KYRC and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1167
•28 July 2025
KYRC and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1167 (28 July 2025)
Applicant/s: KYRC
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3608
Tribunal:Senior Member P Spender
Place:Canberra
Date:28 July 2025
Decision:The Tribunal sets aside the reviewable decision and makes a decision in substitution to revoke the cancellation of KYRC’s visa.
.........................[SGD]...................................
Senior Member P. Spender
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – other considerations – legal consequences of cancellation – applicant is a stateless person – permanent protection visa – Non-Revocation Decision is set aside and substituted
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW) s 7
Migration Act 1985 (Cth) ss 36, 48A, 48B, 189, 196, 197C, 197D, 198, 499, 500, 501, 501CA, 501E
Migration Regulations 1994 (Cth) reg 2.12AA
Legislative Instruments
Migration (Regional Processing Country—Republic of Nauru) Designation (LIN 23/017) 2023
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BAL19 v Minister for Home Affairs [2019] FCA 2189
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
Byers and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 183
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
DOB18 v Minister for Home Affairs [2018] FCA 1523
Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049
FRH18 v Minister for Home Affairs [2018] FCA 1769
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
Nigro v Secretary to the Department of Justice [2013] VSCA 213
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Pavey and Minister for Home Affairs (Migration) [2019] AATA 4198
PRSY and Minister for Immigration and Multicultural Affairs [2025] ARTA 983
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540
Wallis and Minister for Immigration and Multicultural Affairs [2024] ARTA 624
YLLP and Minister for Immigration and Citizenship (Migration) [2025] ARTA 998
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
Decision under review
On 10 August 2023, the Applicant's visa (Class XA Subclass 866 protection visa) was cancelled under s 501(3A) of the Migration Act 1985 (Cth) (the Act) (Cancellation Decision).[1] This was because the applicant had a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more, due to his conviction on 4 August 2023 for the supply of a prohibited drug equal to or exceeding the commercial quantity (index offence),[2] and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
[1] G15 HB107-113. In this decision a reference to ‘G’ refers to the G documents and ‘HB’ refers to the Hearing Book in the proceedings. ‘SFIC’ refers to a Statement of Facts and Contentions. References to the ‘tribunal’ refer to the Administrative Review Tribunal generally whereas ‘Tribunal’ refers to the presently constituted tribunal.
[2] G15 HB108, sections 501(6)(a) and 501(7)(c) of the Act
On 13 March 2025, the Minister's Department received representations from the applicant to have the Cancellation Decision revoked under s 501CA of the Migration Act.[3]
[3] G16 HB114-152
On 7 May 2025, the delegate found that the power under s 501CA(4) of the Act to revoke the Cancellation Decision made under s 501(3A) was not enlivened (Non-Revocation Decision or Reviewable Decision).[4] The applicant was notified of the Non-Revocation Decision by letter dated 7 May 2025 sent to his representative by email.[5]
[4] G4 HB39
[5] G3 HB25 ff
On 15 May 2025 the applicant applied to the tribunal for review of that decision.[6]
[6] G2 HB5-18
Background
KYRC (K) was born in Iran in 1987. Prior to his birth, both of his parents had been deported from Iraq to Iran and, due to them being deported nationals of Iraq without papers to support their identities, he was stateless from birth.[7] K also claimed that due to his Arab ethnicity he suffered targeted discrimination from the Iranian authorities. Additionally, he claimed that if he was returned to Iran, he feared persecution as a result of his imputed political opinion as a returnee from a Western country.[8]
[7] G51 HB325-326
[8] G51 HB325
In 2008 K married HSN in Iran and in 2009 their daughter, RV, was born. In 2010 K arrived in Australia by boat and was detained in immigration detention at Christmas Island. He made two separate attempts on his life during this period.[9]
[9] G36 HB261
In 2011 K was granted a Subclass 866 permanent protection visa. A decision recommending that K is owed protection was handed down on 12 October 2011. The basis for the recommendation was that K had no legal avenue to return to Iran because stateless persons are not legally permitted to enter the country, and that, despite the possibility of attaining Iraqi citizenship based on his parentage, K would face a real risk of persecution if he were to return to Iraq due to his particular group (stateless returnees) and his religion (Shiite Muslim). The delegate concluded that K satisfied s 36(2)(a) of the Act with respect to Iraq.[10] The delegate stated as follows:
In the course of considering an application, the delegate made a protection finding within the meaning of paragraph 197C(5)(a) of the … Act.
This means that subsection 197C(3) of the Act will prevent K from being involuntarily removed to Iraq, unless a decision is made under section 197D of the Act that a protection finding would no longer be made.[11]
[10] G51 HB325-326
[11] G51 HB326
In 2013 HSN and RV joined K in Australia and in 2014 a second daughter, DV, was born to K and HSN. In 2016-2017 K and HSN began to have problems in their relationship, and they separated. In 2017 a son, HV, was born to K and HSN.
