CYNW and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1007

CYNW and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1007 (1 July 2025)
Applicant/s:  CYNW
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2024/8088

Tribunal:General Member S. Fenwick
Place:Melbourne
Date:1 July 2025
Date of written reasons: 11 July 2025

Decision:The Tribunal sets aside the decision dated 14 October 2024 refusing to grant a Partner (Provisional) (Class UK) visa and substitutes it with a decision the Applicant not be refused grant of a visa under s 501(1) of the Migration Act 1958 (Cth).

................................[SGD]........................................
General Member S. Fenwick
Catchwords
MIGRATION – refusal to grant Partner (Provisional) (Class UK) visa – whether applicant does not pass character test – nature and circumstances of past offending – family violence-related offending – consideration of risk to the Australian community – decision set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Family Violence Protection Act 2008 (Vic)
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Minister for Ethnic Affairs v Guo (1997) CLR 559
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND

CYNW applied on 14 October 2024 for review of a decision of the delegate of the Respondent Minister of the same date refusing the grant of a Partner (Provisional) (Class UK) visa. The decision was based on the delegate determining they were not satisfied that CYNW passed the ‘character test’, and deciding not to exercise the discretion to grant a visa under s 501(1) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant is presently aged 39 and is a citizen of Pakistan, having first arrived in Australia on a student visa in early 2007. He applied for a Protection Visa in 2013 (ultimately with no success), and in mid-2014 a relationship of some years standing ended. In 2019, CYNW met and married his wife, and the couple have two young children born in 2020 and 2023, respectively. CYNW applied for the partner visa that is the subject of the application before the Tribunal in late 2020. The Applicant was engaged in clerical work until a car accident in mid-2023 which led to him ceasing work later that year.
CYNW has been in immigration detention since the date of the decision under review (that is, from October 2024). His application was the subject of a previous decision of this Tribunal, in early 2025. The matter was subsequently remitted by consent, and accordingly came before me for re-hearing.
The Applicant has a number of immediate family members living in Australia as either citizens or holders of permanent visas. One sibling was granted a protection visa in 2016, as were his parents in August 2024. Another sibling holds a form of bridging visa. CYNW has two additional siblings who are Australian citizens. Among this family group are also spouses and several nieces or nephews under 18 years. CYNW has another sibling living in Pakistan who is married with children.
CYNW has a record of convictions for family violence-related offending and a single traffic offence, and this – in essence – is the source of the delegate’s decision to refuse his visa. Both interim and final Family Violence Intervention Orders were granted in favour of his former partner arising from the Applicant’s conduct toward her over a period of approximately 12 months commencing in mid-2014, shortly after their separation. CYNW was convicted in March 2016 of persistently breaching both forms of order. Briefly stated, his conduct involved a substantial number and types of harassment and stalking. He also has a conviction for driving while authorisation suspended, which led to a fine of $1,000.
The Applicant was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (‘ASFIC’) and a Reply, as well as a bundle of documents comprising statements and evidence (‘ATB1’), and a smaller bundle comprising additional statements (‘ATB2’). The Respondent lodged documents under s 500 of the Act, an RSFIC, and a tender bundle (‘RTB’).
Evidence was given at the hearing by CYNW, his wife, the Applicant’s father and one sibling (both with the assistance of an interpreter in the Urdu language), and by Dr Emily Kwok, clinical and forensic psychologist.
I delivered a decision and brief reasons orally at the conclusion of the hearing. I did so by reference to the Objectives statement in s 9 of the Administrative Review Tribunal Act 2024 (Cth), and in the context of this as a remittal. I acknowledged that this was a somewhat unusual approach. However, I noted in particular that the hearing of the application had been somewhat prolonged (and hence CYNW had continued to be detained) due to factors including the respective availability of the parties and Tribunal.
LEGISLATION
The Act provides, in s 501(1), that the Minister may refuse to grant a visa to a person if they do not satisfy the Minister that the person passes the character test. The character test is defined in various ways in s 501(6). Relevantly, a person does not pass the character test if:
…
(d)       in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)        engage in criminal conduct in Australia; or
(ii)       harass, molest, intimidate or stalk another person in Australia
…
In respect of the second category of conduct, s 501(11) of the Act provides that conduct may amount to harassment or molestation even though it does not involve violence or threatened violence.
