HDTY and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 98

HDTY and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 98 (14 February 2025)
Applicant:HDTY
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2022/1500

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:14 February 2025

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of South Sudan – Class XB (Subclass 202) Global Special Humanitarian Visa – kidnap person who suffers grievous bodily harm – failure to pass good character test – substantial criminal record – previous non-revocation decision by Tribunal – Federal Court of Australia quashed Tribunal decision – application remitted – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 110 applied – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
HDTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1436
HDTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 633
Hughes v The Queen (2017) 263 CLR 338
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196
JNMQ vMinister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1375
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) ALJR 475
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582
Spruill v Minister for Immigration and Citizenship [2012] FCA 1401
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 234
TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”).
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”)
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
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) < align="center">Statement of Reasons
INTRODUCTION

The Applicant has asked the Tribunal to review a decision by a delegate of the Respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), not to revoke the cancellation of his Class XB (Subclass 202) Global Special Humanitarian Visa.[1]
[1] Exhibit R1, 79-85.
The hearing was held in the Tribunal’s Brisbane Registry on 21 and 22 January 2025. The Applicant was self-represented. The Respondent was represented by Mr Alexander White of counsel, instructed by Ms Aneesha Satyendra, a solicitor from Minter Ellison Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is 32 years old and was born in what was then called Sudan. He arrived in Australia on 31 October 2006 as a 13-year-old and has not departed since.[2]
[2] Ibid 78.
The Applicant has a criminal history in Australia. This includes a conviction in late 2020 for kidnapping a person with the intent of holding them for ransom, during which the victim suffered grievous bodily harm.[3] The Applicant was sentenced to 42 months and 22 days of imprisonment, with a non-parole period of 24 months.[4]
[3] Ibid 36-43.
[4] Ibid 43.
On 9 November 2020, while the Applicant was serving a sentence of full-time imprisonment, the Respondent cancelled his visa.[5] He made representations to have the cancellation decision revoked.[6]
[5] Ibid 79-85.
[6] Ibid 46-77.
On 16 February 2022, the Respondent decided not to revoke the cancellation decision (‘non-revocation decision’).[7] The Applicant asked the Tribunal to review this.[8]
[7] Ibid 20-33.
[8] Ibid 6–11.
In May 2022, a differently constituted Tribunal affirmed the non-revocation decision.[9] The Applicant appealed this to the Federal Court of Australia (‘FCA’).
[9] HDTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1436.
On 14 June 2024, the FCA granted an extension of time, quashed the Tribunal’s May 2022 decision, and remitted the matter for re-hearing.[10] The following then occurred:
[10] Exhibit R1, 702; HDTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 633.
(a)On 21 August 2024, the Tribunal held a case management hearing to issue scheduling orders. The Applicant was unrepresented. The Tribunal provided him with contact details for potential sources of pro bono assistance and an outline of a Statement of Facts, Issues and Contentions.[11]
[11] A Statement of Facts, Issues and Contentions (‘SFIC’) is lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides have an opportunity to respond to each other’s case.
(b)The Applicant failed to submit any documents by the due date of 11 October 2024, following which the Tribunal emailed him to enquire why. He did not respond.
(c)The Applicant failed to appear at a non-compliance hearing. Amended scheduling orders were issued extending the time for him to submit documents until 10 January 2025. He again failed to do so and did not respond to emails or telephone calls.
(d)The Applicant failed to appear at the hearing on 21 January 2025. Mr White submitted that the Applicant had received several bridging visas since August 2024, which allowed him to reside in the community. A summary of these visas follows:
(i)On 15 August 2024, the Applicant was granted a Class WR Bridging R (Subclass 070) visa (‘BVR’) by a delegate of the Respondent.[12]
(ii)On 17 October 2024, the Minister for Immigration and Multicultural Affairs exercised his personal intervention power under s 195A of the Act to grant the Applicant a Bridging E (Subclass 050) visa (‘BVE’).[13]
(iii)On 18 November 2024, the Assistant Minister for Citizenship and Multicultural Affairs granted the Applicant a further BVE.[14]
(iv)On 19 December 2024, the Applicant was granted a BVR by the Assistant Minister.[15] This requires the Applicant to abide by conditions such as telephone reporting and conduct requirements, rather than more invasive measures such as a curfew or wearing a remote monitoring device.
