MIGRATION - Non-revocation of mandatory cancellation of a Class WE Subclass 050 Bridging E visa - Applicant does not pass the character test - whether there is another reason to revoke the mandatory cancellation decision - consideration of Ministerial Direction No. 110 - primary and other considerations - protection of the Australian community from criminal or other serious conduct - the strength, nature and duration of ties to Australia - best interests of minor children in Australia - expectations of the Australian community - extent of impediments if removed - decision under review affirmed

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

AJL20 v Commonwealth of Australia [2020] FCA 1305

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

FYBR v Minister of Home Affairs [2019] FCA 50

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121

HZCP v Minister for Immigration and Border Protection (2018) FCR 1803

Ismail v Minister for Immigration, citizenship and Multicultural Affairs [2024] HCA 2; 92024 98 ALJR 1996

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666

Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076

Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No. 110 - Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501C (21 June 2024).

Reading material enclosed in Bundle: (a) Alcohol and Drug Foundation, (2025) The nature, prevalence and impact of amphetamine-type stimulants and (b) Special Commission of Inquiry in Drug Ice (HB pp 230-478).

1. The Applicant is a 42-year-old citizen of the Islamic Republic of Iran who arrived in Australia on 20 May 2013 by boat.[1] He was 30 years old.[2] The Applicant was born in Iran.[3]
2. On 9 April 2020 the Applicant was granted a Class WE Subclass 050 Bridging E visa (visa)[4] after he had spent considerable time in detention.
3. On 24 May 2019, the Applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV). The visa application has not been determined. On 31 March 2020, the Applicant was invited to apply and applied for a SHEV pursuant to the decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. The visa application has not been determined.
4. The Applicant does not have any family in Australia. He was married in Iran, but divorced in 2009, with no children born from the marriage.[5] His immediate family, mother, father, and sister, live in Tehran.

1. On 31 January 2024, the Applicant was convicted and sentenced in the District Court of New South Wales for possess commercial quantity unlawful import: border controlled drug - attempt pursuant to s 307.5(1) and s 11.1(1) of the Commonwealth Criminal Code. The Court imposed a sentence of 3 years and 4 months (offence).[6]

1. The Applicant was imprisoned on 29 December 2021; he was released from prison on 28 April 2025 and transferred to detention at Yongah Hill Detention Centre.
2. On 14 February 2024, the Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had been sentenced to a term of imprisonment of more than 12 months for an offence against a law of the Commonwealth (the Cancellation Decision).[7]
3. The Applicant was notified of this decision by hand on 22 February 2024 and invited to make representations to the Minister requesting revocation of the decision to cancel his visa.[8] On 21 March 2024, the Applicant made representations seeking revocation of the Cancellation Decision.[9]
4. On 19 September 2025, the delegate of the Minister decided not to revoke the Cancellation Decision.[10]
5. On 23 September 2025, the Applicant was notified of the decision of the Delegate. (the Reviewable Decision).[11] This is the reviewable decision before the Tribunal.
6. On 1 October 2025, the Applicant applied to the Tribunal for a review of the Reviewable Decision.[12]
7. The 84th day calculated for a decision in response to the review sought by the Applicant pursuant to s 500(6L) of the Migration Act, is 15 December 2025.
8. In determining the application for review, the issues for consideration are:

(i) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and > > (ii) if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Reviewable Decision should be revoked.[13]

9. In respect of the character test, I find for the reasons outlined below that the Applicant does not pass the test. Furthermore, having considered all the circumstances of the Applicant's case and having weighed the relevant matters in Direction no. 110, I find there is not another reason why the Reviewable Decision should be set aside.
10. Accordingly, I have decided that the Reviewable Decision should not be set aside, and the Cancellation Decision should be affirmed. My reasons for the decision follow.

1. The Migration Act gives special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review.
2. These powers generally involve consideration of whether a person passes the statutory character test and, if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
3. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by

subsection (7)); ...(Original emphasis.)

1. A 'substantial criminal record' is relevantly defined by s 501(7)(c) of the Migration Act as follows:

(7) For the purposes of the character test, a person has a substantial criminal record if: ...

the person has been sentenced to a term of imprisonment of

1. Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record because of being sentenced to a term of imprisonment of more than 12 months. Additionally, under s 501(3A) of the Migration Act, the person must be 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.
2. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[14] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.[15]
3. Subsection 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:

(a) the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and > > (b) the decision-maker is satisfied that: > > > (i) the Applicant passes the character test (as defined by section 501); or > > > > (ii) there is another reason why the mandatory cancellation should be revoked.

1. The hearing was conducted at the Tribunal's Perth Registry on 9 December 2025. The Applicant was self-represented. The Applicant and the Respondent's representatives appeared via video. The Respondent was represented by Ms Shelli Frankel, Australian Government Solicitor.
2. The following written material was submitted by the parties:

(a) Hearing book, including G-Documents, marked HB 1-548.

(b) The Responded submitted a Statement of Facts, Issues, and Contentions dated 10 November 2025, which is referred to as R.SOFIC.

