KQLZ and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1069

KQLZ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1069 (2 July 2025)
Applicant/s:  KQLZ
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3103

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:2 July 2025
Date of Written Reasons: 23 July 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant’s application for a bridging visa not be refused under section 501(1) of the Migration Act, 1958 (Cth).
Written reasons for this decision will be provided within a reasonable time hereof.

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Senior Member N Manetta

Catchwords
MIGRATION – refusal of visa under section 501(1) of Migration Act – applicant a citizen of Sri Lanka – applicant does not pass character test – applicant refused bridging visa to permit him to live in community pending pursuit of a judicial-review application in connection with his claim for a protection visa – applicant guilty of family violence – respondent indicating legal position is that applicant may be removed from Australia before judicial review application determined if decision under review affirmed – applicant seeking a limited visa only – effect of Tribunal’s decision cannot be to give applicant a permanent right to remain in the community – in all the circumstances decision set aside and substituted
Legislation
Migration Act, 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Secondary Materials
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 (7 June 2024)
Statement of Reasons

These are my reasons for the decision I made and published on 2 July 2025.
This is an application by ‘KQLZ’, a person whose name has been anonymised in the interests of confidentiality and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of a decision of the respondent’s delegate dated 8 April 2025.[1]
[1] See Hearing Book (‘HB’), 22ff.
By this decision, the delegate refused the applicant’s application for a bridging visa[2] under the Migration Act, 1958 (Cth) (‘the Act’). This visa would permit the applicant to reside in the Australian community pending the outcome of a judicial-review application he has made to the Federal Family and Circuit Court. The judicial-review application challenges a decision by the Immigration Assessment Authority that the applicant is not eligible to receive a protection visa. It is common ground that this application has not been listed for hearing by the Court,[3] but I note the respondent has sought expedition of the matter because the applicant is in detention.[4]
[2] A Bridging E (Class WE) visa.
[3] See HB, 205 [23], 244 [5].
[4] HB, 529.
The bridging-visa application was refused by the delegate under s 501(1) of the Act. Section 501(1) empowers the Minister to refuse a visa to a person who does not satisfy the Minister that he or she passes the so-called ‘character test’ (as elaborated under s 501(6) and (7)). The delegate decided, first, that the jurisdictional threshold for the exercise of the discretion against the applicant was met; namely, that the applicant had not satisfied the delegate that he passed the character test. The delegate then considered the exercise of the discretion, and the delegate was required to apply in this regard any direction issued under section 499 of the Act. The delegate applied Direction 110.[5] Having weighed the matters required to be addressed under Direction 110, the delegate found that, on balance, they favoured the exercise of the discretion to refuse the applicant a bridging visa.
[5] 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 (7 June 2024).
TRIBUNAL’S TASK
I must address in my review the same two questions as the delegate. I make the following prefatory remarks[6] in respect of the Tribunal’s review function. In a case like this, the Tribunal hears the matter afresh. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[7] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[6] What follows in the balance of this paragraph is a series of standard observations that I include in all my decisions in this area.
[7] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This case concerned the Administrative Review Tribunal’s predecessor, the Administrative Appeals Tribunal, but no different principles apply in this regard.
At the hearing before me, Ms Battisson appeared for the applicant; Mr Hutton, for the respondent. I am grateful to them both for their helpful submissions in what was undoubtedly a difficult case.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Act. I set out below a summary of the background facts, including the applicant’s criminal offending, and then my reasons for my conclusion.
BACKGROUND FACTS
