DGYZ and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2272
•27 October 2025
DGYZ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2272 (27 October 2025)
Applicant:DGYZ
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4576
Tribunal:Senior Member D Thomae
Place:Brisbane
Date:27 October 2025
Decision:Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent on 4 August 2025 to not revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 visa.
................[Sgnd]............................................
Statement made on 27 October 2025 at 2:18pm
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB subclass 155 visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– circumstances where the Applicant is alleged to be ‘stateless’ - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (CTH)
Crimes Act 1914 (CTH)
Migration Act 1958 (CTH)Cases
BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Minister for Home Affairs v Buadromo [2018] 267 FCR 320
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Another (2023) 415 ALR 254
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade - Country Information Report – Myanmar, 7 April 2025
Statement of Reasons
INTRODUCTION
Mr DGYZ (the Applicant) who is of Karen ethnicity, first arrived in Australia in November 2013 at the age of 16 years on a refugee visa (subclass 200), and then finally again in January 2020 as a holder of a Class BB Subclass 155 visa (visa).
On 1 March 2024, the Applicant was convicted of ‘the persistent sexual abuse of a child/young person under special care’ and sentenced to imprisonment for 2 years and 3 months (the Index Offence). As a result of his sentence for this offending, his visa was mandatorily cancelled on 6 September 2024.
Following representations made by the Applicant to revoke the mandatory cancellation of his visa, on 4 August 2025 a delegate of the Minister (the Minister or the Respondent) refused to revoke the mandatory cancellation of his visa (the reviewable decision).
By an application for review filed on 11 August 2025 in the Tribunal, the Applicant seeks a review of the reviewable decision not to revoke the mandatory cancellation of his visa.
BACKGROUND
The Applicant was born in Thailand in 1997 in the ‘Mae La’ refugee camp to parents of Karen ethnicity.
The Karen people primarily reside in the southeastern border region of Myanmar and are in open conflict with the government of Myanmar, causing significant internal displacement of the population and the flow of refugees into neighbouring countries like Thailand.
Since the 2021 coup, conditions in the Karen areas within Myanmar have deteriorated due to internal conflict and those living inside conflict areas ‘face a high risk of state violence and displacement on the basis of their ethnicity and perceived or actual association with armed resistance groups’[1].
[1] Exhibit R4 - Department of Foreign Affairs and Trade (DFAT) - Country Information Report – Myanmar, dated 7 April 2025
The Applicant’s father passed away in approximately 2004 and his mother abandoned him and his siblings in around 2009. The Applicant lived in the refugee camp with his siblings until 2013.
The Applicant arrived in Australia on a refugee (subclass 200) visa in November 2013 with his siblings and settled in Canberra, completing year 12 in 2016, and subsequently worked as a painter from 2019 to 2022.
It is contended that the Applicant is ‘stateless’ because he has no prospect of obtaining citizenship of either Thailand or Myanmar. The consequences of this are discussed later.
THE HEARING
The hearing of this application took place on 16 October 2025. The Applicant gave evidence in person by translator during examination-in-chief and cross-examination. In re-examination the Applicant gave evidence in English.
The Applicant was represented by Mr Angel Aleksov of counsel, instructed by Australian Migration Lawyers. The Minister was represented by Mr Andrew Keevers of counsel, instructed by HWLE Lawyers.
Given the complexity and factual density of this expedited matter, I am grateful for counsel for their submissions and conduct of the hearing to assist me to the correct or preferable decision.
The Tribunal had regard to:
(a)The documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, numbered G1 to G23, paginated from pages 1 to 182 (Exhibit R1)
(b)The Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC), filed 3 October 2025 (Exhibit R2).
(c)A bundle of documents produced under summons, witness statements, described as the ‘Tender Bundle’ and paginated from pages 1 to 206 (Exhibit R3).
(d)A document titled ‘DFAT Country Information Report – Myanmar’, described as the ‘Supplementary Tender Bundle’ and paginated as pages 1 to 51 (Exhibit R4).
(e)A bundle of documents described as the ‘Respondent’s Supplementary G-Documents’ and paginated from pages 1 to 15 (Exhibit R5).
(f)The Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC), filed 18 September 2025 (Exhibit A1).
(g)The signed statement of the Applicant (Exhibit A2).
(h)The psychological report of the Applicant, dated 15 September 2024 (Exhibit A3).
(i)The psychological report of the Applicant, dated 5 December 2024 (Exhibit A4).
(j)Bundle of supporting statements from the Applicant’s family and friends (Exhibit A5).
(k)Annotated photos of the Applicant with family and friends (Exhibit A6).
(l)Drawing and statement from the Applicant’s nieces and nephews (Exhibit A7).