1. The Applicant gave evidence and was cross-examined. The Applicant was assisted by a Farsi interpreter.
2. No witnesses were called to give evidence.
3. Several letters of reference were included in the hearing material in support of the Applicant.[16] The authors of those letters did not give oral evidence.

1. The character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a 'substantial criminal record', as defined by s 501(7). Relevant to the Applicant's case,

a person has a substantial criminal record if they have been 'sentenced to a term of imprisonment of 12 months or more'.[17] Failure to pass the character test arises as a matter of law.[18] 2. The Applicant was sentenced by the District Court of New South Wales to a total effective sentence of 3 years and 4 months imprisonment.[19] Since the Applicant has been sentenced to a term of imprisonment of 12 months or more, I find the Applicant does not pass the character test by operation of s 501(7)(c) of the Migration Act. [20] 3. The Applicant accepts that he does not pass the statutory character test.[21]

1. As I have found that the Applicant does not pass the character test, I must then determine whether there is another reason why the Reviewable Decision should be revoked. The statutory power to revoke will only be enlivened if there is 'another reason' why the Reviewable Decision should be revoked.[22] The task involves an assessment of the propriety of a Cancellation Decision, balancing factors both in favour and against revocation.[23]
2. I am required to form a state of satisfaction as to whether there is 'another reason' why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law.[24] In doing so I must comply with written directions about the performance of my functions or the exercise of those powers which are given by the Minister pursuant to

s 499(1) of the Migration Act.[25]

1. On 7 June 2024, the Minister made 'Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction no. 110) under s 499 of the Migration Act.
2. An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[26] In considering the exercise of the power under s 501CA(4), informed by the principles set out in para 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[27]
3. In making a decision under s 501CA(4), the primary considerations that must be taken into account by the Tribunal are:[28]

(a) the protection of the Australian community from criminal or other serious conduct; > > (b) family violence engaged by the Applicant (if any); > > (c) the strength, nature and duration of the Applicant's ties to Australia; > > (d) the best interests of minor children in Australia affected by the decision; and > > (e) the expectations of the Australian community.

4. The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[29]

(a) the legal consequences of the decision;

(b) the extent of impediments if removed; and

(c) the impact on Australian business interests.

1. I must also consider any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked.
2. The principles set out in para 5.2 of Direction no. 110 'provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA'. Those principles highlight that the safety of the Australian community is the government's highest priority, and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.[30] The principles stress that entering or remaining in Australia is a privilege conferred on those individuals in the expectation that they will be law-abiding, will respect Australia's law enforcement framework, and will not cause or threaten harm to members of the community. The principles state that the community expects the government to cancel the visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[31]
3. Direction no. 110 provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community for a short period of time, the community may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
4. Noting that primary and other considerations relevant to the individual case must be taken into account, Direction no. 110 states that, in some circumstances, the nature of the 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 revoking a mandatory cancellation of a visa, including in circumstances where 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.
5. Further guidance as to how a decision-maker is to apply the considerations in

Direction no. 110 can be found in para 7, which provides that:

(a) Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations; > > (b) The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations; and > > (c) One or more primary considerations may outweigh other primary considerations.

6. The Applicant submits that there are, on balance, several other reasons why the Reviewable Decision should be revoked.[32] The Applicant says he is rehabilitated, that he does not pose a risk to the Australian community to reoffend; that he should be given a chance to demonstrate his turn-around; that prison was a wakeup call; that he is eager to start a new life; that he wants to expand his qualifications; that he is eager to earn a living; and that this was his sole misdemeanour, and that he did not know that the packages he unloaded contained an illicit substance.
7. The Minister says that, on balance, there is not another consideration why the Reviewable Decision should be revoked since the primary interest of the protection of the Australian community and the expectations of the Australian community should prevail.[33] The safety of the Australian community outweighs all other considerations that may weigh in favour of the revocation of the Reviewable Decision. Protection of the Australian community is the highest priority of the Australian government_._ The nature of the harm, should the Applicant engage in further criminal activity of the nature of which he was convicted, is very serious. The likelihood of and harm which may result from further offending, presents a risk that is unacceptable to the Australian community. The Minister says the expectation of the Australian community is that the government would not allow a non-citizen who engages in serious conduct in breach of Australian laws, to remain in Australia. In short, the Minister says the Reviewable Decision should be affirmed because the cumulative weight to be assigned to the primary considerations concerning safety and expectations of the Australian community should outweigh the cumulative weight to be assigned to all countervailing considerations.[34]
8. In my examination of the primary and other considerations, I assess the evidence in respect of each consideration and then weight the consideration on a scale of the following categories: very low, low-moderate, moderate, moderate-serious, very serious, and neutral. This scale is not derived from statute, but it is used to assist me with consistency when I reflect on each of the considerations as well as cumulative assessment.