The applicant was born in Sri Lanka in 1988. He moved to a refugee camp in India aged seven. He came to Australia aged 24, in 2013. He had earlier married his partner in India,[8] and the couple arrived here together in 2013. They entered Australia irregularly, and they have since sought asylum here and asserted that they are owed protection obligations and are eligible to receive protection visas.
[8] She is an Indian citizen.
On arrival in Australia, the applicant spent a relatively short time on Christmas Island (a matter of months), then lived in Tasmania, and after that in Queensland (from 2015 to 2017). The applicant then moved to Sydney in 2017. He has lived there ever since.
The applicant and his wife have three children together, aged eleven, nine, and three, respectively. One of the children, the eldest, is now an Australian citizen.
I turn now to the applicant’s criminal offending. His record was in evidence before me.[9] All the offending involves the misuse of alcohol. On 24 August 2018, the applicant appeared in Blacktown Local Court and received a fine of $600 (together with a suspension of his driver’s licence for six months) for driving with a middle-range Prescribed Concentration of Alcohol (or ‘PCA’). This is recorded as a first offence.
[9] HB, 46-48.
On 13 January 2021, the applicant appeared in Mount Druitt Local Court and was convicted of three offences. First, the applicant was convicted of destroying or damaging property (a domestic-violence offence). Secondly, he was convicted of an assault upon his wife occasioning actual bodily harm. Thirdly, he was charged with failing to appear in accordance with his bail acknowledgment. In relation to each of the first two offences, he received a community correction order of 12 months commencing on 13 January 2021. In relation to the second offence I have mentioned, there was a further requirement to perform community service work of 50 hours. In relation to the third offence, there was a conviction (but no other penalty was imposed).
The first two offences arose out of a family-violence episode, which involved the applicant assaulting his wife. The background to the offences is helpfully set out in the respondent’s Statement of Facts, Issues and Contentions.[10] The applicant and his wife were arguing about the applicant’s consumption of alcohol. The applicant punched his wife two or three times in the left side of her body and head. He then struck her on the head with a whiteboard and broke the board in so doing. He then used a fragment of the broken board to strike his wife on her arms and legs, thereby cutting and bruising her. An apprehended domestic violence order was issued against the applicant. Self-evidently, this was a serious offence, and the violence was considerable. I bear in mind particularly the disparity in physical strength between the applicant and his wife as well as the use of an improvised weapon. It must have been a shocking experience for the applicant’s spouse.
[10] HB 244, [9].
On 21 October 2021, the applicant appeared in Blacktown Local Court where he was convicted of driving with a high-range PCA. On this occasion, a community correction order of two years and six months was imposed (amongst other supervision requirements). He was to attend ongoing counselling in respect of his alcohol abuse. He was disqualified from driving for six months and was to participate in an ‘interlock’ program for two years. This type of offending is antisocial, and I bear in mind that driving with a high-range PCA exposes other road users to some risk of injury. It is noted to be a first offence of its type; but it is not, of course, the first time the applicant had been to Court after having been stopped with an elevated PCA.[11]
[11] See above at [11].
There is no further offending in the applicant’s criminal history until his appearance in the Parramatta Local Court on 19 March 2024. On this occasion, the applicant was convicted of two offences. The first was the offence of stalking/intimidating his wife with intention to cause her physical fear, and the second comprised a common assault upon her. An aggregate term of imprisonment of eight months was imposed with a non-parole period of four months. Again, the background to the offending is helpfully set out in the respondent’s Statement of Facts, Issues and Contentions.[12] The applicant had returned home on 14 January 2024, which happened to be his birthday. He was intoxicated and asked his wife why she had not prepared something for him. She responded that he was a poor husband. He then assaulted her by punching her to the head after grabbing her hair. He took a kitchen knife and held it to his own throat declaring that he would kill himself but that he would first kill her. He advised his wife to call the police, which she did. The applicant was convicted of the two offences to which I have referred and a new apprehended violence order was made lasting until 19 March 2026. The applicant was released on parole on 19 July 2024. The violence in this episode is severe: the applicant must have hurt and disturbed his wife greatly.
