FLJS and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2040
•1 October 2025
FLJS and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2040 (1 October 2025)
Applicant:FLJS
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4340
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:1 October 2025
Date of written reasons: 8 October 2025
Decision:The Tribunal sets aside the decision of the Respondent’s delegate dated 24 February 2025 refusing to grant a Protection (Subclass 866) (Class XA) visa and substitutes it with a decision that the Applicant not be refused grant of a visa under s 501(1) of the Migration Act 1958 (Cth).
.........................[SGD]..........................
General Member A. Maryniak KC
Catchwords
MIGRATION – refusal to grant Protection (Subclass 866) (Class XA) visa – whether Applicant passes the character test under s 501(6)(d)(i) – family violence – nature and circumstances of offending – whether there is a risk the Applicant would engage in criminal conduct if allowed to remain in Australia – decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
CKL21 v Minister for Home Affairs [2022] FCAFC 70
Minister for Immigration and Ethnic Affairs v Guo (1977) 191 CLR 559
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014
Statement of Reasons
1.The Applicant seeks review of a 24 February 2025 decision (‘Reviewable Decision’) refusing to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’) to grant the Applicant a Protection (Subclass 866) (Class XA) visa (‘the visa’).
2.The 38-year-old Applicant arrived in Australia in May 2017, aged 30. The Applicant’s wife, two of their children and the Applicant's sister also arrived at this time, having fled Papua New Guinea. The Applicant’s wife and sister are recognised refugees[1], the Applicant and his family having applied for protection visas on 9 November 2017. The Applicant’s third and youngest child was born in Australia and is an Australian citizen. Australian citizenship is pending and approved for the Applicant’s wife and two other children.[2]
[1] Documents lodged pursuant to section 501G of the Act, sequentially numbered from G1 to G9. G2, 386.
[2] Applicant’s Tender Bundle lodged on 28 August 2025, 43.
BACKGROUND
3.By way of background, the Applicant was born in the Enga Province in Papua New Guinea in October 1986 and his parents and five siblings are members of the Yambatani Warenge tribe. There has been considerable ongoing tribal violence between that tribe and the neighbouring Yambatani Pausa tribe since the early 1990s.
4.On 24 February 2025 a delegate of the Respondent refused to grant the Applicant’s visa under s501(1) of the Act, having notified him of an intention to consider refusal on 14 October 2024. The Applicant was not notified on that adverse decision until 16 July 2025, when he was detained, unfortunately without receiving notice, and placed in immigration detention.
5.The application was heard on 29 September 2025 and 1 October 2025. On 1 October 2025 this Tribunal ordered the Reviewable Decision be set aside and the matter be remitted with an Order in substitution that the Applicant’s visa not be refused pursuant to s 501(1) of the Act. The Reasons for that Order are set out below.
CONSIDERATION
6.The Tribunal has considered the testimony of the Applicant, the Applicant’s wife and Ms Gillespie, the documentary material lodged with the Tribunal and the written and oral submissions of the parties.
7.The first issue for the Tribunal to determine is whether the Applicant passes the character test, as set out in s 501(6) of the Act.
Legislative Framework
8.The Respondent has provided detail of the relevant legislation and policy[3] and for convenience that is set out below:
[3] Respondent’s Statement of Facts, Issues and Contentions lodged on 22 September 2025 (‘RSFIC’), [4]-[7].
4. Section 501 of the Act relevantly provides:
(1) 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.
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
5. The Minister is entitled to issue, and has issued, a direction as to the exercise of the power reposed in s 501(1) of the Act, being Direction 110. In exercising this power, the Tribunal must comply with Direction 110 (s 499(2A) of the Act).
6. Annexure A to Direction 110 provides:
6. Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
7. Paragraph 5.2 of Direction 110 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a) 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 (paragraph 5.2(1));
(b) the safety of the Australian Community is the highest priority of the Australian Government (paragraph 5.2(2));
(c) 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 (paragraph 5.2(3));
(d) 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 (paragraph 5.2(4));
(e) 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 (paragraph 5.2(5));
(f) 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 (paragraph 5.2(6));
(g) 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 (paragraph 5.2(7)); and
(h) the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(8)).
9.In applying such legislation and policy, the Tribunal is conscious that the guiding principles include, inter alia, an expectation that non-citizens seeking to remain in Australia should be law abiding, that the safety of the Australian community is the highest priority and that the inherent nature of certain conduct such as family violence is very serious in the terms discussed in paragraph 5.2(8) of Direction 110.