(e)Mr White informed the Tribunal that the Applicant had received the December 2024 BVR in person, during which he confirmed that his contact details were unchanged from those previously advised to the Tribunal and Respondent. The Tribunal made a further (unsuccessful) attempt to contact the Applicant on 21 January 2025. The Applicant failed to appear at the resumed hearing on 22 January 2025.
[12] Exhibit R2, 85-96.
[13] Ibid 97-99.
[14] Ibid 100-102.
[15] Ibid 327-337.
Mr White submitted that the Applicant’s conduct reflected abandonment of his application and the Tribunal should therefore dismiss it pursuant to ss 99 or 100 of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’). The Tribunal decided that this approach may have been more appealing for a different category of case, for example where no documents from an applicant were available. The current application, however, is a remitted hearing from the FCA with more than 1,000 pages of documents. This includes past statements from the Applicant and a transcript of his oral testimony in 2022. The Tribunal was satisfied that the Applicant has received reasonable notice of this proceeding and decided to proceed in his absence.[16]
[16] Pursuant to s 81 of the ART Act.
LEGISLATIVE FRAMEWORK
Section 13 of the ART Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable and invite the affected person to make revocation representations. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Subsections 49 and 50 of the ART Act provide that the procedure of the Tribunal is at its discretion and the Tribunal must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
ISSUE
Because of the Applicant’s 2020 conviction and sentence of imprisonment exceeding 12 months he has a substantial criminal record and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation based on the case advanced by the Applicant. The Tribunal is required to read, identify, understand, and evaluate the Applicant’s clearly articulated representations or those obviously arising from the evidence.[17]
[17] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22]; [25]; [27]; [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 110
In making its decision, the Tribunal must comply with a direction under s 499(1) of the Act, known as “Ministerial Direction 110” (‘the Direction’).[18] The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power.[19]
[18] The Act, s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson (n 23), 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[19] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The following principles at cl 5.2 of the Direction provide a framework within which decision‑makers should approach their task:
(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 noncitizen 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 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 measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(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; and
(5)Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that 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’.
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an Applicant’s claims and the individual and cumulative weighing process is a matter for individual decision-makers.[20]
EVIDENCE
[20] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was).
Documentary evidence
The following documents were tendered into evidence:
(a)Remittal bundle lodged by the Respondent numbering 727 pages;[21] and
(b)Supplementary documents lodged by the Respondent numbering 337 pages.[22]
[21] Exhibit R1.
[22] Exhibit R2.
Applicant’s evidence
The Applicant did not file any materials despite having several opportunities during the pre-hearing phase to do so. Exhibit R1, however, contains a two-page statement he filed with the Respondent in 2021, and an undated statement filed on 20 April 2022 for the first Tribunal hearing.[23] The transcript from the 2022 hearing is also in evidence.[24]
[23] Exhibit R1, 66-67; 110-112.
[24] Exhibit R2, 103-265.
Respondent’s evidence
The Tribunal has considered the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) dated 4 December 2024. Mr White also made oral submissions.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)    the nature and seriousness of the non-citizen’s conduct to date; and
b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the
non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
The Applicant accepts his offending commenced soon after arrival in Australia at about the age of 16.[25] His court outcomes between 2009 and 2014 include unlicenced driving,[26] failing to give particulars to another driver after a crash, and driving after consuming alcohol.[27] These were dealt with through fines and licence disqualification. His criminal history also includes a court appearance on 28 May 2014 for two counts of robbery and three counts of dishonestly obtaining property by deception. Despite the Applicant then being 21 years of age, these charges were dealt with by the NSW Children’s Court, which imposed a two-year probation order.[28] The Tribunal accepts the Respondent’s submission that it is not possible on current evidence to determine if convictions were recorded,[29] which potentially enlivens the prohibition against considering findings of guilt for juvenile charges.[30] Out of an abundance of caution, no reliance is placed on the findings of guilt dated 28 May 2014.