This provision has been considered by the Full Court of the Federal Court of Australia, and its decision in Minister for Immigration and Border Protection v Sabharwal [2018] FACFC 160 includes the following relevant observations [2]: the decision-maker must first be satisfied that there is ‘a risk’, and this is an evaluative judgment; if so satisfied, the decision-maker has discretion to refuse the visa.
Exercise of the (latter) discretion, must be informed by Direction No. 110 (‘the Direction’) which, under s 499 of the Act, comprises written directions to those having powers under the Act. Under s 499(2A) of the Act, I must comply with the Direction.
I note that Annex A to the Direction contains commentary upon the application of the character test, and in respect of s 501(6)(d) states as follows [5.2(2)]:
The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
I note further the contention of the Respondent (RSFIC [34]) that the provision found its present form due to legislative amendment in 2014 intended to ensure that risk less than ‘significant’ risk would be sufficient to meet the threshold. With reference to the related Explanatory Memorandum, the intention was said to be that ‘the level of risk required is more than minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
Further, Annex A to the Direction provides:
(a)in reference to s 501(6)(d)(i) of the Act – risk of engaging in criminal conduct in Australia is a reference to conduct for which a criminal conviction could be recorded [6.1]; and
(b)in reference to s 502(6)(d)(ii) of the Act – the words harass, molest, intimidate and stalk are to be given their ordinary meaning, and can include such conduct whether or not it breaches a relevant order, or that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed.
The evaluative exercise of determining whether there is a risk in the future of more than a minimal kind is one informed by principles identified by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at 574-575), and essentially restated by the Full Court of the Federal Court of Australia in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (Mortimer J [77]-[84]) (‘Splendido’). In short, understanding the nature and circumstances of historic offending is integral to consideration of the likelihood of future offending. A qualitative assessment should be undertaken that includes an appreciation of whether factors that may have borne on prior offending might be repeated, and this can include evidence of rehabilitation. Further, findings about reoffending require an evident, intelligible and rational foundation (Welahan J, Splendido [131]).
Otherwise, exercise of the discretion in s 501(1) of the Act is to be informed by The Primary and Other Considerations identified in the Direction. A set of Principles also provide the framework for decision-making under the Direction [5.2]:
(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 measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(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)In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The specified Primary Considerations are [8]:
(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.
The specified other considerations include, but are not limited to [9]:
a)    legal consequences of the decision;
b)    extent of impediments if removed;
c)    impact on Australian business interests.
The Direction provides that the primary consideration of protection of the Australian community is generally to be given greater weight than the other primary considerations, and these should generally be given greater weight than other considerations [7(2)]. One or more primary considerations may outweigh other primary considerations [7(3)].
The Direction defines family violence broadly and by reference to examples including stalking [4(1)]. Acts of family violence are identified as forms of conduct viewed ‘very seriously’ by the Australian Government and Australian community [8.1.1(1) a) iii]. The seriousness of family violence is to be understood in the light of factors including rehabilitation achieved at the time of a decision, such as whether the non-citizen accepts responsibility for their actions and understands the impact on the abused party [8.2(1), (3)].
ISSUES
I must first consider whether CYNW fails the character test by reason of there being a risk that he will engage in criminal conduct in Australia, including by way of harassing or stalking another person.
If so found, I must then consider whether to exercise the discretion to refuse the Applicant’s partner visa, with reference to the considerations identified in the Direction.
CHARACTER TEST
Nature of offending
There are several sources giving insight into CYNW’s past relevant conduct, including offending. The National check results report for the Applicant (G7) records his history of convictions. In an appearance before a Magistrate in March 2016, CYNW was convicted upon multiple charges of contravention and also persistent contravention of an Interim and a Final Family Violence Intervention Order. He received a sentence of imprisonment of an aggregate 12 days, and a Community Corrections Order (‘CCO’) for 18 months, including 100 hours of community work. In June of the same year, the Applicant was convicted and fined for drive whilst authorisation suspended.
