BRNM and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2180

BRNM and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2180 (17 October 2025)
Applicant/s:  BRNM
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:               2025/4528

Tribunal:Senior Member K Raif
Place:Sydney
Date:17 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that discretion should not be exercised to refuse to grant the visa to the Applicant

Statement made on 17 October 2025 at 10:41am

Catchwords
Bridging visa – refusal to grant a Bridging E visa – risk of engaging in criminal conduct if allowed to stay in Australia - character test – family violence offending - Ministerial Direction No. 110 applied – whether Tribunal should exercise discretion to refuse to grant the Bridging visa – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Minister for Immigration and Citizenship v Li [2012] HCA 61
FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
FYBR v Minister for Home Affairs [2019] FCA 500
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary 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
Statement of Reasons
Introduction

This is an application for review of a decision of the delegate of the Minister for Immigration and Citizenship (the Respondent) made on 30 July 2025 to refuse to grant a Class WE Bridging E visa (BVE) to the Applicant.
The Applicant was born in September 1991 and is a national of Tonga. He entered Australia in February 2014 on a three month visa and stayed in this country as an unlawful non-citizen since May 2014. In 2015 the Applicant commenced a relationship with GS and the couple married in October 2020. In September 2024 the Applicant made an application for the BVE on the basis that he intended to make an application for the Partner visa. On 20 September 2024 the application was refused as the delegate was not satisfied the Applicant could validly make an application for the Partner visa (having spent some time in detention) but that decision was remitted by the Tribunal (differently constituted) in October 2024.
The Applicant was convicted of several offences in Australia which are set out below. The delegate issued the Applicant with the Notice of Intention to Consider Refusal on the basis that the Applicant did not meet the character test. The Applicant responded to the Notice in June 2025. The delegate decided to refuse to grant the visa to the Applicant as the delegate determined that the Applicant did not pass the character test and that the discretion should be exercised to refuse to grant the visa. The Applicant seeks review of the delegate’s decision.
The Applicant appeared before the Tribunal on 16 October 2025. The Tribunal received oral evidence from the Applicant’s partner GS. The Applicant was represented on review.
The issues before the Tribunal are:
(a)whether the visa Applicant passes the character test as required by section 501 of the Act and, if not;
(b)whether the Tribunal should exercise its discretion to refuse to grant the visa to the Applicant.
For the reasons that follow, the Tribunal has decided that the decision under review should be set aside and that discretion should not be exercised to refuse the visa to the Applicant.
Legislative framework
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(d) provides that a person does not pass the character test if:
in the event the person would be allowed to enter or to remain in Australia, there is a risk that the person would …
(i) engage in criminal conduct in Australia…
Subparagraph 501(6)(d)(i) of the Act requires an assessment about whether there is a ‘risk’ that the Applicant ‘would engage in criminal conduct in Australia’. That assessment involves a consideration of past conduct, usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending. This is the nature of the ‘probabilistic assessment’ to which Perry J referred in EPU19[1] at [182].
[1] EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536.
In BHL19[2] the Court held that paragraph 501(6)(d) has been cast by the legislature in wide terms, with low thresholds and that paragraph 501(6)(d) of the Act does not refer to any particular level of risk, be it high, low, remote or negligible, rather it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be.
[2] BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94.
Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.
Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) sets out the principles that provide a framework within which decision-makers should approach their task. The principles set out at paragraph 5.2 of Direction 110 state that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
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.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
Does the Applicant pass the character test?
The Applicant’s offending is summarised in the delegate’s decision and various submissions. The Tribunal has also been provided with the Criminal Intelligence Commission Report dated 7 April 2025 which indicates that the Applicant had been convicted of the following offences:

22/10/24

Assault occasioning actual bodily harm

Imprisonment 4 months (severity appeal lodged but withdrawn)