Character Test
10.The Respondent submits that there is a risk, beyond minimal or remote, that the Applicant will engage in criminal conduct in Australia in the future and hence he does not pass the character test. The Respondent correctly points out that ‘it is not necessary for the Tribunal to conclude that the risk is “significant”, “substantial” or even “real”’. Relevantly, in QKVH and Minister for Home Affairs [2018] AATA 1855 at [13], Deputy President Forgie remarked:[4]
[4] RSFIC, [15]. See also The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 at [46].
Section 501(6)(d)(i)… is directed to an assessment of risk at a level which is, as [Direction 79] says, “… is more than a minimal or remote chance …” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.
11.As provided by paragraph 6(2) of Annexure A to Direction 110 these grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance of the Applicant, if permitted to remain in Australia, will not engage in criminal conduct in Australia. The Tribunal is to evaluate the evidence before it and arrive at a reasoned conclusion rather than speculate. As the Applicant submitted and the Tribunal accepts, the approach necessary to make administrative findings about the likely occurrence of future events is as outlined by the Full Court in CKL21 v Minister for Home Affairs [2022] FCAFC 70 (citing Minister for Immigration and Ethnic Affairs v Guo (1977) 191 CLR 559):[5]
… the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
Nature and circumstances of offending of past offence
12.As the Respondent submits the Tribunal’s analysis must include a consideration of the circumstances of the past offending as discussed by the Full Court in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78]:[6]
The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
[5] Applicant’s Statement of Facts, Issues and Contentions lodged on 28 August 2025 (‘ASFIC’), [35], quoting CLK21 v Minister for Home Affairs [2022] FCAFC 70, [74].
[6] RSFIC, [19].
The Applicant has broken the law once in his life on 27 May 2021. His offending on that occasion was serious and involved family violence. On 27 July 2021 he was convicted of Stalk/intimidate intend fear physical etc harm (domestic)-T2 and common assault (DV)-T2. The Applicant was fined $500 and given a Community Correction Order for 12 months. Also, an apprehended Domestic Violence Order (‘ADVO’) was imposed, which expired on 26 July 2023.
The Sentencing Remarks and testimony of the Applicant underscore the seriousness of the offending. On that night in May 2021 the Applicant’s then 5 year old daughter came into the parents’ bedroom to show the Applicant her makeup which agitated the Applicant, who was very stressed and exhausted for a variety of reasons including pressure, uncertainty and a sense of hopelessness as to his and his family’s precarious future, as they all remained on bridging visas at that time. There is also some suggestion in a Sentencing Assessment and police notes that there may have been trust issues or an allegation that the Applicant had been texting another woman however such are denied by the Applicant and not recalled by the Applicant’s wife and the Tribunal accepts the testimony of both in this regard and generally. The Tribunal is satisfied as to the credibility of the testimony of the Applicant and his wife and finds it to be essentially consistent with statements lodged by them within the documentary material considered by the Tribunal.
The Applicant then yelled at his daughter, the Applicant’s wife heard the yelling and entered the bedroom to protect the Applicant’s daughter from the yelling and to stop it. The Applicant then redirected his anger at this wife and attempted to punch her in the head and began yelling at his wife. The Applicant then punched his wife with a closed fist to both sides of her neck and head about four times. The Applicant’s sister then attempted to prevent the Applicant’s assault on his wife and then the Applicant punched his sister. The Applicant then went to the kitchen and grabbed a knife and, according to his testimony which the Tribunal accepts, the Applicant said he could kill himself, consistent with his state of hopelessness at that time.
This serious offending impacted upon two vulnerable women and the Applicant’s daughter, although the evidence suggests the latter has no recollection of the incident. The evidence of both the Applicant and his wife satisfies the Tribunal that the Applicant is genuinely remorseful and sorry for his one-off offending which on the evidence was completely out of character and he clearly knows that it was wrong. The Applicant has apologised to his wife and she accepts that apology. The Applicant’s wife does not believe the Applicant would repeat such conduct in the future.
Likelihood of reoffending
The Respondent submits that the Applicant is at more than a minimal or remote chance of offending because of, inter alia, his past serious offending, the possibility that the factors leading to that offending could re-occur in the future, some limitations into his insight around the time of the offending in 2021, lack of any professional opinion as to risk of re-offending and that the protective factors now in place were essentially also in place in 2021 when the offending occurred.
The Applicant submits to the contrary, that the Tribunal can be satisfied that the Applicant passes the character test under s 501(6)(d) of the Act because on the evidence there is no more than a minimal or remote chance that he will engage in criminal conduct in the future. The Tribunal notes that a past offence, of itself and without more, will not be sufficient to establish the requisite risk.[7] The Tribunal is satisfied on the evidence before it and the consideration herein that the Applicant does pass the character test and so finds.
[7] Direction 110, Annex A, 6(3).