[25] Ibid 160 [36]; 161 [5], [16]-[17].
[26] Exhibit R1, 424-425.
[27] Ibid 422-423.
[28] Ibid 539-540.
[29] RSFIC, 3 [12].
[30] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 234; Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) ALJR 475, [34] (Beech-Jones J).
The Applicant was fined by the Magistrates’ Court of Queensland in January 2017, without convictions being recorded, for possessing dangerous drugs, failing to appear in court, and committing public nuisance. He also has a conviction on 7 October 2020 for possessing cannabis, which resulted in a small fine.
The nature and seriousness of the Applicant’s kidnap offence is evident from the 2020 sentencing remarks.[31] The Applicant pleaded guilty to detaining a man with two co-offenders for about eight-and-a-half hours. The agreed facts on which his plea was based include reference to the Applicant threatening to stab and kill the victim with a knife, stripping the victim naked, tying the victim’s hands behind his back, beating him with electric cables, and inflicting multiple burns on the victim’s body with a household iron. The Applicant also held a lighter to the victim’s face, burned his hair, and punched him in the mouth. The Applicant’s conduct was assessed as being above the mid-range of objective seriousness for this category of offence.[32]
[31] Exhibit R1, 36-43.
[32] Ibid 39 [21].
The Court considered expert reports from a medical practitioner dated 29 November 2019 and 19 June 2020.[33] These stated that the victim sustained injuries comprising ‘a combination of superficial partial thickness and mid partial thickness dermal burns’, resulting in permanent scarring and pigmentation changes. The reports referred to the possibility of continuing pain and psychological effects.
[33] Ibid 173-195; 198-244.
The victim tendered an impact statement about feeling ‘completely traumatised’ and constantly ruminating about these events.[34] His relationships with family, friends, and at work were adversely affected, causing depression, stress, anxiety, and suicidal ideation. The Court held that the Applicant’s unlawful confinement of the victim was ‘very serious’, violent, degrading, ‘grotesque’, and without justification. The Applicant accepted at the 2022 Tribunal hearing that his conduct was very serious.[35]
[34] Ibid 196-197; 251-259.
[35] Exhibit R2, 154 [5].
In addition to the Applicant’s criminal history, ‘other conduct’ pursuant to cl 8.1.1(1) of the Direction may also be relevant, despite not leading to charges or convictions. This includes:
(a)Failing to surrender himself into custody in Queensland in 2017, which resulted in the issue of an arrest warrant.[36] The Applicant’s past evidence is that he moved house and did not receive ‘the court letters and stuff like that’.[37]
(b)A pre-sentence report dated 2020 stated that the Applicant fought with another detainee while on remand, resulting in seven days separate confinement and 28 days loss of privileges.[38] The Applicant signed a document admitting this breach,[39] but in oral testimony at the 2022 Tribunal hearing claimed he was not involved, and the fight instead occurred between the victim and the Applicant’s ‘friend’.[40]
(c)A report dated 8 November 2020 from ACT Corrective Services states the Applicant returned a positive urinalysis result for cannabis, resulting in loss of privileges.[41] The Applicant accepted the accuracy of this at the 2022 Tribunal hearing and said he used cannabis in custody for depression.[42]
(d)A report dated 23 May 2021 from ACT Corrective Services refers to the Applicant being found in possession of two micro memory cards, resulting in a loss of privileges.[43] The Applicant signed a form admitting this disciplinary breach.[44]
(e)In April 2023, two tablets and drug paraphernalia were found in a room the Applicant shared with his brother in the detention centre.[45]
(f)On 16 August 2023, five unidentified white pills and a smoking implement were discovered in a room the Applicant shared with his brother in the detention centre.[46]
[36] Exhibit R1 443; 445-452.