(m)Relapse prevention plans and parole documentation (Exhibit A8).
(n)The Applicant’s record of involvement – Sexual Offending Program (Exhibit A9).
(o)The Applicant’s record of involvement – SMART Recovery Program (Exhibit A10).
(p)The Applicant’s record of involvement – Safe Work (Exhibit A11).
(q)Citizenship in Myanmar – Legal Framework, Contemporary Challenges and Application to the case of the Applicant (Exhibit A12).
(r)Citizenship and Statelessness in Thailand – Legal and Policy Context relevant to the Applicant (Exhibit A13).
(s)The Applicant’s refugee status under s 36(2)(a) (Exhibit A14).
(t)Report of Dr Jose Arraiza (Exhibit A15).
(u)DPP v [DGYZ] [2024] ACTSC 55 (Exhibit A16).
(v)Applicant’s response to Respondent’s SFIC (Applicant’s Reply) (Exhibit A17).
(w)Applicant’s application for parole (Exhibit A18)
(x)The oral evidence of the Applicant.
(y)The closing oral submissions of Mr Aleksov and Mr Keevers.
LEGISLATIVE FRAMEWORK
A mandatory visa cancellation can be revoked under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), which states:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’.
Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’[2].
[2] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
The Applicant concedes that he does not pass the character test.[3]
[3] Applicant’s SFIC at [19].
The remaining issue is whether there is another reason to revoke the mandatory cancellation of his visa. [4]
[4] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
THE DIRECTION
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, ‘Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains 8 principles which provide the framework for decision making to revoke a mandatory cancellation under s 501CA:
(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 noncitizens 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 noncitizen'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.
Paragraph 8 of the Direction sets out 5 ‘Primary Considerations’ that the Tribunal must take into account:
(1)The protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)The expectations of the Australian community.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
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, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[5]
[5] The Direction, paragraph 8.1(1).
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
In assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct, paragraph 8.1.1(1) of the Direction specifies the criteria I must have regard to.
In BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14, the Full Court of the Federal Court, per Rangiah and Rofe JJ, stated at [107]:
In so ruling, the Tribunal misconstrued paragraph 8.1.1. It misconstrued paragraph 8.1.1(1)(a) because that provision does not require the Tribunal to characterise offending as “very serious”. Paragraph 8.1.1(1)(a) only requires that decision-makers “have regard to”, relevantly, the view of the Australian Government and the Australian community that “violent” crimes and “crimes of a violent nature against women” are “very serious”. It is evident that such crimes may range from common assault to murder and that their seriousness and nature may also vary widely. The Tribunal was not bound by the expressed view of the Australian Government and the Australian community to regard the appellant’s offending as “very serious”. The Tribunal was required to assess for itself, “the nature and seriousness of the non-citizen’s criminal offending”, and the weight that should be attributed to that factor.
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 29 August 2024 (Check Results Report).[6]
[6] Exhibit R1, pp 73-74.
8.1.1(1)(a) of the Direction – Very Serious Offences/Conduct
Applying paragraph 8.1.1(1)(a) of the Direction the Index Offence falls within the category of ‘very serious offence’[7], namely, Persistent sexual abuse child/young person under special care, with the Applicant sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year 3 months.[8]
[7] The Direction, paragraph 8.1(1)(a)(i), (ii) and (iii).
[8] Exhibit R1, p 74.
Berman AJ, in his sentencing remarks for the Index Offence details the facts of the Applicant’s criminal offending. I do not detail in my reasons those facts as they are not contested in this application for review and are clearly expressed in his Honour’s sentencing remarks. Suffice to say, they disclose conduct of sexual offending of a very serious nature that was persistent and involved sexual violence.
The Minister describes the conduct as ‘egregious, and towards the upper threshold of serious criminal conduct’[9] and lists 9 matters which increase the gravity of the Applicant’s offending, namely[10]:
[9] Respondent’s SFIC at [26].
[10] Respondent’s SFIC at [31].
(a)The victim was an unwilling participant who was incapable of consenting at her age, in sexual activity with the Applicant on many occasions.
(b)The Applicant regarded the victim’s objections and what she wanted as irrelevant.
(c)The sexual contact between the Applicant and the victim occurred with some regularity.
(d)The gravity of the offending conduct led the Court to assume that the conduct committed against the victim had significant consequences.
(e)There was a significant gap between the Applicant (23 years old) and the victim (15 years old) given that they were at different stages of life, the maturity and power imbalance was obvious.
(f)The Applicant was in a position of trust regards the victim and used the victim’s concerns to his advantage.
(g)The Applicant overcame physical resistance from the victim in respect to the offending conduct.