29/03/22

·     Destroy or damage property

·     Common assault

·     Assault occasioning actual bodily harm

Fines

Community corrections order 12 months

The Tribunal has been provided with the NSW Police Facts sheet in relation to the 2024 offending. It identifies the victim as the Applicant’s partner GS. It is stated that the couple’s four children were present at the time of the incident. The report indicates that in August 2024 the Applicant returned home intoxicated and aggressive. There was an argument between the victim and the Applicant during which the Applicant used both hands to push the victim in the chest causing her to stumble. They both fell on the floor. The Applicant mounted the victim and used his fist to punch the victim to her head up to three times. He then attempted to punch the victim with his other hand, missing. As the victim attempted to get away, the Applicant grabbed her cheeks and forehead and tried to twist her head. The victim was able to move away. The children ran into the bedroom and yelled that they had called the police.
The Applicant had sworn a declaration on 10 October 2024 in which he referred to the above incident. The Applicant states that he went out for a few drinks with a friend and when his wife found out, they had an argument. His wife screamed at him and he was angry, he wanted to leave but she was in the way so he pushed her and she grabbed him and did not let go and they ended up pushing each other and he punched her. The Applicant states that he feels remorseful and bad about what happened, which was because of his drinking and he wants to get treatment. The Applicant states that his drinking was getting worse after his mother died, his wife tried to get help but it is hard because of money. The Applicant states that he will get help in the community and from a social worker and the pastor. The Applicant states that he is not an angry person and has never been aggressive to his wife or children, he has no other convictions. The Applicant states that his wife wanted to change the conditions of the AVO and wanted the charges to be dropped.
In oral evidence the Applicant told the Tribunal that he had been drinking which his wife was unhappy about and they had an argument when he returned home. They pushed each other. GS told the Tribunal that she was upset at the applicant because they made plans to go somewhere and she punched him, which she regrets. She told the Tribunal the applicant is not a violent person and this was an isolated incident.
The Tribunal has been provided with the NSW Police Facts Sheet in relation to the 2022 offending. The victim has been identified as the Applicant’s then five year old daughter AST. It is reported that in May 2021 the Applicant and the child were in their lounge room when the Applicant began hitting the victim due to an argument concerning the use of an iPad. It is stated that the Applicant had repeatedly slapped the face, back and buttocks of the victim. The child’s mother observed this and told the Applicant to stop. The Applicant is reported to have said to his wife ‘f**ck you, you always interfere’. The Applicant then left the house. The police observed red marks and swelling on the lower back and left buttock of the victim. Police obtained, with consent, medical records from the victim’s admission which appear to suggest previous unreported assaults and a history of alcohol abuse by the Applicant.
There is before the Tribunal a Case Note Report prepared by Michaela Clarke of DCS who recorded, on 4 April 2022, that the Applicant minimised his offence behaviour and stated that he believed smacking his children was appropriate discipline, it is reported that the Applicant only pleaded guilty to ‘move the court process along’ and he believed that this was appropriate punishment. The Applicant told the Tribunal he had no recollection of these statements.
In his declaration sworn on 25 September 2025 the Applicant states, in relation to ‘smacking his daughter’ that he ‘did not mean for it to happen’ and that he feels bad about it. The Applicant states that he knows it was wrong and will not do it again and feels remorseful. The Applicant refers to his drinking problem and states that he wants to get treatment with the support of his partner. The Applicant states that he wants to be reunited with his partner and get help in the community and from the pastor. In oral evidence the Applicant stated that he recognises that what he did was wrong and he refers to the stress he was under at the time. The Applicant told the Tribunal that he was not affected by alcohol at the time.
In oral evidence GS stated that this was a one-off offence and the Applicant had never been violent previously. GS provided a declaration sworn on 24 September 2025 in which she outlined the circumstances of these incidents (in a later statement GS claims that her earlier recollection of events was inaccurate due to a lapse in memory). There is before the Tribunal a copy of the ADVO issued in August 2024 for two years, for the protection of the Applicant’s spouse, and a copy of an application made by GS in September 2024 to vary the AVO. GS stated in that application that since the incident and having read the matter, she realised she had made a false statement. She states that she does not live in fear/is not fearful of her husband and she had punched him first. The Applicant had sworn a declaration on 30 September 2024 that until the AVO is revoked, he would be living with his aunt but once the AVO is revoked, he will return to the family home to live with his children. The Applicant and GS told the Tribunal that there was no change to the AVO conditions and the applicant cannot live with his partner until August 2026.
The Applicant also concedes in his declaration and oral evidence that he had been living in Australia unlawfully for a long period of time and had not taken steps to regularise his status because of financial constraints. The applicant told the Tribunal that he is now ready to lodge a Partner visa application.
The Applicant provided in his submission to the delegate evidence indicating that he has completed a number of courses, including anger management courses, fundamentals of domestic violence abuse, positive parenting, drug and alcohol and community development. There is before the Tribunal evidence that the Applicant had completed a Behaviour Management 101 course in October 2025.