Primary Consideration 1: Protection of the Australian community

1. The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is 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.[35]
2. Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[36]
3. Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to the:

(a) nature and seriousness of the non-citizen's conduct to date; and

(b) risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. I must consider the nature and seriousness of the Applicant's criminal offending and other conduct to date.[37] In doing so, para 8.1.1(1) of Direction no. 110 provides that I must have regard to specific types of crimes or conduct which are 'viewed very seriously' by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be 'serious' by the Australian Government and the Australian community. I note that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[38]
2. In considering the nature and seriousness of the Applicant's criminal offending or other conduct to date, I must have regard to para 8.1.1(1)(a)-(i) and para 8.1.1(1)(c) of Direction no. 110, relevantly:

(a) The frequency of the Applicant's offending and/or whether there is any trend of increasing seriousness;

(b) The cumulative effect of repeated offending;

(c) Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and

(d) Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the Applicant's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

1. In addition, Direction no. 110 introduced a requirement under this paragraph that I consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant's offending and other serious conduct.[39]
2. I note that it is well established that the Tribunal cannot 'go behind' the conviction giving rise to the exercise of power which is the subject of the review.[40] Where that power arises in part due to the sentence imposed on the Applicant, this principle extends to the findings of fact on which the sense is based. I consider that I am bound by the conviction which led to the mandatory cancellation of the visa, and to the extent that I have any discretion to go behind the specific factual findings made on sentencing, I do not consider there is any basis to do so on the evidence before me.
3. In the following paragraphs a brief overview is given of the applicant's conduct and offending.
4. The facts of the Applicant's offence are summarised as follows in the Statement of Issues, Facts and Contentions of the Minister:[41]

On 19 December 2020, a consignment comprising of three resin benchtops and additional cabinet material contained in two pallets arrived at Melbourne Airport from the United Arab Emirates.

An examination of the consignment by the Australian Border Force revealed voids of about 20 to 30 millimetres wide within each of the resin benchtops. Within those voids was a liquid which when tested returned a positive result for methylamphetamine. The resin when removed was found to contain a minimum of 24,223 grams of pure methamphetamine.

The consignment was reconstructed and returned to Melbourne Airport in preparation for delivery.

On 6 January 2021, the consignment was collected from Tullamarine Airport by a courier driver and taken to a car park in Endeavour Hills, Victoria.

The applicant's co-offender, Mr ... (Mr Y), called the courier driver. This phone call was intercepted. The driver told Mr Y that he had a delivery for him. Mr Y sought the location of the driver and, when given his location, Mr Y said that he would call his "brother to come and see you". The driver asked him the name of the brother, and Mr Y replied "[ZRVM]".

Mr Y subsequently called the driver and told him that "[ZRVM]" would be there in two minutes. The applicant then arrived in a hired vehicle and together with two other unidentified males took receipt of the consignment. The courier driver then left.

The applicant unwrapped and unpacked the consignment, removing the items from the two pallets and placing them down outside a nearby garage before restacking them on different pallets.

Later that day a truck arrived at the relevant premises, and the applicant and one other person loaded it with the consignment. The truck was driven to a transport company in Reservoir known as "Mover 4 Melbourne". The consignment was later loaded into a nominated vehicle as part of a consignment that was bound for Sydney.

On 7 January 2021, at 10.20am the transport vehicle arrived at a warehouse unit in Lakemba, Sydney. Shortly thereafter the applicant arrived at the warehouse driving the same hire car that he had been in the previous day.

The applicant unloaded the consignment from the transport vehicle and placed it inside the warehouse.

The applicant went inside the warehouse at various points during the day and conversed with his co-offenders, Mr Y and Ms O.[42]

1. The following excerpts of sentencing remarks and findings reflect the involvement and knowledge of the content of the packages:

The Crown accepts that the evidence does not disclose that the offender was involved as a principal member of the criminal operation involved in the possession of the drugs in question.[43]

I find on the balance of probabilities in his favour that he did not know the nature of the drug, the precise weight of the drug, or the purity of the drug, although a common sense inference can be drawn against his interest that the size of the consignment was certainly capable of containing a not insignificant amount of whatever substance was imported.[44]

Although [ZRVM] was more than a mere recipient or courier in his actions of both receiving the consignment in Victoria and then unloading it in New South Wales, he put himself at some greater risk of detection than say Mr Y or Ms O.[46]

For precision, I would describe the offender as somebody who was entrusted by those superior to him in the organisation to both receive in Victoria and to unload in New South Wales the consignment limited by the findings that I have made about his limited state of knowledge. He was trusted and had an important role but I do not take the view that his role was essential.[47]

1. The Minister submits that the Applicant's offending should be viewed as very serious.[48] The Minster says that it is well known and generally accepted that the distribution of illicit drugs has a major impact on the Australian community - socially, economically, for law and order, it impacts negatively on health services, and it causes harm and destruction of family relationships. The Minister refers to two reports enclosed in the HB in support of its submission about the harmful effects of illicit substances like methylamphetamine on the Australian community.[49]
2. The Applicant says the seriousness of the offence is mitigated since he did not know the content of the packages that he had downloaded; he was not a central player in the operation and he merely assisted a person with whom he shared a house; he did not derive any profit or benefit from the transaction; he does not have any other criminal convictions; he was extremely vulnerable as a refugee; and the likelihood of him reoffending is low.[50]
3. Direction no. 110, requires the Tribunal to take into account a range of factors in assessing the nature and seriousness of the Applicant's conduct and offending, including certain conduct which is to be regarded as 'very serious' or 'serious'.
4. I find that the nature and seriousness of the conduct of the Applicant giving rise to the offence and the associated conviction are to be regarded as very serious. The reasons for this finding by reference to paragraphs 8.1.1(1)(a) to (i) of the Direction (as relevant) are:

(a) Although drug related offending is not identified as a 'very serious or a 'serious' offence, the offences named in paragraph (a) are not a closed list. If account is taken of the quantity of methamphetamine, the harm that could be caused to the Australian community, and the role the Applicant played in the operation, the offence falls within what I would regard as 'very serious'. The Applicant had an 'important role' in the operation,[51] albeit not 'essential'.[52] The quantity of drugs was 32 times the commercial threshold.[53]

(b) The sentence imposed by the court signifies the seriousness of the offence. The sentence reflected the fact that the Applicant had no previous criminal record, that he has 'good prospects of rehabilitation', and that he had a traumatic childhood.[54] The Court nevertheless imposed a term of imprisonment of 3 years and 4 months.

(c) The Applicant has not offended against a specific person (1); the Applicant does not have any other criminal convictions (2); the Applicant has not repeatedly offended (3); the Applicant has not given false or misleading evidence (4); the Applicant has not reoffended (5); and the Applicant has not been convicted of an offence in another country.

(d) I do not accept the submission of the Applicant that the offence is not to be regarded as 'very serious' or 'serious'.[55] The effort by the Applicant to minimise his role undermines the insight he says he displays. The Applicant had an active role in the operation.

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

1. I am required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[56] 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.[57] The Tribunal must consider the likelihood and consequences of further offending.[58]
2. Direction no. 110 refers the 'risk to the Australian community', 'further offences' or 'engage in other serious conduct' as distinct though related concepts. 'Likelihood of reoffending' is an element to be considered in determining the 'risk' to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. The terms 'risk' and 'likelihood' are often used interchangeably in material relevant to assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community which requires not only an assessment of the Applicant's individual likelihood of reoffending, but also the nature of the harm associated with such offending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
3. The Applicant accepts that the harm that would be caused if he were to reoffend would be 'harmful to the community'.[59] However, the Applicant maintains that the likelihood of him doing so is extremely low. Accordingly, the Applicant says that the risk to the community is also low.[60] The Applicant refers to sentencing remarks of the sentencing judge that the role of the Applicant in the operation was not 'essential'.[61] The Applicant says he accepts his wrongdoing, that he should not have been so trusting of other persons, and that he put himself in a position of risk due to his own drug use at the time,[62] but he is of low risk to the community, he is rehabilitated, he has undertaken several courses aimed at rehabilitation and drug awareness, he is willing to undertake additional courses and seek assistance, and his childhood trauma contributed to his actions.[63]
4. The Minister says the nature of the harm if he were to reoffend is very high and the tolerance of the community towards such harm is very low. This weighs according to the Minister significantly against revocation of the Reviewable Decision.[64] The Minister submits that the nature of the harm that would be caused by the Applicant's conduct if it were to be repeated is so serious, that any risk it may be repeated is unacceptable.
5. The Minister submits that:

(a) The nature of the harm should the Applicant engage in further criminal activity of the crime of which he was convicted, is very serious. The nature of the harm is thus very high, and the tolerance of the community for such harm, is very low.

(b) Although the Applicant says he would not reoffend and that he has ceased his drug use and gambling, the risk of him reengaging has not been tested outside the context of prison. The Applicant started his drug use in the confines of detention and then continued in the community.[65] The Applicant says 'all the problems' started while in detention.

(c) The Minister says there remains a risk of the Applicant reoffending and that risk is unacceptable to the Australian community. The Applicant is likely to face similar societal challenges as he did before he committed the offence, but he could not explain in examination how he would respond to those, the assistance he would seek, the strategies he would use, what warning signs he would identify, or the preventative steps he would take.

(d) On balance the Minister says that the seriousness of the offending by the Applicant, and the harm that would result from reoffending, weigh significantly against revocation of the Reviewable Decision since the Australian community has low tolerance towards the seriousness of the offence.

1. In assessing the risk that may be posed by the Applicant to the Australian community, I now have regard, cumulatively, to the nature of the harm should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct.

