FKCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2025] ARTA 519

FKCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 519 (28 April 2025)
Applicant/s: FKCV
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Tribunal Number: 2023/4697

Tribunal:General Member S. Fenwick
Place:Melbourne
Date:28 April 2025

Decision:The Tribunal affirms the decision under review.

.......................[SGD].................................................
General Member S. Fenwick
Catchwords
MIGRATION – mandatory cancellation of visa – national of Sudan – Global Special Humanitarian (Class XB) (subclass 202) visa – failure to pass character test – whether another reason mandatory cancellation should be revoked – Ministerial Direction No 110 applied – serious sexual offending – other lesser offending – strength, nature and duration of ties and best interests of minor children considered – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afamiliona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1100
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND

FKCV seeks review of a decision of a delegate of the Respondent Minister, dated 26 June 2023, not to revoke the mandatory cancellation of his visa. The substantial time between that decision and the hearing arises from the fact that his application was first considered by the Tribunal in late 2023. The Applicant successfully appealed that decision to the Federal Court of Australia, and it was remitted in October 2024 for re-hearing.
FKCV was born in Ethiopia to Sudanese parents in 1993. He was raised there by his mother and travelled with relatives to Australia in 2007 to live with his father. FKCV ultimately lived in Australia with his relatives, and is the father of two children. He has a daughter with a former partner, aged eleven, and a son born to his biological cousin, the victim of his principal offending, aged seven. FKCV has a quite extensive history of offending and first appeared in court in mid-2013. In mid-2017 he committed the sexual assault against his cousin but was not arrested until some nine months later. After breaching bail, FKCV was arrested in mid-2018, remanded, and subsequently sentenced in early 2020 to four years and seven months imprisonment.
Whilst in prison, FKCV applied for a protection visa, which was denied in a decision in 2022. The Applicant was released into immigration detention in early 2023 where he has remained. He sought voluntary repatriation to Sudan in early 2024, but later withdrew this request.
FKCV represented himself before the Tribunal and lodged a bundle of material (AB) including: an undated letter from the Applicant to the Minister; vocational training certificates; and, letters of support from friends and family. The Respondent lodged documents pursuant to s 501 of the Migration Act 1958 (Cth) (the Act) (G), a Statement of Facts, Issues and Contentions (RSFIC), and Supplementary G documents (SG). The Respondent lodged a Remittal Bundle (RB) that includes materials previously lodged with the Tribunal, and documents relating to FKCV’s time in detention.
Evidence was given at the hearing by the Applicant, his father, and a friend.
LEGISLATION
Cancellation of a visa on ‘character grounds’ arises under s 501 of the Act. Cancellation is mandatory in circumstances where a person fails the character test, relevantly here by reason of a person having a ‘substantial criminal record’. This is defined by reference to s 501(6)(a) and s 501(7)(c) to be a sentence of imprisonment of 12 months or more.
A person may make representations about the revocation of a mandatory cancellation decision under s 501CA(4) of the Act. The decision may be revoked if there is ‘another reason’ why it should be revoked, a position that may be arrived at after consideration of the factors identified in Direction No 110 (the Direction). I will refer below to the various considerations identified in that instrument, and note that it also provides as a framework for decision-making the following principles [5.2]:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
I must first be satisfied that the Applicant has a substantial criminal record, and I am so satisfied on the basis of the criminal history report (G6) which confirms the imposition of a sentence by a District Court of four years and seven months for the offence of sexual penetration without consent. I must now consider whether there is another reason the mandatory cancellation should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
I provide the following summary of FKCV’s sexual offending, based on the sentencing remarks (G7):
(a)FKCV went to the victim’s residence and asked for a ‘blowjob’ which was refused, but which then led to him sexually penetrating her without consent;
(b)the sentencing judge accepted he was intoxicated, but did not accept that – as claimed – FKCV had no memory of the event;
(c)the judge also did not accept FKCV had no knowledge of the offence until approached by police, and noted that the guilty plea was only made after forensic evidence proved his involvement beyond reasonable doubt;
(d)the significance of this being that the victim became pregnant due to the offending, and also contracted a sexually transmitted disease;
(e)the offending was very serious, as FKCV was aged 24 and the victim – his biological cousin – 17, and aggravated by the fact that he had previously lived with the family, constituting in a sense additional abuse and increased vulnerability by reason of familiarity;
(f)material before the sentencing judge indicated the victim was, to FKCV’s knowledge, plainly extremely vulnerable and FKCV took advantage of this, and the conduct was coercive and persistent, and was committed against a background of inducements and threats;
(g)the offending had a significant traumatic psychological impact on the victim as a result of the birth of a child and – given her vulnerability – will be felt for a long period, and probably the rest of her life; and
(h)a mandatory lifetime restraining order was imposed in respect of the victim, in addition to the sentence, which included eligibility for parole after two years and seven months.
FKCV was asked in evidence whether he had offended with the victim previously, and he maintained that this was the only occasion he had sexual contact with her. The Applicant stated further that on this occasion, when the victim fell pregnant, he would not say it was rape, as he was under the influence. FKCV did acknowledge subsequently that she did not consent, and it therefore constituted rape. When reminded that he had previously stated that he was so drunk he did not know what had happened, FKCV stated that he takes responsibility, and accepts that he was sentenced by the judge. He also accepted that the offence had had a severe and traumatic impact upon the victim.
The following summary of FKCV’s other offending is drawn from the criminal history report (G6). The Applicant has appeared in the Magistrate’s Court on 13 occasions between mid-2013 and early 2020 for the following types of offence:
(a)breach and other conduct matters: five breach offences including breaches of bail and police order (restraining order), two instances of disorderly conduct, and one give false details to police; and
(b)driving matters: eight instances of no authority to drive, and four instances of exceed 0.8g of alcohol per 100 ml.