[37] Exhibit R2 160 [10].
[38] Exhibit R1, 168; 457-458; 463-467.
[39] Exhibit R2, 467.
[40] Ibid 168 [1]-[35].
[41] Exhibit R1 476-481.
[42] Exhibit R2 152 [39]-[45]; 167 [31]-[38].
[43] Exhibit R1 482-486.
[44] Ibid 484.
[45] Exhibit R2 302-303.
[46] Ibid 306.
In terms of the weight given to police or custodial records, this material is routinely obtained under summons and filed in visa cases. The Tribunal is not bound by the rules of evidence[47] and although such records may not have been substantiated in court, the Tribunal can consider them as ‘other conduct’ within the meaning of cl 8.1.1(1) of the Direction. That said, the Tribunal must take care about concluding that criminal conduct has occurred in the absence of a conviction.[48] Wherever possible, an applicant must be afforded procedural fairness by having an opportunity to respond to such records. This did not occur during the present hearing, however, because of the Applicant’s failure to appear.
[47] ART Act, s 52.
[48] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, 124 [100]; QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74].
Tribunal findings: The nature and seriousness of the conduct
The Applicant’s driving offences in 2009 and 2012, and drug / public nuisance / failure to appear offences in 2017 and 2020 are not particularly serious. The aggression and violence resulting in his 2020 kidnap conviction, however, is very serious. Custodial dispositions are a last resort and the most severe sanction available. This is so irrespective of where they sit in the context of statutory maximums.[49] The 42-month sentence received by the Applicant reflects the objective seriousness of his crime. It is noteworthy the Applicant’s initial interactions with police and the courts were followed by increasingly serious offending. The totality of his conduct reflects a disregard for Australian laws and the rights of others.
[49] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) < >.
In addition to the Applicant’s crimes, he failed to surrender himself into custody in 2017 and has not been consistently compliant in custodial settings. There is no evidence that the contemporaneous custodial records, authored on different days by different officers between 2020 and 2023, record other than what occurred. Where there is a conflict, the Tribunal prefers these records to the Applicant’s claims.
The totality of the Applicant’s offending and other misconduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — 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.
This aspect of the Direction requires assessment of the risk an applicant poses to the Australian community should they reoffend, taking into consideration the nature of any harm and its probability. Justice Kerr has referred to this as a ‘future-focused assessment’[50] where evidence of past offending ‘is not, of itself, significantly probative’ of the committing of another offence.[51]
[50] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 561 [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[51] Hughes v The Queen (2017) 263 CLR 338, 392 [154] (Nettle J).
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J, as her Honour then was, reasoned at [78] that:
…[t]he 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.
In Guo,[52] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’.[53] The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[54]
[52] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[53] Ibid 574-5.
[54] Ibid 575.
The Applicant’s evidence about drug and alcohol use, including in the context of the kidnapping offence, is somewhat inconsistent. He previously stated that he smoked a ‘lot of marijuana’, was in ‘a bad condition of alcoholism’ at the time of the kidnap offence,[55] and was intoxicated.[56] In other evidence, however, he submitted that his drug and alcohol use was not ‘problematic’,[57] that he only consumed one bottle of beer on the day of the kidnap offence, and ‘was not intoxicated’.[58] The Applicant refers to trauma experienced as a child in Sudan, for which there is no independent corroboration or expert diagnosis.[59] The evidence also contains reference to him previously experiencing relationship issues and financial problems.[60]
[55] Exhibit R2, 164 [8]-[9].
[56] Ibid 149 [18]; 151 [40]; 156 [40].
[57] Exhibit R1, 41 [32].
[58] Ibid 171.
[59] Exhibit R1, 359.
[60] Exhibit R2, 152 [15]-[30]; 164 [10], [40].