[12] HB 244-245 [10].
The applicant is prevented by the order from living with his family (until 19 March 2026) and he may not approach family members within twelve hours of having consumed alcohol.
REASONS
I now turn to consider the first question arising from section 501(1), which is whether the applicant has satisfied me that he passes the character test. Section 501(6)(d)(i) of the Act provides that a person does not pass the character test if there is a risk that the person would engage in criminal conduct in Australia. It follows that the jurisdictional threshold giving rise to the possible exercise of the discretion in section 501(1) will be met unless the applicant satisfies me that there is no risk, or in any event only a very low risk that may be ignored,[13] of his engaging in criminal conduct in Australia.
[13] That is, a risk that is so low that it does not answer the description of ‘risk’ as intended by the section.
The applicant has not satisfied me that this is the case. Clearly enough, the applicant has engaged in two serious instances of domestic violence that have reached the Courts. These offences have included considerable violence. I accept that there was a break after 2021 but, even assuming a greater degree of sobriety and good behaviour at this time, the applicant eventually relapsed, and the events described in relation to the most recent offending are serious. Moreover, the applicant has been convicted of driving with an elevated PCA of alcohol, which is a criminal offence, on two occasions.
I am not satisfied that there is no risk, or only a very low risk, of the applicant reoffending. If the applicant returns to alcohol, he may drive again contrary to legal requirements. It is well-known that alcohol disinhibits and that it impairs measured judgment substantially. That disinhibition and impairment may lead the applicant to drive against the law or breach the apprehended violence order (although I think the risk of the latter is lower than the first). Accordingly, I find the threshold for the exercise of the discretion in section 501(1) satisfied.
I turn now to consider the second question; namely the exercise of the discretion. In this regard, I am required to apply Direction 110 (‘the Direction’).
Prefatory Remarks
I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [22] – [25] below.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I consider first the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
This is an important principle to bear in mind in this case as the offending has involved family violence, which the Direction speaks forcefully against, and driving with an elevated PCA, which is a strongly anti-social act.
Paragraph 8.1(2) of the Direction requires decision-makers to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I turn now to consider these matters. Paragraph 8.1.1(1) specifies (in subparagraphs (a) to (i)) a number of matters that I must consider. I regard the family-violence offending as very serious: see paragraph 8.1.1(1)(ii) and (iii). I regard the offending involving the driving of the vehicle with a high prescribed level of alcohol as serious because it was not the first time the applicant had been charged with driving with an elevated PCA and because the later offending behaviour involved a high PCA. Driving under these circumstances does pose a risk to the Australian community.
I must have regard to the impact of the offending on any victims and their family. I regard the family-violence offending as inevitably having had a severe impact upon the applicant’s spouse and also upon their children (who can be assumed to have witnessed it).
There is a frequency in the family-violence offending. I do not doubt that the spousal relationship has been marred by multiple occasions of violence. That only two have been charged is not a strong indicator of limited violence. To the contrary, family violence is often not charged, as is well known, and family violence is frequent where alcohol misuse is involved, as is the case here.
There has been some frequency in the driving offences (in that there is more than a single instance). There is also a trend of increasing seriousness in that the second driving offence involved a higher level of alcohol misuse than the earlier one.
So far as the family violence is concerned, there is a clear trend of increasing seriousness because the Court sentences earlier imposed did not have their desired deterrent effect.
There is a cumulative effect of repeated offending upon the victims of family violence, and I take that into account in this case.
Paragraph 8.1.2 requires me to assess the risk to the Australian community. Subparagraph (1) provides that 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. I bear this principle steadily in mind, and it has obvious application in cases of family violence.

