BKRD and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1504
•22 August 2025
BKRD and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1504 (22 August 2025)
Applicant:BKRD
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/7741
Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:22 August 2025
Decision:The Tribunal affirms the decision under review.
................[SGD].................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Republic of South Sudan – criminal record in Australia – Class BC Partner (Migrant) (subclass 100) visa – serious violent and other offending –– substantial criminal record – failure to pass character test – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 110 applied – post-hearing submissions received – reviewable decision affirmedLegislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases
AMF15 v Minister for Immigration & Border Protection (2016) 338 ALR 551
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609
Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Dietrich v The Queen (1992) 177 CLR 292
Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kioa v West (1985) 159 CLR 550
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Sullivan v Department of Transport (1978) 20 ALR 323
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3) (Clinical Assessment Tool, 2013)Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024)
REASONS FOR DECISION
Senior Member A. Nikolic
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class BC Partner (Migrant) (subclass 100) visa.
The hearing was held in person at the Tribunal’s Melbourne Registry between 8 and 10 July 2025. The Applicant was self-represented. The Respondent was represented by Mr Keith Sypott of counsel, instructed by Sparke Helmore Lawyers.
On 18 July 2025, eight days after the hearing, Ms Hannah Dickinson of Russell Kennedy Pty Ltd contacted the Tribunal and sought leave to make post-hearing submissions on the Applicant’s behalf about a ‘technical implication of the law’. This is later discussed.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND AND PROCEDURAL HISTORY
The Applicant is a 34-year-old citizen of the Republic of Sudan.[1] He first arrived in Australia on 11 June 2006 as a dependent relative on his stepmother’s partner visa.[2] He was then 15 years’ old and has not departed Australia since. In November 2008 he was granted a permanent partner visa, again as a dependant. The Applicant’s biological mother and a half-brother remained in Sudan. He claims they have since died.[3]
[1] Exhibit R1, 318.
[2] Ibid 300.
[3] Exhibit R2, 37.
The Applicant reportedly left home ‘at the age of fifteen as he did not get on with his stepmother’.[4] He has an extensive criminal record as an adult that includes crimes of violence, possessing firearms and ammunition, dishonesty, drug possession, breaches of conditional liberty, destroying property, and driving-related misconduct.[5] On 12 December 2022, he was convicted of several crimes, including Attempted Aggravated Carjacking, which resulted in an aggregate sentence of three years and 10 months’ imprisonment.
[4] Ibid 15 [48].
[5] Exhibit R1, 176-179.
On 24 March 2023, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[6] He applied for the cancellation decision to be revoked[7] but was unsuccessful.[8] On 20 October 2023, he asked the Tribunal to review the non-revocation decision.[9]
[6] Ibid 301-306.
[7] Ibid 311-347.
[8] Ibid 372-374.
[9] Ibid 250-255.
On 5 January 2024, the Tribunal, differently constituted, affirmed the non-revocation decision.[10] The Applicant appealed this to the Federal Court of Australia.
[10] Ibid 498-527.
On 5 February 2025 the Applicant was released from prison. He has since held a Class WR Bridging R (subclass 070) visa (‘BVR’) with certain conditions pursuant to regulation 2.25AE of the Migration Regulations 1994 (Cth).[11]
[11] Exhibit R2, 23 [125], 44 [2].
On 7 March 2025, Justice McEvoy quashed the Tribunal’s January 2024 decision and remitted the matter for reconsideration according to law.[12] His Honour found the Tribunal failed to fully consider the Applicant’s representations about rehabilitative efforts and did not make findings about the frequency of his offending or trend of increasing seriousness.
[12] Exhibit R1, 528-530.
On 15 April 2025, the Tribunal held a case management hearing to issue scheduling orders. The Applicant was subsequently required to lodge any witness statements or other records intended to be relied upon by 6 June 2025. He failed to do so without explanation and did not respond to correspondence from the Tribunal.
Protection visa application
Separate to his current application, the Applicant applied for a Protection Visa on 1 July 2024.[13] This was refused by a delegate of the Respondent on 7 January 2025[14] on the basis of s 36(1C)(b) of the Act. This is a disentitling provision even if an applicant is found to be a refugee pursuant to s 5H(1) of the Act.[15] It is enlivened by a finding that an Applicant has been convicted by a final judgement of a particularly serious crime and is a danger to the Australian community.
[13] Ibid 104.
[14] Ibid 34-67.
[15] As defined in s36(2A) of the Act.
The Applicant appealed the protection visa refusal decision, which was considered by a differently constituted Tribunal in late May 2025.[16] He was legally represented by counsel in that proceeding.[17] On 17 June 2025, the Tribunal set aside the reviewable decision and remitted the matter to the Respondent for reconsideration with a finding that the Applicant is not a danger to the Australian community.[18]
[16] Exhibit R1, 22.
[17] Ibid 36.
[18] Exhibit R2, 152-181.
Non-appearance and adjournment request
The Applicant failed to appear at the commencement of the current hearing on 8 July 2025. The Tribunal attempted to contact him on his preferred email address and telephone number to determine his intentions. Later that day, his mobile telephone was answered by a friend who said the Applicant required medical assistance for a hand injury and they would inform him of the Tribunal’s call. At 5:07pm on 8 July 2025 the Applicant emailed a medical certificate to the Tribunal stating that he suffered a ‘burn injury to his hand’ the previous day and was unfit for work from 7 to 11 July 2025.
