DPGL and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 62

DPGL and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 62 (4 February 2025)
Applicant/s:  DPGL
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9245

Tribunal: Senior Member C Thwaites
Place:Melbourne
Date:4 February 2025
Decision:The decision to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa is affirmed.

..................................[SGD]..................................
Senior Member C Thwaites
Catchwords
MIGRATION – refusal under section 501(1), character test, BVR – Ministerial Direction No 110.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Cases
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Minister for Immigration and Multicultural Affairs (Cth), Direction No 110: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (7 June 2024)
Statement of Reasons

This is an application for review of a decision by a delegate of the Respondent to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa under s 501(1) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of Iran. He arrived in Australia on 26 May 2013 aged 24. After spending some time in immigration detention, the Applicant was released into the community on a Bridging Visa E (BVE). He spent a short amount of time in Adelaide before travelling to Melbourne where he settled.
The Applicant found adjusting to life in Australia extremely emotionally and mentally difficult. He was without his family, partner or significant friends and was very lonely.
The evidence before the Tribunal outlines the Applicant’s offending behaviour between 10 October 2014 and 18 December 2014. He was arrested and placed on remand on 19 December 2014. He then pled guilty at the first available opportunity.
On 14 April 2016, the Applicant was convicted of two counts of Cth – Import/Export Commercial Qty Border Controlled Drug/Plant – Conspiracy, and sentenced to eight years and six months imprisonment. The Applicant served his entire sentence. He was unable to be released on parole because by that time he did not have a visa.
On 1 June 2017, the Applicant lodged an application for a Safe Haven Enterprise visa.
The Applicant was released from prison on 19 June 2023 and placed in immigration detention.
On 12 November 2024, a delegate of the Minister refused to grant the Safe Haven Enterprise visa under section 501(1) of the Act. On the same day the Applicant was released from immigration detention on a Bridging Visa R (BVR).
On 13 November 2024, the Applicant applied to the Tribunal for review of the delegate’s decision.
The Applicant attended the hearing via video on 23 and 24 January 2025. The Applicant gave oral evidence as did his current partner. The Tribunal also heard oral evidence from Ms Carla Ferrari Forensic Psychologist.
LEGISLATIVE FRAMEWORK
Section 501 of the Act states the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record.
Section 501(7)(c) states that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction) dated 7 June 2024.
Clause 5.2 of the Direction sets out the principles to provide a framework for decision making. These are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1]
[1] The Direction cl 5.2.
The Direction also sets out the considerations to be taken into account when making a decision under section 501(1), and states:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.[2]
[2] Ibid, cl 7.
The Direction contains 5 primary considerations to be taken into account:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.[3]
[3] Ibid cl 8.
The Direction also sets out other considerations to be taken into account including:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on Australian business interests.[4]
[4] Ibid cl 9.
ISSUES
The issues to be determined in this application are:
1)Does the Applicant pass the character test as set out in s 501(6), and if not,
2)Whether the Tribunal should exercise the discretion to refuse or grant the visa under s 501(1) of the Act having regard to the Minister’s Direction No. 110.
FINDINGS AND REASONS
Does the Applicant pass the character test?
It is not in dispute that the Applicant does not pass the character tests.
On the evidence before it, including the National Criminal History Check and the sentencing remarks of Judge Lawson of the County Court of Victoria, the Tribunal finds that on 14 April 2016, the Applicant was convicted of two counts of Cth – Import/Export Commercial Qty Border Controlled Drug/Plant – Conspiracy, and sentenced to eight years and six months imprisonment.[5]
[5] Ex G Docs 35 and 37.
The Tribunal finds the Applicant does not pass the character test set out in s 501(6) of the Act.
Whether the Tribunal should exercise the discretion to refuse or grant the visa under s 501(1) of the Act having regard to the Minister’s Direction No. 110
The Tribunal has considered each consideration set out in the Direction in turn, keeping in mind the principles in cl 5.2 of the Direction.
8.1 The protection of the Australian community
This consideration requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
The Tribunal is required to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
8.1.1 Nature and seriousness of the conduct
When considering the nature and seriousness of the Applicant’s conduct, cl 8.1.1(1) of the Direction provides a list of matters the Tribunal must have regard to.
The Tribunal has taken into consideration the written and oral submissions made in support of the Applicant, as well as the written statements and oral evidence of the Applicant, the sentencing remarks of Judge Lawson, and the transcript of the County Court proceeding including the prosecution summary of facts.[6]
[6] Ex A1, A3, G Docs 56.
