DMFR and Minister for Immigration, Citizenship and Multicultural Affairs - [2024] ARTA 28

Applicant/s:  DMFR
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/6103

Tribunal:General Member J Papalia
Place:Perth
Date:6 November 2024

Date of written reasons: 14 November 2024[1]
[1] On 2 January 2025, the Tribunal issued a redacted version of the original reasons for decision, further anonymising personal details for publication and aligning the reasons with the Tribunal style guide. No changes to substantive content were made.
Decision:The Tribunal affirms the decision under review.

.....................................[SGD]................................
General Member

Catchwords
MIGRATION – visa cancellation – Mandatory cancellation under s 501(3A) of Migration Act 1958 – where Applicant does not pass the character test – rape – whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision- extent of impediments if removed – Australian business interests – Applicant is a 27-year-old national of Myanmar – Non-Revocation Decision is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed), ss 2A, 33 and 43;
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), s 3 and Sch 16 Item 24;
Administrative Review Tribunal Act 2024 (Cth), ss 9, 49(1), 53, 54, 55(1), 56(1)(a), 105;
Corrections Act 1986 (Vic), Part 7;
Corrections Regulations 2019 (Vic), reg 65(1)(a)
Migration Act 1958 (Cth), ss 5H, 5J, 5K-5LA 13-15, 36, 36A 189(1), 196, 197C 198, 499(1), 500, 501(1), 501(6)(a), 501(7)(c), 501(3A), 501C(7), 501CA(3), 501CA(4), 501CA(4)(b)(i), 501E, 501F, 503;
Migration Regulations 1994 (Cth), reg 2.52(2)(b), Sch2, Sch 5.
Cases
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Bennett v State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419
BPBR v Minister for Immigration and Multicultural Affairs [2024] FCA 1289
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121
JNMK v Minister for Home Affairs [2019] FCA 1758; (2019) 168 ALD 206
Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326
Mickelberg v Director of Perth Mint [1986] WAR 365
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
SZSBX v Minister for Immigration & Anor [2013] FCCA 1127
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
(The decision in this matter was made and provided to the parties on 6 November 2024 with a note that written reasons would be provided within a reasonable time. These are those written reasons.)
THE APPLICATION

The Applicant is a 27-year-old citizen of Myanmar, of the Christian faith and Chin ethnicity.[2] He moved to Australia in 2015, when he was 18,[3] as the holder of a Global Special Humanitarian Visa granted in May of that year and when he was living in Malaysia.[4]
[2] R1, G12, p 84 at [2]; G17, p 212 at [4].
[3] R1, G22, p 278.
[4] R1, G23, p 279; Transcript, p 19.
In August 2017, the Applicant and two co-offenders raped a stranger under a bridge in Victoria. The facts of this conduct will be discussed further below. It suffices to note that, in May 2018, the Applicant was sentenced to 7 years’ imprisonment by the Melbourne County Court.[5]
[5] R1, G16, p 139.
This sentence of imprisonment gave rise to the mandatory cancellation of the Applicant’s visa by a delegate of the Respondent (Minister) on 20 May 2020, under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (Cancellation Decision).[6] The Applicant was notified of the Cancellation Decision on the same day and was invited to make representations to the Minister requesting revocation of this decision.[7] He requested revocation within time,[8] submitted a personal circumstances form and evidence in support (accompanied by legal submissions).[9]
[6] See R1, G23, pp 279-284.
[7] Ibid, p 285.
[8] See R1, G10, pp 62-80.
[9] See R1, pp 81-111, 211-271.
On 14 August 2024, the Minister’s delegate refused to revoke the Cancellation Decision under s 501CA(4) of the Migration Act.[10] The Applicant was notified of the non-revocation decision by email to his then authorised representative on the same day.[11] He sought review of that decision before this Tribunal (and its predecessor, the Administrative Appeals Tribunal) (Reviewable Decision).
[10] R1, G5, p 22.
[11] R1, G3, p 13.
For the reasons set out below, the Tribunal has determined that the correct decision is to affirm the Reviewable Decision.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the Reviewable Decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[12]
[12] Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), ss 2A, 33 and 43; Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1 ) Act 2024 (Cth) (ART Consequential Act No 1), s 3 and Sch 16 Item 24; See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].
Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i) the Applicant passes the character test (as defined by s 501); or
(ii) there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (M1/2021), the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[13] The majority held in the same paragraph that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[14]
[13] M1/2021 at [22].
[14] See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594 at [6].
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 given by the Minister under s 499(1) of the Migration Act.[15] The Direction commenced on 21 June 2024.[16]
[15] Direction no. 110, cl 5.1(4); Migration Act, s 499(2A).
[16] Direction no. 110, cl 2.
Informed by the principles set out in cl 5.2 of Direction no. 110, the Tribunal must take into account the factors identified in cls 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[17]
[17] Direction no. 110, cl 6.
THE HEARING AND THE EVIDENCE
The Applicant appeared before the Tribunal over three days on 22 and 23 October 2024, and on 4 November 2024. The Applicant was self-represented and appeared in-person. He was assisted by a Hakha Chin interpreter. The Minister was represented by Ms Gutmann of Minter Ellison, who appeared by audio-visual means.
The following documents were tendered in evidence and marked as exhibits:
(a)Bundle of IHMS Clinical records for the Applicant (A1);
(b)Serco Individual Case Plan dated 2 August 2024 (A2);
(c)Immunisation history statement dated 15 July 2024 (A3);
(d)Further bundle of IHMS records in respect of the Applicant (A4);
(e)Letter from Reverend T dated 17 August 2023 (A5);
(f)Letter from Reverend L dated 11 August 2023 (A6);
(g)Letter from Mr H dated 20 February 2024 (A7);
(h)Letter from Mr SN dated 27 May 2022 (A8);
(i)Letter from Mr BC undated (A9);
(j)Letter from Mr BU dated 31 August 2024 (A10);
(k)Letter from Mr BP dated 31 August 2024 (A11);
(l)Letter from Mr DT, dated 29 August 2024 (A12);
(m)Letter from E, dated 31 August 2024 (A13);
(n)Lette from Mr LT, dated 31 August 2024 (A14);
(o)Letter from Ms MC, dated 31 August 2024 (A15);
(p)Letter from Mr NM, dated 31 August 2024 (A16);
(q)Letter from Mr SN, dated 6 September 2024 (A17);
(r)Letter from Mr SA, dated 31 August 2024 (A18);
(s)Letter from Mr SS, dated 6 September 2024 (A19);
(t)Letter from Ms ST, dated 4 September 2024 (A20);
(u)Letter from Mr TH, dated 31 August 2024 (A21);
(v)Letter from Mr LR, undated (A22);
(w)Letter from Mr ZL, dated 4 September 2024 (A23);
(x)Bundle of further documents provided by the Applicant, post the 2-day hearing and comprising 24 pages of text (A24);
(y)G-Documents, comprising pages 1-349 (R1);
(z)Supplementary G-Documents, comprising pages 1-88 (R2); and
(aa)Further Supplementary G-Documents, comprising pages 1-314 (R3).
The Tribunal took oral evidence from:
(a)The Applicant;
(b)Reverend T;
(c)Reverend L;
(d)Mr H, the Applicant’s older brother;
(e)Ms N;
(f)Mr S; and
(g)Mr J.
The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) on 17 September 2024. The Applicant did not do so, but his former representatives provided the delegate with submissions dated 27 February 2024 which addressed the relevant considerations based on the evidence at that time.[18]
[18] See R1, G17, pp 211-230.
The matter was initially scheduled for, and heard over, two days. The Tribunal reserved its decision at the end of that two-day hearing. Thereafter, the Applicant provided the Tribunal with a series of further supporting documents and statements, without notice and in correspondence that was not copied to the Minister’s representatives.
The Tribunal held a Directions Hearing on 30 October 2024 regarding the further evidential material, where it made orders listing the matter for a further hearing on 4 November 2024. The further hearing was restricted to consideration of the new material. The Tribunal did so under ss 49(1) and 53 of the ART Act, conscious of the parties right to present their respective case found in s 55(1) of the ART Act, the ‘2-day rule’ found in s 500 of the Migration Act,[19] and the Tribunal’s duty to review the Reviewable Decision in an efficient and fair manner based upon the information, evidence and arguments that are relevant to the application and which are provided to it.[20] In making that assessment, the Tribunal was mindful of the fact that the Full Court in Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 (Khalil) determined that the AAT had committed an error of law when it refused to adjourn an equivalent hearing for more than 24 hours because of the Migration Act’s time limitations for s 501 reviews and the need to produce reasons for decision. In both this case and in Khalil, the Applicant was self-represented. Whether the Tribunal would have allowed a represented party to re-open their case in equivalent circumstances is another question, for another day.
[19] See Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 regarding the 2-day rule generally.
[20] See the discussion of the requirement to consider post-hearing material in SZSBX v Minister for Immigration & Anor [2013] FCCA 1127.
Lastly, the Applicant was advised in simple terms of his right to invoke the privilege against self-incrimination prior to his giving evidence.[21] He was also provided an opportunity at the hearing to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction no. 110.
CONSIDERATION
[21] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [64]-[65].
Representations in accordance with invitation
The Applicant was invited by the Minister to make representations about revocation of the mandatory cancellation of his visa on 20 May 2020.
Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) provides that any such representations must be made within 28 days after the person is given the invitation under s 501CA(3) of the Migration Act.
The Applicant made representations seeking revocation within the prescribed period, on 6 June 2020, and using the Department’s template revocation request and personal circumstances forms.
Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
The Applicant’s conduct and offending
In May 2018, the Applicant was convicted and sentenced for one ‘rolled up’ or ‘representative charge’ of ‘rape’ presented on an indictment filed in the Melbourne County Court.[22] The Applicant entered his plea of guilty to this charge earlier in May 2018.[23] He was sentenced to seven years’ imprisonment. His co-offenders were each sentenced to eight years six months’ imprisonment and seven years six months’ imprisonment, respectively. The indictment related to an incident in August 2017 under a bridge in Victoria, where the victim had been sleeping. The facts are relevantly contained within the sentencing remarks of Judge Lawson in the County Court[24] and the Victorian Court of Appeal on a State appeal against sentence.[25] Each offender was responsible, through the doctrine of complicity, not just for their own acts but also for the acts of sexual penetration perpetrated by their co-offenders. The Applicant was sentenced on the specific basis that he did not himself engage in an act of sexual penetration of the complainant but was present throughout those acts and assisted in their commission.
[22] See R1, G16, p 139.
[23] See R1, G16, pp 144-5.
[24] R1, G8, pp 40-2 at [4]-[6], [9]-[26]; see also R1, G16, pp 145-152.
[25] R1, G16, pp 114-16 at [3]-[15].
Before the Tribunal, the Applicant testified that he did not cover the victim’s face with a jumper (as alleged by the State and found by the sentencing judge) but used his hand to cover her mouth.[26] He claimed that he never saw the victim’s face,[27] his friends had seen her earlier that night and discussed their plan to rape her with him prior to the actual acts, and that he had counselled them not to do so.[28] He said he was ‘amazed’ when they carried out their plan.[29] The Applicant was asked to explain this evidence as follows:[30]
[26] See Transcript, pp 48-9.
[27] Transcript, p 49.
[28] Transcript, pp 49-50.
[29] Transcript, p 52.
[30] Transcript, pp 50-1.
Tribunal: When you approached the victim, she was dressed, wasn’t she?
Applicant: So I don’t recall about her appearance, because when they approach her, I was inside the car. And then when I heard the screaming, I approached them.
Tribunal: What do you mean?
Applicant: Yes. What I meant is that they approached her to rape – they approached her to rape her and that when – at that time, I was left inside the car. And then when I heard the screaming of the young lady, I just wander because I heard the screaming. So I went there and then to stop them and then if she scream then it will be louder, so I cover her mouth with my hand.
Tribunal: So you didn’t in fact go there to stop her being raped. You actually went there to help them rape her?
Applicant: It’s not like that – it’s not like that. My intention to approach them is I don’t want to get the lady to trouble and then from my – even from friends for both sides. So that’s why the thing I can do is to cover her mouth for prevention – like, to stop the (indistinct).
Tribunal: You’re telling me that you covered the victim’s mouth to stop her screaming and also to stop them raping her?
Applicant: Yes. That’s correct.
Tribunal: And it’s not just putting your hand on her face, is it? You also grabbed her with your two co-offenders, dragged her under the bridge, dragged her to the ground, took her clothes off and raped her.
Applicant: Yes. So when they tried to undress her, I was not present there. So they tried to rape, that I know, but then that time I said I was close her mouth and then also I told two of my friends to run away and then they cannot run away, because somebody already report to the police and then we cannot run far away. So at that place, we were arrested.
Tribunal: So you’re honestly trying to tell me that you arrived and approached the victim after she had been raped?
Applicant: Yes, that’s correct. It’s still – yes. After they rape her – like, I can say yes. After they finished – because when they try and go and like then do things, I was still in the car, so I didn’t know. So when I approached, like – yes. It maybe after finish off – after they rape her.
…
Ms Gutmann: Mr Applicant, I’m struggling to understand how putting your hand over the victim’s mouth to quiet her would also stop your friends from raping her. Can you explain that to the Tribunal, please?
Applicant: Yes. So that time that incident happen unexpectedly. So I don’t know when that thing happen. I don’t want the girl to be suffering and in the other side, I don’t want my friends to do such thing. So actually I do – I cover her mouth, because I don’t want to get in trouble, my friend either – the young lady. That’s why I stop her mouth, so that my friend can be escaped from this case.
I note that it is reported in the transcript of the sentencing hearing that the Applicant told the police in his record of interview in August 2017 that he was drunk, that he was in company with his co-offenders, and that they raped the victim while he covered her mouth to prevent her from screaming.[31] In doing so, he admitted that this was wrong.[32] He told the Tribunal that covering the victim’s mouth, which was all he claimed to do, was a ‘big mistake’ and ‘wrong’.[33]
[31] See R1, G16, p 151 lines 23-30.
[32] See R1, G16, pp 165-166 lines 29-12.
[33] Transcript, p 52 and hearing on 4 November 2024 (not transcribed).

