Baskaran and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 1012

Baskaran and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1012 (4 July 2025)
Applicant:Kuhilan Baskaran
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3272

Tribunal:General Member Cosgrave
Place:Brisbane
Date of Decision: 4 July 2025
Date of Reasons: 16 July 2025
Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the Respondent’s delegate’s 10 April 2025 decision to refuse to grant the Applicant a Bridging E (Class WE) visa.

....................[SGD].......................................
General Member Cosgrave
Catchwords
MIGRATION – review of refusal to grant Bridging E (Class WE) visa – s 501(1) Migration Act 1958 (Cth) – failure to pass good character test – convicted of Drive with high range prescribed concentration of alcohol, Assault occasioning actual bodily harm, Destroy or damage property <= $2000, Stalk intimidate intend fear physical etc harm (personal) – Intensive correction order – Sri Lanka – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION

Mr Baskaran seeks review of the Minister’s (the Minister or the Respondent) delegate’s 10 April 2025 decision (the reviewable decision) to refuse to grant Mr Baskaran a Bridging E (Class WE) visa (the Visa).[1][2]
[1] Exhibit R1: G3, 21.
The Tribunal heard the matter in Brisbane on 19 and 20 June 2025. Ms Bathurst, instructed by Ms Easy of the Refugee Advice & Case Work Service, represented Mr Baskaran. Ms Oppel of the Australian Government Solicitor represented the Respondent. The hearing relied on Mr Kandiah, an interpreter.
This was an expedited matter. On 4 July 2025, the Tribunal met its obligation[3] by providing a short form decision.[4] The Tribunal now gives its reasons for its decision.
[3] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[4] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
THE FACTS OF THE MATTER
Mr Baskaran is a thirty-two-year-old[5] Sri Lankan citizen. He has resided in Australia since September 2012.[6]
[5] Exhibit R1: G4, 23.
[6] Exhibit R1: G5, 164.
On 23 September 2021 His Honour Magistrate Peach of the New South Wales Local Court convicted Mr Baskaran of charges of Stalk/intimidate intend fear physical etc harm (personal), Assault occasioning actual bodily harm and Destroy or damage property <=$2000 (the Index Offences).[7] Magistrate Peach sentenced Mr Baskaran to an aggregate term of imprisonment to be served as an intensive corrections order (ICO) for twelve months.[8] Mr Baskaran has also been convicted or charged with traffic offences (the Offending Record) which are addressed below.[9]
[7] Exhibit R1: G5, 49.
[8] Exhibit R1: G5, 49.
[9] Exhibit R1: G5, 38-39 and 43, line 18.
On 17 April 2025, Mr Baskaran applied to the Tribunal for a review of the reviewable decision.[10]
[10] Exhibit R1: G1.
THE LEGAL FRAMEWORK
The Tribunal’s jurisdiction in this matter arises from Section 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act.
The issue here is that the Tribunal must decide whether to affirm or set aside the reviewable decision.[11] To make this determination, the Tribunal will evaluate whether the original decision was appropriate by weighing factors that support granting the visa against factors that support refusing it. When conducting this review, the Tribunal has the same authority and decision-making powers as the Respondent.[12]
[11] Migration Act 1958 (Cth); s501(1)(b).
[12] Administrative Review Tribunal Act 2024 (Cth); s 54.
THE TRIBUNAL’S TASK
Section 499(2A) of the Act requires the Tribunal to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) in making its decision.[13]
[13] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
The Tribunal can choose how to conduct its procedures. It can be informal and less technical as long as it fairly considers the matters at hand. [14] Section 52 of the ART Act states that the Tribunal does not have to follow strict evidence rules. Instead, it can decide how to gather information in a way it finds suitable.
[14] Administrative Review Tribunal Act 2024 (Cth), ss 49–50.
Paragraph[15] 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[16]
[15] The Direction’s paragraphs will be capitalised as ‘Paragraphs’ in these reasons.
[16] Direction; [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other Considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
Paragraph 8 identifies the Primary Considerations and Paragraph 9(1) sets out a non-exhaustive list of Other Considerations.
The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting.[17] The individual and cumulative weighing process is a matter for individual decision‑maker exercising the relevant power under the Act.[18]
[17] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57]; Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, 587 [23] (Mortimer J, as her Honour then was).
THE EVIDENCE
The Tribunal received written evidence during the hearing. The exhibit register is attached to this Decision and marked ‘Annexure A’.
Both parties’ Statement of Facts, Issues and Contentions (SFIC)[19] and submissions in reply are included in Annexure A. The Tribunal has considered these arguments.
[19] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.
Ms Bathurst tendered five statements made by Mr Baskaran dated 12 September 2024, 20 November 2024, 26 May 2025, 27 May 2025 and 12 June 2025.[20] She also relied on statements by Ms Suresh.[21]
[20] Exhibit R1: G5, 74-76; G5, 77-80; Exhibit A3: Item g; Exhibit A3: Item a; Exhibit A2: item dd.
[21] Exhibit R1: G5, 181-186; Exhibit A3: Item i.
The Tribunal heard testimony from Mr Baskaran, his cousin Mr Ganeshan, the forensic psychologist Ms Leist and the clinical psychologist Mr Hall.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Direction states that, for Primary Consideration 1, the Tribunal must remember that the safety of the Australian community is the Government's top priority. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence.
The Tribunal has considered the nature and seriousness of Mr Baskaran’s conduct to date and assessed the relevant evidence and contentions.
Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to consider two limbs of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.
Paragraph 8.1.1: The Nature and Seriousness of Mr Baskaran’s Conduct to Date
The Tribunal’s consideration: The nature and seriousness of Mr Baskaran’s conduct
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) for the Tribunal to assess. The Tribunal, where they are relevant, must consider these when considering the nature and seriousness of Mr Baskaran’s criminal offending or other conduct to date.
The Index Offences occurred on 22 August 2020 and are described in the sentencing magistrate’s reasons.[22]
[22] Exhibit R1: G5, 42
Mr Baskaran’s Offending Record involves driving offences.[23]
[23] Exhibit R1: G5, 38-39 and 43, line 18.
Summarising Ms Oppel’s contentions about this element of Primary Consideration 1, as the Tribunal understands them:[24]
(a)The Australian Government and the Australian community view violent crimes very seriously. Mr Baskaran's violent offenses included punching a victim three times in the head, smashing windows at two homes with a cricket bat, and making threatening statements that caused fear in victims.
(b)The impact on victims was significant, with the sentencing magistrate noting that the window-smashing would have caused considerable fear to those present. One victim felt fearful when Mr Baskaran threatened them with violence.
(c)The sentencing magistrate imposed a twelve month aggregate prison sentence, which indicates the serious nature of the offenses committed in August 2020 and April 2021.
(d)Mr Baskaran’s offending was frequent and showed an escalating pattern of seriousness. During a nine-month period from August 2020 to April 2021, he repeatedly drove while prohibited and continued this behaviour even after that period. His drink driving offenses became progressively more serious.
(e)When assessing the frequency of offending, the Tribunal must consider only the approximately eight years Mr Baskaran lived freely in the Australian community, excluding time spent in immigration detention or prison.
(f)The cumulative effect of this repeated offending must be considered as an additional factor.
(g)Mr Baskaran provided false information to the Department by failing to disclose most of his criminal offenses in his September 2021 protection visa application. Despite having already pleaded guilty to multiple serious charges, he only declared minor traffic-related matters.
(h)The Respondent argues that Mr Baskaran’s violence is not an isolated incident, pointing to reports of threats and altercations while in immigration detention. The Respondent contends that the seriousness should be assessed considering the overall risk created and the applicant's broader pattern of disregarding Australian laws, including repeated road rule violations, breach of immigration conditions, deliberate evasion of arrest for over a year, and unlawful residence in Australia for approximately five years.
[24] Exhibit R2: [47].
Summarising Ms Bathurst’s contentions here as the Tribunal understands them:[25]
[25] Exhibit A1; [87] – [100].
(a)Mr Baskaran argues that his criminal conduct should be classified as low to mid-range in terms of its objective seriousness for several reasons.
(b)First, his criminal offending occurred within a concentrated thirteen month period from August 2020 to September 2021, as well as one minor offense in 2015 regarding his failure to disclose his driver details.
(c)The frequency of offending was therefore limited. Before the 2020 incidents, Mr Baskaran had demonstrated good behaviour for eight years. The sentencing magistrate noted that apart from the 2015 matter, Mr Baskaran had not come to police attention for any anti-social behaviour since arriving in Australia as a refugee in 2012.
(d)A Tribunal decision from December 2024 observed that the non-driving offenses (the Index Offences) related to a single alcohol-fuelled incident with drinking companions at a private residence, with all offending occurring within a relatively short timeframe that Mr Baskaran attributed to using alcohol to cope with stress and grief.
(e)Second, while Mr Baskaran acknowledges that the intimidation, assault, and property damage offenses involved violence through physical force, he contends that the underlying facts do not meet the threshold for very serious violent crime and instead fall within the low-mid range of serious crime.
(f)Offenses against persons under NSW law range from minor assaults to life-threatening acts and homicide. The sentencing magistrate characterised the intimidation offense as mid-range in objective seriousness and the assault as below mid-range seriousness for such offenses.
(g)The Tribunal should not question these judicial findings regarding the Index Offences’ objective seriousness.
(h)Third, the Index Offences were dealt with summarily in the Local Court, with the most serious sentence being a twelve month Intensive Correction Order (ICO) to be served in the community. This indicates the court did not consider the conduct sufficiently serious or Mr Baskaran a sufficient risk to warrant full-time imprisonment.
(i)Mr Baskaran has been forthcoming about his offending in recent statements to the Department from September and November 2024.
(j)Fourth, Mr Baskaran accepts that he previously minimised his responsibility for the assault but now takes full responsibility, stating he lost control, harmed someone, and is truly sorry.
(k)A psychological assessment explains that Mr Baskaran's initial reluctance to be forthcoming stemmed from childhood trauma in Sri Lanka, including detention, torture, and witnessing violence during civil war, which affected his ability to trust and engage with authorities.
(l)While the Minister's delegate found the offending “very serious”, the Tribunal is not bound by this assessment and must make its own evaluation.[26] A recent Federal Court decision confirmed that tribunals must independently assess the nature and seriousness of criminal offending.
(m)Mr Baskaran’s offending draws comparison to Seagg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[27] where an applicant sentenced to 18 months imprisonment for wounding and driving offenses had their conduct characterised as only “moderately serious”.
(n)Considering all factors, including judicial findings and sentences imposed, Mr Baskaran submits that the Tribunal could reasonably determine his offending falls within the low-mid range of seriousness.
[26] BNY23 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14; [107].
[27] Seagg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022]
AATA 678
The Tribunal’s findings.
When assessing the nature and seriousness of Mr Baskaran’s criminal offending or other conduct to date, the following elements of Paragraph 8.1.1(1) are relevant:
·Whether Mr Baskaran’s criminal offending and conduct to date belongs within the types of crimes or conduct viewed very seriously by the Australian government and the Australian community;[28]
·the sentences imposed for his criminal offending;[29]
·the impact of his offending or other conduct on any of its victims and their families, where information in this regard is available and where Mr Baskaran has been afforded procedural fairness;[30]
·both the frequency of his offending and the trend of increasing seriousness;[31] and
·the cumulative effect of his repeated offending.[32]
[28] Direction; [8.1.1(1)(a)].
[29] Direction; [8.1.1(1)(c)].
[30] Direction; [8.1.1(1)(d)].
[31] Direction; [8.1.1(1)(e)].
[32] Direction; [8.1.1(1)(f)].
Mr Baskaran’s Index Offences involve violent crimes, engaging Paragraph 8.1.1(1)(a)(i) which states that such crimes are viewed very seriously by the Australian Government and the Australian community. There is nothing in the evidence to suggest that Mr Baskaran’s Index Offences and Offending Record engage Paragraph 8.1.1(1)(b).
Mr Baskaran has been convicted of multiple traffic offences. Paragraph 8.1.1 of Direction 110 does not limit the range of offences that may be considered serious. The Tribunal, adopting the comments of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration)[33] and Senior Member Dr Evans-Bonner in QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[34], considers that Mr Baskaran’s traffic offences should be considered serious.
[33] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45]
[34] QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51]