The Court noted at the Applicant’s most recent sentencing: ‘The offender appears to have better than reasonable prospects of rehabilitation’.[61] The evidence regarding his rehabilitative progress, however, is quite limited. A pre-sentence report dated 2020 states that the Applicant ‘declined to participate in the AMC First Steps to Anger Management Program’.[62] The Tribunal notes, however, his subsequent completion of an Anger Management Program in 2021.[63] Other certificates in evidence include:
(a)Completion of ‘self-paced program Self Esteem’ dated 13 January 2021;[64] and
(b)Completion of ‘Readiness Program’ dated 12 August 2021.[65]
[61] Exhibit R1, 42 [46]; Exhibit R2, 163 [19].
[62] Ibid 171.
[63] Ibid 454.
[64] Ibid 455.
[65] Ibid 456.
The Applicant has expressed remorse in documentary evidence[66] while concurrently alleging that the kidnap victim fabricated his statement.[67] He pleaded not guilty until day four of the trial, which required the victim to be cross-examined.[68]
[66] Ibid 60; 67.
[67] Ibid 171.
[68] Ibid 287-296.
In terms of recidivism risk, the Applicant was assessed in a 2020 pre-sentence report[69] and by ACT Corrective Services in October 2020[70] as ‘a medium-low risk of general offending’.
[69] Ibid 171.
[70] Ibid 488-490.
The Applicant was released into the community in late 2024 under an exercise of Ministerial discretion. His failure to appear at the hearing, however, means he could not be questioned about factors such as accommodation, employment, relationships, rehabilitation, impact of BVR conditions, and others that are relevant to recidivism risk.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Consideration of risk does not turn solely on whether an applicant will be removed from the community in the event of a non-revocation decision.[71] This will not occur in the present matter because the Applicant is on conditional liberty in the community under a BVR.
[71] JNMQ vMinister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1375, [27] (Jackman J).
A repeat of the Applicant’s kidnap offence could result in significant physical and / or psychological injuries to another victim.
The increasing seriousness of the Applicant’s offending since 2009, attempt to blame the kidnap victim, and misconduct in custody, detracts from the persuasiveness of his claims regarding insight, contrition, and rehabilitation. He was involved in a violent incident in custody and tested positive for drug use. Tablets and drug paraphernalia were found in a room he shared with his brother. Someone who is remorseful, with developed insight, and who has made meaningful rehabilitative progress, would not act in this way.
There is no expert evidence to corroborate the Applicant’s claims about risk and rehabilitative progress. His custodial misconduct only elevates concerns. The Tribunal considers the Applicant has unmet rehabilitative needs relating to anger, emotional regulation, substance abuse, and better dealing with relationships and financial stressors.
The Applicant’s non-appearance at the hearing and failure to advance his case precludes reliable findings about protective factors. That said, there is no evidence he has been other than law-abiding since conditional release in late 2024. Any law-abiding behaviour, however, is relatively short-lived when regard is had for his history.
The Tribunal finds that the Applicant constitutes a medium-low risk of reoffending. His past violent conduct has caused permanent harm to the kidnap victim and falls into a category of behaviour where even a low probability of repeat is unacceptable. When the very serious nature of the Applicant’s crimes and other misconduct is coupled with a medium-low recidivism risk, this primary consideration weighs substantially against revocation.
Family violence committed by the non-citizen

There is no evidence that the Applicant has committed family violence. It follows that this primary consideration carries neutral weight.
The strength, nature and duration of ties to Australia
Clause 8.3 of the Direction provides:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the
non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Tribunal consideration: Strength, nature, and duration of ties in Australia
The Applicant has resided in Australia for approximately 18 years. Five years of that period, from late 2019 until late 2024, has been spent in custodial settings.
The Applicant’s father, stepmother, and brother reside in Australia.[72] The Applicant claimed at the 2022 Tribunal hearing that his father did not lodge a supportive letter nor appear as a witness because he was travelling in Uganda.[73] The Applicant has stated his brother’s visa was cancelled following the commission of crimes, which correlates with custodial records stating they shared a cell together.[74] Mr White submitted that the Applicant’s brother remains subject to criminal and immigration proceedings. The Applicant’s brother, therefore, appears to be a non-citizen whose interests do not fall under cl 8.3(1) of the Direction.