The above exchange (and the balance of the Applicant’s evidence) raised the issue of the extent to which it was open to the Tribunal to accept the Applicant’s alternate account of the surrounding events of his conviction and sentence for the rapes. The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based.[34] Where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the Minister’s decision, may not impugn or ‘go behind’ either the conviction or sentence.[35] It has long been held that weight to be given to any convictions which may be proved in subsequent civil proceedings is a matter for the administrative decision-maker.[36] However, the Tribunal cannot accept the Applicant’s contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying his conviction or sentence.[37] Moreover, the Applicant cannot advance a factual position that undermines the relevant sentence which gave rise to his visa being cancelled as ‘another reason’ why that cancellation should be revoked.[38] For these reasons, the Tribunal rejects the Applicant’s evidence that he was not a party to the rapes that were committed in August 2017, and that he arrived after the event and only covered the victim’s mouth with his hand. That evidence is inconsistent with the essential facts upon which the Applicant was convicted and sentenced. As noted above, those facts are contained within the County Court sentencing remarks. These remarks provide the only reliable guide to the facts established by the conviction.[39] The Applicant’s conviction and sentence necessarily includes criminal responsibility for the acts of sexual penetration committed by his co-offenders, including the Applicant aiding in their commission. Accordingly, the Tribunal finds that the Applicant assisted his co-offenders to subdue the victim and to drag her underneath the bridge, that he was present when her clothes were removed, and when she was raped.
[34] Mickelberg v Director of Perth Mint [1986] WAR 365 at 371 (Burt CJ), 374 (Smith J) and 382 (Kennedy J); Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Ali) at [41].
[35] Ali (2000) 106 FCR 313 at [42]; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 (HZCP) at [63], [68], [71], [76]-[79] (McKerracher J), with whom Colvin J agreed at [179]; see also [181]-[196]).
[36] See Mickelberg v Director of Perth Mint [1986] WAR 365 at 383-385.
[37] See Ali (2000) 106 FCR 313 at [43]-[44]; HZCP (2019) 273 FCR 121 at [191].
[38] See HZCP (2019) 273 FCR 121 at [195].
[39] See Bennett v State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419 at [67] (Martin CJ, Mazza JA agreeing at [139]).
In October 2018, the Applicant was convicted at a hearing in the Ararat Magistrates Court and sentenced to 20 days’ imprisonment (concurrent) for one count of unlawful assault committed upon his cell mate (and co-offender) in September 2017.[40] The Applicant was cross-examined on this incident by Ms Gutmann. The Applicant’s general explanation for the assault was as follows:[41]
[40] R1 G7, p 37; G9, p 57; R2, S2, pp 3, 5; R3, pp 1, 190-198; Transcript, pp 61, 103.
[41] Transcript, pp 62-3.
Ms Gutmann: … Mr Applicant, your conduct on this occasion was quite violent: You punched him, you kicked him and you also strangled him. Do you agree that that’s quite a violent way to respond to someone who’s kept you awake?
Applicant: Yes, that’s correct, it’s a violent action but then when – it was a mistake when I strangled him and then kicked him, punched him, but then he also very abusive – like, he acts like a gangster, ‘What’s it matter that you can’t sleep, that is not my business, what you happen’ – something like that he said. So it was out of anger towards that – physical attack – yes.
Tribunal: Can you repeat that? As I understood it, you said, ‘It was a mistake to respond violently but you responded violently because he ‘acting like a gangster’, is that right?
Applicant: Yes, that’s correct. That time I was angry, that’s why this thing happened.
Tribunal: When you said, ‘Act like a gangster’, you said that meant he was saying, ‘It’s your problem that you can’t sleep’, that’s what you meant by act like a gangster?
Applicant: Yes, when I mentioned that he acts like a gangster, I mean he behaved, he talked like a gangster, like ‘It’s not my business that you can’t – whatever, you can’t sleep’, and then, ‘Don’t tell me what to do, don’t tell me how to behave, don’t control me – what I do’, that is what it’s like – the way – how he speaks – it’s like a gangster, that is what I mean.
Ms Gutmann: So the victim didn’t listen to you when you were explaining that the TV kept you awake and that made you really angry didn’t it?
Applicant: Yes, that’s correct. So when I told him not to watch late – overnight, the TV – if he said, ‘Okay, I was – I’m wrong’, and said sorry then it might not have happened – the physical attack – but he responded in the, you know, that way that he – arguing with me, that’s why it happened. If he said sorry then it may not have happened.
Tribunal: So just so I understand, you’re saying if he had acquiesced – that is with your request to turn the TV off – it wouldn’t have happened?
Applicant: Yes, that’s correct.
Tribunal: But because he told you, you couldn’t tell him what to do and it’s not his problem that you can’t sleep, he deserved a flogging, effectively?
Applicant: Yes.
The Applicant was also cross-examined about two other incidents in prison which did not result in criminal charges or conviction but the second did result in investigation and discipline for a prison offence under Part 7 of the Corrections Act 1986 (Vic).[42]
(a)In November 2017, the Applicant had an altercation with another prisoner in the gym, who had pulled his pants down, and the Applicant reacted by punching him.[43] The incident was investigated but written off as the ‘prisoners being stupid’;[44] and
(b)In January 2022, the Applicant was involved in a physical altercation with his other co-offender in circumstances where both prisoners had visible injuries and blood in their vicinity.[45] The Applicant testified that they had been arguing and that it then became a ‘physical attack’, but he could not remember what this was about.[46] The Applicant was found guilty of the prison offence of assaulting another person at a Governor’s Disciplinary Hearing in March 2022.[47] He was reprimanded and lost his contact visit privileges for 14 days.[48]
[42] R3, FS1, pp 3, 5-6; Transcript, pp 64.
[43] Transcript, p 64.
[44] R3, pp 199-205.
[45] Transcript, pp 64-5; R3, FS1, pp 5-6; The Applicant testified on 4 November 2024 that the other participant was his co-offender.
[46] Transcript, p 65.
[47] R3, FS1, 6; Transcript, p 65; see also Corrections Regulations 2019 (Vic), reg 65(1)(a).
[48] Ibid.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501.[49]
[49] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652 at [40]. See also Direction no. 110, cl 5.1(3) and Annexure A.
Failure to pass the character test arises as a matter of law.[50] The character test is relevantly defined in s 501(6)(a) of the Migration Act as when ‘the person has a substantial criminal record (as defined by subsection (7))’.
[50] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
The Applicant was sentenced to seven years’ imprisonment in May 2018. Accordingly, the Applicant has a ‘substantial criminal record’ within the meaning of s 501(7)(c) of the Migration Act (as he has been subject to a sentence of imprisonment of 12 months or more).
The Tribunal is therefore not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Act.
Is there another reason?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant and any relevant primary and other considerations contained within Direction no. 110, there is another reason why the cancellation decision should be revoked.
Further guidance as to how the Tribunal is to apply the considerations in