Considering Paragraph 8.1.1(1)(c), each of the three Index Offences carries a maximum penalty, in terms of imprisonment, of five years.[35] Mr Baskaran was sentenced to a term of twelve months’ imprisonment to be served by way of an ICO. The sentencing magistrate commented that two of the Index Offences were at or below the mid-range of seriousness for offences of their type.[36] The relativity of the sentence to the maximum penalties available and the comparison between an INCO and full-time imprisonment militate against Paragraph 8.1.1(1)(a)(i)’s categorisation of the Index Offences as very serious.
[35] Exhibit R1: G5, 46.
[36] Exhibit R1: G5, 47.
Addressing Paragraph 8.1.1(1)(d), the Tribunal notes the sentencing magistrate’s comments that the Index Offences ‘would have occasioned significant fear to those who were present,’.[37]
[37] Exhibit R1: G5, 47.
In terms of frequency and any trends of increasing seriousness under Paragraph 8.1.1(1)(e), it is useful to separately consider the Index Offences and the Offending Record’s traffic offences. The Index Offences occurred on 22 August 2020. The traffic offences commence in 2014 in Queensland[38] and continue until 2020. Mr Baskaran testified that he ceased driving in 2021 due to the drink driving charges against him. There is no frequency or trend of increasing seriousness with the Index Offences unless considered solely in terms of 22 August 2020. There is a frequency and a trend of increasing seriousness to his traffic offences, underlined by the various narratives Mr Baskaran has provided since 2014 regarding whether he held a drivers’ licence (Australian or otherwise).[39]
[38] Exhibit R3: 269.
[39] Exhibit R3: 261.
Evaluating Paragraph 8.1.1(1)(f), Mr Baskaran’s repeated offending has likely had a substantial cumulative effect on the Australian community, the police services of two states and the NSW justice system.
Considering Paragraph 8.1.1(1)(g) Mr. Baskaran submitted inaccurate information to the Respondent’s Department when he omitted the majority of his criminal convictions from his protection visa application filed in September 2021. Although he had previously entered guilty pleas to several serious criminal charges, he disclosed only minor traffic violations on his application.
The Tribunal’s consideration: The nature and seriousness of Mr Baskaran’s conduct.
Having regard for the framework principles at Paragraph 5.2 of the Direction and the relevant and applicable elements of Paragraph 8.1.1 referred to above, the Tribunal finds that, in its totality, Mr Baskaran’s overall offending (both the Index Offences and his Offending Record) should be characterised as very serious despite the sentencing magistrate’s views on the mid-range seriousness of the Index Offences and the ICO’s characteristics. Mr Baskaran’s Index Offences involved violence. His traffic offending shows a trend of increasing seriousness and a disinclination to follow Australia’s laws (in terms of getting an Australian driver’s licence) or follow police instructions. He has a history of providing misleading information to the Respondent’s Department and Queensland police and a history of breaching orders.
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
When assessing Paragraph 8.1.2(1) and (2)(a) and (b)’s requirements, decision-makers must recognise that the Australian community's willingness to accept future risk diminishes proportionally as the gravity of potential harm escalates, with certain conduct being so severe that any possibility of recurrence may constitute an intolerable risk.
The evaluation of the risk posed by a non-citizen re-offending requires cumulative consideration of both the potential consequences should the individual commit further criminal or serious misconduct, and the probability of such future offending occurring, which must be determined by examining available evidence regarding reoffending likelihood and demonstrated rehabilitation progress at the time of decision-making, with particular weight given to community-based behaviour since the most recent offence, while ensuring that the Tribunal’s decisions are not postponed to allow completion of rehabilitative programs.
Ms Bathurst’s contentions on Mr Baskaran’s risk of re-offending as the Tribunal understands and summarises them are:[40]
(a)Based on the evidence presented, the risk of recidivism is not unacceptable and is effectively mitigated by multiple factors. A Sentencing Assessment Report assessed Mr Baskaran at a medium-low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). His detention record demonstrates generally good behaviour, with only minor incidents including graffiti found in his room and one physical altercation in 2019 where he was recorded as the victim. The Tribunal previously found that his past criminal behaviour was significantly exacerbated by alcohol abuse and expressed satisfaction that he would comply with visa conditions based on his remorse, rehabilitation efforts, and motivation to avoid separation from his young child.
(b)Mr Baskaran has demonstrated substantial rehabilitative efforts through consistent participation in weekly drug and alcohol counselling, individual sessions, and the SMART Recovery program for over two years while detained. Clinical records indicate his quality engagement and understanding of coping mechanisms, while medical request forms show his proactive approach to managing his emotional wellbeing. Evidence suggests he had already ceased regular drinking following a bicycle accident in December 2021, and he has committed to continued abstinence and ongoing counselling if released. Multiple support organisations, including the Asylum Seekers Centre, Anglicare's Mental Health Community Living Support, and the NSW Refugee Health Service, have confirmed his eligibility for their programs upon release.
(c)His motivation to care for his young son represents a significant protective factor against recidivism, as recognised in legal precedent where caring responsibilities have been afforded substantial weight in risk assessments. He has expressed his desire to be an exemplary person and father, stating his need to care for, work for, and provide for his son. Given these protective factors, including his rehabilitation efforts, support networks, demonstrated remorse, and parental responsibilities, the primary consideration of protecting the Australian community weighs against him but not decisively, as the risk of reoffending remains acceptable.
[40] Exhibit A1: [103] – [120].
The Tribunal's summary interpretation of Ms Oppel’s arguments on this point are:[41]
(a)There is no reasonable basis for confidence that Mr Baskaran will refrain from re-offending or engaging in unlawful conduct if released into the Australian community. He has undertaken no specific rehabilitation to address his dangerous driving, violent behaviour, or disregard for Australian laws, except insofar as this conduct relates to his claims of torture and trauma in Sri Lanka. The sentencing magistrate expressed guarded views about Mr Baskaran’s rehabilitation prospects, and despite being given a second chance to serve his sentence in the community, he squandered this opportunity by evading an arrest warrant for eleven months after being informed of it in April 2022.
(b)His pattern of unlawful behaviour and evasion of authorities undermines any assurances of future compliance. He has lived unlawfully in Australia for five of the eight years in the community, including the recent eleven-month period during which he failed to surrender despite an outstanding arrest warrant. His proposed return to the same living circumstances with his cousin, where police were called in March 2023 due to drinking and fighting incidents, raises serious concerns about his environment and influences. Furthermore, his abstinence from alcohol remains untested in the community, contradicted by police reports of him being “moderately drunk” during the March 2023 altercation, despite claims he had stopped drinking regularly after his December 2021 bicycle accident.
(c)His credibility has been fundamentally compromised by his demonstrated pattern of dishonesty and manipulation. As recently as February 2024, he fabricated claims to STARTTS about a violent incident involving his family in Sri Lanka, complete with disturbing photographs later exposed by the Immigration Assessment Authority (IAA) as deriving from unrelated media articles about assaults on other individuals. The IAA rejected numerous other claims, including allegations of six-month detention and torture by Sri Lankan authorities. His lack of genuine remorse and insight is evident in his continued denial of offences for which he pleaded guilty, describing himself as the victim rather than the aggressor and claiming he had no choice but to defend himself, demonstrating insufficient understanding of the causes of his violent behaviour.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Baskaran to engage in further criminal or other serious conduct
[41] Exhibit R2: [50].
The evidence presented to the Tribunal about Mr Baskaran’s Index Offences suggests that he could cause serious physical, psychological and financial harm to members of the Australian community if he re-offends like he did before.