[72] Exhibit R1, 53, 59.
[73] Exhibit R2, 127 [30]; [45].
[74] Exhibit R1, 111.
The Applicant stated in revocation submissions that his family are ‘sad’ because of his situation[75] and his father ‘is suffering from eye vision and heart condition’ (sic) requiring the Applicant’s help.[76] There is no corroboration of this, such as a statement from the Applicant’s father, stepmother, or a treating physician.
[75] Ibid 59.
[76] Ibid 48.
The Applicant referred in documentary evidence to more than 60 relatives in Australia.[77] There is a brief email and unsigned / undated letter from a cousin in evidence, although this is general and somewhat dated.[78] There are no statements from other relatives.
[77] Ibid 53, 59.
[78] Ibid 70; 118.
The Applicant referred in his 2020 revocation submissions to a girlfriend he purportedly planned to marry.[79] No statement is in evidence from this person. An undated and unsigned statement from a person with a comparable name is in evidence, but this does not appear to be from the girlfriend referred to and is in very general terms.[80] An unsigned and undated letter with no contact details was submitted as part of the Applicant’s revocation submissions from a woman with a different name who instead referred to herself as the Applicant’s partner.[81] The Applicant’s current relationship status could not be ascertained because of non-appearance.
[79] Ibid 54.
[80] Ibid 73.
[81] Ibid 69.
The Applicant refers to some work and community interaction in Australia,[82] although independent corroboration of these claims is sparse.
[82] Ibid 61.
The Tribunal has considered unsigned and undated statements in evidence.[83] These are quite general, and some do not refer to the Applicant’s offending. Others do not provide any contact details to enable further enquiries. By way of example, a letter purporting to be from the Chairman of the Azande Community Association in Queensland only contains a first name for the author, with no information regarding the Association’s postal or email address. An online search for this organisation does not disclose any publicly available information. In his documentary evidence and oral testimony at the previous hearing, the Applicant claimed his father is the ‘head leader of the Azande community’ referred to and an uncle was involved in producing this letter.[84]
[83] Ibid 71-75; 113-118.
[84] Ibid 111; Exhibit R2, 127 [43] – 128 [36].

Aboriginality

Even if an applicant makes no submissions about Aboriginality, nor advances any connection to the Australian Aboriginal community, this is no longer the end of the matter. Justice Feutrill held in Brownlie that neither the absence of an express representation nor materials disavowing the relevance of this consideration are determinative.[85] The applicant in Brownlie was born in Wales and expressly stated he did not identify as an Aboriginal or Torres Strait Islander person. No claims about Aboriginality were advanced by Mr Brownlie or his barrister during the hearing. His Honour noted at [80] of Brownlie:
There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?
[85] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
In quashing the Tribunal’s decision, however, his Honour held that decision-makers are required to search for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’.[86] The Tribunal is obliged to follow his Honour’s decision, which requires review of the evidence to identify any conflict between an applicant’s express non-identification as Aboriginal and any contrary unarticulated representations or ‘integers’ in the evidence.[87] His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[86] Ibid [101].
[87] Ibid [50], [54], [102].
The Applicant responded ‘No’ in documentary materials to questions asking if he is of Aboriginal or of Torres Strait Islander origin.[88]
[88] Exhibit R1, 7, 48, 470.
Tribunal findings: Strength, nature, and duration of ties in Australia
The Tribunal finds that:
(a)The Applicant arrived in Australia as a 13-year-old child and has resided here for approximately 18 years.
(b)The Applicant’s offending commenced relatively soon after arrival in Australia. Less weight is consequently attributed to this primary consideration.
(c)The Applicant has not provided statements from his father, brother, and stepmother despite professing to have a close relationship with them. There is also scant evidence from the 60 other relatives he claims to have in Australia, and it is not possible to reliably ascertain if their interests fall within the meaning of cl 8.3(1) of the Direction. On current facts, the Applicant’s relationship with family members in Australia is relatively weak and there is no persuasive basis to conclude that the impact of a non-revocation decision rises any higher than emotional effects such as disappointment or sadness.