In his submission of 25 September 2025 the Applicant expressed remorse and stated that his second offence occurred in the context of alcohol addiction. (In the submission dated 9 October 2025 the Applicant claims he does not suffer from alcohol addiction but his offending occurred due to intoxication although he later said the incident was not due to the intake of alcohol.) The Applicant submits that he has displayed good character since his arrival in Australia in February 2014 and before the first offending which was at the lower end of the spectrum. (The Tribunal does not consider that a lengthy period of unlawful residence in Australia and employment as an unlawful non-citizen can be considered as a display of good character in the broader sense of character assessment that is not limited to criminal offending.) The Applicant submits that completion of rehabilitation programs and his remorse supports the position that he poses a low risk to the community and he states that he has been assessed as being at medium / low risk of reoffending in the sentencing assessments.
The Tribunal has been provided with the sentencing assessment report dated 29 March 2022 prepared by Naomi Longden. It is reported that the Applicant verbalised regret for his offences but appeared to justify his actions which were conducted ‘within his home’ and, in relation to the 2021 offending, the Applicant stated that his actions were not disproportionate. It is stated that the offences indicate a propensity to anger quickly against family members, to which the Applicant agreed. It is stated that the Applicant had demonstrated minimal insight into the impact of his offending on victims. He has indicated a willingness to undertake intervention. It is reported that the Applicant has been assessed at the medium – low risk of reoffending.
The Tribunal has also been provided with the Sentencing Assessment report prepared in October 2024 by Miduren Narendiran. It is stated that the Applicant demonstrated some insight into the impact of his offending and has expressed willingness to undertake further intervention. The report indicates that the Applicant has been assessed at medium – low risk of reoffending.
The Applicant submits in his written submission to the Tribunal that when influenced by alcohol, he has difficulty managing his anger and he admits that the anger issue is exacerbated by intoxication. The Applicant refers to the rehabilitation courses and his ongoing work with the pastor, noting the difficulty in accessing counselling while in detention. He states that upon release from detention he will engage with social worker from Claymore Missions (in oral evidence the Applicant appeared to have had very limited understanding of how he will engage with a social worker upon release from detention) and his pastor to maintain ongoing rehabilitation. It is submitted that the Applicant has taken responsibility and understands how his behaviour had impacted his wife and daughter. The Applicant submits that his offending was at the lower end of the family violence spectrum and refers to the principles of proportionality set out in Li.[3]
[3] MIAC v Li [2012] HCA 61.
In oral evidence the Applicant expressed remorse for his past offending. When asked how he would avoid similar conduct in the future, the Applicant stated he would seek support from the pastor, social worker and the community. The Tribunal found the Applicant’s evidence somewhat vague, as was his evidence about what he has learned from the courses he completed. While the applicant claims he will get help if released from detention, the Tribunal is not convinced that the Applicant has the wherewithal to effectively engage with such supports. The Applicant told the Tribunal that he was in the past anxious about financial hardship and family responsibilities. However, the same hardships are likely to continue to exist in the future and the Tribunal is not satisfied the Applicant has acquired the skills to better deal with, and respond to, these.
In oral evidence the Applicant told the Tribunal that he does not have a problem with alcohol and that he used to take cannabis before but not since his detention. In his declaration of 10 October 2024 the Applicant stated that the incident happened because of his drinking ad that he wanted to receive treatment. The Applicant seems inconsistent about whether he has issues with alcohol and, more problematically, he appears to have no insight into the issue presently when he claims he is not a drinker and does not have an issue with alcohol and that his offending was not caused by alcohol.
The Respondent submits that the Applicant does not past the character test. The Respondent notes that
(a)The Applicant has committed family violence offending and is the subject of an AVO which is in place until August 2026.
(b)The Applicant had spent a number of years in the community as an unlawful non-citizen, indicating his disregard for the law.
(c)There is limited evidence as to the Applicant’s rehabilitation and genuineness of remorse. He has undertaken limited rehabilitative steps, has not demonstrated any gains from these, there is no evidence of ongoing rehabilitation and treatment and he continues to minimise his conduct and offending.
(d)The imposition of a custodial sentence by the court is indicative of the seriousness of the conviction and the risk of harm.
The Respondent submits that the risk cannot be described as minimal or remote and even if the risk if a low risk, that is sufficient to engage the character provision in s. 501(6)(d)(i).
The Tribunal has considered whether there is a risk that the Applicant would engage in criminal conduct in Australia if he would be allowed to remain in Australia. The Tribunal notes the following. The Applicant’s committed multiple offences and these took place about two years apart, when the applicant had the opportunity to seek help but failed to achieve rehabilitation. The earlier sentencing assessment report indicates that, at least at the time it was prepared, the Applicant lacked insight into the impact of his offending and appeared to justify his offending. The fact that he committed further family violence offending in 2024 supports the findings that the Applicant lacked insight into his conduct or that he lacked capacity to avoid it.