(h)The Applicant fell short of complete acceptance of responsibility and a complete understanding of the harm he had caused to the victim.
(i)The Applicant’s behaviour was seriously criminal.
During extensive cross-examination of the Applicant, Mr Keevers took the Applicant through the ‘agreed statement of facts’[11] for his sentencing in the Court. The Applicant stated that he was legally represented at the time of the preparation of the agreed statement of facts and agreed their contents were accurate.
[11] Exhibit R3, pp 29-44.
The clear evidence resulting from Mr Keevers’ cross-examination of the Applicant was that the Applicant understood that the victim did not want to do the sexual acts on each occasion, that he did not have the victim’s consent, that they caused her pain, discomfort, humiliation and distress, but he persisted to do them, overcoming her physical resistance without regard to her, in gratification of his own sexual desires.
Such conduct escalated in the nature of the sexual acts demanded by the Applicant, in his conceded knowledge that the victim’s parents did not want him to have a relationship with her and his encouragement for her to disobey her parents by sneaking out of the family home at night to be picked up by the Applicant.
The Applicant also conceded that as a Karen Christian, culturally children were expected to obey their parents and observe sexual abstinence prior to marriage.
In his sentencing remarks, Berman AJ states:[12]
(a)The Applicant’s upbringing did not include issues with drugs, domestic violence or sexual assault.
(b)The Applicant repeatedly ignored the victim’s attempts to get him to stop what he was doing.
(c)The Applicant manipulated the victim by saying it would be less shameful for her to maintain a relationship with him once they had sex, as was convincing her that what they were doing was normal, despite their age and familial relationship.
(d)The Applicant’s remorse was not ‘an easy one to answer’ and ‘what the offender said falls short of a complete acceptance of responsibility and understanding of the harm he caused the complainant’.
(e)The Applicant’s conduct was ‘seriously criminal’ and the offending was not impulsive but persistent and deliberate.
(f)The Applicant had a reduced moral culpability but was satisfied that a sentence of imprisonment was required in the circumstances.
[12] Exhibit R1, G5.
8.1.1(1)(b) of the Direction – Serious Offences/Conduct
The Applicant also had a conviction for a high range driving under the influence (reading 0.160 – level 4) on 8 December 2022 (DUI offence), where he was convicted, fined $450 and disqualified from holding a licence for 9 months.[13]
[13] Exhibit R1, p 74.
Traffic offences are not specified in paragraph 8.1.1(1)(b) of the Direction as ‘serious’ conduct.
The Minister contends that the DUI reflects a conscious decision to engage in unlawful and dangerous conduct with risks to the public safety and demonstrates the Applicant’s poor judgement and a lack of respect for the law.
Mr Aleksov contends that the DUI offence is of little significance and should be given no weight. I agree.
8.1.1(1)(c) of the Direction – Sentence Imposed
Sentences of imprisonment are the most serious in the sentencing hierarchy.
I accept the Respondent’s submissions that the sentence imposed reflects the seriousness of the Applicant’s conduct.[14]
[14] Citing Brown v Minister for Immigration and Citizenship [2010] FCAFC 33.
8.1.1(1)(d) of the Direction – Impact of Offending
The Tribunal accepts the impact of the Applicant’s offending on the victims had profound and significant adverse effects. The Applicant conceded as much in his oral evidence before the Tribunal.
8.1.1(1)(e) of the Direction – Frequency and Trend of Offending
I accept the Respondent’s submissions that the Applicant’s offending was frequent and escalated from unwanted kissing and touching, to oral sex and then repeated sexual intercourse over a period of months.
So much is clear from the ‘agreed statement of facts’, the sentencing judge’s remarks and the evidence of the Applicant in cross-examination.
8.1.1(1)(f) of the Direction – Cumulative Effect of Repeated Offending
There is limited evidence before the Tribunal as to the cumulative effect on the victim of the Applicant’s repeated offending over a period of months. At its highest, the sentencing judge’s remarks that, absent a victim impact statement, it was inferred that the offences committed against her had significant consequences.
8.1.1(1)(g), (h) & (i) of the Direction – (False or Misleading Information, Re-offending after warning, Offending in another country)
There was no evidence of any conduct in respect of the other considerations in paragraph 8.1.1(1)(g), (h) and (i) of the Direction.
Conclusion on Nature and Seriousness of Conduct to Date
The Applicant acknowledges, consistent with the Respondent’s SFIC and the sentencing remarks of Berman AJ, that the Applicant’s offending in the Index Offence was very serious and involved repeated sexual conduct with a young person under special care.[15]
[15] Applicant’s Reply at [3].
