Awdo and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2274

Awdo and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2274 (29 October 2025)
Applicant:Steven Ashoor Esho Awdo
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4589

Tribunal:General Member Cipolla
Place:Sydney
Date:29 October 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa should be revoked.

............... ....[SGD].....................................................
General Member Cipolla
CATCHWORDS
MIGRATION – mandatory cancellation of Applicant’s Class XB Subclass 202 Global Special Humanitarian Visa under section 501(3A) – where Applicant does not pass the character test - very serious offending – sexual intercourse without consent - whether discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No 110 – decision under review-cancellation revoked
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pavey and Minister for Home Affairs [2019] AATA 4198
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCAASP 36
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC
SECONDARY MATERIALS
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons
Background

Mr Steven Ashoor Esho Awdo (the Applicant) was born in Iraq on 24 July 1996.
The Applicant’s family are Assyrian Christians and due to conflict in Iraq, fled to Syria in 2009, however, returned to Iraq when the Applicant’s grandmother became ill. The family fled Iraq again in 2014 to Turkey, and then migrated to Australia having been issued with Global Special Humanitarian visas.
As a result of the conflict in Iraq and the family moving to Syria and later to Turkey, the Applicant’s education was disrupted, and he only completed his schooling to year 8.
Since leaving school, the Applicant has worked in a range of occupations which include waitering, working in a kebab shop in Turkey and in construction and freight in Australia and more recently as a handyman.
The Applicant’s parents and two younger sisters reside in Australia.
OFFENDING BACKGROUND
The evidence before the Tribunal indicates that until the offending behaviour, which occurred on 14 January 2022 that led to the cancellation of his visa, the Applicant did not have any criminal antecedents in Australia or overseas.
On 9 December 2024 the Applicant was convicted in the District Court of New South Wales with the offence of sexual intercourse without consent.
SENTENCING COMMENTS
The Tribunal has had regard to the sentencing comments of Judge Gartelmann in the District Court.
The agreed facts were summarised by Judge Gartelmann. Judge Gartelmann noted that the offender and the victim met on an online dating application, and they arranged to meet on 14 January 2022. The offender picked up the victim in his car and they drove to several locations. They were sitting in the car at which time the offender kissed the victim. They drove to another location and the offender held the victim’s hand in her lap. They then bought some takeaway food and drove to another location and sat in the car and ate and the offender touched the victim’s belly with his hand. He kissed the victim again. The victim moved away when the offender tried to use his tongue. The offender asked the victim to get into the back seat of the vehicle. She agreed as she thought if she did not, he would not take her home. They got in the back of the car and the offender asked the victim to give him a ‘blow job’. The victim stated that she did not want to do this stuff on a first date. The offender put his hand under her skirt between her upper thighs and the victim moved his hand away and told him she did not want to do this. The victim expressed to the offender that she had to work the next day, it was getting late, and that she needed to go home. The offender then began to rub the victim’s clitoris and digitally penetrated the victim with his fingers. The victim asked him to stop. The offender pulled his pants down and the victim observed that he had an erection. The offender asked the victim again, to give him a ‘blow job’ and he put her mouth on his penis for about two seconds and the victim felt wrong and disgusted and advised that she did not like doing it. The victim expressed that she did not want to ‘fuck’ the offender. The offender thrust his penis into the victim’s vagina for about 2 to 3 minutes during which time she repeatedly told him to stop. The offender then pulled out and ejaculated into his hand. The victim asked the offender to take her home and he did, and the offender asked the victim if she was okay. The victim called a hotline the following morning and was advised to report the incident to police and she attended a police station on 17 January 2023 to report the matter. Police attended the offender’s home the following day and the offender was arrested and charged with the offence.
Judge Gartelmann referred to the Applicant’s history.
The offender was aged 28 years. He has no record of prior convictions. Prior good character warrants leniency.
He is from Iraq. His parents are of Assyrian background. His family were poor but pro-social. His early upbringing was stable, until war broke out in Iraq when he was seven. The family resolved to leave Iraq. They travelled to Syria in 2009 but returned when his grandmother became ill. They resolved to leave again with the rise of ISIS. They migrated to Turkey in 2014. They migrated to Australia in 2018. They have a wide extended family here.
The instability in his upbringing compromised his education. It ceased in year eight. He worked as a waiter in Iraq and then in a kebab shop in Turkey. He found work here in construction and worked with a freight company. He was most recently employed as a handyman.
He has no history of mental health difficulties. A psychologist assessed him for these proceedings. The psychologist found no evidence he had previously suffered any mental condition, but the psychologist noted he appeared anxious during the assessment.
… He told the psychologist he was guilty of the offence. He claimed he misinterpreted the victim’s conduct at the time. He expressed some recognition of its wrongfulness. He said he would never do it again. He told the psychologist he would apologise to the victim if he could. He gave evidence in these proceedings. He reiterated he would apologise to the victim if he could. He said he understands the victim was hurt because of it. He struggled to articulate this further. He said he could not express it very well.
This evidence together establishes he has accepted responsibility for his actions and acknowledges their consequences. It indicates he is remorseful but has limited insight.
This indicates rehabilitation prospects albeit qualified. The psychologist thought his prospects favourable. The psychologist noted he said he would participate in sex offenders’ treatment if asked. The psychologist considered the risk of re-offence low to medium. He has not offended before or since. His custodial history records no misconduct in custody. He retains the support of his immediate and extended family. His rehabilitation prospects appear reasonably good. The likelihood of reoffending appears relatively low.
CANCELLATION
On 4 February 2025 the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa was cancelled under s 501(3A) of the Migration Act (the Act) as he did not pass the character test because of the operation of s501(6)(a) as he had a substantial criminal record because he was serving a sentence of imprisonment, on a full-time basis, for an offence against a law of the Commonwealth, a State or Territory.
On 2 June 2025, the Applicant made representations seeking revocation of the mandatory cancellation of his visa through his representative Crossover Law Group. On 5 August 2025, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa.
APPLICANTS SUBMISSION TO THE DEPARTMENT SEEKING REVOCATION
The submission dated 2 June 2025 refers to the Applicant’s immigration history and background.
The submission refers to the Applicant’s criminal offending which occurred on 14 January 2022. The submission notes that the offence for which the Applicant was charged, namely sexual intercourse without consent, attracts a maximum penalty of imprisonment of 14 years and a standard non-parole period of seven years, however, in this instance, the Applicant was sentenced to 2 years and 7 months with a 1 year and 6-month non-parole period and that the Applicant will be eligible to be released from gaol on 27 November 2025.
The submission notes the family members who will be impacted by the cancellation of the Applicant’s visa include his mother and father and his sisters.
The submission refers to a number of support letters from family and friends and also refers to minor Australian citizen children, relatives of the Applicant, who would be impacted by the cancellation.
The submission acknowledges that the Applicant fails the character test under s501(6)(a) of the Act.
Having regard to primary consideration 1, protection of the Australian community and risk, the submission notes that the Applicant was charged with a sexual offence and acknowledges the seriousness of the offending. The submission acknowledges that the offence is serious in nature and the risk to the Australian community is severe should a similar offence be committed. The submission posits however, that the risk of reoffending is low, and this is acknowledged in the District Court sentencing remarks of 9 December 2024 and is also supported by the fact that the Applicant did not engage in any reoffending whilst on bail in the community prior to being sentenced.
Having regard to primary consideration 2, family violence, the submission notes that this consideration is not relevant as the Applicant has not engaged in family violence.
Having regard to primary consideration 3 the strength, nature and duration of ties to Australia, the submission notes that decision-makers need to consider any impact of the decision on a non-citizens immediate family members in Australia. The submission notes the Applicant has a profound connection to Australia having spent a substantial period in Australia. The submission posits that the Applicant’s ties to Australia include strong familial relationships with his parents, sisters, aunties and uncles and 16 cousins. The submission notes that the Applicant’s family cannot relocate with him to any other country due to humanitarian concerns. The submission notes that the Applicant’s family has suffered many years of displacement due to war and humanitarian reasons outside their control. The submission notes that the Applicant arrived on a special humanitarian visa and is unable to return to Iraq due to credible fears of persecution in that country. The submission notes that this consideration should be given considerable weight towards revocation of the cancellation of the Applicant’s visa.
Having regard to primary consideration 4, the best interests of minor children in Australia affected by the decision, the submission notes that the Applicant has a large number of nephews and nieces residing in Australia who would be impacted by the decision and that this consideration weighs moderately in favour of revocation.
Having regard to primary consideration 5, expectations of the Australian community, that this consideration weighs against revocation.