The materials include extracts of the register of the Magistrate’s Court (G8), but the parties accept that a summary of conduct included in the ASFIC at [5] (ignoring one unintended repeat entry) is a fair rendering of CYNW’s conduct in respect of his former partner. In summary, the conduct took place between August 2014 and April 2015. CYNW acknowledged in evidence certain key elements including the making of phone calls numbering at least in excess of 600 (and multiple times per day in some instances), sending text messages numbering in the hundreds (and also multiple instances per day), some of which messages included threats to kill himself.
Of further attention at the hearing was evidence about particular instances of physical stalking of CYNW’s former partner. Evidence from the Applicant and his sister acknowledged an instance in which CYNW followed his former partner to a local police station where she engaged in a child custody handover to her former partner, after which the Applicant approached her in a car park, entered her vehicle and verbally abused her. The Applicant in other instances stood outside her house and, in a further instance, attended her workplace in a shopping centre and this led to him pulling at her arm. The Respondent also relied in evidence upon extracts of evidence given in the prior Tribunal hearing of this matter in support of nature of this conduct.
In his most recent statement (ATB1/B/1), the Applicant acknowledges that these convictions amount to family violence, and that he made pleas of guilty [10], [12]. He acknowledges that the final intervention order was put in place for a 12 month period [8]. I note that at the hearing, CYNW was unable to recall whether he had been made aware at the time of the nature of such orders. CYNW also states that the conduct ‘created an environment of emotional distress, fear, and instability, which left her feeling unsafe’ [12].
In his evidence, CYNW was somewhat less clear about his driving offence. I understood him to state that he had accumulated demerit points, and in one specific instance chose to drive through an intersection against a red light, having waited to turn prior to this. I also understood the Applicant to say that he had been driving at the time in connection with work, and he also cited the need to help family with medical appointments. In his recent statement (ATB1/B/1), the Applicant recalls that his licence was suspended while he was taxi driving due to demerit points [13]. Consistent with evidence at the hearing, he was charged with the offence in an incident while driving with his sister to a medical appointment [16].
Circumstances of offending
At the hearing CYNW gave evidence consistent with his most recent statement (ATB1/B/1). That is, his family violence conduct and offending occurred following the breakdown of a relationship. He also stated that he experienced emotional distress at that time and a kind of mental cloudiness and, in his statement, refers also to struggling to manage his mental health after shoulder surgery, that he was experiencing constant pain, and was on strong pain medication [12], [24].
With respect to the driving conduct, CYNW states (ATB1/B/1) that, at the time of the suspension, his family was experiencing difficulty paying bills, they were unemployed, and they could not afford alternative means of transport [15].
In the first of two reports (ATB1/A/E18), Dr Kwok provides a narrative that CYNW’s parents disapproved of this relationship as the Applicant’s partner was older and had a child, and that the partner’s mother asked for a dowry which CYNW’s mother disapproved of [28]. Dr Kwok adds that the Applicant fell in love with his partner, but she wanted to end it, and he reported developing mental health problems and anxiety on being unable to see her [29].
Some evidence was sought at the hearing in respect of the circumstances of this issue. The Applicant’s father, for example, denied having met his son’s partner. I understood CYNW’s sister to confirm that she and the Applicant lived with their parents at this time, and she stated that the subject of the end of the relationship was discussed in the household. CYNW’s father stated that he was not aware of this son’s conduct during the period 2014-2015. This appears to be broadly consistent with his most recent statement (ATB1/B/3) in which he states that CYNW opened up about his offending ‘soon after it happened’ [16]. The Applicant’s sister stated that her parents did not approve of the partnership, but also that they had said if the victim did not wish to pursue it, CYNW should leave her alone.
I specifically asked CYNW at the hearing to confirm his partner’s circumstances at the time of the family violence offending. The Applicant acknowledged that she did not have a good relationship with her previous partner, and stated that he should have been more supportive of her, and should not have caused distress and he was deeply regretful about this feature of his conduct.
Likelihood of reoffending or posing a risk
In his most recent statement (ATB1/B/1), CYNW states that he takes full responsibility for his family violence offending and this his state of mind at the time does not excuse it [12]. He also deeply regrets his driving conduct [19]. He states further that he was young and emotionally inexperienced when his relationship broke down and ultimately acted in a destructive manner toward the victim [20]-[21]. CYNW states that his formal rehabilitation included participation in a Men’s Behaviour Change Program within his CCO [22]. This gave him insight and deepened his self-awareness. The Applicant states he then pursued psychological support [23]. CYNW considers that he has learned to manage physical and emotional pain, to address impulsiveness, and he describes his learning in more detail [25]-[27].