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider the nature of the harm to individuals, or the Australian community should the Applicant engage in further criminal or other serious conduct.[66]
2. The Applicant accepts that the harm which would be caused should he reoffend would be serious. However, he contends he presents no or a low risk of reoffending.
3. The Applicant has only been convicted of this offence. Noting the comments of the sentencing judge about the prospects of rehabilitation by the Applicant and the role that he played in the operation, and the material submitted by the Minister about the harm caused by illicit drugs to the Australian community, I consider that the harm which would be caused were the Applicant to reoffend would include the serious physical and emotional harm to users, and associated health, social and economic costs to the community. The quantity of drugs exceeded the commercial threshold by a factor of 32.[67]
4. The tolerance of the Australian community is lowered in light of the serious quantity of drugs the subject of the offence. Any risk of it being repeated is unacceptable.
5. I consider the harm which would be caused to individuals and to the Australian community were the Applicant to reoffend, would be very serious.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant engaging in further criminal or serious conduct if he were permitted to remain in the Australian community.[68]
2. The Applicant maintains that there is a low likelihood he will reoffend.[69] He contends he no longer uses drugs, he refrains from gambling, prison has changed his life, he has attended several courses and has developed insights into the wrongness of his actions, he is keen to study and live a productive life, he wants to re-engage with his church, and his family from Iran will support him financially until he finds his feet. The Applicant says before going to prison he was addicted to drugs, which he used daily, he had a strong gambling addiction, he gambled to fund his drug use, and this affected his relationships with other persons. He is 'ashamed' of his conduct.[70]
3. The Minister disputes there is a low likelihood of the Applicant reoffending. The Minster contends that his rehabilitation has not been tested outside the confines of prison. The Minister says regardless of the Applicant saying he previously had received counselling between 2018-2019,[71] he committed the offence and persisted with drug use on a daily basis, and gambling until he went to prison.[72] According to the Applicant's evidence he started drug use while in the confines of detention and then continued in the community.
4. Several letters in support of the Applicant were submitted as part of the HB, but those were not specifically prepared for this proceeding and none of the persons were called to give evidence. In respect of the likelihood of the Applicant engaging in further criminal or serious conduct, the following is said:

(a) Ms SJ, sister of the Applicant, says he is committed to leading a 'respectable life' and that he regrets his wrongdoing.[73]

(b) Mr MH, friend of the Applicant and permanent resident in Australia, says the offence was out of character, that the Applicant is committed to stay out of trouble, and that he got in trouble for trusting people too easily.[74]

(c) Mr MSM, friend of the Applicant and permanent resident in Australia, says the Applicant is embarrassed by his wrongdoing, he has learnt his lesson, and he deserves a second chance.[75]

(d) Rev SH says the Applicant attends Sunday chapel and had good standing in the Centre.[76]

(e) Rev PA says the Applicant is pro-active in self-development to improve himself and to become an asset to the community.[77]

1. The Applicant provided evidence that he has participated in several programmes while in prison as part of his rehabilitation process.[78]
2. There is no formal risk assessment in evidence before me. Dr Mamta Sidhu, Forensic Psychologist, notes that the Applicant has expressed remorse and contrition regarding his behaviour and this 'appeared to be genuine.'[79] She says the Applicant has a traumatic past and he became reliant on substances since those assisted him to deal with 'longstanding emotional difficulties'.[80] She says there are 'good prospects' for the Applicant's rehabilitation. She concludes that the Applicant is likely to benefit from ongoing counselling, professional support and therapeutic intervention.[81]
3. I find there is a likelihood of the Applicant reoffending if he were permitted to remain in the Australian community. Whilst the Applicant puts the likelihood as low, I regard the likelihood as moderate-high for the following reasons:

(a) The social environment of the Applicant, if he re-enters the community, will be the same as the environment that previously caused him to use drugs and gamble. There is no contemporary evidence before me of persons being available to support the Applicant; employment being available; housing being accessible; courses for trauma management being investigated by the Applicant; or other supports to assist him assimilating in the community.

(b) In oral evidence the Applicant was unable to explain to my satisfaction the skills and strategies he has learnt while being in prison on how to cope with societal pressure, with wrong influences, with peer pressure, with gambling, with loneliness, and with drug use. Although the Applicant says he is rehabilitated and although the sentencing remarks speak about him as having good potential to be rehabilitated, there was a marked absence of substance on the part of the Applicant other than him saying he should be given a second chance.

(c) The Applicant says he had previously used drugs and resorted to gambling to 'numb' his mental health anxiety. There is inadequate evidence that this cycle would not again prevail if he enters the community.

(d) There is no measurement to predict the likelihood of a person engaging in further criminal or other serious conduct, but I am concerned that in light of the absence of contemporaneous evidence of the social support the Applicant can expect if he is released from detention, the factors that previously caused him to offend are likely to again impact on him.

Conclusion on the protection of the Australian community

1. The Applicant's conduct and offending are very serious. The offence, read with the term of imprisonment, demonstrates the serious harm which would be caused were he to reoffend. I find there is a moderate-high likelihood he will reoffend or engage in other serious conduct, noting observations his rehabilitation is in an early stage.
2. I have ongoing concerns about the genuineness of his insight and remorse for the offending and the wrongfulness of his conduct. I find that the serious harm which would be caused by further serious offending or criminal conduct means the risks associated with a moderate-high likelihood of reoffending are significant, considering the significant harm which would be caused if the Applicant were to engage in further criminal or serious conduct, I consider the risk to be unacceptable.
3. The combined nature and seriousness of the conduct and offending weigh very seriously against revocation of the visa cancellation.
4. 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 seriously against revocation.

