CRVF and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 1010

CRVF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1010 (7 July 2025)

Applicant/s:  CRVF

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2025/3215

Tribunal:Senior Member A Murphy

Place:Melbourne

Date:7 July 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

Statement made on 7 July 2025 at 2:19pm

Catchwords

MIGRATION - decision of delegate of Minister not to revoke mandatory cancellation of a Child (permanent)(subclass 101) visa - character test - Direction no. 110 -primary and other considerations - protection of Australian community - nature and seriousness of criminal offending - risk to the Australian community should the Applicant commit further offences or engage in other serious conduct - strength, nature and duration of ties to Australia - best interests of children - expectations of the Australian community - legal consequences of decision – third country reception arrangement with Nauru - extent of impediments if removed – Non-Revocation set aside and substituted with the decision not to cancel the applicant’s visa

Legislation

Administrative Review Tribunal Act 2024 (Cth)
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

Migration Regulations 1994 (Cth)

Cases

BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192
FYBR v MHA [2019] FCAFC 185 at [103]. Special leave refused: FYBR v MHA [2020
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540

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 under section 501CA (dated 7 June 2024)

Statement of Reasons

1. The applicant seeks review of the decision by a delegate of the Respondent (the Minister) dated 14 April 2025 not to revoke the mandatory cancellation of the applicant’s Child (permanent) (subclass 101) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. CRVF (the applicant) is a 36-year-old male citizen of Cambodia, who arrived in Australia in 2001 as the holder of the visa in 2001, then aged 13. He is diagnosed with schizoaffective disorder and orders appointing the Public Advocate as his guardian and State Trustees as his administrator are in place. Each of those orders is made on the basis that due to his disability, the applicant does not have capacity to make decisions about financial matters or personal matters including where he lives, the support services that are provided to him and the making of any applications and processes regarding this Australian residency status, visas, deportation and repatriation processes including under the Migration Act 1958.[1]

   [1] Orders of the Victorian Civil and Administrative Tribunal at Hearing Book 166-168, 290-291 and 389

3. On 22 October 2021, the applicant pleaded guilty to and was convicted of offences of theft from shop (shopsteal), affray and intentionally cause injury for which he was sentenced to an aggregate term of 18 months imprisonment to be served concurrently.[2]

   [2] Order of the Magistrates Court of Victoria at Dandenong dated 22 October 2021 at Hearing Book 45

4. On 24 November 2021, the Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that the Applicant had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the cancellation decision).

5. The Applicant was purportedly notified of that decision on 24 November 2021. At that time he was in a psychiatric unit in prison and did not make representations seeking revocation of the cancellation within 28 days of the notice. On 11 January 2022, the Victorian Civil and Administrative Tribunal first made the guardianship order referred to above (which has since been re-made twice and remains in effect) and the appointed guardian later made representations seeking revocation of the mandatory cancellation of the applicant’s visa.[3] When the applicant completed his sentence on 3 September 2022, he was transferred to immigration detention.[4]

   [3] Hearing Book 48-51, 164-165 and 169-196

   [4] Protection Visa Assessment Record dated 12 December 2024 at Hearing Book 95

6. Departmental records indicate that the applicant was released from immigration detention and had his visa restored following the decision of the Full Court of the Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203.[5] He remained in the community for approximately eight weeks before being retained on 17 February 2023 after the retrospective validation of the cancellation decision.[6]

   [5] Protection Visa Assessment Record dated 12 December 2024 at Hearing Book 95

   [6] Hearing Book 313, Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

7. On 4 December 2024, the High Court made orders quashing the original notice of visa cancellation purportedly given to the applicant and requiring the Minister to give notice of the cancellation and invitation under s 501CA(3) of the Act to the applicant by his legal guardian.[7]

   [7] BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44

8. On 12 December 2024, the applicant was released from detention and granted a Bridging R (Removal Pending) (subclass 070) visa (the BVR), granted on the basis that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.[8]

   [8] Hearing Book 879

9. This followed a decision of a delegate of the respondent on the same date made in respect of the applicant’s application for a protection visa. While that visa application was refused on the basis that the applicant did not satisfy the criteria in s 36(1C) of the Act, the delegate made a protection finding to the effect that the applicant had a well-founded fear of persecution in Cambodia on account of his membership of the particular social groups ‘persons with severe mental illness’, ‘psychiatrically incapacitated persons’ and ‘persons who are homeless’. The delegate found that the applicant also engaged Australia’s complementary protection obligations on the same basis.[9] The delegate’s decision to refuse the applicant the protection visa is the subject of a separate review before this Tribunal that has been adjourned pending the completion of these proceedings.

   [9] Protection Visa Assessment Record dated 12 December 2024 at Hearing Book at 95

10. On 18 December 2024 the respondent re-notified the applicant of the cancellation of his visa, advising him that the incorrect notification did not affect the validity of the cancellation decision. It advised him however that the time period within which the applicant could make representations to seek revocation of the cancellation decision had not commenced and invited him to make those representations.[10] The applicant’s guardian made representations seeking revocation on the same day.[11]

    [10] Hearing Book at 301

    [11] Hearing Book at 48

11. On 14 April 2025, a delegate of the Minister for Immigration and Citizenship for Multicultural Affairs (the Respondent) decided not to revoke the cancellation decision under s 501CA(4) (the non-revocation decision) and that decision is the subject of the current review.

12. The Tribunal hearing was held on 23 and 25 June 2025 at the Tribunal’s Melbourne Registry. Both parties were represented and the Tribunal heard evidence from the applicant’s current legal guardian Ms Rebecca Jardine, his former legal guardian Ms Nikki Wickremasinghe and Ms Pamela Matthews, forensic psychologist.

    CONFIDENTIAL MATERIAL

13. On 12 May 2025 the applicant requested the Tribunal issue a summons to produce documents directed at the respondent. The respondent objected to the issue of that summons and the Tribunal received written submissions and heard oral arguments as to the appropriateness of issuing an inter-party summons, as well as the relevance of the documents sought.

14. At a directions hearing convened on 27 May 2025, the Tribunal was advised that some further documentation had been provided to the applicant by the respondent in an attempt to resolve the issues but some issues were not wholly resolved. It was agreed by the parties that if the Tribunal determined it appropriate to require the production of any further documents, it should issue a Notice to Produce Documents under section 500(6K) of the Act, rather than a summons under s 74 of the Administrative Review Tribunal Act 2024 (Cth).

15. At the conclusion of that directions hearing, having formed the view that the material sought by the applicant may be relevant to the decision under review, I issued a Notice to Produce Documents under section 500 (6K) of the Act, requiring that the respondent lodged with the Tribunal:

    Documents referring to:

    a. any general criteria that apply for the selection of non-citizens for removal to Nauru;

    b. consideration of the number of non-citizens who may be removed to Nauru; and

    c. the process for the obtaining or the grant of a permission to enter or remain in Nauru.

16. Prior to lodging documents in response of the notice, the respondent foreshadowed making an application for their non-disclosure and non-publication under s 70 of the Act on the basis they attracted public interest immunity. On 16 June 2025 I made an interim order to the effect that the documents not be disclosed to the applicant or any other person, other than the Tribunal member and such Tribunal staff as was necessary for the conduct of the review, until such application was heard and decided. The documents were lodged with the Tribunal after the interim order was made.

17. No documents were lodged in respect of paragraph (a) above, nine documents were lodged in respect of paragraph (b) and one document was lodged in respect of paragraph (c). The application under s 70 of the Act was expressed to extend only to the nine documents lodged in respect of paragraph (b). The Tribunal notes that all nine documents contained information extending beyond the issues of set out in the notice, much of it not relevant to the issues for determination in the current review.

18. At the commencement of the hearing the Tribunal was advised that five of the nine documents had been provided to the applicant’s representatives (two of those with minor redactions). The applicant’s representatives agreed that those documents properly attracted public interest immunity and consented to orders restricting their publication and disclosure.

19. In respect of the remaining four documents that were not provided to the applicant, the respondent relied on affidavits of appropriately qualified persons to establish that two of those documents were cabinet documents and the other two contained highly sensitive information recording communications between officials from the Australian Government and from the Government of Nauru. I accept the content of the affidavits produced in support of the application.