The Applicant contends that the seriousness of the Index Offence is moderated by:
(a)The sentence imposed was well below the statutory maximum of 25 years, reflecting the Court’s assessment that while the conduct was serious, it did not fall within the most serious category of offending.[16]
(b)The lack of a victim impact assessment before the sentencing judge was such that findings of catastrophic or ongoing harm could not be made, nor should the Tribunal speculate beyond the acknowledgement of the seriousness of the harm caused as determined in sentencing.[17]
(c)The Applicant’s early plea of guilt that meant the victim did not have to give evidence and was an acknowledgement of the Applicant’s responsibility for the conduct.[18]
(d)The Applicant’s genuine remorse as found by the sentencing judge as satisfaction that the Applicant’s rehabilitation had commenced before sentencing, rather than a claim only advanced later.[19]
(e)The context of the Applicant’s upbringing in a refugee camp, lacking stable parental care and positive role models, that with the Applicant’s support by his family and community, was an aberration in the context of his life.[20]
(f)The Index Offence was an isolated event against the DUI as a minor offence.[21]
[16] Applicant’s SFIC at [27]-[28].
[17] Applicant’s SFIC at [29].
[18] Applicant’s SFIC at [30].
[19] Applicant’s SFIC at [31].
[20] Applicant’s SFIC at [32].
[21] Applicant’s SFIC at [33].
Mr Keevers in closing emphasised the ‘profound and extraordinary’ concessions made by the Applicant during cross-examination that he understood consent at all salient times and simply didn’t care about the victim. Mr Keevers submitted that the Tribunal should have no confidence in the Applicant’s evidence about the impact on the victim as he was only interested in how it impacted on him.
On the evidence before me I find the Index Offence is ‘very serious’ pursuant to paragraph 8.1.1(1)(a) of the Direction because:
(a)The Applicant understood that the victim did not want to do the sexual acts on each occasion as particularised in the ‘agreed statement of facts’.
(b)The Applicant understood that he did not have the victim’s consent on any occasion as particularised in the ‘agreed statement of facts’.
(c)The Applicant knew that on each occasion of the sexual acts as particularised in the ‘agreed statement of facts’, caused her pain, discomfort, humiliation and distress, but he persisted to do them, overcoming her physical resistance without regard to her, in gratification of his own sexual desires.
(d)The sexual acts as particularised in the ‘agreed statement of facts’ occurred over a period of months where the Applicant was repeatedly told by the victim between sexual acts that she did not want to engage in further sexual acts, but he did them anyway, without regard to her wishes or consent.
(e)The Applicant’s concessions during cross-examination as to his understanding that he did not have the consent of the victim on each and every occasion of his offending and the impact on the victim over a period of months, are such that I give significant weight to them.
(f)I accept the moderation of the Applicant’s offending as contended, except as to the Applicant’s remorse, and I agree with the Respondent’s contention based on the Applicant’s evidence during cross-examination, that the Applicant’s insight into the impact of his offending on the victim and her family was inconsistent with his primary concern over his own circumstances arising from his offending conduct.
(g)This finding is consistent with that of the sentencing judge who expressed doubt about the Applicant’s genuine remorse.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:
(1) In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[22]
[22] The Direction, paragraph 8.1.2(2)(a).
It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[23]
[23] The Direction, paragraph 8.1.2(2)(b).
Nature of the harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or to the Australian community should the Applicant reoffend.[24]
[24] The Direction, paragraph 8.1.2(2)(a).
The concept of ‘risk’ and whether it is ‘unacceptable,’ for the purpose of paragraph 8.1.2(1) of the Direction, is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’, for the purpose of paragraph 8.1.2(2) of the Direction.
In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, Justice Mortimer (as her Honour then was) said (at [103]):
It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
The Applicant is silent on the nature of harm should the Applicant reoffend.
As contended by the Respondent, the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve ‘catastrophic physical and psychological harm to vulnerable members of the Australian community, including vulnerable children’[25]. I accept this contention and give it significant weight.
[25] Respondent’s SFIC at [45].
Likelihood of the Applicant engaging in further criminal or serious conduct
This likelihood is to be assessed considering information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision.[26]
[26] The Direction, paragraph 8.1.2(2).
Mr Jeffrey Cummins, a consulting clinical and forensic psychologist, has provided two reports. The first, dated 5 December 2024[27], states that Mr Cummins applied the ‘Risk for Sexual Violence Protocol’ to the Applicant, resulting in an ‘Average risk of reoffending’ but concluded the Applicant’s risk of ‘committing a further sexual offence is low’ and opined that ‘he still presented with a degree of psychosocial immaturity and naivety’.
[27] Exhibit R1, G15.