In respect of this offending, FKCV received penalties in the form of fines ranging from $150.00 up to $1,600.00 (19 fines in total), and periods of disqualification of between three and 30 months (11 in total).
When sentencing FKCV for the sexual offending, the judge noted the Applicant’s criminal history which they described as entirely consistent with his abuse of alcohol (G7, 37). It prevented the judge sentencing FKCV as a person of good character, and the driving offences were described as showing lack of respect for the law and duties in the community.
FKCV was asked in evidence about one driving matter from early 2018 in which he recorded a blood alcohol reading of 0.141g per 100 ml (SG13, 28). He agreed that he was very intoxicated and stated that he ‘used to be on alcohol’. The Applicant also agreed that he was lucky that the consequences of this offending were not more serious.
The Respondent submits that FKCV’s sexual offending should be considered extremely serious and that his criminal history demonstrates frequency of offending, general disregard for Australian law, and a trend of increasing seriousness; therefore, his offending overall weighs heavily against revocation (RSFIC [31], [35]-[36]). At the hearing it was contended the principal offence should be considered at or near the top of the range for sexual offending, and strong countervailing considerations could not justify revocation.
The Direction provides that the Australian Government and Australian community consider sexual crimes and crimes of a sexual nature against women or children as very serious forms of conduct, and that is an appropriate finding to make in this case [8.1.1(1) a)]. The reference to the victim’s vulnerability in the sentencing remarks is repeated, and while the exact reason for this is not explained, the stress upon this feature of the offending must be given weight.
Clearly, the vast majority of FKCV’s offending has resulted in sentencing outcomes of a relatively lesser nature, but he received a quite substantial term of imprisonment for his sexual offending [8.1.1(1) c)]. That said, I also note that the term granted for the sexual offending is in the context of a 14-year maximum term (G6, 35), and the judge imposed a non-parole period of approximately half this term.
Notwithstanding the relatively lesser quality of his wider record, FKCV’s offending has been very frequent and demonstrated a stark escalation in seriousness with his sexual offending, and I consider the cumulative effect to be a matter of real concern [8.1.1(1) e)-f)].
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In his recent undated letter to the Minister (AB), FKCV states that he has ‘taken every opportunity to rehabilitate and grow as a person’, also referring to participation in unspecified programs that demonstrate his commitment to ‘self-improvement and re-integration into society’. He states a support network of family and friends is standing by him, and the Applicant refers to his devotion to his children and dedication to being a better father and member of the community.
In an earlier letter (G12), FKCV states that he ‘never once denied [his] crime and realise that I have made a monumental life choice and for that I was justly incarcerated’. He apologises to his victim, describes his actions as completely out of character, and he wants to ‘own up for everything so that we can both seek closure …’. In both pieces of correspondence, the Applicant notes that he grew up without a father, and in the earlier letter, that he has not seen his son due to the protection order, but was then in the process of family mediation. FKCV states that in prison he completed the Standing on Solid Ground course ‘which has taught me all about controlling my emotions, thinking before doing things, taking into account the consequences of my actions as well as learning about living in the now’. He states further he has attended AA meetings ‘on a fairly regular basis as alcohol has had a significant impact on my offending behaviour’. FKCV considers he will be leaving prison a better person.
In a letter provided in the Applicant’s engagement with the Department of Home Affairs, dated 12 December 2020 (G15), FKCV states that as his offences are alcohol-related he was required to complete the Pathways alcohol and drug addiction program. However, he understood that his booking was cancelled due to his visa status.
In his evidence, FKCV stated that his son is living in ‘child protection’ which he knows from having contacted the child protection agency, and they have never met. He confirmed that his daughter also spent several years in child protection, and that he had not had much contact with her. I understood him to state that contact resumed when he was in immigration detention, being phone and video calls. FKCV stated that his daughter’s mother has re-partnered and the child lives with them.
FKCV stated that he has not had direct contact with his cousin due to the restraining order, but that she had a conversation with her mother (his aunt) and her brother, and following this provided a letter in support. The Applicant confirmed that the brother previously shared a room with FKCV in immigration detention. FKCV stated that as he speaks every two weeks to his aunt, he heard his cousin in the background confirm she was writing a letter. The Applicant disagreed when it was put to him that his cousin has not had a change of heart and the letter is not genuine.
The Applicant acknowledged in evidence that his cousin had made a complaint to police in 2023 about FKCV contacting her via Facebook (RB12, 260). FKCV denied the conduct, stating that he was out of jail and ordinarily slept at 8.30 PM and so could not have sent a Facebook friend request at 10.30 PM as alleged.
The Applicant was asked about the provenance of a number of letters of support due to the lack of signature (with respect to his cousin for example) and the presence of square brackets indicating that material was to be inserted at various points. FKCV stated that he was not aware signatures were required, and denied that anyone had helped the various parties prepare their correspondence, and denied that they were generated by AI.
FKCV was taken to a number of instances of offending between 2016 and 2018 with references to statements of agreed facts in the materials (RB12, 213, 232, 236). The Applicant was asked about his past behaviour when intoxicated and, while he denied making threats to his cousin, agreed that he had become physical in other circumstances, and that he had a tendency to become aggressive when under the influence. Subsequently, FKCV stated that he ‘can be aggressive when people come across in a rude way’ and that he normally minds his own business.
I put additional questions to FKCV about his rehabilitation. He identified the completion of the Pathways course and a sex offenders’ course. I note that in a personal particulars form (G11), the Applicant has previously reported completion of the Standing on Solid Ground course, a sex offenders’ course, and that as of Quarter 3 in 2022 he would be completing the Pathways Dry Course in prison. He also noted his participation in AA at prison. In his evidence, FKCV stated that he understood the impact of his offending on his cousin, her family, and the community. He stated that he is ashamed of himself and sincerely apologises. The Applicant also affirmed, consistent with this written material, that he has had a change of mindset and seeks to be a good father and a good person. FKCV stated that he had not participated in a violence prevention or family violence program. He then stated he had undertaken anger management and a SMART recovery program.
