An Administrative Review Tribunal (ART) decision allowing a Zambian national with an extensive criminal record to remain in Australia has intensified scrutiny of the country’s visa cancellation framework, after the tribunal concluded humanitarian considerations outweighed the case for deportation.

The 42-year-old man, identified only as SNZZ for legal reasons, successfully appealed the cancellation of his partner visa before the Administrative Review Tribunal in Perth after the Department of Home Affairs determined he failed Australia’s character test because of his criminal history.

The tribunal’s published decision records that SNZZ had accumulated almost 100 criminal convictions during more than two decades in Australia, including convictions for child sexual abuse, violent offending, threats involving a machete, domestic violence and numerous other offences.

Despite acknowledging the seriousness of that history, the tribunal ultimately decided not to affirm the visa cancellation after weighing all mandatory considerations under Ministerial Direction 110.

SNZZ first arrived in Australia in 2004 on a student visa to study nursing but did not complete the course.

He later obtained a partner visa in 2011 after being sponsored by his then-wife, allowing him to remain permanently in Australia despite previous criminal convictions.

Over the following years, the tribunal heard he experienced prolonged homelessness, alcohol dependence and deteriorating mental health while repeatedly coming into contact with the criminal justice system.

Among the most serious offences considered by the tribunal were convictions in 2007 for two counts of indecent dealing with a child under the age of 13.

Court records showed the offending involved a three-year-old boy.

He later received additional convictions including threatening another man with a machete in 2012 and assaulting a partner during a domestic violence incident in 2020.

The tribunal accepted that these offences meant SNZZ clearly failed Australia’s character requirements under the Migration Act.

General Member Fraser Robertson found the child sexual offending was “serious” and concluded that considerations relating to community protection, community expectations and family violence all favoured visa cancellation.

However, the tribunal was also required to consider a range of other mandatory factors under Ministerial Direction 110, which governs how visa cancellation appeals are assessed.

Those considerations include the best interests of affected children, the person’s ties to Australia, the likely consequences of removal and any significant impediments they would face if returned to their country of origin.

After considering psychological evidence and the applicant’s personal circumstances, the tribunal concluded the risk of further sexual offending had been assessed as low and noted that the child sexual abuse convictions were more than two decades old.

The decision stated that, although protection of the Australian community remained a primary consideration, the level of ongoing risk posed by the applicant was assessed as relatively limited in relation to sexual offending.

Another significant factor was the tribunal’s assessment of conditions the applicant would face if returned to Zambia.

The decision found SNZZ had few remaining social connections there after spending more than twenty years in Australia.

It also accepted evidence that he would encounter substantial difficulties obtaining treatment for post-traumatic stress disorder and alcohol dependence and would lack an effective support network if deported.

The tribunal described those impediments as “significant” when weighing whether removal was appropriate.

The interests of the applicant’s children also featured prominently in the ruling.

The tribunal heard SNZZ is the father of four children, all Australian citizens, with four still minors.

Although evidence indicated his relationship with the children had been limited for many years and several were in foster care or under child protection arrangements, the tribunal concluded cancelling his visa would nevertheless be contrary to their best interests.

Balancing all mandatory considerations, Mr Robertson concluded that the factors against cancellation outweighed those supporting removal.

He found the applicant’s lengthy residence in Australia, strong personal ties, the interests of his children and the significant hardship likely to result from deportation collectively justified restoring the visa despite the seriousness of the offending history.

The ruling has renewed political debate surrounding Ministerial Direction 110.

Introduced in 2024 to replace the controversial Direction 99, the policy instructs decision-makers that protection of the Australian community is the primary consideration when reviewing visa cancellations involving non-citizens with criminal records.

It also requires tribunals to consider other factors including family violence, the expectations of the Australian community, ties to Australia, impacts on children and humanitarian circumstances before exercising discretion.

Critics argue the latest decision demonstrates that serious offenders continue to avoid deportation despite the government’s reforms.

Several recent tribunal decisions involving foreign nationals convicted of serious offences have prompted renewed calls for further changes to Australia’s migration laws, with opponents arguing community safety should receive even greater weight when balancing competing considerations.

Supporters of the current framework respond that Direction 110 already prioritises community protection but requires decision-makers to assess every case individually rather than applying automatic deportation.

Under Australia’s migration legislation, the Administrative Review Tribunal independently reviews visa cancellation decisions made by the Department of Home Affairs.

Where a visa cancellation is overturned, the Minister for Home Affairs or Immigration retains separate personal powers in some circumstances to intervene and cancel a visa directly if considered to be in the national interest.

Such ministerial decisions are generally not reviewable by the tribunal.

The case has also drawn attention to broader questions surrounding how Australia balances public safety with humanitarian obligations.

Migration law requires tribunals to consider not only criminal offending but also the consequences of removal for individuals and their families.

That balancing exercise has become increasingly contentious in recent years as several high-profile tribunal decisions have generated strong public debate.

Legal experts note that each appeal turns on its own facts and evidence, with no single factor automatically determining the outcome.

Instead, decision-makers must weigh all mandatory considerations prescribed by ministerial direction before deciding whether cancellation should remain in place.

Whether the federal government chooses to respond legislatively or through ministerial intervention following this latest ruling remains uncertain.

However, the decision is likely to intensify ongoing debate over whether Australia’s visa cancellation laws strike the appropriate balance between protecting the community, respecting due process and recognising humanitarian considerations for long-term residents facing removal from the country they now call home.