Direction no. 110 can be found in cl 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight;
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations; and
(3)One or more primary considerations may outweigh other primary considerations.
Protection of the Australian community
The Tribunal is required to consider the protection of the Australian community from criminal or other serious conduct. The Tribunal is directed by cl 8.1(1) of Direction no. 110 to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and that the Tribunal should have;
particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[51] In doing so, cl 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other crimes or conduct are considered to be ‘serious’. The Tribunal notes that while Direction no. 110 expressly provides categories of conduct that is to be considered ‘very serious’ or ‘serious’,[52] it does not limit the range of conduct that may be so regarded, and the Tribunal must also consider the other factors identified in cls 8.1.1(1)(c)-(i) in determining the seriousness of the applicant’s conduct more broadly.
[51] Direction no. 110, cl 8.1(1).
[52] See Minister for Home Affairs v Stowers [2020] FCA 407 at [45].
The Applicant properly conceded via his former representatives that this offending was to be regarded as very serious.[53] However, the Applicant submitted that the weight to be afforded to this consideration should be tempered by the mitigating factors accepted by the County Court when sentencing him.[54]
[53] R1, G17, p 214 at [14]
[54] R1, G17, pp 214-5 at [15]-[16].
The Minister submitted that the rape and assault convictions must be considered as very serious given their objective seriousness and the terms of the Direction.[55]
[55] RSFIC at [27], [30].
The Applicant arrived in Australia in August 2015. He worked at an abattoir between 2016 and 2017.[56] He was taken into State custody in August 2017. There he remained until June 2024, when he was taken into immigration detention.[57]
[56] See R1, G11, p 77; Transcript, p 29.
[57] See Transcript, p 29.
The Applicant’s conviction for rape is viewed very seriously by the Australian Government and the Australian community regardless of the sentence that was imposed for the crime.[58] The conduct the subject of this representative charge was a prolonged, violent sexual attack committed by three men that was rightly condemned by the courts. I note the Victorian Court of Appeal’s reasons regarding the seriousness of the offending conduct,[59] including that the charge related to ‘extremely serious ’ and ‘very grave’ offences, committed against a vulnerable woman and in company and that the sentences imposed on the Applicant and one of his co-offenders by the County Court were ‘lenient’. The Applicant no longer presents with the insight and remorse that was put to Judge Lawson. Whilst his plea of guilty had utility and there had been some admissions made, these factors (and the Applicant’s youth) do not materially reduce the objective seriousness of the conduct. It is also beyond doubt that ‘[t]he victim was justifiably shocked, humiliated, and degraded by what occurred’, and that ‘[s]he suffered …real and lasting harm’.[60]
[58] Direction no. 110, cls 8.1.1(1)(a)(i)-(ii).
[59] R1, G16, pp 123-5 at [52]-[59] and 135 [101]-[103].
[60] Direction no. 110, cl 8.1.1(1)(d); R1, G16, p135 [101]; See also R1, G16, pp 153-154, 166. Unfortunately, the victim is now deceased: see R3, FS14, p 234.
Turning to the balance of the Applicant’s conduct, he assaulted his co-offender (and cell mate) whilst on remand in September 2017. He also engaged in fights with other inmates (including the other co-offender) in December 2017 and January 2022. The September 2017 assault constitutes a ‘violent crime’ and is similarly viewed by the Australian Government and community as being very serious.[61] I note that the Applicant received 20 days’ imprisonment for this offence, which is a sentence of last resort.
[61] Direction no. 110, cl 8.1.1(1)(a)(i).
There is no real frequency to the Applicant’s offending or an identifiable trend in increasing seriousness. Similarly, there is no repeated offending of the same magnitude or any evidence that the Applicant re-offended after being made personally aware of the potential consequences of such conduct for his migration status. Whilst the 2022 prison offence occurred after the Applicant’s visa had been cancelled in 2020, this incident alone carries little weight in the Tribunal’s overall assessment of the nature and seriousness of the Applicant’s conduct to date.
For the above reasons, the Tribunal considers the nature and seriousness of the Applicant’s criminal offending and other conduct to date to be extremely serious.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[62] There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[63]
[62] Direction no. 110, cls 8.1.2(2)(a) and (b).
[63] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] (Kenny J).
Nature of harm
In order 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 the Australian community should he re-offend.[64]
[64] Direction no. 110 cl 8.1.2(2)(a).
The Applicant’s conduct in August 2017 caused extensive physical and psychological harm to the victim. Repetition of such conduct may cause similar harm. However, as the Chief Justice of Western Australia observed in Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 in respect of the equivalent offence in this State:
[7] …Other than in the pages of the Criminal Code, sexual offences do not exist in the abstract. They are always, and in every case, a violation by one (or more than one) human being of another human being. And the impacts of such violations have on each individual victim are as many and varied as the individual experiences of victims themselves. To suggest that “all things being equal” one form of violation is inherently more serious than the other is incoherent because, when it comes to such matters, “all things are never equal”.[65]
[65] See also [281]-[283] per Pritchard JA.
Acts of violence, including sexual violence, are well-known to have negative effects on those who experience or witness them. Those effects are not restricted to physical injury or psychological harm, nor are they restricted to the immediate victims, but may also extend to their families and support groups who must deal with the consequential trauma, and to the first responders and those within the criminal justice system more broadly.
The Tribunal considers the harm which would be caused were the Applicant to commit further acts of violence to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
The Applicant contends that he will not re-offend and that he poses no risk to the Australian community or even to his smaller Chin community.[66] He said that he would do all that was required of him and that he would obtain employment.[67] His former representatives submitted that he was a low risk of re-offending because of his remorse, protective factors and personal development. [68]
[66] Transcript, pp 152-153.
[67] Ibid.
[68] See R1, G17, pp 217-219 [22]-[24].
The Minister contends that the Applicant poses an unacceptable risk of re-offending.[69] It was pointed out that the Applicant has completed limited rehabilitation – restricted to his alcohol use and whilst in immigration detention, and that there was otherwise insufficient evidence of meaningful rehabilitation, all of which had been untested in the community.[70] It was therefore contended by the Minister that there was no evidence that the Applicant’s risk had changed from when it was first assessed by Corrective Services.[71]
[69] RSOFIC, [27], [34].
[70] RSOFIC, [29]-[33].
[71] Transcript, p 140.
I note that Judge Lawson said the following with respect to the Applicant’s risk of recidivism in May 2018: [72]
[80] Given that there has been no proper explanation for your participation there will be a need for you to undergo offence behaviour programs so as to reduce the risk of further offending and improve your rehabilitation prospects. Overall I do consider that you do have good prospects for rehabilitation and that is reflected by your remorse and full cooperation and early plea of guilty.
[72] R1, G8, p 50.
The Tribunal has some concerns regarding the Applicant’s remorse and insight in terms of the rape conviction arising from his evidence about his role on the night in question. It was plain from the Applicant’s evidence that he considered that he had done something wrong – but this was limited to effectively being an accessory after the fact. He also clearly thought that his prison sentence and subsequent immigration detention had been unduly burdensome but had taken only recent and limited steps to address his criminogenic risk factors.
The Applicant was relevantly assessed by Corrective Services (Victoria) as follows:
(a)In June 2018, the Applicant was assessed by a clinician (Ms C) against the Static-99 actuarial instrument.[73] This is an actuarial measure of long-term potential risk for sexual offence recidivism in adult male sexual offenders.[74] The recidivism estimates provided by the tool are based on groups of individuals and do not directly correspond to the recidivism risk of an individual.[75] The person’s risk may be higher or lower than the probabilities estimated in the tool depending upon other risk or protective factors that are not measured by the instrument.[76] The Applicant’s total score on the instrument was 3, based on his having never lived with a lover and the victim being an unrelated stranger.[77] The clinician was unaware of the Applicant’s non-sexual violent offence in December 2017, which may have increased that score.[78] In any event, the score of 3 placed the Applicant in the “Moderate-Low” risk category relative to other male sexual offenders.[79] Individuals in that cohort on average sexually re-offend at 12% over five years, at 14% over 10 years and at 19% over 15 years (which was below the base rate for the sample used to create the tool).[80]
(b)In October 2019, the Applicant was assessed by Corrective Services against the Level of Service/Risk, Need, Responsivity (LS/RNR) tool.[81] This tool assesses the rehabilitation needs of offenders, their risk of recidivism and the most relevant factors related to supervision and programming (being criminal history, education/employment, family/marital, leisure/recreation/companions, alcohol/drug problem, pro-criminal attitude/orientation and antisocial pattern). Against that tool, the Applicant was identified as being a “Medium” risk.[82]
(c)In December 2020, the Applicant attended a clinical assessment with another clinician – Ms M, with the assistance of an interpreter.[83] This was reviewed by a senior clinician (Ms A).[84] Ms M assessed the Applicant’s risk for both general and sexual offending. The level of risk for future sexual offending was assessed using the Static-99 result and structured professional judgment using the Risk for Sexual Violence Protocol (RSVP).[85] For both types of risk, Ms M was of the view that the Applicant posed a “Moderate-Low” risk.[86] Ms M noted that this meant that ‘he is in a category that poses a risk that is comparable to that of the average sexual offender’.[87] Relevant to this risk assessment, the Applicant had minimised or denied his involvement in the sexual offending and he had problems with self-awareness.[88] There was no evidence of any major mental illness or addiction, save for the Applicant’s reported problematic alcohol consumption.[89] Similarly, the Applicant had problems with intimate and non-intimate personal relationships.[90] Ms M considered the Applicant to have a problematic pattern of behaviour in response to challenging situations.[91] She recommended that the Applicant complete the Better Lives Program (BLP) as well as targeted case management intervention in consultation with Corrective Services’ clinicians.[92]
(d)On 6 May 2022, the Applicant was assessed by another clinician (Ms SM) for suitability for alcohol and drugs health or criminogenic programmes (or both).[93] Ms SM assessed the Applicant as having “medium” needs and recommended that he engage in individual criminogenic counselling because of his language barrier.[94] The Applicant completed four individual sessions between 26 April 2023 and 2 June 2023.[95] During this period, he also withdrew from the English classes that he had been completing for most of his sentence, after being refused entry to the BLP, which had been scheduled to commence in September 2023, because of his limited English abilities and the confidentiality of the course preventing the use of interpreters.[96]
(e)In February 2024, Corrective Services recommended against the Applicant being granted parole, given the Applicant’s migration status and his failure to complete the BLP.[97] He was denied release on parole by the Adult Parole Board on 12 March 2024.[98]
[73] R3, FS8, pp 211-214
[74] R3, FS14, p 240.
[75] Ibid.
[76] Ibid.
[77] R3, FS8, pp 211-214.
[78] R3, FS8, p 212.
[79] R3, FS8, p 211.
[80] R3, FS8, p 214.
[81] R3, FS11, pp 220-221.
[82] R3, FS11, p 220.
[83] R3, FS14, pp 231-232.
[84] R3, FS14, p 248.
[85] R3, FS14, p 240.
[86] R3, FS14, pp 245, 248.
[87] R3, FS14, p 245.
[88] R3, FS14, p 242.
[89] R3, FS14, p 243.
[90] Ibid.
[91] R3, FS14, pp 243-244.
[92] FS14, p 246.
[93] R3, FS20, pp 277-279.
[94] Ibid.
[95] R3, FS26, p 292
[96] See R3, FS26, p 292.
[97] See R3, FS26, pp 288-294.
[98] R3, FS31, p 305; R3, FS32, p 306.