The second, dated 15 September 2025[28], opines that the Applicant is a low risk of reoffending and that the Applicant had spoken ‘more openly and in more detail concerning the issue of age of consent and concerning Australian law regarding the non-permissibility of having sexual contact with a relative’.
[28] Exhibit A3.
The Applicant contends, based on the sentencing remarks as to remorse and insight to his offending, along with the support of his family and community, the Applicant has demonstrated, as early as sentencing, that the Court considered the Applicant as someone who had commenced the process of rehabilitation.[29]
[29] Applicant’s SFIC at [37].
Relying on the opinion of Mr Cummins that the Applicant has a low risk of reoffending, the Applicant contends that he has made good use of his time in custody engaged in programs targeted at his risk factors[30], has been found to be an exemplary detainee and recommended for parole.[31]
[30] Exhibit A8, Exhibit A9, Exhibit A10, Exhibit A11.
[31] Applicant’s SFIC at [39], Exhibit A18.
The Applicant expressed remorse to the Australia community for his offending and took accountability for his conduct. Mr Aleksov contended that the Applicant has been ‘scared straight’ by his incarceration and the cancellation of his visa and wants the opportunity to resume his relationship with his family and work.
The evidence of his immediate and extended family was supportive of the Applicant’s remorse and his prospects of being re-integrated into his family, provided support and assistance, including accommodation, if he is not removed. I consider that these are protective factors in considering the risk of re-offending.
The Respondent again contends that limited weight should be given to the expressions of remorse made by the Applicant as self-serving and inconsistent with his evidence during cross-examination.
Based on the expert evidence there is no contest that the Applicant has a low risk of re-offending. I agree.
Conclusion: Protection of the Australian community
As I found above, I am not persuaded that the Applicant has shown genuine remorse at any time from sentencing to now. The contention that the Applicant has been ‘scared straight’ by his imprisonment and potential removal from Australia speaks to his self-interest rather than any insight into the impact of his offending on the victim and her family.
It is incongruous on one hand for the Applicant to contend that he is supported by a tight knit Karen family and community that want him to return, when his offending was against a very member of that family and community. I am not persuaded the evidence before the Tribunal rises to alleviate my concerns about the Applicant’s genuine remorse as to his offending and the impact it had on the victim and her family.
I consider that this is a case where the harm that would be caused by the Applicant’s conduct were it to repeated, would be so serious that any such risk should now be found to be unacceptable.
Informed by the ‘Principles’ stated in paragraph 5.2 of Direction 110, and considering: (i) the nature and seriousness of the Applicant’s conduct to date; and (ii) the risk to the Australian community should he commit further offences or engage in other serious conduct, I consider that the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of the Direction, weighs heavily against revocation, noting that the safety of the ‘Australian community’ is the highest priority of the Australian government: paragraph 5.2(2) of Direction.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
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.
Family violence is defined by the Direction as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family. Assault is given as an example of behaviour that may constitute family violence. Member of the person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
The Applicant concedes by the Index Offence he has committed family violence, but contends it is moderated for the same reasons as for the first primary consideration.[32]
[32] Applicant’s SFIC at [49]-[51].
In considering the seriousness of the family violence engaged in by the Applicant the Tribunal must take into account a number of factors where relevant, including the frequency of the conduct and whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved at the time of decision including the extent to which the person accepts responsibility for their family violence related conduct, the extent to which the person understands the impact of their behaviour, and the efforts to address factors which contributed to their conduct.
As noted above, the Applicant’s offending conduct in relation to the victim occurred on numerous occasions and had a profound impact on the victim and her family. There was a trend of increasing seriousness, the cumulative effect of the repeated acts of family violence had profound and significant adverse effects on his victim and their family as discussed above.
As noted above, I accept that the Applicant accepts responsibility for his family violence related conduct and understands the impact of his behaviours on the victim. I also accept the Applicant has undertaken programs while in prison, and is willing to undertake any treatment, counselling and rehabilitation programs available to him now or in the community in the future.
I accept the Respondent’s submission that the Applicant’s repeated and escalating family violence conduct warrants this primary consideration weighing significantly against revocation.
Conclusion: Family Violence Committed by the Non-citizen
I consider that the ‘second consideration’ (Family Violence Committed by the Non-citizen), in paragraph 8.2 of the Direction, weighs heavily against revocation.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 of the Direction says I must consider any impact of the decision on the Applicant’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.
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.
Immediate Family
The Applicant’s immediate family in Australia consists of his older brother (Australian permanent resident)[33], older half-brother (Australian citizen)[34] and older sister (Australian permanent resident), all of whom live in Canberra. He does not have a partner or children. The children of his immediate family are considered in the primary consideration 4 – best interests of minor children in Australia.
