The applicant's conduct while in criminal custody

1. A Parole Review Report[12] by the WA Department of Justice dated 16 October 2025 indicates that while in prison, the applicant has engaged in several acts of misconduct or insubordination, including obtaining a gang tattoo, as well as causing property damage by setting a fire in his cell and setting fire to a mattress, and he has assaulted other prisoners.[13] On 6 November 2026, the Prisoners Review Board made a decision to deny the applicant parole for reasons set out below.[14]

1. Based on the applicant's oral and written evidence,[15] and a written statement from his mother,[16] he was born in New Zealand in 2003 and came to Australia when he was 3 years old. His parents live in Australia and are New Zealand citizens. The applicant worked as a casually labourer for one year in the past. He was a keen motocross racer as a teen. He is single and has a 3-year-old daughter, W, born in 2022. W is cared for by the applicant's mother and they visit the applicant in prison.

1. The evidence does not indicate that the applicant suffers from any physical or psychological conditions,[17] but there is evidence he has had ongoing issues with substance use. The sentencing judge in the District Court of Western Australia (the sentencing judge) refers in his sentencing remarks in September 2024 in respect of the Index Offence to the applicant starting to use alcohol and cannabis at age 12 and first using methamphetamine when he was 15, and being a regular user since 2021.[18] The applicant gave similar oral evidence in the hearing, as set out below.

1. Given the applicant was unrepresented, I was careful to ensure the process of the hearing and matters of significance were clearly explained to him orally in the hearing. The applicant had a copy of the Hearing Book before him in the hearing, which had also been provided to him in prison. The applicant did not provide a written statement or additional documents in support of his application for review other than what is contained in the G documents. His oral evidence in the hearing was generally brief and lacking in elaboration despite him being given the opportunity to express himself more fully.
2. In the hearing, I explained to the applicant that the respondent may ask him questions about conduct where he had not been convicted and he could object to answering a question where the answer might tend to prove he had committed a crime. I explained that if there was a possibility that some conduct may expose him to criminal charges, he had the right not to answer questions if to do so would incriminate himself or expose him to criminal charges. The applicant said he understood.
3. In the hearing, towards the end of closing submissions, the applicant became agitated. He verbally abused the respondent, rose from his seat and threw two items from his desk in the respondent's direction and was quickly restrained by the corrective security guard present in the hearing room. He was immediately escorted from the hearing room. After a brief adjournment, I asked the corrective services officer who had returned to the hearing room to offer the applicant the option of continuing with the hearing that day or resuming the following day. The corrective services officer spoke to the applicant and then informed me that the applicant said he did not wish participate further in the hearing at all, he wished to return to prison and he would wait for the Tribunal's decision. I accepted this choice by the applicant. The respondent completed closing submissions in the absence of the applicant and the hearing was concluded.
4. I do not consider that the applicant's decision to stop participating in the hearing towards the end compromised the fairness of the hearing for him in a material way. This is because the hearing was almost concluded, his evidence had been completed and he was on notice of the issues and concerns in his case. He had already been given the opportunity to consider and respond to the respondent's written submissions, as well as most of the respondent's oral submissions which were very similar to the written submissions. In all the circumstances, I am of the view that the applicant understood the nature of the proceedings, their purpose and the potential consequences for him, and he was given a meaningful opportunity to participate in the hearing.

1. Section 501 of the Act deals with decisions to cancel a visa on character grounds.
2. Relevantly to this case, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if, among other things:

(a) the person does not pass the character test because of a substantial criminal record; 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 Territory.

1. The character test is set out in s 501(6). For the purposes of the character test, a person has a substantial criminal record in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c)).
2. Section 501CA relates to the revocation of a decision of the Minister under subsection 501(3A) to cancel a visa of a person serving a sentence of imprisonment. In accordance with s 501CA(3), as soon as practicable after making the decision under s 501(3A), the Minister must give the person whose visa was cancelled written notice setting out the decision and the particulars of the relevant information that was the reason or part of the reason for making the decision. The Minister must also invite the person to make representations to the Minister about the revocation of the decision.
3. A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under s 501CA(4) of the Act. This provides that:

(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 24 February 2025, the applicant made the representations required by s 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.
2. An application to review a decision made under s 501CA(4) not to revoke the cancellation of a visa may be made to the Tribunal under s 500(1)(ba).

1. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minister (s 499(2A)).
2. On 7 June 2024, the Minister issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.
3. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA of the Act.
4. Clause 5.2 of the Direction sets out principles to provide 'the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under s 501, or whether to revoke a mandatory cancellation under s 501CA.' These are:

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

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

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

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Informed by these principles, the Tribunal must take into account the relevant primary and other considerations set out in paragraphs 8 and 9 of the Direction.
2. Paragraph 7.1 states that in applying the considerations, information and evidence from authoritative sources should be given appropriate weight. Paragraph 7.2 states that the primary consideration at 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than other considerations.
3. The Primary considerations set out in paragraph 8 of the Direction, which the Tribunal must take into account, are:

(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;

1. The Other considerations the Tribunal must take into account, where relevant, are (but are not limited to):

1. As set out above, the applicant has been convicted of Aggravated Armed Robbery and was sentenced to 3 years and 6 months imprisonment.
2. I explained the relevant aspects of the character test to the applicant in the hearing. When asked whether he agreed he did not pass the character test, the applicant referred to having lived in Australia for 20 years. I explained to him that this was not relevant to the question of whether he passed the character test.
3. I find that the applicant has a substantial criminal record within the meaning of s 501(7)(c) of the Act and he does not pass the character test under s 501(6)(a). As the applicant does not pass the character test, the remaining issue is whether there is another reason why the original decision to cancel the applicant's visa should be revoked (s 501CA(4)(b)(ii)), taking into account considerations in Direction 110 and any other relevant considerations.

IS THERE ANOTHER REASON TO REVOKE THE DECISION TO CANCEL THE APPLICANT'S VISA?

The protection of the Australian community from criminal or other serious conduct

1. Paragraph 8.1(1) of the Direction requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I am also directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. Paragraph 8.1(2) of the Direction states that I should also consider

(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.