20. The Tribunal was satisfied that those four documents contained highly sensitive information which properly attracted public interest immunity. The Tribunal was also satisfied that the gist of the information relevant to this review contained in those four documents had been made known to the applicant through the disclosure of the other five documents. With the consent of both parties, the Tribunal ordered that the four documents not be admitted into evidence. Those four documents, together with the unredacted versions of documents that had been produced to the applicant in redacted form, were returned to the respondent’s representative at the hearing so that the Tribunal retained and admitted into evidence only the five documents (as redacted) provided to the applicant’s representatives (the confidential information).

21. Following the hearing, the parties provided the Tribunal with agreed facts arising out of the confidential information, which the respondent indicated could be included in published reasons of the Tribunal without redaction. I do not consider it necessary to refer to the confidential information beyond those agreed facts as set out later in these reasons.

    LEGISLATIVE FRAMEWORK

22. Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:

    (a)the person does not pass the character test because of a substantial criminal record; and

    (b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory. 

23. A person has a substantial criminal record in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (s 5AB of the Act).

24. On 22 October 2021, the applicant was sentenced to an aggregate term of 18 months imprisonment. It is not in dispute that he has a substantial criminal record and does not pass the character test. As such, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked. 

    THE DIRECTION

25. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).

26. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Appeals Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.

27. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The safety of the Australian Community is the highest priority of the Australian Government.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[12]

    [12] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’)

28. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3) One or more primary considerations may outweigh other primary considerations.[13]

    [13] Ibid cl 7.

29. The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.

    THE PRIMARY CONSIDIERATIONS

30. The Direction contains five primary considerations, which 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;

    (5)  expectations of the Australian community.[14]

    [14] The Direction, cl 8.

31. I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

    The protection of the Australian community

32. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[15]

    [15] Ibid cl 8.1(1).

33. The Tribunal is directed to 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.[16]

    [16] Ibid.

34. Decision-makers should consider the nature and seriousness of 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.[17]

    [17] Direction 110 at cl 8.1(2).

    Nature and seriousness of the conduct

35. The Direction sets out factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[18]

    The applicant’s criminal offending

    [18] Ibid cl 8.1.1.1

1. The applicant’s history of criminal offending is set out in full in a results check from the Australian Criminal Intelligence Commission.[19] It is accurately summarised in the applicant’s Statement of Facts, Issues and Contentions as follows:

   [19] Hearing Book at page 38

   16. The applicant has a record of criminal convictions commencing in 2010 (G3, 34-36).

   17. On 8 June 2010, he was convicted in the Dandenong Magistrates Court of driving offences (drive in a manner dangerous, unlicensed driving and driving with a blood alcohol level above the prescribed limit) which resulted in the imposition of a community-based order for 12 months and licence disqualification; and of affray, for which he received a 4-month suspended sentence of imprisonment. The applicant failed to comply with the community based order, and on 21 September 2011 a fine was imposed in its place.

   18. On 13 May 2019, the applicant was convicted of two charges of possess heroin, two charges of possess cannabis, use heroin, unlawful assault, commit indictable offence whilst on bail, two counts of failing to answer bail, and intentionally damage property. The disposition was his release on adjournment.

   19. On 13 and 16 November 2019, the applicant was convicted of offences of possess cocaine, possess methylamphetamine, possess a schedule 4 poison, without authority/excuse enter private place, deal property suspected proceed of crime and commit indictable offence whilst on bail. He received fines for those offences.

   20. On 17 January 2020, the applicant was convicted of possess cannabis and fined. On 6 May 2020, he was convicted of possess cannabis, contravene a conduct condition of bail and commit indictable offence on bail, and was fined.

   21. On 19 May 2021, the applicant was convicted of common law assault and sentenced to 36 days imprisonment.

   22.      On 30 June 2021, the applicant was convicted of:

   a. three charges of possess cannabis, for which he was convicted and discharged; and

   b. possess controlled weapon without excuse, possess dangerous article in a public place, possess methylamphetamine, two charges of posses drug of dependence, and possess a schedule 4 poison, resist emergency worker on duty, use threatening words in public place, two charges of contravene a conduct condition of bail and three charges of commit indictable offence on bail. For those offences he was sentenced to an aggregate of 36 days imprisonment to be served concurrently.

   23. On 22 October 2021, the applicant pleaded guilty to and was convicted of offences of theft from shop (shopsteal), affray and intentionally cause injury. This applicant stole a knife from a supermarket, and used the knife to stab the victim, who suffered a deep laceration to the back of the neck (G4, 39). He was sentenced to an aggregate term of 18 months imprisonment to be served concurrently (G5, 41-43).

   24. Four entries in the applicant’s Australian Criminal Intelligence Commission Check Results Report disclose dispositions in matters heard by the Dandenong Magistrates Court on 26 October 2016 and 16 April 2018, for which no conviction was recorded. Those dispositions were evidently made pursuant to s 8(1) of the Sentencing Act 1991 (Vic). By operation of s 85ZS of the Crimes Act 1914 (Cth), the Tribunal must disregard those entries entirely.[20]

   [20] Applicant’s Statement of Facts, Issues and Contentions 4 June 2025; see also WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465 at [4]-[9]

2. It is properly conceded that the applicant’s offending includes violent offences, which are viewed very seriously by the Australian government and the Australian community: cl 8.1.1(1)(a). One of the charges for which the applicant was convicted on 30 June 2021 was resist emergency worker on duty. As such it was a crime committed against a government official in the performance of their duties: cl 8.1.1(1)(b).

3. On 22 October 2021 the applicant was sentenced to a term of imprisonment of 18 months which reflects the offending was very serious: cl 8.1.1(1)(c). The sentencing remarks record that the applicant would have been sentenced to 30 months imprisonment, with a non-parole period of 20 months, had he not pleaded guilty.[21]

   [21] Sentencing remarks of the Magistrate’s Court of Victoria 22 October 2021 at Hearing Book 41

4. There was no victim impact statement submitted to the court, but the sentencing remarks record that there was no doubt that the victim would have suffered both physically and emotionally from the attack[22]: cl 8.1.1(1)(d).

   [22] Ibid, cl 8.1.1(1)(d)

5. The applicant had earlier been imprisoned for the period of 36 days for offending for which he was sentenced in May and June 2021. Prior to that is criminal offending had resulted in the imposition of fines, community-based orders and his suspended sentence. The applicant’s criminal history reflects a trend of increasing seriousness, with his most serious offending being the most recent: cl 8.1.1(1)(e). There is no evidence of a cumulative effect of repeated offending: cl 8.1.1(1)(f).

6. The material before the Tribunal does not indicate that the applicant has provided false or misleading information to the Department or failed to disclose prior criminal offending (cl 8.1.1(1)(g)). It is not suggested in the materials that the applicant has reoffended after being warned about the consequences for his immigration status: cl 8.1.1(1)(h).

   Other conduct

7. The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence. It is not suggested that the applicant has engaged in serious conduct including behaviour or conduct of concern that does not constitute any criminal offence.

   Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

8. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences.  This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[23] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[24]  There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[25]

   Nature of the harm

   [23] The Direction, cl 8.1.2(2)(a).

   [24] Ibid cl 8.1.2(2)(b).

   [25] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].

9. In considering the nature of the harm to individuals, or the Australian community should the Applicant reoffend, I have had regard to the facts of the offending to which the applicant was sentenced on 22 October 2021 as they are reflected in the sentencing remarks:

   You engaged in a premeditated attack on the victim, who you knew. You walked into a supermarket, stole a knife, which you used to stab the victim. He sustained a 5 stab wound to the back of the neck and was taken to the Alfred Hospital for treatment for a deep laceration to the back of the neck.[26]

   [26] Sentencing remarks of the Magistrate’s Court of Victoria 22 October 2021 at HB 41

10. I have also had regard to the nature of the applicant’s other offending. He was sentenced to 36 days imprisonment for a series of offences in June 2021 including resisting an emergency worker on duty, possessing a controlled weapon without excuse and possessing a dangerous article in a public place.[27] While much of his offending relates to the possession and use of controlled substances, his earliest offending in 2010 constituted serious driving offences and between 2019 and 2021 he was convicted of a number of charges of assault.