CYNW describes his marriage, current relationship and experience with pregnancy and childbirth at some length [38]-[57]. He describes a diverse work employment history that includes commercial and community roles, such as a period with the Asylum Seeker Resource Centre, and relatively recent interruption to employment due to a transport accident [70]-[79]. Here, as in evidence, CYNW expresses his confidence that he will continue in employment (reinforced to some extent by material lodged addressing current work opportunities (ATB1/B/18)).
This statement, together with extensive other material lodged (ATB1), sets out CYNW’s role in founding a faith-based charity (leading to receipt of a community award), involvement in community activity such as an anti-racism campaign, membership of a community inter-faith network, and various community events [91]-[106]. The evidence and material overall are substantial.
At the hearing the Applicant spoke in direct language and with apparent sincerity about the impact of both forms of offending and the regret that he feels. CYNW stated he would never again reoffend and that he is determined to be an asset to the community and not a threat. The Applicant stated that he had been affected in particular by his time in immigration detention, which reinforced his focus on the importance of his wife and two children. CYNW described a range of community and volunteer work, including his lifelong interest in traditional song, and charity work such as providing food relief, and engaging with politicians in community events.
CYNW’s wife sets out her personal history in her most recent statement (ATB1/B/2). She is an Australian citizen and arrived here on the basis of professional qualifications and she met and married CYNW over a relatively short period in 2019 [5], [7]. Both here and in her oral evidence she describes what I consider to be a relatively specific understanding of the Applicant’s offending, indeed offered to her in their very first meeting in person. She states in writing, and said in evidence, that he has grown and matured, particularly with fatherhood. The Applicant’s wife also explains at length the role he has played both with her and their children [16]-[19].
The narrative of maturity also emerged in the evidence of CYNW’s father. He stated that the Applicant had a different temperament before marriage, and his life is now more balanced, having forgotten his old habits. He was unable to expand substantially on this in further questions, except to add that this was a reference to CYNW’s behaviour toward his former partner. The father was aware of his son undertaking ‘many courses’ and he stated that he had given CYNW counsel, and that he had taken him to the police station on one occasion in relation to his offending. The Applicant’s father expressed a firm belief that his son would not reoffend. I note also the statements in his recent statement (ATB1/B/3) with respect to CYNW’s character, care for his parents, ability to overcome obstacles, and contribution to the community and his own immediate family [11]-[14].
In her first report (ATB1/A/E18), Dr Kwok sets out in detail the results of psychometric testing [52]-[61]. She also describes the use of a domestic assault risk assessment tool (ODARA) [62]-[64]. In her evidence at the hearing, Dr Kwok explained very clearly that in her opinion this instrument was appropriate given his family violence conduct and offending. I set out here the conclusion arrived at [71]:
Based on [CYNW’s] score … approximately 17% of individuals within his risk category commit another assault against their partner that comes to the attention of police within about five years. This places him in the low level risk for domestic violence offending.
Dr Kwok adds that the instrument does not take account of so-called dynamic factors, and accordingly, notes CYNW’s participation in the rehabilitative work described by the Applicant, and identifies other protective factors [72]-[74]. These are: currently stable marriage and close bond with children; support from parents and siblings; support through involvement in his faith community; and, other community connections. In addition, she notes individuals with his particular personality profile are ‘generally less likely to engage in aggressive behaviours, such as physical violence, acts of defiance, or verbal aggression.’ Dr Kwok also states that CYNW ‘does not impress as inherently antisocial in his behavioural pattern and underlying attitude’ and also has no history of substance abuse, nor of violence in non-domestic settings. She also concludes that the Applicant has ‘responded to intervention that addressed his criminogenic needs’ [94].
In her second report (ATB1/B/16), Dr Kwok adds a further specific assessment, being that CYNW has a low risk of general offending [79]. With respect to the circumstances in particular of driving offences, she describes CYNW’s disregard for the law as ‘consistent with his general poor judgment and lack of consequential thinking during a period of mental distress’, in contrast with his current insight and understanding of the seriousness of his offences [84]. Dr Kwok states further that given the length of time without re-offending, that risk decreases over time as an individual demonstrates the ability to remain offence-free. She considers this a ‘positive prognosis’ [86].
In her evidence Dr Kwok stated that the dynamic factors are the main determinant of reoffending. She agreed with the proposition that the family violence conduct could fairly be described as ‘contextual’, as in arising from the breakdown of a relationship. Assuming other factors do not change, she considered CYNW’s risk of reoffending remains in the low range. She also noted that this is a result of her opinion that the Applicant does not require much intervention or treatment to address the risk of reoffending. Further, CYNW does not present with a current need for any intervention.