Having regard to other considerations the submission addresses the legal consequences of the decision. It notes, that if the visa remains cancelled, the Applicant will be liable to removal from Australia under section 198 of the Act. It also notes that the Applicant would be held in immigration detention until such time as he is removed from Australia under section 189 of the Act.
The submission argues that Australia has non-refoulement obligations to the Applicant because the Applicant arrived in Australia as the holder of a special humanitarian visa and cannot return to Iraq due to a fear of persecution in that country.
Having regard to the extent of impediments if removed, the submission notes that the Applicant is a citizen of Iraq and would not face linguistic or cultural barriers, however, the submission notes that the Applicant has lived in Australia on a continuous basis since 2018 (sic), and his removal from his immediate family would be substantial, and that there is no safety available to him in Iraq.
The submission concludes that the Applicant requested his visa application be revoked when weighing certain primary and other considerations under the Direction.
APPLICANTS STATEMENT OF FACTS, ISSUES AND CONTENTIONS
The Tribunal received a statement of facts, issues and contentions (SFIC) from the Applicant’s representative Ms Lewis which is dated 15 September 2025. The SFIC has been duly considered.
The SFIC largely replicates the submissions to the Department dated 2 June 2025.
The submission notes that the issue for determination by the Tribunal is whether the Tribunal should revoke the mandatory cancellation of the Applicant’s Subclass 2021 visa.
The submission notes that with respect to protection of the Australian community, that the Applicant was convicted of a serious sexual offence and was sentenced to a term of imprisonment of 2 years and 8 months, with a non-parole period of 1 year and 6 months which is regarded as a very serious offence under Direction 110.
With respect to the risk of future offending a number of contentions are made. The Applicant contends that the sentencing judge in the District Court found his prospects of rehabilitation to be reasonably good and the likelihood of reoffending to be relatively low, and this was reflected in the sentencing comments dated 9 December 2024.
The submission notes that the sentencing judge indicated that the evidence established that the Applicant had accepted responsibility for his actions and expressed remorse but appeared to have limited insight. An assessment by a psychologist concluded that the Applicant’s prospects for rehabilitation were favourable, and that the Applicant would be willing to participate in a sex offenders treatment program if required to do so. It was noted that the Applicant’s risk of reoffending was low to medium. In terms of protective factors, the psychologist noted that the Applicant had no evidence of misconduct in custody and had the support of his immediate and extended family in Australia.
The submission notes that the Applicant has no prior criminal record, and the offence was an isolated incident rather than a pattern of ongoing offending. The submission notes that the Applicant did not reoffend whilst on bail and had been of good behaviour whilst in custody. The submission notes that the Applicant has accepted full responsibility for his actions and expressed genuine remorse which is reflected in a letter provided by the Applicant dated 15 September 2025.
Reference was made to the case of Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC at [77] where Justice Mortimer noted that “a bare recitation of what a person has done in the past is an insufficient basis for a finding as to the persons likely future conduct”.
With respect to primary consideration 2, the submission notes that this consideration is not relevant as there was no family violence committed by the Applicant.
With respect to primary consideration 3, the submission notes that the Applicant is a 29-year-old Iraqi national who arrived in Australia in 2018 as the holder of a Subclass 202 Global Special Humanitarian visa. The Applicant’s family who were of Assyrian background, suffered displacement due to war in Iraq and consequently, have lived in Syria and Turkey before finding refuge in Australia.
It is noted the Applicant has no prior convictions and was considered to have a pro-social and stable upbringing until the war in Iraq disrupted his life. The submission confirms that the Applicant only completed an education to year 8 due to prevailing circumstances in Iraq.
The submission notes that the Applicant’s parents, sisters, grandmother (now deceased), uncles and aunts and 16 cousins all reside in Australia.
The submission notes that the Applicant is the only son in his family and plays a central role in maintaining familial cohesion and assisting with day-two-day responsibilities.
The submission notes the emotional and physical toll that the Applicant’s visa cancellation has had upon his family particularly his mother, who has been assessed by a psychologist as suffering from severe depression, and a major post-traumatic stress disorder. The Applicant’s father had expressed his concern about the removal of the Applicant from Australia upon the family unit particularly upon his wife.
With respect to primary consideration 4, the submission notes that the Applicant does not have biological children but has 16 nieces and nephews and that the Applicant has expressed in statements that he has forged meaningful relationships with the children of his cousins since he has been in Australia. The submission notes that the Applicant has a pivotal role within his extended family and that the best interests of these children need to be considered despite the Applicant not playing a parental role.
Having regard to primary consideration 5, the expectations of the Australian community, the Applicant acknowledges that he has committed a single, serious sexual offence. The submission notes that it is important, however, to note that this was an isolated incident, was not part of the pattern of offending, and that the Applicant is not a repeat offender. Reference was also made to the Applicant statement of 15 September 2025 where he expresses remorse, demonstrates a sincere understanding of the gravity of his offending and a commitment and intention to pursue rehabilitation and restitution.
Having regard to other considerations, the first being the legal consequences of the decision, the submission notes that the Applicant is a person to whom Australia has non-refoulement obligations. The Applicant arrived in Australia as the holder of a Special Humanitarian visa. The submission notes that the Applicant cannot return to Iraq. The submission notes that the Applicant would not be able, due to the High Court precedent in the case of NZYQ, to remain in indefinite detention in Australia, and hence would be eligible for a Bridging R visa or onshore detention in Nauru for the rest of his life.
Having regard to the extent of impediments if removed, the submission contends that the Applicant has no substantial language or cultural barriers with respect to returning to Iraq, however, he would face many impediments if removed which would compromise his safety and well-being. The Applicant maintains a well-founded fear of persecution if forced to depart Australia to Iraq and that to do so would be in direct contravention of Australia’s non-refoulement obligations.
The submission notes that the Applicant has no meaningful support network in Iraq and his immediate and extended family all reside in Australia.
The submission notes that Australia offers access to rehabilitation programs and mental health services for persons such as the Applicant, that are not available in Iraq. The submission notes that the Applicant has spent a considerable period in Australia and has become culturally and linguistically integrated.

In conclusion, the submission contends that the correct and preferable decision is for the Tribunal to set aside the delegate’s decision not to revoke the visa cancellation and to substitute a decision that the original visa cancellation be revoked. The submission acknowledges the seriousness of the Applicant’s offence but claims that there is a low risk of reoffending supported by the sentencing judge’s comments and psychological assessments and that the Applicant’s compelling family and humanitarian circumstances should be given significant weight. Further removal of the Applicant will cause hardship for his immediate and extended family and minor relatives.
RESPONDENTS STATEMENT OF FACTS, ISSUES AND CONTENTIONS
The Tribunal has duly considered the Respondent’s SFIC dated the 29 September 2025.
The Minister notes that the Applicant does not pass the character test pursuant to paragraph 501(6)(a) of the Act on the basis that he has a substantial criminal record as defined in subsection 501(7) of the Act. The submission notes that the issue before the Tribunal is whether the Tribunal is satisfied that there exists another reason why the cancellation decision should be revoked.
The submission notes that primary considerations 1 and 5 weigh strongly against the Tribunal being satisfied that there is another reason why the cancellation decision should be revoked, noting that the Applicants offending involved a very serious crime of a sexual nature against a woman. The submission further notes that presently, there is an unacceptable risk that the Applicant may reoffend. It further notes that the expectations of the Australian community are such that the Australian Government should cancel the Applicant’s visa if they have engaged in such serious conduct.
Having regard to protection of the Australian community and risk, the Respondent submits that the Applicant’s conduct is very serious as his offending involved the crime of a sexual nature against a woman and that violent or sexual crimes against women are to be viewed very seriously, regardless of the sentence imposed.
The Respondent submits that the custodial sentence imposed by the court of 2 years and 8 months was reflective of the seriousness of the offending and that this seriousness is also reflected in the sentencing remarks of Judge Gartelmann.
The Respondent acknowledges that the Applicant does not have an extensive history of offending or any trend of increasing seriousness in his offending, as this offence, was his first offence.
Having regard to risk, the submission posits that there is an unacceptable risk that the Applicant may reoffend. The Respondent submits that the Tribunal should find that given the Applicant had engaged in sexual offending against a woman, it should find that such conduct and the harm it would cause if repeated, is unacceptable in terms of risk.
The Respondent acknowledges that the Applicant has expressed remorse in his written statements and acknowledges that the Applicant did not reoffend whilst on bail. The Respondent also acknowledges protective factors include support from the Applicant’s family and friends in Australia. The Respondent contends that primary consideration 1 weighs significantly against revocation of the cancellation decision.