    [27] Hearing Book 38

11. I consider that the applicant has significant history of offending, some of which is very serious and some less serious. I assess that should the applicant engage in conduct similar to his more serious offending in the future, there is a significant risk of harm to members of the Australian community.

    Likelihood of the non-citizen engaging in further criminal or serious conduct

    The applicant’s medical conditions

12. A medical report prepared for the Victorian Civil and Administrative Tribunal dated 23 December 2021 was prepared by consultant psychiatrist, Dr Praveen Das. Dr Das reported the applicant had a diagnosis of schizoaffective disorder, ongoing since July 2019. He reported the applicant experienced grandiose delusions, disorganisation, visual hallucinations and absent insight. He recorded the applicant had been in prison residential psychiatric units for two months and taking medication, but there had been at best very mild improvements and that the long-term prognosis was guarded.[28] Other medical reports before the Tribunal confirm that diagnosis and indicate that he has in the past been subject to treatment orders under the Mental Health Act 2014, although that does not appear to be the case at present.[29]

    [28] Hearing Book 259

    [29] Psychological report dated 14 October 2021 at HB211; Monash Health records at HB215

13. The applicant has since undertaken two formal risk assessments conducted by Victorian Forensic and Clinical Consulting. The first was undertaken in 2020 for the purpose of sentencing.[30] In a report dated 23 August 2020, the report’s authors Pamela Matthews, forensic psychologist, and Daria Sizenko, provisional psychologist, recounted the applicant’s offending and psychosocial history. They note it was not possible to administer a self-report risk assessment and so they apply the Risk Matrix 2000V. They record that on that instrument the applicant’s scores place him in the high category of risk noting that at this level, the risk of violent offending rates is quoted as 27% at five years, 34% at 10 years and 19% at 39 years. In her oral evidence to the Tribunal Ms Matthews explained that the risk of violent offending statistically reduces as an individual gets older.

    [30] Report dated 23 August 2020 at HB203

14. That report identifies the applicant’s primary risk factors for recidivism as being his drug use and mental state, namely struggles with regulation, decision-making and perception due to his schizophrenia diagnosis. It states that despite his symptoms being managed by olanzapine, his continuous engagement with drugs would likely have undermined the effectiveness of that medication. The report states that the applicant’s only protective factors currently include his compliance with medication and his desire to stay away from methamphetamine, but his unstable living situation, lack of social support and lack of proactive involvement would continue to exacerbate his risks of reoffending and inhibit his rehabilitation.[31]

    [31] Hearing Book 207

15. The second report is dated 3 June 2025. It records that the applicant continues to present with hallucinations, diminished emotional expression and continues to meet the diagnostic criteria for schizophrenia. It states that his mental health is such that he is unable to make decisions for himself and continues to require a state appointed guardian. In the criminal jurisdiction, he would be unfit to plead and in respect of the Tribunal proceedings he would be unable to understand the nature of those proceedings, follow those proceedings or understand the effect of the evidence relied upon against him.[32]

    [32] Hearing Book 1602

16. The report states that the Risk Matrix 2000V was readministered to the applicant in 2025 and on rescoring he continued to place in the high category of risk of violent reoffending, again quoted as 27% at five years, 34% at 10 years and 19% at 39 years. The HCR-20V3 tool was also administered and on this instrument the applicant had scores against the following criteria: history of violence (moderate); history of problems with other antisocial behaviour (moderate to high); history of issues with relationships(high); history of problems with employment (high); history of problems with substance use (high); history of issues with major mental disorder (high); history of issues with traumatic experiences (child abuse and neglect, high); history of problems with supervision (moderate-high i.e. some breaches); recent problems with insight (related to mental health, high); recent problems with major mental disorder (moderate); recent problems with treatment supervision (moderate); future problems with professional services and plans (moderate to high).

17. The report concludes that on actuarial and guarded professional judgement measures, the applicant remains a high risk of violent reoffending, albeit his past violent offending being low-level in its intensity. His greatest risk factors identified as his mental health, his lack of stable support, and his homelessness. It was noted that homelessness is linked substantially to involvement in the criminal justice system and that if he were to secure appropriate housing and support, particularly with his mental health and trauma needs, his risk of reoffending is likely to be significantly reduced.[33]

    [33] Hearing Book 1605

18. It is submitted by the respondent that the Tribunal should give less weight to the 2025 report because it underplays the applicant’s drug use and does not identify it as a risk factor for future offending. It is submitted that the Tribunal should find that the applicant’s risk of reoffending is actually very high rather than high, once his drug use is considered. However I accept Ms Matthews’ explanation that she inadvertently left out the applicant’s drug use as a risk factor for his offending in the 2025 report, but it is captured in the assessment tools that were administered and which form the basis of the risk assessment. I am satisfied that is the case because the report records that the applicant received a high score for history of problems with substance use in the HCR-20V3 tool as recounted in the 2025 report. Further, the applicant’s score on the Risk Matrix 2000V instrument in 2025 is the same as that recorded in 2020 and it is apparent from the 2020 report that the applicant’s drug use was identified as a primary risk factor at that time.[34]

    [34] Hearing Book 207

19. The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the applicant’s most recent offence. The applicant has been living in the community since his release in December 2024 with varying degrees of support. While he is receiving treatment for his schizophrenia in the form of depot medication, the materials before the Tribunal do not indicate that he has otherwise participated in any rehabilitation programs or that he currently has the capacity to do so.

20. Consistent with the 2020 and 2025 reports from Victorian Forensic and Clinical Consulting, I find that there is a high likelihood that the applicant will reoffend. The risk to the community should the applicant reoffend depends on the nature of his reoffending, but I find that should he reoffend in a manner that reflects his more serious offending there is a significant risk of serious harm to the Australian community.

    Whether the potential harm to the community is reduced if the visa cancellation is revoked

21. Clause 8.1 of the Direction is predicated on the assumption that cancelling or refusing a visa on character grounds will be protective of the Australian community because non-citizens will not be allowed to enter or remain in Australia:

    8.1. Protection of the Australian community

    When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community (emphasis added).

22. These principles are in obvious tension for persons such as the applicant who have a protection finding and who cannot at present be detained in immigration detention or removed from Australia. While it may be accepted that the protection of the Australian community will ordinarily be achieved by the detention and removal of non-citizens who pose a risk of harm to the community, neither of those alternatives are presently applicable to the applicant. As a consequence he will remain living in the Australian community, either as the holder of a temporary BVR or as the holder of a child visa, in the foreseeable future.

23. It is contended on behalf of the applicant that in his particular circumstances, the safety of the Australian community and its protection from the harm caused as a result of any criminal activity or other serious conduct by him is best achieved by revoking the cancellation of his visa. In essence it is contended that his criminal offending is strongly connected to his mental health conditions; he engages positively with appropriate support services when they are available; he is generally compliant with medication when supported to attend his appointments; the appointment of the Public Advocate as his guardian means that he is now in a significantly improved position to be connected to appropriate services as compared to before his imprisonment in 2021 and most importantly that he will be eligible for significantly greater support services if his status as a permanent resident is restored, compared to if he remains on a BVR.[35]

    [35] Applicant's Statement of Issues, Facts and Contentions

24. The respondent argues that contention should not be accepted because it is predicated on an unsound assumption that the applicant will remain in Australia permanently when in fact the cancellation of the applicant’s child visa will mean that the applicant does not have a permanent entitlement to remain in Australia (even if the Minister accepts that there is no realistic prospect of removal becoming practicable in the reasonably foreseeable future).

25. The respondent submits that the point of distinction is between the risk the applicant poses to the community if he were to remain in Australia for the rest of his life on a permanent visa versus the risk he poses on a temporary visa (with the prospect of him one day being removed from Australia). It is submitted that even if there were a slightly higher risk on a temporary visa, the community would be better protected by non-revocation because it does not necessarily involve a permanent ongoing level of high risk.