The Tribunal notes the element of violence in the Index Offences and the sentencing magistrate’s observation that Mr Baskaran’s low-range alcohol concentration offence “is somewhat aggravated by the fact that the offender’s driving brought him to the notice of police when he pulled in front of the path of an oncoming vehicle” at a point when he should not have been driving under any circumstances. [42]
[42] Exhibit R1: G5, 47.
When the Index Offences and the Offending Record are considered together, the Tribunal finds that individuals within the Australian community could suffer serious physical, psychological and financial harm if Mr Baskaran re-offends in similar ways or engages in other serious conduct.
The Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
Assessing the likelihood or risk of Mr Baskaran engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the documentary and oral evidence before it.
The Tribunal especially noted the following evidence:
(a)Ms Leist acknowledged inconsistencies in Mr. Baskaran's accounts regarding the duration of his detention in Sri Lanka, his experiences during that detention, and his involvement with the LTTE, as evidenced in both the IAA reports and Mr. Hall's assessments. Despite these inconsistencies between Mr. Baskaran's statements to her and the police report regarding the Index Offences, Ms Leist maintained that such discrepancies did not undermine her professional assessment of Mr Baskaran’s condition.
(b)Ms Leist accepted that he had experienced and continues to experience trauma, noting that he demonstrates reasonable insight into his offending behaviour and acknowledges the harm he has caused, though she recognised that he sometimes minimises his role in these events. Ms Leist concluded that his history’s inconsistencies did not affect her assessment that Mr. Baskaran suffers from PTSD and depression, while also expressing genuine remorse, shame, anger, and fear at times.
(c)Mr Baskaran's testimony and written evidence revealed significant inconsistencies, particularly regarding his driver's license status and whether its loss was actually reported to Queensland police as he claimed[43], with Queensland police records confirming that no such report was ever made despite his claims. Mr Baskaran has claimed at times to have no licence[44], a Sri Lankan drivers’ licence[45] or an international drivers’ licence.
(d)Despite becoming aware in May 2022 of an arrest warrant for breaching his ICO, Mr. Baskaran failed to act until March 2023. He provided various explanations for this delay in taking action, including his claim that he was working to earn money for legal representation. However, as Ms Oppel noted, this was insufficient excuse for not attending to meet with police.
(e)Mr Baskaran also disputed the facts of his August 2020 offending, claiming he was not in his proper mindset, and appears to minimise his agency in the offending and his role as the aggressor based on evidence and testimony before the Tribunal.
(f)The police report for the Index Offences was translated for Mr Baskaran's benefit in the hearing. His responses to the succeeding questions revealed further discrepancies in his account, including a discussion as to whether he was attacked first or that he was the first to attack.
(g)Mr Baskaran attributed part of his ICO breach to his December 2021 bicycle accident, which he claimed resulted in significant hospitalisation and recovery periods. The NSW Health records show that he was admitted to hospital on 7 December 2021, discharged on 10 December 2021, attended one post-operative care session on 18 December 2021, failed to attend four subsequent post-operative sessions and then attended two in April 2022.[46] The evidence also indicates that he failed to respond to repeated calls from corrective services personnel, moved residences without notice, and his former housemates were unaware of his new address.
(h)During the ten months following the warrant's issuance, he claimed six months of inability to communicate due to mouth injuries, though he simultaneously worked with Mr da Silva throughout 2022 and into 2023 when arrested, maintaining that he did so to earn money to pay for legal representation.
[43] Exhibit R3: 269.
[44] Exhibit R3: 261.
[45] Exhibit R3: 269.
[46] Exhibit R3: 42-52.
To start the evaluative exercise, the Tribunal notes that the threshold is whether there is ‘a’ risk.[47]
[47] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] – [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn, have been extensively addressed by superior courts and the Tribunal.[48]
[48] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
Paragraphs 8.1.2(1) and (2) need a ‘future‑focused assessment’[49] of the risk an individual poses should they re-offend. This includes considering the type of harm and how likely it is to happen.
[49] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211, [90] (Kerr J); see also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).
In Minister for Immigration and Ethnic Affairs v Guo (Guo),[50] the High Court decided that past actions can predict future behaviour. The majority observed that past events ‘are not a certain guide’. Depending on the situation, the chance of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’.[51] The majority also observed there are several factors in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[52]
[50] (1997) 191 CLR 559, 574 (‘Guo’).
[51] Ibid 574-5.
[52] Guo, 575.
The Tribunal must determine the realistic level of risk posed by Mr Baskaran as at the time of its decision,[53] with the question being “how serious the risk [is], or whether the risk should be “tolerated”’[54], to the extent that it could be considered an unacceptable risk.[55]
[53] Direction; [8.1.2(2)(b)(ii)].
[54] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[55] Direction; [8.1.2(1)].
When assessing whether Mr Baskaran poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal must consider all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’. [56] In executing this task, the Tribunal understands that the Australian community may accept some risk associated with the holding of visas by non-citizens.
[56] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]– [52]; Roberts, (n 53) [27].
Senior Member Taylor observed a qualification to this tolerance in Dharma and Minister for Home Affairs,[57] in that the degree of risk that may be acceptable to the community is “inversely related” to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.
[57] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].
The Tribunal’s consideration of the risk or likelihood of Mr Baskaran engaging in further criminal or serious conduct will involve assessing the factors that:
(a)facilitate or increase the risk of further criminal or serious conduct; or,
(b)conversely, hinder or retard the risk of further criminal or serious conduct.
Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
The factors that facilitate the risk of re-offending.
Ms Bathurst set out several key drivers of Mr Baskaran’s offending, particularly in relation to the Index Offences. These include self-medicating with alcohol as a response to seeing his uncle die, and his mental health including his PTSD.
The Tribunal considers that his social network also has a role in his offending based on how often his social interactions with his network were raised in relation to the Index Offences and his Offending Record.
If released into the community, Mr Baskaran proposes to return to the same circumstances and residence with the same cousin who was caring for him during his period of unlawful residence, despite documented incidents of violence and drinking occurring at these premises.
The factors that hinder or reduce the risk of re-offending – Rehabilitation, remorse and others
The IHMS Appointments Attendance list demonstrates that Mr Baskaran has maintained consistent participation in weekly drug and alcohol counselling, especially through the SMART Recovery program, as well as torture and trauma counselling with STARTTS for over two years while detained. The records indicate his engagement in the SMART Recovery program, demonstrating his proficiency in coping mechanisms and understanding of urges and cravings. The LSI-R test suggests a lowered risk of re-offending.
Balanced against this history and evidence is the absence of evidence showing focused rehabilitation to address his proclivity to violence, as evidenced by the Index Offences or his traffic offending record which demonstrates a sustained pattern of misrepresentations and inconsistencies.
Militating against his rehabilitation efforts, Mr Baskaran continued in his oral and written evidence to mitigate, qualify or deny responsibility for the Index Offences to which he pleaded guilty, characterising himself as a victim rather than acknowledging his role as an aggressor and demonstrating insufficient insight into his violent behaviour patterns.[58]
[58] Exhibit R1: 74, [2], 78, [11]; Exhibit A1: [97]; Exhibit R3.