1. Paragraph 8.1.1 of the Direction sets out matters I must have regard to when examining the nature and seriousness of the applicant's criminal offending or other conduct to date.
2. I must have regard to the fact that violent crimes and acts of family violence are viewed very seriously by the Australian Government and the Australian community.
3. As discussed below, the Index Offence of Aggravated Armed Robbery, for which the applicant was convicted in September 2024, falls into the category of a violent crime. In his sentencing remarks,[19] the judge states that:

At about 7.30 am on the morning of Saturday, 21 October 2023 you were a passenger in a stolen utility which stopped at the BP service station on Goldfields Highway in Boulder. Another male was driving and there was a female passenger. The victim, [X], was in the backseat of his [car] that was parked in the clearing behind the service station which was used for vehicles to stay overnight. [X] was working nearby and was sleeping in his car to save money.... You got out and started looking into the windows of the [car] and grabbed a cloth that had been used to cover an open rear window. [X] climbed through into the driver's seat. He opened the driver's side door and said, what's going on. You grabbed a hammer from the utility. [X] locked the driver's side door. You then smashed the window of the [car] before reaching inside and grabbing hold of the keys from the ignition. [X] put his hand on top of yours to try and stop you stealing the keys, and you struck him to his hand using the hammer, hurting him. He tried to pull your hand off the key. You then took an electric shock weapon, disguised as a torch, out of your pocket, activated it and struck his arm with the weapon five or six times, causing him pain and numbness. He withdrew his hand and opened the door and pushed you backward. He got out of the car and you swung the hammer at his direction but missed and he ran towards the BP. He called the police. He sustained cuts and bruises on his hand and arms and a burn on his arm which required treatment at the hospital. You were arrested on 1 November.

4. In terms of the applicant's culpability and remorse, the judge said:

Now, turning to the seriousness of the offending, the State don't suggest that your offending was premeditated and that your intention to steal the car may have been opportunistic. However, when you saw that the car was occupied by [X], you didn't desist, you didn't try and avoid a confrontation. You could have walked away when he was asking you what was going on. Instead you got a hammer and you used it to smash the window. So you used actual violence when striking [X] to the hand with the hammer, and then you used a second weapon and shocked him repeatedly with the device five to six times. When he got out of the vehicle to run away, you persisted by swinging the hammer towards him. The offences had a significant impact upon [X]. > > ... > > It is an aggravating feature of your offending that you were on the conditional suspended imprisonment order at the time that you committed this offence. It also seems that you were on bail for other offences at the time. So that's also an aggravating feature.

Now, the use of methamphetamine is never a mitigating factor, but it may go some way to explain the level of violence and the persistence of your offending on that particular day. > > ... > > I accept that you do appreciate the impact of your offending on the victim now that you've had the opportunity to reflect on matters whilst in custody. Your actions in failing to return the property and denying the offending to the police don't indicate true remorse in your case. I do, however, take into account that you have, by your plea, accepted responsibility for your offending and, as I say, have now developed some victim empathy whilst in custody.

6. In terms of the sentence to be imposed, the judge stated:

The matter for which I am sentencing you for is very serious. I have outlined the factors which make it so in these remarks. I need to impose a sentence that is commensurate with the seriousness of the offending, taking into account the maximum penalty, which is life imprisonment, matters in mitigation, the vulnerability of the victim. In this case, [X] was vulnerable. He was sleeping in his car, minding his own business when you broke into his car and assaulted him, stealing his property. Your offending was persistent and caused him physical injury and significant property loss. The only appropriate sentence, as is appropriately conceded by [counsel], is an immediate term of imprisonment.

7. The History For Court[20] and Check Results Report[21] show that the applicant has been convicted of 29 offences between 2022 and 2024.[22] In the hearing, the respondent took the applicant to the relevant Statement of Material Facts for his offences and the applicant confirmed the contents of those statements were accurate. Those offences include Unlawful Wounding; Escaping from lawful custody; Damaging property; Common Assault in Circumstances of Aggravation or racial Aggravation; Breach of protective bail conditions; Breach of Bail Undertaking; Criminal Damage or Destruction of Property; Possessed an article with intent to injury (disable) and Possessed drug paraphernalia in or on which there was a prohibited drug or plant.[23]
8. In terms of convictions for other violent crimes in addition to the Index Offence, in December 2022, the applicant was convicted of Unlawful Wounding for an offence that took place in August 2021. The Statement of Material Facts refers to the applicant and two others (one of whom was his female partner at the time, A, the mother of W) attending the house of someone they knew, getting into a fight with that person, that person's housemate intervening to defend the person and the applicant stabbing the housemate with a knife in the lower stomach which required the housemate to be taken to hospital for surgery to remove the knife.
9. In December 2022, the applicant was also convicted of Common Assault in Circumstances of Aggravation or Racial Aggravation for an offence that took place in December 2021. The applicant confirmed that the victim referred to in the Statement of Material Facts was A, his domestic partner at the time, who is the mother of W. The statement says that the applicant and victim had been in a domestic relationship for about two years. The applicant entered the premises to collect his clothing that remained at the victim's address. They engaged in a verbal argument that turned into a physical altercation. The applicant grabbed and pushed the victim by the neck before pinning her to the floor with his arms. The victim was left with red marks as a result of the incident.
10. I have considered whether this conviction involved family violence. The applicant confirmed in the hearing that at the time, he and A were living together and had been in a relationship for about two years. 'Family violence' is defined in paragraph 4 of the Direction as 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.' The definition goes on to give examples of behaviour that may constitute family violence. The definition of 'member of the person's family' includes a person who has, or has had, an intimate personal relationship with the relevant person. In determining whether the incidents between the applicant and the family member constituted 'family violence', I am required to consider whether those incidents involved violent, threatening or other behaviour by the applicant that coerced or controlled the family member or caused the family member to be fearful.[24]
11. In respect of the conviction for Common Assault in Circumstances of Aggravation or Racial Aggravation, as set out above in the Statement of Material Facts, which the applicant confirmed was accurate, I find this incident involved violent and threatening behaviour by the applicant towards A. I also find that the applicant's behaviour caused A to be fearful. While there is no direct evidence from A about this, I make this finding by inference from the surrounding facts and circumstances.[25] The definition in paragraph 4 of 'member of the person's family' (or 'family member') for the purposes of the definition of family violence includes a person who has, or has had, an intimate personal relationship with the relevant person (in this case, the applicant). Based on the applicant's evidence that he and A were living together at the time of the incident and had been in a domestic relationship for about two years, I find that at the time of this incident, A was a member of the applicant's family and therefore, the applicant's offending involved family violence towards her.