26. The respondent also disputes that there is a lower risk of reoffending if the applicant holds a permanent rather than a temporary visa. The respondent accepts that the applicant will not be eligible for NDIS support on a temporary visa but argues that this does not reduce his risk of reoffending. It is submitted that the applicant has numerous supports available to him as the holder of a BVR, yet it is far from clear that he is using them. The respondent does not dispute that the applicant requires support but argues that he is currently compliant with his medication, he has not taken up the housing options available to him and there is no obvious reason why he would not have access to the Multiple and Complex Needs Initiative on the BVR.[36]

    Availability of supports to reduce the risk of reoffending

    [36] Respondent's Statement of Issues, Facts and Contentions

27. The applicant’s current circumstances are severe and confronting. He is receiving treatment for mental health conditions from a community mental health service in the western suburbs of Melbourne and he also receives methadone. He is reported to be engaged with that community mental health service and generally compliant with his medication but is challenged in making and keeping appointments.[37] His schizophrenia is treatment-resistant and Ms Matthews explained in her oral evidence that this means that even when he is taking antipsychotic medication as prescribed, he continues to have symptoms including hallucinations, delusions and negative symptoms which affect his cognitive function.

    [37] Supplementary Hearing Book 6

1. He has had no contact with any of his family members since the death of his mother several years ago, who was his only known support.[38] When he was released from detention in December 2024 he was funded to stay in a motel for a period of 12 weeks. There is no dispute that since the funding for that motel accommodation ended he has been sleeping on a bench in a park in Sunshine, or that the ABF attend that park bench every morning to replace the battery pack on the applicant’s ankle monitor as he has no means of charging it.[39]

   [38] Applicant’s submissions dated 5 May 2023 at HB173

   [39] ABF field notes at Hearing Book 896 – 1025; Letter from Rebekah Jardine to Department dated 29 January 2025 at Hearing Book 401

2. On 2 May 2025 Life without Barriers wrote to the applicant’s guardian advising her of a significant deterioration in both his mental and physical health. Issues identified included an escalation in substance use, including multiple overdoses, one of which resulted in an ICU admission; ongoing poor decision-making relating to his well-being including choosing homelessness and increased drug experimentation; continued expression of intent to use illicit substances despite life-threatening consequences and significant weight loss due to regular meals/inadequate nutrition coupled with deteriorating hygiene. Other issues identified include the applicant’s decision to leave a supported living arrangement within 24 hours and not wanting to consider other accommodation options despite saying he is ‘cold’ given the weather; a recent request for a large sum of money to ‘leave the galaxy’ and other delusional statements and concerns of potential financial exploitation by other parties.

3. Life without Barriers record that the applicant’s behaviour had become notably agitated which was a significant shift from his typically cooperative and pleasant demeanour and these factors significantly impact his ability to maintain his health and safety and place him at high risk of assault, exploitation or harm from others and encourage his ongoing and escalating drug use.[40]

   [40] Supplementary Hearing Book 6

4. As set out in Ms Jardine’s statement, the applicant has been hospitalised on three occasions since his release from detention in December 2024:

   • From 24 December 2024 to 14 January 2025 due to not having a methadone script, not having a valid concession card and not being able to afford methadone;

   ·From 7 to 17 February 2025 in Sunshine Hospital. Ms Jardine is not aware of the exact reason for the admission;

   ·From 26 March 2025 to 27 March 2025 after he was found unconscious on a park bench by ABF officers.[41]

   [41] Statement of Ms Jardine dated 4 June 2025 Hearing Book 1585

5. Ms Jardine states that there may have been other hospital admissions during this period and that she is not always made aware of them. Her evidence is that the applicant requires far more supports that are currently available to him and that his current insecure situation is a direct result of the lack of support he has had access to and of his release from detention with limited planning. She outlines a number of government programs that she would approach for assistance if the applicant’s permanent visa was reinstated including the Multiple and Complex Needs Initiative.

6. I note the respondent’s submissions to the effect that addiction is about the scope and size of any NDIS package that might be available to the applicant is merely conjecture, but I consider there is sufficient reliable evidence to make findings on this issue. The NDIS package granted to the applicant in February 2023 is before the Tribunal. It sets out that the applicant’s total funded supports for that year amounted to $118,294, of which $100,765 was budgeted for core supports, as opposed to capacity building and coordination services.[42]

   [42] Hearing Book 246

7. The Tribunal heard evidence from Ms Wickremasinghe from the Office of the Public Advocate, the applicant’s former guardian for the period March 2022 to July 2024. Ms Wickremasinghe completed the NDIS application on the applicant’s behalf and gave evidence that the applicant was in detention at the time and there was a lack of information about his capacity and needs which made it difficult to construct a plan to address those needs. She gave evidence that it is typical of the NDIS process that when there is a lack of available information a basic plan is approved which includes funding for further assessments to understand and applicant’s needs in the community.

8. Her evidence to the Tribunal was that if his NDIS plan were to be restored now, she would expect that the supports provided in that initial plan would still be available to him as well as further assessments which would allow him to apply for a change of circumstances or in early reassessment of his plan which would contain a greater level of support. She expected that those supports might include housing through a housing provider registered with the NDIS, support workers to engage in activities in the community and assist him to attend medical appointments and manage his medication as well as occupational therapy assessments and support.

9. The Tribunal also heard evidence from the applicant’s current guardian, Ms Jardine, who has had extensive experience in the disability sector. Her evidence is consistent with that of Ms Wickremasinghe to the effect that the limited information about the applicant available at the time of the NDIS application meant that the February 2023 package was a ‘basic’ package and a higher level of funding is required to comprehensively address the applicant’s long-term needs. The ‘basic’ plan that was approved in 2023 included support workers at least four times a week to assist with activities of daily living and to take into medical appointments and other programs; an assessment by an occupational therapist to provide strategies for supported independent living and a psychosocial recovery coach, being a specialised support coordinator for persons with mental illness. It was her opinion that a more comprehensive plan could encompass support workers for eight hours a day five days a week.

10. I accept Ms Jardine’s evidence that in her experience people with complex cognitive disabilities similar to the applicant commonly have access to supports of $300,000 to $400,000 through the NDIA and she considers this to be attainable in the applicant’s circumstances.[43] I accept that if the applicant’s NDIS access were reinstated, Ms Jardine would apply for a reassessment of his plan to increase the level of funding available and that there is a reasonable likelihood that a revised plan would provide for significantly increased funding.

    [43] Hearing Book 1587-1588

11. As to whether the applicant would engage in and benefit from the supports available to him under the NDIS, I am satisfied that he will. The evidence before the Tribunal indicates that he has a good rapport with the workers at Life Without Barriers, who have provided him with case coordination and some limited support worker supports since approximately February 2025 and which will cease, apparently without possibility of extension, in December 2025.[44] In that regard the Tribunal is satisfied that Life Without Barriers have provided some support worker supports to the applicant despite not being funded to do so because of the severity of the applicant’s situation.

    [44]  Evidence of Ms Rebekah Jardine

12. The respondent points out that the applicant has on several occasions either refused or left housing supports arranged for him by Ms Jardine and I accept that to be correct. In particular the Tribunal heard evidence about arrangements for the applicant to move to Reggie’s Care Services in Craigieburn, considered to be appropriate by Ms Jardine because among other things the operator of that property was a mental health nurse. Notwithstanding the applicant’s agreement to reside there, he stayed only two days before leaving, apparently telling the accommodation operator that it was too far away from the western suburbs where he felt comfortable and on one occasion he got lost on public transport. The respondent contends that the applicant’s failure to take up this housing option, together with his refusal to consider rooming houses in Footscray and Sunshine, means that there is significant reason to doubt that he would even engage with the supports or that such supports would operate to reduce his risk of offending.

13. I consider that the totality of the evidence before the Tribunal indicates that the applicant’s mental health conditions and trauma background mean that he cannot tolerate housing supports that require him to live or sleep in close proximity with others, but that he has been happy with housing supports in which he has had his own room. For example, he was happy to stay at a motel in the western suburbs of Melbourne during the 12 weeks following his release from detention and he left that accommodation only because the funding ran out and it is not affordable to him on his special benefit.