Ms M authored an 18-page Treatment Assessment Report dated 1 February 2021, which relevantly noted so far as the rapes were concerned that:
Whilst [DMFR] could articulate the impact upon himself, his brother and parents, he appeared with limited insight regarding the impact on the victim or the precipitating factors that influenced him to engage in sexual violence. Additionally, [DMFR] indicated that the severity of his sentence did not equate to his limited involvement in the offence (described further below) (page 2).
…
[DMFR] adamantly denied that he raped the victim and that he had not sighted the victim before. He denied that he used a jumper to cover the victim’s face and stated that he used his hand. Additionally, [DMFR] denied that he and his friends dragged the victim to the bridge before the rapes occurred. He further denied that he was involved in forcibly holding the victim down whilst the rapes were occurring. [DMFR] also denied that the victim was raped over approximately a 20-30 minute period and stated that it was “maybe five minutes”. [DMFR] tangentially indicated that due to the darkness the victim’s nationality was not visible to him. It is noted that [DMFR] appeared fixated on the nationality of the victim and his inability to obtain this information frustrated him. It is not clear, even with prompting the significance of [DMFR] knowing the victim’s nationality. Equally, it is noted that [DMFR] appeared focussed on wanting to have sighted the victim’s face during the incident. He stated that it was dark and therefore did not have the opportunity to sight the face of the victim. Again, it was noted that he could not elaborate on why he would have liked to have seen the victim’s face.
…
It is noted that [DMFR] appeared to have some understanding of the meaning of the word rape, that it was “having sex” and it was “not good” but could not articulate that it also related to a non-consensual act. [DMFR] stated that he felt upset and ashamed of his offending because it was “in front of a lot of people”, again denoting that his focus was on himself and not the impact on the victim. [DMFR] indicated that he believed that his sentence was too severe for his actions. (page 4).
In respect of the September 2017 assault, Ms M relevantly noted that:
[DMFR] reiterated that he responded in this way as he was upset by the response he got from his fellow inmate. It is noted that [DMFR] appeared fixated upon the wrong that was done to him and eluded that his behaviour was therefore justified. (page 5)
In respect of the November 2017 incident in the gym, it was noted that:
[DMFR] stated that another violent incident occurred, where he was engaged in boxing in the prison gym when another inmate came up behind him and pulled his pants down. [DMFR] reported that he responded with violence where he hit and kicked the other inmate. He stated that he did not receive a formal prison charge for this behaviour as he was not in the wrong. It is noted that [DMFR] did not present with insight that his response with violence was not appropriate. [DMFR] advised that the situation resolved itself, when he and the other inmate apologised to each other and shook hands. It is also noted that [DMFR] again struggled to articulate his emotions at the time of the incident. (page 5)
Lastly, in terms of addictive behaviours, it was noted that:
[DMFR] stated that whilst in custody, he has withdrawn off all substances and has not smoked, consumed alcohol or gambled for a three-year period. According to PIMS (30/11/2020), since being in custody, [DMFR] has provided two negative urinalysis results in 2018 and 2020.
[DMFR] advised that when he consumed alcohol, he presented with limited decision-making skills and was not able to engage in any consequential thinking. [DMFR] denied that he needed alcohol counselling as he has withdrawn off all substances, and no longer craves alcohol or cigarettes. He stated that he therefore believes he can cope in different ways should he experience anything that upsets him in the future. It is noted, however, that [DMFR] appeared to consume alcohol not only to cope with his emotions but also to provide him with confidence to socialise with others, and it is unclear how he will manage this in the future.
Those observations generally accord with the tenor of the Applicant’s evidence before the Tribunal on each of those matters, and the Tribunal respectfully shares Ms M’s concerns about his limited insight.
Since being in immigration detention, the Applicant has been attending weekly “SMART Recovery” sessions on a Monday, which are group sessions aimed at substance dependencies.[99] He has also attended individual counselling on a fortnightly basis.[100] When asked to explain what he learnt during these sessions, the Applicant testified that:
So individual consultations, he asked me, “What can I help you?’ So I said, ‘I am recently released from the prison, and then now I’m in detention. So inside prison also I can’t sleep well, and then even here also, I can’t sleep well. So I want you to help me, how to sleep well, and this kind – yes, we discussed about that one. And also, when we overthink, how can we stop this overthinking, things like that. And also, when we – we can’t sleep at night, and then, how we will manage for better sleep, something like that, we discussed.[101]
[99] See Transcript, p 96. See also A1 and A4.
[100] Ibid.
[101] Transcript, p 97.
The Applicant accepted in cross-examination that he had not really engaged in any rehabilitation before 2024.[102] He said that he did not complete relevant rehabilitation courses because his English skills were not adequate.[103] I note that Ms M observed in February 2021 that:
[DMFR]’s primary language is not English, and whilst a Hakka Chin interpreter was used for the clinical assessment, [DMFR] has been learning English whilst in custody, twice weekly, and presented with an ability to understand the basic content of the assessment. It is considered that at this time [in February 2021 that DMFR’s] English language skills are not at a level that would allow him to meaningfully engage in treatment, however, it is recommended that a responsivity check is conducted in six months time to ascertain whether this has improved to a level that he could participate. (page 15).
[102] Ibid.
[103] Transcript, p 97.
The Applicant stopped engaging in English language classes in 2023. He advised the Tribunal that this was because he was “too tired to continue” and because the course was “too hard for [him]”.[104]
[104] Transcript, pp 86-87.
The Applicant provided the Tribunal with extensive material demonstrating that he had considerable familial and community support, particularly from the Chin community in Melbourne but also in Perth and the United States.[105] His relatives and ethnic community (including his church) relevantly indicated to the Tribunal that they would provide him with “shelter, housing, food, clothing, transportation, and, most importantly, employment.”[106] The Applicant provided the Tribunal with three written job offers following the first hearing and indicated that his brothers had also discussed the potential for him to work with them (either at an insulation company or in the delivery industry once he had obtained his driver’s licence).[107] The Applicant testified on 4 November 2024 that his preference was to work with his oldest brother at the insulation company. The three potential employers were each cross-examined on the last day of hearing. Two of the Applicant’s spiritual leaders were also cross-examined on 23 October 2024. The Applicant’s supporters were universally prepared to accept the Applicant at his word regarding his rehabilitation and they were prepared to support him regardless of their knowledge of his prior conduct. The Tribunal notes that the Applicant had familial and community support in the past and that his co-offenders were from the same community. Nevertheless, the Applicant belongs to a tight-knit community in Melbourne who are prepared to support him to re-integrate. This weighs in the Applicant’s favour as a protective factor.
[105] See R1, G14-G15 pp 94-111; A9, A10, A11, A12, A13, A14, A15, A16, A17, A18, A19, A20, A21, A22, A23 and A24.
[106] See for example, A24, p 12.
[107] See A24, pp 6, 14, 17, 20.
In the Tribunal’s view, despite efforts at rehabilitation particularly in terms of alcohol use, and the existence of extensive community and familial support, the Applicant has unmet criminogenic treatment needs. He has not completed any form of treatment that would address his sexual offending behaviour or that is aimed at his anger management. For this reason, the Tribunal considers that there remains a moderate likelihood of the Applicant re-offending in the future, in both a general and sexual manner.
Conclusion on the protection of the Australian community
Clause 8.1.2(1) of Direction no. 110 provides that the Tribunal 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, and that 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.
The potential harm in this matter crosses that threshold. In the Tribunal’s view, there is a need to protect the Australian community from the risk of harm posed by the Applicant. The Tribunal considers that risk to be unacceptable. For this reason, this primary consideration weighs forcefully against revocation.
Family violence committed by the Applicant
This primary consideration does not arise on the evidence before the Tribunal.
Strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[108] The Tribunal must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to how long he has resided in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[109]