Primary Consideration 2: Family violence committed by the non-citizen

1. Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
2. There is no evidence before the Tribunal to find that the Applicant has engaged in acts of family or domestic violence.
3. I agree with the parties that this consideration is not relevant and should be given neutral weight.

Primary Consideration 3: The strength, nature and duration of ties to Australia

1. I am required to consider any impact of the Reviewable Decision on the Applicant's immediate family members in Australia.[82] I must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to how long he has lived in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[83]
2. The Applicant has been in Australia since May 2013. A considerable portion of the time was spent in detention and in prison. The Applicant does not have any family in Australia. He has a very limited social network. From the evidence before me, the Applicant seems to be very isolated, lonely, and lacks effective support.
3. The parties agree that this consideration weighs in favour of the revocation of the Reviewable Decision, but they disagree on the weight. The Applicant saying it ought to be weighted strongly for revocation, whilst the Minister says it ought to be weighted lightly in support of revocation.
4. The Applicant has lived in Australia for 12 years. The Applicant has a few friends, of whom two submitted references, some engagement with the Christian faith community. There was however no current social contact to give written or oral evidence. The Applicant has very limited work experience as a painter, but no reference from any employer.
5. The Applicant says he has been a 'productive' member of society,[84] that an unnamed friend has promised to accommodate him; that he held various jobs in prison,[85] that in prison he attended bible study but that in detention he does not want to socialise with other detainees, and that he is determined to rebuild his life.[86] The Applicant says these bonds and good intentions should weight strongly in favour of revocation.
6. The Minister says the ties of the Applicant to Australia do not extend much beyond the two persons mentioned, neither of whom gave contemporaneous evidence about their association with him. The social and employment ties to Australia are minimal. The Applicant says he has only worked for a 'few months' in Australia. The Minister submits this consideration should be given reduced weight in favour of revoking the Reviewable Decision.[87]
7. I have had regard to the written and oral submissions of the Applicant and letters of reference.
8. I find that the strength, nature, and duration of ties of the Applicant to Australia are very limited, especially in light of him having been in Australia since 2013. I accept that a non-revocation of the Reviewable Decision would have an adverse effect on him, but it would have little impact on others in the Australian community. I find so for the following reasons:

(a) Although two persons submitted written statements for purposes of earlier proceedings, no contemporaneous statements about current friendships were submitted and no person gave oral evidence about their relationship with the Applicant.

(b) The Applicant does not have any family in Australia.

(c) The Applicant is not in a personal relationship in Australia.

(d) The connection of the Applicant to the Christian community is scant with no contemporaneous reference or oral evidence about the actual links with the community. The Applicant confirmed that he does not at the moment maintain contact with anyone from his faith.

(e) There is no evidence of, or letter of reference from, previous employers, or a potential future employer.

(f) There is no evidence to support the evidence of the Applicant that a friend has offered him accommodation upon his release from detention.

1. I find that the Applicant has very limited ties with Australia. The strength, nature, and duration of ties to Australia are given low-moderate weight in favour of revocation of the Reviewable Decision.

Primary Consideration 4: Best interests of minor children in Australia affected by the decision

1. The parties submit, and I find, that this consideration does not apply or is given neutral weight since the Applicant does not have children in Australia.[88]

Primary Consideration 5: Expectations of the Australian Community

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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) 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.
3. Direction no. 110 notes that 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 particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in subparagraphs 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very serious' or 'serious'.
4. Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the 'norm' expressed in para 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the person's conduct or offending.
5. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
6. The list of the types of conduct identified in paragraphs 8.5(2)(a)-(f) is not exhaustive. The Applicant says that this consideration does not give rise to 'serious' character concerns_.[89]_ The Applicant accepts that the decision of FYBR v Minister of Home Affairs [2019] FCA 50 (FYBR) is adverse to the Applicant.[90] The Applicant says, however, there are 'compelling grounds for alleviating' the weight to be assigned to this consideration.[91] The Applicant says those grounds are his long duration in Australia, the 'low-end' involvement in the operation; the genuine remorse, the good behaviour, the willingness to engage in ongoing counselling, the availability of social supports, his status as an asylum seeker, and the disproportionate legal consequences of a non-revocation.[92]

1. The Minister says it is not for the Tribunal to determine the expectations of the Australian community by reference to the specific circumstances of the Applicant.[93] As determined in FYBR, the expectations of the Australian community are set out in Direction 110, para 8.5(4). The Tribunal is not to infer what the expectation of the Australian community is in a particular case (Ismail v Minister for Immigration, citizenship and Multicultural Affairs [2024] HCA 2; 92024) 98 ALJR 1996 at [52]). The Minister says this is a very serious offence such that the Australian community would expect the Reviewable Decision to be affirmed. The consideration should weigh heavily against revocation of the Reviewable Decision.[94]
2. I have found above that the Applicant's offence is very serious. I have also found that although the Applicant says he is committed to rehabilitation and that he has made progress in that journey, that there is a moderate-high likelihood of the Applicant reoffending.
3. The expectation of the Australian community is that a non-citizen who engages in serious conduct in breach of the expectations of the community that they ought to obey Australian law, ought not to be allowed to remain in Australia.
4. In weighing this consideration, I am also guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
5. The principles also note the increased tolerance afforded to non-citizens who have been in the community from a very young age or for most of their lives. This does not apply to the Applicant.
6. The nature of the offence is such that the Australian community would not expect the Reviewable Decision to be revoked. Accordingly, the expectation of the Australian community weighs heavily against revocation.
7. I find that this primary consideration weighs very seriously against revocation of the Reviewable Decision.