Having regard to primary consideration 3, the strength, nature and duration of ties to Australia, the Respondent acknowledges that the Applicant has family members in Australia including his parents and two adult sisters. The submission acknowledges that the Applicant’s mother has chronic health issues, having been diagnosed with post-traumatic stress disorder, and a major depressive disorder, alongside suffering from chronic pain.
The Respondent accepts that non-revocation of the cancellation would have a significant impact on the Applicant’s family. The submission notes that the Applicant arrived in Australia in 2016 as a 20-year-old and has worked in a number of positions from 2020-2022. The Respondent accepts that primary consideration 3 weighs moderately in favour of revocation.
Having regard to primary consideration 4, the best interests of minor children in Australia, the Applicant has submitted that he has 16 minor age cousins who would be affected by the decision to cancel his visa whose ages range between 1 and 14.
The submission notes that the Applicant does not play a parental role in these children’s lives and that minimal evidence had been provided with respect to the impact on these children if the Applicant was removed from Australia and hence minimal weight should be afforded to this consideration.
Having regard to primary consideration 5, expectations of the Australian community, the Respondent contends that this consideration weighs strongly against the revocation of the cancellation of the Applicant’s visa.
Having regard to other considerations, the Respondent, in addressing the legal consequences of the decision, notes that the Applicant could be removed from Australia under section 198 of the Act and could be liable for detention until such time as he is removed under section 189.
The submission notes that the Applicant’s representative contends that the Applicant is protected by Australia’s non-refoulement obligations. However, the Respondent notes that the Applicant arrived in Australia as the holder of a Global Special Humanitarian visa and is not presently the subject of a protection finding. The submission notes that the grant of a Subclass 202 visa does not in itself constitute a protection finding under s 36 of the Migration Act.
The submission acknowledges that there is nothing to preclude the Applicant from applying for a protection visa which would be assessed in due course. The Respondent submits that it is open to the Tribunal to defer an assessment of whether the Applicant’s claims engaged Australia’s non-refoulement obligations. The Respondent acknowledges that if the Tribunal elects to defer the assessment of whether Australia’s non-refoulement obligations are engaged in relation to the Applicant, it is necessary for the Tribunal to consider and take into account the alleged facts underpinning his claims in respect of non-refoulement obligations. The Respondent contends that it would be appropriate for the factual matters relied upon by the Applicant in this context to be considered, having regard to the impediments that he would face if return to Iraq.
Having regard to the extent of impediments if removed to Iraq, the submission notes that the Applicant is 29 years old with no known health issues, the Applicant claims fear in Iraq claiming that if he returns, he will be killed and that he has no life in that country. Further that the Applicant has limited family members in Iraq however, the Respondent notes that the Applicant would not face language or cultural barriers if he returned to Iraq. The Respondent acknowledges that the Applicant may face emotional hardship particularly due to the physical separation from family members but submits that the Applicant would have access to the Iraqi health and welfare system as a citizen of Iraq.
In conclusion, the Respondent contends that, having regard to the primary and other considerations in Direction 110, the Tribunal should affirm the reviewable decision.
REVIEW HEARING
The Tribunal conducted a review hearing on 21 and 22 October 2025. It had been scheduled for 20 and 21 October 2025 however, for reasons not before the Tribunal, the Applicant was transported to the incorrect premises (John Maddison Tower) and could not be conveyed to the Tribunal on 20 October 2025.
The hearing on 21 and 22 October 2025 was conducted in person and the Applicant was transported to the Tribunal premises for the hearing by prison officers. The Applicant’s representative Ms Lewis attended the hearing. The Minister’s representative Ms Balinski attended the hearing in person on day one and via video conferencing facilities on day two (due to the re-scheduling). The Tribunal and the Applicant were assisted by an accredited interpreter on day one of the hearing who attended in person. The Tribunal was assisted by a different interpreter on day two because the interpreter who had been booked for 20 and 21 October was not available on 22 October. In the early stages of the hearing on day two whilst the interpreter was interpreting for the second witness the Applicant’s representative (an Arabic speaker) raised concerns about the interpreter. These concerns were echoed by the observations of the Tribunal. A decision was made by the Tribunal to stand the matter down so another accredited interpreter could be sourced. The hearing resumed and the Tribunal and parties were assisted by another interpreter who appeared via video conferencing facilities. There were no issues raised with this interpreter who interpreted for the second witness and with respect to the closing submissions of the parties.
At the outset of the review hearing on 21 October 2025 the Tribunal went into considerable detail about the respective issues in the review, the prospective outcomes of the review and provided the Applicant with considerable detail about how the review hearing would be conducted.
The Applicant confirmed that the statements that he had provided in support of his revocation application on 23 March 2025 and on 15 September 2025 were both true and correct. It was noted that the Applicant in his statement of 23 March 2025 expressed his deep remorse and regret for his past actions and the circumstances that led to his current situation. When asked what he was referring to with respect to his past actions, the Applicant stated that he was remorseful because he did not do the right thing and the mistake that he made was very big. The Applicant stated that he was referring to the criminal conviction for which he was serving a prison sentence. The Applicant stated that he has sisters and if a similar offence occurred to his sisters, he would find it unacceptable and that he now understands the situation with respect to his offending.
The Applicant confirmed that he and his parents and sisters fled Iraq in 2014 due to the instability in that country. The Applicant confirmed that he was born in Iraq and lived in Iraq from 1996 until the time the family departed in 2014. The Applicant stated that he and his family were from the north of Iraq and that he identified as an Assyrian Christian. The Applicant stated that his maternal grandmother came to Australia with his family when they were issued with global special humanitarian visas and that she had lived with his family in Iraq.
The Applicant was asked about prevailing conditions in Iraq prior to the family’s departure. The Applicant stated that Iraq was both dangerous and unstable due to the war that commenced in 2003. The Applicant stated that he witnessed dead bodies, he witnessed war, he stated that warplanes would cause glass to shatter. The Applicant stated that the war commenced in 2003 and continued until the family fled in 2014 and he described the situation at that time in Iraq as not being good. The Applicant stated that members of Daish came to the North and they told his family to leave the area. The Applicant stated that Daish was targeting Christians, and a large component of the population left. The Applicant stated that Daish started stealing things from local villages. The Applicant stated that his family fled to Turkey and that he worked in that country in a kebab shop to assist his family in covering expenses. The Applicant stated that life in Turkey was very difficult, money was short, and the family had to pay rent. The Applicant stated that the family’s application for Global Special Humanitarian visas was accepted by Australia and the family arrived in July 2016.
The Applicant stated that he loved Australia a lot, that his parents were here his sisters were here and he had a number of close relatives, residing in Australia. The Applicant stated that he had many first cousins with whom he was close. The Applicant provided detailed evidence with respect to his family’s composition in Australia. He also talked about the closeness that he had with his minor cousins. The Applicant also provided evidence about the regularity in which he had contact with his cousins and other relatives in Australia.
When describing the closeness that he had with his relatives in Australia, he advised that they had been an integral part of his family’s life since they relocated to Australia and that most relatives lived in close proximity to one another. With respect to his minor cousins, the Applicant stated that they would visit his place, he would play with them, he played the role of an uncle in their lives and he would take them swimming and to the park. The Applicant believes that if he was removed from Australia that his absence would cause a void in their lives. The Applicant stated that since his imprisonment his minor cousins had been asking about him and had been told that he had relocated to Melbourne and that’s why they had not been able to see him.
The Applicant gave evidence about his mother’s severe mental health issues and poor physiological health. He said his mother was scared about the prospect of not seeing him again if he was removed to Iraq and that his removal would have a profound impact on her. Indeed, he stated that he did not believe that his mother would survive his removal from the country. The Applicant stated that he is her only son and that his entire family had been adversely impacted by their experiences in Iraq and Turkey. The Applicant stated that he provided support to his family including financial support when he was living and working in the community.
The Applicant described his own mental health, noting that at the beginning he did not pay attention to mental health issues but now he appreciates the need to do so. The Applicant stated that he needed to speak to a specialist about his experiences in Iraq. The Applicant stated that he did not wish to make excuses for his actions. The Applicant stated that he understood that he had been convicted of sexual assault without consent and in describing his offending, stated that the victim was hurt a lot by what he did and advised that if what he did was not wrong the victim would not have reported his actions to the police. The Applicant stated that he had never been in trouble with the police prior to the offence that led to his imprisonment and had no interaction with the criminal justice system in Iraq, Turkey or Australia prior to his offending.