The Tribunal acknowledges that the Applicant has completed some rehabilitation courses and has expressed a willingness to undertake further rehabilitation upon release, although he told the Tribunal he does not believe he needs to engage in any treatment but intends to be involved in the church. The Tribunal is mindful that some of these courses were very short (one of these is identified as a one-day course). As noted above, the Applicant’s evidence about his takings from these courses was extremely vague and the Tribunal is not convinced that the Applicant had acquired effective coping mechanisms or skills from the completion of these courses. The Tribunal has formed the view that the rehabilitation completed so far has not been significant and the Tribunal is not satisfied these courses have been effective in helping the applicant achieve insight and rehabilitation.
The Tribunal acknowledges the Applicant’s expressed willingness to engage in further rehabilitation upon release from immigration detention, and the limited opportunity to do so during his detention, however, there is no certainty that the Applicant will undertake effective rehabilitation. Again, the Applicant’s evidence concerning his post-release supports was quite vague and the Tribunal is not convinced the Applicant has a real understanding of what would be required to get the supports that he claims he intends to get (although the Tribunal acknowledges that GS has undertaken to support the applicant).
The Tribunal places some weight on the Applicant’s residence in Australia as an unlawful non-citizen for about ten years and, on his own evidence, employment as an unlawful non-citizen. These factors suggest his general disregard for the Australian laws.
Overall, the Tribunal has formed the view that there remains a risk that the Applicant will reoffend and that risk is not minimal, trivial or remote. In the Tribunal’s view, it is above a low risk. That is consistent with the two risk assessments undertaken as part of the sentencing assessments which both identify the risk of reoffending as medium – low.
The Tribunal finds that there is a risk that the Applicant would engage in criminal conduct if he remains in Australia. The Tribunal finds that the Applicant does not pass the character test as set out in paragraph 501(6)(d).
Consideration of discretion
The Applicant submits that he should be granted the Bridging E visa to be released from detention and to be able to apply for the Partner visa onshore and that the assessment of his character should appropriately take place as part of his application for the Partner visa. The Applicant submits that he has shown insight into his offending and has engaged in rehabilitation and that he has put in place supports that he can access upon release from detention. The Applicant refers to the best interests of each of his children and the hardship that his partner and children will experience if separated from him.
The Respondent points to the minimal evidence of rehabilitation and the ongoing risk of reoffending. The Respondent submits that the offending – being violent offending against a woman and child – had been serious and constituted family violence. The Respondent refers to the Applicant’s residence in Australia as an unlawful non-citizen showing disregard for the law, noting that the Applicant has spent the majority of his stay in Australia either unlawfully or in detention. The Respondent submits that those considerations that are in favour of the Applicant, such as the best interests of the children, should be afforded minimal weight in circumstances where one of the victims was his minor child. The Respondent submits that the protection of the community and the expectations of the community outweigh other considerations.
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… 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.
The nature and seriousness of the Applicant’s conduct to date
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
In considering the nature and seriousness of the Applicant’s conduct to date, the Tribunal has had regard to the circumstances of his offending as summarised above. The Applicant’s offending was in relation to his partner and small child and the Tribunal considers such offending to be extremely serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that 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 of the 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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;
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 non-citizen 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
The nature of harm, should the Applicant reoffend
The Applicant had committed family violence offending. The offence against his partner was committed in the presence of the children. The earlier offending was in relation the minor child. The Tribunal considers the offending in relation to a child, and violent offending in relation to women to be serious. The Tribunal finds that the harm that may be caused to others, should the Applicant commit similar offences, could be significant, including serious physical and psychological injury to the victims.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has considered information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the Applicant. The relevant evidence has been broadly summarised above. For the reasons set out above, the Tribunal is not satisfied the Applicant has undertaken effective rehabilitation or that, as a result of his rehabilitative efforts, he had acquired the skills and the capability to avoid similar offending in the future. This is primarily because the Applicant has been unable to articulate any meaningful learning he acquired as a result of course completion or his engagement with supports and his evidence does not suggest the courses had been particularly effective.
The Tribunal has formed the view that there remains a risk of reoffending and that risk is above the low risk.
The Tribunal finds that the protection of the Australian community weighs heavily in favour of exercising discretion to refuse to grant the visa.
Whether the conduct engaged in constituted family violence
Paragraph 8.2(3) of the Direction provides:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of family violent offending in relation to the two incidents. The Tribunal has considered the circumstances of the offending and has found these to be serious, given that the first offence was in relation to a small child and the second offence against his partner was in the presence of the children.
The Tribunal considers the family violence offending to have been serious and gives this significant weight in favour of exercising the discretion to refuse.
The strength, nature, and duration of ties to Australia