FKCV also stated that he was mainly a user of alcohol but had also used cannabis. He has learned to monitor his intake to be a better person. I asked the Applicant when he last consumed alcohol, and he replied that he drank ‘home brew’ last year in immigration detention as he was depressed and suicidal. FKCV acknowledged having consulted with mental health services in detention on his depression (RB21, 585) and confirmed that he remains on anti-depressant medication (noted in a November 2024 health record, RB21, 581).
In respect of his plans if released into the community, FKCV stated that he wants to obtain a job, be a father, do the right thing, and follow orders. He stated further that he had applied for a plumbing apprenticeship prior to being locked up and has six months remaining to qualify. The Applicant intends to live with his father upon release. FKCV also stated that he would pursue trauma and torture therapy counselling and has commenced seeing a counsellor. When asked what he would do if he felt he wanted to drink, FKCV replied that he would continue his counselling, call a help line, and pursue rehabilitation.
In an email provided for the previous Tribunal hearing, dated 10 July 2023 (RB6, 150), FKCV’s father indicates that the Applicant’s offending will not be repeated and, from visits to the Applicant in prison, he considers FKCV understands the cost of his behaviour. FKCV’s father stated in evidence that he is in contact with the Applicant ‘every week, every month’. He confirmed that FKCV would live with him in the future and, although it would not be a problem with his current lease, it would be necessary to find other accommodation as he lives in a one-bedroom apartment. The Applicant’s father stated that he lives on a pension and does not work due to an eye condition. He also stated that he would encourage FKCV to pursue counselling, and would help to ensure that the Applicant does not return to alcohol, noting that he himself had abandoned alcohol five years ago.

FKCV’s father stated further that he is involved with the church including through a commitment three times a week to a prayer group. He stated that there are no issues among the siblings in his family and was ‘pretty sure’ there are no issues with the Applicant’s cousins.
There is undated correspondence from the Applicant’s friend (AB) stating that he has known FKCV for five years, and believes he is a good person. He describes the Applicant as family-oriented who has undergone significant personal growth. In evidence, the friend confirmed that he provided a letter 1-2 years ago, but not in relation to the current application. He also confirmed that he had not spoken to FKCV for some six months, and that he met the Applicant when they were in remand together. The witness understood that the Applicant had committed a sexual offence, and added that he hopes FKCV knows the seriousness of his conduct, but cannot say whether or not he has changed.
Certificates provided by the Applicant (AB) demonstrate participation in a range of vocational courses including meat processing, and the attainment of a construction white card. Additional evidence of vocational training is in the materials (G12, 91-92). Included in the latter are certificates for completion of a 115 hour sex offending program in 2022, and a 100 hour Addictions Offending Program in 2023. There are a number of references in FKCV’s immigration health record to attendance at several SMART recovery group sessions, addressing matters including smoking cessation, values, and relapse prevention (see for example, SG44, 151, 178). A Drug and Alcohol Recovery Plan (RB10) from 2023 records strategies identified by FKCV to prevent triggering and relapse, and this too notes the goal of smoking cessation.
Material provided by the Applicant (AB) includes what appears to be a letter, undated and unsigned, from the mother of his daughter (AB). It includes apparently uncompleted elements marked by square brackets. Otherwise, it speaks to the important relationship between FKCV and her daughter and expresses her confident view that the Applicant has changed. A similarly presented undated and unsigned letter from a former partner, Ms F, also appears in the materials (AB). It speaks very highly of his character and states that after six years’ incarceration, FKCV is a changed man.
There is also an undated and unsigned letter from the Applicant’s family (literally signed ‘The [surname] family’) (AB). Phrased as being from six siblings, the letter acknowledges his past sexual offending, but notes his struggles with alcohol and past trauma. It states that FKCV has worked hard to turn his life around, that he has expressed deep remorse, and that the family is supporting him financially and practically to continue his rehabilitation journey.
An unsigned letter, dated 12 January 2025, was provided by a woman described in FKCV’s evidence as his former partner (Ms S) (AB). It states that he is not a threat to society, doesn’t seem to be the same person as when he offended, and appears to be passionate about his family. It argues that he needs to be physically present to support and interact with his two children and states that he has a strong, stable network of people to help him upon release.
In her letter (AB), Ms F describes herself as having been in a relationship with FKCV for a period of seven-to-eight years, and describes the Applicant as always truthful, honest, and a genuinely caring person. Ms F states that FKCV has always been honest with her about his principal offending and that she has faith he is a changed man.
A further unsigned and undated letter from a person who has ‘recently met’ the Applicant (AB) describes him as a person of outstanding morals whose life revolves around his daughter. FKCV is also described here as a humble man who has acknowledged the consequences of his actions, and it goes on to cite Proverbs 3:3-6 (‘[l]et love and faithfulness never leave you …’). A similar letter was provided by this individual in 2023 (RB3, 145).
I note other letters of support provided in 2023 (RB2-5). These include the original, attributed letter, from the witness who knew FKCV in remand. In this letter, the witness states he has known the Applicant for over five years and FKCV has changed as a person, and thinks about the consequences of his actions. Ms S provided a letter in similar terms to her more recent contribution, and a longer letter is also included in the materials immediately following. This letter is now overtaken by events as it was written when they were still in a relationship, addressing as it does the impact of FKCV’s absence.