The Applicant stated that he attended some schooling in Iraq and Turkey but completed his schooling in year eight. The Applicant stated that in Islamic society they did not explain what sexual consent was, the Applicant advised that he received no sex education at school. The Applicant stated that despite being a Christian, he was living in predominantly Islamic countries in Iraq and Turkey. The Applicant was asked about his understanding of sexual consent. The Applicant stated that anything with consent is okay but anything without consent is not okay. The Applicant stated that consent requires consideration of whether somebody says yes or no. The Applicant was asked whether he understood that what he did on 14 January 2022 was nonconsensual. The Applicant stated that he realised this when he went to gaol. The Applicant stated the victim asked him to take her home and he did not take her home. The Applicant claimed that with respect to intimacy, consent was required for every aspect. Once again, the Applicant stated that if this happened to his sisters that they would be hurt, his parents would be hurt and said that his mother had talked a lot to him about this. The Applicant stated that his mother told him that he could not do this to other people’s daughters and asked him whether he would accept this being done to his sisters to which he responded ‘no’.
The Applicant described the impact on the victim of his offending stating that she could not trust people and that what he did to her would stay in her memory.
The Applicant advised that during the time that he had been in gaol there were no courses that have been made available to him with respect to sex offending. The Tribunal asked the Applicant how he would participate in such a course if it was available to him given that English was his second language. The Applicant stated that he believed that he would be able to participate in the course because his English language skills had improved markedly since he had been in gaol. The Applicant explained that he was not able to engage in courses in gaol because the sentencing judge had not ordered this. The Applicant claimed that if he was offered an opportunity to engage in courses to assist in his rehabilitation that he would. The Applicant stated that consent was the same for a close partner as it is for a new girlfriend.
The Applicant gave evidence that prior to going into gaol that he was working as a handyman in the housing industry. Prior to that, the Applicant had worked in a FedEx warehouse. The Applicant stated that if he was released into the community, he would try to find a job and believed that his previous employer may offer him employment. The Applicant stated that his parents had paid a lot of money in legal fees on his behalf and that he would like to repay them.
In describing what may happen to him if he was returned to Iraq, the Applicant stated that he would be killed because he is a Christian. The Applicant stated that his father was nearly killed in Iraq because he used to work at the local church.
With respect to his statement of 15 September 2025, the Applicant stated that he was hoping the Tribunal would revoke the cancellation of his visa. The Applicant described the last three years having an adverse impact on his family and he advised that his family could not do without him and inversely, he could not do without his family. The Applicant submitted that if he was returned into the community that he would turn his life around, that he would obtain work, provide support to his family and engage in good deeds. The Applicant stated that he would return to playing soccer and swimming and that he would not break the law. Once again, the Applicant stated that he would work to repay his family for the money they had spent on him with respect to his legal fees. The Applicant stated because his mum was very unwell that he hoped to be able to provide support and care to her. The Applicant reiterated that he was close to his extended family and his minor cousins have been asking about him since his imprisonment.
The Applicant was cross-examined by the Minister’s representative. The Applicant agreed that he had been convicted of sexual intercourse without consent. The Applicant was taken very closely through the statement of agreed facts contained in the sentencing comments of Judge Gartelmann located at page 39 of the agreed hearing book. The Applicant agreed with the facts as stated.
The Applicant was taken to his personal particulars form at question 10 located at page 66 of the hearing book. The question in the form asked the Applicant to outline any factors he believed helped explain his offending that he wanted the decision-maker to take into account. The Applicant’s response was “I have one criminal offence/conviction and beside that I have a clear criminal record. This instance I met someone on Tinder and we had sex that she did not agree with it and she complained later. My English is not great when I communicated with the police but I plead guilty. I will never do this again. I know what I did is wrong. I’m very ashamed of my actions and take full responsibility for my actions”. The Applicant was asked what he meant by “she did not agree”, to which the Applicant responded that at the time of the offending, he thought that the victim was consenting, but that he does not believe this now. The Applicant was asked whether he believed that the signals that he was getting from the victim at the time amounted to consent. The Applicant stated that at the time he did, but he does not believe so now.

Reference was made to the psychologist’s report prepared by clinical psychologist John Machlin, on 25 October 2024 with respect to the Applicant’s District Court sentencing. The report is located at page 303 of the hearing book. The report notes that the Applicant was interviewed by audiovisual link from the John Maroney Correctional Centre.
The Applicant was questioned about his understanding of consent with respect to the report of Mr Machlin. The Applicant stated that his understanding of consent from the time of his offending to now had change markedly. The Applicant stated that whilst he was in Iraq or Turkey there was no sex education or education with respect to consent. The Applicant as a consequence of his offending has a much better understanding.
The Applicant agreed that the victim of his offending did not want to engage in intercourse, but he engaged with it anyway, breaching consent. The Applicant stated that his behaviour was unacceptable, he would not accept it for his daughter or for his sister. When asked about why he engaged in the behaviour, the Applicant stated, “I do not know everyone goes through a time when their brain was not working for them mine was not working for me at the time”. The Applicant advised that at the time of the offending he was not incapacitated by drugs or alcohol or any mental health condition. The Applicant advised that he had been working hard and was tired because of work.
The Applicant advised that he regretted his actions because of the impact it had on his family, on his victim and indeed upon himself with respect to his imprisonment. The Applicant confirmed that he was not able to engage in courses in gaol. The Applicant stated that if he was released into the community, he would happily engage in a sex offenders’ course and that he needed to undertake courses so that he did not repeat his mistakes.
The Tribunal asked the Applicant whether gaol had been a big incentive with respect to him not engaging in future offending. The Applicant stated that it had, but he would also like to undertake courses. The Applicant had been told in gaol that the sentencing judge had not directed he engage in courses and hence they had not been made available to him. It was noted that the sentencing judge had recommended an extended period of parole with access to courses to enable attitude and victim empathy to be addressed. The Applicant agreed with this and accepted this. The Applicant accepted that he had ongoing rehabilitation needs post imprisonment.
The Applicant confirmed that he had no children of his own. The Applicant gave evidence with respect to the close relationship that he has with his minor cousins. The Applicant stated that he loved them, that he bought them things, played soccer with them, took them swimming and took them to the park. He confirmed that he did not have a parental role in their lives. The Applicant stated that if he was removed to Iraq, he would not be able to see his minor cousins, to hug them or be a presence in their lives.
The Applicant gave evidence that he had limited family members in Iraq, namely two paternal uncles and one paternal aunty that live in the north of Iraq and with whom the family do not have a lot of contact. He advised that they did not have children.
The Applicant advised that he would encounter problems if he returned to Iraq but conceded that he would have access to health and welfare services in Iraq available to other citizens.
Elaborating on the problems that he envisaged if he returned to Iraq, the Applicant stated that the family left Iraq when his father was threatened by Daish because of his Christian faith and the fact that he worked for a church.
With respect to his minor cousins, the Applicant stated that he provided care to them on occasion when their parents working. He believes that his removal from Australia would be impactful on his minor cousins. The Applicant stated that maintaining contact through technology would not be the same as face-to-face contact.
The Applicant stated that he was not compelled by the sentencing judge to complete any programs in custody.
The Applicant stated that he had been using his time in gaol productively by engaging in work such as painting and sewing, and the Applicant had worked as a hairdresser. The Applicant believed that gaol had given him a period of time to reflect on his criminal offending. The Applicant stated that he never wanted to go back to gaol. The Applicant again stated his willingness to engage in rehabilitation courses post his release into the community.
The Tribunal took evidence from a number of witnesses including the Applicant’s two sisters, his parents and two first cousins. They all expressed that the Applicant was very remorseful for his offending and had made significant efforts to improve his behaviour. They expressed that his offending was out of character. They all acknowledged that the Applicant had pleaded guilty to his offending at the first available opportunity and accepted the consequences of his offending and were proud of him for doing this. They explained that the Applicant made a mistake and that he would do everything upon release to improve himself. The Applicant’s family members gave evidence that he was not a threat to the community. The Applicant’s older sister advised that she was in a close relationship with her partner and was wanting to become engaged and was hoping the Applicant would be released into the community to be part of that celebration.
The Applicant’s mother gave evidence about her mental health and physiological health conditions. She advised that it was her belief that if her son was sent back to Iraq he would face a significant risk of persecution. She advised that he would not have close family members in Iraq. The Applicant’s mother also gave evidence about the significant impact that her sons removal would have upon her own mental health. She advised that he was her only son, and that his prospective removal from Australia had a significant impact upon her including an inability to sleep. The Applicant’s mother gave evidence about the support that her son provided to her and to the family unit in the community. The Applicant’s father gave evidence with respect to his wife’s chronic mental health and physiological conditions. He also gave evidence about the profound impact on the family unit if the Applicant was removed to Iraq.
Two of the Applicant’s first cousins, the mothers of a number of his minor cousins, gave evidence to the Tribunal about the Applicant’s deep and meaningful relationship that he had with their children. They gave evidence about the Applicant’s interaction with their children, the children’s fondness for the Applicant and the fact that they had been asking about his whereabouts since he was imprisoned. They also gave evidence with respect to the Applicant’s character.