(d)In terms of other community ties, there are a small number of supportive but somewhat dated and general references from people claiming to be the Applicant’s friends. It is not possible to reliably ascertain the current nature and strength of these relationships, including whether these people fall within the meaning of cl 8.3(2)(b) of the Direction, and whether the Applicant currently has a romantic partner.
(e)The Tribunal accepts the Applicant enjoys some community support. That said, because of the general nature of letters and emails relied upon, absence of signatures, dates, or contact information, and the Applicant’s failure to appear at the hearing or call witnesses, the Tribunal only affords these letters limited weight. The Tribunal considers it unlikely that the effect on any prosocial friends rises any higher than emotional effects such as disappointment or sadness.
(f)Some weight is placed on the Applicant’s past positive contributions through employment and community interaction, although evidence of this is very limited.
(g)The Tribunal was unable to identify other integers or references in the materials that may raise an unarticulated case to the effect that the Applicant identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
The strength of the Applicant’s ties to the Australian community is very limited on current facts. This primary consideration carries moderate weight at best in favour of revocation.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[89] It is generally for an Applicant to ‘identify the personal facts and circumstances relevant to the decision’,[90] including the existence of any minor children whose best interests may be affected. This primary consideration applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ. In considering the best interests of the child, the following factors must be considered where relevant:
a.     the nature and duration of the relationship between the child and the non‑citizen. Less weight should generally be given where the relationship is non‑parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b.     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c.     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d.     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e.     whether there are other persons who already fulfil a parental role in relation to the child;
f.   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g.     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h.     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[89] Tohi (n 22), [180], citing Spruill v Minister for Immigration and Citizenship [2012] FCA 1401, [18]; RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365, [44].
[90] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196, [23] (Ismail); Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 221 [61].
The Applicant does not refer to any biological children in documentary materials.[91] He has previously invoked the interests of nieces and nephews, some of whom live interstate.[92] At the first Tribunal hearing the Applicant said he has not had contact with these children since imprisonment in 2019.[93] There is no evidence from the parents or other caregivers, or from the children themselves, to establish their current relationship with the Applicant. The evidence rises no higher than general and uncorroborated claims about the Applicant seeing the children, providing some ‘money from time to time’, and purportedly caring for some of them while his brother was imprisoned.[94] Given the reference to the Applicant and his brother being in custodial settings concurrently, it remains unclear when the Applicant might have cared for his brother’s children.
[91] Exhibit R1, 55-56.
[92] Ibid 57-58.
[93] Exhibit R2, 177 [17]-[23].
[94] Exhibit R1, 58.
The Applicant’s relationship with nieces and nephews is non-parental and contextualised by long periods of absence and limited meaningful contact since 2019. It is unknown who cares for the children. Because of the Applicant’s non-appearance, it was not possible to enquire about the extent to which he has played a more prominent avuncular role since release in late 2024, or any effect on the children resulting from a non-revocation decision.
It is not possible on current facts to differentiate the interests of the children. On the largely speculative basis that the parents or other caregivers of the children would welcome the Applicant playing a role in their lives, or that a non-revocation decision may have an emotional, practical, or financial impact, the Tribunal finds the children’s best interests weigh in favour of revocation. This finding is conditional on the Applicant remaining abstinent and law-abiding. On balance, this primary consideration weighs slightly in favour of revocation.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) 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 states:
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clause 8.5(4) of the Direction provides that this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case. This correlates with the reasoning in FYBR[95] where the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[96] The High Court refused an application for special leave to appeal from the orders in FYBR.[97]
[95] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[96] Ibid 473 [75]–[76] (Charlesworth J).
[97] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The High Court has more recently held in Ismail regarding this primary consideration in an earlier Direction (Direction 90):
Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)–(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)–(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.[98]
[98] Ismail, [52].