The Tribunal accepts the submissions that the Tribunal must not have regard to any offending that did not result in a conviction. The Tribunal has only had regard to offending for which the Applicant was convicted, being the two counts of Cth – Import/Export Commercial Qty Border Controlled Drug/Plant – Conspiracy, for which he received a sentence of eight years and six months imprisonment.
While the Tribunal accepts the crimes the Applicant was convicted of are not of the type listed in 8.1.1(1)(a) of the Direction, the Tribunal notes that the range of conduct that may be considered very serious is not exhaustive.
The Tribunal accepts the Applicant has not engaged in any violent or sexual crimes, or crimes against women or children, or acts of family violence.
The applicant has not caused someone to enter into a forced marriage or committed any crimes against the elderly or the disabled, or government representatives or officials. The Applicant has not attempted to escape from immigration detention and has not committed a crime while in immigration detention. The Applicant plead guilty at the first available opportunity and has consistently accepted his offending was serious.
There is no evidence before the Tribunal about the impact of the Applicant’s offending on victims, and while the Applicant was convicted of two counts relating to the importation of two consignments of methamphetamine, the Applicant’s conduct for which he was convicted related to a period of just over two months from 10 October to 18 December 2014. The Tribunal accepts there is no evidence that the Applicant’s conduct constituted the commencement of further importation, and the Tribunal accepts there is no evidence of a trend of increasing seriousness of offending.
The Tribunal accepts the Applicant was convicted of two offences relating to two consignments of methamphetamine, and that the second importation increased the quantity of the drugs the Applicant was involved in importing into Australia. This was reflected in the sentencing remarks by Judge Lawson, and apart from this, there is no other evidence of the cumulative effect of repeat offending. The Tribunal accepts there is no evidence the Applicant provided false or misleading information to the Department, and the Tribunal accepts there is no evidence the Applicant has reoffended. The Tribunal finds the offences were committed in Australia and not in another country.
On the evidence before it, the Tribunal also accepts the Applicant was involved in criminal conduct with his co-offender to import two consignments of methamphetamine into Australia. The total weight of pure methamphetamine was 3.3 kilograms (4.4 times the threshold for a commercial quantity), with an estimated street value of more than $4 million. While Judge Lawson accepted there was no evidence that the Applicant was aware of the actual quantity of the drugs contained in the two consignments, she did not accept his offending was at the lower end of the scale of seriousness for this type of offence.[7]
[7] Ex G Docs 42.
Based on Judge Lawson’s sentencing remarks, the Tribunal accepts that while the Applicant’s conduct was confined to a relatively short period of time, his conduct facilitated the importation of a commercial quantity of methamphetamine into Australia over two consignments. The Applicant was the primary contact for the operation in Australia, and worked with the Iranian contact to effect the importation. The Applicant was an essential cog in the criminal enterprise. He was an active participant in arranging the importation of the drugs. While Judge Lawson was not satisfied on the evidence that the applicant was the principal in the importation, his role was an important and essential role.[8]
[8] Ibid 42 and 52.
The applicant was sentenced to a total of eight years and six months imprisonment.
The Tribunal has taken into consideration the submissions that the maximum sentence for the offence is life imprisonment, and that the Applicant received a term of imprisonment in the approximate middle of the range available to the sentencing judge. The Tribunal has also considered the submissions that the Applicant received a sentencing discount of approximately 20% for pleading guilty at the first available opportunity, and that Judge Lawson viewed the guilty plea as a sign of remorse and acceptance of responsibility.
The Tribunal considers sentences of imprisonment as the most serious in the sentencing hierarchy, and while the Applicant did not receive the maximum sentence available, the Tribunal considers an eight year and six months sentence to imprisonment is a significant sentence. The Tribunal has also given weight to Judge Lawson’s sentencing remarks, that while this matter was not in the category of the worst case, the offending was very serious.[9]
[9] Ibid 52.
While the Tribunal has taken into account that the applicant’s offending conduct did not relate to any violent or sexual crimes, or crimes of a violent or of a sexual nature against women or children, and did not involve any acts of family violence, and having had regard to all the factors noted above, and giving significant weight to the sentencing remarks of Judge Lawson and the sentence imposed, overall, the Tribunal considers the nature and seriousness of the Applicant’s conduct as very serious.