I also note additional letters of support provided previously, dated in 2019, 2021 and 2022 (G12, 82-86). These are signed and/or handwritten and come from three personal friends of between four and ten years’ standing, two of whom do not make reference to FKCV’s offending. The third correspondent was a cellmate in prison. They are all uniformly positive about the Applicant’s character, and one suggests that his cousin was making it hard for him to have contact with his son.
At the hearing, the Respondent contended that FKCV’s evidence with respect to his principal offending was neither credible nor reliable, and the Applicant had impermissibly sought to go behind factual findings of the sentencing process. It was submitted that he demonstrated equivocation and a sense of denial, and his responses were not comforting. The Respondent also contended that supporting letters gave the impression of being pro-forma due to their formatting and appearance, and should be given little weight. In particular, no weight should be given to the correspondence purportedly from FKCV’s cousin, with more emphasis to be given to the 2023 police complaint and the sentencing remarks overall.
It was also submitted that in the absence of a formal risk assessment, there was a risk which should be considered unacceptable due to the very serious nature of harm likely to arise from any form of repeat offending. The Respondent acknowledged the completion of formal rehabilitation programs, however contended that the admission to recent use of alcohol in detention raised the question of whether FKCV would be overwhelmed in the community. Some caution should be applied to the father’s capacity to support FKCV, and employment may be a challenge for a former convict. Overall, it was submitted this factor weighs very heavily against revocation.
In reply, the Applicant submitted that his journey has been ‘a bit complicated’ but he has done everything he can through six years of incarceration to be a better person. He submitted that he would never put himself in a situation to harm another person and was ‘definitely in control of [himself]’.
This part of this primary consideration is framed around the Government’s view that the Australian community’s tolerance of any risk of future harm lowers as the seriousness of potential harm increases, and that such a risk may be unacceptable [8.1.2(1)]. Accordingly, I must have regard to the nature of the harm that might arise from any future criminal or other serious conduct [8.1.2(2) a)].
FKCV has engaged in repeated acts of driving while intoxicated and other public acts of misconduct. I consider it reasonable to find that any repetition of such driving is likely to put the community at risk of serious harm. FKCV also has a history, albeit a single instance, of serious sexual offending. I also consider it reasonable to find that any repetition of such conduct is likely to cause serious harm to a victim, and therefore be a serious risk to the community.
I must also give, cumulatively, consideration to the likelihood of such risks arising [8.1.2(2) b)]. There is no formal risk assessment before me, therefore the focus is upon evidence of rehabilitation achieved.
Factors to which I give positive weight in favour of revocation in this respect are: the completion of several relevant and offence-specific rehabilitation programs; FKCV’s completion of vocational programs, his past work experience, and commitment to future employment; his father’s offer of assistance with accommodation, and emotional support for ongoing rehabilitation; the personal commitment to ongoing therapeutic support; and, the likelihood of some other support from family and friends. In short, there appears to be more than adequate evidence that all of the fundamental elements are in place for FKCV to reintegrate into the community. I accept too that he has expressed remorse, and demonstrated some insight into the causative relevance of excessive alcohol use. I also accept that FKCV espouses a commitment to play a role as a family man.
Factors which I consider weigh against revocation in this respect are: FKCV’s tendency to minimise his responsibility for past criminal conduct; the somewhat compromised view he holds about the consequences of his sexual offending, and the accompanying lifetime protection order; what appear to be misguided efforts to present current evidence of support from family or friends; and, his relatively recent relapse with alcohol. I consider the Respondent correctly identified in FKCV’s evidence a sense of equivocation as to his responsibility for the serious sexual offending. It appears to me that the Applicant does not have the capacity to openly and honestly own his culpability for offending so egregiously against a vulnerable victim.
By a compromised view as to the consequences of his primary offending, I mean that FKCV repeatedly expresses as a positive virtue a desire to be a father to the child born of this assault, without apparently understanding the seriousness of a lifetime protection order, and the fact that the child is being raised under state protection. The evidence overall indicates that, despite his denial, FKCV has in the past reached out to the victim. While I make no finding of him personally pressuring the production of the letter purportedly from the victim, I consider the evidence overall casts doubt over the provenance of this conciliatory letter. Moreover, I also consider the background of vulnerability of the victim suggests that were the correspondence to be genuine, its sentiment may well lack credibility.
The misguided efforts I refer to are the serious question marks that arise over some supporting correspondence. The format and presentation of several pieces of correspondence raise questions about their authenticity, specifically in the case of FKCV’s witness friend who disowned the recent letter. This, however, does not rob the material of all meaning. There is a wide body of material over time and, as I have found, it forms part of an adequate body of positive material. However, I do consider the physical evidence suggests FKCV has not been entirely candid about the efforts he has made, as a self-represented party, to present relevant material. This speaks to his capacity in general to provide reliable accounts of his attitudes and intentions.
Finally, I consider it to FKCV’s credit that he admitted to recent alcohol use. This represents a relatively minor relapse against what appears to be a consistent period of abstinence in prison and immigration detention, and certainly I have no evidence before me of other transgressions. Nonetheless, together with the preceding findings, it raises some concern about his capacity to regulate his emotions despite participation in rehabilitation programs, and the professional support available in detention.
Overall, given the serious nature of harm that would arise from any reoffending, and in light of my findings against the Applicant in respect of important foundational elements of his rehabilitation, I find that this risk is unacceptable.
Summary finding
I have found that FKCV has engaged in very serious offending and that there is a real concern about the cumulative impact of his record overall. I have also found that there is an unacceptable risk of future reoffending.
Accordingly, I find that this primary consideration weighs heavily against revocation.
Family violence committed by the non-citizen
When questioned in evidence about the sexual assault against his cousin, FKCV was also asked about other incidents recorded in a series of Statements of Material Facts (RB12, 248-249). FKCV denied any other sexual contact with the victim, but acknowledged that other allegations had been made.
