1. As the applicant accepted, having a substantial criminal record meant he did not pass the character test per s 501(6)(a) of the Act. Pursuant to s 501(3A) of the Act, in these circumstances, by letter dated 12 September 2024, the applicant was advised that his visa was mandatorily cancelled (the cancellation decision). Section 501(3A) states:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. The notice invited the applicant to make representations to the Minister pursuant to s 501(CA)(4) of the Act as to why the cancellation decision should be revoked. Section 501CA(4) states:

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

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

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

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

1. On 10 October 2024, within the 28 days prescribed under regulation 2.52 of the Migration Regulations 1994 (the Regulations), the applicant (through his legal representative) requested the cancellation decision be revoked.[7] He provided letters of support from each of his children, his wife, the Igbo Association of Victoria, a personal circumstances form[8] and a legal submission as to why the cancellation decision should be revoked.
2. On 27 June 2025, a delegate of the Minister decided not to revoke the cancellation decision because they were not satisfied the applicant passed the character test and were not satisfied there is another reason for why the cancellation decision should be revoked.[9] Having decided not to revoke the original decision, the applicant's protection visa remained cancelled. The delegate provided a statement of reasons for their decision.[10]
3. On 7 July 2025, the applicant applied to the Tribunal for review of the delegate's decision.[11] On review, the Tribunal's function is to hear the matter afresh and decide what it considers to be the correct or preferable decision on the evidence before it.[12]
4. On 15 August 2025, the applicant's lawyer provided a detailed statement of facts, issues and contentions in support of the revocation sought. In it, the applicant again acknowledged he did not pass the character test and then addressed the considerations in Direction 110 as to why, he said, there is "another reason" for why the cancellation decision should be revoked. This entailed, in summary, a submission that the considerations in Direction 110 in favour of revocation outweighed the considerations against revocation.
5. On 25 August 2025, the Minister likewise provided a statement of facts, issues and contentions setting out why, in his submission, primary considerations 1 and 5 in Direction 110 that weighed against revocation outweighed primary and other considerations in favour of revocation, as detailed below.
6. On 1 September 2025, the applicant provided a submission in reply.

1. The applicant accepted he does not pass the character test relevantly prescribed under s 501(6)(a) of the Act. Having regard to his convictions, his sentence to a term of of 5 years and 6 months imprisonment and the definition of "substantial criminal record" in s 501(7)(c) of the Act, that acceptance was plainly right. I find accordingly.

1. Pursuant to s 499(2A) of the Act, when deciding whether there is 'another reason' for why the cancellation decision should be revoked, I was required to comply with Direction 110.[13]
2. The starting point was the eight principles in paragraph 5.2 of Direction 110:

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

1. Direction 110 then moves, in Part 2, to the topic: "Making a decision". Paragraphs 6, 7, 8 and 9 in Part 2 state:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

7. Taking the relevant considerations into account

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

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

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

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

(5) expectations of the Australian community.

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

1. a) legal consequences of the decision;
2. b) extent of impediments if removed;
3. c) impact on Australian business interests
4. In Manebona and Minister for Immigration, Citizenship and Multicultural Affairs (Manebona),[14] the Administrative Appeals Tribunal (the AAT), per SM Manetta, commented on the operation of Direction 110 as follows:

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).

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 subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.

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 measureable 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 measureable risk of causing harm to the Australian community.[15]

1. I agree with and adopt those statements.
2. Pursuant to paragraph 6, I took into account the primary considerations identified in paragraph 8 and the other considerations identified in paragraph 9 where relevant. Pursuant to paragraph 7, I gave greater weight to the first primary consideration than to the other primary considerations and greater weight to the primary considerations than to the other considerations.
3. For the reasons given by a Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL),[16] I then balanced the relevant considerations against each other and, by this means, evaluated whether there is 'another reason' for why the cancellation should be revoked.[17]

Protection of the Australian community - general

1. Regarding the first primary consideration, I kept in mind paragraph 8.1(1) which states:

When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principal that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

1. When considering protection of the Australian community, I also gave consideration to the factors in paragraph 8.1(2):

a) the nature and seriousness of the non-citizen's conduct to date; and > > b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

2. I also had regard to the details in paragraphs 8.1.1 and 8.1.2 (and the subparagraphs within them) which provide details about the two considerations stated in paragraph 8.1(2).