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has had regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Tribunal has taken into account the information and evidence on the risk of the Applicant reoffending and the evidence of rehabilitation, giving weight to time spent in the community since the most recent offence, and where consideration is being given to whether to refuse to grant a visa to the Applicant, whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
The Tribunal has considered the extract of the Final Report of the National Ice Taskforce,[10] which states that unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
[10] Ex R1 Final Report of the National Ice Taskforce, Commonwealth of Australia, 2015.
The Applicant has indicated he accepts that the nature of the harm if he committed the same offence again is serious.
The Tribunal agrees and considers the nature of the harm to individuals or the Australia community should the Applicant engage in further criminal or other serious conduct is serious.
The likelihood of the Applicant engaging in further criminal or other serious conduct
On the evidence before it, the Tribunal finds the Applicant received one conviction in 2016 for a relatively short pattern of offending which occurred between 10 October and 18 December 2014 for which he pled guilty, and has not reoffended.[11]
[11] Ex G Docs 35-55.
The Applicant has undertaken a number of rehabilitative courses as well as general education and employment courses.[12] The Applicant has also engaged in ongoing regular psychological treatment since 2017.[13]
[12] Ibid 222-283.
[13] Ex A8 The Victorian Foundation for Survivors of Torture Inc. Health Assessment Summary Report 1/11/2024.
The Tribunal has considered and gives weight to the letters filed in support of the Applicant,[14] and the Confidential Psychological Report dated 24 November 2023 by Ms Carla Ferrari.[15] The Tribunal has also taken into consideration the oral evidence of Ms Ferrari and the Applicant’s current partner provided during the hearing.
[14] Ex G Docs 268-288, A4, A5.
[15] Ibid 205.
The Tribunal has given significant weight to Ms Ferrari’s opinion that the Applicant is of low risk of general reoffending. The Tribunal notes this opinion was concluded after a number of psychometric tests and assessments were completed by Ms Ferrari as outlined in her report.

While the Tribunal notes Ms Ferrari’s report was written in November 2023, the Tribunal considers her opinion remains current and persuasive given the Applicant’s improved circumstances since that time, including being released from immigration detention, co-habiting with his current partner, and continuing his regular ongoing psychological treatment. The Tribunal also notes the Applicant’s oral evidence that he expects to start paid work the week after the hearing. His evidence was consistent with and supported by the evidence of his current partner.
The Tribunal has considered the Respondent’s submissions questioning the relevance of undertaking courses relating to drug and alcohol abuse, anger management and treatment for his mental health, when the Applicant’s primary motivation for his offending was poverty and his desire to profit through the importation of methamphetamine. The Tribunal has also considered the concerns raised about the inconsistent evidence provided by the Applicant in relation to the factors leading to his offending and the reliability of his evidence.
The Tribunal accepts the Applicant provided untrue information about being dependant on drugs in order to mitigate his sentence during his criminal proceedings. The Tribunal considers this reflects poorly on the Applicant, his credibility and the reliability of his evidence about why he committed the offence.
Nevertheless, the Tribunal also accepts the Applicant has admitted to this deception and has since remained consistent about the factors affecting him at the time of his offending. The Tribunal also notes a considerable amount of time has passed since the Applicant made the decision to provide untrue information. The Applicant was considerably younger at the time. There is also consistent and reliable evidence from the Applicant’s partner in relation to the Applicant’s current circumstances. While the Tribunal remains concerned the Applicant provided untrue information about being dependant on drugs at the time of offending, the Tribunal accepts the Applicant has told the truth in his evidence to the Tribunal. The Tribunal also accepts the Applicant is genuinely remorseful for his offending.
The Tribunal accepts the Applicant was 26 years old at the time of offending. He was lonely and isolated in an unfamiliar country a long way from his family supports in Iran, with little proficiency in the local language. Since that time, the Applicant has served his full sentence and is now aware of the ramifications his offending had on his family and his future prospects.
While the Applicant has spent a majority of the time since arriving in Australia in some form of custody, he is now older and more mature. He is in a relationship and is supported by his partner and her family. He is significantly less isolated, and his English has greatly improved. He is very keen to find work and has good prospects of gaining paid employment.
The Tribunal accepts the Applicant sincerely wishes to contribute to his relationship and the community. While the Applicant has been diagnosed with PTSD and generalised anxiety disorder, he does not currently have symptoms of PTSD and continues with his mental health treatment. The most recent report from the Victorian Foundation for Survivors of Torture dated 1 November 2024 indicates the Applicant continues to engage well in his counselling sessions.[16] The Tribunal has also considered the oral submissions in relation to cl 8.1.2(2)(c) of the Directions, suggesting a visa that provides the prospect for a permanent visa pathway may provide more protective factors than a temporary visa.
