BTCX and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1728

BTCX and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1728 (25 August 2025)
Applicant:BTCX
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3846

Tribunal:Senior Member N Manetta
Place:Adelaide
Date of decision: 25 August 2025
Date of written reasons: 8 September 2025

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

The Tribunal will provide the parties with a statement of its reasons for this decision within a reasonable time hereof.
..............[SGND]..............

Senior Member N Manetta

Catchwords
MIGRATION – Migration Act 1958 (Cth) – mandatory cancellation of visa – applicant fails character test - whether ‘another reason’ to revoke mandatory cancellation – applicant guilty of multiple offences including robbery with violence – applicant from Burundi – applicant still at risk of offending – applicant has never lived in Burundi and has limited Kirindi language skills – applicant making contribution to son’s life – serious impediments on removal – decision set aside
Legislation
Migration Act, 1958 (Cth)
Cases
AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205; (2019) 168 ALD 331
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Secondary Materials
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 (7 June 2024)
Statement of Reasons

On 25 August 2025, I delivered my decision in this matter and indicated that reasons would be provided within a reasonable time. I now publish those reasons.
This is an application by BTCX (‘the applicant’) seeking a review of a decision of the respondent’s delegate dated 30 May 2025. By this decision, the delegate determined not to revoke the cancellation of the applicant’s visa. The cancellation had taken place earlier, and mandatorily so, under s 501(3A) of the Migration Act, 1958 (Cth) (‘the Act’) following the applicant’s imprisonment in respect of a serious offence involving personal violence. He was sentenced to a term of imprisonment of three years, part of which he was required to serve on a full-time basis in jail. In these circumstances, his visa was required to be cancelled under the Act.
The applicant made a timely application for internal review. The internal-review delegate had two questions to address under s 501CA(4)(b).[1] The first question was whether the applicant passed the so-called ‘character test’ as defined under s 501. It is agreed between the parties, and clear in any event, that the applicant could not pass the test on account of his three-year jail sentence.[2] The delegate’s conclusion in this regard was correct. The second question ‒ which arose only if the answer to the first question was ‘no’ ‒ was whether there was ‘another’ reason (i.e, a reason other than the applicant passing the character test) for the cancellation to be revoked.
[1] The delegate’s reasons were before me at Hearing Book (‘HB’), 43ff.
[2] See s 501(6)(a) and (7)(c) of the Act..
In addressing this second question, the delegate was obliged to apply any direction issued under s 499 of the Act. The delegate applied Direction no. 110 (‘the Direction’).[3] Having weighed the various considerations required to be addressed under the Direction, the delegate concluded that on balance they did not favour revocation of the cancellation decision; and, accordingly, the delegate concluded that the statutory power to do so was not enlivened. The delegate formally declined to take action to revoke the cancellation.
[3] 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 (7 June 2024).
Like the delegate, I must address the same two questions. I have already indicated that the delegate answered the first question correctly.
TRIBUNAL’S TASK[4]
[4] This paragraph is one I routinely insert in my decisions in this area.
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not review the delegate’s decision for error as such, but reaches the correct or preferable decision on the evidence adduced before it.[5] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence adduced; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[5] See, for example, Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33. This decision concerned the Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal’s exercise of jurisdiction.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked. At the hearing before me, Mr Rasheed appeared for the applicant; Ms Tattersall, for the respondent. I am grateful to them both for their assistance. I set out below the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The applicant is a citizen of Burundi, who was born on 25 May 1998 in a refugee camp in neighbouring Tanzania. He arrived in Australia on a humanitarian visa, aged seven, with his mother, father and four siblings. He has lived in Australia, therefore, for approximately 19 years. He completed both his primary and secondary schooling in Australia. He began primary school in 2006 and proceeded to Year 12 although he did not graduate, he said.[6] His memories of life in Africa involve life in the Tanzanian refugee camp, which he found hard. He said in his evidence, and I accept, that his extended family members are either here or have emigrated to America.
[6] The report at HB, 500 suggests he left during the year.
The applicant has clearly had a troubled history in Australia. His parents separated soon after arriving in Australia, it would appear, and the applicant left the family home in either 2012 or 2013 to find his father. One expert report before me refers to the father having ‘abandoned’ the family not long after their arrival in Australia.[7] The applicant did not find his father straightaway, he said. He began couch-surfing and sometimes he was homeless. This lasted for about a year. He continued to attend school, but left during Year 12. Clearly enough, the initial departure from the family home and his decision not to return there despite being homeless indicate a deal of discord between the applicant and his mother. There was clearly some degree of conflict between them.[8] The applicant reported to one expert, Dr Watts, that his mother had ‘thrown him out’ when he was 15.[9]