In 2017 K was charged with drug related and other offences. On 29 September 2021 K was sentenced to an intensive correct order for property, driving and drug-related offences. In 2022 K was arrested and remanded in custody with respect to drug related offences[12] and on 4 August 2023 K was convicted of the index offence and sentenced to 3 years imprisonment with a non-parole period of one year and 9 months.[13]
[12] G7 HB78
[13] G6 HB57-64
On 16 December 2024 K was granted parole release from custody[14] and taken into immigration detention and on 17 May 2025 K was released into the community on a Subclass 70 Bridging Visa R (BVR).[15] He has lived with his family since. He is on parole and the reporting conditions have recently changed from weekly to fortnightly.[16]
[14] G23 HB182
[15] Applicant’s SFIC [10], respondent’s SFIC [61]
[16] Transcript 17 July 2025 page 178
THE HEARING AND THE EVIDENCE
The proceedings were heard by the Tribunal on 16 and 17 July 2025. The applicant was represented by Mr Nikjoo of Nikjoo Lawyers, and the respondent was represented by Mr Fyfe of Minter Ellison. The documentary evidence consisted of the following material:
(a) Exhibit HB – the hearing book prepared by the respondent (HB) which contained the documents and other material provided by the parties including their statements of facts and contentions (SFIC) and the G documents.
(b) Exhibit A1 – an undated letter from the New South Wales Corrective Services that was served by the applicant on 10 July 2025.
The following people gave evidence at the hearing on 16 July 2025:
(a) K (the applicant)
(b) HSN
(c) RV
The applicant and HSN were cross-examined by Mr Fyfe. Following completion of the oral evidence, the parties’ representatives made oral submissions on 17 July 2025. I refer to the evidence and submissions below.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) (substantial criminal record), on the basis of s 501(7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is set out in s 501(6). Notably, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7)). For the purposes of s 501(6)(a), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under
s 501CA(4) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.Where the cancellation decision is not revoked, the applicant may apply to the Tribunal for review of the non-revocation decision under s 500(1)(ba) of the Act.
Therefore, the issues for determination by the Tribunal are as follows:
(a)whether the applicant passes the character test for the purposes of s 501 of the Act, as defined in s 501(6);[17]
(b)if not, whether there is another reason why the original cancellation decision should be revoked.[18]
[17] Section 501CA(4)(b)(i)
[18] Section 501CA(4)(b)(ii)
The applicant properly conceded that he does not pass the character test under s 501(6)(a) because he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7).[19] Therefore the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
[19] Applicant’s SFIC [12]
Hence the question in issue is whether there is ‘another reason’ s 501CA(4)(b)(ii) why the original cancellation decision should be revoked. As stated by Deputy President McMillan KC in Byers and Minister for Immigration and Multicultural Affairs[20]:
Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to examine the factors relevant to a decision to assess if there is ‘another reason’ why the Cancellation Decision should be revoked. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and to undertake an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked. … Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[21]
[20] [2024] ARTA 183
[21] Byers and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 183 at [29] [footnotes omitted]
THE DIRECTION
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) must be applied. The relevant provisions of the Direction are set out in Annexure A below.
The Tribunal’s task in applying the Direction was discussed by the Full Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[22] (CRNL) who stated:
[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction … is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.[23]
[22] [2023] FCAFC 138
[23] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28]
The Full Court’s comments in CRNL about the ‘balancing process’ involved in applying the Direction are particularly enlightening:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[24]
[24] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35]
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In accordance with paragraph 8.1(2) of Direction 110, two key factors must be taken into account when assessing whether a non-citizen should be permitted to remain in Australia:
(a)the nature and seriousness of the non-citizen’s past conduct; and
(b)the risk posed to the Australian community should the non-citizen reoffend or engage in further serious conduct.
THE NATURE AND SERIOUSNESS OF THE CONDUCT
The relevant factors that the Tribunal must have regard to under this consideration in the present case are the following:
(a) and (b) whether the crimes fall into the category of ‘very serious’ or ‘serious’
(c) the sentence imposed by the courts …
(e) the frequency of the non-citizens offending and/or whether there is any trend of increasing seriousness
(f) the cumulative effect of repeat offending …
(h) whether the non-citizen has re-offended 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.