Protection of the Australian community - nature and seriousness of the conduct

1. Paragraphs 8.1.1(1)(a)-(i) state eight factors to which decision-makers "must have regard" when considering "the nature and seriousness of the non-citizen's criminal offending or other conduct to date". I did so.
2. Paragraph 8.1.1(1)(a) opens with the words "without limiting the range of conduct that may be considered very serious", and then describes three "types of crimes or conduct [that] are "viewed very seriously by the Australian Government and the Australian community", the first of which is "violent and/or sexual crimes".
3. When paragraphs 8.1.1(1)(a) and (b) are read together, it is clear that paragraph 8.1.1(1)(a) establishes the deemed views of the Australian Government and the Australian community that some types of crimes or conduct are 'very serious', per paragraph 8.1.1(1)(a), whilst other types are 'serious' per paragraph 8.1.1(1)(b).[18]
4. With reference to paragraph 8.1.1(1)(a), the applicant noted his convictions were not for offences of a kind described in that paragraph. In particular, his offences were not violent or sexual crimes.[19] The applicant noted the County Court found his offending to be serious, and noted its view that the second offence was less serious than the first.
5. The Minister acknowledged the applicant's offending was not of a kind stated in paragraph 8.1.1(1)(a), but noted those kinds of offences are framed as non-exhaustive examples of "very serious" conduct. The Minister submitted the Tribunal can still be satisfied the applicant has engaged in crimes considered by the Australian Government and Australian community to be "very serious" in circumstances where his offending is directly related to the supply of drugs to the Australian community. The Minister relied on observations of the AAT in SCJD and Minister for Home Affairs[20] and of this Tribunal in Salanoa and Minister for Immigration and Citizenship[21] about the corrupting effect of drug trafficking on the community; that in many instances "overdosing on heroin .. leads to death"; drug addiction leads to victims descending into criminal behaviour to support their habit; and that from many angles "trafficking of illicit drugs is a very serious matter".
6. I accept the Minister's submission. However far down the supply chain the applicant was, and regardless of his motivation being only to obtain a relatively small sum of money to help support his family, to facilitate the illegal supply of heroin to the community is a very serious matter. I note that after summarising the applicant's offending, Parrish J of the County Court began his conclusion by stating "You have pleaded guilty to two very serious charges."[22] Even allowing for the reduced sentence on appeal, the sentence of imprisonment reflects offences that are very serious.
7. When considering the nature and seriousness of the applicant's criminal offending, I then had regard to the factors set out in paragraphs 8.1.1(1)(c) - (i) of Direction 110.
8. Pursuant to paragraph 8.1.1(1)(c), I considered the sentence imposed by the Court of Appeal which, again, underlined the seriousness of the offences. In Pavey and Minister for Home Affairs (Pavey),[23] the AAT said:

As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.[24]

1. Paragraph 8.1.1(1)(d) concerns the impact of the applicant's offending on any victims of offending or other conduct and their family. Neither the applicant nor the Minister referred to paragraph 8.1.1(1)(d), and it is strictly not relevant because there was no identified victim of the applicant's offending. Nevertheless, as was pointed out to the applicant by the Court and by the Minister, illegal supply of heroin leads to victims of drug addiction and all the adverse consequences for victims of that addiction.
2. Paragraph 8.1.1(1)(e) concerns "the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness". Whilst there were two offences committed in March and April 2021, there was no offending before or after that time nor any 'trend' of increasing seriousness. They were two stand-alone drug couriering offences. In my view, paragraph 8.1.1(1)(e) weighs neutrally when considering the nature and seriousness of the applicant's criminal offending.
3. Paragraph 8.1.1(1)(f) concerns "the cumulative effect of repeated offending". Appropriately, the Minister made no submissions regarding this consideration. I was not persuaded this factor is relevant when considering the nature and seriousness of the applicant's conduct.
4. Paragraph 8.1.1(1)(g) concerns the provision of false or misleading information to the Department including nondisclosure of prior criminal offending. There was no suggestion this factor is relevant, and I put it aside.
5. Paragraph 8.1.1(1)(h) is concerned with whether the applicant has re-offended since being formally warned or made aware about the consequences of further offending in terms of his migration status. There was no suggestion this factor is relevant, and I put it aside.
6. Paragraph 8.1.1(1)(i) concerns an offence or conduct committed in another country. That factor was not relevant, and I put it aside.