14. His guardian has investigated rooming houses in the Footscray and Sunshine areas but the rent is too expensive, being more than 50% of his income. Ms Jardine gave evidence that the applicant would be happy with any housing option that allowed him to live alone but those options are not currently affordable. It is her professional opinion that if the applicant’s access to NDIS was reinstated there would be significantly more housing options available for him and I accept that to be true.

15. Ms Jardine’s evidence is that the applicant will only be able to access the Multiple and Complex Needs Initiative (MACNI) if his permanent visa is reinstated and his NDIS plan is reactivated, because MACNI is only available to clients with existing supports, for example through NDIS, because it is a short-term intervention that does not provide direct supports but merely coordinates existing supports and services. She maintains that in the applicant’s case, where Life without Barriers are funded to provide him only with case management and no active therapeutic supports, MACNI is not relevant or applicable to him. Ms Jardine has also explored the applicant’s eligibility for the Victorian Intensive/ Continuity of Support (VIN-CoS) program which is a disability support program that supports people temporary visa holders who are ineligible for NDIS because of their visa status. She has been advised by a senior project officer in that program that holders of bridging visa E, safe haven enterprise visas, protection visas and subclass 444 special category visas may be eligible for assistance under that program, but bridging visa R holders are not eligible. I accept Ms Jardine’s evidence on these matters.

16. I am satisfied that the applicant will continue to receive medical treatment from Harvester Clinic in relation to his mental health conditions regardless of his visa status. It seems likely that he will also continue to be eligible to receive treatment from Co-health in the manner that he has done in the past, although the details of this treatment are vague. However the Harvester Clinic is a community mental health service not a disability support service and the evidence before me does not indicate that it has any capacity to provide the applicant with support worker services that are currently being provided to him in limited form by Life without Barriers or which would be available to him at a significantly greater level if his access to NDIS was reinstated.

17. It is notable that despite the applicant’s extensive and serious criminal offending in the two years leading up to his arrest and imprisonment, there is no evidence that he has offended in the seven months since his release from immigration detention despite being homeless and sleeping on a park bench since March 2025. In my view that is likely to be because of the supports he is currently receiving from Life without Barriers.

18. I find that if the applicant’s visa cancellation is not revoked he will remain ineligible for disability support services provided through NDIS and VIN-CoS. I find that the limited support services currently being provided to him by Life without Barriers will cease in December 2025. In any event the services currently provided by Life without Barriers include services for which they are not funded and may not be able to continue at present levels until December 2025. I note in particular the concern expressed by Life Without Barriers in their most recent correspondence to Ms Jardine to the effect that the applicant’s current state (including his health status and low decision-making capacity) was affecting the capacity of Life without Barriers and other health and community services to work with the applicant.[45]

    [45] Supplementary Hearing Book 9

19. As noted above, the 2025 report from Victorian Forensic and Clinical Consulting states that the applicant’s otherwise high risk of reoffending is likely to be significantly reduced if he were to secure appropriate housing and support, particularly with his mental health and trauma needs. His greatest risk factors are identified as his mental health, his lack of stable support, and his homelessness (with Ms Matthews acknowledging in her evidence that those risk factors should also include his ongoing drug use). It was noted that homelessness is linked substantially to involvement in the criminal justice system and that if he were to secure appropriate housing and support, particularly with his mental health and trauma needs, his risk of reoffending is likely to be significantly reduced.[46] In her oral evidence Ms Matthews also stated that secure housing would provide the applicant’s support workers with an opportunity to address the applicant’s chronic and serious drug use.

    [46] Hearing Book 1605

20. In light of the medical evidence cited above, I consider there is a clear link in this case between the applicant’s risk of reoffending and his access to specialised disability support services which would assist him to obtain appropriate housing, attend his medical appointments and manage his medications. I am satisfied that the applicant will receive these supports under a NDIS package but he will not be eligible for NDIS unless the visa cancellation is revoked. I consider that if the applicant was eligible for NDIS the supports that he would receive would reduce his risk of reoffending and therefore reduce the risk to the safety of the Australian community.

21. While I have accepted that some limited supports have been provided to the applicant through Life without Barriers the funding for those supports will cease in December 2025. Other services that might otherwise be appropriate for the applicant such as MACNI and VIN-CoS are either not relevant or not available to him for certain long as he remains on the BVR.

    Conclusion on the protection of the Australian community

22. I have considered the applicant’s contention that the timing of the applicant’s prospective removal to Nauru remains highly uncertain, such that the Tribunal should prioritise the immediate safety of the Australian community by revoking the visa cancellation. This would allow the applicant’s access to NDIS to be reinstated for the period that he remains in Australia, even if he is at some future time removed to Nauru.

23. By contrast the respondent submits that even if the applicant’s risk of reoffending is somewhat mitigated by the applicant remaining in Australia on a permanent visa, that benefit pales in comparison to the fact that the risk is necessarily a permanent risk. The respondent contends even if there were a slightly higher risk on a temporary visa, the community would be better protected by non-revocation because it does not necessarily involve a permanent ongoing level of high risk.

24. I find that the applicant’s risk of reoffending will be reduced if he has access to specialised disability support services such as NDIS or VIN-CoS, neither of which are available to him while he holds the BVR. The respondent accepts that there is no realistic prospect of removal becoming practicable in the reasonably foreseeable future which means that the applicant will remain living in the community on the BVR for the foreseeable future unless his visa cancellation is revoked.

25. While it is possible that the applicant will be removed to Nauru at some point in the future, the timing and the likelihood of that are unknown. As discussed later in his reasons, the respondent contends that whether or not there will be another agreement between the Commonwealth and Nauru for the purposes of s 198AHB is highly speculative and that for the purposes of this review, the Tribunal need go no further than accept that if the decision under review is affirmed, the applicant will continue to hold a BVR that is subject to conditions.[47]

    [47] Respondent's Statement of Issues, Facts and Contentions [61], [73]

26. Having regard to the nature and seriousness of the applicant’s offending and conduct, the risk to the Australian community should the applicant commit further offences or other serious conduct, the fact that the applicant cannot presently be detained or removed from Australia and will inevitably remain living in the community for the foreseeable future regardless of this Tribunal’s decision, the Tribunal finds that the safety of the Australian community is best achieved by revoking the mandatory visa cancellation so that the applicant will be eligible for supports to reduce his risk of reoffending.

27. For these reasons I find the protection of the Australian community weighs in favour of revocation. I give this factor only moderate weight, accepting that the Australian community may bear that risk for a longer time than would otherwise had been the case, if it were to become possible to remove the applicant to Nauru or some other place at some time in the future.

    Family violence committed by the non-citizen

28. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.

29. The Direction states that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.[48]

    [48] The Direction, cl 8.2(1).

30. There is no evidence that the applicant has committed any family violence and this factor is not relevant to my decision.

    The strength, nature and duration of ties to Australia

31. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia.  Clause 8.3 of the Direction provides that:

    (1)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.

    (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

    b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. While the material before the Tribunal suggests that the applicant has siblings in Australia, it appears that he was homeless by the age of about 16 and has had no contact with his siblings for many years. His mother and sole support person died in about 2018 or 2019 and it appears that he has been living without any meaningful support in Australia until the appointment of a guardian in 2022.[49]

   [49] Applicant’s submissions dated 5 May 2023 at HB173

2. It is contended on the applicant’s behalf that he has resided in Australia for 23 years and has a clear attachment to Melbourne’s western suburbs, which is a matter of particular significance for him because of his background of trauma abandonment and displacement. It is submitted that this consideration weighs heavily in favour of revocation of the cancellation.

3. The respondent disputes that contention, submitting that the length of time a person has lived in Australia is not a standalone consideration to which the Tribunal is required to give separate weight, rather it is a consideration that bears upon the weight to be given to the applicant’s other ties. The respondent also disputes that the applicant has a clear attachment to Melbourne’s western suburbs, noting that his criminal offending appears to have occurred in the Dandenong and Springvale areas and the evidence suggests he was living in that location prior to being incarcerated. It is submitted that no real weight should be given to a connection or tie to a geographical area and there is no evidence from friends in the homeless community in the western suburbs to establish such tie.