[7] HB, 499-500 [13.2].
[8] Cf HB, 500 [13.2]: ‘feels ill-treated by his mother’.
[9] HB, 225 [15].
The applicant’s criminal record was before me.[10] The respondent submitted that I should have no regard to the charges and convictions that appear in the date range from 17 September 2013 to 18 October 2017.[11] These were all matters where the applicant was not convicted. Ms Tattersall did, however, submit that I could have regard to the underlying conduct.[12] I have been prepared to do so on this occasion, because doing so has not altered the decision I would have otherwise reached in the applicant’s favour; but I point out that it is problematic, in my view, for the respondent to ask me to infer from a criminal record of charges and convictions the existence of underlying conduct when the respondent also says I am by law prevented from considering the charges and convictions. I did not hear full argument on the matter, and I am content on this occasion to proceed in the way Ms Tattersall submitted I ought to proceed. I further note that in respect of some of the offending, some ‘no conviction’ orders made in 2016 were reversed in 2018 when there was further offending. I shall come to this in due course. I have taken account of the revised sentences in my decision.
[10] HB, 59ff.
[11] Ex R1, 4 [11] – [12].
[12] Ex R1, 4 [13].
I agree with the respondent’s submission that this early conduct indicated the commencement of antisocial tendencies. It coincides with a very disrupted part of the applicant’s life. He had left home, lacked a stable environment and was still young.
There is much offending in the record, and the respondent referred me to the various extracts from police files where the offending is referred to.[13] All the offending displays antisocial tendencies, or defiance of legal obligations, or both. So, there is clearly a continuum, so to speak, of discreditable and concerning conduct. For the purposes of my review, it is of most importance to deal specifically with the principal offending in 2018 and 2021.
[13] Ex R1, 2 - 4 [10].
Turning to that principal offending, I note that in 2018, the applicant appeared before the Beenleigh District Court in Queensland. He was sentenced on that day in respect of certain highly antisocial conduct. I had the sentencing remarks before me, and I accept and rely upon them.[14] The applicant pleaded guilty to one count of common assault, one count of stealing, one count of assault with intent to steal, one count of robbery with personal violence, and one count of the unlawful use of a motor vehicle. At the time, the applicant was 19 years of age. He was in the company of two other offenders.
[14] HB, 70.
The Court set out the facts and described them as ‘really quite bad and distressing’.[15] The applicant, in company, was drunk and loitering outside a FoodWorks store.[16] One of the applicant’s co-offenders began to abuse a security officer and attempted to burn the officer’s arm with a cigarette. The applicant said that he wanted to ‘smash’ him and threw a punch which was deflected. The applicant then grabbed the security officer by the wrist and tried to drag him out of the store.
[15] HB, 71.
[16] Ibid.
In the meantime, two people had driven up to the store hoping to use the automatic teller machine. They parked close to the entrance. They heard the incident involving the security officer and one of them was about to use the machine when the applicant asked him for a cigarette. He indicated he did not smoke but did show him what is recorded as an ‘electronic cigarette machine’, which the applicant removed from him. The applicant said, ‘What are you gonna do about it?’ as he walked off.
The applicant also put his hand around another the other customer’s throat and demanded twenty dollars from him. A struggle eventually ensued between the two customers and the applicant and his co-offenders. This involved the applicant seizing a phone and pushing one of the victim’s head into the ground demanding that he give him its PIN. That person was flung into a car where he struck his head and shoulders. There were further struggles described in the sentencing remarks including the applicant digging his fingers into one victim’s neck. All three offenders drove away in the customers’ vehicle, and damaged another person’s car while doing so. A sum of $280 was stolen from a wallet in the car.
The Court described the offending as ‘serious offending of just thuggish violence against innocent members of the public’.[17] The injuries suffered by the victims were described in the sentencing remarks. I shall not set them out here but they were significant.
[17] HB, 72.
The Court had referred to the fact that the applicant had appeared before the same Court (in fact before the same judge) in 2016 with one count of burglary with violence whilst armed in company, one count of armed robbery in company with personal violence, and an additional charge of armed robbery in company with personal violence.[18] The Court refers to the fact that the applicant was given the benefit of ‘no conviction recorded’ because he was dealt with as a juvenile but he was placed on probation for two years and also ordered to perform community service for 200 hours.[19] These orders were breached by the offending, and it was noted that the community service obligation had not been honoured in any event.[20]