The Applicant was later questioned about a police incident report concerning events in April 2015 (RB12, 263). I understood FKCV to have agreed that he was at the time in a relationship with the complainant, that they were living together, and that he accepted it was Ms F. FKCV recalled that he had been issued with a ‘24 hour notice’ following a misunderstanding, and he breached this order because he had to work and had nowhere else to stay. He accepted that he was drinking heavily but denied getting physical. He further denied putting his hands around the complainant’s throat, but did not deny pushing her against a garage. FKCV also stated that he does not remember the circumstances, but never struck Ms F, and he denied threatening to kill her. When pressed on his capacity to recollect, the Applicant stated that he never hit a woman in his life.
I asked the Applicant to explain how the police came to be at the house and whether it was correct that he had been handcuffed. FKCV explained that they had argued and the victim wanted him out of the house. He also stated that the report of his misbehaviour with police was because the handcuffs were too tight. In further questioning FKCV accepted that Ms F would have been frightened.
FKCV was also asked about the 24 hour restraining order imposed later in the same month in 2015. The Applicant thought a neighbour had called the police but denied being under the influence, and accepted that he should not have been at the property when subsequently breaching this order.
As noted in the summary of FKCV’s criminal record, the Applicant was charged in 2015 for breach of a restraining order. The order was the subject of evidence, as noted (RB12, 284), but the circumstances of its issue are less clear. The previous incident some two weeks earlier, also with Ms F, is described in the material (RB12, 263). The police incident report states that the victim came home and found FKCV drinking with friends and he refused to tell them to leave. It reports that:
(a)he took the victim ‘to the rear of the property and [pushed] her up against the garage, putting his hands around her neck before striking her several times to the face and threatening to kill her’;
(b)the victim ‘managed to get free and ran from the property before calling Police’;
(c)police attended and the allegations of assault were denied and FKCV ‘became angry and upset at Police questioning, requiring him to be handcuffed and placed in the police vehicle for continuance of disorderly and threatening behaviour’; and
(d)police later found the victim and FKCV talking at the front of the property, Ms F declined to provide a formal complaint, and a 24 hour Police Order was served on FKCV.
The Respondent submitted that the Direction permits consideration of both criminal convictions and also independent and authoritative sources of information regarding family violence. In the light of FKCV’s denial of other conduct against his cousin, the Respondent declined to pursue these matters. Otherwise, it was contended that the principal offending against his cousin should be given significant weight against revocation. With respect to conduct involving Ms F, it was contended that it should be accepted the evidence shows the incident occurred and that she was afraid, noting the Applicant denies violence or threats. However, these denials should be considered in the context of wider evidence about FKCV’s heavy drinking and beahviour when intoxicated. It was contended the facts of the breach offence were less clear.
This primary consideration reflects the serious concerns held by the Government about non-citizens who engage in family violence, such concerns being proportionate to the seriousness of the family violence [8.2(1)]. The Respondent has correctly identified that this consideration does not rest solely upon convictions and that other reliable sources of information may be considered [8.2(2)].
Family violence is defined to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful’ with examples including assault and sexual assault [4(1)]. Member of the person’s family is further defined as including a person who has, or had, an ‘intimate personal relationship’ with the relevant person. In the circumstances, I consider it reasonable to proceed on the basis that FKCV’s cousin and Ms F can both be categorised as family members.
The conviction in respect of the Applicant’s cousin was a serious sexual assault and therefore, while isolated, warrants considerable weight under this primary consideration [8.2(3) a)]. I note that it has been held on a number of occasions that there can be ‘overlap’ between different considerations in the Direction, and therefore relevant material may be considered under more than one factor (Afamiliona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1100, at [22]).
The Respondent’s submissions have, correctly, approached the conduct alleged in respect of Ms F with some caution, particularly due to FKCV’s denial of the more serious allegations of violent behaviour. Notwithstanding this, I consider that I am entitled to rely upon the existence of two 24 hour restraining orders in 2015 in respect of incidents involving Ms F, as well as the charge for breach of one of these orders. On this basis, I consider that the multiple instances of family violence with Ms F carry some cumulative impact [8.2(3) a)-b)].
I must give consideration to rehabilitation achieved, including the extent to which FKCV accepts responsibility for his conduct, understands its impact, and has made efforts to address contributing factors [8.2(3) c)]. I have described the Applicant’s relevant formal rehabilitation above under the first primary consideration. Despite it not being entirely clear whether he has undertaken targeted family violence offending programs, I consider the rehabilitation undertaken to be relevant, particularly in relation to the role of alcohol as an underlying causative factor.
However, I have also made findings above with respect to FKCV’s apparent lack of insight into his sexual offending, and the significance of the lifetime order in favour of his cousin. For these reasons I consider that some lesser weight should be afforded to the quality and impact of FKCV’s efforts at rehabilitation on account of the somewhat minimising nature of his evidence overall. Equally, I consider that his willingness to accept that Ms F was frightened during the incident raised in evidence, that the Applicant must be taken to have some insight into the nature and impact of family violence.
Due to the serious nature of FKCV’s principal sexual offending, but also taking into account his wider history of family violence conduct, I find that this primary consideration weighs heavily against revocation.
The strength, nature and duration of ties to Australia
In his undated letter to the Minister (AB), FKCV states: ‘I have called Australia home for 22 years, building my life, relationships, and aspirations here’. Similarly, in an earlier undated letter (G12, 87) the Applicant noted that he has built his life in Australia and is ‘deeply invested in contributing positively to Australian society’.
There are two personal circumstances forms in the materials which identify FKCV’s family, and related information about his life in Australia (G9, 11). He identifies the four cousins and his aunt with whom he travelled to Australia, and his father and sister who have also travelled here, noting that all of his family are Australian citizens. FKCV also identifies a total of six siblings living in Australia and seven cousins, and five nieces or nephews (not providing names). FKCV notes that he attended school until Year 12 but dropped out, and this is noted also by the sentencing judge who observed that the Applicant had to seek employment in order to live independently.