CLOSING SUBMISSIONS
The Applicant’s representative made a closing submission advising that the Applicant was reliant on the SFIC that had been submitted to the Tribunal. The Applicant’s representative contended that there was another reason available to the Tribunal to set aside the cancellation of the Applicant’s visa. Reference was made to an error in the SFIC noting that the Applicant arrived in Australia on 25 September 2016 and not 2018 as noted in the SFIC.
It was noted that the Applicant arrived in Australia as an offshore humanitarian visa holder. The Applicant was Assyrian Christian from the north of Iraq, namely Mosul, and the north had been invaded by Daesh. It was submitted the Applicant would have experienced real difficulties growing up in that environment, that he witnessed people dying in front of him and war and had to flee his country with his family to survive. As a result, his schooling was substantially interrupted and he only completed schooling to year 8 level. The Applicant had been working from a young age supporting his family in Turkey working in a kebab shop. The Applicant’s representative stated that the Applicant’s family were found to be owed protection obligations by Australia. The Applicant’s representative submitted that the Tribunal could not separate the Applicant’s background from the one significant criminal conviction that led to the cancellation of his visa.
It was noted that there was no sex education available to the Applicant in Iraq or in Turkey. There had been no opportunity for the Applicant to be educated with respect to sex education and consent in Australia. Despite the Applicant’s background, it was noted the Applicant took full responsibility for his actions at the outset and pleaded guilty at the first available opportunity. It was submitted the Applicant had learnt a significant lesson leading to and from his incarceration.
It was submitted that in evaluating the relevant primary considerations under Direction 110, the Tribunal needed to assess the nature and seriousness of the Applicant’s conduct to date. It was noted that after the Applicant was arrested, he was on bail and living in the community for two and a half years, during which time there was no further offending whilst he was in the community. It was noted there had been no conduct issues whilst the Applicant had been imprisoned.
It was submitted that the Applicant does not dispute the seriousness of the offence and acknowledged the fact that crimes of a sexual nature against women were viewed very seriously by the Australian Government and community.
In addressing risk, it was noted that the Applicant had been the subject of a psychological assessment by Mr Machlin with respect to his sentencing in the District Court. Mr Machlin found that there was a low to medium risk of reoffending. It was noted that the Applicant had not offended prior to the index offence and had been of good behaviour whilst in custody. It was noted that a protective mechanism available to the Applicant is that he retains the support of his immediate family and his extended family. It was submitted that the Applicant’s rehabilitation prospects are good, and that the likelihood of reoffending appears low. It was noted that the sentencing judge in the District Court did not order the Applicant to undergo courses whilst in custody but allowed a one-year and two-month parole period to enable the Applicant to attend courses in the community.
It was noted that the Applicant accepts full responsibility for his actions and is remorseful for his offending. The Applicant demonstrated insight into the impact on himself, his family and the impact of his offending on his victim. It was noted the Applicant faced difficulties after arriving in Australia due to his language skills. It was submitted that the Applicant had made good progress whilst incarcerated, closely reflecting on his offending and resolving not to reoffend into the future. He had also reflected on the nature of consent. It was noted that the Applicant had no issues with drugs or alcohol and that he did not resort to drugs or alcohol use after the offending.
It was submitted that the rehabilitation prospects of the Applicant must be taken into account by the Tribunal. He had acknowledged that what he has done is very serious, however the Applicant had now developed insight into his offending which needed to be taken into account. It was restated that the Applicant had no criminal history apart from this offence and that the Applicant had given evidence that this was his first and last mistake.
It was noted that family violence was not a relevant consideration in this review.
Having regard to the strength nature and duration of ties to Australia, reference was made to the Direction noting at 8.3(1) that “decision-makers must consider any impact of the decision on the non-citizens 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”.
It was submitted that this consideration should be weighed very heavily in favour of revocation. It was noted that the Applicant’s mother, father and two younger sisters are Australian citizens. It was submitted that the families background could not be separated from their current circumstances as this background had been impactful on the entire family. The family had to endure war and fled Iraq for Turkey before coming to Australia. They came to Australia for a new beginning as this country offered them freedom and safety. They faced difficulties in Australia when the Applicant lost his maternal grandmother in 2022. The family had to survive financially in a new country. The family have grappled with the impact of the war in Iraq upon them. Reference was made to the psychologist’s report pertaining to the Applicant’s mother indicating that she was suffering with major depression and post-traumatic stress disorder. Reference was made to the evidence of the Applicant’s father, noting that his wife barely slept, and would wake up from sleep screaming. It was submitted that the Applicant’s incarceration and prospective removal from Australia had a profound impact on his mother and indeed, on the entire family unit. It was noted that the Applicant’s removal from Australia would impose a life sentence on his immediate family. It was noted that Iraq is not a safe place to return to, particularly given the Applicant’s ethnic and religious background and the fact that his father worked in a church.
It was noted that the Applicant has provided both physical and emotional support to his family members particularly his mother. It was submitted that the mother’s interests needed to be given close consideration under 8.3(1).
It was submitted that each family member needed to be evaluated under this consideration with respect to the impact of the decision and that decision-makers must have regard to how long the non-citizen has resided in Australia, whether the non-citizen began offending soon after arriving in Australia and that weight must be given to the time that the non-citizen has been contributing positively to the Australian community.
The submission addressed not only the impact on the Applicant’s immediate family members but upon his extended family in Australia. It was noted that the Tribunal had been provided with details of the Applicant’s minor cousins including their birth certificates and had been given evidence with respect to the role that the Applicant played in their lives and the impact of the Applicant’s removal upon them.
Reference was made to a letter provided on behalf of the Applicant by his parish priest dated 26 February 2025 located at page 373 of the hearing book who noted that if the Applicant was removed from Australia, it would have a significant emotional impact on his family and the church community. The Applicants priest also attests to the Applicant’s past service in the community and as a member of the church.
It was submitted that this primary consideration weighs very heavily in favour of revocation of the cancellation of the Applicant’s visa.
The submission addressed the best interests of minor children and noted that it is not just biological children, but the interests of any child affected by the decision that is required to be considered. Further that each individual child had to be given individual consideration. Once again it was submitted that there was significant evidence with respect to the close relationship that the Applicant had with his minor cousins and of the impact of his prospective removal upon them. It was noted that the Applicant’s minor cousins have a meaningful relationship with the Applicant, who plays soccer with them, takes them swimming, plays a positive role model in their lives and cares for them on occasion. It was submitted that the Applicant’s absence since his imprisonment from their lives had been impactful. It was submitted that the interests of the Applicant’s minor cousins should be given significant weight in favour of the revocation of the cancellation of the Applicant’s visa.
Having regard to the expectations of the Australian community, the Applicant’s submission acknowledged that the Australian community accepts that non-citizens will obey Australian laws whilst in Australia. It was conceded that the relevant case law around this consideration provides a line of authority that establishes that this consideration does not weigh in favour of revocation.
Having regard to other considerations, it was submitted that the Applicant and his family arrived on Subclass 202 visas from Iraq in 2016. Whether or not the cancellation of the Applicant’s visa raised non-refoulement obligations to the Applicant because the Applicant is not the subject of a protection finding, it was submitted that it was open to the Applicant to apply for protection visa and that any such application would most likely be successful. The Applicant would be subject to a prolonged period of detention in the event that he lodged a protection visa application, and this detention would be impactful on the Applicant and indeed impactful on his family members.
It was submitted by the Respondent’s representative that the prohibition against indefinite detention enunciated by the High Court in the decision of NZNQ is not a barrier to the Applicant being held in detention whilst a protection visa was processed. Reference was made to the High Court case of CZA 19 a 2025 judgment that clarified the limits of immigration detention. This case provided authority that detaining a non-citizen for the purpose of processing their visa application is lawful, even if their removal is not practicable in the foreseeable future, and even if they have been found to need protection. This decision means that individuals can be held in detention for an extended period whilst their visa claims were being processed.
The Applicant’s representative submitted that anything that is impactful on family members and minor children such as a prolonged period of detention, if the Applicant applied for a protection visa, should be considered with respect to the legal consequences of the decision.
Having regard to the extent of impediments if removed, the submission noted that the social and medical support available to the Applicant in Iraq is limited. It was submitted that the Applicant is covered by the non-refoulement obligation in 9.1(2) of the Direction.
It was submitted that the Applicant faces persecution in Iraq because he is an Assyrian Christian whose father had worked in a church in Iraq. The impediments to the Applicant if removed to Iraq extend to him being harmed or killed in that country.