The Applicant appeared in person at the resumed hearing on 9 July 2025 and requested an adjournment to further explore pro bono representation. He claimed without corroboration that lawyers from his protection visa review application might assist.
The Tribunal is required to provide a mechanism of administrative review that is amongst other things quick.[19] That said, rules of procedural fairness must be complied with, and applicants must be given a reasonable opportunity to present their case.[20] There is no common law right to legal representation,[21] however, nor is the Tribunal required to ensure an applicant can present their case in the best possible light.[22]
[19] ART Act, s 9.
[20] The Act, s 55; Kioa v West (1985) 159 CLR 550, 584 (Mason J); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442, 454–5 (Lockhart, Wilcox and Burchett JJ).
[21] Dietrich v The Queen (1992) 177 CLR 292, 326 (Deane J) and 362 (Gaudron J); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30, [26]-[27] (Farrell, Wigney, and Perry JJ); AMF15 v Minister for Immigration & Border Protection (2016) 338 ALR 551, [51] (Flick, Griffiths and Perry JJ); Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20, [22]-[24] (Sackville, Marshall and Lehane JJ).
[22] Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J); Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, [22] (Keane CJ).
The Applicant has been on notice since 15 April 2025 about the date of the current hearing and did not seek an adjournment. The Tribunal declined the adjournment request, because there was no evidence pro bono legal representation could be secured if his request was granted. Given the Applicant’s self-represented status, however, the Tribunal explained the hearing procedure at each stage and responded to questions. This included explaining his privilege against self-incrimination, which the Applicant said he understood.
Request to provide post-hearing submissions
On the afternoon of 18 July 2025, the Tribunal received an email from Ms Hannah Dickinson of Russell Kennedy Pty Ltd, with the subject line ‘Urgent’ as follows:
Dear Registry,
We write on behalf of the applicant in this proceeding, which we understand was heard on 8, 9 and 10 July 2025 in the Administrative Review Tribunal. [BKRD], the applicant, was unrepresented and does not appear to have been able to provide submissions or written evidence prior to hearing. We also understand [BKRD] had suffered third-degree burns prior to hearing, but consented to proceed.
Noting [BKRD’s] lack of representation, we seek an opportunity to provide urgent and contained legal submissions on behalf of [BKRD] to assist the Tribunal’s determination, limited to legal matters and not encompassing further evidence. In particular, we propose to address critical matters including the legal consequences of the decision including removal to a third country, and the impact of a bridging R (subclass 070) visa as opposed to a permanent visa on assessment of risk. We would be in a position to finalise submissions by 25 July 2025 at the latest, if that assists the Tribunal.
We understand that the respondent, copied, neither consents to nor opposes this request. If the Tribunal is minded to make a direction permitting post-hearing submissions by the applicant, the respondent would seek an option to file submissions in response.
…
I apologise for any inconvenience caused.
Kind regards,
…
A case management hearing was listed for 4:00pm on 18 July 2025. Ms Dickinson appeared for the Applicant and Mr Adam Cunynghame appeared for the Respondent. A summary of what occurred follows:
(a)In response to the claim that the Applicant ‘does not appear to have been able to provide submissions or written evidence prior to hearing’, the Tribunal referred to extensive oral testimony and over 1000 pages of documents taken into evidence during the hearing. The latter includes multiple Statutory Declarations from the Applicant dated between August 2024 and April 2025, prepared by lawyers.[23] There is also correspondence from his current employer, documents relating to his activities since release on a BVR in early 2025, and a comprehensive report from forensic psychiatrist Dr Nina Zimmerman dated April 2025.
(b)Ms Dickinson contextualised her request for post-hearing submissions as ‘very unusual’ and said this related to legislative changes from ‘late 2024’ impacting people in the Applicant’s circumstances. She said the changes enlivened a ‘risk of removal to a third country’ and ‘the attendant risk of further immigration detention’. Ms Dickinson said it was difficult for unrepresented applicants to make these claims.
(c)The Tribunal noted the Applicant gave evidence about the impact of a BVR since his release and what he saw as the benefits of his permanent visa being restored. No claims were made, however, about possible re-detention or removal to a third country. Ms Dickinson said her submissions would strictly relate to a ‘technical implication’ of the law and the ‘threat and fear of removal’. She did not propose to re-open the hearing or recall the Applicant, stating:
We don’t think so…because it is not necessarily a matter for the Applicant – not something he might grasp – it is a technical implication of the law [relating to] s 198, s198AAA and similar sections…nothing further would need to be put to the Applicant. We have instructions to assist him in that limited scope and the submissions are not dependent on his views.
(d)Mr Cunynghame submitted that the Respondent was reluctant to consent to post-hearing submissions because ‘the case has been run, evidence put, and closing submissions made’. He also expressed concern about whether the proposed submissions would be founded on or supported by evidence, particularly ‘when we have no idea what the Applicant’s thoughts are on that’.
[23] Exhibit R1, 183-191, 224-231, 311-331; Exhibit R2, 44.