In the first form (dated to 2020), the Applicant notes his long-term relationship with Ms F. FKCV further identifies several forms of employment between 2010 and 2018. In the second form, FKCV identifies three nieces and nephews and eleven cousins. The Applicant also elaborates on his employment history, identifying several different instances of employment including being a kitchenhand, and labourer on a strawberry farm. Consistent with evidence given at the hearing, FKCV also states that he played sport with Sudanese teams, and also identifies volunteer work at ‘local community weddings’.
The letter of support from FKCV’s family (AB) states, relevantly, that they keep in regular contact with him and that they would be devastated were he removed from Australia. The letter notes that they share the same father and see him as a big brother, and that ‘losing him again would be unbearable’.
The Respondent submitted that some weight in favour of revocation be given to this consideration, in light of factors such as FKCV’s employment history and sporting activity. In written submissions the Respondent identifies a wide range of family members with whom the Applicant maintains contact, as well as evidence concerning FKCV’s relationship with Ms S (RSFIC [67]). Furthermore, it is contended account should be taken of the length of time FKCV has resided in Australia, and the fact that he arrived aged 14 [70].
I must give consideration to the impact of a decision on immediate family members in Australia [8.3(1)]. Despite the uncertainty surrounding at least FKCV’s recent letters of support, there is more than adequate evidence before me that FKCV is surrounded by a very large immediate and extended family group. The evidence about the strength and nature of the relationships between the Applicant and his siblings and cousins is, however, limited. There is somewhat better evidence about his relationship with his aunt and father. On balance, I consider that some reasonable weight can be given in favour of these relationships, given the likely impact on the family as a whole of non-revocation. I take account of his relationship with his aunt in this part of this consideration on the basis that he lived with her family for a sustained period.
I must consider the strength, nature and duration of ‘other ties’ with regard to the length of time the Applicant has resided here, including whether he arrived as a young child, with more weight given to time spent contributing positively to the Australian community, as well as other family or social links [8.3(2)]. I have limited information about the general strength of the relationship with the wider family circle, but there is a relatively large body of material (again, notwithstanding some questions as to provenance of communications) indicating the FKCV has, and has had, a decent social circle and two relationships. I accept that he has a modest but sustained record of employment, and other community ties including through sport.
FKCV has not been in circulation in the community for nearly seven years, and commenced offending aged 20, in 2013. Therefore his positive contribution to the community rests largely upon his youth, but not entirely, as he continued working and engaging otherwise during his offending years. It is not clear what is meant in the Direction by being a young child, but I do consider that FKCV arrived when young, being his adolescence, and self-evidently has spent the majority of his life in Australia.
Overall, I consider it appropriate to give moderately heavy weight in favour of revocation under this primary consideration.
The best interests of minor children in Australia affected by the decision
In this primary consideration, I must determine whether non-revocation is, or is not, in the best interests of any minor children affected, with individual consideration given to the extent their interests differ [8.4(1)-(3)].
FKCV’s minor biological children have been identified above. I have also noted reference to nieces and nephews, however I have no other material, and no substantive submissions about, these other children, including which – if any – are minors. Accordingly, I will consider the two biological children here.
I have already noted above FKCV’s written statements of commitment to the care and wellbeing of his children. In addition, I note that in his first personal circumstances form (G9), FKCV stated that he intends to live with both of these children on return to the community. In this form the Applicant also expresses the position, repeated elsewhere in the material, that as he grew up without a father, FKCV wants to be a caring father and support his children.
In his undated letter to the Minister (AB), the Applicant states that his daughter struggles with his absence, and that the emotional toll on his children is immeasurable, and he fears the long-term impact of separation on them. I have also noted, and accept, that the Applicant maintains regular contact with his daughter, and that this child lives in a family environment with her own mother who has re-partnered. I have noted the general circumstances relevant to the child produced from FKCV’s sexual offending, who is in the care of the state.
The Respondent contended that each child is in a different situation, being some contact with the daughter, who has a parent caring for her, and no existing relationship with the son. In the latter case, it was submitted the Tribunal cannot speculate as to whether a future relationship would be in the child’s best interests. In written submissions, the Respondent submits that the prima facie position that the best interests of children are served by revocation does not apply in this matter (RSFIC [74]). Here, only ‘some weight’ should be granted in favour of revocation in respect of the daughter, and none in respect of the son, whose interests are in fact served by revocation.
A number of factors must be taken into account in making my determination about the interests of these minor children [8.4(3)]. In the case of both children the nature of the relationship is parental, although that term is uniquely problematic in respect of the son. There have been periods of physical absence from the life of FKCV’s daughter, but as noted I accept there is ongoing communication between them, albeit the character of the relationship has not been supported by robust third-party evidence. I also note that the evidence indicates she is housed and cared for in a family unit with her mother. Clearly, there has never been any relationship of any kind formed with his son. I expressed some scepticism above about the Applicant’s prospects of engaging with his son in the future, however I have no evidence before me that this cannot take place at some point. As the child is in care, there are other parties playing a parental role.
There is some chance, given their young ages, that FKCV may have the opportunity to play a positive role for some years to come for both children (noting once again the limited prospects that this might materialise in respect of the son). I do not have evidence before me pointing to the likelihood that the Applicant’s prior conduct may have an impact on these children. However, particularly with respect to the son, there appears to me to be a reasonable chance that the character of FKCV’s offending could have a negative impact should contact between them become possible, through some as yet unidentified means.