Paragraph 8.3.1 of the Direction provides:
Decision-makers must consider any impact of the decision on the non-citizen’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.
Subparagraph (2) directs the decision-maker to consider the strength, nature and duration of any ties that the non-citizen has to the Australian community and to have regard to the length of the person’s residence in Australia and the strength, duration and nature of any family or social links with Australian citizens or permanent residents.
In his submission to the Tribunal of 25 September 2025 the Applicant notes that he has been residing in Australia since February 2014 and has established strong family and other connections in this country. The Applicant states that his entire immediate family, partner and children, as well as his extended family are Australian citizens. The applicant calms that his family, church and community regard him as a valued member and have pledged support for him.
GS has provided a statement in which she outlined her relationship with the Applicant and the impact of separation on the children. The Tribunal has been provided with medical records relating to GS. GS refers to her reliance on the Applicant. There are several character references provided with the Applicant’s submission to the delegate and the Tribunal accepts that those who provided statements believe the Applicant to be of good character. In her declaration of 24 September 2025 GS also referred to her reliance on the Applicant and the need to seek other sources of support since the Applicant’s detention.
The Tribunal accepts that GS relied on the Applicant for financial, physical and practical support prior to his detention. The Tribunal accepts that GS, as well as the children, would experience significant hardship if the Applicant is removed from Australia. The Applicant and GS both told the Tribunal that the family would not be able to visit him in Tonga due to financial constraints.
The Tribunal accepts there would be significant impact on family members if the Applicant’s visa is not granted. The Tribunal gives this consideration significant weight against using discretion to refuse to grant the visa.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.5(4) sets out the factors that must be considered when considering the best interests of the child. These include
(a)The nature and duration of the relationship between the child and the non-citizen
(b)The extent to which the non-citizen is likely to play a positive parental role in the future
(c)The impact of the non-citizen’s prior conduct, and likely to future conduct
(d)The likely effect that any separation from the non-citizen would have on the child
(e)Whether any other person already fulfils a parental role
(f)Any known views of the child
(g)Evidence that the child has been, or is at risk of being subject to or exposed to family violence
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
The Applicant has four minor children. In his declaration of 10 October 2025 the Applicant states that he was always there for his children and had participated in their sporting and other activities. He states he took care of the children when they were sick. The Applicant states that his wife gets anxious and scared when the children are sick and he takes care of them. The Applicant states that his wife finds it difficult to take care of the children in his absence and the children miss him while he has been in detention. In his declaration of 25 September 2025 the Applicant also states that if he is removed to Tonga, it would be a struggle for his wife to bring his kids.
In his submission of 25 September 2025 the Applicant states that his children rely on him for emotional, physical and mental assistance and he states that his children played a crucial part in motivating him to change his life. The Applicant states that if he remains offshore, there will be profound but unintended consequences. The Applicant refers to studies on the effects of separation on children.
There are before the Tribunal statements from GS who refers to her reliance on the Applicant in raising the children and the effect of their separation from their father and she also gave oral evidence about her reliance on the Applicant and the hardship she has experienced in raising the family without the Applicant’s support. The Tribunal has had regard to several character statements from family and community members, including a church Minister and a leader of Young Adults Ministry at the church, who refer to a close supportive relationship between the Applicant and his children.
The Tribunal has been provided with the children’s school attendance records indicating frequent unjustified absences. GS’s evidence is that the children’s schooling has suffered due to their separation from their father. The Tribunal has been provided with a number of older and more recent family photographs depicting the Applicant with the children, school records and other materials.
The Applicant told the Tribunal that even though he cannot live with his partner until the AVO expires in August 2026, he can still take care of the children and support his wife.
The Tribunal accepts that the applicant has played a parental role in relation to each of the four children and there is no other person who plays the paternal role. The Tribunal accepts that if the applicant is released from detention and remains in Australia, he will continue to play a parental role in relation to these children. The Tribunal is mindful that the earlier offending was in relation to the child and while the applicant claims he has appreciated his wrong-doing, contemporaneous evidence summarised above suggests that the applicant believed what he did was ‘appropriate punishment’ and within his parental rights. The Tribunal has formed the view that there remains a risk that the children – who had witnessed the 2024 offending – could be exposed to family violence.
The Tribunal accepts that the children had been adversely affected by the separation and that the applicant’s removal from Australia is likely to lead to further, and likely prolonged separation. The Tribunal accepts that it is in the best interests of each of these children to remain with the Applicant, provided the applicant does not commit any further family violence offences.
The Tribunal finds that this consideration weighs heavily against the exercise of discretion to refuse to grant the visa.
Expectations of the Australian community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[4] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[5]
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[5] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail,[6] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
[6] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52].