In summary the Applicant’s representative noted that 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 cancellation decision and the extent of impediments upon the Applicant if removed from Australia all weighed in favour of revocation.
Having regard to the protection of the Australian community, the Tribunal needs to consider the risk which was identified as low to moderate. It was also necessary for the Tribunal to look at the background of the Applicant and to reflect on what the Applicant has learnt as a consequence of his interaction with the criminal justice system.
The Respondent’s representative made closing submissions noting that the Respondent relied on the contents of the SFIC dated 29 September 2025.
The Respondent submitted that having regard to its SFIC and to Direction 110, the Tribunal could not be satisfied that the cancellation of the Applicant’s visa should be affirmed.
It was noted that with respect to protection of the Australian community that there were three things that the Tribunal needed to take into consideration, and they were the nature and seriousness of the Applicant’s conduct, risk, and the likelihood of the Applicant engaging in further serious conduct.

In respect of the first consideration the nature and seriousness of the conduct it was submitted that the Applicant’s criminal conduct was very serious as he was convicted of sexual intercourse without consent which is a very serious offence being a sexual crime against a woman. It was noted that the Applicant at the hearing was taken through the agreed facts of the offending outlined in the District Court judgement at page 41 of the hearing book. The Applicant agreed with these facts.
It was submitted that the Applicant had given evidence that prior to the offending he had no concept of consent as he had not been taught about consent or sexual education in Iraq or in Turkey. Despite this, the Applicant understood what the word “no” meant. The Applicant accepted that the victim did not want to have sex with him, but he engaged in it any way. The Applicant gave evidence that he was not focusing that day, that his brain was not working and that he was tired from work. There was no evidence that the Applicant was suffering from a mental incapacity or no other explanation for the commission of the offence. Overall, it was the Minister’s position that this conduct should be viewed very seriously. It was submitted that it was not a single act involving a misapprehension of consent but a series of ongoing acts. The victim repeatedly asked the Applicant to stop, and the Applicant kept going.
It was submitted having regard to risk that if the Applicant was to reoffend the harm to the Australian community would be significant including physical and psychological harm to individuals. The Applicants offending demonstrated a risk to the safety of others especially women. A sexual offence after a victim has said “no” highlights the propensity of risk. The Respondent contended that such conduct would be unacceptable, and that the Australian community should not tolerate this risk.
Addressing the likelihood of the Applicant reoffending, the Respondent stated that the Applicant had expressed some remorse. The Applicant had tried to engage in rehabilitation in prison, but it was not available to him. The Applicant stated that if he was released, he would like to do courses so that he will not engage in future offending.
The Respondent contended that there was a real and appreciable risk of the Applicant reoffending. He had not participated in any sexual offending programs and the Applicant had accepted that he has outstanding rehabilitation needs. In addition to this, the Applicant had demonstrated a lack of insight with respect to his offending and with respect to the concept of consent. These factors were concerning. In addition to this, the Applicant had provided no explanation with respect to the offending. It was noted that the evidence indicated that some actions of the victim suggested consent, however the Applicant later accepted that the victim had asked him to stop and he continued. He did not think what he did was wrong until he was told by the police.
Reference was made to the sentencing comments of the District Court judge that the Applicant was remorseful for his offending but had limited insight. Further that the sentencing judge determined that there should be prolonged supervision on parole to address attitude and victim empathy. In summary, the Applicant’s conduct was extremely serious and that there was a real risk that the Applicant would reoffend. The Respondent’s position was that primary consideration 1 should be given significant weight against the revocation of the cancellation of his visa.
Having regard to primary consideration 3, namely the strength, nature and duration of ties to Australia, the Respondent noted that the Applicant was 20 years old when he arrived in Australia and that the Applicant’s immediate family permanently resided in Australia as Australian citizens. The Respondent acknowledged the many letters of support provided by family and friends. The Respondent accepted the negative impact on the Applicant’s immediate family if he was removed from Australia. The Respondent believed that this consideration weighed in the Applicant’s favour but was outweighed by primary considerations 1 and 5.
Having regard to primary consideration 4, which is the best interests of minor children. The Respondent noted that there were 15 minor children in the Applicant’s family who were all relevant considerations. The Applicant had no children of his own. These minor children were the children of the Applicant’s cousins. The Respondent accepted that the Applicant played an uncle type role in these children’s lives and that his removal will be impactful to them. However, the Respondent submitted that the Applicant had no parental role with respect to any of these children. The Respondent submitted that the Applicant’s minor cousins and the Applicant could remain in touch through various technologies. The Respondent accepted that this consideration did not solely apply to biological children. The Respondent noted 8.4(4a) of the Direction stated that less weight should be given to this consideration where the relationship was non-parental. Overall, the Respondent accepted that this consideration weighed moderately in the Applicant’s favour. Once again this was outweighed by primary considerations 1 and 5.
Having regard to primary consideration 5, the Respondent submitted that the Australian community expects that non-citizens should obey Australian laws and those who engage in criminal conduct involving sexual crimes against women should not be allowed to remain in Australia. The Australian community would expect the cancellation of the Applicant’s visa to stay in place. It was submitted that this consideration weighed strongly against revocation of the cancellation of the Applicant’s visa.
Having regard to other considerations, the Respondent’s representative addressed the legal consequences of the decision. It was noted that the Applicant claims that he engages Australia’s non-refoulement obligations as he arrived on a global special humanitarian visa and that he is owed protection by the Australian government. The Respondent noted that the Applicant was not the subject of a protection finding indicating that he is owed protection. The Respondent noted that the Applicant’s claims for protection have not been tested. Holding a subclass 202 visa did not mean that the Applicant was the subject of a protection finding under section 36 of the Migration Act. It was noted that the Applicant could apply for a protection visa and that the Applicant would be held in immigration detention whilst any protection visa application was being processed. It was further noted that the Applicant could not be removed to a country to which a protection finding had been made, hence he would not be liable to be removed to Iraq.
It was noted that the Tribunal can defer an assessment of whether the Applicant’s claims engage Australia’s protection visa obligations, and this was consistent with the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
The Respondent submitted that if the Tribunal defers this assessment the Tribunal can consider the alleged facts raised by the Applicant with respect to non-refoulement. The Respondent noted that the Applicant had not clearly articulated his claims in this respect other than saying that he believed that he would be killed if he returned to Iraq. The Respondent contended that any factual matters relied on by the Applicant in this respect should be considered in the context of impediments if removed to Iraq.
It was the Respondent’s submission that any extended time in immigration detention was a legal consequence of the decision. The Respondent submitted that as the matter currently stood, the issue of the Applicant’s indefinite detention if he made a protection visa application was merely speculative. Once again, it was noted there was nothing to preclude the Applicant from making a protection visa application, however this has not yet happened. Hence reliance on an extended period of detention was merely speculative at this stage.
The Respondent further contended that it was not appropriate to consider the impact on immediate family and minor children of any period of indefinite immigration detention as at this stage it was merely speculative.
With respect to the extent of impediments if removed the Respondent submitted that the Applicant is not able to be removed as the holder of a subclass 202 visa. Again, it was noted that a Subclass 202 visa is not a protection visa under the Migration Act. It did not equate to the Applicant being the subject of a protection finding. It was acknowledged that the Applicant may face problems in Iraq but that the Applicant could access the services available to Iraqi citizens in that country. It was further noted that the Applicant had some aunts and uncles in the north of Iraq but conceded that his relationship to them was not close.
Having regard to the Applicant’s claim of being harmed or killed in Iraq the Respondent noted that these claims were very general in nature and not particularised. The Respondent conceded that the extent of impediments if removed should be given some weight in the Applicant’s favour, however that this consideration was outweighed by primary considerations 1 and 5.
In conclusion, the Respondent submitted that significant weight should be given to primary considerations 1 and 5 and that these considerations outweighed the considerations under primary considerations 3 and 4 and ‘other’ considerations. It was submitted that the Tribunal should affirm the decision under review.
Ms Lewis on behalf of the Applicant responding to the Minister’s closing submission, stated that the Applicant clearly understood the meaning of “no’. However, submitted that consent was a difficult concept to understand, and this was reflected in consent laws which had been substantially changed in New South Wales in 2022. It was submitted that with respect to the offending behaviour that the Applicant received mixed signals, and this is reflected in the sentencing comments, however, overall, the Applicant breached the victim’s lack of consent and was consequently sentenced for sexual intercourse without consent.