1. As set out above, the applicant has been convicted of the Index Offence which was a violent crime the sentencing judge described as very serious, as well as two other crimes involving violence. The Direction states that violent crimes are viewed very seriously by the Australian Government and Australian community.
2. In the hearing, I referred to the applicant's history of offending and he agreed that his offending could be described as very serious. In its USOFIC[26] and in oral submissions, the respondent submits that the applicant's offending should be regarded as very serious.
3. The respondent submits that the applicant's Index Offence is clearly a violent crime and should be regarded as very serious. The respondent also draws attention to the applicant's conviction for Unlawful Wounding which involved violent conduct_._ In terms of the seriousness of the Index Offence, the respondent draws attention to the sentencing judge referring to the fact that when the applicant saw the car was occupied, he did not desist and instead, used two weapons resulting in actual violence. The judge described the applicant's offending as persistent, the victim was asleep and vulnerable at the time of the attack, the impact on the victim was significant in terms of physical injury and significant property loss, and the applicant was on a CSIO and bail at the time.
4. Based on paragraph 8.1.1(1)(a)(i) and (ii), I conclude that the applicant's violent offending is very serious.
5. The respondent submitted that the applicant's conviction for Common Assault in Circumstances of Aggravation or Racial Aggravation involved family violence and should be regarded as very serious as part of the applicant's overall violent offending. I have found above that this incident was an act of family violence. Based on the evidence before me and paragraph 8.1.1(1)(a)(iii), I conclude that the applicant's family violence offending is serious.
6. The respondent submits[27] that the applicant has been sentenced to a lengthy period of imprisonment, namely, 3 years and 6 months. The Sentencing Act 1995 (WA) states that a court must not sentence an offender to imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified.[28] Custodial sentences are regarded as a measure of last resort within the sentencing hierarchy. The sentence imposed on the applicant is indicative of the objective seriousness of his offending (paragraph 8.1.1.(1)(c)).
7. As there is no direct evidence from victims of the applicant's offending and no submissions were made in relation to this matter, I do not make any findings about it.
8. In terms of the frequency of the applicant's offending, between 2022 and 2024 the applicant was convicted of 29 offences which the respondent submits have increased in seriousness over that period.[29] I find the applicant's offending to have been frequent and the sentences imposed on him have increased in severity, from fines and a CSIO to imprisonment. The applicant breached his CSIO and reoffended while on bail which demonstrates a disregard for the law. The respondent submits that the cumulative effect of the applicant's offending is deleterious to the Australian community[30] and I accept this submission.
9. There is no suggestion that the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. Further, there is no evidence before me to indicate that the applicant has re-offended after a formal warning about the consequences of his further offending in terms of his migration status or that there are offences committed in another country. Therefore, paragraphs 8.1.1(1)(g), (h) and (i) are not relevant.
10. In light of the matters set out above, overall, given the nature, seriousness and frequency of the applicant's offending, as well as his disregard for court orders, having considered the factors in paragraph 8.1.1, I consider his offending should be regarded as very serious.

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

1. In considering the need to protect the Australian community from harm, I must 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.[31]
2. Pursuant to paragraph 8.1.2(2), in assessing the risk to the Australian community, I 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: > > 1. information and evidence on the risk of the non­citizen re-offending; and > 2. 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. where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
2. There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[32]
3. In order to determine the risk to the Australian community should the applicant engage in further criminal or other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the applicant reoffend: paragraph 8.1.2(2)(a).
4. The applicant has engaged in violent crime, including family violence, as well as a range of other offences set out above. The respondent submitted[33] that any further offending by the applicant similar to the Index Offence could result in significant physical harm and psychological distress to members of the Australian community. I consider that if the applicant were to engage in further criminal conduct such as he has done in the past, the harm to individuals in the Australian community would be very serious and it could cause very serious physical and psychological harm to individuals or the Australian community, as well as resulting in further public expenditure to deal with the applicant's conduct.
5. In considering the likelihood of the applicant engaging in further criminal or other serious conduct, I have considered the information and evidence on the risk of the applicant reoffending and the evidence of rehabilitation achieved by the time of decision.
6. In the hearing, the applicant confirmed that he reoffended quite soon after being given the CSIO despite being warned by the judge who sentenced him in 2022 about the consequences of breach.[34] The sentencing judge in 2024 (in sentencing the applicant for the Index Offence) noted the applicant's compliance over the course of the CSIO was described by adult community corrections as 'poor'. The applicant agreed with this assessment in the hearing.[35] The respondent submitted that despite the applicant being given a chance with the CSIO rather than a custodial sentence, he did not take the opportunity offered to him and reoffended, which is relevant to assessing his future risk of reoffending.
7. In the hearing, the applicant gave evidence that he considers the factors behind his offending to be his use of drugs and alcohol. He said he had not used drugs or consumed alcohol since he was incarcerated in November 2023. He said he began using alcohol at around age 12. At first he only consumed it on weekends but at his worst, for a couple of months in early 2023 he was consuming a one litre bottle of whiskey a day. He was not able to offer an explanation or insight into what changed his level of consumption over time such as a triggering event. He also confirmed that he started using cannabis at age 12 and from the age of 15 or 16 he used it every day. He started smoking methamphetamine when he was 15. For about the last 3 or 4 months before going to prison he was using it every day and for the last month before going to prison he started injecting it.
8. The applicant's oral evidence was consistent with the judge's sentencing remarks, in which the judge refers to the applicant's long-term substance abuse and states:[36]

Your biggest issue, of course, is your substance use. You began using alcohol and cannabis at the age of 12. There were long periods of abstinence, however, after your parents separation, your use increased. You started using cannabis daily for the duration of your previous relationship. Following that breakdown, your methamphetamine use increased and you changed from smoking to injecting the drug. You first used when you were 15 and have regularly used since 2021. In the three months leading up to the offence you were using methamphetamine daily. You admit having used methamphetamine whilst in custody and your home detention bail was revoked following a positive urinalysis result.

10. The applicant gave evidence that he was using methamphetamine at the time he committed the Index Offence and that as a result, when he offended he was in a bad state of mind and wasn't thinking. When the respondent invited the applicant to talk about what happened resulting in the Index Offence, the applicant responded, 'I stole a car'. Despite being reminded of the broad details and invited several times to elaborate on his conduct, he declined. The sentencing judge also refers to the applicant's negative peer associations at the time of the offending. The applicant agreed that he was hanging around with the wrong people at the time.
11. The sentencing judge refers to the findings of a psychologist who produced a report for the purposes of sentencing (the actual report is not before me):[37]

The psychologist notes that you impress as a psychologically unsophisticated man with poor awareness of your internal world. The effect of this being that you don't manage and monitor your internal states, instead relying on avoidance strategies like drug use to cope with your emotions. There are a number of comments throughout the reports about the possible presence of ADHD. There has as yet been no formal diagnosis or investigation done in that regard. > > The psychologist describes you as highly vulnerable to external influences, whether positive or negative, on account of your poorly developed sense of self and suggests the present offences should be viewed in light of your negative peer associations at the time and drug use. You've been assessed at the high end of medium risk of re offending without treatment. It is recommended that you take part in prison-based programs that target your immaturity and vulnerability to negative external influences as well as substance abuse treatment programs and violent offender treatment programs. > > The psychologist expressed concerns about your ability to get the help you need in the community in [place], and suggested attending at residential rehabilitation and participation in counselling. Finally, it is recommended that once you are able to demonstrate abstinence from illicit drug use, that you see a private psychologist to investigate the potential presence of ADHD. You do come before the court with a criminal record.