(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

Other Consideration 1: Legal consequences of decision under section 501 or 501CA

1. The Tribunal is required 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.[95]
2. While this consideration in Direction no. 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:

(a) Unlawful status;

(b) The likelihood of becoming subject to detention and/or removal;[96]

(c) Refusal of other visa applications and cancellation of other visas;[97]

(d) A prohibition on applying for other visas;[98] and

(e) Periods of exclusion and special return criteria may apply.[99]

1. Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[100] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[101]
2. Nevertheless, the obligation to remove an unlawful non-citizen under s 198 does not arise if a 'protection finding' has been made in respect of a finally determined protection visa application.[102] In this case there is not a protection finding.
3. In M1/2021,[103] the High Court considered the following question:

In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff's representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia's international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?

1. The High Court found that in deciding whether there was 'another reason' to revoke the Reviewable Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, where the plaintiff remained free to apply for a protection visa under the Migration Act:[104]

(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;

(2) Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

(3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

1. The Applicant says that if the Reviewable Decision is not revoked, the protection visa which is pending in the process will not be assessed.[105]
2. I asked the Minster to clarify the legal implications if the Reviewable Decision were to be affirmed. The Minister clarified that the SHEV applications of the Applicant have not been determined; that the outcome of this proceeding does not impact on the SHEV proceedings, and that the assessment of claims by the Applicant of potential risk he may face if the Reviewable Decision is affirmed, be deferred for assessment in the pending SHEV applications.[106] If the Reviewable Decision is affirmed, the Applicant will nevertheless remain in detention pursuant to s 198(5A) of the Migration Act while the SHEV applications are being processed. His assertion of risk of persecution can in due course be fully considered.
3. The Applicant says a 'fair and reasonable' approach would be to revoke the Reviewable Decision and to allow the Applicant access to the community to demonstrate his rehabilitation while processing of the SHEV is underway.[107]
4. The Minister says I should not assess the Applicant's claim for protection. The claim for protection should be deferred and the consideration should be given neutral weight.
5. I find that this consideration weighs neutrally against revocation of the Reviewable Decision. The Applicant has raised concerns about him being subject to risk if returned to Iran, but those claims could not be fully assessed, and they are subject of the SHEV process_._ If I affirm the Reviewable Decision, the SHEV applications remain open for processing.

Other Consideration 2: Extent of impediments if removed

1. Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in subparagraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under subparagraphs 9.2(1)(a), (b) and (c) are:

(a) The Applicant's age and health;

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

(c) Any social, medical and/or economic support available to the Applicant in their country.

1. The Applicant says this consideration should weigh in favour of revocation of the Reviewable Decision, whilst the Minister says it weighs in favour of revocation.[108]
2. The Applicant was born in Iran. His immediate family; father, mother, sister and brother, reside in Tehran. The Applicant lived in Iran until the age of around 30. The Applicant can speak the local language, Farsi. The Applicant has maintained contact with his immediate family, and they have supported him financially in Australia.
3. The Applicant is, generally, of good health albeit that some material suggests the Applicant may suffer underlying mental health illness.[109] The Applicant denies that he has a mental illness, but he is willing to attend counselling to better deal with past trauma. The Applicant is not currently receiving any medical treatment or medication. The Applicant seems to lack insight into his potential needs for mental health treatment since on the one hand he explains that it is his mental health that had made him vulnerable to exploitation, whilst on the other hand he denies any mental health issues.
4. I am not satisfied that the Applicant would be impeded in establishing himself and maintaining basic living standards in Iran, in the context of what is generally available to other citizens of that country, taking into account the Applicant's particular circumstances, including mature age, work experience, and lack of language or cultural barriers in Iran. There is no evidence the Applicant would suffer any significant cultural barriers on return to Iran, albeit that I do not diminish the practical, social, and personal challenges of resettlement. The possible risk faced by the Applicant due to his faith is to be considered in the SHEV applications. I have no evidence before me, other than his assertion that he is an active member of the Christian faith, or that he is likely to face impediments due to his faith if he returns to Iran.
5. I find that the Applicant has comparable prospects for employment in Iran to other citizens given his limited skills and employment history. The Applicant says he worked at the Great Bazaar in Tehran, as a panel beater, and in an administrative capacity prior to moving to Australia.
6. Overall, I find that the Applicant may encounter some difficulty establishing himself were he to return to Iran, but I do not regard those difficulties as significant impediments if removed. In fact, the Applicant may experience less difficulty to establish himself in Iran compared to Australia due to him having grown up in Iran, his social and family network, his knowledge and speaking of Farsi compared to his limited English ability; his cultural association, and his work experience in Iran compared to his very limited work experience in Australia.
7. On balance, I find that this consideration weighs moderately in favour of revocation of the Reviewable Decision.