[108] Direction no. 110, cl 8.3(1).
[109] Direction no. 110, cl 8.3(2).
The Applicant is 27 years old and has resided in Australia since he was 18. However, the Applicant has only been in the Australian community for just over two years. During those initial two years, the Applicant worked at an abattoir on a casual basis. He was in State custody between August 2017 and June 2024. He has been in immigration detention since then.
The Applicant’s entire family reside in Australia, save for his parents who still reside in his hometown in Chin State. It was properly conceded by the Minister that a non-revocation decision would have a significant impact and cause emotional hardship on the Applicant’s immediate family, especially his brothers.[110] The Applicant told the Tribunal that his elderly parents were struggling to put food on the table and that they were affected by ongoing conflict in Myanmar.[111] The Applicant provided the delegate with a table indicating his Australian relatives.[112] He testified that this table was correct, save that the persons identified at items 13 and 17 were his ‘uncles’ rather than his ‘cousins’.[113] The Applicant’s older brothers, their wives and children reside in Australia, as well as two uncles and their wives and children. The Tribunal received letters of support from both brothers, and Ms N gave oral evidence.[114] It also received letters of support from one of his uncles,[115] three cousins,[116] and numerous family friends or extended relatives.[117] The Applicant has eight nieces/nephews, and three cousins in Australia (being the children of his uncles). He also testified on 4 November 2024 that one of his sisters-in-law is presently pregnant.[118] The Applicant told the Tribunal on 4 November 2024 that his release from detention would enable him to obtain employment and to financially assist both his parents and his siblings (and their families).
[110] RSFIC at [38].
[111] A24, p 5.
[112] R1, G12, pp 90-1.
[113] Transcript, p 34.
[114] See R1, G14, pp 98-104.
[115] See A17, A19.
[116] See A11, A14, A21.
[117] See A12, A13, A15, A16, A18, A20. A23.
[118] See also A24, p 5.
It is clear to the Tribunal that the Applicant also has the unwavering support of the Chin community in Australia. The Minister properly conceded that the Applicant has developed social ties to that community.[119] The Tribunal was provided with numerous references from members of the Chin community, including a petition and letters from religious and other leaders. Members of the Applicant’s village and regional and state ex-patriate communities all expressed their support for the Applicant, including the 4,000 members of the Western Melbourne Chin Community and the 1,400 members of the Zophei-Chin Community in Victoria.[120] Two of his church pastors also gave written and oral evidence in support of the Applicant.[121] Reverend T thought the Applicant was a good person, who had attended church regularly between 2015 and 2017. He believed that the Applicant was innocent of the rape and that the offending (if any) only occurred because the Applicant was in company.[122] He pledged the Church’s support for the Applicant and their family.[123] Reverend L testified that he was surprised that the Applicant, and his co-offender (another member of their congregation), had been involved in the rapes.[124] He tried to tell the Tribunal that there may be cultural reasons for their community’s failure to accept that the Applicant had, in fact, participated in rape because of the nature of his involvement in this offending.[125] Reverend L thought the Applicant was a good man because, based on his impressions of the Applicant during 2015 to 2017, the Applicant did not drink all of the time, break Australian law, and always attended church.[126] Reverend L thought that the Applicant’s ‘mistakes’ occurred because he was drunk and knew little about the consequences, and content, of Australian law.[127] Lastly, the Applicant’s relatives and community all had concerns for the Applicant’s safety in the event that he was to be returned to Myanmar.
[119] RSFIC at [37].
[120] See A24, pp 18, 23. See also A24, p 15-6 regarding the International Zophei Education Program’s support for the Applicant.
[121] See R1, G14, pp 94-7.
[122] Transcript, p 120.
[123] R1, G14, p 94.
[124] Transcript, p 122.
[125] Transcript, pp 122-124.
[126] Transcript, p 124.
[127] Transcript, pp 125-126.
The Tribunal finds that the Applicant’s immediate family in Australia would be significantly impacted by a non-revocation decision and that they would suffer emotional and financial hardship should he be removed from Australia.
The Tribunal also considers that the Applicant has developed strong social ties to the Chin community in Australia, which is an aspect of Australia’s diverse and multicultural society. However, the Tribunal gives less weight to the strength, nature, and duration of those ties in circumstances where the Applicant commenced offending after only two years’ residence in Australia. His employment during that period and his engagement with the Church in Melbourne and Western Australia does not compel a contrary conclusion in terms of weight.
Overall, the Tribunal finds that the strength, nature, and duration of the Applicant’s ties to Australia, including the impact of the decision on the Applicant’s immediate family, weighs in favour of the revocation of the cancellation decision to a moderate degree.
Best interests of minor children in Australia affected by the decision
The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision. Clause 8.4(4) of Direction no. 110 outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.[128]
[128] Direction no 110, cl 8.4(3).
Mr N’s minor children
The Applicant’s oldest brother has three minor children aged 14, 11 and 10 (Mr N’s minor children).[129] The Applicant said that prior to his imprisonment, they (his brother and his family) would meet ‘like, three times a week, and then, like, every Sunday we met at church’.[130] He testified that he had a good relationship with each child, both before and after his incarceration.[131] He said that he spoke with the children when he spoke with his brother, which varied between one and three times per week.[132] However, ‘[s]ince they are children they – like, we don’t have so much to talk about, so, like, so we just talk only short period’.[133]
[129] R1, G12, p 90.
[130] Transcript, p 37.
[131] Transcript, pp 35-36.
[132] Transcript, p 36.
[133] Transcript, p 37.
Mr N advised the delegate in February 2024 that:
My four children aged from 20 to the youngest being 8 are all very fond of [DMFR] especially my teenage boys [redacted]. I lived in Braybrook when I first arrived to Australia with my family. Although he lived at Werribee with my other relatives; he mostly spent his time here with me. This is because the church was very close walking distance from my house. Thus, he would often at times sleepover on the weekends just because it was further to attend church and local community events all the way from Werribee. He was also very closed [sic] to my children and he loved them dearly; he would often buy them their Christmas and birthday gifts and even taken them out to restaurants. He also babysitted [sic] them when both my wife and I are working. After he went to prison, I try my vest [sic] to visit him from time to time. We always stay in touch including my wife and children. [DMFR] sometimes calls me via video call so that my children could see him and talk to him as well. He sent my children his paintings he did during lockdown. He sent three portraits and tigers which I hung in the living room. During their birthdays; [DMFR] will send my children letters he has personally handwritten always lets let them that he loves them and misses them dearly. We have three cats at home and my children would send their uncle [DMFR] cat photos and let him what is going on their lives. [DMFR] also sends his portraits from prison and this is we maintain a close relationship with him. It has been more than seven years but my children has never forgotten their beloved uncle [DMFR].[134]
[134] R1, G14, p 100; See also A7.
Mr N testified that he witnessed the Applicant loved his children like they were his own, and that he considered the Applicant to be a ‘good young man’ and ‘kind soul’.[135] He was prepared to accept the Applicant’s version of events regarding the rapes and had no apparent concerns regarding the Applicant being around his children.
[135] Transcript, p 129.
There was limited information before the Tribunal to suggest that the interests of these children materially differed from one another, and the Tribunal has considered their interests together. The Tribunal notes that each child is in their early teens and that there is some time in which the Applicant could make a positive contribution to their lives, provided he does not re-offend. Their relationship is non-parental, with others performing the parental roles, and there has been considerable physical separation.
The Applicant’s former representatives submitted that non-revocation would adversely impact the interests of the Applicant’s nieces and nephews and that it would also take away the possibility of the Applicant maintaining a meaningful relationship with them now or in the future.[136] The Minister accepted that the nieces and nephews would be adversely affected by a negative decision but submitted that their interests should be given minimal weight where there was a non-parental relationship and significant absence.[137]
[136] R1, G17 at [40].
[137] RSFIC at [42].