[18] HB, 71.
[19] Ibid.
[20] Ibid.
The Court referred to the fact that the applicant ‘had been given a real chance’ in 2016.[21] The Court pointed out to the applicant that many people ‘would love the opportunity’ to be received into Australia.
[21] HB, 73.
The Court referred to the fact that there was an early plea of guilty.[22] In the event, the Court imposed a head sentence of three years. A twelve-month non-parole period was said to be appropriate; but as the applicant had already served ten months as at the date of sentencing, the Court decided to release the applicant on parole that same day.
[22] HB, 73.
The Court referred to the need for the applicant to stop drinking. I have earlier pointed out, the applicant was drunk and loitering at the FoodWorks store. The Court also proceeded to re-sentence the applicant for the earlier offences. I need not set those resentencing matters out.[23]
[23] The Court’s remarks are to be found at HB, 74.
The applicant was therefore released on Friday, 23 November 2018.
The applicant did manage to stay out of trouble, it would appear, on release just over a year. However, in February 2020 he was charged before the Southport Magistrates Court and was found guilty of being in unlawful possession of suspected stolen property. Later that year he appeared before the Brisbane Magistrates Court and was charged with failing to appear in accordance with an undertaking and possessing tainted property. On this occasion a conviction was recorded, and a probationary order of 12 months was made. In November 2020, the applicant appeared before the Beenleigh Magistrates Court where he was convicted of contravening a direction or requirement to attend a drug diversion course, but no further punishment was imposed.
There is a troubling conviction on 23 March 2021 involving the possession of utensils or pipes that had been used and possessing dangerous drugs. The drug in question would appear to be cannabis.[24] On 24 March 2021, in the early hours of the morning, the applicant committed a serious offence of violence to which I shall refer shortly. He then repeatedly appeared in the Beenleigh Magistrates Court on charges of failing to appear in accordance with an undertaking or breaching bail conditions and that extended to 30 August 2023. On 30 August 2023, he was also convicted and sentenced in respect of possessing dangerous drugs. There was a further conviction in October 2023 before the Brisbane Magistrates Court for breach of bail.
[24] HB, 369.
I now turn to the offending that had taken place on 24 March 2021 to which I earlier referred. It was dealt with by the Southport District Court only in December 2023. The sentencing remarks were before me, and again I accept and rely upon them.[25]
[25] HB, 64ff.
The Court described the facts as follows. The applicant and three other friends were invited back to a home unit for a swim on 23 March 2021. Sometime after 2.00 am on the following morning (24 March 2021), the applicant jumped the fence and entered the pool area. A fire alarm was triggered and he and others were told to leave. The victim had seen the applicant jumping the pool fence from the building and had walked over to the applicant to ask him how he was. the applicant did not respond. The victim began videoing the applicant with his phone. The applicant demanded the phone. A fight ensued and the applicant struck the victim. The applicant inflicted that violence in order to obtain the phone. The victim was thrown to the ground, and the phone was taken either by the applicant or by one of the group. The victim suffered injuries. There was a ‘profound negative effect’ on the victim in terms of his stress levels and overall confidence.[26]
[26] HB, 65.
It is noteworthy that the applicant had been intoxicated. He was 22 at the time of the offending. A psychological report was tendered,[27] which indicated that the applicant had substance-use and adjustment disorders with features of depression and anxiety. The applicant was said to be in remission from a methylamphetamine dependency.[28] The Court refers to a psychometric risk assessment showing that the applicant was currently a medium risk for further similar offending.[29] He was judged to be at a greater risk of offending when substances were misused.[30] The Court did note that the offending was serious but that it also had to be seen in context. It was not a planned robbery. The court held that the victim was videoing the victim and a robbery ended up occurring.[31] The Court did say that the applicant was taking real steps to turn his life around and that he did have prospects of rehabilitation.[32] A head sentence of three years was imposed and an order was made that the applicant be released on parole six months later (namely, on 8 June 2024).
[27] That of Dr Palk, which appears at HB, 488ff.
[28] HB, 67.
[29] Ibid.
[30] Ibid.
[31] HB, 68.
[32] Ibid.
On 19 February 2024, the applicant’s visa was mandatorily cancelled under the Act as required by s 501(3A).
So far as his personal circumstances are concerned, I note that the applicant is the father of a six-year-old boy in Australia.[33] The relationship with the mother has ended although she has written a letter of support in support of him.[34]
REASONS
[33] I understand that there is another minor child who lives overseas.
[34] HB, 141.
The Direction
With this background in mind, I now turn to the Direction. I usually set out a number of standard paragraphs explaining general aspects of the Direction, and I do so again in the next four paragraphs.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.

Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Paragraph 8.1(1) provides that when considering the protection of the Australian community, decision-makers should keep in mind that the community’s safety is the highest priority of the Australian Government. The Government is recorded as being committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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. I bear this principle in mind. It has an obvious application in the case of violent crime.
Decision-makers should also give consideration to the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.1(1) provides that in considering the nature and seriousness of the non-citizen’s criminal conduct to date, I should have regard to a range of matters specified in paragraphs (a) to (i).
The applicant has been guilty of a number of violent crimes and these are required to be regarded very seriously.[35] The applicant has been involved in one minor incident of family violence and this too is required to be taken very seriously, but I shall deal with that more fully when I consider paragraph 8.2 of the Direction. There has been violence towards police and this must be viewed as serious.
[35] Paragraph 8.1.1(1)(a)(i).
There have also been offences of being over-the-limit whilst driving, which is antisocial, amongst repeated traffic offences.[36]
[36] Set out at Ex R1, 6 [20].
The sentences most recently imposed have been serious including the last one of three years.[37]
[37] Cf paragraph 8.1.1(1)(c) of the Direction.
I have already referred to the remarks of the sentencing Court concerning the effect on the victim of the most recent assault. The effect included a very serious psychological impact limiting the victim’s future confidence and engagement in the community.[38] The frequency of the offending is very considerable, and it has worsened over the years. The offending has included multiple breaches of bail and community orders. So the offending has persisted despite some leniency being extended to the applicant.[39] It has now included very serious acts of violence and there have been repeated breaches of bail as I have said, which can only suggest defiance.
[38] Paragraph 8.1.1(d).
[39] Paragraph 8.1.1(e).
All in all, I accept the respondent’s submission that the applicant’s behaviour should be viewed overall as very serious. I accept the submission that, overall, the applicant’s offences demonstrate a sustained pattern of unlawful behaviour and a clear disregard for community safety and the rule of law.
I must have regard to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. Paragraph 8.1.2(1) provides that in considering the need to protect 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 series 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. I bear this principle in mind.
Subparagraph (2) requires me, when I assess the risk that may be posed by the non-citizen to the Australian community, to have regard to, ‘cumulatively’, the nature of the harm should the non-citizen engage in further criminal or other serious conduct, and, secondly, the likelihood of his so doing taking into account information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of the decision.
The respondent has submitted, and I accept, that there are physical psychological and financial consequences to victims of offending behaviour of the type in which the applicant has engaged. I am concerned that the applicant has engaged in quite wanton violence and that the effect of such violence can be unpredictable depending on the circumstances. Punching people, hurling them to the ground, or threatening them are all examples of violent behaviour that can easily lead to extremely serious injury, whether intended or not. Violence of the type in which the applicant engaged is often, and was in this case, the product of elevated mood and intoxication. The violence can easily escalate and the outcome is often unpredictable. So, I do accept that the violence in which the applicant has engaged raises very serious concerns. I do not diminish either the loss of property. People are entitled to the enjoyment of their possessions, and it is a serious matter to deprive a person of his or her property. In this case, the applicant has been involved in demanding phones with menaces, taking a car and damaging it while in flight, and stealing. All of this is serious offending. His use of drugs, particularly when driving a car, is clearly antisocial.
I must take into account as well the risk of the applicant reoffending as at the time of my decision. I regard that risk as real. I received a very helpful report from Dr Watts.[40] I regard that report as fundamentally reliable. I accept the conclusion that the applicant's profile showed an alcohol use disorder, some traumatic experiences, antisocial behaviours, and aggressive attitude and physical aggression. There was no evidence of any major mental illness however.[41]
[40] HB, 223ff.
[41] HB, 227 [23].
I agree with Dr Watts that the likely cause of his pattern of offending is related to an unstable personality structure stemming from emotional issues particularly related to the separation of his parents and the disappearance and absence of his father.[42] Dr Watts concluded that his childhood experiences of conflict in the home were likely to have increased the applicant’s propensity to offend in a similar way.[43]
[42] HB, 227 [25].
[43] Ibid.
I agree with Dr Watts’ conclusion that if the applicant is able to cease drinking, stay engaged with a conservative church (as he has indicated he would do), and continue to spend time with his son, his risk of reoffending ‘would be markedly lower’.[44] However, the typical course for someone of the applicant’s profile is ‘gradual improvement as they move into their late-twenties and early-thirties, he said.[45] In other words, the applicant ‘is likely to progress over the next few years’.[46]
[44] HB, 227 [27].
[45] Ibid.
[46] Ibid..
I agree also with the conclusion that the applicant remains ‘a risk of reoffending with further incidents of ”acting-out” especially when intoxicated’.[47] I note also that while in detention the applicant was caught trying to brew alcohol.