The police records relating to his traffic offending show a pattern of misrepresentations regarding what he has told Queensland and New South Wales police about whether he has no licence[59], a Sri Lankan drivers’ licence[60] or an international drivers’ licence.[61]
[59] Exhibit R3: 261.
[60] Exhibit R3: 269.
[61] Oral evidence.
Mr Baskaran has shown a proactive approach to managing his emotional wellbeing, regularly requesting medical attention through Detainee Medical Request Forms when experiencing stress, over-thinking, or sleep and appetite difficulties. Clinical assessments, including his Drug and Alcohol Assessment Forms and Health Induction Assessments, do not suggest that his alcohol use constituted Alcohol Use Disorder or required detoxification or medication.
Mr Baskaran committed to continued abstinence following a bicycle accident in December 2021, declaring he has “made a promise to myself to never drink again”. He has also expressed an intention to maintain his rehabilitative supports upon release, including alcohol counselling through Liverpool community centre and continued STARTTS counselling. However, his claims to abstinence are untested in the community with further doubt raised by the involvement of alcohol in the March 2023 incident with police records suggesting Mr Baskaran was drunk.[62]
[62] Exhibit A1: [115]; Exhibit R3: 13.
His claimed commitment to ongoing support is supported by confirmation letters from three organisations: the Asylum Seekers Centre confirming eligibility for support programs, Anglicare's Mental Health Community Living Support for Refugees & Asylum Seekers confirming program eligibility upon community release, and the NSW Refugee Health Service indicating his eligibility for clinical services, including primary care for asylum seekers under a Bridging Visa E.
This claimed commitment is balanced against his record of non-compliance and non-adherence with laws and lawful orders - the sentencing magistrate’s stated reservations regarding Mr Baskaran’s rehabilitation prospects, Mr Baskaran’s eleven month evasion of an arrest warrant in relation to his ICO breach, his failure to seek an Australian driver’s licence and his long periods of avoiding official oversight and living unlawfully in Australia without a valid visa.
The Tribunal also has general qualified concerns about the consistency of his evidence stemming from his fabricated claims about family attacks in Sri Lanka in February 2024 which relied on unrelated media photographs to support a false narrative to both mental health professionals and legal authorities.
In his oral evidence, Mr Baskaran did not demonstrate significant insight into the root causes of his offending behaviour beyond acknowledging that he offends when under stress and consuming alcohol. His claims of remorse were general rather than specific.
The extent to which his parental obligations in relation to Child A may reduce his risk of re-offending is untested. He has only met Child A once. This is considered at greater length below.
The Tribunal’s Risk Analysis and Consideration
The Tribunal has considered the evidence above. It assessed Mr Baskaran’s Index Offences and his Offending Record, his qualified expressions of remorse and ownership of his offending, and the extent of his behavioural changes (especially in terms of abstinence from alcohol). It especially considered the factors that appear to have contributed to Mr Baskaran’s offending and the evidence of his efforts to address these, his representations and statements of remorse, his rehabilitation efforts, the inconsistencies and deflections in his evidence and expressions of ownership of his offending conduct and the factors that hinder or reduce his risk of offending, together with the qualifications noted above.
It has applied Guo, noting that how past events help predict the future depends on:
(a)how likely is it that those events happened,
(b)how often they occurred,
(c)the conditions surrounding them, and
(d)the chance that new events could change the usual pattern.
From this application, the Tribunal finds that the events comprising the Index Offences and the Offending Records are factual and that while the Index Offences occurred on a single night the Offending Record has a far longer periodicity. Misrepresentations and alcohol are common links or conditions across the Index Offences and the Offending Records. The counselling he has received in terms of his offending (as opposed to his claimed PTSD and trauma) and his rehabilitation efforts either have not been tested in the community or have not significantly altered the pattern of Mr Baskaran’s conduct.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that there is a risk to the Australian community if Mr Baskaran commits further offences or engages in other serious conduct in the future.
The Tribunal, after evaluating all the factors described above in terms of what either may facilitate or reduce his risk of re-offending, considers this risk to be both material and substantial.
The consequences if Mr Baskaran were to re-offend in the same manner as either the Index Offences or his Offending Record would be significant and potentially catastrophic (given the circumstances of his September 2021 conviction for Drive with high range prescribed concentration of alcohol). The Australian community’s tolerance for such re-offending is negligible. The Tribunal finds that the combination of risk, Mr Baskaran’s limited rehabilitation, his qualified remorse and behavioural changes and his extant protective factors combine to produce a risk that is not tolerable.
Conclusion: Primary consideration 1: Protection of the Australian community
The Tribunal found above that the totality of Mr Baskaran’s offending conduct is very serious. If he commits similar offences in future, he could significantly harm individuals in the Australian community. The chance of him re-offending is material and substantial. Given the serious nature of the Index Offences and his Offending Record, the Tribunal considers any risk of repeating these actions is unacceptable.
The Tribunal further finds that, in its totality, this consideration weighs very strongly and substantially in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Paragraph 8.2(2) provides that this consideration is relevant where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at Paragraph 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Tribunal consideration: Family violence committed by the non-citizen
The High Court has held that paragraph 8.2 of a previous but comparable Ministerial Direction (Direction 90) ‘involves a field of operation separate’ to the other primary considerations.[63]
[63] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] (‘Ismail’).
Summarising Ms Oppel’s contentions as the Tribunal understands them:
(a)NSW police records document an altercation between the applicant and Ms Ashik on 12 March 2023 at 99 Gardenia Parade, Greystanes, where both parties had been residing in a back shed.[64]
(b)The incident commenced when Ms Ashik arrived to collect her belongings and Mr Baskaran immediately began swearing at her, escalating to the applicant approaching her with clenched fists in an aggressive manner, to which she responded similarly before the pair were separated and she then threw alcohol at him. Following the altercation, Ms Ashik contacted police in a state of panic, and she was subsequently charged and convicted for assault.
(c)The reported conduct may constitute ‘family violence’, which the Direction as threatening behaviour that causes a family member to experience fear, with repeated derogatory taunts cited as an example of such conduct.
(d)While Mr Baskaran must be afforded an opportunity to respond to the police report under Paragraph 8.2.(2)(b), the Respondent contends that the documented evidence of his swearing at Ms Ashik, approaching her with clenched fists, and her subsequent panic and police contact may provide sufficient grounds for the Tribunal to determine that family violence occurred and to assign appropriate weight to this consideration in its evaluation.
[64] Exhibit R3: S3, 12 -13.
Ms Bathurst’s contentions[65] and closing submissions on this point rely on Mr Baskaran’s statement that he neither threatened nor intimidated Ms Ashik and a close analysis of the NSW police report which she characterises as hearsay.[66] Mr Baskaran was not charged with any offending at the time and is described in the police report as the victim.
[65] Exhibit A7: [27] – [31].
[66] Exhibit R3: S3, 12 -13.
The Tribunal’s Consideration
The Tribunal notes that Ms Ashik was not called to give evidence in this matter. While Ms Oppel put the family violence allegations to Mr Baskaran, Ms Ashik’s absence removed a key procedural fairness element in terms of the hearing before the Tribunal. As Ms Bathurst noted, the NSW police described Mr Baskaran as the victim and took no action against him.
The Tribunal finds that Mr Baskaran has not been afforded procedural fairness with respect to the family violence claim and that there is insufficient evidence to support a finding that he committed family violence.
Conclusion: Primary consideration 2: The Strength, Nature and Duration of Ties to Australia.
This consideration carries neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Primary Consideration 3 directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Baskaran’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The Tribunal must also consider the strength, nature and duration of any other ties that Mr Baskaran has to the Australian community, having regard to the factors set out in paragraph 8.3(2):[67]