The Applicant submits that while the community expects the non-citizens to uphold the law, it also values rehabilitation family unity and second chances. The Applicant refers to his rehabilitation and supports from the community and the need to maintain the family unit. In the Tribunal’s view, such submissions seek to substitute personal values in lieu of what the policy and case law state the community expectations are.
The Applicant submits that the offending occurred in the context of his family relationship and was not directed to the community at large. He submits that the offending was ‘situational’ and linked to personal and other stressors and alcohol dependency rather than evidence of propensity to harm the public. It is difficult to see how the fact that offending was towards family members – including a small child - makes the offending any less serious or less problematic because it was not directed to broader community. The Tribunal does not accept the Applicant’s claim that the offending should be given less weight because it was confined to private circumstances and is not an indication of risk to the broader community. In the Tribunal’s view, even if the risk was limited to family members, the risk is still real and weighs heavily against the Applicant.
The Applicant has committed multiple family violence offences. One of the offences involved violent conduct towards his young child. Given the nature of the Applicant’s offending and the potential harm to others caused by any repeat of such conduct, the Tribunal is of the view that the community expectations weigh in favour of exercising the discretion to refuse the grant of the visa.
Other Considerations
Legal consequence of the decision
The Applicant is not the subject of the protection finding. He has not put forward any claims that are capable of giving rise to Australia’s non-refoulement obligations.
If the application for the Bridging visa is refused, the Applicant will effectively be precluded from seeking other visas in Australia in the future and would have to apply for a Partner visa offshore. The Applicant would also remain in detention and would be subject to removal from Australia as an unlawful non-citizen.
The Applicant’s evidence to the Tribunal is that he is ready to make an application for the Partner visa and that it could cause hardship to the family if he was removed from Australia and separated from his children.
The Tribunal acknowledges that a significant legal consequence of the decision would be the applicant’s inability to seek another visa onshore and his removal (or voluntary departure) from Australia. The Tribunal finds that this consideration weighs somewhat in favour of the visa grant.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
c) any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 34 years of age. There is no evidence to suggest that the Applicant experiences any significant health issues. The Applicant has lived in Tonga as a child and young adult before moving to Australia and there would not be language or cultural barriers if he was to return to Tonga. The Applicant would be eligible to receive social, medical and/or economic support that is generally available to citizens in his country.
In his declaration of 25 September 2025 the Applicant states that he has no home in Tonga. He has one brother but they do not speak and his mother, who raised him as a single parent, had died. The Applicant states that his children will have nowhere to stay if they come to visit. In oral evidence the Applicant also confirmed that he has no family support in Tonga and that his extended family live in Australia.
In his written submission to the Tribunal the Applicant states that he would face significant and compelling impediment if removed as he has no meaningful family support, he has no income and no employment prospects. The Tribunal is mindful that these claims are unsupported by probative evidence and are problematic in the circumstances where the Applicant does not have a substantive visa to remain in Australia.
Nevertheless, the Tribunal acknowledges that the Applicant has been living in Australia for about ten years and that he may no longer have strong ties to Tonga. The Tribunal accepts that it may take time for him to find suitable employment, accommodation and otherwise become re-settled in Tonga, although the Tribunal is not satisfied that these issues would persist in the longer term. The Tribunal gives this consideration limited weight in favour of the Applicant.