Protection of the Australian community - risk to the Australian community

1. Paragraph 8.1(2) b) of Direction 110, detailed in paragraph 8.1.2, addresses the risk to the Australian community should the applicant reoffend or engage in other serious conduct. Paragraph 8.1.2 addresses, in particular, the need to protect the Australian community from harm. It relevantly states:

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i) information and evidence on the risk of the non‑citizen re-offending; and

ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. Of note is that paragraph 8.1.2(2) required consideration, "cumulatively", of the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of him engaging in such conduct.
2. In Murphy v Minister for Home Affairs (Murphy),[25] the Federal Court, per Mortimer J (as she then was), commented on risk of reoffending as follows:

... part of the Tribunal's task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community.[26]

1. The applicant submitted the risk of him reoffending is low. He relied on his claimed remorse and rehabilitation, his shame and regret for what he did, that he is now drug-free, his wish to work and support his family and his recognition that he will not get another chance should he reoffend. He relied on the sentencing remarks of the County Court that his prospects of rehabilitation are reasonable[27] and his term of imprisonment from which the Court hoped he would learn not to be involved with drugs again.
2. The applicant also relied on a report from Mr Kleynhans, a psychologist, who spoke about the applicant's upbringing in a dysfunctional family and that the risk of him reoffending would be reduced if he received drug and psychology treatment from a psychologist. He relied on his offers of work upon release from prison that work would keep him occupied and give him a source of income to support his family. He relied on his good behaviour whilst in custody. The applicant relied on his disconnecting with the negative peer group that led him to criminally offend.
3. The Minister noted the applicant's crimes were to obtain money to support his family. He submitted the applicant has a continuing need for money for that reason and so may reoffend for that reason. The Minister contended the applicant's remorse was more focused on the impact his offending had had on his family than the serious adverse impact the intended supply of heroin would have had on the community. The Minister noted that whilst the applicant had participated in a drug and alcohol program in 2023, he does not appear to have actively addressed the factors of stress and mental health that led to his criminal offending in the way suggested by Mr Kleynhans. The Minister submitted the evidence is tenuous as to whether the applicant has offers of work upon release from prison, and that unemployment might lead him to reoffend to obtain money. In total, the Minister submitted there remains a "moderate risk that the applicant may reoffend, particularly if he is faced with further financial pressures to provide for his family in the future".[28]
4. On the whole of the evidence, I accept there is a risk of the applicant reoffending to obtain money, if released into the community on parole or subsequently, but I regard the risk as low. As the Minister acknowledged, the applicant has disconnected from negative peers. The Minister also acknowledged the applicant's wife has tried to contact financial counselling and psychologist services if the applicant is released into the community. Also, whilst the evidence of offers of employment upon release from prison was not compelling, I am satisfied the applicant wants to work and has good prospects of obtaining work.
5. Of importance, in my view, is the 'one off' nature of the offending in March and April 2021 and the heavy penalty that has been imposed upon him for his crimes that has led to his incarceration and separation from his family for many years. On the evidence, I accept he is ashamed of the financial and other suffering he has brought upon his family. I accept he is determined to support his family by engaging in lawful employment in future if released into the community. I am satisfied he recognises the very high price he would pay if caught reoffending again in terms of possible further imprisonment, further separation from his family, likely further cancellation of his visa leading to his removal from Australia and consequential permanent separation from his family.
6. Returning to the first primary consideration, the applicant did not in terms submit whether this consideration weighed against revocation or, if it did, how heavily it should be weighed. Nevertheless, I inferred a submission that his admitted crimes mean the first consideration weighs against revocation but not heavily consequent on his submission that the risk of him reoffending is low.
7. The Minister submitted that, having regard to the nature and seriousness of the applicant's offending and the claimed moderate risk of him reoffending, the first primary consideration "ought to weigh heavily against revocation".
8. When considering the first primary consideration, protection of the Australian community, I kept in mind that safety of the Australian community is the highest priority of the Australian Government. In that context, I gave consideration to the two factors in paragraph 8.1.(2).
9. The applicant's crimes were very serious and directly contradicted the safety of the Australian community. Even though I regard the risk of the applicant reoffending to be low, I accept the Minister's submission that the first primary consideration weighs heavily against revocation.