No direct evidence was sought about FKCV’s capacity in future to maintain contact with these children were he to be removed from Australia. However, as he maintains contact through electronic means with his daughter, it is fair to assume this mode might continue. That said, taking his written material at face value, this may come at some emotional cost to her. Given there is no actual relationship in the case of the son, and given the unique characteristics applying, it is difficult to determine what impact might arise from separation, but I would express this as marginal.
Overall, I consider that some weight be given in favour of revocation in respect of FKCV’s daughter, but no weight in respect of his son.
In summary, therefore, I find that this consideration weighs in favour of revocation.
Expectations of the Australian community
This consideration on its face directly reflects the expectation expressed in the Principles that non-citizens are expected to obey the law, and where they have breached this expectation, or there is an unacceptable risk 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’ [8.5(1)].
The Direction also invites consideration of ‘the nature of the character concerns’ and, in particular ‘serious character concerns’ which include acts of family violence, and the commission of serious crimes against women, children, or other vulnerable members of the community, specifically crimes of a violent or sexual nature [8.5(2)]. In this case, the Direction provides that the expectations identified apply, regardless of any measurable risk of future harm [8.5(3)].
The Respondent submits that this primary consideration weighs heavily against revocation (RSFIC [78]).
Given my findings in respect of FKCV’s sexual offending and in respect of family violence, I consider that the expectation must apply, given that they are both examples of conduct raising serious character concerns. I also find that given the nature of the sexual offending in particular, this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
There is no material before me indicating that the other consideration ‘impact on Australian business interests’ is engaged, and therefore that weighs neutrally.
Legal consequences of the decision
This other consideration recites provisions of the Act underpinning the power to detain and remove unlawful non-citizens from Australia as soon as reasonably practicable [9.2(1)]. This framework sits with Australia’s non-refoulment obligations, which prevent removal of a non-citizen to a place where they are at risk of harm as defined by reference to protection obligations in the Act [9.1(2)].
In his first personal circumstances form (G9), FKCV declares that he has concerns about his return to his country of citizenship, without relevantly elaborating, and also that he would face no problems if returned. Subsequently, in his request for revocation (G10), the Applicant states: ‘[w]ith the charges I have here if I go back home I would probably be killed so I feel like for my safety I am in danger if I go back there’. He also states: ‘[t]here is a lot of civil unrest in Ethiopia so I am scared for my safety’. He makes similar statements in the second personal circumstances form (G11), and also states in respect of problems he would face, that he has no family ‘there’.
Questions under this other consideration were not put to the Applicant at the hearing but I sought some evidence from him about his request for return to Sudan. FKCV essentially acknowledged that he had requested repatriation, and that this was because he was experiencing depression at that time. FKCV stated that he withdrew the request because he has no one to go back to and wishes to stay here for his kids. I asked whether he feared harm, and he replied ‘potentially, from my charges’. He also stated that he is ‘an outsider to them’.
I also took the opportunity of ascertaining during closing submissions FKCV’s awareness of the bridging visa system. The Applicant was aware of bridging visas, and also has the understanding that what he described as long-term detention was no longer a possibility. In response to the proposition that he may, in such circumstances, be free to live and work in the community, he replied ‘OK, so long as I can be with the kids’.
A document described as a Section 91P Assessment is included in the materials (SG45). This records a finding that FKCV is not a citizen of Sudan, Ethiopia or Australia, but rather a citizen of South Sudan. This stated finding conflicts with the more detailed consideration within the document which holds, to the contrary, that FKCV has been since birth in Ethiopia a citizen of Sudan. I proceed on the basis that the summary finding is an error.
The Protection Visa Decision Record dated in early 2022 records the outcome of consideration of FKCV’s application for a protection visa in mid-2021 (SG46). This decision also proceeds on the basis that the Applicant acquired Sudanese citizenship from his father at birth. The decision also, consistently with evidence at the hearing, approaches FKCV’s application on the basis that the Applicant is of Uduk ethnicity and that his father was from a town now on the very southern border of Sudan, in the Blue Nile State. FKCV is described as asserting in interview that he had no one in Sudan to protect him, that he does not speak Arabic, fears that he is ‘outsider’, and would be harmed due to the charges from the sexual assault. In respect of these claims, in summary, findings were made including:
(a)FKCV does not have family in Sudan;
(b)he is not at risk of double jeopardy and has not claimed that he would be at risk from family as a result of the offending;
(c)as a member of an Uduk family FKCV would be able to integrate into the community if returned to the Blue Nile State;
(d)it follows that he does not have a fear of persecution for reasons of race, religion, nationality, membership of a social group, or political opinion; and
(e)FKCV is not owed protection obligations, any risk to his socio-economic status would not result in arbitrary deprivation of life, or other serious harm, and he does not face significant harm with complementary protection not engaged.
The Respondent submitted that in the absence of a protection finding, and the fact the Applicant is unable to reapply for a protection visa, consideration must be given to any claims of harm. It was also contended that the decision of the delegate in respect of protection obligations owed in respect of Sudan was taken some time ago, noting that the Respondent had lodged recent country information (RB26). The Respondent submitted that were FKCV to be in the community on a bridging visa, he remained subject to removal, and – following Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [3] – genuine consideration must be given to the human consequences of decision making under the character provisions.
In written submissions, the Respondent contends the legal consequences of a decision not to revoke in this matter are that FKCV will remain an unlawful non-citizen and be detained until removal as soon as reasonably practicable (RSFIC [83]). The Applicant may be detained for longer than other non-citizens, but there is no reasonable prospect of him being removed in the reasonably foreseeable future, and will most likely be granted a Bridging Visa R. This contention appears to result at least in part from the information provided in the submission that during the process of seeking to remove FKCV, ‘the Sudanese Government could not identify the applicant as a citizen of Sudan’ [82].