The Tribunal finds that it would be in the best interests of Mr N’s minor children for the cancellation decision to be revoked. In those circumstances, the Tribunal gives each child’s best interests limited weight in favour of revocation.
Mr S’ minor children
The Applicant’s other brother has four sons aged between one and 14.[138] There is a fifth child on the way,[139] however an unborn child is not a minor child for the purposes of this primary consideration.[140] The Applicant testified that he had not met the two youngest sons.[141] He said that he had spoken to them but because they are very young and do not recognise him they ‘don’t talk much’.[142] The Applicant indicated that he had a good relationship with the eldest son, and that they used to attend church together and play soccer in their free time.[143] On a similar basis to Mr N’s, the Applicant would speak with his nephews, including the second son, when he would speak with his brother and sister-in-law each week, but because they were children they did not have a lot to talk about each week.[144]
[138] R1, G12, pp 90-1.
[139] See A24, p 5.
[140] See JNMK v Minister for Home Affairs [2019] FCA 1758; (2019) 168 ALD 206 at [22]-[23]; BPBR v Minister for Immigration and Multicultural Affairs [2024] FCA 1289 at [53].
[141] Transcript, p 40.
[142] Ibid.
[143] Transcript, p 41.
[144] Transcript, pp 41-2.
Mr S advised the delegate in February 2024 that:
I have four sons aged fourteen, nine, four and five-month old infant. My eldest son [redacted] is the only one who has a very close memory and kinship with [DMFR] because my nine-year-old [redacted] was only two at the time [DMFR] was arrested. Despite [redacted] having a very vague memory of [DMFR]; I remind him from time to time that [DMFR] is my younger brother; it is his uncle who took great care of him when he was a toddler. I tell him of [DMFR] through recalling memories and helping him remember [DMFR’s] face by watching family home videos with him. I visit him at the prison as well as talk with him regularly on the phone. My children have visited him in prison both [the two eldest sons]. They also communicate through video and phone calls. My children are still very fond of him and often ask me when he will finally come out prison and live with us. I also want [DMFR] to meet my two younger sons [redacted] who were born long after he went to prison. I have sent him photos of his two nephews he has not met yet. [DMFR] occasionally writes letters to us. He sends my children handwritten birthday cards and paintings as Christmas gifts. He has also sent my eldest son [redacted] an apology letter that he could not be there for [him] on his year six graduation days and birthday events. In his letters, [DMFR] often writes that he is remorseful and ashamed of himself. He encourages his nephews to study hard at school so they could become respectful people and to not be like him.[145]
[145] R1, G14, p 104.
The Applicant clearly has an established relationship with the eldest son. To a lesser extent, he has one with the second son. There is really only the prospect of one in respect of the two youngest sons. There is some time in which the Applicant could make a positive contribution to each of these nephew’s lives, provided he does not re-offend. The relationship is non-parental, with others performing the parental roles and there has been considerable physical separation.
The Tribunal finds that it would be in the best interests of Mr S’ children for the cancellation decision to be revoked. Revocation is arguably more in the elder two sons’ best interests than it would be for the two younger sons, given their established relationship. Nevertheless, the Tribunal considers that each child’s best interests should only be given limited weight in any event (despite those interests differing) because of the nature and duration of their relationship with the Applicant.
Mr A’s minor children
The Applicant’s uncle has two minor daughters aged five and nine.[146] The Applicant testified that these children looked at him ‘as their own brother and then – like, I can say, like, they’re my cousin plus, like, my brother children also.’[147] He was asked to explain this, and he said that this was because they are closely related.[148] It was put to him that this was different evidence from that given in respect of his nieces and nephews (discussed above), and the Applicant said that:
Applicant: Yes, Yes. I looked at these two children as my own – the same as my own brother’s children – my nephew and niece.
Tribunal: You say you view them effectively the same as the children of your brothers?
Applicant: Yes. Correct.
Tribunal: If my maths is correct, your [elder cousin] would’ve been less than two when you were remanded in custody in 2017, and your [younger cousin] was born while you were in custody. So I am just trying to understand why they would view you as a brother?
Applicant: So they have seen me and visited me in the – when I am in the – in incarceration – in jail.
[146] R1, G12, p 91.
[147] Transcript, p 43.
[148] Transcript, p 43.
The Applicant testified that the minor children would visit him three times per year when he was in prison.[149] When asked to clarify what kind of relationship he would like to keep with these children, the Applicant said that ‘Yes. If I can – if I – If I can be released to the community and then, like – I would like to build the relationship with the childrens [sic] and then – they also miss me, and I also miss them a lot, so I would like to spend time together as much as I can in a better way.’[150]
[149] Transcript, p 46.
[150] Transcript, p 46.
There was limited information before the Tribunal to suggest that the interests of these minor children are materially different from one another, and the Tribunal has considered their interests together. Their relationship with the Applicant is akin to that of the Applicant’s relationship with Mr S’ two youngest children’s; they are very young and there is some time in which the Applicant could make a positive contribution to their lives. Their relationship is non-parental, with others performing the parental roles and there has been considerable physical separation. The Tribunal is prepared to accept that it would be in Mr A’s children’s best interests that the cancellation be revoked, but this should only be given limited weight because of the nature and duration of their relationships with the Applicant.
Conclusion regarding best interests of minor children
The Tribunal has found that revocation would be in the best interests of the nine minor children that may be affected by this decision, being the children of the Applicant’s brothers and his uncle. Having regard to the respective nature and duration of their relationships with the Applicant, the Tribunal would give their best interests each limited weight. Cumulatively, their collective best interests weigh against revocation, but only to low degree.
Expectations of the Australian community
The fifth primary consideration is a ‘kind of deeming provision’ which requires the Tribunal to consider the Minister’s articulation of community expectations.[151] Clause 8.5(1) of Direction no. 110 relevantly provides that the Australian community expects non-citizens to obey Australian laws whilst they are in Australia and that where they have engaged in serious conduct in breach of that expectation or there is an unacceptable risk that they may do so, the community expects that the Government will not allow the non-citizen to remain in Australia. Clause 8.5(2) then adds to that ‘norm’ and indicates that non-revocation may be ‘appropriate’ in a particular case ‘simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa’. It specifies commission of serious crimes against women, including crimes of a violent or sexual nature, as character concerns that attract this expectation.[152] The Direction also specifies that these articulated expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[153]
[151] Direction no. 110, cl 8.5(4); YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
[152] Direction no. 110, cl 8.5(2)(c).
[153] Direction no 110, cl 8.5(3).
The Applicant did not obey Australian laws whilst he has been in Australia. He relevantly engaged in acts of violence, including sexual violence, against a woman and separate acts of violence against fellow prisoners. The acts of sexual violence mean that the Australian community would expect that he should not be granted or continue to hold a visa.
The Applicant conceded via his former representatives that these articulated expectations weighed against revocation but contended that the weight to be attributed to them should be moderated by the impact of an adverse decision on his family, the risk of harm of any return to Myanmar, and his low risk of re-offending.[154]
[154] R1, G17 at [43].
The Minister contended that the articulated community expectations weigh heavily against revocation because of the nature of the offending, involving sexual offences against a vulnerable woman at night and in company.[155]
[155] RSFIC at [44]-[45].
The Tribunal has found that the Applicant poses an unacceptable risk of re-offending in a violent manner, including in a sexual way. The most likely scenario for sexual offending in the future would be against a female stranger.[156] The Applicant otherwise has untreated anger management issues, which would be unlikely to discriminate in terms of gender. The policy guidance within the Direction compels the Tribunal to give this primary consideration considerable weight against revocation. Specifically, the Tribunal notes that:
(a)Remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding and will not cause or threaten harm to individuals or the community (cl 5.2(1)).
(b)The safety of the Australian community is the Government’s highest priority (cl 5.2(2)).
(c)The Government considers that the Australian community would expect that non-citizens that have engaged in serious conduct should be required to forfeit the privilege of staying in Australia (cls 5.2(3) and (4)).
(d)Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (cl 5.2(5)).
(e)Whilst the Tribunal must consider the Applicant’s particular circumstances, the nature of some conduct, or the harm that would be caused if it were to be repeated, may be so serious that even strong countervailing considerations in favour of revocation may be insufficient to justify revoking a mandatory cancellation (cl 5.2(7)).
(f)The inherent nature of certain conduct, such as sexual offences against women, is so serious that even strong countervailing considerations in favour of revocation may be insufficient to justify revoking a mandatory cancellation including where there is evidence before the Tribunal that suggests the Applicant does not pose a measurable risk of causing physical harm (cls 5.2(8) and 8.5(2)).
[156] See R3, FS14, p 244.
However, against that policy guidance, the Tribunal does accept that the Applicant has substantial ties to the jurisdiction, including his immediate family and the Chin ex-patriate community, and that there is a reasonable prospect that he may be at risk of persecution or significant harm if returned to Myanmar.
Overall, the Tribunal finds that this primary consideration should be given heavy weight against revocation. The conduct engaged in by the Applicant, and the risk of its repetition, is simply too great to justify revocation.
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of its decision.[157] That is, the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power (including any decision to affirm the reviewable decision under s 105 of the ART Act).
[157] Direction no 110, cl 9.1(1)(a). See also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [3], [9]-[10] per Allsop CJ and Katzmann J; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84] and [88] per Kenny, Flick and Griffiths JJ.
There are three major consequences of visa refusal or cancellation under s 501 and related provisions:
(a)a prohibition on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[158]
(b)refusal/cancellation of other visa applications/visas under s 501F; and
(c)periods of exclusion and special return criteria (SRC) may apply under s 503 and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies, unless the Minister acts personally to grant a permanent visa to the person.
[158] See also Migration Act, s 46(1)(d).
When the Applicant’s Global Special Humanitarian Visa was cancelled on 20 May 2020, he became an ‘unlawful non-citizen’.[159] That is, a non-citizen in the migration zone that did not hold a visa that is in effect.[160] Because of that status (and the fact that he is an alien for constitutional purposes), the Applicant was liable to be detained under s 189(1) of the Migration Act. That occurred on 28 June 2024, when he was released from the custody of Victoria following the expiration of his prison term.
[159] Migration Act, s 15.
[160] Migration Act, ss 13-14.
The Applicant is relevantly required to be detained until he is either removed from Australia under s 198 of the Migration Act or he is granted a visa (including having his original visa restored to him under s 501CA(4)).[161] The Migration Act would not authorise the Applicant’s continuing detention for the purposes of his removal if and for so long as there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.[162]
[161] Migration Act, ss 196(1)(a), (c) and (4)-(5); see also s 501C(7).
[162] NZYQ v Minister for Immigration, Citizenship, and Multicultural Affairs (2023) 97 ALJR 1005-1018 at [55]; ASF17 v The Commonwealth (2024) 98 ALJR 782 at 784-785 [1], 788-789 at [31]-[32].
The only basis upon which the statutory obligation to remove the Applicant under s 198 of the Migration Act would be stayed would be if the Applicant made a valid application for a protection visa.[163] The Applicant would then be required to be detained until either he has been granted that visa or his application has been finally determined. Refusal of that application on a final basis would re-enliven the obligation to remove, as would a separate request in writing made by the Applicant himself under s 198(1).
[163] Migration Act, s 198(5A).
The duty to remove an unlawful non-citizen under s 198 of the Migration Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[164] However, that provision does not require or authorise a non-citizen’s removal to a country if during the course of a protection visa application there has been a protection finding made for the person with respect to the country.[165]
[164] Migration Act, s 197C(2).
[165] Migration Act, s 197C(3).
The criteria for a protection visa are found within s 36 of the Migration Act and Sch 2 to the Migration Regulations. In considering whether to grant or refuse a protection visa, the Minister must first give consideration to Australia’s protection obligations and make a finding whether the applicant satisfies either s 36(2)(a) or s 36(2)(aa) of the Act with respect to a country.[166]
[166] Migration Act, s 36A(2).
Despite an earlier indication by the Minister’s Department on 30 January 2024 that the Applicant has been the subject of a protection finding,[167] the Applicant has not, in fact, been made the subject of one or applied for a protection visa.[168] As part of his representations seeking revocation under s 501CA(4), the Applicant claimed to fear harm if forced to return to Myanmar.[169] He relevantly indicated his nationality, race and religion in a statutory declaration, and raised the following claims that:
[4] … In brief, I got in trouble with the Burmese military and was taken to an army camp in December 2011 when I was 14 years old. I was forced to work in the army camp, but I managed to escape and then fled to Malaysia in early 2012 with my second eldest brother …
…
[28] I believe it is not safe for me to return to Myanmar as I will be captured and even killed by the Burmese military if I ever had to return to Myanmar… I escaped from prison camp from the military. After my escape, the military tried to look for me in my village so I fled to Malaysia to avoid being re-captured.
[29] I have read on SNS news and heard from my brother that Myanmar has become even more unsafe since I came to Australia. I believe I will be captured by the military if I am forced to return.
[30] Even if I was not captured by the military right away, life as a Chin and Christian in Myanmar is horrible because we have long been oppressed by the military government. While my parents are there, it does not mean that it is a safe place and it is likely that the military will harm me because of my ethnicity and religion.[170]
[167] See R2, S6, p 11.
[168] Email from the Respondent to the Tribunal and the Applicant dated 21 October 2024; Transcript, p 9.
[169] R1, G25, p 311.
[170] R1, G12, pp 84-88.
The Applicant confirmed with the Tribunal on 23 October 2024 that it had accurately understood that he made protection claims based upon his ethnicity, faith and claimed history with the military.[171] The Applicant subsequently advised the Tribunal following the initial two-day hearing in October that he had recently learnt that his parents are ‘barely surviving’ and that they were struggling to put food on the table due to the ongoing conflict.[172] The Applicant understood that if he was not successful in this proceeding, he could apply for a protection visa and indicated that he would do so.[173]
[171] Transcript, p 113.
[172] A24, p 5.
[173] Transcript, pp 110-113.
The Minister urged the Tribunal to defer consideration of Australia’s non-refoulement obligations in those circumstances, noting cl 9.1.2(2) of Direction no. 110 and the High Court’s decision in M1/2021 at [28]-[30].[174]
[174] See RSFIC at [49].
The Tribunal agrees with the general proposition that it is not necessary when considering whether or not there is ‘another reason’ under s 501CA(4), where that decision relates to a visa which is not a protection visa, to consider non-refoulement issues in the same level of detail as they would be considered in a protection visa application.[175] The process for determining protection visa applications is specifically designed for consideration of those issues as given domestic effect by the Migration Act.[176] The Act reflects Australia’s interpretation of non-refoulement obligations and the scope of those obligations that Australia is committed to implementing.[177]
[175] Direction no. 110, cl 9.1.2(2).
[176] Ibid.
[177] Direction no. 110, cl 9.1(2).
Moreover, reviews under Part 9 of the Migration Act are very different to protection reviews under what is now consolidated Part 5 of the Act. In matters of this kind, the Tribunal is subject to an expedited timeframe for decision and does not have access to all the material that is in the Secretary’s possession or control that would be considered relevant to the consideration of those obligations, including the original Departmental file for the grant of the underlying visa (in this case, a Global Special Humanitarian Visa). In a protection review, the Applicant would presently also have access to Government-funded legal advice and assistance in respect of his application. The Tribunal could also require the Secretary to arrange for the making of any investigation or any medical examination that it considers to be necessary to the review.[178]
[178] See Migration Act, s 353(1).