After hearing from both sides, the Tribunal gave leave for written submissions from the Applicant by 25 July 2025. These were limited to five pages on the technical legal issue Ms Dickinson raised about possible re-detention and removal to a third country. The Respondent’s reply was scheduled on or before 1 August 2025. A further hearing day was listed for 6 August 2025 as a contingency measure.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter. Section 52 of the ART Act provides that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’. The Tribunal’s procedure is at its discretion, and it is free to act with as little formality and technicality as a proper consideration of matters before it permits.[24]
[24] ART Act, ss 49–50.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make revocation submissions. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied the person either passes the character test, or there is another reason why the original decision should be revoked.
ISSUE
The Applicant has been sentenced to a term of imprisonment exceeding 12 months, has a substantial criminal record, and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation. The Tribunal must read, understand, and evaluate the Applicant’s clearly articulated representations or those obviously arising from the evidence.[25]
[25] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22], [25], [27], [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as ‘Ministerial Direction 110’ (the Direction).[26] The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power.[27]
[26] The Act (n 12) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[27] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The following principles at cl 5.2 of the Direction provide a framework within which decision‑makers should approach their task:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight is given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration Protection of the Australian community is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations’.
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an Applicant’s claims, and the individual and cumulative weighing process is a matter for individual decision-makers.[28]
EVIDENCE
[28] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]–[38] (Colvin, Stewart and Jackson JJ); 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) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].
Documentary evidence
A Hearing Book numbering 813 pages[29] and a Supplementary Hearing Bundle numbering 199 pages[30] were tendered into evidence.
[29] Exhibit R1.
[30] Exhibit R2.
The Applicant did not lodge documents during the pre-hearing phase despite having opportunities to do so under scheduling orders issued on 15 April 2025. The Tribunal has considered his past documentary claims.[31]
[31] Including at Exhibit R1, 183-191, 224-231, 311-331; Exhibit R2, 44.
Oral evidence
The Applicant gave oral testimony in English and under oath. He did not call other witnesses. The Tribunal accepts the Applicant’s opinions are honestly held. That said, where his recollections conflict with contemporaneous records by experts, the courts, or agencies such as the police or corrections, the Tribunal prefers the latter. This is particularly so because of the Applicant’s evidence about prolonged drug use and inability to recall much of his past conduct.
The Applicant’s oral evidence is summarised as follows:
(a)The Applicant explained he did not appear at the scheduled commencement of the hearing on 8 July 2025 because he required medical treatment for a burn to his hand. He explained that he smokes, uses a refillable lighter, and set fire to his himself when operating the lighter after failing to notice lighter fluid on his hand.
(b)The Applicant said his migration to Australia was sponsored by his father. He arrived in the company of his stepmother and stepsiblings. The Applicant said his biological mother remained in Sudan after he left and claims she died of cancer a few years ago while he was imprisoned.
(c)The Applicant recalled moving out of home at a young age because he did not get on with his stepmother. He referred to employment at a supermarket, automotive business, and some landscaping ‘here and there’. He did not work for some years because of severe addiction to ice and GHB. A summary of the Applicant’s evidence about his alcohol and drug history follows:
(i)The Applicant said he first drank alcohol at 18 but has only been intoxicated twice. He claims not to have consumed alcohol since 2020 and does not believe he has any problems with alcohol use.
(ii)The Applicant claimed he only ever smoked cannabis ‘once’ in 2019 and references to more extensive use[32] were mistaken. He later accepted that a reference to him using it on two occasions may be correct.[33]
[32] Exhibit R1, 239 [21], 460 [2.2], 755.
[33] Ibid 794.
(iii)The Applicant said a woman at work introduced him to methylamphetamine in 2016.[34] He initially smoked ice on weekends but said this increased to daily use of between one and three points after a relationship break up.[35] He recalled the last time he used ice was ‘minutes before’ before being arrested on 18 June 2021 for the carjacking offence. He claims to have abstained from ice while imprisoned and that incarceration helped him overcome addiction.
[34] Also known by the street name ‘ice’,
[35] Open-source information is that ice is typically sold in ‘points’ (o.1 grams)
(iv)In terms of other drugs, the Applicant said he concurrently used GHB[36] while using ice. When asked by Mr Sypott about heroin use, he conceded that he ‘might have’ mixed heroin with ice on occasion.
[36] Gamma hydroxybutyrate. This is a central nervous system depressant that is also referred to by the street names ‘G’, ‘grievous bodily harm’, ‘fantasy’, ‘blue nitro’ or ‘liquid ecstasy’.
(v)The Applicant accepts he was found with illicit Buprenorphine in April 2023 while imprisoned,[37] but claims to have been holding it for another inmate. He subsequently asked to be placed on the Buprenorphine Program because:[38] ‘There was a lot of Bupe in jail. I thought instead of using it…it was better to jump on the Program…the main reason was to stay out of trouble’. It was put to the Applicant that Buprenorphine is an Opioid Replacement Therapy (‘ORT’) for those addicted to drugs like heroin and had no efficacy for ice or GHB addiction. The Applicant accepted this but advanced other reasons for requesting ORT. He explained that he was subject to frequent urinalysis that disrupted his activities and felt ORT would help him avoid other drugs, avoid urine tests, and help get his visits back.
