. The applicant's sister gave a written statement[35] and oral evidence in support of this. She reiterated that the Applicant has been a constant in their lives since birth and that each of the boys look to him as a father figure.
Having regard to the factors set out in paragraph 8.4(4) that must be considered in assessing the best interests of the child, the Tribunal makes the following findings on the evidence before it relating to the child:
[10]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
[11]
The Tribunal accepts on the evidence of the Applicant and his sister that he resided in the same household as his three nephews since their birth, along with their mother. The sister told the Tribunal that while she is currently with her partner, the children's father, they were separated for a period of some years and the Applicant played a father like role in their lives in that time.
The Tribunal finds that the Applicant has played a significant and constant role in his three nephews' lives since birth, although non parental. It finds that he has a close, involved uncle/nephew relationship with his three nephews. With regard to his niece, it accepts that she was born recently while he has been in immigration detention and he has yet to form a bond with her as an uncle.
[12]
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
[13]
The Tribunal accepts that the three children are respectively 10, 5 and 3 years of age and there is a significant amount of time before they each turn 18 years for the applicant to potentially play a positive role in their lives. The youngest child is less that one year old, and has yet to form a uncle/niece relationship, but in light of his relationship with her brothers, it is likely he will also play an significant uncle role in her life.
[14]
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
[15]
At hearing the applicant was asked in cross examination whether he was ever under the influence of drugs or alcohol in the presence of his nephews. He responded 'never' and that he would never expose them to that, it would be a matter of shame for him. His sister confirmed this when asked under cross examination. She stated that she had no concerns for her children regarding the Applicant's offending and she was confident he was not a danger to them.
In the absence of any information contradicting this evidence in the material before it, the Tribunal accepts the Applicant's prior conduct, and likely future conduct, has not and will not negatively impact any of the Applicant's nephews.
[16]
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
[17]
The applicant has had limited if any face-to-face relationship with his nephews since he has been in criminal and immigration custody from July 2024 until now. His sister's evidence is that he calls and checks up on them every day. While there is no evidence before the Tribunal of the effect his absence has had on the children, the Tribunal is satisfied that he maintains connection with his sister by phone and keeps abreast of his nephews' lives though this communication. It accepts that will be able to continue to do this even if he is required to return to New Zealand. While the sister gave evidence that she does try to return to New Zealand every 1-2 years, the Tribunal accepts her evidence that this is likely to become more difficult in future, with four children now and financial limitations.
[18]
(e) whether there are other persons who already fulfil a parental role in relation to the child;
[19]
The evidence before the Tribunal is that all three nephews and his niece live with their mother and father.
[20]
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
[21]
There is no evidence of the views of the children before the Tribunal.
[22]
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
[23]
There is no evidence of this before the Tribunal.
[24]
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[25]
There is no evidence of this before the Tribunal.
The Applicant's submissions on the best interests of minor children is that he has played a positive and meaningful role in his nephews' lives and being able to remain in Australia would allow him to maintain ongoing relationships with them. Electronic communication is not equivalent to physical presence which would better serve their emotional and familial needs.
The Respondent concedes on the evidence before the Tribunal the best interests of the Applicant's nephews is for him to remain in Australia. The Respondent contends that while this consideration weighs in the applicant's favour it does not outweigh the other primary considerations in favour of non-revocation.
Having regard to the evidence and considerations above, the Tribunal accepts the Applicant has a strong and meaningful involvement and role in his nephews' lives and could potentially have a similar involvement in his newborn niece's life. It accepts that he is their only uncle on their mother's side, and that he and his sister have a very strong bond. It accepts that continuing a bond with their uncle is in each of the three nephews' and niece's best interests. The Tribunal accepts that maintaining an ongoing relationship is possible by other means, including phone and video communication, and the possibility of physical visits to New Zealand with their mother in future, but this is not the same as a maintaining a relationship in person. On the strength of the family connections in this case, the Tribunal finds that this primary consideration weighs strongly in favour of revoking the cancellation of the visa.
[26]
Primary Consideration 5: Expectations of the Australian Community
[27]
This consideration makes clear that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. Subparagraph 8.5 (4) goes on to state that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case. [36]
The consideration lists particular character concerns which, if raised by the Applicant's conduct, the Australian community would expect the Australian Government to refuse entry or cancel their visas: subparagraph 8.5.(2).
The Direction states that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: subparagraph 8.5(3).
As submitted by the Respondent, this consideration provides that the Australian community expects that a visa cancellation should not be revoked, the Tribunal's task is to determine the appropriate weight to be ascribed to this consideration.[37]
The Respondent contends that the commission of crimes against police officers in the performance of their duties, and if accepted that it was also a crime of violence against women, brings the Applicant's offending within the specified conduct set out in subparagraph (2) of 8.5. It is further contended that the offending constitutes serious conduct in breach of community expectations for the purposes of subparagraph (1) of 8.5. For these reasons this consideration should weigh significantly against revocation of the cancellation.