[16] Ex A8 The Victorian Foundation for Survivors of Torture Inc. Health Assessment Summary Report 1/11/2024
The Tribunal accepts the Applicant now has significant protective factors in place and his current situation is very different to his circumstances when he offended. The Tribunal acknowledges the Applicant’s efforts to change his circumstances and improve his mental health and build a stable life together with his partner.
On the evidence before it, and giving considerable weight to the opinion of Ms Ferarri, the Tribunal finds the risk of the Applicant engaging in further criminal or other serious conduct is low.
Having considered all the factors mentioned above, cumulatively, the Tribunal considers the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct is low.
The Tribunal accepts 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 Tribunal does not accept this applies to the Applicant’s circumstances.
While the Tribunal acknowledges the Applicant’s efforts to change his circumstances and improve the protective factors against reoffending, having considered the nature and seriousness of the Applicant’s conduct, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal has concluded that the consideration of the protection of the Australian community weighs moderately in favour of affirming the decision under review.
8.2 Family violence committed by the Applicant
There is no evidence before the Tribunal that the Applicant engaged in any family violence and, as such, this consideration is not relevant and given no weight.
8.3 The strength, nature and duration of ties to Australia
During the hearing, the Tribunal heard evidence from the Applicant and from the Applicant’s current partner. The Applicant and his partner have also provided written statutory declarations and a joint statement to the Tribunal.[17]
[17] Ex A1, A2, A3.
On the basis of their consistent and compelling oral and written evidence, the Tribunal accepts the Applicant is in a committed relationship with his partner who is an Australian citizen. They have been living together since the Applicant was released from immigration detention. They have known each other for over a decade having met through his partner’s brother. They became a couple approximately 10 months ago and plan to get married and build a family together. They support each other emotionally, spiritually and mentally, and the Applicant contributes his income to the household rent.
The Tribunal accepts that the Applicant’s partner would experience emotional and practical hardship if the Tribunal affirmed the decision to refuse the visa. The Tribunal accepts she would feel unsettled and anxious about the future. The Tribunal also accepts this would make it hard to plan long term, such as buying a home and starting a family and building a stable life together.
The Tribunal accepts the Applicant’s partner may experience some financial strain and stress if she chose to support the Applicant financially with legal matters, although the Tribunal notes the Applicant moved into his partner’s rented home on his release, and while he now contributes to the rent payments, his partner has a career and was providing for herself financially prior to the Applicant’s release. The Tribunal does not accept the Applicant’s partner would experience financial hardship if the Tribunal affirmed the decision to refuse the visa.
While clause 8.3(2) of the Direction is relevant to cancellations and revocations, and the Applicant’s matter is a refusal, the Applicant has provided submissions in relation to the factors set out in cl 8.3(2) and the Tribunal considers this information relevant in the exercise of its discretion.
The Applicant has been in Australia since he arrived on 26 May 2013. He has spent a majority of the time since his arrival in some form of detention. The Applicant was arrested on 19 December 2014 and remained in prison and then in immigration detention until he was released on 12 November 2024. The Applicant has been living with his current partner in the community since that time.
The Tribunal has given less weight to the length of time the Applicant has been in Australia given he offended within the first two years of arriving. The Tribunal has given more weight to the time the Applicant has spent in the community.
The Tribunal has considered the letters of support filed in support of the Applicant including the letters from Ali Rumahi, Mustafa Ibrahim, Abdulqadir Mohamed, Wendy Conway, Brendan Hercus, Susan Valaei, Michael Su, as well as letters from the applicant’s cousin, the Light of Hope Foundation and Foundation House. Overall, these letters provide support for the Applicant with positive assessments of his character, despite his offending. The Tribunal notes Wendy Conway was the Applicant’s English teacher at Fulham Corrections Centre and Brendan Homes was a prison officer at Loddon Prison and Middleton. Mr Michael Su noted the Applicant mentored younger inmates in a positive way during his time in jail.[18]
[18] Ex G Docs 267-306.
The Tribunal has concluded this consideration weighs in the Applicant’s favour.
8.4 Best interest of minor children in Australia affected by the decision
There is no evidence before the Tribunal that minor children in Australia are affected by this decision, and as such, this consideration is not relevant and given no weight.
8.5 Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction sets out examples of conduct that would raise serious character concerns that the Australian community would expect that a person who undertook such conduct would not be granted a visa. The Tribunal accepts the submissions that the Applicant has not been involved in the offences specified in this clause.