12. The sentencing judge refers to the applicant as having been assessed at the 'high end of medium risk of reoffending without treatment.'
13. In terms of treatment, the Parole Review Report dated 16 October 2025 states that the applicant is yet to be assessed by a Treatment Assessor and he has not participated in any short courses or accredited training during his incarceration.[38] A Classification Review dated 24 November 2025 refers to the decision of the Prisoners Review Board to deny the applicant parole for the following reasons:
    • the applicant's poor response to prior community supervision orders and court-imposed orders, suggesting an unwillingness or inability to comply with directions;
    • his release plan does not include any way to adequately address his unmet intensive treatment needs in respect of violence, family violence and substance abuse;
    • the fact he has not yet had the opportunity to participate in treatment programs in custody to meet these treatment needs due to the backdating of his current sentence.
14. The Board also referred to the applicant's poor prison conduct which suggests an unwillingness or inability to comply with directions.[39] The Prisoners Review Board concluded that until the applicant has been provided with an opportunity in custody to participate in and complete an appropriate treatment program, the applicant poses an unacceptable risk to the safety of the community if released on parole and his significant criminal history, which includes violence, suggests a high risk of reoffending in a similar manner.[40]
15. According to the Parole Review Report, the applicant's conduct in prison has included various incidents including engaging in several acts of misconduct or insubordination, including obtaining a gang tattoo, causing property damage by setting a fire in his cell and setting fire to a mattress, and assaulting other prisoners.[41] The applicant confirmed in the hearing that this report contained an accurate record of his conduct in prison. The applicant gave evidence that he joined a prison gang for a while at the encouragement of some his prison mates and got a gang tattoo, but he is no longer a member of the gang because he realised he didn't need to be in it anymore. In terms of setting fires in his cell, he said he was really angry at the time and he was locked in his cell and didn't really think about his actions beforehand. In terms of the assaults, he said he got into some arguments with other prisoners who were trying to take his cigarettes. He said he told them to go away, they started punching and so he did the same thing. He was also involved in a fight when some of the gang members were having a fight with someone else and he got involved to help his mates.
16. As noted above, the sentencing judge refers to the psychologist's recommendation that the applicant take part in prison-based programs that target his immaturity and vulnerability to negative external influences as well as substance abuse treatment programs and violent offender treatment programs. The Prisoners Review Board also refers to the need for the applicant to participate in treatment programs. The applicant's Individual Management Plan from prison dated 12 December 2025[42] notes that a Treatment Assessment will be performed as soon as practicable to document his identified treatment needs and treatment programs will be booked accordingly. In the hearing, the applicant gave evidence that he had applied for a couple of programs in prison relating to drugs and alcohol, violence and other things, but either they didn't get back to him or he had been placed on a waitlist because there are too many people, and so he hasn't been able to do any rehabilitation courses yet. He acknowledged the Prisoners Review Board's comments about his high risk of reoffending and explained again why he hadn't been able to do the courses before applying for parole.
17. In the hearing, when invited to talk about the risk of reoffending, the applicant said he wouldn't say there is a risk because he has realised the things he has done which weren't right and he feels bad about it.
18. In terms of protective factors, the sentencing judge refers to the applicant's good relationship with his mother, his hope to move back in with her upon release and his wish to see his daughter.[43] The sentencing judge refers to the applicant's parents as prosocial supports and the applicant's daughter as probably the biggest factor in his life, and that the applicant is motivated to play a significant role in her life which he cannot do if he is in jail. The sentencing judge refers to the opportunity for the applicant to be employed in his father's business, and the letter of support from the President of the applicant's local motocross club where the applicant was a talented rider.[44]
19. When asked in the hearing what other things might help him not to reoffend aside from rehabilitation courses, the applicant referred to being there for his daughter. He said he has had a lot of time to think about it in prison and he just wants to get out and be there for his daughter. He doesn't want her to grow up having a father in jail. The applicant also referred to his motocross riding when he was younger and said that having a bike kept him out of trouble. He said that from the ages of 3 to 16 he had a bike and being able to go for a ride used to clear his head, and that he didn't have a bike at the time of his offending. He said that if he got out of jail he would get a job and his father has a bike he could use. The respondent put to the applicant that he had started using alcohol and drugs before the age of 16, so he was already involved in substance abuse when he had the bike. The applicant agreed with this. The applicant also referred to remaining in contact with two friends outside prison.
20. In the letter of support from the applicant's mother, she refers to the applicant speaking to, and seeing, W regularly despite being in prison and the plan for him to be a father to his daughter in the future.[45] She also refers to the loss she would feel if the applicant were no longer present in Australia and her wish to help him and W. The applicant's mother and father attended the hearing as observers.
21. The respondent submits that the reasons given by the Prisoners Review Board for denying the applicant parole sum up its concerns about the unacceptable risk of the applicant reoffending. First, the respondent submits that the applicant's poor response to prior community supervision orders and court-imposed orders indicates an unwillingness or inability to comply with directions. Secondly, the respondent acknowledged the applicant's evidence about why he has not engaged in treatment programs yet, but submits that the applicant's unmet intensive treatment needs in respect of violence, family violence and substance abuse endure and mean that the risk the applicant poses remains as stated by the sentencing judge and the Prisoners Review Board. The sentencing judge noted that the applicant was assessed at the 'high end of medium risk of reoffending without treatment' and the Prisoners Review Board concluded that until the applicant has been provided with an opportunity in custody to participate in and complete an appropriate treatment program, the applicant poses an unacceptable risk to the safety of the community and his significant criminal history, including violence, suggests a high risk of reoffending in a similar manner. Thirdly, the respondent submits that the applicant's poor record of behaviour in prison indicates he has not been able to refrain from anti-social behaviour despite being in a custodial environment.
22. The respondent also submits that the applicant demonstrates a lack of insight into his conduct and offending given that when asked about the Index Offence he simply said he 'stole a car' and was unable or unwilling to elaborate further on what he did. The respondent submits that this lack of insight goes to the applicant's risk of reoffending. The respondent submits that the applicant also demonstrates a lack of insight into the reasons behind his offending, having referred to drugs and a bad mindset being the cause, and then suggesting that motocross riding would be a protective factor. The respondent submits that the applicant has intensive unmet treatment needs in terms of long-term substance abuse and for him to suggest that motocross will be a protective factor, when it did not prevent his illicit drug use in the past, demonstrates a lack of insight into the significance of the treatment journey he needs to undertake.
23. The respondent submits that the other protective factors the applicant referred to, namely, peers, his daughter and his family members, should not be regarded as such.[46] The respondent submits that the evidence indicates the applicant has committed offences in the company of peers, and his prison peers are a risk factor, particularly in light of the psychologist referring to the applicant being psychologically unsophisticated and highly vulnerable to external influences with a poorly developed sense of self. The respondent submits that the applicant committed his most serious offence (the Index Offence) after the birth of his daughter, and his parents did not prove to be a protective factor in the past and should not be regarded as such now.
24. The respondent submits that any risk of violent offending is unacceptable[47] and the evidence indicates the applicant's offending is violent and the risk he poses is assessed as medium to high. The respondent submits this consideration weighs very heavily against revocation of the cancellation of the applicant's visa.
25. When given the opportunity in the hearing to respond to the evidence and the respondent's submissions on this consideration, the applicant indicated he had nothing to say.
26. Taking into account all of the evidence before me, I find that there is a medium to high risk that the applicant will engage in further criminal or other serious conduct. I have found that the applicant's offending is very serious and I find that he has not achieved any meaningful rehabilitation. While he has given an explanation for his inability to participate in treatment programs in prison, the effect of this is that he has unmet intensive treatment needs in respect of violence, family violence and long-term substance abuse and so the risk he poses has not been reduced through rehabilitation. The applicant says he has not used drugs or alcohol since entering prison, but I do not consider this period of non-use amounts to meaningful rehabilitation because the underlying issues around his long-term substance abuse have not been addressed. Further, the applicant has continued to engage in anti-social behaviour in prison which suggests he continues to have difficulty regulating his behaviour and behaving in a positive manner even when not using drugs and alcohol.
27. I consider that the applicant lacks insight into his offending, demonstrated, for example, by his description of the Index Offence when according to the sentencing remarks it involved much more than him stealing a car and it resulted in a conviction for Aggravated Armed Robbery. In light of the applicant's history of offending, his long-term substance abuse, his conduct in prison and the observations of the psychologist and the Prisoners Review Board, I am not reassured by the applicant telling me he does not consider that he poses a risk of reoffending in the future because he has thought about what he has done, feels bad about it and wants to be there for his daughter. The evidence suggests to me that the applicant does not appreciate the significance of his conduct or the challenges he faces and reinforces the need for him to participate in and complete appropriate rehabilitative treatment programs, which he has not done yet. In these circumstances, I do not consider that the applicant's daughter, parents, interest in motocross or peers, either alone or cumulatively, are sufficiently strong protective factors to mitigate the significant risk of him reoffending.
28. Finally, I note the applicant's most recent offence was committed in early November 2023 and he has been in custody since later in November 2023, which means the time he has spent in the community since his most recent offence is less than one month and so I give this no weight in terms of indicating rehabilitation achieved.
29. Having regard to the nature and seriousness of the applicant's offending and conduct, and to the risk to the Australian community should the applicant commit further offences or other serious conduct, I find that this primary consideration weighs very heavily against revoking the cancellation of his visa.

1. Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen. Paragraph 8.2(2) describes the circumstances in which this consideration is relevant.
2. I have set out the definition of family violence above and I have found that the applicant has engaged in family violence.
3. Paragraph 8.2(3) sets out the factors I must consider, where relevant, in considering the seriousness of the family violence engaged in by the non-citizen. These are:

a) The frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > b) The cumulative effect of repeated acts of family violence; > > c) Rehabilitation achieved at the time of decision since the person's last known act of family violence, including: > > 1. The extent to which the person accepts responsibility for their family violence related conduct; > 2. The extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > 3. Efforts to address factors which contributed to their conduct; and > > d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

4. I have found the applicant engaged in family violence on one occasion which means there is not a trend of increasing seriousness or a cumulative effect of repeated acts of family violence, but that is not to diminish the seriousness of the applicant's conduct. I find that the effect of the applicant's act of family violence would have been to cause the victim to be fearful.
5. The act of family violence occurred in December 2021. In July 2023, the applicant was assessed under an Offender Programs: Family and Domestic Violence Assessment Report (Community), while still subject to the CSIO, as suitable for individual counselling in relation to domestic violence.[48] The assessment states that the applicant presents with

several high risk and lethality factors including drug and alcohol misuse, use of a weapon, a history of FDV behaviours, generalist violence, choking the victim, he was recently released from custody in relation to violence offences, recent birth of a child, threatening to harm the victim, non-fatal strangulation and breaches of Protective Bail Conditions.

6. The Report indicates that the applicant has limited insight into his behaviour and has a tendency to blame others and justify his behaviour. It states that while demonstrating some remorse and responsibility, he had a tendency to externalise his violence and deny or minimise his actions.
7. There is no evidence before me to indicate the applicant engaged in the recommended family violence counselling and he has given oral evidence that he has not engaged in any rehabilitation or treatment programs since being in prison, including in relation to family violence. I have noted above his explanation about why he has not undertaken any programs in prison to date but that does not change the reality of the situation, which is that he has not undertaken any rehabilitative programs.
8. The respondent submits there is no evidence the applicant has engaged in rehabilitation with respect to family violence and he was assessed as having high risk factors. The respondent submits the applicant's family violence offending should be viewed as serious and this consideration should be given significant weight against revocation of the cancellation of the applicant's visa. When invited to comment on the respondent's submissions about the evidence and the weight this consideration should be given, the applicant declined.
9. Based on the evidence, I find that the family violence engaged in by the applicant is serious. I find that the applicant has not engaged in rehabilitation in relation to family violence, he has limited insight into his conduct and its impact on others, and he has been assessed as presenting with several high risk factors. I am not aware of evidence indicating the applicant receiving a warning about the consequences of further acts of family violence at or around the time of his offending, including in relation to his migration status.
10. Overall, I find this consideration this weighs heavily against revoking the cancellation of the applicant's visa.