Subparagraph (2) requires me, when I assess risk, to have regard to three matters ‘cumulatively’ as specified in subparagraphs (a), (b) and (c). The first is the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. So far as the family violence is concerned, the harm could be very extensive, and I refer not only to physical harm here but also to psychological harm. Violence can lead to unpredictable consequences, particularly where in the case of drunken violence. The applicant’s wife has suffered significant injury at the hands of the applicant. So, I regard the nature of the harm as very serious in this case. So far as the driving offences are concerned, I bear in mind that driving with a higher than permitted PCA impairs driving capacity with an increased risk to Australian road users. Accordingly, there will be a risk of harm to Australian road users if the applicant were to repeat his offending in this regard.
Subparagraph (b) requires decision-makers to assess the likelihood of the non-citizen engaging in further criminal or other serious conduct taking into account the matters that appear in subparagraphs (i) and (ii). It is not easy to assess the applicant’s level of risk in this case.
I accept that the applicant has now experienced jail and immigration detention. Jail is a particularly impressive for a person who has not experienced it before. The applicant will understand that further assaults will see him jailed again.
So far as the family violence offences are concerned, I also accept that there is a restraining order in place until March 2026, and that the applicant may not live with the family before that date. I accept also that he may not associate with family members within 12 hours of having consumed alcohol. So there are legal protections in place. The only violence of which the applicant has been found guilty has been that extended towards his spouse in a domestic setting, and so there is not a wider threat to the community I need to evaluate.
Nevertheless, the applicant was substantially dependent upon alcohol in the past, and despite having broken with his habit once, he relapsed. So, at the present time, there is a risk of the applicant resorting to alcohol that has not been tested in the community. In this regard, I regard the applicant’s friends as being of limited assistance to the applicant. They will not be effective, I believe, in preventing the applicant from accessing alcohol if that is what he wishes to do. Their social circles consume alcohol regularly. The applicant’s drinking habit was so entrenched that he must now abjure alcohol altogether: he cannot become a merely social drinker and hope to maintain decent sobriety. So the risk of alcohol relapse, if the applicant drinks at all in the community, is still present and with it the risk of violence towards family although the family is, it would appear, somewhat protected until March 2026 by the terms of the order. So I regard the risk, in a general sense, as real and not insubstantial. In this regard, I accept the respondent’s submissions as they appear in its Statement of Facts, Issues and Contentions.[14] The applicant has, it should be noted, as yet unresolved mental-health problems, and this was conceded to be the case by him in his Statement of Facts, Issues and Contentions.[15]
[14] See HB, 248 - 250 [23], and 251 [33] - [34].
[15] HB, 205 [26].
So far as the driving offences are concerned, there is even a greater risk because there is no restriction as such on the applicant driving.
Subparagraph (c) of paragraph 8.1.2(2) requires me to consider whether the risk of harm may be affected by the type of visa being applied for. In this case, the visa in question is a bridging visa, which is intended to be held while the applicant pursues his judicial-review application. Whilst the visa could end up being held for a lengthy time, it is not an indefinitely long period. I note that in my review, I am only concerned with the bridging visa for which the applicant has applied. If the application for protection were to be unsuccessful, the applicant’s right to stay temporarily in Australia on a bridging visa would then end. If the application for protection were to be ultimately successful, any bridging visa would be superseded by another visa. That the visa in question is a bridging visa and, therefore, not one of unlimited duration, is a factor that lowers the risk over the longer term. I am not concerned with a visa of permanent duration, for example. That is a matter I must weigh.
By paragraph 8.2, I must consider family violence committed by a non-citizen. By subparagraph (1), I note that the Government has serious concerns about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen and there is a reference here to factors listed in subparagraph (3).
Subparagraph (3) directs my attention to a number of factors. Certainly, the violence in this case has been of a very serious nature, and there have been two instances of criminally charged misconduct. As I have said, there must have been other occasions because the violence in this case was directly linked to an ongoing alcohol dependency. So there has been, in my opinion, quite some frequency in the applicant’s misconduct. The cumulative effect of repeated acts of family violence is a well-understood phenomenon. The applicant’s spouse must have suffered grievously. I believe that the applicant now accepts responsibility for his family-violence related conduct, although I do not believe he has any real insight into the impact of his behaviour on his spouse or any of his children, who must have witnessed the violence. There has been some rehabilitation because the applicant has served a period of time in jail for the first time, and I do not doubt that jail had an impressive impact upon him. But the applicant has yet to demonstrate in a community setting a complete abstinence from alcohol. Such abstinence is essential to the applicant’s development of a physical and mental equilibrium permitting him to withstand the urge to aggression that has characterised his relationship with his wife so far. Clearly, this consideration does count against the applicant.