Applicant’s submissions
The applicant argued that the applicant’s conviction on 4 August 2023 for the supply of a prohibited drug in a quantity equal to or exceeding the commercial threshold does not fall within the specific categories expressly identified in the Direction as ‘very serious’ or ‘serious’ offences.[25]
[25] Applicant’s SFIC [20]
Further, the offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. However, the applicant was sentenced to a term of 3 years imprisonment with a non-parole period of one year and 9 months.[26] The applicant argued that this outcome reflects the sentencing court’s assessment that the offending was of low to moderate objective seriousness.[27] As stated by Judge Arnott SC in the District Court:
I consider the objective seriousness of this offence to fall slightly below the midpoint between the lower part and middle part of the range of offences of this type.[28]
[26] G7 HB65-81
[27] Applicant’s SFIC [21]
[28] G7 HB74
His Honour found that the applicant’s motive for committing the offence was to support his methamphetamine addiction and his family finances and debts.[29] During the sentencing His Honour also acknowledged that the applicant had had a prolonged history of trauma which had commenced in early childhood, including:
… sexual and physical abuse, living in poverty, exposure to war, the death of his father at a young age and limited education. After arriving by boat as a refugee, he then experienced prolonged detention and separation from his wife and children. After separating from his wife, he formed a relationship with his girlfriend who died shortly after she gave birth. I consider his moral culpability for the offences is reduced because of his traumatic experiences commencing childhood and the weight to be given to general deterrence is reduced. However it is also relevant to my assessment of his prospects of rehabilitation.[30]
[29] G7 HB74
[30] G7 HB77
The applicant argued that he was suffering from a significant drug addiction, traumatic and past and complex PTSD which substantially impaired his judgement and motivated his actions to serve his own dependency-driven needs.[31] The applicant further argued that this distinction is critical in properly understanding the context of the offending and the applicant’s rehabilitative prospects.[32] The applicant drew the Tribunal’s attention to the fact that the sentence was substantially below the applicable statutory maximum, indicating that the offences were not regarded by Judge Arnott SC as falling within the most serious category. This is a significant factor under paragraph 8.1.1(1)(c) when determining the weight to be given to the protection of the Australian community, as it reflects a lower level of objective seriousness in the applicant’s criminal conduct.[33]
[31] Applicant’s SFIC [24] citing G7 HB80
[32] Applicant’s SFIC [24]
[33] Applicant’s SFIC [25], citing Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 at [91] as per North J, and Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049
Respondent’s submissions
The respondent argued that the applicant’s index offence involved the supply of a commercial quantity of a prohibited drug which the Minister contended should be considered very serious. The Minister pointed to the circumstances of the index offence in that it involved three actual supplies totaling 177.95 grams – including one ‘rip-off’ or fraudulent transaction[34] - and one agreement to supply a further 140g, resulting in a total quantity that comfortably exceeded the 250g commercial threshold for this type of drug.[35] The Minister further argued that at the time of the offending, the applicant was subject to an aggregate intensive correction order.[36]
[34] Respondent’s SFIC [27] citing G7 HB68
[35] Respondent’s SFIC [27] citing G7 HB69
[36] Respondent’s SFIC [27] citing G7 HB80
The Minister referred to the applicant’s criminal history which involves convictions for attempting to dispose of stolen property, goods suspected of being stolen and break, enter and stealing in company.[37] The Minister submitted that these types of crimes are to be viewed very seriously. The quantity of 317g involved in the index offence combined with the repeated nature of the transactions and the involvement of an undercover police officer (UCO), reflects a level of planning and commerciality that elevates the seriousness of the conduct. Although the sentencing judge described the offending as falling slightly below the midpoint of the relevant range, his Honour nonetheless acknowledged the applicant’s intent and the structured nature of the supply arrangement.[38]
[37] Respondent’s SFIC [27] citing G6 HB57-64
[38] Respondent’s SFIC [28]
The Tribunal quotes from Judge Arnott SC on this point as follows:
His role, as the Crown submitted, was above street-level dealing in small amounts to others for personal use. His role was what might be described as a mid-level drug dealer evidenced by him having access to the large quantity supplied or agreed to be supplied on various occasions. I accept … there is no evidence the offender was part of a large-scale organised drug supply operation or had knowledge of the scale of such an organisation or financially contributed to the cost of setting it up or had some managerial or decision-making function. However, it is important to focus on what he did. He negotiated price with the UCO, sourced the drug and on a number of occasions completed the drug transaction with the recipient. I accept … there is no evidence he stood to share in the profits of such an organisation as distinct from receiving payment for his role. …
In conformity with the agreed facts, I am unable to find whether he believed the substance supplied on 1 March was methylamphetamine or a rip-off purporting to be a genuine deal. Nevertheless, the authorities make clear drug rip-off supply offences remain objectively serious.[39]
[39] G7 HB70
The Minister further contended that where a court has sentenced an offender to a term of custodial imprisonment this must be viewed as a reflection of the objective seriousness of the offences involved.[40] The respondent also referred to the other offences in the applicant’s criminal history commenting that ‘[w]hile the applicant’s earlier property-related offending may be viewed as less serious in isolation, the progression to more serious conduct, particularly the aggravated break and enter offence, demonstrates an escalation in criminal behaviour’.[41]
[40] Respondent’s SFIC [29] citing Pavey and Minister for Home Affairs (Migration) [2019] AATA 4198 at [44].