1. The second primary consideration in paragraph 8 of Direction 110 is whether the applicant has engaged in conduct that constituted family violence. The parties agreed there is no evidence of the applicant engaging in such conduct, and this consideration should therefore be given neutral weight. I agree.

1. The third primary consideration is the strength, nature and duration of the applicant's ties to Australia. Section 8.3 details this consideration as follows:

8.3. The strength, nature and duration of ties to Australia

(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 whether to 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:

1. (a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

1. (b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
2. The applicant relied on his residency in Australia for the past 12 years and that he has a wife, three biological children and one stepchild all of whom are Australian citizens. He noted his mother-in-law is also an Australian citizen. He relied on his ties to the Igbo community where he coached soccer. He relied on his contribution to the community by his employment and work in the community. He noted the delegate of the Minister in the decision under review found that this primary consideration weighed "strongly in favour of revocation of the mandatory cancellation" of his visa.[29] The applicant did not make a submission as to how this primary consideration should be weighed, but I inferred an agreement with the finding of the delegate.
3. The Minister acknowledged the applicant's submissions about his ties to the community. The Minister also noted correspondence from a pastor who advised the applicant would join the pastor's church if released into the community. The Minister submitted that "overall the applicant has demonstrated some ties to the Australian community, and accordingly [the second primary consideration] "weighs moderately in favour of revocation".[30]
4. I have considered the significant impact that removal from Australia would have on the applicant's many immediate family members who are Australian citizens, particularly his wife and children and mother-in-law, were his visa to remain cancelled and him therefore needing to depart permanently from Australia. I accept the evidence of his ties to the wider community through the Igbo Association of Victoria which I find to be meaningful through his role as a youth soccer coach and his wish to continue that role with participation of his son.
5. The parties agree this primary consideration weighs in favour of revocation, the only question being to what extent. On balance, I prefer the opinion of the delegate that it weighs strongly in favour of revocation rather than moderately as submitted in this proceeding.

1. The fourth primary consideration in paragraph 8 is the best interests of minor children in Australia.
2. As discussed above, the applicant has four minor children comprising three biological children, now aged 10, 7 and 3, and a step-daughter aged 16. I accept the evidence that the applicant's step-daughter lives with the applicant and his wife and is part of their family. All the children are Australian citizens.
3. The parties agreed, appropriately, that the best interests of these children is a primary consideration in favour of revocation of the cancellation decision. The question was how much weight should be given to this consideration, to which I now turn.
4. The applicant relied on the close and loving relationship he has with his children. I accept the evidence that he lived with them all prior to his incarceration. I accept too the evidence that since his incarceration he telephones them every day and they visit him every Sunday. Each of the children to the extent of their ability wrote letters and provided drawings evidencing their love for their father and their wish for him to return home upon his release from prison.
5. The applicant relied on the very substantial adverse effects on the minor children that would occur if his visa remained cancelled and he needed to depart Australia. In particular, the children would lose all meaningful contact with their father because his wife has made clear that she and the children would not follow him to Nigeria where their prospects in life would be significantly poorer than they are in Australia. I note his wife is from Togo, not Nigeria. Also, the family would not have the financial means to visit the applicant in Nigeria regularly if at all. The applicant noted that his removal from Australia would leave his wife as a single mother and significantly diminish the family's financial well-being consequent on the absence of the applicant who wishes to be a 'bread winner' for his family. The applicant noted the delegate gave this consideration "significant weight" in favour of revocation.[31]
6. The applicant also relied on Australia's obligations under Article 3 of the United Nations Convention on the Rights of the Child (the CRC) which provides that "in all actions concerning children ... the best interests of the child shall be a primary consideration". I note the Preamble to the CRC in which the parties to it (which includes Australia) agreed that:

the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.

1. The applicant did not make a submission as to how this primary consideration should be weighed when deciding whether to cancel the revocation, but I inferred his agreement with the delegate.
2. The Minister acknowledged the applicant's children miss their father very much, feel upset when asked by their schoolmates about their father's absence and are looking forward to his return home so he can continue to support his family. The Minister acknowledged this consideration "weighs in favour" of revocation" but did not go further as to the extent it does so.
3. The evidence was uncontroversial that the applicant is a committed partner and father to his wife and children, and wishes to support them emotionally, practically and financially. The children in return, as the Minister accepts, have a very close relationship with him and do what they can to maintain that relationship whilst he remains in prison.
4. True, the applicant's crimes were very serious and he must serve his term of imprisonment as a consequence. The children have no choice but to come to terms with the fact that their father is presently incarcerated, and to deal with that as best they can, but for them to lose their father altogether in any meaningful way is a far greater and potentially lifelong consequence to their detriment. Avoidance of that consequence is very much in the best interests of the children.
5. Several aspects of the evidence strengthened the weight I gave in favour of revocation by reference to this primary consideration.
6. First, whilst I acknowledged the Minister's reservations, I am satisfied the applicant has learnt from his errors and, if released back into the community, will avoid negative peer groups and will concentrate on obtaining lawful employment to raise and support his family in a productive, meaningful and law-abiding manner. I am satisfied he is a good father and, if given the chance, will continue to be so. To take that away from his children would be an extremely serious adverse consequence for them.
7. Second, I accept his evidence that he has ceased using methamphetamines and is drug-free.
8. Third, the applicant's wife is currently denied the applicant's emotional, practical and financial support in bringing up their children at their very demanding and influential ages and, it seems, is to a large extent doing so on her own. That is very much contrary to the best interests of the children, however well she is managing.
9. For these reasons, the best interests of the applicant's four children weighed heavily in favour of revocation.

1. The fifth primary consideration is the expectations of the Australian community. Paragraph 8.5 details this consideration as follows:

8.5. Expectations of the Australian Community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

1. a) acts of family violence; or
2. b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
3. c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
4. d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
5. e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
6. f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community

(4) 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.

1. This consideration has been the subject of much judicial[32] and tribunal comment.[33] In summary, the Tribunal must regard the fifth consideration as a kind of deeming provision about what the Australian community expects, as articulated by the Minister. It is not for the Tribunal itself to determine such expectations. In particular, as a norm, the community expects a person who has engaged in serious conduct would not be allowed to remain in Australia. In relation to that norm, in FYBR v Minister for Home Affairs (FYBR), Charlesworth J sitting as a member of a Full Court of the Federal Court commented on this consideration, in an earlier materially similar Ministerial direction, as follows:

The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12.[34]

1. I refer also to Stewart J_'s_ explanation of community expectations in FYBR:

To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

(a) non-citizens will obey Australian laws when in Australia;

(b) it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;

(c) in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.

Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive." This limited expression of "community expectations" by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[35]

1. The applicant properly acknowledged the Australian community would expect the applicant not to continue to hold a visa,[36] but submitted that expectation should give way to the circumstance that "the Australian community values family and would not want innocent children to be deprived of their father at the basic early years and formative stage of their lives".[37]
2. With reliance on FYBR, the Minister correctly contended this primary consideration is to be applied "normatively". The Minister also submitted with reference to paragraph 8.5(2) of Direction 110 that this is a case where cancellation "may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa". In this respect, the Minister was referring to the applicant's involvement in drug trafficking in Australia which poses a serious risk to the well-being of the Australian community. The Minister submitted this primary consideration "weighs significantly" against revocation.
3. I was not persuaded non-revocation was appropriate "simply because" of the nature of the applicant's offending. I was satisfied other factors needed to be weighed in the balance.
4. Nevertheless, per paragraph 8.5(1), I accepted that "as a norm" the Australian community would not expect the Government (and now this Tribunal on review) to allow the applicant to remain in Australia. That norm, reflected in the fifth primary consideration, weighed significantly against revocation.

1. I turn to the three non-exhaustive "other considerations" in paragraph 9: legal consequences of the decision, extent of impediments if the applicant is removed; and the impact of the decision on Australian business interests. Details concerning these three other considerations are provided in paragraphs 9.1 (including 9.1.1 and 9.1.2 concerning non-citizens covered or not by a protection finding), 9.2 and 9.3, respectively, which I took into account.

1. In support of his application for revocation of the mandatory cancellation of his visa, the applicant completed and provided a personal circumstances form, albeit (as his lawyer stated at hearing) completed by his lawyer on his behalf. In response to the question whether he had any concerns or fears about what would happen to him if returned to Nigeria, the applicant's lawyer wrote "there is a lot of insecurity in Nigeria, kidnapping and killing of Igbo youths. My life and the life of my children are not safe in Nigeria".[38]
2. With reliance on that claim, the applicant submitted that to return him to Nigeria where his life would be in danger would be a breach of Australia's non-refoulement obligations. I understood the applicant to be referring to Australia's obligations under the Conventions and Covenant identified in paragraph 9.1(2) of Direction 110.
3. The Minister submitted the appropriate course is for the Tribunal to defer an assessment of whether Australia has non-refoulement obligations to the applicant on the basis that it is open for the applicant to apply for a protection visa. Whether those obligations are owed would need to be assessed in a consideration of such an application. As the Minister pointed out, this approach is consistent with paragraph 9.1.2(2) of Direction 110 which provides that where it is open to the applicant to apply for a protection visa, the Tribunal is not required to determine whether non-refoulement obligations are engaged in respect of the applicant. Also, as the Minister pointed out, that is consistent with the High Court's decision in Plaintiff M1-2011 v Minister for Home Affairs.[39]
4. In this case, having considered the applicant's claim that returning him to Nigeria would be in breach of Australia's non-refoulement obligations, I decided it was preferable to defer an assessment of that claim where, as the applicant acknowledges he can,[40] it is open for him to apply for a protection visa. At present, the evidence in support is very slight, comprising only a handwritten sentence in his personal circumstances form written by his lawyer, a claim in his wife's statement that "life will be generally unsafe for us in Nigeria" and generic country information about risks in Nigeria. The claim is better assessed if and when an application for a protection visa is made and more reliable evidence in support is assembled.
5. Nevertheless, as the Minister acknowledged, it is appropriate to consider the applicant's claimed facts about the risks he faces if returned Nigeria. For example, the applicant claimed that if he returned to Nigeria from overseas (i.e. from Australia), which would be a legal consequence of cancellation of his visa, persons encountering him in Nigeria would assume he had money and he would therefore be at risk of them seeking to obtain money from him by violent means.
6. I accept that the risk of adverse consequences to the applicant weighs in favour of revocation, but, in my view, only lightly where I am unable to assess the likelihood of the risk based on the limited evidence before me.
7. The Minister acknowledged that not to revoke the cancellation decision would render the applicant liable to be removed from Australia as soon as practicable after completing his term of imprisonment and any period of immigration detention pending removal from Australia. The Minister noted that if removed, the applicant would be unable to satisfy the special return criteria in clause 5001(c) of Schedule 5 to the Regulations which is required for the grant of most visa types.
8. The Minister submitted these legal consequences, whilst adverse to the applicant, are intended purposes of the statutory scheme and so should be given neutral weight.[41] I agree. Also, to do otherwise risks inappropriately duplicating weight given to other considerations that weigh in favour of revocation.