[37] Exhibit R1, 714, 730, 791.
[38] Ibid 653, 797.
(d)Mr Sypott asked the Applicant about references to him contravening family violence orders since 2016.[39] The Applicant could not recall why all the orders were taken out but attributed these to drug addiction. He could not recall an incident where he reportedly threw a water bottle at the mother of his child but accepted this was possible because he was ‘using ice at the time and [his] temper would blow up’. He recalled another occasion where he argued with a female partner, ‘grabbed’ her arm, ‘yelled’ at her, and ‘might have’ pushed and pulled her at a hotel room.[40] He said the argument was about her ‘sleeping with other guys’ and claimed he was in a ‘love triangle’. When asked about a police report stating he was yelling at and spitting on this woman,[41] the Applicant claimed it was ‘dry spit’, explaining that he only pretended to spit on her to convey disappointment. The Applicant accepted the victim would have been scared and his ‘actions weren’t acceptable’. On another occasion the Applicant recalled breaching a family violence order by taking a ‘selfie’ of himself on a protected woman’s street and then sending it to her by text with a threatening message that her house ‘might get run through tonight anytime pass [sic] 2:00am’.[42] The Applicant said they were ‘just words’ and he did not intend to carry out this threat. He again contextualised this conduct as due to ice and GHB use. When asked about a reference to family violence orders being taken out to protect five females,[43] the Applicant could not recall who all the women were and initially responded: ‘That’s not violence it’s just an intervention order’. When challenged, the Applicant accepted that breaching a family violence order constitutes family violence.
[39] Ibid 153, 155, 157, 297-8, 607.
[40] Ibid 395, 400, 581.
[41] Ibid 581.
[42] Ibid 387, 391, 554.
[43] Ibid 751.
(e)The Applicant said he is not currently in a relationship and intends focussing on his own needs. When asked what he learned from a Respectful Relationships Course in August 2024, he responded: ‘Relationships are not a one-way street – it’s both ways. I need to listen to the woman. Raising my voice at a woman can make them scared. Like swearing – it’s not right’. The Applicant said if he did commence a new relationship he is ‘100% positive’ his past conduct won’t reoccur. If it does, he intends getting ‘help from a professional’.
(f)In terms of the attempted carjacking, the Applicant said he and a co-offender smoked ice before driving to the victim’s location. They both entered the victim’s car before the Applicant went through the victim’s phone to check for messages with the Applicant’s partner. The Applicant said he became angry about the contents of some messages, following which he produced an imitation firearm. He claimed to have obtained the imitation firearm from a ‘friend’s house’. When asked why, the Applicant responded: ‘to get this guy to stay away from my relationship’. He also recalled that during this incident he received a call from someone to ‘drop off some GHB’, which is why he demanded a car from the victim, including by threatening to shoot him.
(g)Mr Sypott asked the Applicant about offences involving possession of ammunition and a firearm.[44] The Applicant claimed he found ammunition on one occasion in a bag left for the Salvation Army and kept it to trade for drugs. In terms of possessing a handgun and ammunition leading to his May 2021 convictions,[45] the Applicant claimed ‘someone’ gave it to him to ‘swap for ice’.
[44] Ibid 178.
[45] Ibid 430.
(h)The Applicant accepted that he drove vehicles after using ice, drove while suspended or in unregistered vehicles, and gave police false identity details. When asked why he drove while drug-affected, he responded: ‘to get to work’.
(i)The Applicant was asked about the following reports of custodial misconduct:
(i)One report dated June 2021 alleges he ripped a mirror off a cell wall, tampered with a ceiling fan by breaking off metal parts, and yelled at custodial officers to ‘get the fuck out of my room’.[46] This led to a disciplinary hearing where the Applicant is reported to have pleaded guilty, received a reprimand, was ordered to pay financial restitution, and lost 14 days of privileges. The Applicant claimed the mirror fell off the wall because adhesive gave way and he only ‘pulled a little wire’ from the fan to hold the curtain in his cell apart.
[46] Ibid 474.
(ii)The Applicant accepts he previously failed to comply with officer directions and abused some prison officers by calling them ‘dog cunts’ and ‘rat dog’.[47] He said prison officers pick on people, abuse their power and ‘sometimes we can’t take what they’re doing’.
[47] Ibid 470, 472, 791.
(iii)When asked about an incident where he reportedly attempted to kick an officer[48] the Applicant claimed he was ‘shadow boxing and almost kicked him but didn’t’. He recalled custodial staff putting him ‘in the slot for one week’ after this incident and then transferring him to another prison.
[48] Ibid 465.
(iv)The Applicant agreed he previously used another prisoner’s medication (Avanza)[49] and was also found with illicit Buprenorphine in April 2023.[50]
[49] Exhibit R2, 20 [99].
[50] Exhibit R1, 714, 730, 791.