[41] Respondent’s SFIC [31]
Further, argued the respondent, the offence of aggravated break and enter is a serious indictable offence and reflects a heightened level of criminal intent and disregard for the law. The fact that the applicant was sentenced to an intensive corrections order[42] in 2021 which is a custodial sentence under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) reflects the objective seriousness of the offence. The Minister stated that the ‘applicant’s conduct in this regard is indicative of a deliberate and sustained pattern of offending that goes beyond opportunistic or isolated incidents’.[43]
[42] G6 HB60
[43] Respondent’s SFIC [32]
While the Minister conceded that driving offences may not always be viewed as serious in isolation, the frequency and nature of the applicant’s driving history also demonstrates a disregard for public safety and the authority of the courts.[44] Further, the Minister submitted that when viewed cumulatively, the applicant's drug, property, and driving-related offending demonstrates a sustained pattern of unlawful behaviour over an extended period.[45] In making the submissions, the Minister properly drew the Tribunal’s attention to subparagraphs 8.1.1(1)(e) and 8.1.1(1)(f) of the Direction, which obliges the tribunal to take into account the increasing seriousness of the offences committed by the applicant and the cumulative effect of repeated offending.
[44] Respondent’s SFIC [34]
[45] Respondent’s SFIC [35]
During oral submissions, Mr Fyfe pointed to the comments made by the Magistrate McAnulty on 29 September 2021 when sentencing K to the intensive correction order that are relevant to subparagraph 8.1.1(1)(h) of the Direction, which requires the Tribunal to consider whether the applicant has reoffended since being formally warned. Magistrate McAnulty stated:
Hopefully, Mr [K] this [ends] what has been a pretty sad and sorry saga for you and no doubt your family at the end of the day. If you commit fresh offences, you are at your limit for a community based order. What that … means is that if you commit fresh offences, you go to the Parole Authority. You also come here. You are at your limit which means that they cannot impose any further community based orders. When there are a couple of orders running, that is the limit. So if that is not an incentive to stay out of trouble, I don’t know what is.[46]
[46] G9 HB87
In reply, the applicant argued that while his criminal history extends beyond the index offence, the offending occurred during a period of significant personal hardship which included the breakdown of his marriage, the development of a substance dependency and considerable financial and emotional distress. He also argued that the offending did not involve malicious intent or any propensity for violence.[47]
[47] Applicant’s SFIC [27]
Importantly, the applicant said he has taken full responsibility for his actions and has consistently expressed genuine remorse for the harm caused to the community, his family and himself. This remorse is substantiated by psychological assessments and his personal statements, all of which reflect insight into the consequences of his drug use and offending behaviour.[48] Therefore, while he takes full responsibility for his actions, he nevertheless argued that his post-sentence conduct and engagement suggest a significantly reduced risk to the Australian community.[49]
[48] Applicant’s SFIC [28] citing G18 HB165
[49] Applicant’s SFIC [29]
DISCUSSION OF THE NATURE AND SERIOUSNESS OF THE CONDUCT
The Tribunal agrees with the Minister that the index offence, in combination with the applicant’s criminal history, means that the applicant’s conduct is properly characterised as ‘serious’. The Tribunal has also taken into account the sentence imposed by District Court for the index offence and notes that it was regarded by Judge Arnott SC as falling ‘slightly below the midpoint between the lower part and the middle part of the range for offences of this type.’[50] Even though the conduct is properly characterised as serious, the judge took into account mitigating factors. As regards the fact that the amount involved in the index offence was of the commercial quantity, the Tribunal notes the comments of the sentencing judge that:
there is no evidence the offender was part of a large-scale organised drug supply operation or had knowledge of the scale of such an organization or financially contributed to the cost of setting it up or had some managerial or decision-making function. However, it is important to focus on what he did. He negotiated price with the UCO, sourced the drug and on a number of occasions completed the drug transaction with the recipient. I accept … there is no evidence he stood to share in the profits of such an organisation as distinct from receiving payment for his role.[51]
[50] G7 HB74
[51] G7 HB73
Although the conduct is properly characterised as serious, the Tribunal agrees with the applicant that the overall question about the protection of the Australian community involves the further step of considering the risk to the Australian community should the applicant commit further offences. This is dealt with in the next section when discussing paragraph 8.1.2 of the Direction.