[47] HB, 227, [28].
All in all, the applicant poses a real risk of recidivism at the present time. His offending has been impulsive and unpredictable. The last offending involving the assault of the community member who was filming him was entirely gratuitous. Nevertheless, I agree with Dr Watts that over time his risk of reoffending will be substantially lower provided he abjures alcohol and drugs and maintains prosocial contacts and engagements.
All in all, this consideration counts substantially against the applicant.
Under paragraph 8.2, I must have regard to any family violence committed by the applicant. In this regard, the respondent drew my attention to an incident of domestic violence in 2022 when the applicant's then partner requested a third party call police as she and the applicant had been arguing and ‘she did not feel safe’.[48] The material before me suggests, however, that there was no physical violence. The victim was not injured physically, and at her interview with police, she indicated she was not fearful. The police concluded that there was not enough information before them to proceed with a police protection notice. The police conclusion[49] alongside the heading ‘Fear’ recorded that the victim was not ‘fearful’. It would appear this incident involved a heated argument following an allegation of infidelity but was not accompanied by physical violence. It appears to be the one instance of family violence, and it is not especially significant in my opinion. In and of itself it could not be a ‘tipping point’ in my deliberations, and it is not necessary for me to analyse it separately and address each aspect of paragraph 8.2.
[48] The police report appears at HB, 324-327.
[49] At HB, 327.
Paragraph 8.3 requires me to give attention to the strength, nature, and duration of ties to Australia. There is not strong evidence before me of the impact of the applicant’s departure from Australia on members of his family. There is no evidence before me from the applicant’s mother. I agree with the respondent that only limited weight should be accorded this consideration.
I must have regard to the best interests of minor children. I accept that the applicant's former partner has provided a letter of support indicating that he has played a very important role in their son’s life providing both emotional and financial support.[50] She says that the applicant has provided financial support and that he has been the one working to support them. This is supported by remarks in the sentencing Court that indicated that the applicant had only been unemployed when he was in jail.[51] The boy has always known his father and looked up to him, according to her.[52] She refers to it being very hard for her to raise him by herself given living costs.[53] So there are both financial and emotional support perspectives here to weigh.
[50] HB, 141.
[51] HB, 66.
[52] HB, 141.
[53] Ibid.
The delegate gave this consideration significant weight,[54] and I agree with the delegate's waiting, and I do not accept that it only weighs ‘somewhat’ in favour of revocation as submitted by the respondent.[55]
[54] HB, 55 [92].
[55] Ex R1, 14 [62].
Paragraph 8.5 of the Direction requires me to have regard to the expectations of the Australian community. Paragraph 8.5(1) provides that 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, the Australian community ‘as a norm’ – albeit not as an inflexible rule – expects the Government not to allow such a person to remain in Australia. This principle is clearly applicable in this case. The applicant has a very long history of antisocial behaviour, which constitutes serious conduct in breach of the expectation.
I accept the respondent's admission that this primary consideration weighs very heavily against revocation.[56]
[56] Ex R1, 15 [66].
I turn now to the so-called other considerations under section 9. I accept the respondent's submission that the applicant’s cancelled visa was not a protection visa as defined under the Act. It would be open, therefore, to him to apply for a protection visa in the future were I to affirm the decision under review. I accept also that there has been no protection finding made in respect of the applicant.[57]
[57] Ex R1, 15 [68].
I have decided that this is a case where it is appropriate for me to defer consideration of any non-refoulement obligations that might be owed by the Australian Government. I am required specifically, however, to consider any harm on removal to Burundi that the applicant would suffer if he were removed as this has been specifically raised.
It follows, therefore, that I must consider any impediments on removal that the applicant would face. These may or may not constitute an adequate basis for concluding that the Australian Government owes the applicant non-refoulement obligations. However that may be, the harm that the applicant alleges he would suffer needs to be weighed.[58]
[58] See, for example, Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205; (2019) 168 ALD 331 at 334 [54]ff.
In my opinion, on the evidence before me, if he were to be returned to Burundi, the applicant would face very serious impediments. Mr Rasheed put to me information that raises grave concerns about the applicant’s welfare in that country. The first document was a report of the special rapporteur on the situation of human rights in Burundi dated 23 July 2024.[59] This report was not contradicted by the respondent. I note that the report indicates that Burundi is among the five poorest countries in the world with more than half the population living under the poverty line.[60]
[59] HB, 232ff.
[60] HB, 237 [22].