Nevertheless, the Applicant did fail to meet the Australian community’s expectations and did break the law after he arrived in Australia. The Applicant played an important role in the importation of a commercial quantity of methamphetamine into Australia. This is a serious offence and resulted in a significant sentence. The Tribunal accepts the Australian community would expect the Applicant would not hold a visa given his conduct.
While the Tribunal notes the Applicant’s history of forced migration and commends his efforts at rehabilitation, the Tribunal does not accept these factors lesson the weight given to the expectations of the Australian community given the seriousness of his offences.
The Tribunal considers this consideration weighs heavily in favour of affirming the decision under review.
9 Other Considerations
In making a decision under section 501(1), the Tribunal must also take into account the following considerations.
9.1 Legal Consequences of the decision
The Applicant is a citizen of Iran and is the subject of a protection finding for the purposes of section 197C, which means his removal to Iran under section 198 is not required or authorised. Therefore, if the Tribunal affirms the decision to refuse the Applicant a Safe Haven Enterprise visa, it will not result in the Applicant’s removal from Australia to Iran in breach of Australia’s non-refoulement obligations.
The Applicant was released from immigration detention on 12 November 2024 on a BVR and he is currently living in the community. Therefore, if the Tribunal affirms the decision to refuse the Applicant a Safe Haven Enterprise visa, it will not automatically result in the Applicant being detained again in immigration detention. The Applicant will remain on the BVR.
The Tribunal accepts if the Applicant remains on the BVR he is statutorily barred from applying for another visa including the bar in s 48A on further protection visa applications.
The Applicant’s current BVR has a number of conditions and does not provide permission to travel to or re-enter Australia and will cease if he departs.[19] The conditions include:
[19] Ex R2 Notice of visa grant and conditions – Class WR Bridging R (Subclass 070) visa 12/11/2024.
8303 – No violent or disruptive activities
8401 – Report as Directed
8513 – Notify residential address
8514 – No change in circumstances
8541 – Must Assist with Removal
8542 – Report for removal from Australia
8543 – Facilitate removal from Australia
8551 – Obtain approval for certain occupations
8552 – Notify change in employment details
8553 – Must not be involved in activities prejudicial to security
8554 – Must not acquire specified goods
8555 – Obtain approval before undertaking specified activities
8556 – Must not communicate with specified entities or organisations
8560 – Obtain approval to acquire chemicals of security concern
8561 – Must attend interview if directed
8562 – Must not take up specified employment
8563 – Must not undertake specified activities
8614 – Notify travel
8616 – Notify contact with certain individuals or organisations
8625 – Notify changes in personal details
The Tribunal accepts the Applicant feels anxious about his current immigration status. The BVR does not provide permission to travel to and re-enter Australia, which means he cannot visit his family in a third country and return to Australia. The conditions attached to the BVR include a direction to report to the Department by telephone on a daily basis Monday to Sunday, obtain approval for certain occupations, notify the Department of changes in employment, residential and personal details, attend an interview if directed, and assist with, report in person and facilitate removal from Australia. As discussed in the hearing, the conditions on the BVR do not restrict the Applicant from study. The Tribunal also notes that failure to comply with some of the conditions may be an offence under s 76B.[20]
[20] Ibid.
The Tribunal has given weight to the submissions that the Applicant feels like a second class resident with no permanency and no ability to see his family despite having a protection finding made. The temporary nature of the BVR may mean the Applicant will struggle to get a home loan or other type of loan such as a car loan. The Tribunal has taken into account the submissions that the Applicant should be dealt with in a humane manner, and that it is in the interests of the Australia community that the Applicant become an integrated part of the community and not a person on the fringe.
The Tribunal also accepts the Applicant is anxious about his visa status and the possibility of further immigration detention and removal to a third country without his partner, to a country he knows nothing about, has never been, and where he may not know anyone.
The Migration Amendment Act 2024 (Cth) came into operation on 5 December 2024. In summary, s 76AAA of the new legislation provides for a person’s BVR to cease if that person has permission to enter and reside in a foreign country and that country is a party to third country reception arrangements with Australia.
These amendments means that, where a person has a protection finding in relation to a particular county, and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country.
Other provisions in the Migration Amendment Act require the person to cooperate with steps for their removal to a foreign country. The Migration Amendment (Removal and Other Measures) Act 2024 (Cth) creates a criminal offence if the person does not cooperate with these steps.