RISK TO THE AUSTRALIA COMMUNITY
At paragraph 8.1.2, the Direction requires decision-makers, when considering the need to protect the Australian community from harm, to 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 it may be repeated may be unacceptable. Further, in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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 non-citizen reoffending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.
Applicant’s submissions
The applicant acknowledged that the Tribunal is required to consider both the likelihood and the consequences of future offending.[52] However, he argued that the respondent’s assertions (see below) that the risk that the applicant will reoffend is speculative and unsupported by the applicant’s current rehabilitative evidence. Further, the respondent’s assertion of ‘ongoing risk’ appears to be based primarily on historical conduct without adequate regard to the applicant’s more recent behaviourial changes, medical diagnoses, and meaningful engagement in rehabilitation while in custody. Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection[53] (Tanielu) acknowledged that the task is a predictive one, but such a prediction must be grounded in current facts—not mere extrapolation from a troubled past.[54] The applicant contended that he has demonstrated remorse, insight, and a sustained commitment to reform, including successful participation in structured programs aimed at addressing addiction and trauma—the root causes of his offending. These developments materially reduce the likelihood of further criminal conduct.[55] Further, the applicant’s circumstances have changed markedly, and the assessment must take into account the dynamic nature of rehabilitation, not merely past conduct in isolation.
[52] Applicant’s SFIC [35] citing Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [95]
[53] [2014] FCA 673
[54] Applicant’s SFIC [36]
[55] Applicant’s SFIC [37]
The applicant conceded that although it was true that his post-rehabilitation behaviour in the community is yet to be tested, ‘this cannot be determinative of future risk in and of itself’ and ‘all rehabilitation is, by nature, untested until a person is given an opportunity to demonstrate change in the community’.[56] The applicant submitted that he had ‘articulated clear post-release plans, including ongoing counselling and community support’.[57] Further, to ‘deny him the opportunity to implement these plans purely on the basis of untested potential improvement would be both premature and unfair’.[58]
[56] Applicant’s SFIC [39]
[57] Applicant’s SFIC [39] citing G17 HB153-164
[58] Applicant’s SFIC [39]
As to the question of whether the applicant was making excuses for his past behaviour as contended by the respondent, the applicant replied that he has never sought to excuse his actions; rather, he has openly acknowledged his wrongdoing and has taken steps to address the underlying financial, psychological, and addiction-related drivers.[59]
[59] Applicant’s SFIC [40]
During the hearing, Mr Nikjoo referred to Judge Arnott SC’s sentencing comments on the question of rehabilitation as follows:
I consider he has reasonable prospects of rehabilitation and not reoffending provided, as Ms Georges has noted, he addresses his past inclination to use illicit drugs, adopts better means of coping with heightened stress and engages in pro-social and constructive daily activities. He states he has been illicit drug-free in custody. He has expressed a desire to obtain employment perhaps in a factory or as a painter upon his release from custody, to reconnect with his daughter and support his family and to move out of his current suburb which he describes as “not good”. He has been engaging in psychotherapy treatment in custody and says he wants to continue treatment when released.[60]
[60] G7 HB79
Respondent’s submissions
The respondent agreed with the applicant that the Tribunal should consider the likelihood and consequences of further offending.[61] However, the Minister contended that there was a very real ‘ongoing risk’ that the applicant will reoffend, for the following reasons.
[61] Respondent’s SFIC [38] citing Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [95]
First, the applicant has a lengthy and entrenched criminal history involving serious drug, property, and driving offences. His offending has escalated in both frequency and seriousness and has occurred when he was subject to community-based orders, including an intensive correction order.[62] The applicant has repeatedly failed to comply with court-imposed obligations and has continued to offend despite prior warnings and opportunities for rehabilitation.[63]
[62] Respondent’s SFIC [39]
[63] Respondent's SFIC [39]
Second, although the applicant has expressed remorse and has engaged in rehabilitation programs while in custody Judge Arnott SC’s comments about his rehabilitation were contingent on his ability to address his substance abuse and engage in prosocial and constructive daily activities.[64] The Minister contended that the applicant’s history of relapse following previous periods of incarceration and non-compliance with therapeutic conditions raises concerns about his capacity to maintain abstinence and avoid reoffending in an unsupervised environment in the community with all its pressures and temptations.[65]
[64] Respondent’s SFIC [40]
[65] Respondent’s SFIC [40]
Third, the applicant stated that his offending was motivated by a desire to obtain quick money to support his family, pay off debts and maintain his drug use. The Minister submitted that the fact that the applicant was willing to engage in serious criminal conduct – including the supply of commercial quantity of methamphetamine – in order to meet personal and financial needs is deeply concerning and suggests a high likelihood of reoffending in the absence of sustained intervention and support.[66] The Minister asserted that should the applicant continue to reoffend the risk to the Australian community is significant and the Tribunal should have a very low risk tolerance considering the seriousness of the applicant’s offending, referring to paragraph 8.1.2(1) of the Direction.