[33] Exhibit A5, p 4.
[34] Exhibit A5, p 8.
As stated previously, the Applicant’s father died whilst he was a young child, and his mother abandoned him in the refugee camp in Thailand. The evidence was that the Applicant does not have any close ties to any immediate family members other than those in Australia.
The unequivocal evidence of the Applicant’s immediate family was that he has maintained a close familial relationship with them, residing with his older half-brother and sister-in-law since arriving in Australia in 2013, and has been an integral part of their family unit. This relationship has been maintained by constant contact during his imprisonment and detention.
His older brother describes, in the absence of parents, carrying the role of ‘protecting and guiding’ the Applicant as well as the Applicant’s support to him and other family and friends in obtaining employment.
There was no evidence of significant financial dependency by any of the immediate family upon the Applicant, but the half-brother and sister-in-law describe the Applicant’s role in supporting by frequently assisting with babysitting, providing financial support to help with bills and emotional support.
He has supported his older sister in the care of his additional niece and nephew by cooking, attending church, child sitting and acting as a male role model. The Applicant provided small amounts of financial support for his older sister by way of sometimes paying for groceries in the amount of $80-120.
Extended Family
The Applicant’s extended family consists of his uncle (Australian citizen)[35], aunt, cousins, sister-in-law (Australian citizen)
[35] Exhibit A5, p 22.
His uncle’s evidence was that after his brother passed away (the Applicant’s father) he stepped in as a father-figure and attended important milestones at school, church and cultural activities. The Applicant did not live with his uncle but has maintained a close relationship and his children, the Applicant’s cousins, treat him as a brother.
His aunt described the close connection between the Applicant and her family, his involvement in their lives, including church and cultural events.
Time in Australia
The Applicant arrived in Australia as a minor in 2013 and his criminal offending commenced in 2021, some seven and half years after arrival. The Applicant has lived primarily in Australia for 12 years, except for an aggregate period of 6 months from December 2016 to January 2020 where he was outside Australia.[36] Put another way, the Applicant has spent approximately 45 percent of his life in Australia.
[36] Exhibit R1, G8.
The Applicant contends that weight should be given in his favour as ‘a considerable portion of his formative and adult life spent in compliance with the law’.[37]
[37] Applicant’s SFIC at [59].
The Applicant completed his schooling in Australian and has a history of employment and contributing positively to the Australian community for a period from 2019, accruing skills and qualifications as a painter and then being gainfully employed. The Applicant has assisted members of the Karen community obtain employment as a painter.
Additionally, he has been an active member of his church, and the Karen cultural community as attested by the references from the Chairperson of the ‘Australian Karen Organisation ACT’ that includes 117 signatories in support[38] and the National Vice President of the Australian Karen Organisation.[39]
[38] Exhibit A5, pp 31-45.
[39] Exhibit A5, p 50.
His employer gave evidence that the Applicant was a reliable worker who would be welcome back on a casual basis and perhaps back to full time employment.
Conclusion: The strength, nature and duration of ties to Australia
Taking into account the impact of any non-revocation decision on the Applicant’s immediate and extended family members in Australia, the strength, nature and duration of ties to Australia, I consider this Primary Consideration 3 weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include:
· the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; and
· whether there are other persons who already fulfil a parental role in relation to the child.
Nephew and two nieces – Children of older half-brother and sister-in-law
The Applicant has a nephew and two nieces (the Children) who are minors (born 2018, 2020 and 2023 respectively). The Children live with their parents in a household that the Applicant has also lived, and the uncontradicted evidence is that the Applicant, whilst not in a parental role, was an integral part of their lives, assisting with their daily lives including, preparing meals, school drop-offs and caregiving responsibilities.[40]
[40] Exhibit A5, pp 8-9.
The Children have a strong emotional bond with the Applicant, borne out by the evidence of their parents as well as the photos of them with the Applicant and the drawings and notes provided by them.[41]
[41] Exhibit A6, Exhibit A7.
The Children are 7, 5 and 2, and if the Applicant was returned to the community, I accept that the Applicant would have a role in their lives for an extended period until they reached adulthood.
Niece and nephew – Children of older sister
The Applicant has an additional niece and nephew (born 2011 and 2014 respectively), permanent residents of Australia, that he also has an emotional bond with, although he has not lived with them or is a primary carer.
The additional niece and nephew are 14 and 11 respectively, and if the Applicant was returned to the community, I accept that the Applicant would have a role in their lives for a period until they reached adulthood.
I give weight to the impact on these additional minors but not to the same degree as the Children.