There are clear threats to Burundi's land, where 80 per cent of households make their living from agriculture and related activities.[61] The statistic quoted at paragraph [47] of the report is startling: 10% of Burundi’s food crop area was damaged in the agricultural season in the first half of 2024.[62] It is reported that these losses ‘are having a major impact on household food security and livelihoods’.[63] There have been repeated fuel shortages and rising commodity prices, which have been impacting economic activities since 2022.[64] Burundi is listed as one of the least productive countries in the world.[65] The rapporteur refers to Burundi experiencing an economic crisis characterised by a foreign currency shortage resulting in only three weeks imports cover and by high inflation with an average of 27 per cent in 2023 which has adversely affected the availability and affordability of goods.[66] There are significant health challenges given epidemics, weak health infrastructure, and weak public services.[67]
[61] HB, 243 [47].
[62] HB, 243.
[63] HB, 243 [47].
[64] HB, 237 [23].
[65] Ibid.
[66] HB, 242 [45].
[67] HB, 243 [49].
The conclusion is expressed that 90 per cent of the population live in rural areas and are heavily dependent on land for both income generation and subsistence, and for these people, access to land and long term land rights is a matter of survival.[68] The average 0.1 hectare of arable land available per person appears to be ‘an extremely limited area to ensure a decent living for rural households’.[69] The risk is that vulnerable populations, which include returning Burundian refugees, will find it difficult to obtain access to land. Access to land is said to remain ‘a key factor in the realisation of all people's rights including the right to food’.[70]
[68] HB, 246 [62].
[69] HB, 246 [62].
[70] Ibid.
I also had before me the 2023 United States Department of State’s Human Rights Report on Burundi.[71] The extensive and persistent human rights abuses in the country are well known and detailed in the report; and it is sufficient if I refer to the analysis without setting it out. I also note that the report indicates that the official minimum wage has remained unchanged since 1988 and is below the official poverty line.[72] Prevailing minimum wages more reflective of labour market forces were below the international poverty line.[73] Occupational Safety and Health Codes were prescribed, but were often not followed.[74]
[71] HB, 252ff.
[72] HB, 304.
[73] Ibid.
[74] Ibid.
I accept that, generally speaking, I must not apply Australian standards in determining the impediments on removal the applicant would face, and, in particular, I must have regard to what is generally available to the people of the country to which an applicant is proposed to be removed.[75] But I bear in mind here that the applicant is not entirely fluent in Kirindi (although he has some spoken Kirindi), and more importantly, he does not have extended family members there, and has never lived there. He has, self-evidently, no network of friends or contacts. He would face, therefore, special burdens in returning to a country where he has no connections to assist him to navigate the challenges and only limited language skills. His position, therefore, should not be equated with that of a young and healthy local male who would have family connections and support networks available to him together with fluency in the language.[76] All in all, very significant barriers would await the applicant on return to Burundi.
[75] Paragraph 9.2 of the Direction.
[76] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.
Weighing the considerations
I turn now to weighing the considerations I have identified. There is no doubt that the Direction speaks very strongly against the violence in which the applicant has engaged. It has been repeated, it has been alcohol-induced, and it has impacted innocent victims gravely. Violence and the theft of property are very confronting experiences for members of a well-ordered community who wish to go about their business unmolested. The most serious psychological and physical consequences can ensue from adverse interactions with violent criminals. There is no doubt that the applicant constitutes a real risk of recidivism at present. Whilst the potential is there, over time, for a reduction in risk, the present day risk the applicant poses to the community is real. He has a pronounced history of antisocial and defiant offending. It is a serious matter to keep within the Australian community a person who has demonstrated such anti-social tendencies for such a long period of time. The protection of the Australian community is the highest priority of the Government, and it is generally speaking the primary consideration to which I should attach the most weight. The Direction is quite clear in these respects.
Against this, I must weigh two very important considerations. First, the applicant is reportedly a valued father for his biological son. He contributes meaningfully both to the financial and to the emotional welfare of the child. As I have often said, children are frequently the innocent victims of the dysfunction brought into their families through the misconduct of one or other parent. That is the case in this matter. So I bear in mind that the applicant’s biological son would be impacted quite severely by the decision to affirm the decision under review.
Secondly, I must have regard to the impediments on removal which would ensue if I affirmed the decision under review and the applicant were deported. The respondent has not conceded that the applicant is owed non-refoulement obligations. In my opinion, for the reasons I have earlier expressed, Burundi remains an extreme environment to which to deport the applicant. He has no connections there and no sure way or help to navigate what is an extremely serious situation. Clearly enough, the country is in crisis, a crisis which is exacerbated by the perilous human rights situation in the country. It is a very serious thing to deport to a country like Burundi return a person who has never lived in the country and who lacks any plausible support network.
The Direction must never be applied in a mechanical or formulaic way. I note what was put by the Federal Court in Hands v Minister for Immigration and Border Protection.[77] It is essential to weigh carefully exactly what a person would face on deportation.
[77] See [2018] FCAFC 225; (2018) 267 FCR 628, at [3].