[66] Respondent’s SFIC [41]
During the hearing, Mr Fyfe referred the Tribunal to the report of a psychologist, Dr Amanda Georges, dated 5 June 2023.[67] This report is referred to in the remarks of the sentencing judge as stated above. In the report, Dr Georges assessed K’s risk of recidivism as follows:
Mr. [K’s] level of risk of recidivism and criminogenic needs was assessed as Moderate Risk/Needs, scoring around the 79th percentile relative to a large male incarcerated population. There is approximately 48.1% chance of recidivism. Based on this assessment of risk, Mr [K] will require intensive levels of service in a secure setting or close supervision in the community with maximum probation.[68]
[67] G35 HB241-254
[68] G35 HB248
DISCUSSION OF RISK TO THE AUSTRALIAN COMMUNITY
Both parties relied upon the judgment of Mortimer J (as she then was) in Tanielu, referring to the judgment of the Victorian Court of Appeal in Nigrov Secretary to the Department of Justice[69] (Nigro). In Tanielu her Honour stated:
[69] [2013] VSCA 213
[95] The Court [in Nigro] summarised the task in determining “unacceptable risk” in this way (at [111]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[96] At [124]-[125], the Court described the difficulty inherent in prediction of risk:
Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have.
The Tribunal notes her Honour’s observation that the prediction of risks is in a large part a matter for expert opinion. The Tribunal was provided with the expert opinion of Dr Georges which is extracted above which assessed the applicant as having a moderate risk of recidivism. As stated above, this report was referred to by Judge Arnott SC in his sentencing remarks for the index offence and it is noteworthy although his Honour considered that K had reasonable prospects of rehabilitation and not reoffending there were some preconditions: K needs to address his past inclination to illicit drugs and adopt a better means of coping with stress and engaging in prosocial and constructive daily activities. Dr Georges’ report is now two years old and Mr Fyfe commented that this is the best evidence that is available to the Tribunal.[70] By contrast, Mr Nikjoo referred to more recent evidence about the applicant’s engagement with programs offered by Odyssey House[71] and the Community Restorative Centre[72] which show the applicant’s intention and commitment to follow the rehabilitation programs that are available to him.[73]
[70] Transcript 17 July 2025 page 185
[71] Letter dated 8 July 2025 from Case Manager of Odyssey House HB379
[72] Letter dated 9 July 2025 from Community Restorative Centre to the Administrative Review Tribunal HB380-381
[73] Transcript 17 July 2025 pages 199-200
As regards the use of illicit drugs, the Tribunal notes that the applicant testified during the tribunal proceedings that he has ceased using illicit drugs.[74] This testimony is supported by his patient health summary dated 20 January 2025, which is based on a physical examination on 24 December 2024. The author noted that the applicant has ‘nil current substance use’.[75]The case note reports during his period in custody show that he regularly attended appointments for psychological assessment.[76] The material filed by the applicant demonstrated regular attendance at the Equips[77] and STARTTS[78] program.
[74] See for example, G17 HB161 [78] and transcript 16 July 2025 pages 46-47
[75] G20 HB170
[76] G24 HB183-195
[77] See for example, HB238, HB240
[78] See for example, HB235
The applicant and his wife, HSN, both testified that they are determined to commit to the programs. The applicant was very emphatic about this in his oral testimony and statement, commenting that this commitment was to his family and in particular his wife.[79] HSN also testified to undertaking significant supervision of the applicant for these activities.[80] Mr Nikjoo noted that the applicant has already achieved some progress in this respect because his parole reporting conditions have been reduced from weekly to fortnightly.[81] He submitted that there was an ‘ocean of difference’ between [2023] and now.[82]
[79] See for example transcript 16 July 2025 page 67
[80] See for example transcript 16 July 2025 pages 103-104
[81] Transcript 17 July 2025 page 178
[82] Transcript 17 July 2025 page 178
The Tribunal had no equivalent evidence to Dr Georges’ report that was relied upon by the sentencing judge in 2023. In that respect, the Tribunal agrees with the respondent that it is early days given that the applicant has only been recently released from detention. However, the Tribunal notes that K’s current circumstances appear to be very different to those that operated in 2023, and I consider that the applicant has articulated clear post release plans and demonstrated a commitment to ongoing counselling and community support.