Dr Kwok stated consistently in cross-examination her view that CYNW’s offending constituted a form of violence, and she confirmed in response to my own question that she has relevant current experience in family dispute resolution, and so in family violence. When I sought clarification from Dr Kwok based on questions about the numerical scale for risk she concluded – with reference to the dynamic protective factors found – that CYNW’s risk was less than the figure mentioned in her report.
She agreed with the Respondent’s proposition that relationship breakdown– in general – increases the risk of offending in any individual. Dr Kwok also restated her view that, outside of any mental health issues arising from CYNW’s present detention, his post-offending treatment had been effective. It is also her view that CYNW exhibits less emotional distress than the general offending population. Dr Kwok was reluctant to speculate about how CYNW might react to future stressors, noting that he may deploy the skills adopted from his rehabilitation. She confirmed in response to a question from myself that she had not been presented with any independent material confirming the Applicant’s reported rehabilitation work. However, she also confirmed that his overall presentation did not conflict with his self-reporting.
Submissions
It is submitted for the Applicant that he passes the character test. The scope of family violence conduct admitted to was highlighted, and it was urged that no consideration should be given to the approach taken to family violence in the Direction. In support of the argument that CYNW presents only a remote risk of reoffending, reference was made to the absence of any reoffending and his conduct in general over a ten year period. It is contended that the Applicant has undergone significant maturation, and his own family dynamic is an enormously significant factor.
In the context of Dr Kwok’s evidence it was put that CYNW could not have realistically done much more to rehabilitate himself. It was submitted that there is no basis for a finding that his conduct could be repeated outside a relationship breakdown. Moreover, it was stressed that there is no material evidence suggesting the breakdown of his marriage is anything but a remote possibility. It is also submitted that CYNW has only a remote possibility of repeating driving offences. The Applicant’s submissions overall are consistent with the written submissions (ASFIC [28]-[34]).
The Respondent submits that CYNW fails the character test and, should it not be considered there is future risk of criminal conduct, he is at risk of harassment, intimidation or stalking. This position rests, fundamentally, upon the Applicant’s history of offending and his campaign of family violence conduct against his former partner. Doubt was cast upon the relevance of the maturation narrative, on the basis that CYNW was a man of twenty-eight years of age at the relevant time. The Respondent accepts the family violence conduct as being contextual, but contends that these circumstances could clearly arise again; a marriage breakdown cannot be ruled out. It is submitted the risk exists and it is beyond a minimal or trivial level. The matters raised at the hearing are consistent with the written submissions (RSFIC [39]-[43].
Consideration
Some initial attention must be paid to confirming the scope of the legislative test in this matter, in the context of the evidence. This matter concerns the probability of a risk arising in the future that CYNW would engage in criminal conduct, or conduct comprising actions such as would harass, molest, intimidate or stalk another person. It is clear from the authorities that a past criminal record may be pertinent to a future risk, but is not at all decisive. CYNW has a record including a driving matter, as well as convictions arising from breaches of family violence orders. He also has, and openly acknowledges, a record of conduct that is best understood as family violence.
Family violence is a widely understood concept in contemporary Australian law and society. In addition, I note the orders to which CYNW was subject are governed by a statutory regime under the Family Violence Protection Act 2008 (VIC). This act adopts a broad definition of family violence embracing abuse of both a physical and diverse non-physical kinds, and behaviour that is threatening, coercive or controlling of a family member (s 5). A family member includes a person who has been an intimate partner (s 8).
There is nothing in the language of the character test as defined in s 501(6)(d)(i) and (ii) of the Act that points toward consideration of the severity or impact of future offending or other relevant conduct. It might be implied that actions which may lead to a criminal conviction are of a certain level of seriousness, however the kind or level of conviction is not specified. It might also be that actions of harassment or molestation – under their ordinary meaning – could encompass a wide range of possibilities. The provision, in short, appears to be deliberately wide, presenting a relatively low threshold of relevant conduct. Clearly enough, the test of whether there is ‘a risk’ is also a deliberately low threshold. However, it is also evident that any risk must be more than minimal.
Nonetheless, consideration of the nature of CYNW’s offending and family violence conduct is, I consider, the starting point as it relevantly informs the nature of any risk. The Applicant pleaded guilty to breaches of both interim and final family violence intervention orders. The conduct that led to those orders being put in place, and the breaches found, was sustained and intense, and on the evidence of CYNW himself, of a kind that would have been distressing and harmful to the victim. He also acknowledged that his former partner was, at the time, also involved in a challenging relationship with another former partner.