(a)The length of time a non-citizen has resided in Australia must be evaluated, with particular attention to whether they arrived as a young child. However, reduced weight should be attributed to the duration of residence where the non-citizen commenced criminal offending shortly after their arrival in Australia. Conversely, greater weight should be given to periods during which the non-citizen has made positive contributions to the Australian community.
(b)The strength, duration, and nature of the non-citizen's family or social relationships with Australian citizens, Australian permanent residents, and individuals who possess an indefinite right to remain in Australia must be assessed and taken into account.
[67] Direction; paragraph 8.3(2).
The Tribunal’s understanding of Ms Bathurst’s arguments on this consideration can be summarised as follows:[68]
(a)Mr Baskaran has developed substantial ties to Australia through nearly a lifetime of residence as an adult, establishing a comprehensive network of personal and professional relationships. His cousin and aunt provide strong familial support and attest to maintaining close relationships with him. Professional connections include Mr Anthony De Zilva, who employed him and describes him as a trustworthy hard worker with whom he could confidently work alongside his own family. Community ties are evidenced through his friend Vasanth Balendran, who characterises Mr Baskaran as possessing good character and contributing to community activities including temple assistance, while also offering future employment in his telecommunications business installing NBN services.
(b)Mr Baskaran’s most significant tie to Australia centres on his one-year-old son, Child A, who resides in Australia. Although Mr Baskaran is not listed as the father on the birth certificate due to his detention at the time of birth preventing provision of requisite identity documents, multiple forms of evidence establish paternity. The child's surname mirrors Mr Baskaran's initials, and contemporaneous medical records from August 2023 document his discussions with healthcare staff about his partner's recent birth and planned visits. Mr Baskaran maintains an amicable co-parenting relationship with the child's mother, Ms Ashik, a New Zealand citizen and Australian permanent resident, and seeks to share parental custody responsibilities upon release.
(c)Mr Baskaran’s credibility regarding his relationship with Ms Ashik should not be adversely affected by her lodging a partner visa with another man, as his understanding of their relationship depends on communications from detention. Mr Baskaran acknowledges their romantic relationship has ended due to separation strain, and Ms Ashik has disclosed residing with another man after struggling as a single mother. Despite Ms Ashik's admitted dishonesty to both Mr Baskaran and immigration authorities about her new relationship, photographic evidence demonstrates continued amicable contact centred on their son's care. The Tribunal previously accepted Mr Baskaran’s paternity in December 2024, finding that his motivation to support his child and the child's mother would provide new direction and focus for compliance with release conditions.
(d)Mr Baskaran’s deportation would create more than slight impact on his family members and friends, as evidenced by their testimonials describing his guidance in employment applications, financial support, childcare assistance, and general household help. A February 2025 SERCO Individual Case Plan identifies Mr Baskaran’s ties to family and friends—including his brother[69], girlfriend, child, uncle, cousin, and Sydney friends—as his primary protective factor and source of mental wellbeing, noting that separation from these relationships during detention has caused emotional distress.
(e)Noting the Respondent’s argument regarding Paragraph 8.3(2)’s applicability in a visa refusal matter, Ms Bathurst contends that this is still important to consider this Paragraph even if dealing with a visa refusal.
[68] Exhibit A1: [121] – [129]; Exhibit A7: [32] – [41].
[69] No brother in Australia was nominated in Exhibit A8, the agreed schedule of family and friends.
Ms Oppel’s contentions here, as understood by the Tribunal, are:[70]
(a)The Respondent asserts that as the reviewable decision involves a visa refusal rather than a visa cancellation, Paragraph 8.3(2) is not applicable.
(b)The Respondent challenges the credibility of both Mr Baskaran and Ms Ashik regarding their claimed relationship, noting significant inconsistencies in their evidence. While Mr Baskaran maintained until May 2025 that he was in a relationship with Ms Ashik and their child, Ms Ashik sponsored another male individual for a partner visa in December 2024, claiming to have commenced a de facto relationship with this person in November 2023 - four days before her statement expressing dependence on Mr Baskaran. The Respondent further disputes Mr Baskaran's claimed parentage of Child A, citing the absence of his name on the birth certificate, his denial of having a child during a September 2023 interview, and the lack of independent corroboration of his parentage.
(c)Mr Baskaran's family ties in Australia consist of a great aunt and cousin who are permanent residents, neither of whom constitute immediate family members. The Respondent contends these relationships have not been materially affected by Mr Baskaran's two-year immigration detention, noting that these relatives have not visited him during this period. Evidence suggests Mr Baskaran has experienced ongoing isolation since 2017[71], having lost contact with his maternal uncles and reporting similar isolation to medical professionals in 2018.
(d)Mr Baskaran's social connections appear limited, with visitor logs showing only one personal visit since entering detention in July 2023. While the Respondent acknowledges evidence of a small number of Australian citizen or permanent resident friends, there is insufficient evidence demonstrating that affirming the reviewable decision would significantly impact these relationships. Mr Baskaran's contribution to Australia through employment has been minimal due to limited periods of lawful residence and uncertain work rights, leading the Respondent to argue this consideration should be afforded minimal weight in the decision-making process.
[70] Exhibit R2: [58] – [70].
[71] See Exhibit R3: 259.
The Tribunal now considers these contentions and the evidence, including the letters of support referenced above, in terms of each subparagraph of Paragraph 8.3. In doing so it benefited from the agreed schedule identifying Mr Baskaran’s immediate family (including any minor children), extended family and social and work contacts. This people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[72]
[72] Exhibit A8.
The Tribunal’s Findings
In evaluating references from family members and friends, the Tribunal is aware that they can often be framed in the best possible light for an applicant regarding the latter’s offending, while other members of Australian society might consider the offending unacceptable. Care is taken about the weight placed on references from family members and friends.
The Tribunal finds that:
(a)Mr Baskaran was in a relationship with Ms Ashik that appears to have ended in March 2023[73]. She subsequently gave birth to a male child, Child A. She also sponsored another man’s visa application and appears to be in a relationship with that man.
(b)It is unclear to the Tribunal whether refusing Mr Baskaran a visa will have an impact, emotional or otherwise, on Ms Ashik.
(c)Mr Baskaran claims an intent to be involved in Child A’s life if he is released into the community. However, to date he has had very little involvement in the child's life. This is due, partially but not entirely, because he is in detention. Ms Ashik has only visited him in detention once, bringing Child A with her. There was no evidence before the Tribunal as to why Ms Ashik has not brought Child A more frequently.
(d)Mr Baskaran has limited family ties in Australia. The family members do not appear to have visited him in detention.[74] There is no evidence before the Tribunal as to why they have not visited Mr Baskaran. Consequently, the Tribunal infers that the impact of a decision that sees Mr Baskaran returned to Sri Lanka will more than likely have a reduced impact on them
(e)Similarly, despite claims of friends[75], Mr Baskaran's social connections appear quite limited, based in part on the same lack of visitors while he has been in detention. There is insufficient evidence to assess the impact of a decision returning him to Sri Lanka on his social network and circle of friends.
(f)Mr Baskaran has plans for some prosocial links in the community as evidenced by the supportive statements.
(g)Conversely, the Tribunal finds that if the reviewable decision is affirmed the impact on the support letter authors rises any higher than disappointment or sadness.
(h)Acknowledging Ms Oppel’s argument that Paragraph 8.3(2) is not applicable and Ms Bathurst’s countervailing contention, the Tribunal has considered the evidence through the lens of this section to ensure procedural fairness is afforded to Mr Baskaran.
(i)Mr Baskaran arrived in Australia in September 2012 as a nineteen year old,[76] has resided here since and his Offending Record starts in June 2014[77]. Less weight is placed on his period of residence as his offending commenced relatively soon after arriving in Australia.[78]
(j)He has made modest contributions to the Australian community in terms of paid employment with Mr Balendran and Mr De Zilva (acknowledging his uncertain work rights) and with volunteer work at the Sydney Murugan Hindu temple.[79]
[73] Exhibit R3: 12-13; Applicant’s oral evidence.
[74] Exhibit R3: 259.
[75] Exhibit A3: Thavachchlvan Ganeshan’s statement and Mr Ganeshan’s oral evidence.
[76] Exhibit R3: 133; Exhibit R1: G5, 38.
[77] Exhibit R1: G5, 40.
[78] Direction: [8.3(2)(a)(i)]
[79] Exhibit A3