Extent of impediments if the Applicant is removed to Nigeria

1. Regarding the second 'other consideration' under paragraph 9(1)(b) of Direction 110, the applicant submitted he would face significant impediments if removed to Nigeria. He relied on the circumstance that he has diabetes, suffers from depression and has a diagnosed persistent depressive disorder (dysthymia) with anxious distress substance abuse disorder. He contended he would have difficulty obtaining medical treatment for these disorders in Nigeria, especially because treatment would be unaffordable for him, and that it would be difficult for him to reintegrate back into Nigeria where he has not lived for the last 12 years and where there is significant unemployment.
2. The applicant also noted he would receive very little support from family in Nigeria, were he to be removed there. He said that whilst he is one of 22 children, he now has contact only with his sister, Gladys, who could provide him with very little support because she has her own family to support.
3. In all, the applicant submitted he would face significant financial, practical and medical impediments were he removed to Nigeria. This consideration, the applicant submitted, weighed in favour of revocation.
4. The Minister noted, as the applicant acknowledged, that the applicant would not face any language or cultural barriers if returned to Nigeria. The Minister noted the applicant would have access to health services in materially the same way as other Nigerian citizens, whilst accepting he would need medical assistance to manage his diabetes. The Minister submitted the applicant's claims about the general security situation in Nigeria and the risk of him being kidnapped or killed for money are not corroborated. Where his family would not follow him to Nigeria, the Minister acknowledged the applicant would face significant emotional hardship if returned to Nigeria and therefore separated from his family.
5. Whilst submitting these factors lessen the weight that should be given to this consideration, the Minister nevertheless acknowledged that impediments the applicant would face if removed to Nigeria weighed in favour of revocation.
6. In my view, whilst the applicant would not face any material language or cultural barriers if returned to Nigeria, in many respects he would need to start again and by himself. He would need to find work, accommodation, appropriate health care (especially to help him manage his diabetes) and do so without family support.
7. By reason of distance, removal would also create substantial impediments to him having any further material connection with his wife and children contrary to his and their clear wishes. On any view, especially having regard to his clinical depression, it is a circumstance that would test his resolve especially where he has no wish to live in Nigeria.
8. Having considered the competing submissions, in my view the impediments the Applicant would face if removed to Nigeria weighed in favour of revocation. However, I weighed them only moderately, to avoid duplication with other considerations that weighed in favour of revocation.

1. Regarding the third 'other consideration' under paragraph 9(1)(c) of Direction 110, the applicant noted that prior to his incarceration, he was self-employed in his business at Footscray Markets before that business collapsed; that he worked as a forklift driver at Bundles Epping; that he owned a shop; that he worked casually in a warehouse; that he worked as a kitchen hand whilst in prison; that he has qualifications to perform construction work; and that he obtained trade qualifications whilst in prison.
2. For reasons that were not clear in relation to this consideration, he also relied on his son's position as goalkeeper at the Italian Soccer club in Sunshine Victoria; that he wants to support his son to continue to play soccer; and that he voluntarily mentors and coaches youth soccer players. The applicant submitted that football coaching is an important service in Australia and that to cancel the applicant's visa would "significantly compromise" the delivery of this important service.
3. Notwithstanding these submissions, the applicant acknowledged paragraph 9.3 of Direction 110 which notes "an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia."
4. In my view, the factors on which the applicant relied do not demonstrate the cancellation of the applicant's visa would have an impact on Australian business interests. I accept the Minister's submission that there is no evidence to indicate that this consideration is relevant to the applicant's circumstances. I gave this consideration neutral weight.

1. The weighing exercise required me to address the precise circumstances of the individual case. I took into account the following observations of the Federal Court in CRNL regarding consideration of the relevant matters:

34 ... in order to meet the requirements of the Direction, the Tribunal had to undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is "another reason" to revoke the cancellation.