Nevertheless, at this stage, I have insufficient evidence to effectively assess the likelihood of him engaging in further criminal or other conduct, taking into account the evidence on the risk of him reoffending and the evidence of the rehabilitation achieved as of July 2025, giving weight to the time spent in the community since his most recent offence. As stated in the timeline above, this has only been for about 5 weeks.
CONCLUSION ON RISK TO THE AUSTRALIAN COMMUNITY
The last expert’s report that assessed K’s likelihood of reoffending and achieving rehabilitation was made in June 2023. Although his circumstances appear to be significantly more likely to achieve these goals, at this stage it is too early to come to a firm conclusion on the evidence that is available to the Tribunal.
CONCLUSION ON PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The applicant conceded that this primary consideration weighs against him due to his past conduct but submitted that the weight attributed to it – whether considered individually or cumulatively – should not be so great as to outweigh the compelling considerations in favour of revocation.[83] The respondent submitted that on balance and noting the protection of the Australian community is generally to be given greater weight than other considerations, as per paragraph 7(2) of the Direction, this factor weighs heavily against revocation.[84]
[83] Applicant’s SFIC [44]
[84] Respondent’s SFIC [43]
Given the serious nature of the applicant’s previous offending and the uncertainty associated with whether he is likely to reoffend or has achieved the requisite level of rehabilitation, the Tribunal concludes that primary consideration 1, the protection of the Australian community, weighs heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
No allegations of family violence were made in the proceedings before the Tribunal, so this consideration is neutral.
PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) requires the Tribunal to consider any impact of the decision on the non-citizen’s immediate family members in Australia where those family members are (inter alia) Australian citizens. Paragraph 8.3(2) requires the decision-maker to have regard to how long the non-citizen has resided in Australia and the strength, duration and nature of any family or social links with (inter alia) Australian citizens.
The applicant has immediate family members in Australia who are Australian citizens, including his wife HSN and 4 children.[85] Although at the time of the commission of the index offence and the sentencing the applicant was separated from his wife, the recent statements made by K and HSN and the testimony given by them in the tribunal proceedings indicate that they have reconciled.[86] HSN’s evidence outlined the emotional and financial hardship she and the children have experienced during the applicant’s incarceration and subsequent immigration detention. The applicant contended that this evidence underscores the significant support role that the applicant fulfils within the family unit. HSN also expressed genuine concern in the written and oral testimony that his removal would have a very negative impact on the family’s well-being.[87] Her evidence was supported by the report of a psychologist, Dr Kasim Abaie, who has diagnosed HSN with adjustment disorder with mixed anxiety and depressive mood, PTSD and insomnia.[88]
[85] Statement of HSN dated 5 March 2025, G 27 HB208-211, Statement of K dated 6 March 2025 G17 HB153-164
[86] See, for example, G17 HB161 [78] and G27 HB210 [27]
[87] G27 HB208-11, Transcript 16 July 2025 pages 107-108
[88] G27 HB213-214
The Minister accepted that these circumstances militate in favour of revocation.[89]
[89] Respondent’s SFIC [47]
In relation to paragraph 8.3(2) of the Direction, the Minister noted that the applicant has resided in Australia for approximately 14 years and began offending approximately 3 years after his arrival and has continued to offend regularly since that time.[90] Therefore, the Minister contended, this pattern of offending significantly tempers the weight that can be given to the duration of his residence in Australia.[91]
[90] Respondent’s SFIC [48]
[91] Respondent’s SFIC [48]
The applicant also provided evidence of other family or social ties in Australia. There was a statement from a friend, THA, that indicated that the applicant was a good person who had made poor choices and highlighted the hardship his family would face if the applicant were removed.[92]
[92] G29 HB225-227
Overall, the Minister accepted that this consideration weighs in the applicant’s favour however argued that this consideration should not attract significant weight and does not outweigh the heavy weight of the primary consideration of the protection of the Australian community (as discussed above) and the expectations of the Australian community (as discussed below).[93] Conversely, the applicant argued that the applicant’s strong and enduring familial ties in Australia weigh heavily in favour of revocation.[94]
[93] Respondent’s SFIC [50]
[94] Applicant’s SFIC [49]
CONCLUSION ON PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal considers that the applicant has established that there are strong and enduring family ties with Australian citizens, in particular his wife and children. The statement provided by his wife cogently demonstrated her hope that he could be released so that he could provide support to care for the children and that she could finish her studies and look for work.[95] She expressed the disappointment that the children felt when he was released from prison and taken into immigration detention.[96] Evidence was also led about her caring for the child MA by visiting her once a month with the other children.[97] Although the Tribunal acknowledges the respondent’s argument about the applicant commencing offending relatively early after coming to Australia, I do not consider that this element outweighs the family ties that have been established by the applicant. The social ties referred to in the statement of THA have been afforded neutral weight.