Nevertheless, and for the following reasons, the Tribunal, like the delegate, accepts that there is a potential for Australia’s non-refoulement obligations to be engaged in relation to the Applicant in respect of Myanmar.[179]
[179] See R1, G6, p 33 at [84]
An applicant for a protection visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Migration Act. That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee (the refugee criterion).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[180] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[181]
[180] Migration Act, s 5H(1)(a).
[181] Migration Act, s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.[182] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
[182] Migration Act, s 36(2)(aa) (the complementary protection criterion).
As summarised above, the Applicant advances protection claims based on his ethnicity, religion and reported history with the Burmese military. In support of those claims, the Applicant’s former representatives provided the delegate with a summary of relevant country information, which included references to the Department of Foreign Affairs and Trade Country Information Report for Myanmar dated 11 November 2022 (DFAT).[183] DFAT relevantly observes that Myanmar has been continuously affected by conflict since its independence from the British Empire in 1948 and that there have been long-running ethnic insurgencies in that country which are fuelled by discriminatory policies, inequality and political disenfranchisement, and struggles for land, resources and markets.[184]
[183] See R1, G20, pp 237ff.
[184] DFAT Report at [2.30].
The Applicant is from Chin State in the country’s North-West, bordering both India and Bangladesh.[185] DFAT notes that armed groups operate along that border.[186] Many of these groups are thought to be large and well-equipped and:[187]
[the] line between ethno-nationalist army and criminal gang is often blurry, and varies across different actors. Individuals associated with armed groups have been both victims and perpetrators of human rights abuses.
[185] See DFAT Report, p 2.
[186] DFAT Report at [2.31].
[187] DFAT Report at [2.32].
Chin is one of the eight recognised ‘major national ethnic races’ in Myanmar.[188] However, DFAT observes that identity in Myanmar is complex, involving elements of ethnicity, religion, language and geographic location.[189] The clear ethnic majority is Burman (Bamar) and DFAT assesses that minority ethnic groups (including the Chin) suffer frequent violence at the hands of the state, largely on the basis of the actual or perceived association with armed resistance groups.[190]
[188] DFAT Report at [3.1].
[189] Ibid.
[190] DFAT Report at [3.1] and [3.4].
There was a coup d’état in Myanmar on 1 February 2021, with the country becoming a de facto military dictatorship.[191] DFAT notes that, since that coup, a widespread armed insurgency has emerged which seeks to attack the regime and to restore democracy.[192] The regime are reported as having no direct control over large parts of the country, with some estimates indicating that one-third of the country is in the hands of ethnic rebel groups.[193]
[191] DFAT Report at [2.19].
[192] DFAT Report at [2.30].
[193] DFAT Report at [2.31].
In terms of Chin State and Christians, DFAT specifically advises that:
[2.40] Chin State had experienced relatively little conflict since 2010, but widespread protests following the coup led to a brutal crackdown that in turn spurred an active armed insurgency. At least 14 armed groups now operate in Chin State, including the Chinland Defense Force (CDF) and the Chin National Defense Force (CNDF), both of which are allied to the long-established Chin National Army (CNA). An estimated 50,000 people have been displaced by the conflict in Chin State. Mindat in Chin State was among the most conflict-affected townships in Myanmar in 2021, with 29 clashes recorded between the military and resistance forces in the first six months of 2021. Tactics used by security forces in Chin State have become increasingly brutal, and in November 2021, Human Rights Watch released a statement on behalf of 512 regional and international civil society organizations calling for urgent UN intervention to address ‘the escalating attacks in Chin State [and] the rapidly deteriorating humanitarian, human rights and political crisis in Myanmar’. The statement noted incidents including the indiscriminate shelling and burning of 200 homes and two churches (see Christians) in Thantlang in October 2021, the use of airstrikes and artillery against civilians, and the blocking of humanitarian aid intended for affected populations.
…
[3.14] There have been longstanding reports of human rights violations by Myanmar security forces against the Chin, including forced labour, arbitrary detention, and torture, as well as repression of their Christian religion. The population of Chin State came out strongly against the 2021 coup, including through mass protests and one of the highest rates of CDM participation in the country. Numerous Chin armed groups sprang up in response to the military regime’s violent crackdown, and conflict between the military and these groups has been ongoing since March 2021 (see Security Situation).
[3.15] Since the coup, there have been widespread reports of severe human rights violations in Chin State, including indiscriminate arson and shelling attacks, enforced disappearances, extrajudicial killings and torture. For instance, in January 2022, the bodies of nine people, including a 13-year old boy and a well-known human-rights defender, were found in Matupi Township in Chin State. Their hands were bound and their throats slit. The group had previously been reported as having been abducted by security forces following a battle with local PDFs. The Chin Human Rights Organisation, an NGO, estimates that in Chin State since the coup, 1,500 houses have been destroyed (out of an estimated 7,000 destroyed nationwide), 900 people have been arrested for political crimes (out of an estimated 13,000 nationwide), and 50 churches and religious buildings have been destroyed (see also Christians).
[3.16] Chin living both within and outside of Chin State reportedly experience discrimination in accessing government services, including when procuring identity documents, discrimination in government employment and promotion, and harassment by security forces at checkpoints, similar to that experienced by other non-Bamar, non-Buddhist ethnic minorities in Myanmar. Sources told DFAT that Chin who spoke Burmese well were less likely to experience discrimination than those who did not.
[3.17] DFAT assesses that Chin face a moderate risk of state violence in Chin State, Sagaing Region, Magway Region and Rakhine State on the basis of perceived or actual association with armed resistance groups. Elsewhere in Myanmar, Chin face similar risks of societal and official discrimination to other non-Bamar ethnicities. Chin who are Christians face similar risks to other Christians in Myanmar, noting these risks are particularly acute in active conflict zones.
…
[3.33] Christians make up approximately 6 per cent of Myanmar’s population. They mostly belong to the Baptist, Catholic and Anglican denominations, along with several smaller Protestant groups. Most members of the Chin, Kachin and Naga ethnic groups are Christian, as are many Karen and Karenni.
[3.34] The ability of Christians to freely practise their religion in Myanmar is impacted by state policies, community attitudes and ongoing conflict in states with large Christian populations, including Chin, Kayah and Kachin States…
[3.35] Local sources described attempts to convert Christians to Buddhism, for instance ‘by handing out food’, and there are reports of officials intentionally misrecording the religion of Christians as Buddhists on their identity documents. DFAT is aware of claims Christians are sometimes forcibly converted to Buddhism in Myanmar. In 2019, Morning Star News, a Christian NGO, reported that five local officials in Ann Township, Rakhine State, kidnapped two ethnic Chin Christians and threatened expulsion from their village if they did not convert to Buddhism.
[3.36] There are reports of security forces deliberately shelling, looting, vandalising and burning down Christian churches during military operations since the coup, as well as commandeering them to use as military bases. Christian representatives told DFAT soldiers used churches in Chin and Kayah States as shields because they knew local Christians would not attack them. In May 2021, four people were killed and at least eight wounded when a Catholic church in Loikaw, Kayah State, was shelled by soldiers who reportedly knew civilians were sheltering inside. In April 2022, soldiers occupied the Sacred Heart Cathedral in Mandalay, taking an archbishop and dozens of worshippers hostage while demanding to know where ‘gold and money and weapons’ were hidden. Human rights groups have recorded similar incidents throughout the country according to an October 2021 Al Jazeera report.
[3.37] Since the 2021 coup, security forces have targeted Christian church leaders for arbitrary detention, inhumane treatment, kidnappings and extrajudicial killings. At least five Chin pastors have been killed since the 2021 coup. In March 2021, four ministers and seven worshippers were arrested at the Kachin Baptist Convention in Lashio, and allegedly beaten while in custody. In September 2021, Cung Biak Hum, a 31-year-old Baptist pastor, was shot while attempting to put out a fire in Thantlang, Chin State. After killing him, soldiers reportedly cut off the pastor’s finger and stole his wedding ring. Church leaders have reportedly been forced to conceal their identities when questioned by security forces, because ‘if they knew I was a pastor they would arrest me’.
[3.38] DFAT assesses that Christians in Myanmar face a moderate risk of official discrimination, a low risk of societal discrimination and a moderate risk of violence on the basis of their religion. Church leaders face a high risk of violence, especially in conflict zones.
And finally, in respect of failed asylum seekers, DFAT also opines that:
[5.25] …given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries (see Political Opinion), a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.
Based on that brief survey of country information alone, and the Tribunal’s acceptance of the Applicant’s ethnicity and religion, it is likely that the Applicant would have a well-founded fear of persecution from the military authorities in Myanmar based upon an imputed political opinion as a Chin Christian and his membership of a particular social group of returned asylum seekers.
The Tribunal need not consider and make findings about the Applicant’s claim to have an existing profile with the military for that reason and it is entitled to limit the assessment to the refugee protection reasons that appear to give rise to the strongest claim.[194]
[194] Refugee Law Guidelines dated 27 November 2022 (LS-1814) at [3.4.1].
For a similar reason, because the Tribunal considers that there is a realistic likelihood of a refugee finding, the Tribunal has not considered whether there would be reasonable prospects of a complementary protection finding.
The potential for Australia’s protection obligations to be engaged by the Applicant’s circumstances in respect of Myanmar means that it is unlikely that the Applicant would be able to be lawfully removed to Myanmar in the reasonably foreseeable future. It also increases the likely length of the Applicant’s potential immigration detention in circumstances where consideration may also need to be given to whether the Applicant falls foul of the character provisions found in ss 36(1C), 36(2C)(b)(ii) and 501(1) of the Migration Act. Those provisions and the Tribunal’s reasoning in this proceeding, to the effect that the Applicant poses an unacceptable risk to the community, considerably reduces the prospect of the Applicant being granted a protection visa even if there was to be a protection finding made.
Whether the Applicant could be removed to another country in the reasonably foreseeable future would be a matter for assessment by the Minister’s Department at the time in which his detention is for that purpose. Noting the constitutional limits on immigration detention referred to above, the Minister may separately need to give consideration to granting the Applicant another visa, whether with or without conditions, once a protection finding has been made. The Tribunal does not have the power to restore the Applicant’s visa with conditions (or even to grant him another one).
The Applicant has been in State custody for seven years and immigration detention since June 2024. The Tribunal accepts that this has been hard for the Applicant and his family. For the above reasons, there is a realistic prospect that Australia’s non-refoulement obligations may be engaged in respect of Myanmar based on information that is before the Tribunal. The Applicant will likely be subject to further detention whilst consideration is given to whether he should be granted another visa (including a protection visa). There is no set timeframe for processing an onshore protection visa, nor is there one for ministerial intervention. The Tribunal notes that the Applicant would be required to be released from immigration detention once he is detained solely for the purposes of his removal and where there is no real prospect of that being achieved in the reasonably foreseeable future. Accordingly, the Tribunal gives the legal consequences of its decision moderate weight in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to Myanmar, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Myanmar.[195]
[195] Direction no. 110, cl 9.2(1).
The Applicant is a 27-year-old male, with no major mental illness or health condition. He speaks and writes Hakha Chin and very basic English.[196] He completed a few vocational certificates in prison relating to construction and food processing.[197] The Tribunal considers that there would be real impediments to the Applicant establishing himself and maintaining basic living standards in Myanmar. As noted above, there is limited social, medical and/or economic support available in Myanmar. The Applicant’s parents reside in his home village but are reportedly struggling to survive. DFAT considers that any returned asylum seeker would be at high risk of official harassment, arbitrary detention, and violence upon return to Myanmar, regardless of the reasons for why they left. The Tribunal also considers it likely that the Applicant would be at risk of serious harm from the Burmese military because of his imputed political opinion arising from his Chin ethnicity and Christian faith. That risk of harm is clearly an impediment to the Applicant establishing himself, let alone his capacity to subsist thereafter. The Tribunal gives this consideration strong weight in favour of revocation.
[196] See R3, FS10, p 217.
[197] R3, FS10, pp 219, 226.
Impact on Australian business interests
There is no evidence of any meaningful impact of the Tribunal’s decision on an Australian business interest, especially one which would significantly compromise the delivery of a major project or important service in Australia.[198]
[198] Direction no. 110, cl 9.3(1).
Mr J, one the Applicant’s prospective employers, testified on 4 November 2024 that his floor and tiling business could use the Applicant’s labour. However, when he was questioned about this proposition and the Applicant’s preference to work with his oldest brother, he indicated that the business would be fine if the Applicant does not take up the job offer.
The Tribunal considers this consideration should be afforded neutral weight in the Applicant’s case.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.[199]
[199] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160 at [8].
Clause 7(2) of Direction no. 110 states that the primary consideration in cl 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations, and that, otherwise, the relevant primary considerations should generally be given greater weight than the relevant other considerations. This guidance is consistent with the principle articulated at cl 5.2(2), that the safety of the Australian community is the highest priority of the Australian government. The Tribunal notes that this guidance does not mean that the other considerations are secondary to the primary considerations or that they should always be given less weight.[200]
[200] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545.
The Tribunal has considered the relevant considerations in this matter and determined that there is not ‘another reason’ to revoke the cancellation. Those factors which weigh against revocation, particularly the protection of the Australian community and community expectations, outweigh those factors that are in favour of revocation (being the strength, nature and duration of ties; best interests of relevant minor children; the legal consequences of the decision; and the extent of impediments if removed). Whilst those factors in favour of revocation have considerable force, in the Tribunal’s opinion they do not justify revoking the mandatory cancellation in circumstances where the Applicant poses an unacceptable risk of causing harm to the Australian community.

In summary, having regard to the relevant primary and other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the cancellation decision should be revoked. The correct decision is therefore to affirm the decision under review.
DECISION
The decision of the delegate of the Minister dated 14 August 2024, not to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian (permanent) visa under s 501CA(4) of the Migration Act, is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

....................[Sgd]....................................................
Associate
Dated: 14 November 2024

Date of hearing: 22-23 October 2024 and 4 November 2024

Applicant: Self-represented

Solicitors for the Respondent: Ms G Gutmann, Minter Ellison

Date of hearing:	22-23 October 2024 and 4 November 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Ms G Gutmann, Minter Ellison