While the Tribunal accepts the Applicant may be liable to removal under these third country arrangements in the future, and the Tribunal accepts the Applicant feels anxious and uncertain about his future due to this possibility, there is no evidence before the Tribunal that third country removal arrangements have been made for the purposes of s 198AHB, and it is not known if the Minister would seek permission for the Applicant to enter and reside in a third country.
The Tribunal accepts that if it affirms the decision under review, the immediate legal consequence would be the Applicant would remain in Australia in the community as the holder of a BVR. The Tribunal accepts the Applicant remains concerned and anxious about the possibility of removal to a third country in the future and this would have an adverse effect on his mental health.[21]
[21] Ex G Docs 220.
The Tribunal considers the legal consequences of its decision provides some weight in the Applicant’s favour.
9.2 Extent of impediments if removed
The Tribunal must also consider the extent of any impediments the Applicant may face if removed from Australia to his home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age, health and whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The Tribunal accepts the Applicant is 36 years old, and grew up in Iran and left at the age of 24. He speaks Farsi and has immediate family in Iran who are supportive, and therefore he would be unlikely to face any significant cultural or linguistic barriers.
The Applicant has been diagnosed with PTSD and generalised anxiety disorder, and has had a protection finding made in relation to Iran. The Tribunal accepts the Respondent’s submission that the Applicant would be at risk of significant harm and may be unable to obtain appropriate treatment for his mental health conditions if removed to Iran.
Given there has been a protection finding made for the purposes of s 197C(3), it is not in dispute that there is no realistic possibility the Applicant would be removed to Iran.
Therefore, the Tribunal has given no weight to the extent of any impediments the Applicant may face if removed from Australia to his home country.
The Applicant has made submissions in relation to the extent of impediments if the Applicant was removed to a third country. While the Respondent has submitted that this is not relevant to the consideration of the extent of impediments if removed from Australia to their own country, the Tribunal has taken them into consideration in the exercise of its discretion.
The Applicant submitted that, due to the recent legislative amendments, it is now legally possible to remove the Applicant to a country (not Iran) which the Australian government has paid to take the Applicant. This creates the possibility the Applicant could be sent to a third country, to which he has no connections, knows nothing about, has never been to and knows no one, with unknown employment prospects, for an unknown period of time, while his partner remains in Australia (there being no evidence that the Applicant’s partner could move with him). The submission notes there are no requirements for the Applicant to know the language or culture, and while removal is being finalised, the Applicant is liable to be administratively detained.
As noted above, there is no evidence before the Tribunal that third country removal arrangements have been made for the purposes of s 198AHB, and it is not known if the Minister would seek permission for the Applicant to enter and reside in a third country.
The Tribunal accepts the Applicant remains concerned and anxious about the possibility of removal to a third country sometime in the future where he may have no connections or local language, and no friends and family and professionals to support him.
The Tribunal gives these considerations some limited weight in favour of the Applicant.
9.3 Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

While the Tribunal notes the Applicant expected to start some work soon after the hearing, there is no evidence before the Tribunal that this employment would fall into the category contemplated by this clause, and therefore the Tribunal has given this consideration no weight.
CONCLUSION
As noted above, the Applicant does not pass the character test under s 501 of the Act, and the Tribunal has considered whether it should exercise the discretion to refuse or grant the visa under s 501(1) of the Act having regard to the Minister’s Direction No. 110.
The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the other primary considerations have been given greater weight than the other considerations, in line with the Direction.
Having considered the specific circumstances relating to the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs moderately in favour of affirming the decision under review. The Applicant’s conduct did not involve family violence and no weight has been given to that primary consideration. The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of the Applicant, while there are no minor children in Australia involved in this matter and no weight has been given to that primary consideration. The expectation of the Australian community weighs heavily in favour of affirming the decision. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the Applicant if he was removed to a third country provide some weight in favour of the Applicant.
While the strength, nature and duration of the Applicant’s ties to Australia, and the legal consequences of the decision and the extent of the impediments to the Applicant if he was removed to a third country provide some weight in favour of the Applicant, the Tribunal has concluded the primary considerations of the protection of the Australia community and the expectations of the Australian community weigh heavily in favour of affirming the decision under review, and on balance, outweigh the considerations in favour of the Applicant.
Having weighed up all the factors as part of a single evaluation, the Tribunal considers that the decision under review should be affirmed.
DECISION
The decision to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa is affirmed.
Date of hearing:   23 and 24 January 2025
Solicitor for the Applicant:                 Alison Battisson, Heretic Law
Solicitor for the Respondent:            Aaron Taverniti, Sparke Helmore