In my opinion, when I consider the interests of the minor child and the impediments that this particular applicant would face on being deported from Australia, the balance does favour a revocation of the cancellation decision.
I would finally note that I have approached this decision on the basis that the consequence of a decision to affirm the decision under review would be the deportation of the applicant to Burundi. That is the way the matter was argued before me. But if I were to affirm the decision under review, it does seem to me that there would be a question whether the applicant would not apply for a protection visa. If he applied and were found to be eligible for the grant of such a visa, but were refused it on character grounds, he would not be returned to Burundi but would remain in detention. He would remain there until he could be removed to a third country or until it was clear that there was no real prospect of his being found a suitable third country option in the reasonably foreseeable future, at which time he would have to be released to the community.[78] That could still be a long time although it is not, as a result of the High Court's decision a never-ending period of time.[79]
[78] See NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137.
[79] Ibid.
If that were the more likely outcome, I would then need to weigh up not deportation to Burundi but the effect of ongoing detention. The case was not argued on that basis but I would have serious concerns about the applicant remaining in detention pending his removal to a third country or pending the arrival of the date on which it could be concluded that there is no real prospect of his being deported to a third country in the reasonably foreseeable future. I would myself conclude that the balance in that circumstance lay also with the applicant given the importance of the individual’s right to liberty.[80] But as I say, the respondent put as its prime submission that I should take into account the removal of the applicant as the appropriate circumstance to weigh in his favour.
[80] See the plurality’s observations in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463.
I might add for the sake of completeness, that I do not believe it is at all likely that the applicant would be granted a protection visa if he were to apply for one and found to be eligible. I infer from the decision taken by the Government not to reinstate his humanitarian visa on character grounds that the Government views the applicant’s continued presence in Australia as clearly undesirable.
FORMAL DECISION
Given my conclusion, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

...........................[SGND].......................
Associate

Dated: 8 September 2025

Dates of hearing: 18 and 19 August 2025

Advocate for the Applicant:
I Rasheed (IR Legal)

Advocate for the Respondent: E Tattersall (Minter Ellison)

Dates of hearing:	18 and 19 August 2025
Advocate for the Applicant:	I Rasheed (IR Legal)
Advocate for the Respondent:	E Tattersall (Minter Ellison)