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. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[42]

1. Arising from the first primary consideration, I kept in mind that the safety of the Australian community is the highest priority of the Australian Government. I kept in mind the principle that remaining in Australia is a privilege that Australia confers on non-citizens (in this case the applicant) in the expectation that they are law-abiding, will respect Australian institutions and will not cause or threaten harm to individuals or the Australian community. Informed by these principles and that the applicant's crimes were very serious, the first primary consideration weighed heavily against revocation.
2. For the reasons given, the fifth primary consideration (expectations of the Australian community) weighed significantly against revocation.
3. The question was whether those two primary considerations were outweighed by the considerations in favour of revocation when deciding whether to revoke the mandatory cancellation of the applicant's visa. I acknowledge the delegate's conclusion that the balance weighed against revocation. At hearing, the Minister took materially the same position by submitting that primary considerations 1 and 5 that weigh against revocation outweigh primary considerations 3 and 4 and the 'other considerations' that weigh in favour of revocation. At hearing, the Minister acknowledged it was a question of discretion and balance. The Minister acknowledged it was open for the Tribunal to conclude the balance falls the other way.
4. Respectfully, in my view, primary considerations 1 and 5 are outweighed by the considerations in favour of revocation. In particular, referring to primary consideration 4, the best interests of the applicant's four children weighed heavily in favour of revocation. When coupled with the weight I gave to his ties to the community and some weight to the other considerations described in paragraphs 9.1 a) and b) of Direction 110, if the applicant were removed to Nigeria, I concluded the balance overall weighed in favour of revocation.

1. Where the applicant did not pass the character test, but I was satisfied there is another reason for why I should revoke the cancellation of the applicant's visa, I will order the decision under review be set aside and, in substitution, order that the mandatory cancellation of the applicant's visa be revoked with the result that the applicant continues to hold his visa.

Solicitor for the Applicant: Oz Lawyers & Associates

[3] The applicant set up a business at Footscray markets which failed and led to him suffering financial loss

[6] Collins Udemba v the King [2025] VSCA 61; SM1

[12] See, for example, Frugtniet v ASIC [2019] HCA 16 at [51]

[13] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [19]; Khaled Ayache and Minister for Immigration and Border Protection [2018] AATA 186

[14] [2024] AATA 3321

[15] [2024] AATA 3321 at [25]- [27]

[16] [2023] FCAFC 138

[17] [2023] FCAFC 138 at [139]

[18] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [21]- [27]

[19] Applicant's statement of facts, issues and contentions dated 15 August 2025 at [42].

[20] [2018] AATA 4020 at [81] - [82]

[23] [2019] AATA 4198

[24] [2019] AATA 4198 at [44]

[25] [2018] FCA 1924

[26] [2018] FCA 1924 at [37]

[28] Minister's statement of facts issues and contentions dated 25 August 2025 at [49]

[30] Minister's statement of facts, issues and contentions dated 25 August 2025 at [57]

[32] Uelese v Minister for Immigration and Border Protection [2015] FCA 358 at [64] - [65]; YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; FYBR v Minister for Home Affairs [2019] FCA 185 at [75]- [76] and [100]-[101]

[33] HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377 at [44]; Khaled Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]

[34] [2019] FCAFC 185 at [75]- [76]

[35] [2019] FCAFC 185 at [101]- [102]

[36] Applicant's statement of facts issues and contentions dated 15 August 2025 at [155]

[37] Applicant's statement of facts issues and contentions dated 15 August 2025 at [156]

[39] [2022] HCA 17 at [9], [30], [35] and [42]

[40] Applicant's statement of facts, issues and contentions dated 15 August 2025 at [174]; Applicant's reply to Minister's statement of facts issues and contentions dated 1 September 2025 at [114]

[41] Minister's statement of facts, issues and contentions dated 25 August 2025 at [78]

[42] [2023] FCAFC 138 at [34]- [35]