Under paragraph 8.3 I am to have regard to the strength, nature, and duration of ties to Australia. Subparagraph (1) refers to the impact of my 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. The only person who fulfils this criterion at the present time is the eldest child, who has Australian citizenship. The applicant’s wife and other children are not Australian citizens or permanent residents nor do they have a right to remain in Australia indefinitely.
The consequence of a decision to affirm the decision under review would leave the applicant in detention pending removal. The consequence of a decision to set aside the decision under review would be to allow the applicant to return to the community and resume one-on-one contact with his daughter (albeit not within the family home before March 2026) while his judicial-review application progresses.
It seems to me, therefore, that one possible result of the decision to affirm is the continued detention of the applicant (pending his removal from Australia).[16] That is a potentially serious matter for the eldest child. I think the eldest child would benefit substantially from face-to-face contact with the father at the present time (even if he is to be deported) rather than contact through electronic means or visits. In these circumstances, the interests of the eldest child, who is an Australian citizen, need to be weighed carefully under this head.
[16] The respondent indicated in its submissions (HB, 255 - 256 [51 - [53]) that the legal position is that the applicant may be removed from Australia notwithstanding the existence of his judicial-review application. A court might restrain the removal of the applicant pending determination of his judicial-review application, but I do not believe I should predict what a court may or may not do and whether or not the applicant would have the means to approach the Court for such an injunction in any event.
Paragraph 8.4 requires me to consider the best interests of minor children in Australia. Unlike paragraph 8.3, I am not limited to considering the interests of Australian citizens or permanent residents only. The interests of all three children count here (although I do not double-count the interests of the eldest child whose interests have arisen under paragraph 8.3). I bear in mind that there is a restraining order in place that prevents the applicant from resuming residence with the family for some time, but it does not prevent contact as such. I also bear in mind the impact of the non-citizen’s prior conduct as his violence would no doubt have disturbed the children who witnessed it. The applicant’s spouse fulfils a parental role in relation to the three children, but the role of a father is also important. It does seem to me that the interests of the children here do need to be weighed carefully because of the prospect of the applicant’s ongoing detention pending his removal. That is a very serious consequence for all three children although I also take into account that further drunken episodes and further episodes involving violence would harm the children psychologically. There is still a risk of this occurring.
Paragraph 8.5 requires me to have regard to the expectations of the Australian community. Subparagraph (1) sets out a community expectation that non-citizens should obey Australian laws while in Australia. In cases where a non-citizen has engaged in serious conduct in breach of this expectation – as is the case here – the Australian community ‘as a norm’ (albeit not as an inflexible rule) expects the Government not to allow such a person to remain in Australia. I bear that expectation in mind.
Subparagraph (1) is amplified by subparagraph (2). It is clear that the commission of serious offences against women (including family violence) give rise to character concerns and the Australian community would expect that the person should leave Australia. The family violence of which the applicant has been found guilty and the more generalised background of family violence do give rise to very serious character concerns. It is clear (in subparagraph (3)) that the expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Subparagraph (4) prevents me, moreover, from independently assessing the community’s expectations in the context of a particular case. I accept and follow this guidance, and it is clear that this consideration applies against the applicant in this case.
I must consider other considerations under section 9. There is a non-exclusive list of three such considerations. All in all, it is sufficient for me to mention here that the applicant has an interest of his own in ensuring that his application for judicial review is an effective one. In that regard, the respondent has submitted clearly that the applicant may be removed from Australia if I affirm the decision under review notwithstanding the presence of an undetermined judicial-review application before the Courts.[17] The proposition is put that ‘[t]he existence of a proceeding in the Federal Circuit and Family Court of Australia does not displace the duty to remove the applicant under s 198’ of the Act.[18] This is the respondent’s stated position. Pending removal, the applicant would be subject to continuing detention, which itself involves a continued deprivation of liberty;[19] but his continued presence in Australia is the only way he might continue effectively his judicial-review application.[20]
[17] HB, 255-256 [51] – [53].
[18] HB, 255 [51].
[19] See generally the plurality in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [123].