4. I find that the applicant has no family or social ties of any significance in the Australian community, other than two siblings with whom he does not have contact. While he has a preference to reside in the western suburbs, that appears to be relatively recent and in any event does not constitute a family or social tie as contemplated by the direction. The material before the Tribunal indicates that he has spoken on occasion of his desire to be near his ‘community friends’ which appears to be a reference to the homeless community in the western suburbs of Melbourne, but none of those persons have been identified or provided evidence to the Tribunal.

5. It appears that the persons the applicant has most contact with are the various support workers and allied health professionals from Life without Barriers and Harvester Clinic. He on occasion speaks to his guardian on the phone and I accept he would have some other interactions with persons acting in their professional capacity. I do not consider that such professional relationships constitute the family and social ties referred to in the direction.

6. I give this factor minimal weight in favour of revoking of the decision to cancel his visa. 

   Best interests of minor children in Australia affected by the decision

7. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.

8. It is agreed that there are no minor children in Australia affected by the decision and this factor is not relevant to my decision.

   Expectations of the Australian Community

9. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.

10. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[50] 

    [50] The Direction, cl 8.5(2).

11. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

12. The applicant contends that this consideration is not applicable in the circumstances of the applicant because whether or not the visa cancellation is revoked he will continue to hold the BVR which is a permission to remain in Australia. The applicant submits that for this reason, the deemed expectations in cl 8.5.(1) (that the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia) and cl 8.5(2) (being that the community would expect that such persons should not be granted or continue to hold a visa) are not applicable to him. Accordingly it is submitted that the Tribunal should weigh this factor as neutral.

13. I am not persuaded that the deemed expectations of the Australian community are not applicable in this review merely because the applicant will continue to hold a permission to remain in Australia whether or not the visa cancellation is revoked. The Direction states that the Australian community expects firstly, that non-citizens will obey the law in Australia, and secondly, that the Government should refuse or cancel visas of persons who raise serious character concerns. The second expresses an expectation about the outcome of the exercise of the power conferred by s 501 in respect of a particular person who has not fulfilled the first expectation. The Australian courts have held that decision-makers should proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.[51]

    [51] Direction No 110, pt 2, para 8.5(4) and FYBR v MHA [2019] FCAFC 185 at [103]. Special leave refused: FYBR v MHA [2020] HCATrans 056.

14. I proceed on the basis that the Australian community expects that as the applicant has engaged in serious criminal offending, and is at high risk of reoffending, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

15. In applying these principles, I find this consideration weighs moderately against the revocation of the visa cancellation.

    Other considerations

16. Clause 9 of the Direction states:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    d)impact on Australian business interests.

    Legal consequences of decision under section 501 or 501CA

17. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[52]

    Legal consequences if the visa cancellation is revoked

    [52] Ibid cl 9.1.

18. If the mandatory cancellation of the applicant’s visa is revoked, the legal consequence is that he will once again be the holder of a permanent visa to remain in Australia. He will be eligible to receive assistance from the NDIS and this may open up housing options to alleviate his current state of homelessness. While the respondent submits the applicant’s access to the NDIS is not “a direct and immediate statutorily prescribed consequence” of the Tribunal’s decision, it accepts the Federal Court of Australia concluded otherwise in CRRN (the respondent’s position being that CRRN was wrongly decided) and the Tribunal is bound by that decision.[53]

    Legal consequences if the visa cancellation is not revoked

    [53] CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 (Owens J)

19. If the mandatory cancellation of the applicant’s visa is not revoked, there are a range of legal consequences. Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation. Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.

20. However the applicant is the subject of a protection finding within the meaning of s 197C(5) of the Act made by a departmental delegate in the course of the assessment of his protection visa application, with the result that his removal to Cambodia is neither required nor authorised under s 198 of the Act.[54] As there is no real prospect of the applicant’s removal from Australia being practicable in the reasonably foreseeable future, the applicant cannot lawfully be detained.[55]

    [54] s 197C(3)

    [55] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005

    The Bridging Visa R

21. The applicant currently holds a BVR, which will cease only if the applicant departs Australia or where one of the circumstances set out in cl 070.511 occurs, being that:

    ·the Minister gives notice stating that the Minister is satisfied that the applicant’s removal from Australia is reasonably practicable,

    ·the Minister gives notice that stating that the applicant has breached a condition of the BVR, or

    ·the Minister grants the applicant a further BVR.[56]

    [56] As per the Notice of Visa Grant and Conditions dated 12 December 2024 at HB878

22. As noted above, there is no dispute that the applicant’s removal from Australia is not at present reasonably practicable because he has a protection finding in respect of his country of nationality, Cambodia and there is at present no third country reception arrangement in place that may enable his removal to another country such as Nauru. He can only be removed to Cambodia if that protection finding is quashed or set aside; or if he asks the Minister in writing to be removed to Cambodia; or if the Minister is satisfied that he is no longer a person in respect of whom a protection finding will be made.[57] There is no suggestion that the applicant (or his guardian) will seek his removal to Cambodia, nor that any process to reassess the applicant’s protection finding has been commenced pursuant to s 197D(2).

    [57] s 197C(3), s 197D

23. While it is possible that the applicant may yet be granted a protection visa, a decision-maker considering refusal of the protection visa on character grounds is required to assess matters similar to those that arise in the current review. I do not speculate about the manner in which such a future decision-maker might exercise their powers, but I observe that the applicant has already been refused a protection visa by the Department for reasons relating to his criminal offending, and that matter is adjourned before another member of the Tribunal pending the outcome of this review.

24. There is no dispute that the applicant is prevented from applying for any other type of visa without the personal intervention of the Minister, by operation of the statutory bars in ss 48, 48A and 501E of the Act. It follows that if the Tribunal affirms the decision under review, the applicant will continue to reside in the community as the holder of the BVR until one of the circumstances set out in cl 070.511 occurs.

25. While on a BVR, the applicant is required to comply with the conditions of that visa as set out in an attachment to a letter dated 12 December 2024 advising him of the grant and conditions.[58]

    [58] Hearing Book at 874

26. Those conditions require that he not be involved in violent or disruptive activities (8303); that he notify of his residential address within five days of grant (8513); that there be no material change in the circumstances on the basis of which the visa was granted (8514); that he must do everything possible to facilitate his removal from Australia (8541); that he must report for removal from Australia (8542); that he must facilitate his removal from Australia (8543); that he must obtain approval for certain occupations (8551); that he must notify any change in employment details (8552); that he must not be involved in activities prejudicial to security (8553); that he must not acquire specified goods (8554); that he must obtain approval before undertaking specified activities (8555); that he must not communicate with specified entities or organisations (8556); that he must obtain approval to acquire chemicals of security concern (8560); that he must attend an interview if directed (8561); that he must not take up specified employment (8562); that he must not undertake specified activities including using, possessing or participating in training in the use of weapons or explosives (8563); that he must notify for any interstate or overseas travel (8614); that he must abide by specified curfew (8620), that he must wear a monitoring device at all times (8621); that he must not contact the victim or family member of a victim of his offending (8624) and that he must notify changes in his personal details (8625).[59]

    [59] Hearing Book at 879

27. Of most concern to the applicant’s guardian are the requirements that the applicant abide by a curfew which require him to remain at a specified address from 10pm to 6am and to wear an electronic monitoring device. In a letter to the Department dated 14 April 2025 the office of the Public Advocate requested the delicate remove those conditions on the basis that they were causing significant hardship for the applicant. It was noted that his homelessness prevented him from complying with the condition that he remain at a specified address during the curfew hours or wear an electronic monitoring device that he is unable to charge. It is clear from the correspondence that similar representations had been made at an earlier date without success.[60]