The strength, nature and duration of ties to Australia

1. This consideration requires me to have regard to the strength, nature and duration of the Applicant's ties to Australia. Paragraph 8.3 of the Direction provides that:

(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:

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

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.

1. The evidence indicates that the applicant's immediate family members who are Australian citizens, Australian permanent residents or people who have a right to remain Australia indefinitely are his parents and his daughter, W.
2. As W is a minor, I have considered her interests below under the hearing 'Best interests of minor children in Australia affected by the decision', but as she is a member of the applicant's immediate family, this consideration is also relevant to her.
3. The sentencing judge refers to the applicant's parents as being pro-social supports and the applicant's daughter being the biggest factor in his life. The sentencing judge refers to the applicant's mother saying the applicant wants to be there for his daughter. The sentencing judge also refers to a reference from the applicant's father who talks about a job being available for the applicant with him.
4. The Parole Review Report refers to the applicant receiving regular social visits in prison from his mother and daughter, and from his father, and that he makes regular social calls to his friends and family.[49] The applicant gave evidence that he keeps in contact with his father through phone calls every two weeks which last for about 10 minutes. The applicant's father has not provided evidence in relation to the applicant's application for review. The applicant's father and mother observed the hearing.
5. In the letter of support provided by the applicant's mother dated 16 April 2025, she refers to visiting the applicant regularly in prison. She says it would be 'excruciating' to lose her son and that the idea is for the applicant to step into the role of father to W where he belongs and help financially, and then the applicant's mother will help them both. She states that the applicant and W could not have a proper father/daughter relationship if the applicant is deported to New Zealand. She also states that the applicant has been in Australia since he was 3 years old and this is home and all he knows.[50]
6. In the hearing, the applicant gave evidence that he was three years old when he first came to live in Australia and he is now aged 22, which means he has lived here for about 20 years. He has returned to New Zealand several times for visits.
7. The applicant gave evidence that his relationship with A started in about 2020 and ended in 2023 after W was born. The applicant and A lived together for about 2 years. About 6 months after W was born, the relationship ended and W has lived with the applicant's mother since that time. The applicant ceased contact with A in mid-2023 some months before he went to prison in November 2023. The applicant's mother returned to New Zealand in 2022 for about six months and returned in 2023 and W started living with her and has done so ever since. The applicant gave evidence that he has considered his mother and W going to join him in New Zealand if his visa remains cancelled and he returns to New Zealand. He said he would have to get a job there and they would come and join him at some point and he expressed this as a goal.
8. The applicant gave evidence that Australia is his home and when he was in New Zealand he was homesick. He said Australia is where he grew up, it is his home and he has his parents, daughter and mates here.
9. The respondent submits that the applicant's father has not provided evidence and the applicant's evidence is that they have limited contact by phone, which can continue if the applicant is offshore. The respondent submits that the applicant and his mother have in-person and phone contact, but a decision not to revoke the cancellation of the applicant's visa may not result in physical separation because the applicant has given evidence about the possibility of his mother and W moving to New Zealand if he was returned there. The respondent submits the applicant's mother has returned to New Zealand in the past and her moving there with W seems likely.
10. The applicant has been communicating with his parents and W by phone since his incarceration in November 2023. He has had limited in-person contact with his mother and W since his incarceration. I consider that the applicant would be able to continue to communicate with his family in Australia using modern forms of communication such as video conference, phone and social media contact if he were removed to New Zealand. I note the possibility of the applicant's mother and W moving to New Zealand if the applicant were removed there, but the timing is unclear, and I also note the applicant's parents attended the hearing in person to support the applicant. The evidence does not indicate that the applicant contributes financially to support his parents or W.
11. I find that the applicant's removal from Australia would have an adverse emotional impact on his parents and W.
12. In terms of the strength, nature and duration of any other ties the applicant has to the Australian community, I have placed weight on the fact that the applicant first arrived in Australia as a 3-year-old and his first conviction occurred in 2022, some 20 years later.
13. The applicant referred in the hearing to his involvement with the motocross club and his work as positive contributions he has made to the Australian community. The sentencing judge refers to the applicant having been a very good motocross rider and the president of the local motocross club having provided the court with a letter of support.[51] A copy of that letter is not before me. In the applicant's personal circumstances form, he refers to having worked in 2023 as a labourer for a garden and lawn care business[52] which is consistent with his evidence in the hearing. No evidence has been provided from his former employer or people connected to the motocross club in respect of the application for review. The applicant also gave evidence that he keeps in touch with two friends, called L and J. They have not provided evidence. The respondent submitted that given the lack of evidence from the applicant's friends, the effect on them of his removal is not known and I should give those connections no weight.
14. When invited to comment on the respondent's submissions about the evidence and the weight this consideration should be given, the applicant declined.
15. I accept that the applicant has ties to the community through his friends and I find he and has made a positive, but limited, contribution through his involvement with the motocross club and his brief employment. Based on the evidence before me, I do not consider that his friends, former employer or people at the motocross club would be adversely impacted if the applicant were removed from Australia.
16. Overall, I find the strength, nature and duration of the applicant's ties to Australia weigh moderately in favour of revoking of the decision to cancel his visa.