[20] The respondent conceded (see HB, 256 [53]) that if the applicant were removed to Sri Lanka he would be ineligible for a protection visa as he would be outside Australia. This would render his judicial-review application futile.
I bear in mind that my decision, if it is in favour of the applicant, will not be to give the applicant a permanent right to remain in Australia because I am only concerned with a bridging visa. On the other hand, if I affirm the decision under review, I expose the applicant to what does appear to me to be a serious risk of disabling him from pursuing a legitimate judicial-review application before the courts.[21] I hasten to add that it is not up to me to decide whether that judicial-review application does, or does not, have merit. It is sufficient for me to note that it exists, and that it is apparently a lawful application for the applicant to have made. He has a legitimate interest in seeing it finally disposed of one way or the other before the Federal Circuit and Family Court. I do not believe I should reason that the applicant could always approach the Court to seek an injunction to prevent his removal from Australia. I think that would involve me in an unnecessarily speculative exercise.
[21] See fn 20 (supra).
If he remains in the Australian community on a temporary basis, moreover, the applicant could support his family by engaging in paid work. That would be of some importance to his wife and their children. His wife, in fact, gave evidence that she wishes the applicant to remain in Australia to fulfil a role in the family. The applicant does have a work history and the prospects of future employment. Financial assistance would benefit his family. Moreover, whilst the applicant’s behaviour has been deplorable on occasions, it would be wrong to conclude that he has no prospect of behaving properly or reasonably in the family context in the future whilst on a bridging visa. These matters are ones to which I should also have regard.
I have decided I do not need to weigh any impediments on removal in order to decide this case. These could only count in the applicant’s favour or count neutrally, but not against the applicant.
Weighing the considerations
I turn now to weighing the various considerations. This is not an easy task. I must first emphasise how undesirable the applicant’s behaviour has been when it is evaluated against the specific considerations in the Direction. His conduct has been linked, undoubtedly, to substantial alcohol abuse. This applicant will now have to abjure alcohol altogether in order to avoid the risk of further drunken violence towards his spouse. Whether he can do so remains an untested proposition in the community. The applicant’s wife has suffered grievously and although she supports her husband’s application to the Tribunal, there is a risk of the applicant becoming abusive towards her if he returns to alcohol. Equally, the Australian community more broadly would be threatened by the applicant’s return to alcohol and any misuse of driving privileges.
I am particularly mindful of the emphasis the Direction places, at various points, upon the protection of the Australian community, the expectations of the community, and the general rejection by the Australian Government of the presence in Australia of those who have engaged in serious criminal conduct. Those are very serious matters to weigh under the Direction. They count substantially against the applicant.
Equally, however, I believe I should bear in mind the limited nature of the visa I am asked to consider. I am asked to consider, in effect, clearing the way for the grant of a bridging visa only, and not the grant of a visa that would allow the applicant to remain in Australia permanently. I believe the applicant’s children would substantially benefit from immediate contact with their father at this point in our lives (albeit not in the family home) rather than having to accept his continuing detention (pending his removal from Australia).
The applicant himself has a very serious interest in a fair consideration of his judicial-review application. If I affirmed the decision under review, the applicant might be removed, and the applicant’s prospects of gaining a protection visa would be thereby nullified no matter what the merits of his judicial-review application. It seems to me to be reasonable that this be weighed significantly in his favour.
This has not been an easy matter to decide, but I return once again to the limited visa that I am asked to consider and to the respondent’s position that the applicant would be liable to be removed[22] notwithstanding his still pending judicial-review application were I to affirm the decision under review. I do not wish to simplify the weighing process, but I these are clearly matters that have influenced my deliberations and my balancing of all the various factors required to be addressed in my review.
[22] He would be liable to be removed but Mr Hutton could not say whether he would in fact be promptly removed. He pointed out that there were no imminent plans to remove him, but that is as far as he could take matters.
CONCLUSION AND FORMAL DECISION
Having regard to all matters, I have concluded that the preferable decision in this case, on balance, is not to exercise the discretion under section 501(1) of the Act to refuse the applicant a bridging visa. This was my formal decision delivered on 2 July 2025.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.

....................[SGND].....................
Tribunal Officer

Dated: 23 July 2025

Dates of hearing: 25 and 26 June 2025

Advocate for the Applicant:

A Battisson

Advocate for the Respondent: J Hutton

Dates of hearing:	25 and 26 June 2025
Advocate for the Applicant:	A Battisson
Advocate for the Respondent:	J Hutton