I am not of the view the impact of the Applicant’s prior conduct has had a negative impact on the Children, it is clear on the evidence they (the 7- and 5-year-old) are confused and do not fully understand why it is that the Applicant has been absent from their lives since he was imprisoned for the Index Offence and then his time in immigration detention.
The impact of a non-revocation decision on the Children and the additional niece and nephew would be to remove the possibility of them maintaining a relationship with their uncle.
Conclusion: Best interests of minor children in Australia affected by the decision
I am of the view that a non-revocation decision is not in the best interests of the Children and the additional niece and nephew, in that it will prevent the possibility of person to contact between the Applicant and them in Australia as well as have a negative emotional impact on them.
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration 4 weighs significantly in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction says that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[42]
[42] Paragraph 8.4(1) of the Direction.
Paragraph 8.5(2) of the Direction says 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 are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.[43]
[43] Paragraph 8.5(2) of the Direction.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[44]
[44] Paragraph 8.5(3) of the Direction.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[45]:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
[45] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Applicant has engaged in acts of family violence, and ‘serious crimes’ of a violent and sexual nature against a child.
As found above, the Applicant’s risk of re-offending is low.
The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
Conclusion: Expectations of the Australian community
As the Australian community expects the visa to be cancelled as specified in the Direction, primary consideration 5 weighs heavily in favour of not revoking cancellation of the visa.
OTHER CONSIDERATIONS
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;
c) impact on Australian business interests.
Legal consequences of decision under s 501 or s 501CA
The consequence of affirming the non-revocation decision would be that the Applicant:
(a)will be liable to be removed from Australia as soon as reasonably practicable[46];
(b)must remain in detention until removal[47];
(c)will be prohibited from applying for another visa while in Australia, except for a Protection visa or Bridging visa[48]; and
(d)will be indefinitely excluded from Australia[49].
[46] See 198 of the Migration Act
[47] See s 189 of the Migration Act
[48] See s 500(1)(c) of the Migration Act
[49] See Special Return Criteria 500(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth),
The Applicant says that affirming the non-revocation decision would be ultimately futile in a practical sense because the Applicant is stateless, and even if an application for a protection visa was unsuccessful, the Applicant could not be in immigration detention indefinitely due to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Another (2023) 415 ALR 254 and he would be put back into the community on a bridging visa.
By not revoking the cancellation of the Applicant’s visa it is contended that ‘it is inefficient and unjustifiably harsh to deny him the visa sought in this case – affirming the decision will simply keep him in immigration detention whilst there are administrative battles, perhaps lasting many years, and he will eventually be released into the community by habeas corpus if not some visa’[50]
[50] Applicant’s SFIC at [7].
Mr Aleksov urged the Tribunal to make findings in respect of the Applicant’s statelessness and protection requirements to short circuit the Applicants’ inevitable path to being released into the community and not being removed from Australia.
In the Applicant’s written submission and in Mr Aleksov’s closing it was contended that if the Applicant was removed to Myanmar he would almost certainly die, by bullet, prison or destitution.
Mr Aleksov urged the Tribunal to consider the report of Dr Jose Arraiza[51], a Doctor in Public Law specialising on the rights of minorities. Dr Arraiza opines that the Applicant faces serious protection threats, including the possibility of killing, torture, serious bodily harm, enforced disappearance, detainment, imprisonment in inhumane conditions or enforced conscription. Dr Arraiza also opines the Applicant would be unable to obtain Myanmar citizenship because of his Karen ethnicity.
[51] Exhibit A15.
Mr Aleksov said in his opening submissions he was not asking the Tribunal to determine a non-refoulment claim. In closing it was not clear to me whether he was then pressing a non-refoulment claim as part of his argument of the practical implications of the Applicant’s circumstances.
The Respondent says that the Tribunal should not circumvent the normal process for determining matters of protection that might apply to the Applicant, nor make factual findings in that regard.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, the plurality held:
29 Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
30 Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
…
37 Contrary to the plaintiff’s submissions, the Delegate’s reasons do not reflect a misunderstanding of the operation of the Migration Act. For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff’s claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
38 The Court is not “astute to discern error” in the reasons of an administrative decision-maker. The Delegate’s reasons convey that the Delegate had read and understood the plaintiff’s claim and proceeded on the basis that non-refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non-refoulement obligations as “another reason” for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness.
39 Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
Based on what is before me, I do not consider that the Tribunal is in an optimal position to make a finding about whether the Applicant is stateless or needs complementary protection.
Further, this is an expedited matter that has strict statutory timelines on decision that precludes a wide-ranging inquiry as being suggested by Mr Aleksov.