Based on its consideration and findings against this Primary Consideration, the Tribunal finds that affirming the reviewable decision would have a limited adverse impact on Ms Ashik, Child A and those identified people who provided support statements. Given the evidence before the Tribunal, this Primary Consideration weighs only moderately in favour of setting the reviewable decision aside.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this Primary Consideration moderate weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by setting the reviewable decision aside.[80]
[80] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187, 240 [180], citing Spruill v Minister for Immigration and Citizenship[2012] FCA 1401; 2012) 135 ALD 45, [18]-[19]; RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(2022) 295 FCR 365, 376 [44].
This Primary Consideration is enlivened by Ms Ashik’s and Mr Baskaran’s claimed son, Child A.
The Tribunal understands Ms Bathurst’s position here as follows:[81]
(a)There is sufficient evidence that Mr Baskaran is Child A’s father. He is not listed on the birth certificate as he was in detention at the time. The evidence of paternity comes from his statements and the accompany evidence of photographs and Facebook messages.[82] Further evidence lies in the support letters and Mr Baskaran’s statements to Mr Hall.[83]
(b)Mr Baskaran’s removal to Sri Lanka would result in his being deprived of physical access to Child A thereby preventing the child from growing up with physical contact and material care from his father.
(c)This separation conflicts with the well-established principle that children have the right, as far as possible, to know and be cared for by their parents, as enshrined in Article 7 of the Convention on the Rights of the Child and recognised in Australian jurisprudence through Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh.[84]
(d)The IHMS clinical records consistently document references to Child A and highlight the negative psychological impact on Mr Baskaran arising from their current separation. This evidence of ongoing distress caused by family separation constitutes a significant factor weighing in favour of Mr Baskaran's case against removal.
[81] Exhibit A1: [130] – [134]; Exhibit A7: [42] – [44]; Closing submissions.
[82] Exhibits A3 and A4.
[83] Exhibit R1: G5, 187 at 192.
[84] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
Summarising Ms Oppel’ arguments as the Tribunal understands them:[85]
(a)The Respondent contends that the Tribunal may legitimately find either that Mr Baskaran is not the biological father of Child A or that the evidence is insufficient to establish paternity. This fundamental challenge to the familial relationship undermines the foundation of any claim based on parental ties and child welfare considerations.
(b)Even if the Tribunal accepts Mr Baskaran’s paternity, the Respondent argues this factor should carry minimal weight due to the extremely limited nature of the relationship. Mr Baskaran has met Child A in person on only one occasion and appears to have no active parenting role. The Respondent questions the credibility of evidence purporting to demonstrate the depth of Mr Baskaran's feelings for the child or the frequency of communication, given the self-serving nature of such claims and existing credibility concerns regarding both Mr Baskaran and Ms Ashik.
(c)The Respondent characterises the single visit by Ms Ashik to Villawood detention centre as potentially orchestrated to create photographic evidence for visa application purposes, noting it occurred after Ms Ashik had reportedly entered a de facto relationship with another person. Critical uncertainties remain regarding who fulfils the parental role for the child, the child's own views, whether Mr Baskaran will have any future parenting involvement, and even whether Child A will remain in Australia. These uncertainties, as recognised in Paragraphs 8.4(4)(b), (d), (e) and (f), further diminish the weight that should be attributed to this consideration, even if paternity is accepted.
[85] Exhibit R2: [56] – [61].
The Tribunal finds:
(a)The evidence supporting Mr Baskaran’s paternity of Child A is weak and relies to an extent on Ms Ashik. Ms Ashik did not give oral evidence. As considered above, both Mr Baskaran’s and Ms Ashik’s evidence is inconsistent at times.
(b)If paternity is accepted:
(i)The nature and duration of the relationship between Mr Baskaran and Child A to date is tenuous at best.
(ii)The relationship is non-parental at this point and there is only one instance of meaningful contact.
(iii)Apart from Mr Baskaran’s statements and assertions, there is insufficient and conflicting (in that Ms Ashik appears to be in a relationship with another man) evidence to support any findings regarding the extent to which Mr Baskaran is likely to play a positive parental role in future. The Tribunal acknowledges that Child A has seventeen years before reaching his majority which allows a greater scope for Mr Baskaran to play a parental role, but there is insufficient evidence to infer any further findings beyond that.
(iv)Ms Ashik appears to fulfil a parental role with regard to Child A.
(v)There is no evidence before the Tribunal that enlivens Paragraph 8.4(4)(f), (g) or (h).
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration supports setting the reviewable decision aside and carries a slight weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) is a deeming provision. It relies on Paragraph 8.5(4) and sets a community standard for the outcomes of serious behaviour or an unacceptable risk of such behaviour. Paragraph 8.5(2) extends that standard to certain specified types of conduct. Paragraph 8.5(3) states that the expectations of the Australian community apply even if the non-citizen does not pose a clear risk of physical harm. Paragraph 8.5(4) aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
FYBR explains that the 'deemed community expectation' usually leads to visa cancellation. However, it also states that the decision-maker must decide if acting on this expectation is appropriate in each case.[86] [87]
[86] Ibid at 473 [75]– [76] (Charlesworth J).
[87] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36, [51]-[52].
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36, the High Court clarified that when assessing this Primary Consideration, the Tribunal is not required to attribute knowledge of an applicant's personal circumstances to the hypothetical Australian community. Instead, the Tribunal must accept the Australian Government's views as articulated as a norm described in Paragraph 8.5(1) without independently assessing community expectations in a particular case and then weigh its finding against other relevant matters as required by the Direction's balancing framework.
Observing Paragraph 8.5’s norm, the Tribunal has also considered the guidance informed by the principles set out in Paragraphs 5.2(1) to (8) of the Direction.
The Tribunal summarises Ms Bathurst’s contentions on this point as follows:[88]
(a)She acknowledges the principle from FYBR that the Australian community expects non-citizens to obey the law, with breaches being held against them. However, she emphasises that FYBR establishes a dual expectation framework, where the inquiry extends beyond mere consideration of offending history.
(b)The second deemed expectation requires the Tribunal to carefully examine the specific facts and circumstances of each case to determine appropriate consequences for non-citizens who have transgressed the first expectation.
(c)She contends that the weight attributed to community expectations should be moderated in light of several mitigating circumstances. These include the absence of an unacceptable risk of future offending, with a previous Tribunal finding that Mr Baskaran would comply with all bridging visa conditions including refraining from criminal conduct. His status as a victim of childhood torture and sexual abuse in Sri Lanka, combined with his continuing fear of return, provides additional context for moderating the application of community expectations.
(d)Further moderating factors include Mr Baskaran’s active engagement with rehabilitative supports to address alcohol use and mental health challenges, demonstrating commitment to addressing underlying issues contributing to his offending. His long-term residence in Australia and the significant impact his removal would have on his young son constitute additional circumstances warranting moderation of the weight given to community expectations in determining appropriate consequences for his criminal conduct.
[88] Exhibit A1: [135] – [137].
As the Tribunal sees it, Ms Oppel’s contention in summary are:[89]
(a)The Respondent emphasises that the Direction establishes a prescribed framework for determining community expectations, removing discretion from the Tribunal to interpret these expectations based on individual circumstances or evidence. The expectations of the Australian community are definitively set out in Paragraph 8.5(4), and the Tribunal's role is limited to determining the appropriate weight to be assigned to this consideration rather than defining what the community expects.
(b)The Direction codifies the community expectation that non-citizens must obey Australian laws while in Australia, with Paragraph 8.5(1) establishing that where a non-citizen has engaged in serious conduct breaching this expectation, the community “as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.” This creates a presumptive expectation favouring visa refusal in cases of serious criminal conduct.
(c)The Respondent contends that Mr Baskaran has repeatedly failed to comply with Australian laws, thereby breaching community expectations regarding lawful conduct. Given the assessment that there is a considerable and unacceptable risk of Mr Baskaran committing further serious offences, the Respondent argues that the community expectation clearly favours visa refusal. Consequently, the Respondent submits that this consideration should be assigned heavy weight in favour of affirming the visa refusal decision.
[89] Exhibit R2: [56] – [61].
The Tribunal’s consideration
Arriving in Australia in 2012, Mr Baskaran has resided here for approximately thirteen years. This period of time enlivens Paragraph 5.2(6)’s higher tolerance.
The Tribunal has also found Mr Baskaran’s Index Offences to be violent crimes. These finding offset and displaces the higher tolerance acknowledged above in terms of how long he has resided in Australia. Paragraph 8.5(2) states that the Australian community expects the Australian government should cancel the visas of non-citizens involved in such conduct.[90]
[90] Direction; [8.5(2)(c)].
The Tribunal is satisfied that Mr Baskaran has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. Ms Bathurst’s argued moderating factor on the risk of re-offending is addressed above under Primary Consideration 1. The argued moderating factor that Mr Baskaran would comply with all bridging visa conditions including refraining from criminal conduct is weakened by Mr Baskaran’s failure to do so in the past (applying Guo) and indirectly by inference from examples like his claim to abstain from alcohol since 2021 being offset by the 2023 family violence incident where police observed that he was drunk. The other suggested moderating factors do not displace Paragraph 8.5’s normative community expectation.
The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs significantly in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:
(a)Their status in Australia is unlawful.
(b)They are subject to being detained or removed.
(c)Any other visas they hold or any visa applications they have made are cancelled or refused.
(d)They are prohibited from applying for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[91]
[91] Section 501E of the Act. Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
Summarising Ms Bathurst’s contentions here as the Tribunal understands them:[92]
(a)Mr Baskaran holds genuine subjective fears of harm and persecution upon return to Sri Lanka due to his Tamil ethnicity and associations with the Liberation Tigers of Tamil Eelam (LTTE), as well as previous interactions with authorities. These fears are grounded in the violence he personally experienced and witnessed in Sri Lanka, combined with his knowledge of community members who have been victims of extra-judicial killings or violence, including his brother-in-law who has allegedly disappeared.
(b)Recent country information substantiates ongoing risks to Tamils in Sri Lanka. The 2021 Tamil Guardian reported the abduction and torture of a Tamil man who had returned from Edinburgh, while Human Rights Watch documented that Tamil asylum seekers have faced ill-treatment after deportation, with particular risks for those who participated in protests. A 2021 United Kingdom Upper Tribunal decision outlined systematic monitoring through electronic databases accessible at ports of entry, with reasonable likelihood that those detained would face persecutory treatment within the meaning of the Refugee Convention.
(c)The August 2024 Office of the United Nations High Commissioner for Human Rights’ report to the Human Rights Council recommended that United Nations member states review asylum measures for Sri Lankan nationals and refrain from refoulement in cases presenting real risk of torture or serious human rights violations. The report documented a clear pattern of monitoring, arbitrary detention, torture, and sexual violence against Tamils, particularly men involved in protests or believed linked to the LTTE, with incidents as recent as January 2024. The May 2024 International Truth and Justice Project report detailed torture and sexual violence against one hundred and twenty three Tamils between 2015-2022, demonstrating the continuation of systematic abuse methods used against LTTE fighters and Tamil civilians in the post-war period.
(d)Mr Baskaran acknowledges that no positive refugee finding has yet been made regarding his claims, with his SHEV application currently under judicial review in the Federal Circuit and Family Court of Australia. Should the judicial review prove unsuccessful, the applicant's legal representative has undertaken to assist with a Ministerial Intervention application based on credible new information concerning his mental health and the fact that his claims were processed through the Fast Track Process.
(e)The 14 May 2024 IAA decision partially accepted Mr Baskaran’s claims about discrimination and violence against Tamils.[93]
[92] Exhibit A1 [138] - [146] and closing submissions.
[93] Exhibit R3: 132, [90], [91] and [114].
Ms Oppel contends that:[94]
[94] Exhibit R2: [81] – [84].
Neutral Impact of Bridging Visa Application on Removal Obligations
(a)The Respondent contends that a bridging visa application does not affect the statutory obligation under s 198(5) of the Act to remove a non-citizen as soon as reasonably practicable. Consequently, an adverse outcome in the current proceedings will not alter Mr Baskaran's liability to removal to Sri Lanka, rendering this consideration neutral in the decision-making process.
Distinction Between the Non-Refoulement Assessment and the Factual Consideration
(b)The Respondent acknowledges that Mr Baskaran raises non-refoulement claims despite the absence of a positive refugee finding, emphasising that the Tribunal must distinguish between the consideration of non-refoulement obligations (which are not required to be assessed) and the consideration of underlying factual issues raised by the applicant's representations.
(c)The Respondent argues that country information only supports danger arising from Mr Baskaran's claims if the underlying facts are established as true.
IAA Findings on Factual Claims
(d)The Respondent submits that the Tribunal should rely upon and assign weight to the IAA’s 14 May 2024 findings, given that Mr Baskaran's non-refoulement claims remain unchanged. The IAA determined that Mr Baskaran would return to Sri Lanka as an ordinary Tamil from Northern Province without any LTTE profile or interest from Sri Lankan authorities. The IAA found that his previous encounters with security forces involved general round-ups, rather than targeted persecution, and that his father and uncle's injuries resulted from random violence rather than targeted harm.
Assessment of Future Risk
(e)Based on the IAA's findings, the Respondent contends there is no greater than a remote chance that Mr Baskaran would face adverse attention from Sri Lankan authorities due to his Tamil ethnicity, and no greater than remote or fanciful chance of arrest, abduction, detention, mistreatment, killing, monitoring, or harassment upon return. The Respondent argues that issues arising from these underlying facts should be addressed within the context of considering impediments to removal rather than as standalone protection obligations.
The Tribunal has noted above inconsistencies in Mr Baskaran’s evidence that go to the underlying factual matrix he advances in his claims. The Tribunal also accepts the IAA’s 14 May 2024 findings.
The Tribunal acknowledges that affirming the decision will result in Mr Baskaran remaining unlawful, being liable for removal, and being unable to apply for most future visas. However, these consequences are the statutory scheme’s intended purposes.
The Tribunal finds that this Other Consideration carries neutral weight.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
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.