With no prior offending, the Applicant has not reoffended in the four years that has passed since May 2021, all the time continuing to live in a loving family environment with his wife, sister and three young children. The extremely measured sentence imposed on the Applicant included a Community Corrective Order without supervision and an ADVO which permitted him to continue to live with his family, including the victims of the offending. The Applicant did not contravene any aspect of the now expired 2021 sentencing. The offending is a single incident.
On 25 March 2022 a delegate of the Minister found that the Applicant’s offending “was an isolated incident and was an aberration in relation to his usual good character” and that he is not a danger to the Australian community.[8]
[8] G2, 426.
The Applicant completed anger management training in 2022 and that combined with the conviction and sentencing back in July 2021 have resulted in the Applicant now approaching difficult and stressful situations differently. He testified that he now handles anger much differently and approaches conflict through discussion and not with anger and yelling. Consistent with this, his wife testified that the Applicant has not yelled at her since July 2021 and that he approaches differences and conflicts more calmly and by discussion to resolve. It is clear on the evidence that the Applicant’s arrest by the police and involvement with the court process has also had the expected deterrent and corrective impact upon him and has contributed to his now greater insight into his offending and how to ensure no reoffending occurs. Since 2021 his insight has matured and is now fundamentally different.
The evidence of Ms Gillespie as to the Applicant’s extensive and valuable contribution to the Papua New Guinean ex pat community, in particular, in and around Shepperton, Victoria, underscores other evidence before the Tribunal which satisfies it that prior to his recent detention he was a strong and positive community leader, consistent with him being of good character. He is a patron of the PNG Goulburn Valley Association and until recently been involved in organising the 50th Anniversary PNG celebrations in that district. He is also involved in his local church practising his Christian faith.
Finally, complementing his now matured insight into his offending, contrary to his then state of mind leading to such offending, is the support, trust and love evident from his family. His one absence from his family, caused by his recent detention, has had a very negative impact upon his wife and children in particular. His wife has physical and mental health challenges and her testimony established that it is imperative that the Applicant be permitted to return to continue his very positive role in looking after his wife and children and being the main income earner in a situation where, to their credit, the family have recently purchased and moved into a family home, with a mortgage that the wife alone will be unable to finance. The evidence of his positive role and contribution to his family, particularly since the offending in 2021, is highly supportive of a finding that it is unlikely in the extreme that the Applicant would ever reoffend. In the words of the Applicant’s wife:[9]
I have spoken before about my husband’s character and how he has changed. I can say again that he is an incredibly good man, a man that I trust, that I admire, and that I love…
My husband is a loving, humble, generous man. He cares for others – I’ve never seen a person like that in my life. I admire and love him very deeply. He understands me and he loves me so much. He’s always there to make a difference in my life. Sometimes I go straight to bed when I am depressed and he brings me food to my bedside. He is a good example, a good father to the boys. He shows them how to be good, loving people, with connection to the community. He demonstrates the love and care you can give to others.
We are meant for each other. We have the same thoughts, the same thoughts to give and love. This is something our kids learn from us, how to respect, love and give and make a difference
[9] ASFIC, [41].
Consistent with the Tribunal’s findings as to a minimal or remote chance of the Applicant reoffending is his exemplary conduct when recently arrested (at work, unannounced) and then whilst he has been in immigration detention. These recent events can only have been extremely stressful for the Applicant but as is clear from his testimony, he was as concerned as ever for the welfare of his wife and children (shielding the latter from any knowledge that their father had been detained). These qualities indicate the progress the Applicant has made as an individual and the lessons he has learnt since his offending in 2021. Further, it was evident during the hearing that, despite the great challenges of his recent detention, the Applicant maintained his matured approach to coping with stressful situations in giving his testimony.
Finally, the Tribunal was informed that the Applicant’s employer had only last week told him that they could no longer keep his position open, whilst he remained in detention. The Tribunal trusts that any employment interruption for the Applicant will be for the shortest period possible.
On the evidence the Tribunal is satisfied that the Applicant passes the character test under s 501(6)(d)(i) of the Act.
In light of that finding the Tribunal does not need to determine any other issues in this Application.
DECISION
The Tribunal sets aside the decision of the Respondent’s delegate dated 24 February 2025 refusing to grant a Protection (Subclass 866) (Class XA) visa and substitutes it with a decision that the Applicant not be refused grant of a visa under s 501(1) of the Migration Act 1958 (Cth).
1. I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
...........................[SGD]..................................
Senior Tribunal Officer
Dated: 8 October 2025
Date of hearing: 29 September and 1 October 2025 Advocate for the Applicant: Ms Jennifer Vogan
Solicitors for the Applicant: Russell Kennedy Lawyers Advocate for the Respondent: Mr Ben Nam Solicitors for the Respondent: Clayton Utz
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