RELEVANT LAW AND MINISTERIAL DIRECTION
The character test is defined in s 501(6) of the Act. A person will not pass the character test if they have a substantial criminal record. The phrase ‘substantial criminal record’ is defined in s 501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(3A)(a)(i) of the Act provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a ‘substantial criminal record’, and is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA of the Act applies where the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. The Minister may revoke the original cancellation decision pursuant to s 501CA(4) of the Act. Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under s 499 of the Act, which apply to decision-makers in the exercise of power under s 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which the Tribunal has considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens 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 measurable 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.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[1]
[1] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction 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; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
It is not in dispute that the Applicant fails the character test as he has a substantial criminal record for the purposes of s 501(6)(a) of the Act. Subsection 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(i)that the Applicant passes the character test; or
(ii)that there is another reason why the original decision should be revoked.
As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
CONSIDERATION
Primary Consideration 1: Protection of the Australian Community
The Tribunal must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the 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.
Paragraph 8.1.1 of Direction 110 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’
Nature and seriousness of the Applicant’s conduct to date
The evidence before the Tribunal indicates that the Applicant and his family consisting of his parents and two younger sisters, arrived in Australia on 25 September 2016, having been issued with Global Special Humanitarian (Subclass 202) visas. These visas are issued to persons outside Australia because they are facing substantial persecution in their home country that constitutes a gross violation of human rights.
From 2016 until 2022, the Applicant and his family adapted to life in Australia. The Applicant’s mother struggled with mental health and physiological conditions, the Applicant’s father largely provided support to his wife, the Applicant’s younger sisters attended to their education and the Applicant obtained work at a FedEx warehouse and later as a handyman. The evidence indicates that the Applicant through his employment contributed financially to the family.
The evidence indicates that until 14 January 2022, the Applicant had no criminal antecedents in Australia or overseas.
As discussed with respect to the agreed facts outlined by Judge Gartelmann in sentencing comments in the District Court dated 9 December 2024, the evidence indicates that the Applicant and the victim met via an online dating application. The Applicant picked the victim up in his car. Over the course of the evening, the Applicant and the victim drove to a number of locations and the Applicant made a number of unwanted advances towards the victim. They purchased some takeaway food and drove to another location and sat in the car and ate. The Applicant continued to make unwanted advances towards the victim. The Applicant asked the victim to give him a head job and she advised him that she did not do this “stuff” on a first date. The Applicant put his hand under the victim’s skirt between her upper thighs and she moved his hand away and told the Applicant that she did not want to do this. She further advised the Applicant that she needed to go home as she had to work the next day, and it was getting late. The Applicant tried to touch the victim’s genital area under her skirt and once again she said “no” and repeated that she needed to go home. The victim then agreed on the basis that she was scared, and she felt if she did not consent to the Applicant’s advances that she would not be able to get home. Once again, the Applicant asked the victim to give him a blow job. Again, the victim stated that she did not want to do it. The Applicant digitally penetrated the victim. Once again, she asked him to stop. Again, she advised that she needed to go home. The Applicant pulled his pants down and the victim saw his penis was erect. He again asked her to give him a “blow job” and again she advised that she would not. The Applicant stated to the victim that if she gave him a “blow job”, he would take her home. The victim put her mouth on the Applicant’s penis for about two seconds and felt wrong and disgusted so stopped. The Applicant thrust his penis into the victims, vagina for about 2 to 3 minutes. She asked him to stop. The Applicant withdrew for about two seconds. She asked the Applicant not to “come” in her. The Applicant then withdrew and ejaculated into his hand. The victim asked the Applicant to take her home and he did, the Applicant asked the victim if she was okay, and she advised that she was just tired.

The Tribunal is required under Direction 110 at 8.3(1) to consider the impact of any decision on the non-citizen’s family members who have the right to reside permanently in Australia. The evidence with respect to the impact of the decision to cancel the Applicant’s visa and his removal from Australia has in the view of the Tribunal a profound impact on his mother due to a number of factors. She is a person who has fled a war-ravaged country and has witnessed atrocities firsthand. She had to flee her country with her young family to Turkey and in due course was granted a Global Special Humanitarian visa to Australia. She has struggled with the impact of her past and this is reflected in the evidence from Dr Abu-Arab. The Tribunal finds that the cancellation of the Applicant’s visa and the removal of her son will lead to a profound and adverse impact upon her already very fragile mental health.
The Applicant’s younger sister provided two statements to the Tribunal which have been duly considered. The most recent statement is dated 7 September 2025. The Applicant’s sister talks about the very strong bond that she has with her only brother andthat her brother’s removal from her life since his imprisonment had a profound impact upon her. She expressed that she was fully aware of her brothers criminal offending and believes that her brother will work tirelessly to make amends, and to move on from his criminal conviction.
The Applicant’s younger sister states that:
“the thought of Steven being removed from Australia breaks my heart. Not only would it devastate him, but it would tear at the very fabric of our family and community. Steven is the heart of so many lives, providing love, stability, and support to those who need it most. His absence would leave a hole that no one could fill. He is not just a brother, a son, or a friend, he is a pillar of strength, a source of light, and a vital part of the community.
Our parents came to this country seeking safety and a better life for their children, escaping the horrors of war and danger. To now face the possibility of losing one of us, feels like an unbearable blow. He is a cornerstone of our family, and the emotional impact of his permanent absence would be immeasurable.
Please consider the heartache that his removal would bring to our family and community he has become an essential part of. Every person deserves a chance to rebuild their life, to grow, and to create a future filled with hope. I truly believe that Steven has earned that chance here in Australia, where he has found a sense of belonging and purpose”.
The Applicant’s older sister also provided two statements to the Tribunal, with the most recent dated 8 September 2025. The Applicant’s sister notes that she is fully aware of her brother’s conviction and the gravity of the situation. She advised that she was incredibly proud that her brother took full responsibility for his actions and pled guilty to his offending. She advised that she had observed how deeply her brother was impacted by the weight of his mistake. She believed that her brother had learned from the experience and his time in prison. She believed that her brother was committed to becoming a better person. With respect to the impact of her brother’s removal from Australia she stated that:
“the separation from my brother, especially from me, my younger sister, and our parents, would cause immense distress. The thought of my brother being sent back to a war-torn country is deeply painful, as we have already endured the hardships of living in such a situation. This is precisely why we fled Iraq, seeking a safer and more secure life here in Australia. My plea is simple, please do not take Steven away from us. He is an integral part of our family, and I cannot imagine important life moments, such as my engagement, marriage, or the day I hope to have children, without him by my side. It would break my heart for my future children to grow up without the opportunity to have their uncle in their lives”.
The evidence before the Tribunal indicates that the Applicant after arriving in Australia was able to find work initially in a FedEx warehouse and prior to his imprisonment, in the construction industry as a handyman/labourer. The evidence indicates that the Applicant maintained regular employment in the community prior to his imprisonment. Indeed, Mr Machlin, in his report, notes that the Applicant “has overcome hardship under circumstances of war and recurrent displacement. With the benefit of a seemingly protective and harmonious family, he settled into a new life in Australia and sustained satisfactory overall adjustment”.
The Tribunal finds that the Applicant made a contribution to Australia through his employment and the evidence suggests that he will be able to continue to make a contribution to Australia going forward.
The evidence before the Tribunal indicates that the Applicant has a number of first cousins in Australia with whom he is close. Those first cousins have a number of minor children that are under their care and control of their parents. The evidence before the Tribunal indicates that the Applicant is particularly close to his minor cousins. The evidence indicates that he would visit them on a regular basis, and they would visit his family. The evidence indicates that he would play soccer with them, take them swimming, and would take care of them if required. The evidence indicates that the Applicant was implicitly trusted by the parents of his minor cousins that gave evidence to the Tribunal. Evidence has been adduced at the review Hearing that indicates that a number of the Applicant’s minor cousins would be impacted by his permanent removal from the country. Since his imprisonment they have been enquiring about his whereabouts and have been told that he is currently living interstate. The witnesses that gave evidence at the hearing advised that their children would be impacted by the permanent removal of the Applicant from their lives.
The evidence clearly indicates that the Applicant’s strongest ties to the Australian community are his parents and his two sisters.
The strength, nature and duration of ties to the Australian community are given very heavy weight in favour of revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[3] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[4]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[3] Direction 110, para 8.4.
[4] Ibid.
The Applicant has no minor children of his own.
The Tribunal notes that Direction 110 at 8.4(1) specifically states that “decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of the child affected by the decision”. The Direction does not specify that these minor children must be the biological children of non-citizen. It further specifies that if there are two or more relevant children, that the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction also specifies that in considering the best interests of the child that decision-makers need to consider the following factors which include the nature and duration of the relationship between the child and the non-citizen, the extent to which the non-citizen is likely to play a positive parental role in the future, the impact of the non-citizens prior conduct, and any likely future conduct and whether that conduct has, or will have a negative impact on the child. The Direction also specifies that decision-makers are also required to consider any known views of the child. The Direction also states that less weight should generally be given where the relationship is non-parental, and consideration needs to be given to whether there are other persons who already fulfil the parental role in relation to the child.