(j)The Applicant referred to his past conduct as ‘wrong’ and ‘a bit silly’. He claimed not to have undertaken drug or violence-related courses or counselling prior to imprisonment and said he previously lied about his problems to himself and those who tried to help. While imprisoned, however, he tried to improve himself through courses and by putting himself in a ‘victim’s shoes’, which made him regret past actions. The Applicant said he is currently on the ‘right path’ and ‘not the same person’ as before. He now understands his ‘triggers’ and that alcohol and drugs don’t solve problems. When asked by Mr Sypott what his triggers are, the Applicant responded: ‘friends I was socialising with’. When asked about any other triggers, he replied: ‘stress, relationships, all that – or maybe getting fired at work’.
(k)When asked about expert assessments that he constitutes a moderate risk of reoffending, the Applicant said that is ‘their opinion’ and expressed a commitment not to go ‘backwards again’ and to ‘prove everyone wrong’.
(l)The Applicant referred to the following positive actions since his release on a BVR in February 2025:
(i)Abstinence from illicit drugs and ceasing association with negative peers. He feels stressed some days but has not relapsed. The Applicant said he is prescribed Mirtazapine for mental health and remains on ORT. A doctor gives him Buprenorphine injections, most recently two days prior to the hearing.[51] This is at the same dose as when he left prison in February 2025 (128 mg). When asked why he continues ORT if he has not used illicit drugs since arrest in 2021, the Applicant said he was advised ‘not to come off [ORT] straight away’ because he ‘might use other drugs’.
[51] Ibid 2 [17], Exhibit R1, 653, 797.
(ii)Obtaining stable accommodation and support from an old school friend who the Applicant claims is a youth worker. When asked why there is no statement from this person, the Applicant said they are ‘always busy with youth paperwork’.
(iii)Finding fulltime employment that pays him about $1500 per fortnight after tax.[52] In a statement dated 23 May 2025 the Applicant claims he attends mosque with his ‘boss and two other guys from work during lunch’.[53] There is no independent evidence of this from co-workers or the mosque.
[52] Exhibit R2, 42.
[53] Ibid 44 [3]-[4].
(iv)Reconnected with immediate family members. The Applicant said he last met his father in person three weeks ago but claims to meet with his stepmother and stepsiblings weekly. He also referred to interaction with cousins via social media and claims he last saw some of them about three weeks ago. When asked why there is no statement from his father, stepmother, stepsiblings, or cousins, the Applicant said he had not asked them. He explained that in his culture ‘families are very stubborn’ when a person ‘does something wrong’. He said that his father is ‘still angry’ about his past conduct and wants the Applicant to ‘learn things the hard way’.
(m)The Applicant invoked the interests of four children as protective factors that ameliorate his risk of offending. His evidence about reconnecting with three of these children since release is summarised as follows:
(i)The Applicant claims to have a strong relationship with the mother of two of his children, who are currently 10 and 12 years of age. His relationship with this woman ended in around May 2015,[54] although an unsigned letter in her name was lodged for the Applicant’s 2023 Tribunal hearing.[55] The Applicant claims he currently sees his two daughters on Saturdays under a cooperative arrangement and provides some money to their mother. He said the children look up to him because he won athletics events at high school and has medals to show them. He races and play basketball with the children. The Applicant said the youngest child has disabilities, including deafness. He said the mother of these children is in another relationship, but he does not know with who. When asked why there is no recent statement to clarify the current state of their relationship, the Applicant said: ‘she was going to do it but…doesn’t have enough time’.
[54] Exhibit R1, 198 [42].
[55] Ibid 344-347.
(ii)The Applicant said he has not seen another of his children, a son who is currently nine, for ‘a long time’. He has nothing to do with the child’s mother because she is in a new relationship with a man the Applicant previously fought with. The Applicant said his son believes this new man is his father. The Applicant said he intends seeking access to the child through court orders if allowed to remain in Australia.
(iii)The Applicant was asked about a fourth child referred to in Dr Zimmerman’s April 2025 Report as follows:[56]
[The Applicant] told me he had sexual encounters with a woman [name redacted] before he was locked up. He said that it was not a relationship and that he didn’t realise that the child she was carrying when he was incarcerated was his. However, during his prison sentence, he said that another inmate told him that [name redacted] had given birth to a daughter [child’s name redacted]. [The Applicant] said that he has since seen a photo of her and he believes that she is certainly his child as she looks “exactly like me!” He said that [child’s name redacted] would be about three and he has tried to contact [woman’s name redacted] but has not been successful.
(iv)In oral testimony, the Applicant said he does not talk to the mother of this child, who ‘doesn’t listen to anyone’ and is currently imprisoned. He claims the child is almost four years of age and lives with her maternal grandmother. He claimed to see the child regularly. When asked how he knows this is his biological child, the Applicant responded: ‘When I looked at the kid there is no argument it’s mine – I know my blood’. There is no independent evidence, such as a birth certificate, or DNA test result, or from the child’s mother, grandmother, or other caregivers, to corroborate the Applicant’s claim.
(n)The Applicant said he has attended a men’s group since March 2025 that meets on Mondays from 5–7 pm.[57] Group participants ‘share their stories’. The Applicant said he is waiting to commence a drug and alcohol course, and for a place at Foundation House to help address his unresolved trauma.[58] He has been advised there is currently a four- or five-month waiting period for the latter.