The Applicant in his Response stated that while the community generally expects non citizens to obey the law, these expectations are guidance and the Tribunal must weigh all the primary considerations and his ties and rehabilitation and contributions to the community should be taken into consideration. He reiterated that he disputes the characterisation of his offending as violence against women.
The Tribunal has considered its findings above and the submissions with regard to this primary consideration. It accepts that the offending included commission of crimes against police officers in the performance of their duties, although, for reasons discussed above, does not accept the additional characterisation as violence against women in the absence of evidence the gender of the officers was an aggravating factor in the offending. The Tribunal accepts that drug related offences are serious in nature and the Applicant's offending is such that the Australian community would expect his visa to be cancelled.
The Tribunal weighs the factor of expectations of the Australian community against revocation of the cancellation of the visa, however on the totality of evidence before it, only moderately.
[28]
Paragraph 9 of the Direction requires the Tribunal to take into account, where relevant, other considerations including, but not limited to: legal consequences of the decision; extent of impediments if removed; impact on Australian business interests.
9.1 Legal consequences of the decision
The applicant has not made any claims, and there is nothing in the material to suggest that Australia's non refoulement obligations would be enlivened in respect of the applicant.
The Tribunal accepts that a legal consequence of the decision not to revoke the cancellation of the visa is that the applicant will remain in immigration detention as an unlawful citizen, and will be liable for removal from Australia as soon as reasonably practicable: s198 of the Act.
The Tribunal accepts that a legal consequence of the decision not to revoke the cancellation of the visa is that the applicant will remain in immigration detention as an unlawful citizen and will be liable for removal from Australia as soon as reasonably practicable: s198 of the Act. It also finds that if the mandatory cancellation is not revoked the applicant will be permanently excluded from returning to Australia once removed because he will be unable to satisfy the Special Return Criteria in cl 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) and will accordingly be ineligible for most classes of visa that would enable her return to Australia: Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 per Feutrill J at [12]- [14].
The Applicant will also be affected by s 501E of the Act which precludes him from making an application for another visa, other than a protection visa, while in Australia.
The Respondent's only submission on this consideration was that as the applicant has raised no claims based on Australia's non refoulement obligations, it should be accorded neutral weight.
The Tribunal disagrees with the Respondent on the matter of weight, and considers that the above legal consequences of the decision are significant, particularly given the extent of family ties the Applicant has in Australia. It gives it some weight in favour of revoking the cancellation of the visa.
[29]
This consideration requires the Tribunal to consider the extent of impediments the Applicant may face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: his age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in that country.
The Applicant is 33 years old. There is no evidence before the Tribunal to indicate he has any health issues.
The Applicant's evidence to the Tribunal about his contacts and connections in New Zealand are that his mother's brother, his uncle, lives in government housing with a carer, as he has a mental illness. He is not in a good way and would be unable to offer any support to the applicant. He also has elderly grandparents there. His grandmother had a heart attack not long ago and his grandfather is also old and unwell. They are in need of care themselves and would be unable to offer him support. He has other extended relatives but he is not close to any of them.
The evidence of his mother confirmed his evidence about the extent of his contact with relatives in New Zealand and their circumstances.
He said that although he is in good health, he believes the circumstances for the Maori community in New Zealand is not good. He is on track with his rehabilitation here and has employment prospects lined up. He has none of that in place if he were to return and he fears for what would happen to him on return.
The Respondent's submissions are that while acknowledging that he may have some impediments to establish himself in New Zealand these are not insurmountable. He is in good health, has some prior work history and capacity to engage in work as referenced by the sentencing judge, and there are organisations in New Zealand such as Te Pa and PARS which provide assistance to people deported from overseas.
The Tribunal has considered the evidence and submissions relevant to this consideration. It accepts that the applicant's relatively young age and good state of health suggest these factors would present no impediment to his return. As a Maori, born New Zealander, there are no language or cultural barriers facing him. It accepts that as a New Zealand citizen he would be eligible to any social, medical or economic support available to all New Zealand citizens.
However it finds on the evidence that his close family and support structure are all in Australia as are his connections for gaining employment, and that he would not have this level and kind of support immediately available to him upon return. Given the stage in his rehabilitation that he is at, these protective factors are critical to ensure he remains on track and does not relapse into substance use and potentially reoffending. To this end, the Tribunal accepts that the Applicant does face significant impediments in establishing himself and maintaining basic living standards on return to New Zealand and it gives this consideration some weight in favour of revoking the cancellation of the visa
[30]
This consideration requires the Tribunal to consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project or delivery of an important service in Australia.
There is no evidence in this matter of any impact on Australian business interests if the applicant is not allowed to remain in Australia. Specifically, there is no evidence the decision on revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal gives this consideration weight neither for nor against revocation of the cancellation.