The Applicant has provided evidence to the Tribunal of the review that over the years that he has been residing in Australia since 2016 that he has forged what he describes as meaningful relationships with a number of his cousins children. The Applicant describes having an integral part in their lives, providing guidance, comfort and love to them.
The Applicant concedes that his role is more like an uncle to these children are not that of the parent.
Two of the mothers of these children gave evidence to the Tribunal at hearing confirming the closeness of the relationship between the Applicant and their children. Both witnesses noted that the children were aware of the Applicant’s absence from their lives currently and had been asking about his whereabouts. They had been told that their uncle was residing interstate. Both witnesses gave evidence that they believe their children would be adversely impacted by the Applicant’s removal from Australia due to the nature of the relationships that he has to each of them.
The Applicant’s representative in submissions to the Tribunal at review noted that the Department gave moderate weight to this consideration having regard to the impact on minor children of the ongoing cancellation of the Applicant’s visa.
The evidence indicates that the minor children who are second cousins of the Applicant would be impacted by his removal from Australia. The Tribunal finds that this consideration weighs moderately in favour of revoking the cancellation of the visa.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:[5]
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
[5] Ibid, paragraph 8.5.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated in the Direction, without independently assessing the community's expectations in the particular case.
The Applicant has failed to meet the Australian community’s expectation that visa holders obey its laws.
Having regard to the Direction and the Applicant’s offending, this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequences of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Applicant has stated in relation to his removal that if he was returned to Iraq, he would face persecution in that country. The Applicant has articulated that the reason for this belief is that he is Assyrian, he is Christian, and that his father had an adverse profile in Iraq because he worked in a church.
As discussed at hearing there is nothing to preclude the Applicant from lodging a protection visa application in Australia and having his claims for protection properly tested. As the holder of a Global Special Humanitarian visa, which as discussed are issued to people who face substantial discrimination or human rights abuses in their home country the Applicant’s claims for protection have not yet been tested. If the Applicant pursues this pathway, he can make an application for a Bridging R visa with respect to consideration being had to him residing in the community during the processing of his protection visa application.
The Tribunal notes again that the Applicant was issued with a Global Special Humanitarian visa which is judiciously issued by the Australian Government to people who face substantial discrimination or human rights abuses in their home country, in this case in Iraq.
If the Applicant’s visa remained cancelled, and he lodged a protection visa application, the process of primary determination, merits review, potential judicial review and then potential Ministerial Intervention has the potential to drag out for an extended period.
The Tribunal has had regard to the Respondents submission at hearing that the length of this process is merely speculative. The Tribunal finds however that the Applicant’s status in Australia during this period will be tenuous and indeed impactful (irrespective of the length of time involved) until an ultimate determination is made on a protection visa application, if the Applicant decides to lodge one. As discussed at Hearing, if the Applicant is not issued with a Bridging R visa, he could be held in immigration detention for what may be an extended period.
The Tribunal has had regard to the Respondent’s submission that the Applicant would not be removed to Iraq if he was found to be owed protection obligations. This does not discount the fact that under current law the Applicant could be placed on a removal pathway by the Government at any time and removed to a safe third country. As the Applicant’s representative submitted this could be a country such as Nauru. The Tribunal finds that the uncertainty around prospective removal to a third country (even though it is merely speculative at this stage) would no doubt be impactful upon the Applicant and is no warrants consideration as a legal consequence of the decision to cancel the Applicant’s visa.
The Tribunal finds that the legal consequences of the decision for the Applicant are highly impactful.
For these reasons the Tribunal finds that this consideration should weigh heavily in favour of revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1)   Decision-makers must consider the extent of any impediments that 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:
a)   the non-citizen's age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
The Applicant is young and well with no physiological health conditions and no mental health conditions other than the identification of anxiety by Mr Machlin in his assessment of the Applicant.
The Applicant has submitted that if he returned to Iraq that the quality of health care and access to government support is inferior to that available in Australia. However, he did concede that as an Iraqi citizen he would be able to avail himself of the services and health care that existed.
Overall, the Tribunal finds that this consideration should be given some weight in favour of revocation.
CONCLUSION
The primary consideration of the protection of the Australian community weighs strongly in favour of the cancellation decision.
However, as discussed, the Tribunal finds there are a number of risk mitigation and protective factors in play that should act as a strong incentive for the Applicant not to engage in any future criminal conduct. These factors have been extensively discussed in this decision. The Applicant has experienced a loss of liberty through his imprisonment during which time he has had an opportunity to reflect on his offending and its consequences. The Applicant has faced the prospect of his permanent removal from Australia to Iraq, a country in which he holds a fear of persecution (the Applicant has not to date had any claims for protection assessed by the Department). The Applicant has also faced the prospect of permanent removal from his parents and two sisters to whom he is very close. The overwhelming evidence before the Tribunal is that these factors will have a profound impact on the Applicant and indeed an adverse impact upon his immediate family, particularly his mother because of her mental health conditions. The Applicant since arriving in 2016 has managed to successfully integrate and contribute to the Australian community though his ongoing employment.
The Applicant has had a forced opportunity through imprisonment to reflect on his offending and to reflect upon and consider the concept of consent. The Applicant is committed to engaging in any self-help or rehabilitation courses upon release into the community such as a sex offenders’ course. Indeed, this has been mandated by Judge Gartelmann who stated that upon release the Applicant should be subject to “prolonged supervision” which would facilitate his participation in specific psychological treatment and address his attitude and victim empathy.
The Applicant has a number of protective factors in place by having a loving and supportive family. The Tribunal finds that they have been traumatised by the Applicant’s offending behaviour and will collectively act to support his transition back into the community. The Applicant is acutely aware of his mother’s very fragile mental health and the trauma that his offending and imprisonment have had upon her. The Applicant was described by Mr Machlin as being pro-social and as someone who has adjusted to life in Australia since arriving in 2016. He has been able to maintain consistent employment and these pro-social factors, in the view of the Tribunal along with other factors addressed, collectively serve to mitigate the weight afforded to primary consideration 1.

The Tribunal finds that primary consideration 5, the expectations of the Australian community weighs heavily against revocation.
The Tribunal finds that primary consideration 3 the strength, nature and duration of the Applicant’s ties to the Australian community thought his immediate and extended family weigh strongly in favour of revocation. These factors are afforded considerable weight. The evidence indicates that the Applicant’s removal from Australia, would be highly impactful upon his parents and two sisters and his first, second and minor cousins with whom he is close and who all have the right to permanently reside in Australia.
Primary consideration 4 the best interests of the Applicant’s minor cousins with whom he has maintained a close relationship is given moderate weight in favour of the revocation of the cancellation of his visa.
The legal consequences of the decision for the reasons articulated weigh heavily in favour of revocation.
The extent of impediments the Applicant would be expected to face if removed weigh in favour of revoking the cancellation of his visa and they are afforded moderate weight.
In conclusion, the Tribunal considers that that Primary consideration 3 the strength, nature and duration of the Applicant’s ties to Australia weigh very heavily in favour of revoking the cancellation of the Applicant’s visa. To a lesser extent, the best interests of minor children, the Applicant’s minor cousins is given moderate weight in support of revoking the visa cancellation. Having regard to the legal consequences of the decision, for the reasons stated, heavy weight is given to this consideration in favour of revoking the cancellation of the Applicant’s visa. Having regard to the extent of impediments if removed, this consideration is given moderate weight in favour of revoking the cancellation of the Applicant’s visa.
Against these matters, the Tribunal has reflected on the strong countervailing considerations, in particular, the seriousness of the Applicant’s offending and the expectations of the Australian community, namely primary considerations 1 and 5. However, the Tribunal has concluded on the evidence before it that there is a low likelihood of the Applicant reoffending and there are a number of risk mitigation factors and prosocial factors in place to support this finding, which mean that the primary consideration of protecting the Australian community does not, in the matter before the Tribunal outweigh the strength, nature and duration of the Applicant’s ties to the Australian community, the best interests of minor children, the legal consequences of the decision and the extent of impediments if removed.
The Tribunal on balance finds that the correct and preferable decision is to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa should be revoked.

Date of hearing: 21 and 22 October 2025

Solicitors for the Applicant:

Ms Lewis

Solicitors for the Respondent: Ms Balinski

Date of hearing:	21 and 22 October 2025
Solicitors for the Applicant:	Ms Lewis
Solicitors for the Respondent:	Ms Balinski