The Applicant is not precluded from applying for a protection visa. If he does, then his claims can be more comprehensively assessed in that process, and I am of the view that that is the appropriate course.
I accept that that:
(a)If the Applicant applies for a protection visa that will likely result in the Applicant remaining in immigration detention until any such application, he may make is determined.
(b)The Applicant, as a result of a decision by the Tribunal to affirm the decision under review, is unlikely to be involuntarily removed to another country.
I give this Other Consideration 1 limited weight in favour of revocation of the cancellation of the Applicant’s visa.
Extent of impediments if removed
The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia. This is to take into account:
(a)the Applicant’s Age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is a 27-year-old man who is able bodied and does not claim to have any significant medical conditions.
As stated above, I do not make findings in respect to the Applicant’s status as stateless or otherwise or that he requires protection.
However, I note that on the state of the evidence before the Tribunal that the Applicant, as a person of Karen ethnicity with no apparent documentation of citizenship of Thailand or Myanmar, he would have prima facie grounds to argue that he is stateless and not able to be removed to Thailand or Myanmar. Beyond that, I am not able to make findings in the context of this second other consideration.
I give this Other Consideration 2 limited weight in favour of revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision.
The Applicant did not make any contentions in respect of this ground and there was no evidence to suggest that the Applicant’s removal will impact any current business interests.
I give this Other Consideration 3 neutral weight in favour of revocation of the cancellation of the Applicant’s visa.
No Other Considerations
Neither the applicant nor the Respondent raised any other considerations.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
The Direction sets out the way in which the relevant considerations are to be taken into account and weighed. There has been judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Direction, including that the ‘other’ considerations are not ‘secondary’ and the other considerations need not be considered secondary in all cases[52],and may outweigh primary considerations depending on the circumstances of the case.[53]
[52] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
[53] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [37].
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252 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.’
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 at [27] states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.
Being able to remain in Australia is a privilege Australia conferred on the Applicant in the expectation that he would be 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. The applicant has not been law-abiding; and he has caused the most serious harm to a female child in the Australian community.
The applicant, as a non-citizen who persistently committed serious crimes of a sexual nature against a minor over a period of months, where he had multiple opportunities to stop but did not and he should generally expect to forfeit the privilege of staying in Australia.
The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit crimes in Australia which raise serious character concerns. This expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.
With respect to the level of tolerance of criminal conduct that Australia will generally afford, the applicant has lived in the Australian community since he was 13 years old and therefore for almost half his life. He is therefore entitled to a higher degree of tolerance in relation to his criminal offending, but he has not lived in Australia ‘from a very young age’ and I do not consider that he spent his ‘formative years’ in the Australian community.
This was a difficult matter. On one hand the seriousness of the Applicant’s offences weighed against him heavily in respect of primary considerations 1, 2 and 5, whilst on the other, the Applicant has strong connections to his family and community in Australia, and the best interest of his nephews and nieces would be for him not to be removed.
The impact on the Applicant’s immediate and extended family as well as all the nephews and nieces if he is removed would be devastating. As well is the complicating factor in respect of his status of whether he is stateless and the consequential practical implications of a decision to affirm.
The Applicant accepts that his offending was very serious but contends that is moderated by his remorse and rehabilitation and his commitment not to re-offend. I do not doubt that the Applicant holds a genuine view that he will not reoffend, and he has undertaken rehabilitative course directed towards his sexual offending, but his stated intentions have not been tested in the community.
I have concluded that the countervailing considerations in favour of the Applicant are insufficient to outweigh the primary considerations of protection of and expectations of the Australian community and family violence.
I reach this conclusion by applying the principles in paragraph 5.2 of the Direction the specific circumstances of the Applicant, who has pleaded guilty and been convicted of the very serious crime of ‘the persistent sexual abuse of a child/young person under special care’.
This is a case where the nature of the Applicant’s conduct and the harm that would be caused if it were repeated are so serious that even strong countervailing considerations would be insufficient to justify revoking the cancellation decision. The inherent nature of the crime of ‘the persistent sexual abuse of a child/young person under special care’ which is a crime mentioned in paragraph 8.5(2) of the Direction, is so serious that it outweighs any countervailing considerations even if the applicant did not pose a measurable risk of causing physical harm to the Australian community.
Having carefully considered the competing weight I have given to the primary and other considerations; I am not satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
DECISION
Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent on 4 August 2025 to not revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 visa.
Date(s) of hearing: 16 October 2025 Date final submissions received: 16 October 2025 Counsel for the Applicant Angel Aleksov Solicitors for the Applicant: Australian Migration Lawyers Counsel for the Respondent Andrew Keevers Solicitors for the Respondent: HWLE Lawyers
0