Impact on Australian business interests
There is no evidence before the Tribunal to indicate that a decision to refuse to grant the visa to the Applicant would adversely impact Australian business interest or significantly compromise the delivery of a major project or of an important service. This consideration is neutral.
CONCLUSION
The Tribunal has determined that the Applicant does not pass the character test, because there is a risk that he would engage in criminal conduct if permitted to stay in Australia, and that the discretion to refuse to grant the visa is enlivened.
The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances.
In considering the Applicant’s circumstances, the Tribunal has determined that the Applicant has committed serious offending, being violent offending against a woman and a child in the context of family violence offending. The Tribunal has determined that there may be a serious harm to others if the Applicant was to reoffend and the Tribunal is not satisfied the Applicant’s rehabilitation has been effective. The Tribunal has decided to place significant weight on the protection of the community which weighs in favour of exercising the discretion to refuse.
The Tribunal also determines that the expectation of the community weighs against the Applicant and gives it considerable weight, in light of the nature and seriousness of the offending. The Tribunal further finds that the fact that the Applicant had committed family violence offending of serious nature – including an offence against a small child – weighs strongly in favour of exercising discretion to refuse to grant the visa.
The Tribunal gives limited weight in favour of the Applicant to the legal consequences of the decision and the detriment of removal because these would result in the Applicant being separated from his family in Australia and because the Applicant may experience, at least initially, some hardship in re-establishing his life in Tonga. There is no impact on the Australian business interests.
The Tribunal finds that the best interests of each of the four children weigh against the exercise of discretion. This is because the Tribunal accepts the evidence that the Applicant plays a positive parental role in relation to these children, that his partner has experienced hardship in raising the children in his absence and that if the Applicant was to leave Australia, it will likely to lead to the Applicant being separated from his children. This consideration weighs very heavily against the exercise of discretion to refuse.
The Tribunal also places weight on the strength, nature and duration of ties and, in particular, the impact of the decision to refuse on the Applicant’s spouse and children. The Tribunal accepts the evidence that GS has been reliant on the Applicant in many respects, including emotionally, practically, financially and that she has experienced hardship when that support has been removed. The Tribunal accepts that there will be a strong detrimental impact on GS if the Applicant was to leave Australia. The Tribunal also acknowledges the evidence that the children had been impacted by their separation from their father. The impact of the refusal on these family members weighs strongly against the exercise of discretion to refuse.
The Tribunal is mindful that exercising discretion in favour of the Applicant will not enable the Applicant to remain in Australia long-term (noting that the visa in question is a Bridging visa) but it will merely enable the Applicant to make an application for a Partner visa onshore, as he has indicated is his intention. There will be a further assessment of the Applicant’s character as part of that process that will enable the Applicant to demonstrate his rehabilitation.
In the circumstances of this case, the Tribunal has decided to give the greatest weight to the best interests of the four minor children, and the strength, nature and duration of the Applicant’s ties in Australia. Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should not be exercised.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that discretion should not be exercised to refuse to grant the visa to the Applicant

Date(s) of hearing: 16 October 2025

Solicitors for the Applicant: L. Konara, Immigration Solutions

Solicitors for the Respondent: S. Frankel, AGS

Date(s) of hearing:	16 October 2025
Solicitors for the Applicant:	L. Konara, Immigration Solutions
Solicitors for the Respondent:	S. Frankel, AGS