The best interests of minor children in Australia affected by the decision

1. Paragraph 8.4 of the Direction requires me to consider the best interests of minor children in Australia affected by the decision. I must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
2. Pursuant to paragraph 8.4(4) of the Direction, the following factors must be considered where relevant:
   • the nature and duration of the relationship between the child and the non-citizen, noting 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;
   • 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;
   • 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;
   • 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;
   • whether there are other persons who already fulfil a parental role in relation to the child;
   • any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
   • 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; and
   • evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
3. The relevant minor child for my consideration is W. The applicant gave evidence that A has three minor children from a previous relationship but he has had no contact with them since he and A split up in 2023. On this basis, I have not considered those children.
4. As set out above, the applicant gave evidence that his relationship with A started in about 2020 and ended in 2023 after W was born. The applicant and A lived together for about 2 years. About 6 months after W was born, the relationship ended and W has lived with the applicant's mother since that time. The applicant ceased contact with A in mid-2023 some months before he went to prison in November 2023. There are proceedings on foot for the applicant's mother to be granted sole custody of W, which the applicant supports, and there are interim orders in place providing for the applicant's mother to be W's sole carer. The applicant is not sure of A's role in the proceedings, but W stays with A every second weekend. The applicant sees his mother and W most Wednesdays for a visit in person when they come to the prison and he calls them at least once a week. His mother takes good care of W. The applicant's mother returned to New Zealand in 2022 for about six months and returned in 2023 and W started living with her. If the applicant returns to New Zealand, his goal is that he will get a job and the applicant's mother and W will follow him.
5. The Parole Review Report refers to the applicant receiving regular social visits from his mother and daughter, and that he makes regular social calls to his family.[53] The sentencing judge refers to the applicant's daughter as being 'probably the biggest factor in [his] life.'[54] The applicant's mother refers in her letter to how much W loves her father and she looks forward to seeing him. She says it would do irreversible damage to W if she is parted from the applicant and he is the only parent she has contact with. She refers to the applicant and W having contact in person once a week most weeks, and by phone.[55] The applicant's mother also refers to the intention that the applicant will contribute financially as W's father and she will help the applicant and W.
6. I have considered the relevant factors set out in paragraph 8.4(4) in relation to W.
7. In terms of the nature and duration of the relationship, paragraph 8.4(4)(a) states that less weight should generally be given where there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact). There is no evidence of Court orders restricting contact between the applicant and W, however the nature and extent of their contact has been seriously limited by the applicant's incarceration since November 2023 when W was one year old.
8. I have considered the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until W turns 18, and including any Court orders relating to parental access and care arrangements. I accept that the applicant loves W and has good intentions, but I consider his role as a parent in the future is likely to be limited. The applicant has given evidence that he is in the process of voluntarily giving up his legal rights as a parent through proceedings that are currently on foot. The situation appears to be that his mother has sole custody of W and A has limited access rights, but it is clear that since W was very young, the applicant's mother has had parental (and now legal) responsibility for W who is in her full-time care and the intention is that this arrangement will continue in the future.
9. I have considered the impact of the applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on W. The evidence does not indicate that the applicant's prior conduct has had an adverse effect on W and the evidence is that she is well looked after by the applicant's mother. In terms of likely future conduct, I have found there is a medium to high risk the applicant will reoffend. Depending on the circumstances, this could have a negative impact on W. There is no evidence that W has suffered or experienced any physical or emotional trauma arising from the applicant's conduct.
10. I have considered the likely effect that any separation from the applicant would have on W, taking into account W's and the applicant's ability to maintain contact in other ways. In the hearing, the applicant said that the effect on W of his absence would be bad given W's mother (A) isn't really around and W needs him to learn. In terms of staying in touch, he said he would be able to speak to W on the phone if he were in New Zealand but that would not be good for W, who wants the applicant to come home and she has only ever seen him in prison. The respondent submits that the applicant and W have contact once a week in-person and by phone and the applicant's mother is taking good care of W. The respondent submits that if I make the decision not to revoke the cancellation of the applicant's visa, there is the potential that my decision would not result in separation because the applicant's goal is to get a job in New Zealand and have his mother and W come to join him there.
11. I find that based on the evidence, the effect of separation from the applicant would have a negative effect on W, but the effect would be limited given W's young age, the fact that the extent of her contact with the applicant since November 2023 has been significantly restricted due to his imprisonment and she would continue to be cared for by the applicant's mother. I find the applicant and W would be able to continue to maintain contact by phone and other electronic means of communication if the applicant departed Australia. There is also the possibility that their separation would not be prolonged if the applicant's goal of having his mother and W move to New Zealand to join him comes to pass. The evidence does not indicate that the applicant is currently supporting W financially or that the applicant's mother is reliant on financial support from the applicant in order to care for W. There is no direct evidence of W's known views, which is appropriate given her very young age.
12. I have considered whether there are other persons who already fulfil a parental role in relation to the child. As referred to above, the evidence is that the applicant's mother has been looking after W full-time since 2023 and she currently has parental and interim legal responsibility for W. The applicant has given evidence that he is in the process of voluntarily giving up his legal rights as a parent and the evidence indicates A has limited access rights, and so it is the applicant's mother who fulfils the main parental role for W and the evidence indicates that she will continue to do so in the future.
13. I have considered whether there is evidence W has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the applicant, or has otherwise been abused or neglected by the applicant in any way, whether physically, sexually or mentally. There is no suggestion of abuse or neglect of W by the applicant. There is also no evidence that W has been subject to or exposed to family violence perpetrated by the applicant. I have found above there is a medium to high risk that the applicant will engage in further criminal or other serious conduct, and I find this conduct could include family violence. Therefore, there is a risk of W being exposed to family violence perpetrated by the applicant in the future if she were living with him, which is speculative given the evidence referred to above. I consider the risk of W being subject to family violence by the applicant to be low.
14. When asked whether he wished to comment on the evidence and the respondent's submissions in relation to this consideration, the applicant declined.
15. The respondent accepts, and I find, that overall it would be in W best interests for the applicant not to be removed from Australia. The respondent also submits,[56] and I accept, the weight to be given to this consideration is lessened by the following factors, which I have considered above:
    • the applicant's significant physical absences from his daughter since 21 November 2023 when he entered custody;
    • the fact that W remains in the care of the applicant's mother and the evidence that this would continue in the future with the applicant's mother likely to have sole custody of W;
    • if the applicant intends to contribute financially to W's future, he could do this from New Zealand;
    • the applicant could maintain a relationship with W via phone and video from New Zealand.
16. Overall, I find this consideration, the best interests of minor children in Australia, weighs moderately in favour of revoking the decision to cancel the applicant's visa.

1. Paragraph 8.5(1) of the Direction provides 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 would not allow them to enter or remain in Australia.
2. Paragraph 8.5(2) of the Direction directs that 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, or they raise serious character concerns through conduct, in Australia or elsewhere, including, relevantly, violent crimes and acts of family violence.
3. Paragraph 8.5(3) of the Direction further confirms that the expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Paragraph 8.5(4) states that this consideration is about the expectations of the Australian community as a whole, and in this respect, I should proceed on the basis of the Government's views as set out, without independently assessing the community's expectations in the particular case.
4. The question for the decision-maker in relation to this consideration is a matter of the weight it should be given.[57]
5. The respondent submits that this consideration weighs very heavily against revocation of the cancellation of the applicant's visa.[58] The applicant did not make submissions in relation to this consideration.
6. I find that the Australian community expects that in the circumstances, the Australian Government should not revoke the decision to cancel the applicant's visa.
7. I consider that this factor weighs heavily against revoking the decision to cancel the applicant's visa.

(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):

a) legal consequences of the decision;

b) extent of impediments if removed;

d) impact on Australian business interests.