(o)The Applicant said his BVR conditions since release have been amended from daily to weekly and, in June 2025, to monthly reporting.[59] He needs to keep authorities updated about changes to his contact details, address, email, employment, and ‘anything else that changes’. He does not find it difficult to comply with BVR conditions, which do not affect his ability to work, engage with family or friends, or other aspects of his life. When asked what he hoped to achieve by having his permanent visa restored, the Applicant referred to ‘good things’ such as being able to claim Centrelink payments as a permanent resident if he were to become unemployed.
[56] Exhibit R2, 15 [43].
[57] Ibid 151.
[58] Ibid 59.
[59] Ibid 44 [2].
The Applicant said he needs someone to give him ‘a chance’ to prove he can meaningfully change the course of his life. When referred to past opportunities through Community Correction Orders (‘CCO’), the Applicant said he was then only focussed on ‘supporting [his] habit’ but is now ‘clean’ and wants ‘one last chance’.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
The Applicant’s offending includes violent crimes, possession of firearms / ammunition, dishonesty, illicit drug possession, breaches of conditional liberty, property destruction, and driving-related offences.[60] His violence includes two counts of resisting police, unlawful assault, assault with a weapon, and attempted aggravated carjacking. The head sentence he received for the carjacking offence was three years and six months’ imprisonment.[61] This was his first sentence of imprisonment. His crimes prior to this resulted in fines, CCO up to 18 months, adjourned undertakings, community work, and periods of licence cancellation / disqualification.
[60] Exhibit R1, 176-179, 203-207.
[61] Ibid 290 [35].
Sentencing remarks from the Applicant’s December 2022 convictions state:[62]
[62] Ibid 234-245.
1 [You] pleaded guilty to an indictment containing three indictable offences as follows: Charge 1, destroy property contrary to s197(1) oof the Crimes Act 1958; Charge 2, attempted aggravated carjacking contrary to s321M and 79A of the Crimes Act; Charge 3, possessing an imitation firearm contrary to a firearm prohibition order as set out in s5AB(3) of the Control of Weapons Act 1990.
2 You initially consented to this court exercising jurisdiction to hear two related summary charges against you, being one of unlawful assault contrary to s23 of the Summary Offences Act 1966; and one charge of aggravated assault, that is with a weapon, contrary to s24(2) of the Summary Offences Act. You again entered pleas of guilty to each of these summary offences.
3 The maximum penalties prescribed by Parliament for your offending is as follows: destroying property, 10 years' imprisonment; attempted aggravated carjacking, 20 years' imprisonment; possession an imitation firearm in contravention of a firearm prohibition order, 10 years' imprisonment. The minimum penalty in relation to the summary offences are as follows: unlawful assault, three months' imprisonment; aggravated assault with a weapon, two years' imprisonment.
Your offending
…
6 The first incident, being the property damage, occurred…when…You ran towards his vehicle, jumped on the bonnet and struck the windscreen with your knee, causing it to crack. You ran across the top of the vehicle...
7 [The victim] reported this incident to his employer and both attended the…police station. While travelling to the police station [the victim] observed you running towards the vehicle, holding an unknown object which he described as being long, metallic and home-made. You approached the vehicle and struck the rear passenger window with this object, causing it to smash.
…
9 Two weeks later…[the victim] was eating dinner in [his car]…There was a knock on his driver's side window and he observed another man who he had known…This man opened the door and at about the same time the passenger door was opened and you got into the passenger side of the vehicle…
10 [The victim] was feeling scared at the time. There was a white utility vehicle parked behind him and he was unable to reverse or drive forward. He had concerns about what had occurred two weeks earlier. You told him you wanted his vehicle and said you would return it, but he did not believe you...
11 This stand-off…lasted for approximately an hour. You took your victim's phone and looked through it, searching for messages between him and [Applicant’s former girlfriend]…At some point you…produced an imitation firearm, which [the victim] unsurprisingly thought was real.
12 When the firearm was produced the person in the back seat shouted out, 'We didn't come here for this'. Your victim recalls that he did not want you and the other person stealing your car, nor did he want to get shot.
13 [The victim] eventually agreed to get the keys for [another vehicle]…He got out of the vehicle and, whilst out, he telephoned his employer and told him what had happened. He then entered the [business] premises and locked the door behind him. His employer called the police. Shortly afterwards you and the other male…left the area…
14 You returned about five minutes later but left shortly afterwards and were eventually arrested by police, who were required to produce firearms to effect your arrest. You denied any offending in relation to a firearm, you denied producing it and you indicated that you and [the victim] had been friends. This was clearly untrue.
Your personal circumstances
15 You…are currently 31 years of age. You were 30 at the date of the offending. You admitted a criminal record, some nine pages, recording convictions from 2016 and including drug and serious driving offences and family violence offending. [In] 2021 you were convicted…of possession of a category E handgun without a licence and possessing cartridge ammunition…You were sentenced to a community corrections order of 18 months' duration at that time.
…
21 Sadly you had developed substance abuse difficulties from about the age of 20 or 21. In more recent times, prior to your incarceration, you would smoke methylamphetamine on a daily basis and also cannabis.
…
29 The first indictable offence of damaging property…is not one which I regard as mandating a term of imprisonment. There was limited damage to the vehicle that was attacked by you and the offending to my mind bears all the hallmarks of drug-related offending….