[31]
The Tribunal has made the following findings as to the weight it gives to the relevant primary considerations in the Direction:
The nature and seriousness of the Applicant's conduct weighs against revocation of the cancellation of the visa. While protection of the Australian community against serious criminal conduct of the kind committed by the applicant weighs against revoking the cancellation of the visa, the Tribunal found that the risk to the Australian community of the applicant reoffending is low to moderate and therefore it affords a moderate weight to this consideration.
There was no evidence of family violence in this case and this consideration is not relevant to the Tribunal's decision.
The strength, nature and duration of ties to Australia for the Applicant in this case weighs strongly in favour of revocation of the cancellation of the visa;
The best interests of minor children weighs strongly in favour of revocation of the cancellation of the visa;
The expectations of the Australian community weighs moderately against revocation of the cancellation of the visa.
[32]
In respect of other considerations, the Tribunal finds:
[33]
The legal consequences of the decision weigh in favour of revocation of the cancellation of the visa;
* The extent of impediments if the applicant is removed weighs in favour of revocation of the cancellation; and
* Australian business interests weigh neither for nor against cancellation.
[34]
The Applicant does not pass the character test under s501 of the Act and the Tribunal has considered whether there is another reason why the cancellation should be revoked, having regard to the primary and other considerations set out in Direction 110.
Paragraph 7 of the Direction gives guidance on how the relevant considerations should be weighed and applied. Judicial authorities have considered the exercise of balancing and weighing considerations in the relevant Ministerial Directions. In Suleiman v MIBP the Court referred to the appropriate weight to be given to primary and other considerations, stating that what is required is an inquiry as to whether one or more considerations should be treated as being a primary consideration, or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[38] In FHHM v MICMSMA the Ful Court endorsed the approach in Sulieman, framing the question as whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.[39]
In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[40] the Full Court stated that compliance with the Direction is not achieved by focussing upon individual considerations attributing some form of weight to that consideration in isolation. The task of the Tribunal is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.[41] The Court went on to state:
[35]
The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing.
[36]
In bringing together the considerations as part of a single evaluation as required in CRNL the Tribunal finds the nature and seriousness of the Applicant's conduct weighs moderately against revocation of the cancellation of the visa and is tempered by the Applicant's rehabilitation efforts and evidence supporting that the risk to the Australian community of the applicant reoffending or committing other serious conduct is low to moderate. The Tribunal gives the primary considerations of protection of the Australian community against criminal and other serious conduct and expectations of the Australian community, moderate weight against revocation in this matter, and this is balanced against the primary consideration of the Applicant's strength, nature and duration of ties to Australia, and best interests of minor children which the Tribunal weighs strongly in favour of revocation of the cancellation especially because of the significant impact on the Applicant's immediate family and the substantial length of time he has resided in Australia. The primary considerations relating to family violence does not arise. The other considerations, including legal consequences of the decision and extent of impediments all also fall on this side of the scale in favour of revocation.
Balancing all of these findings and weighing them together in a single evaluation, on the totality of the evidence before it, the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked under s501CA (4), having regard to the Direction 110.
[37]
The Tribunal sets aside the decision not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (temporary) visa under s501CA(4) and in substitution decides that the cancellation of the Class TY Subclass 444 visa is revoked under s501CA (4)
[38]
Mr S Valliapan, Australian Government Solicitors
[39]
[2] 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 (commencing 21 June 2024).
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCAFC 138
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2025] FCAFC 14
The Respondent's submission is that because the applicant's offending is 'very serious,' any likelihood they may be repeated is unacceptable. It is argued that the potential harm caused by further drug related offending especially if conducted in a violent manner could involve significant physical, financial and psychological harm to members of the Australia community, citing in support of this submission the decision of _Tahuriorangi and Minister for Immigration and Border Protectio_n [2018] AATA 2158 at [51]- [54], on the nature of potential future harm involved in the sale of dangerous drugs.
Above, the Tribunal disagreed with the characterisation of the Applicant's offending and conduct as very serious, finding rather that it was serious. The index offending in this case involved substantial quantities of dangerous drugs, for which he was sentenced on the basis that it was in his possession for mixed commercial (ie sale for profit) and personal use. He also engaged in serious assault against law enforcement officers in the performance of their duties.
As to whether this is an unacceptable risk requires consideration of not only the likelihood of it occurring but also the seriousness of the consequences if it does: Tanielu v Minister for Immigration and Border Protection(2014) FCA 673 at [95] per Mortimer J.
The Tribunal accepts that using and selling dangerous drugs has the potential to cause significant, including catastrophic, harm to users and may have other adverse effects in the community, such as precipitating associated violence and robbery. It accepts that the seriousness of the Applicant's offending and the harm to the community were it to be repeated is equally serious.