    [60] Letter from Public Advocate to Department dated 14 April 2025 at HB438

28. As referred to earlier in these reasons, it is not in dispute that while the applicant was accommodated in the motel immediately following his release from detention, officers of the ABF attended the motel daily to charge his electronic monitoring device. This appears to have resulted from the guardian’s contact with the Department dated 29 January 2025, advising the Department that the applicant has no means of phone contact and that as his guardian she was receiving constant text messages advising her that the monitoring device needed charging that she had no way to pass on. She advised the Department that the applicant lacked capacity to understand that he could be charged with an offence as a result and no way to charge the device. She noted that she had asked Life without Barriers for assistance with charging the device but they had advised that they were unable to assist.[61]

    [61] Letter from Rebekah Jardine to Department dated 29 January 2025 at HB401

29. Since the applicant became homeless, ABF officers have attended the park bench in Sunshine where he sleeps, to swap his electronic monitoring device for a new device with full battery.[62] It is apparent that his Electronic Monitoring Device (EMD) also generates alerts when he breaches his curfew. ABF field notes and correspondence record incidents such as one that occurred on 7 March 2025, when the applicant’s EMD indicated that he was in a park in Craigieburn. When located by police he said he had become lost and so laid down to look at the stars and he was grateful police had found him and agreed for them to take him home. Later that same night his EMD was detected in the vicinity of another park in Craigieburn and the ABF officer recorded that they had not called the VicPol number again as they believed the applicant may again be looking at the stars. The officer stated that the ABF would continue to monitor him and contact VicPol again if he moved away from that location without returning home. They noted that the curfew alert had been referred to CCMD, but they considered that similar issues with the applicant were likely to be ongoing.[63]

    [62] ABF field notes at HB896 – 1025; Letter from Rebekah Jardine to Department dated 29 January 2025 at HB401

    [63] HB893

30. Failure to comply with either the curfew or the monitoring device conditions is an offence under the Act, carrying penalties of up to five years but a mandatory minimum sentence of one year.[64]

    [64] ss 76C, 76D, 76DA

31. It is apparent that the applicant has no capacity to comply with conditions of the BVR and this appears to be acknowledged in the arrangements made by the ABF. It is hard to think of a more extreme example of the hardship caused by these conditions than the exposure of a person to serious criminal sanctions, when they are a person who is homeless and has no practical means of complying with the conditions and who lacks capacity, by reason of his disability, to understand the consequences of non-compliance.

    Prospective Third Country Reception Arrangement

32. The applicant contends that another statutory consequence of any decision to refuse to revoke the cancellation is that he will be subject to the provisions in ss 76AAA and 198AHB of the Act concerning removal pursuant to a third country reception arrangement.

33. The respondent disputes this contention, submitting that as held in TCXM v Minister for Immigration and Multicultural Affairs, entry into an agreement with a third country is an exercise of non-statutory executive power and therefore not a “statutorily prescribed consequence” of a decision to affirm.[65] The respondent contends that s 198AHB only applies if the Commonwealth exercises its executive power to enter into a third country reception arrangement and the evidence before this Tribunal is that the Commonwealth has not done so.

    [65] TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [110]-[127]

34. The “legal consequences” to which the Tribunal must have regard are the “direct and immediate statutorily prescribed consequences”:[66] The Full Federal Court in Taulahi described it this way:

    The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation.[67]

    [66] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [9]-[10] (Allsop CJ and Katzmann J), [177]-[178].

    [67] Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]

35. In TCXM, the Federal Court of Australia held that entry into a third country reception arrangement involves an exercise of non-statutory power.[68] Even if that were not the case, entry into such a third country reception arrangement is clearly not a legal consequence of the Tribunal’s decision in the review.

    [68] TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [127] and [129]

36. In the same decision, the Court noted that it was common ground that the act of applying for a Nauruan visa pursuant to the Interim Arrangement was an exercise of statutory power, namely the power conferred by s 198AHB(2).[69] I consider that the exercise of the statutory power conferred by s 198AHB(2) is part of the legal framework in which this decision is made and therefore must be taken into account.

    [69] Ibid at 142

1. The material relevant to this issue is contained in the confidential material lodged in response to the Notice under section 500 (6K) of the Act issued by the Tribunal and discussed earlier in these reasons. Having reviewed that material carefully, noting that it is subject to restrictions on disclosure and publication because it attracts public interest immunity, I consider it appropriate to restrict my references to that material in these reasons to the agreed facts provided by the parties:

   1)The Interim Third Country Reception Arrangement relates only to an initial cohort of 3 individuals.

   2)Each of the initial 3 individuals have been granted a Nauruan visa under the Immigration (Long Term Stay Visa) Regulations 2025 and taken into immigration detention for the purpose of their removal.

   3)There are around 280 individuals affected by the decision of the High Court in NZYQ (“NZYQ cohort”).

   4)Negotiations with the Republic of Nauru relating to a potential further third country reception arrangement for the purposes of s 198AHB are ongoing.

   5)There has been detailed discussion between representatives of the Commonwealth and Nauru concerning the number of individuals who could be transferred to Nauru under any further third country reception arrangement, including whether the majority, or a substantial number, of the NZYQ cohort could be transferred.

2. The Tribunal is satisfied that the above facts are consistent with the confidential material provided to the applicant and finds accordingly.

3. The respondent contends that it is not appropriate for the Tribunal to assess the likelihood of the Commonwealth entering into a further arrangements with Nauru, because whether a further arrangement is entered into is a decision of the Commonwealth executive, which will necessarily depend on politically sensitive matters and the conduct of foreign relations. It is contended that if the Tribunal were to be satisfied that the mere possibility that the applicant may at some time in the unknown and unguaranteed future be subject to s 76AAA is a legal consequence of the decision, the remoteness of that consequence should mean that the Tribunal gives it very low weight.

4. By contrast the applicant contends that the issue of his liability for removal to Nauru is not one that requires the Tribunal to speculate in the manner contended by the respondent, rather the task of predicting future events is central to decision made under s 501CA(4). The applicant contends that even if the applicant’s removal to Nauru is only ‘possible’, occurring at an unknown and unguaranteed time in the future, that possibility is still a matter of importance given the gravity of the event involved. I accept the submission of the applicant in this regard.

5. It is apparent from the agreed facts set out above that the applicant is not and cannot be subject to the Interim Agreement because it relates to only three individuals who have already been identified and do not include the applicant.

6. It is also apparent that while detailed discussions are continuing between representatives of the Commonwealth and Nauru in respect of a further arrangement dealing with the majority, or a substantial number, of the NZYQ cohort, no such agreement has been reached to date.

7. I accept that any future arrangement between the Commonwealth and Nauru is not a legal consequence of this Tribunal’s decision. I further accept that the ongoing negotiations between the Commonwealth and Nauru may not be concluded, or may be concluded on significantly different terms than those contemplated in the confidential material.

8. However I do not consider it speculative to have regard to the fact that negotiations between the Commonwealth and Nauru parties are ongoing and include consideration of whether the majority, or a substantial number, of the NZYQ cohort (numbering approximately 280 according to the agreed facts) could be transferred to Nauru.

9. I note that other material before the Tribunal (which does not form part of the confidential material discussed above) includes a letter from the Minister for Home Affairs (Australia) to the President of Nauru dated 31 January 2025 attaching the Interim Third Country Reception Arrangement. That correspondence and the attached Interim Third Country Reception Arrangement is reproduced without redaction in TCXM and states among other things that:

   . . . The Government of Nauru is amenable to accepting individuals without any reservation in relation to age, past offences, or other characteristics.[70]

   [70] TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 [42] - [43]

10. The respondent did not produce any documents in response to paragraph (a) of the Notice which required the production of any general criteria that apply for the selection of non-citizens for removal to Nauru. Nothing in the materials before the Tribunal suggests that specific persons or classes of persons within the NZYQ cohort are excluded from the Interim Third Country Reception Arrangement. In considering whether the applicant may be included in the scope of any further agreement, the parties agree that there is no suggestion that a further arrangement between the Commonwealth and Nauru would involve different eligibility requirements or processes from the Interim Arrangement.

11. For these reasons I consider that should the Commonwealth and Nauru reach a further arrangement about the transfer of the majority, or a substantial number, of the NZYQ cohort to Nauru, there is no reason to think the applicant will be excluded from that arrangement notwithstanding his severe and complex medical issues. As such I consider that I should consider the likely effect on the applicant of the exercise of the statutory power to apply for a Nauruan visa should a further arrangement be reached.