Summarising Ms Bathurst’s contentions here as the Tribunal understands them:[95]
[95] Exhibit A1 [147] - [154]; Exhibit A7: [45] – [50].
Absence of Family Support Networks and Security Concerns
(a)Mr Baskaran faces substantial impediments in establishing himself in Sri Lanka due to lack of family support or protection from his remaining relatives. His sister in Vavuniya provides no indication of willingness to accommodate him, with his fear exacerbated by the recent killing of a Tamil girl of similar age to his niece. His elderly uncle in Jaffna cannot provide the necessary support for his return. These circumstances leave Mr Baskaran without the familial networks relative to Paragraph 9.2 which mandates the consideration of any social, medical and/or economic support available to the non-citizen in the context of what is generally available to other Sri Lankan citizens.
Severe Mental Health Impediments and Inadequate Healthcare Infrastructure
(b)Mr Baskaran suffers from significant anxiety, depression, and PTSD arising from complex trauma history, including adverse childhood experiences, asylum-seeking trauma, parental loss, identity displacement, and ongoing detention-related psychological strain. His STARTTS counsellor documents how these experiences have fundamentally impacted his mental health, psychological makeup, and self-worth.
(c)Sri Lanka's mental healthcare system presents insurmountable barriers, with WHO reporting critical shortages of mental health professionals (0.6 psychiatrists and 0.03 psychologists per 100,000 population) and an outdated 70-year-old Mental Health Act that fails to specify patients' rights. Research indicates high levels of unmet mental health needs due to pervasive stigma, inadequate clinician responses, and somatisation issues that prevent proper treatment of underlying mental health causes.
Documented History of Torture and Trauma with Medical Corroboration
(d)Mr Baskaran's experience of torture and trauma in Sri Lanka is substantiated by multiple medical sources, including a recent forensic psychological report by Tatyana Leist confirming a PTSD diagnosis.
(e)Healthcare Australia's report to the Commonwealth Ombudsman identifies Mr Baskaran's history of torture and trauma as a significant health issue, noting his ongoing management through specialised STARTTS counselling and significant psychological distress.
(f)Healthcare Australia's April 2025 recommendation against mechanical restraints during medical transfers, citing his status as a known torture survivor and the potential for force to exacerbate trauma symptoms, further corroborates his documented trauma history.
Challenge to the IAA Decision Weight and Ongoing Treatment Engagement
(g)Mr Baskaran contends that reduced weight should be attributed to the IAA's protection refusal, noting the current government's acknowledgment that the fast-track assessment process under the IAA did not provide fair, thorough, or robust assessment procedures for asylum seekers.
(h)The IAA's subsequent abolition and replacement by the Tribunal on 14 October 2024 supports this position.
(i)Contrary to suggestions of treatment refusal, records demonstrate Mr Baskaran's active engagement with psychiatric treatment, including requests for psychotropic medication for anxiety and stress, and frequent requests for counselling and therapy through both IHMS, HCA and STARTTS services.
Exceptional Circumstances warranting Heightened Consideration
(j)The extreme nature of Mr Baskaran's experiences places his circumstances “outside the circumstances that generally apply” as established in Suleiman v Minister for Immigration and Border Protection[96], warranting treatment beyond secondary consideration. The combination of documented torture history, severe mental health conditions, inadequate healthcare infrastructure in Sri Lanka, and absence of family support creates very significant impediments to establishing himself and maintaining a basic standard of living upon return, constituting factors that weigh heavily in Mr Baskaran's favour.
[96] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The Tribunal understands Ms Oppel’s contentions as follows:[97]
[97] Exhibit R2: [85] – [90].
Available Family Support in Sri Lanka
(a)The Respondent contends that Mr Baskaran possesses adequate resources for successful reintegration, being of relatively young age and reasonably good health with established family connections in Sri Lanka.
(b)His sister, husband, and child remain in the family home in Vavuniya where Mr Baskaran lived for most of his life, received schooling, and learned carpentry with his father.
(c)The Respondent argues that the sister has demonstrated willingness to assist and maintains close contact with Mr Baskaran, with no reason to believe this support would be unavailable upon his return. Mr Baskaran's stated ambition to pursue carpentry provides a viable livelihood option in Sri Lanka.
Rejection of the Protection-Based Impediment Claims
(d)The Respondent dismisses Mr Baskaran's claims that he would refuse family assistance to protect his sister, arguing these concerns are based on rejected protection claims rather than legitimate impediments to return.
(e)The contention that he must stay away to protect his sister from investigation, torture, or killing by authorities is characterised as a protection claim that has been determined unfounded.
(f)The Respondent emphasises that Mr Baskaran will not be of adverse interest to Sri Lankan authorities upon removal, rendering these fears irrelevant to impediment considerations.
Challenge to the Mental Health Treatment Claims
(g)The Respondent disputes Mr Baskaran's mental health impediment arguments, noting his consistent refusal of psychiatric treatment offers from doctors available in immigration detention and the absence of any prescribed medication for mental health disorders.
(h)The Respondent questions the reliability of the Dudley-Symonds 2018 psychiatric assessment, noting they evaluated Mr Baskaran as a “poor historian” with limited medical evidence and no collateral information.
(i)While they diagnosed clinical depression and anxiety, they could not confirm PTSD, raising questions about subsequent diagnoses based on Mr Baskaran's self-reporting.
The IAA’s Findings on Sri Lankan Healthcare Accessibility and the Reliability of Mr Baskaran’s Trauma Claims
(j)The Respondent submits that the Tribunal should adopt the IAA's thorough consideration of Mr Baskaran's mental health needs and Sri Lanka's healthcare system, which concluded that adequate healthcare, support, and counselling would be accessible for his physical and mental health requirements, including alcohol-related assistance.
(k)The Respondent argues for rejection of claims that mental healthcare would be realistically inaccessible in Sri Lanka and disputes that impediments are compounded by alleged experiences of arbitrary detention, rape, and torture.
(l)The Respondent contends that Mr Baskaran's claims of six months' detention and regular torture have been rejected, rendering any PTSD diagnosis based on such reporting unreliable and also undermining the foundation of his trauma-based impediment arguments.
The Tribunal’s consideration
The Tribunal here must assess and consider the extent of any impediments that Mr Baskaran will face in establishing and maintaining basic living standards if removed from Australia to Sri Lanka. It must consider the specific factors described below (in the context of what is generally available to other citizens of that country).
The phrase “(in the context of what is generally available to other citizens of that country)” in Paragraph 9.2(1) is of significance because it establishes the measure by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Baskaran is thirty-two.
He presents as physically healthy.
The Tribunal accepts that Mr Baskaran suffers from anxiety and depression. Considering the expert evidence, it accepts that he demonstrates some symptoms of PTSD.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Baskaran, based on his oral evidence and his interaction with the interpreter, would not face any significant linguistic difficulties if he returned to Sri Lanka.
The Tribunal considers that Mr Baskaran would not face any cultural issues in Sri Lanka.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The evidence before the Tribunal indicates that Mr Baskaran will likely have relatively less social, medical and economic support in Sri Lanka than in Australia. Consequently, the Tribunal considers that Mr Baskaran may be confronted by impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other Sri Lankan citizens.
Mr Baskaran has family in Sri Lanka. While it is possible that they be unable to support him over the longer term, the Tribunal considers it likely that they, especially his sister, could provide initial short-term support. His sister in Sri Lanka appears invested in looking out for Mr Baskaran, as he attributed the genesis of his subsequently retracted claim about sword attacks on his family before the IAA to her.
His Australian work experience as an NBN installer and his interest in carpentry offer some of the skills needed to find work in Sri Lanka.
The Tribunal’s finding
The Tribunal has considered above the extent of any impediments that Mr Baskaran, if removed from Australia to Sri Lanka, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal accepts the IAA findings and also finds that it is likely, if Mr Baskaran is returned to Sri Lanka, that he would face emotional, practical and financial hardships, as well as some risks to his mental health. He is likely to face difficulties in establishing social, medical and economic support. He is unlikely to face any language barriers, although there may be cultural barriers.
The Tribunal finds that this Other Consideration carries some weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence and testimony before the Tribunal enlivening this consideration. It carries neutral weight.
THE TRIBUNAL’S FINDINGS
The statutory framework poses two issues for the Tribunal to address:
(a)character test: whether there is a reasonable suspicion that Mr Baskaran does not pass the character test in terms of s 501(6)(b), and whether Mr Baskaran satisfies the Tribunal that he passes the character test,[98] and, if not,
(b)exercise of discretion: whether there is another reason whether the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.
[98] Section 501(2) of the Act.
The Tribunal found above that it was satisfied that Mr Baskaran did not pass the character test.
The Tribunal has applied the Direction to this matter’s specific circumstances in determining whether there is ‘another reason’ to set aside the reviewable decision.
The Tribunal finds Mr Baskaran’s actions are very serious. If he commits similar offences in future, he could significantly harm individuals in the Australian community. The chance of him re-offending is material and substantial. Given the serious nature of the Index Offences and his Offending Record, the Tribunal considers any risk of repeating these actions is unacceptable. Primary Consideration 1 weighs very strongly and substantially in favour of affirming the reviewable decision.
Primary Consideration 2 carries neutral weight.
The Tribunal found that Primary Consideration 3 carries moderate weight towards setting the reviewable decision aside.
Primary Consideration 4 carries a slight weight in favour of setting the reviewable decision aside.
The Tribunal found that Primary Consideration 5 weighs significantly in favour of affirming the reviewable decision.
The Tribunal found that the legal consequences of the decision regarding Mr Baskaran’s Visa carries neutral weight.
The Tribunal found that the extent of impediments Mr Baskaran would face if he were removed to South Sudan or Sudan carry some weight in favour of setting the reviewable decision aside.
Other Consideration (c) carries neutral weight.
ADDITIONAL CONSIDERATIONS
There were no additional considerations.
CONCLUSION
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations.
From the Federal Court decisions in Demir v Minister for Immigration, Citizenship and Multicultural Affairs[99] and CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[100], the proper approach to weighing considerations under the Direction requires careful attention to both the identification of relevant factors and their evaluative synthesis. While decision-makers must take into account all mandatory primary and other considerations specified in the Direction, the metaphor of “weighing” should not be taken too literally as a mathematical exercise involving simple aggregation of factors on each side of a ledger. As recognised in Demir, the ultimate decision necessarily involves persuasion of a human decision-maker whose thought processes flow from their personal understanding of the significance of each factor in light of all material considered, and overlap between considerations (such as family violence being relevant to both protection of the Australian community and as a standalone primary consideration) does not constitute impermissible “double counting” provided the decision-maker reaches their genuine conclusion about whether there exists “another reason”.
[99] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
[100] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
However, as emphasised by the Full Court in CRNL, compliance with the Direction cannot be achieved merely by fragmenting the analysis into individual considerations, attributing abstract descriptors of weight to each in isolation, and then stating a conclusion as if inevitable from a mathematical formula.
The Direction requires a genuine evaluative exercise that brings together all considerations as part of a single assessment of their relative significance, weighing them against each other in determining whether the decision-maker is satisfied that another reason exists to revoke the visa cancellation. This balancing process must be apparent from the decision-maker's reasons and cannot be satisfied by perfunctory or formulaic conclusions that fail to demonstrate how the various weighted considerations were actually evaluated in relation to each other to reach the ultimate determination.
The Tribunal has followed the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[101]
[101] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
The Direction states that Primary Consideration 1 is “generally” to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word “generally” preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake[102], Aksu[103], and Lu[104] cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.
[102] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[103] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[104] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
Overall, the Tribunal considers that in this matter Primary Consideration 1’s greater weight is appropriately engaged given the nature and history of Mr Baskaran’s offending. Having conducted a comprehensive and integrated view of its findings and the weights it has attributed to them, this Tribunal finds that it is satisfied that there is not another reason to set the reviewable decision aside.
DECISION
Applying s 105 of the ART Act, the Tribunal affirms the decision of the Respondent’s delegate’s 10 April 2025 decision to refuse to grant Mr Baskaran a Bridging E (Class WE) visa.