30 Additionally the two summary offences to which you have pleaded guilty, being one of common assault and the other of aggravated assault, do not in my view mandate a term of imprisonment.
31 The offence of attempted aggravated carjacking and possession of an imitation firearm whilst being prohibited do, in my view, fit the description of violent and confrontational offences as set out in the prosecution summary of sentencing submissions.
32 It was submitted that the attempted carjacking was aggravated by it taking place at night in the dark and occurred over the better part of an hour…it appeared to be planned, premeditated and persistent. Further, the use of an imitation firearm in the course of this offending is plainly an aggravating factor. I regard this as a serious example of this crime.
33 Further, the weapons offence occurred in circumstances where you had previously had a conviction and were serving a community correction order at that time. Perhaps your offending is again due to your failure to appreciate what is required of you in the community…I regard the objective gravity and your moral culpability of attempted aggravated carjacking and the firearms offence as high.
The Applicant has breached multiple conditional liberty orders since 2016, including bail and CCOs.[63] A Serious Violent Offender Assessment Report dated 18 May 2023 refers to six individuals requiring protection from him since 2016.[64] The Applicant could not recall who all these orders related to. The Tribunal notes the Applicant was denied parole in September 2024 and served his full term of imprisonment.[65] He was assessed as ‘not suitable for immigration detention’.[66]
[63] Ibid 777-788.
[64] Ibid 759.
[65] Ibid 767.
[66] Ibid 767.
The Applicant has engaged in family violence within the meaning of s 4 of the Direction. This includes contravention of family violence orders taken out to protect former romantic partners.[67] A Serious Violent Offender Assessment Report dated 18 May 2023 refers to a history of nine family violence incidents that reflect ‘a pattern of interpersonal aggression within intimate relationships’.[68]
[67] Ibid 297-299, 387-411, 416, 421, 607-608.
[68] Ibid 759.
The Applicant has a history of driving related misconduct between early 2013 and 2018.[69] This includes failing a drug test, speeding by more than 35 km/h, driving while his authorisation was suspended or disqualified, using vehicles that are unsafe / unroadworthy / unregistered, and stating a false name / address or failing to state his name / address.
[69] Ibid 492-497.
In addition to the Applicant’s crimes, other conduct may be relevant to the Tribunal’s consideration despite not leading to charges or convictions. This includes the following:
(a)Notwithstanding a small number of drug convictions between 2017 and 2021, it is clear the Applicant has used illicit drugs such as methylamphetamine[70] since about 20 years of age.[71] The Applicant accepts that his past drug use exceeds the drug offences reflected in his criminal history.
(b)There are positive references to the Applicant’s custodial conduct[72] and overall institutional behaviour.[73] Since 2023 he has returned multiple negative urinalysis results.[74] There are also reference to institutional misconduct and his evidence about this was earlier summarised. This includes being found in possession of illicit Buprenorphine in April 2023.[75] Dr Zimmerman refers in her April 2025 report to the Applicant using ‘the sedating antidepressant mirtazapine’ given to him by another prisoner.[76] The Applicant accepts he possessed medication prescribed for another prisoner. It is also not contested he has engaged in abusive and aggressive conduct in custody. This includes swearing at officers and refusing to comply with instructions. He denies attempting to kick an officer in April 2023 but accepts he was placed in restraints during this incident and transferred to another prison.[77]
[70] Also known by the street name ‘ice’.
[71] Exhibit R1, 239 [21], 262, 552, 562,566, 571, 573, 809 [2.2].
[72] Ibid 208, Exhibit R2, 82-114, 117-128, 132.
[73] Exhibit R1, 773.
[74] Ibid 791.
[75] Ibid 714, 730, 791.
[76] Exhibit R2, 20 [99].
[77] Exhibit R1, 465, 470, 472, 790-791791.
In terms of the weight given to police or custodial records, their value is routinely tested during questioning as occurred on this occasion. The Tribunal is not bound by the rules of evidence[78] and although such records may not have resulted in charges, the Tribunal can consider them as ‘other conduct’ under cl 8.1.1(1) of the Direction. The Tribunal is required to treat custodial records carefully, however, and acknowledge the ‘limits of the material before it that was said to evidence such conduct, including its cogency and reliability’.[79]
[78] ART Act, s 52.
[79] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, 124 [100] (Kenny J).
Tribunal findings: The nature and seriousness of the conduct
The following findings are made:
(a)The Applicant has committed multiple traffic infringements since early 2013 when in his early 20s, with appearances in magistrates’ courts since September 2014.[80]
(b)The Applicant has committed multiple violent crimes within the meaning of cl 8.1.1(1)(a) of the Direction and resisted police officers in the performance of their duties,[81] which falls under cl 8.1.1(1)(b)(ii) of the Direction.
(c)Convictions are recorded against the Applicant every year between 2016 and 2023. He has caused harm to members of the community. His early interactions with the courts resulted in non-custodial dispositions that failed to divert him from more serious crimes. The cumulative effect of his conduct, including while under conditional liberty, reflects a disregard for Australian law and the rights of others.