Legal consequences of the decision under section 501 or 501CA

1. Paragraph 9.1 of the Direction requires me to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.
2. There is no suggestion in this case that the applicant engages Australia's non-refoulement obligations.
3. In addition to non-refoulement obligations, the Direction refers to a range of additional potential legal consequences for an applicant of a visa refusal, cancellation or non-revocation decision including unlawful status, detention, removal from Australia, and the restriction of an applicant's rights to apply for further classes of visa.
4. The respondent accepts that if the cancellation of the applicant's visa is not revoked, he will continue to be an unlawful non-citizen detained under s 189 of the Act and will be removed from Australia as soon as practicable under s198 of the Act. There will be significant restrictions on the applicant's ability to apply for another visa while he is in the migration zone. If the applicant applied for a visa in the future, depending on the visa type he may be subject to indefinite or permanent exclusion under Special return criteria 5001 if it applies to the relevant Schedule 2 criteria of the Migration Regulations 1994 (Cth).[59]
5. The respondent submits that neutral weight should be given to this consideration in circumstances where the applicant has not raised non-refoulement claims and therefore the Tribunal can reasonably expect his detention pending removal to New Zealand would not be lengthy. The respondent cites the case of Stoneley v Minister for Immigration and Multicultural Affairs[60] in support of its submissions. In addition, the respondent submits that in circumstances where the applicant has indicated that some of his family members might return to New Zealand, the practical consequences of separation are minimal and the practical reality for him has been considered under paragraphs 8.3 and 8.4 of the Direction. The applicant did not make submissions in relation to this consideration.
6. Given the potential consequences for the applicant, including the possibility of permanent exclusion from Australia regardless of whether family members join him in New Zealand, I find that this consideration weights slightly in favour of revoking the decision to cancel the applicant's visa.

1. Paragraph 9.2 of the Direction provides that I must consider the extent of any impediments the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account their age and health, whether there are any substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
2. In the hearing, the applicant gave evidence that he has returned to New Zealand multiple times since arriving in Australia, including for five months in 2020 when he was 16 years old. On that visit, he stayed with his brother who is 42 years old. He also has two maternal aunts and about four cousins in New Zealand whom he saw on that visit. He gave evidence that he was homesick for Australia when he last visited New Zealand. He also referred to getting a job if he returned to New Zealand.
3. The respondent submits that there is nothing to suggest that the applicant would be unable to re-establish himself in New Zealand, which is a place he has visited several times. As a citizen of New Zealand, he will have the same access to social, medical, mental health and other support as other citizens, and New Zealand and Australia are culturally, linguistically and politically similar. The respondent submits that in the absence of evidence to the contrary, I am entitled to take into account that the applicant would have access to government benefits similar to those available to him in Australia.[61] While the applicant may face some impediments given his lengthy residence in Australia and his separation from immediate family, he has family support in New Zealand and any impediments would be temporary and not insurmountable. The respondent submits that this consideration, at best, weighs to a limited extent in the applicant's favour. The applicant did not make submissions in relation to this consideration.
4. I accept the respondent's submissions in relation to this consideration and find that in all the circumstances, this consideration weighs slightly in favour of revoking the decision to cancel the applicant's visa.

(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that 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.

1. The applicant did not make submissions in relation to this consideration. The respondent submitted that there is no relevant evidence before me about this consideration and it is not a relevant consideration. I accept this submission.
2. I find this consideration is not relevant to my decision.

1. I have found that the applicant does not pass the character test under s 501 of the Act, and I must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
2. I have made the following findings in relation to the primary considerations in the Direction:
   • Protection of the Australian community from criminal or other serious conduct weighs very heavily against revoking the decision to cancel the applicant's visa.
   • The family violence committed by the applicant weighs heavily against revoking the decision to cancel the applicant's visa.
   • The strength, nature and duration of ties to Australia weigh moderately in favour of revoking the decision to cancel the applicant's visa.
   • The best interests of minor children in Australia affected by the decision weigh moderately in favour of revoking the decision to cancel the applicant's visa.
   • The expectations of the Australian Community weighs heavily against revoking the decision to cancel the applicant's visa.
3. I have made the following findings in relation to the other considerations:
   • The legal consequences of the decision weighs slightly in favour of revoking the decision to cancel the applicant's visa.
   • The extent of impediments if the applicant were removed to New Zealand weighs slightly in favour of revoking the decision to cancel the applicant's visa.
   • The impact on Australian business interests is not relevant.
4. In terms of the Tribunal's task, the Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[62] said

'[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction.'[63]

'[t]he 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.'[64]

6. Paragraph 7(2) of the Direction states that generally, greater weight must be given to the protection of the Australian community than other primary considerations. Greater weight must also generally be given to primary considerations than to the other considerations. In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
7. In this case, I have found that the protection of the Australian community weighs very heavily against revoking the cancellation of the applicant's visa, and the family violence engaged in by the applicant and the expectations of the Australian community weigh heavily against revoking the cancellation of his visa. These considerations are weighed against the considerations in favour of revoking the cancellation of the applicant's visa, which are the strength, nature and duration of the applicant's ties to Australia, the best interests of minor children in Australia, the legal consequences of the decision and the impediments the applicant will face if removed to New Zealand. I have found the impact on Australian business interests is not relevant to my decision.
8. While I acknowledge there are some considerations that I have found weigh moderately or slightly in the applicant's favour, the Direction states that protection of the Australian community is generally to be given greater weight than other primary considerations and in this case, given my findings about the very serious nature of the applicant's offending and the medium to high risk of him reoffending, along with his lack of rehabilitation, I find no reason to depart from that approach.

1. I conclude there is not another reason to revoke the cancellation of the applicant's visa and I affirm the decision under review.

1. The decision not to revoke the cancellation of the applicant's visa under section 501CA(4) of the Act is affirmed.

Solicitor for the respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers

[19] The Tribunal has redacted certain details for the privacy of the victim.

[22] Summarised at Annexure A of USOFIC at HB526-527.

[24] MVPF v Minister for Immigration and Multicultural Affairs [2025] FCA 1263.

[25] MVPF v Minister for Immigration and Multicultural Affairs [2025] FCA 1263 at [23], [25] - [27].

[32] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

[34] I note that this warning did not include a warning about the applicant's migration status.

[57] FYBR v Minister for Home Affairs [2019] FCAFC 185.

[60] [2025] FCA 143 at [35], [37].

[61] Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

[62] [2023] FCAFC 138.

[63] [2023] FCAFC 138, [28].