Dates of hearing: 19 & 20 June 2025

Advocate for the Applicant: Ms Bathurst, instructed by Ms Easy of Refugee Advice & Case Work Service.

Advocate for the Respondent: Ms Oppel of the Australian Government Solicitor.

ANNEXURE A: EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

G-Documents

Various

13/6/2025

R2

Respondent’s SFIC

6/6/2025

6/6/2025

R3

Respondent’s Tender Bundle

Various

5/6/2025

APPLICANT SUBMISSIONS

A1

Applicant’s SFIC

28/5/2025

28/5/2025

A2

Applicant’s Tender Bundle

Various

12/6/2025

A3

Applicant’s Evidence Bundle pt 1

Various

28/5/2025

A4

Applicant’s Evidence Bundle pt 2

Various

28/5/2025

A5

Applicant’s Evidence Bundle (item gg)

Various

17/6/2025

A6

Applicant’s Chronology

Various

17/6/2025

A7

Applicant’s Reply Submissions

12/6/2025

12/6/2025

A8

Applicant’s Schedule of Family Members & Social Ties

Various

17/6/2025

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	G-Documents	Various	13/6/2025
R2	Respondent’s SFIC	6/6/2025	6/6/2025
R3	Respondent’s Tender Bundle	Various	5/6/2025
APPLICANT SUBMISSIONS
A1	Applicant’s SFIC	28/5/2025	28/5/2025
A2	Applicant’s Tender Bundle	Various	12/6/2025
A3	Applicant’s Evidence Bundle pt 1	Various	28/5/2025
A4	Applicant’s Evidence Bundle pt 2	Various	28/5/2025
A5	Applicant’s Evidence Bundle (item gg)	Various	17/6/2025
A6	Applicant’s Chronology	Various	17/6/2025
A7	Applicant’s Reply Submissions	12/6/2025	12/6/2025
A8	Applicant’s Schedule of Family Members & Social Ties	Various	17/6/2025

[2] Unless the context indicates otherwise, the Tribunal has used bold font to emphasise selected passages.

Dates of hearing:	19 & 20 June 2025
Advocate for the Applicant:	Ms Bathurst, instructed by Ms Easy of Refugee Advice & Case Work Service.
Advocate for the Respondent:	Ms Oppel of the Australian Government Solicitor.