The Direction provides that I must give consideration to claims raised by the Applicant in circumstances where there is no protection finding [9.1.2(1)]. Given the detailed consideration previously given to FKCV’s citizenship, and his own request for repatriation to Sudan, I consider it reasonable to proceed on the basis that Sudan is the relevant country of reference. The country material lodged by the Respondent is a British Home Office policy and information note on the security situation in Sudan, dated January 2025. In summary, I note:
(a)fighting broke out in April 2023 and has been reported in all of Sudan’s 18 states;
(b)violence has led to potentially 150,000 deaths, with some arising from ethnic tension;
(c)widespread arrest and detention of civilians has been documented, as well as a there being internally displaced persons numbering in the millions, and destruction of civilian infrastructure;
(d)the level of indiscriminate violence in states including the Blue Nile state ‘is not at such a level to mean that there is a general risk of serious harm by being there’;
(e)however as the situation is volatile, a person may still face ‘real risk’ in such locations; and
(f)tabulated reports of ‘organised violence’ over time show relatively low levels in the Blue Nile State, but a distinct increase in such incidents in the fourth quarter of 2024 [12.1.5].
The circumstances in Sudan have changed dramatically since the refusal of FKCV’s protection visa. While there may be no unequivocal indication that the Applicant would face a particular kind of harm as envisaged in the Act (in the form of persecution as a refugee, or other specified form of serious harm), I must give FKCV’s claims consideration and the current country information provides critical context. The widespread conflict and its impact upon the population indicates to me that there is more than a mere possibility that given FKCV’s lack of active social or family connections, criminal record, and having matured in a foreign country, he may be vulnerable to harm for the reasons he has claimed.
The Respondent appears to have appropriately acknowledged the likelihood that, given these conditions, there may be a very limited likelihood of removal to Sudan in the foreseeable future. This would most likely mean that the immediate effect, as a person already in immigration detention, would be FKCV is released on a bridging visa, but still subject legally to the possibility of removal somewhere, at some future time.
Accordingly, I find that this consideration weighs in favour of revocation.
Extent of impediments if removed
During submissions at the hearing the Applicant confirmed that the language of his family is Uduk, and he speaks no other language other than some little Arabic. I have already noted above the lack of social or family connections in Sudan, and the fact that FKCV remains on medication for his mental health. I also rely here upon the summary country information set out above with respect to life in Sudan.
In written submissions, the Respondent contends that consideration be given to removal to either Sudan or South Sudan, and that this consideration be afforded reasonable weight in favour of revocation (RSFIC [87]-[88]). However, I note that at the hearing it was conceded that the sub-heading in this document referred to South Sudan in error. The Respondent contends that FKCV is likely to face significant cultural barriers but that English is an official language of Sudan.
In this other consideration I am to consider impediments the Applicant may face if returned to his home country against the modest benchmark of what is generally available to other citizens in maintaining basic living standards [9.2(1)]. While FKCV is still relatively young he does have some ongoing needs for the management of his mental health, and I consider it reasonable to assume that his return to a country in which he has never lived, that is in conflict, and where he has no connections, might significantly affect his condition.
While the Applicant appears to have some familiarity with the Uduk language, I have no evidence to indicate how helpful this might be in integrating into Sudan, including in the Blue Nile State. I do consider that as a person who has never lived in Sudan, FKCV may have some cultural barriers in establishing himself. Under the circumstances of widespread conflict, I consider it challenging to come to a position as to social, medical or economic support available to a person in FKCV’s position; I consider it reasonable to conclude that personal and family connections – of which there are none – are important when a country is at or near a state of civil war.

I consider that Sudan can only be considered the Applicant’s home country in the most nominal sense. This puts him in a position of particular vulnerability given the lack of contemporary social or family connections, and this vulnerability would be exacerbated in the context of the conflict underway.
Accordingly, I find that this other consideration weighs heavily in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that three weigh heavily against revocation: Protection of the Australian community; Family violence committed by the non-citizen; and, Expectations of the Australian community. I have found that primary considerations The strength, nature and duration of ties to Australia weighs moderately heavily in favour of revocation, and Best interests of minor children in Australia affected by the decision weighs in favour of revocation.
Of the other considerations, I have found that Legal consequences of the decision weighs in favour of revocation, and Extent of impediments if removed weighs heavily in favour. I have also found that the Impact on Australian business interests weighs neutrally.
The Direction provides that the primary consideration Protection of the Australian community is generally to be given greater weight than other primary considerations, and they should generally be given greater weight than other considerations [7]. One or more primary considerations may outweigh the other primary considerations.
I have found that FKCV engaged in very serious conduct, that he has engaged in family violence and, moreover, that these together have triggered the expectation that he not be permitted to continue to hold a visa, as serious character concerns arise. As a person who has lived for a substantial period of time in Australia, the Applicant is entitled to some level of toleration for his conduct, and I accept that he faces substantial barriers to integration in Sudan, albeit there is no imminent likelihood of this happening.
I have also found that there is an unacceptable risk of further offending, and this – combined with the serious nature of FKCV’s offending – mean that I do not consider there are adequate countervailing considerations to overturn the generally greater weight to be given to the first primary consideration. I also consider that in the circumstances, the heavy weight against revocation for family violence conduct and the expectations of the Australian community outweigh the relatively modest weight I have afforded to the other primary considerations, and to the other considerations.
Accordingly, I find that there is not another reason to revoke the mandatory cancellation of FKCV’s visa.
DECISION
For the reasons given above the Tribunal affirms the decision under review.

Date(s) of hearing: 19 March 2025

Applicant: In person

Counsel for the Respondent: Mr Thomas Lettenmaier

Solicitors for the Respondent: Minter Ellison

Date(s) of hearing:	19 March 2025
Applicant:	In person
Counsel for the Respondent:	Mr Thomas Lettenmaier
Solicitors for the Respondent:	Minter Ellison