Tribunal consideration: Expectations of the Australian community
The Applicant did not advance submissions regarding this primary consideration.
The Respondent contends this primary consideration weighs heavily against revocation because of the Applicant’s criminal history and other misconduct.[99]
[99] RSFIC, 13 [65].
Tribunal findings: Expectations of the Australian community
The High Court’s decision in NZYQ results in this primary consideration being considered in a different context,[100] particularly the norm expressed at cl 8.5(1) of the Direction about not allowing certain non‑citizens to ‘enter or remain in Australia’. As summarised earlier, the Applicant has been in the community under BVE / BVR granted to him since August 2024. A non-revocation decision would not change this, although a revocation decision would restore his cancelled (permanent) visa.
[100] See, for example the Tribunal’s commentary in TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475.
The Applicant’s criminal history and other misconduct reflects a repeated failure to obey Australian laws. His 2020 kidnap conviction raises serious character concerns within the non-exhaustive ambit of cl 8.5(2) of the Direction. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, notwithstanding his 18-year residence in Australia.[101]
[101] Pursuant to The Direction, cl 5.2(6).
The Applicant has breached the community’s reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct that harms others. The principles at cls 5.2(1)–(5) of the Direction are apposite to his circumstances.
On balance, this primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
Impact on business interests

If the Applicant’s BVR were to cease and a future decision made to remove him to South Sudan, he would likely be confronted by practical, emotional, and financial impediments. This includes because of his 18-year residence in Australia, status as a returnee from a western country, and uncertain sources of support. Given his current circumstances, however, removal is not currently in prospect and the speculative possibility of future events only weighs somewhat in favour of revocation.
Additional considerations
No other considerations are discernible from the evidence.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from guidance in the Direction to generally give greater weight to the Protection of the Australian community over other primary considerations, as the highest priority of the Australian Government.
The totality of the Applicant’s crimes and other misconduct is very serious. It reflects a repeated failure to obey Australian laws and the kidnap offence raises serious character concerns. A repeat of the latter could result in significant physical and / or psychological injuries to another victim. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him.
The Tribunal has doubts about the Applicant’s past claims regarding insight, contrition, and rehabilitation. This includes because of attempts to minimise his culpability, blame the kidnap victim, and misconduct in custody. He has tested positive for cannabis, been involved in a violent incident against another prisoner, and tablets / drug paraphernalia were found in a room he shared with his brother. Someone with developed insight, who is remorseful, and has made meaningful rehabilitative progress, would not act in this way.
Any law-abiding behaviour by the Applicant while on conditional release since late 2024 is relatively short-lived when regard is had for his criminal history and misconduct. The Tribunal assesses him to be a medium-low risk of recidivism. His violent conduct falls into a category of behaviour where even a low probability of repeat is unacceptable.
Some weight is placed on the Applicant’s positive contributions to the community, although evidence of this is scant. His ties to Australia, on current facts, are limited and weak.
The Applicant has no biological children and instead invokes the interests of nieces and nephews. The evidence discloses limited interaction with these children since his arrest in 2019 and there is no current evidence from parents, other caregivers, or the children.
Aspects of the Applicant’s documentary evidence about non-refoulement are inconsistent with his father’s claims in a 2004 application for an Offshore Humanitarian Visa. The Applicant remains eligible to apply for a Protection Visa and the Tribunal has deferred consideration of his claims. The legal effect of the Tribunal’s decision in the present matter centres on the type of visa held. A revocation decision restores his permanent visa, whereas a non-revocation decision does not affect his current conditional liberty under a BVR.
The evidence does not disclose substantial language or cultural barriers should the Applicant be removed to South Sudan. Notwithstanding that finding, removal is not a current consequence of the Tribunal’s decision.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight than the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

120. I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 14 February 2025

Date of hearing: 22 January 2025

Counsel for the Applicant:

Applicant failed to appear

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Alexander White

Minter Ellison Lawyers