Other Consideration 3: Impact on Australian business interests

(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 parties agree that this consideration should be afforded neutral weight.
2. I find that the impact of deportation would have a negligible if any influence on Australian business interests.
3. I find that this consideration weighs neutrally concerning the proposed revocation of the Reviewable Decision.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. I have therefore considered whether there is 'another reason' why the Reviewable Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
3. Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
4. I must weigh the various primary and other relevant considerations outlined in Direction no. 110 against each other and undertake an evaluation of whether there was 'another reason' why the Reviewable Decision should be revoked.
5. In determining the weight to be applied to each consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. I have gone on to compare and balance all of the considerations to determine whether the Reviewable Decision should be revoked.
6. In my examination of the primary considerations and other considerations, I have assessed the evidence in respect of each consideration and then weighed the consideration on a scale of the following categories: very low, low-moderate, moderate, moderate-serious, very serious, and neutral.
7. I have considered all the primary considerations. I find that the protection of the Australian community weighs very seriously against revocation of the Reviewable Decision.
8. I find that the consideration of family violence weighs neutrally in respect of the Reviewable Decision.
9. I find that the strength, nature and duration of the Applicant's ties to Australia weigh low-moderately in favour of revoking the Reviewable Decision.
10. I find that the consideration of best interests of children does not apply.
11. I find that the expectations of the Australian community weigh very seriously against revocation of the Reviewable Decision.
12. In relation to the relevant 'other considerations' identified in Direction no. 110, I find that the legal consequences of the decision are afforded neutral weight.
13. I find that the extent of impediments if removed is afforded moderate weight in favour of revocation of the Reviewable Decision.
14. I find that the impact on Australian business interests is afforded neutral weight.
15. Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations. Nothing before the Tribunal would cause me to find that this general principle should not apply in the Applicant's case.
16. Having weighed the considerations in favour of the revocation of the Reviewable Decision and the considerations against revocation, I find that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community, outweigh those considerations weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia, and extent of impediments if removed. The considerations of family violence, best interests of children and legal consequences are given neutral weight_._
17. In summary, having regard to all the primary considerations, and the relevant other considerations in Direction no. 110, I am satisfied that there is not 'another reason' why the Reviewable Decision should be revoked.

1. The Tribunal affirms the decision under review.

I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member De Villiers

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

Shelli Frankel, Australian Government Solicitor

[7] See ss 501(6)(a) and 501(7)(c) of the Act; HB74-79.

[11] HB p 207. The decision was made on 19 September 2025. HB pp 17-21.

[13] See s 501CA(4) of the Migration Act.

[14] Migration Act s 501CA(3)(b).

[15] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 [66].

[16] HB pp 141-147. These letters were not prepared primarily for this proceeding, but I nevertheless have regard to the content.

[17] Migration Act s 501(7)(c).

[18] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].

[20] See Migration Act, s 501CA(4)(b)(i).

[22] Migration Act, s 501CA(4)(b)(ii).

[23] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [32]; Gaspar v

Minister for Immigration and Border Protection [2016] FCA 1166 at [38]-[39].

[24] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J), [119].

[25] Migration Act, s 499(2A).

[27] Direction no. 110, para 6 referring to paras 8 and 9. See also Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076 at [15].

[30] Direction no. 110, paras 5.2(1)-(8).

[35] See also Direction no. 110, para 8(1).

[37] Direction no. 110 para 8.1.1(1)(a) and 8.1.1(1)(b).

[38] Direction no. 110 para 8.1.1(1)(a).

[39] Direction no. 110 para 8.1.1(1)(d).

[40] HZCP v Minister for Immigration and Border Protection (2018) FCR 1803 at [78].

[41] R.SOFIC at [24]. The facts of the Applicant's offending are not in dispute. The Applicant accepted in his submissions the summary of offending as set out by the Delegate. HB pp 123-124.

[42] See HB pp 62-85 for the Agreed Statement of Facts of 15 August 2023.

[56] Direction no. 110, para 8.1.2(2)(a) and (b).

[57] 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.

[58] Tanielu v Minister for Immigration and Border Protection (2014) 224 FCR 424; [2014] FCA 673, [95].

[66] Direction no. 110 para 8.1.2(2)(a).

[68] Direction no. 110 para 8.1.2(2)(b).

[96] Migration Act, ss 189, 196, 197C, 198.

[97] Migration Act, s 501F.

[98] Migration Act, s 501E.

[99] Migration Act, s 503, special return criteria 5001.

[100] Migration Act, s 15.

[101] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant's detention had at all times been lawful at [112]-[122].

[102] Migration Act, s 197C(3).

[103] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).