12. The applicant has referred the Tribunal to a report of the United Nations describing Nauru as one of the world’s smallest independent states with a population of 12,581 people and reporting that it has “the worst human development indicators in the region and the highest incidence of food poverty, with one in four people living below the basic needs poverty line.”[71]

    [71] Republic of Nauru | United Nations in Micronesia at HB1640

13. While the Department of Foreign Affairs and Trade has not published a country information report on the Republic of Nauru, the Tribunal has been referred to various other sources of country information indicating that the country “faces a triple burden of communicable diseases, NCDs [non-communicable diseases], and climate- and environment-related this health impacts”[72]; that the country is in the group of a mental health crisis and that in 2018 the Nauruan government ordered Medicins Sans Frontieres (MSF) to immediately stop providing psychological and psychiatric services to residents, asylum seekers and refugees in the country, despite a physical and mental health crisis.[73] The applicant also raises issues about the current government’s ability to deal responsibly with financial aid, including payments made pursuant to the Arrangement.[74]

    [72] World Health Organisation Our work in Nauru 3 October 2024 at HB1644

    [73] ‘Nauru orders MSF to stop mental health work on island’ | Nauru | The Guardian

    [74] Hearing Book 1665 - 1668

14. In summary the applicant contends that Nauru is a poor nation with insufficient resources to deal adequately with the complex physical and mental health issues experienced by many people within the NZYQ cohort and it cannot be assumed that those problems would be addressed by any additional resources made available to it pursuant to any future Arrangement.

15. The respondent contends that the terms of any Nauruan visa granted to the applicant under a future third country reception arrangement would include a reasonable living allowance: Immigration (Long Term Stay Visa) Regulations 2025 (Nr), reg 13; Schedule 3. It is submitted that the information relied on by the applicant about Nauru’s healthcare systems is dated and the allegations in media reports about misconduct on the part of Nauruan officials should be given no evidentiary weight. The respondent accepts the applicant would face difficulties if removed to Nauru but submits that little weight should be given to this consideration given that removal is at present remote, or highly unlikely.[75]

    [75] Respondent’s Statement of Facts, Issues and Contentions

16. I accept that there is little available information about the current state of health services on Nauru and that any future arrangement may encompass additional health services as part of that arrangement. I do not accept the prospect of the applicant’s removal is remote, or even unlikely, although I accept it cannot occur unless and until the Commonwealth and the Government of Nauru enter into a further third country reception arrangement.

17. I consider the applicant’s personal and medical circumstances indicate he requires significant and specialised medical and disability support. For the reasons set out above, I have found that he was first diagnosed with schizoaffective disorder while in prison in July 2019 after experiencing grandiose delusions, disorganisation and visual hallucinations. At that time his long-term prognosis was described as ‘guarded’ given that he had shown ‘at best very mild improvements’ while taking medication in prison residential psychiatric units.[76] His schizophrenia is described as ‘treatment resistant’, meaning that he continues to experience symptoms including hallucinations and delusions even when he is compliant with medication.[77]

    [76] Hearing Book 259

    [77] Oral evidence of Ms Pamela Matthews

18. He has been subject to orders appointing the Public Advocate as his guardian and State Trustees as his administrator since January 2022, each made on the basis that he lacks capacity due to his disability to make decisions about financial matters or personal matters including where he lives, the support services that are provided to him and these are in residency issues.[78]

    [78] Orders of the Victorian Civil and Administrative Tribunal at Hearing Book 166-168, 290-291 and 389

19. The most current medical report available to the Tribunal is dated 3 June 2025. It records that the applicant continues to present with hallucinations, diminished emotional expression and continues to meet the diagnostic criteria for schizophrenia. It states that his mental health is such that in the criminal jurisdiction, he would be unfit to plead and in respect of the Tribunal proceedings he is unable to understand the nature of those proceedings, follow those proceedings or understand the effect of the evidence relied upon against him.[79]

    [79] Report of Pamela Matthews, Victorian forensic and Clinical Consulting dated 3 June 2025 Hearing Book 1589

20. Other evidence before the Tribunal indicates the applicant has been hospitalised on three occasions since his release from detention in December 2024, apparently in the context of his ongoing drug use.[80] He is reported to use drugs to self-medicate, particularly heroin to aid his sleep and methamphetamine to manage his auditory hallucinations.[81]

    [80] Statement of Ms Jardine dated 4 June 2025 HB1585

    [81] Report of Pamela Matthews, Victorian forensic and Clinical Consulting dated 3 June 2025 Hearing Book 1589

21. In light of the severity of the applicant’s medical and mental health conditions including his lack of capacity to make any decisions about his personal or legal affairs, I consider that his potential removal to Nauru will have an extremely grave and detrimental impact on him.

22. Each of the above legal consequences is an intended consequence of s 501 of the Act. However their effect on the applicant could hardly be more profound, whether he remains in Australia on a BVR subject to conditions with which he has no capacity to comply and which carry significant criminal sanctions, or whether he is ultimately removed from Australia and the medical and other support arrangements that are available to him here.

23. In these circumstances, I consider that the legal consequences of the decision weigh strongly in favour of revoking the visa cancellation.

    Extent of impediments if removed

24. Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1) of the Direction, the Tribunal must consider the extent of any impediments the applicant may face if removed to their home country, in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1) are:

    • The Applicant’s age and health;
    • Whether there are substantial language or cultural barriers; and
    • Any social, medical and/or economic support available to the Applicant in their country.

25. In this case the applicant is a 36-year-old male with very severe and complex mental health conditions discussed above.

26. I note that clause 9.2 of the Direction does not extend to considering any impediments the applicant may face if removed to a country other than their home country. It is agreed between the parties that in circumstances where there is no real prospect of his removal to his home country of Cambodia in the reasonably foreseeable future, this consideration is not relevant to the Tribunal’s decision.

    Impact on Australian business interests

27. Clause 9.3 of the Direction states:

    (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

28. There is no evidence before the Tribunal that the cancellation of the applicant’s visa will have any impact on Australian business interests and I weigh this consideration neither for nor against the revocation of the visa cancellation.

    CONCLUSION

29. The applicant does not pass the character test under s 501 of the Act, and I must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.

30. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[82]

    [82] [2023] FCAFC 138, [23].

31. In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction. 

32. Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[83] 

    [83] Ibid [27].

33. For the reasons set out above, I have found that the protection of the Australian community weighs in favour of revocation of the visa cancellation because I have found that the applicant’s risk of reoffending will be reduced if he has access to specialised disability support services such as NDIS or VIN-CoS, neither of which are available to him while he holds the BVR. I have given this factor only moderate weight, accepting that the Australian community may bear that risk for a longer time than would otherwise had been the case, if it were to become possible to remove the applicant to Nauru or some other place at some time in the future.

34. I have found that despite his long residence in Australia, the applicant has no family or social ties to the Australian community, other than two siblings with whom he has not been in contact for a long time. I have given this factor only minimal weight in favour of revoking of the decision to cancel his visa.  I have found that the Australian community expects that as the applicant has engaged in serious criminal offending, and is at high risk of reoffending, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia and I have given this factor moderate weight against the visa revocation.

35. I have found that the legal consequences of any decision not to revoke the visa cancellation upon the applicant would be profound, whether he remains in Australia on a BVR subject to conditions with which he has no capacity to comply, or whether he is ultimately removed from Australia to Nauru or some other country under a third country reception arrangement. I have weighed this factor strongly in favour of revoking the visa cancellation.

36. I have found that the considerations relating to whether the conduct engaged in by the applicant constituted family violence; the best interests of minor children in Australia and the extent of impediments if removed are not relevant to my consideration and that the impact on Australian business interests weighs neither for nor against the revocation of the visa cancellation.

37. I conclude that the combined weight of the considerations that weigh in favour of revocation of the visa cancellation outweigh those that favour cancellation of the applicant’s visa. In particular the protection of the Australian community and the legal consequences of the decision cumulatively weigh in favour of revocation of the visa cancellation.

    DECISION

38. The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.