(d)Imprisonment is the most severe punishment available. A sentence of three years and 10 months’ imprisonment for the Applicant’s most recent offending amply conveys the seriousness of his crimes.[82]
[80] Ibid 496.
[81] Exhibit R1, 566.
[82] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
In terms of ‘other conduct’, the Tribunal is satisfied the Applicant has abused illicit drugs beyond that solely reflected in his criminal record. Additionally, he has not been consistently compliant in custodial settings with several incidents of misconduct.
The totality of the Applicant’s offending and other misconduct is very serious.
Tribunal consideration: Risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non‑citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This aspect of the Direction requires a ‘future‑focused assessment’[83] of recidivism risk by considering the nature of any harm and its probability. In Guo,[84] the majority observed 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’.[85] The majority noted, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty’.[86]
[83] 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).
[84] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[85] Ibid 575.
[86] Ibid 574-5.
Remorse and rehabilitation
The Applicant expressed remorse for his past conduct during oral evidence and said he now has a better appreciation of how his victims felt. There is scant reference to any contrition in documentary evidence prior to visa cancellation. At the Applicant’s most recent sentencing the Court referred to his ‘lack of insight and…remorse’.[87] The Court expressed the ‘hope’ that the Applicant would ‘get off the drugs…improve…[his] …life and take advantage’ of future opportunities for meaningful change.[88] In his March 2023 revocation submissions, following visa cancellation, the Applicant claimed to be ‘ashamed’, ‘remorseful’, and to have taken ‘full responsibility’ for his conduct.[89]
[87] Exhibit R1, 240 [27].
[88] Ibid 244 [58].
[89] Ibid 314.
The Applicant contextualises his past crimes as resulting from aggression caused by substance abuse.[90] His evidence about drug use, however, has been inconsistent. In 2023, for example, he claimed to have only ‘begun using drugs’ at the beginning of 2020 ‘to suppress the effects of trauma’. He also expressed an intention to use ‘services available to assist’ with his mental health and addiction issues if released.[91] Other more persuasive expert evidence refers to his much earlier and prolonged drug use. It is also noteworthy that the Applicant has behaved in abusive and aggressive ways while imprisoned, which post-dates his claimed abstinence since arrest in 2021.
[90] Ibid 326.
[91] Ibid 314-315.
The Tribunal has considered the Applicant’s evidence about rehabilitative, vocational, and self-development courses undertaken while imprisoned and since release on a BVR in early 2025.[92] This includes attendance on drug and alcohol treatment programs and a relationships course. His engagement with the Moderate Intensity Violence Intervention Program was described in an August 2024 report by Correctional Services as follows:
[The Applicant] was assessed as suitable to engage in the Moderate Intensity Violence Intervention Program (MIVIP). [The Applicant] commenced the MI-VIP program on 29/01/2024 and completed it on 03/06/2024. It was noted within the Intervention Report dated 05/07/2024, “Throughout the program [the Applicant’s] motivation appeared geared towards more extrinsic motivations whereby he appeared to complete tasks only as necessary to meet the program requirements, and that his engagement was minimal throughout”.[93]
[92] Ibid 209-216, 327, 333-343, 658-661; Exhibit R2, 4-9, 41-42, 57-59, 79-81, 115.
[93] Exhibit R1, 799.
The Applicant has engaged in conduct falling within the meaning of family violence. This includes multiple breaches of FVIO. His rehabilitation is at a relatively early stage, remains untested given he is not currently in a relationship, and must be seen in the context of past conduct against multiple intimate partners.
The Applicant has resided in Australia for approximately 19 years but has quite limited prosocial ties. His claims about the closeness of current relationships rests largely on assertion. In any event, his ability to advance these is unaffected by the Tribunal’s decision.
It remains unclear what the Applicant’s precise role is in the lives of the children whose interests he invokes. His aspiration to play a more prominent parental role is unsupported by recent corroboration from the mothers or other caregivers of these children. It is again worth repeating he will remain in the community irrespective of the Tribunal’s decision in, so will not be impeded from pursuing his paternal aspirations.
The post-hearing legal consequences advanced on the Applicant’s behalf are somewhat disconnected from his oral testimony, which the Tribunal prefers. He has a protection finding in his favour and cannot currently be removed. The Applicant’s oral evidence is that the BVR conditions he is subjected to have been incrementally eased since his release and that his freedom of action is not meaningfully affected. Re-detention and removal are not direct legal consequences of the Tribunal’s decision and there is no evidence the Applicant will do anything other than remain in the community on a BVR for the foreseeable future. There is also no evidence that future removal to a third country is a direct or reasonably proximate consequence of the Tribunal’s decision, or that the Applicant may elect voluntary removal in future, or that the Minister may quash his protection finding at some indeterminate future time.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the three relevant primary considerations favouring non‑revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.
128. I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic
................[sgd]......................
Associate
Dated: 22 August 2025
Date of hearing: 8, 9 and 10 July 2025 Advocate for the Applicant:
Post-hearing submissions:
Applicant (in-person)
Ms Hannah Dickinson of Russell Kennedy Pty Ltd on 25 July 2025
Counsel for the Respondent:
Solicitors for the Respondent:
Mr Keith Sypott
Ms Kristina Petrovski, Sparke Helmore Lawyers
0
24
0