The full scope of CYNW’s driving offence is somewhat less clear. However, the single conviction appears to stand before a wider period of misconduct, including unlicensed driving while operating in a commercial transport role.
I accept that the Applicant was sentenced to a short period of imprisonment, which is indicative of an inherent level of seriousness attaching to his offending. I note, equally, that he was assessed at about this time as being at low risk of reoffending and, hence, suitable for a CCO (RTB, 71).
All conduct and offending, however, is confined to a relatively well defined period of time, and is now just on ten years in the past. I consider there is adequate evidence to demonstrate that CYNW was, at this time, experiencing a level of personal dysfunction. This dysfunction was the product primarily of emotional distress at the end of the relationship, and it seems also, to some degree, the impact of surgery. I have particular regard, here, to the findings and opinion of Dr Kwok with respect to CYNW’s personality and other factors relevant to his past conduct. That is no other factors explanatory of CYNW’s period of dysfunction have been identified.
This, it is clear, has also led to the focus seen at the hearing on the likelihood of a similar set of circumstances arising in the future. That is, would the conditions (emotional distress and personal dysfunction) which appear to have fed into CYNW’s criminal and family violence conduct be likely to recur. Overall, I consider the Applicant to have addressed this correctly at the hearing. The question of a recurrence of relationship trauma relies to some extent upon a further condition being met which is the breakdown of the Applicant’s presently stable and loving marriage. Moreover, as apparent from Dr Kwok’s evidence, it also relies upon the likelihood of CYNW not coping in such circumstances.
In respect of both these matters, I am satisfied that there is a preponderance of evidence indicating that not only are those conditions a remote possibility, but that CYNW has indeed demonstrated substantial personal growth in the past ten years. I refer in support to the following:
(a)the evidence demonstrates that CYNW is indeed in a loving and strong marital relationship;
(b)he places particular store in his role as a father and he has in fact filled this role;
(c)there is uncontested evidence that CYNW has completed offence-specific mandatory treatment, and in addition undertaken a substantial amount of further psychological counselling;
(d)he has been assessed as having no underlying mental health condition, nor history of substance use;
(e)CYNW exhibits an overall personality profile that does not indicate aggressive or antisocial tendencies; and
(f)there is an abundance of supporting evidence from parties outside the Applicant’s family group attesting to a multitude of positive engagement in and contribution to the community.
I acknowledge that the expert reporting before me deserves due consideration. Dr Kwok has delivered opinions on the risk both of family violence and of general offending, and the result in both cases is that there is a low risk of repeat behaviour. The thrust of her evidence, consistent with opinion frequently given in this Tribunal, is that in the case of an individual with a criminal record there is never a nil level of risk. Despite Dr Kwok providing a specific numerical indicator in her reporting, her written opinion went on to immediately qualify this by reference to specified protective factors. I have set some of these out in summary immediately above.
I also consider that in the course of her evidence at the hearing, Dr Kwok reinforced that this already low risk continues to decline over time spent positively in the community. I also note in particular that the initial numeric score attributed by Dr Kwok is a risk of offending coming to the attention of police within five years. This assessment was itself made well beyond this indicative timeframe. As noted above, CYNW was considered a low risk of reoffending at the time of the imposition of his CCO.
Over, I am satisfied that the evidence demonstrates that CYNW has successfully undertaken appropriate rehabilitative work in the time following his offending, and continued to further demonstrate personal development and good conduct since then. Accordingly, the Applicant’s level of risk overall must be understood as only a minimal level of risk. I make this finding in respect of both elements identified in the legislative test (s 501(6)(d)(i) and (ii)).
It follows that I find that CYNW does not fail the character test, and it is not necessary to consider the discretionary power and application of the considerations in the Direction.
DECISION
For the reasons given above the Tribunal decides to set aside the decision dated 14 October 2024 refusing to grant a Partner (Provisional) (Class UK) visa and substitutes it with a decision the Applicant not be refused grant of a visa under s 501(1) of the Migration Act 1958 (Cth).

63. I certify that the preceding sixty-two (62) paragraphs are a true copy of the written reasons for the decision herein of General Member S. Fenwick

...............................[SGD].................................
Tribunal Officer
Dated: 11 July 2025

Dates of hearing: 30 June and 1 July 2025

Counsel for the Applicant:

Solicitors for the Applicant:

Solicitors for the Respondent:

Angel Aleksov

Carina Ford Immigration Lawyers

Rogan O’Shannessy, Mills Oakley