[95] G27 HB211
[96] G27 HB210
[97] G40 HB275
The Tribunal concludes that this consideration weighs heavily in favour of revocation.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN
Pursuant to paragraph 8.4 of the Direction, decision-makers must make a determination whether a non-revocation decision under s 501CA of the Act is, or is not, in the best interests of a child affected by the decision. The applicant is the father of four minor children, all of whom are Australian citizens: RV (16), DV (10), HV (8), and MA (5). The three eldest children were born from his marriage to HSN while MA is the child from a later relationship with another woman, who sadly passed away shortly after giving birth.
Applicant’s submissions
The applicant referred to the evidence that had been led in the proceedings (which is considered below) to argue that this primary consideration weighs significantly in favour of revocation and, in and of itself, constitutes ‘another reason’ justifying a favourable outcome in this review.[98]
[98] Applicant’s SFIC [54]
Respondent’s submissions
The Minister accepted that this consideration weighs in favour of revocation.[99]
[99] Respondent’s SFIC [55]
DISCUSSION OF PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN
As stated in the earlier submission made by the applicant to the delegate, the negative impact on minor children in this case is magnified by the number of children and their young ages.[100]
[100] G17 HB134
The Direction requires the decision-maker to give individual consideration to the best interests of each child to the extent that their interests may differ. I will consider the interests of the individual children below but note before doing so that the best interests of each of the children in this case is also reflected in their cumulative commitment to each other, the parents and the family. The evidence shows that all of the children care for each other, for the parents and for the family collectively. Although the best interests of the child MA may differ from the other three children, the other members of the family are very committed to her welfare and well-being. [101]
[101] For a discussion of this primary consideration see Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
The collective commitment of the family was demonstrated by their acts and not just their words. For example, an important part of the applicant’s case was that he has maintained regular contact with his wife and children during periods of detention. This assertion was corroborated by the log of video calls that were made between the applicant and his family (including his wife HSN and his children RV, DV and HV) during the period 24 May 2022 to 17 October 2024.[102] As stated above, the applicant was granted parole on 16 December 2024. The log indicates that the contacts made by the applicant during his imprisonment were very frequent. As stated above, this document supports the applicant’s evidence that he is in frequent contact with his wife and children.
[102] G26 HB197-207: this document shows “visits” made by video between the applicant and RV, DV and HV between 24 May 2020 and 17 October 2024
When considering the best interests of the three older children (RV, DV, and HV) the Tribunal notes that the applicant returned to living with them full-time from 13 January 2021 until March 2022. Although he was physically separated from them when he returned to custody on 18 March 2022, he maintained regular contact with them via regular phone and video calls.[103] This is relevant to the nature and duration of the relationship between the child and the non-citizen pursuant to paragraph 8.4(4)(a) of the Direction.
[103] G26 HB 197-207
The Tribunal is satisfied (pursuant to paragraph 8.4(4)(b) of the Direction) that K is likely to play a positive parental role in the future. This is based on the statements and oral testimony of K, HSN and RV. All three witnesses expressed positivity about K assuming greater parental responsibility after his release from custody and detention. Similarly, all three witnesses expressed their view that the interaction between K and each of the three children is beneficial to the children and being separated from him would be detrimental to each of the children (pursuant to paragraph 8.4(4)(d) of the Direction) even considering the time that he has spent in prison and immigration detention. This is substantiated by the discussion above about the applicant maintaining contact with his family during his imprisonment and detention.
Pursuant to paragraph 8.4(4)(e) of the Direction, in relation to each of the three older children there is another person who plays a parental role, that is their mother HSN. MA is currently in foster care, and I can infer that she has foster parent/s that would play a parental role. MA’s circumstances are discussed separately below.
The evidence in support of remainder of the relevant factors that must be considered by the Tribunal under paragraph 8.4(4) of the Direction and is discussed below in the relation to the individual children.
RV – date of birth June 2009
RV is currently aged 16 years old. She is the applicant’s eldest child and the only one born in Iran. The applicant left RV shortly after she was born. He was reunited with RV in 2013 and lived with RV for approximately 3 to 4 years before he left the family home.[104]
[104] G16 HB137 [119]
RV provided a statement and gave oral testimony during the tribunal hearing.[105] In the statement, she expressed ‘a sense of shame and guilt’ if anyone asked about her father and a ‘deep anxiety … if anyone finds out that he has not really been involved in my life’ because of his imprisonment.[106] In her oral testimony she expressed an interest in sharing her achievements and school events with her father as well as her mother because ‘I know how much he cares for us and I know how hard it was for him to also be separated from us’.[107] RV’s achievements are impressive, including the captaincy of her primary school[108] and she mentioned during the hearing that her father had told her that she needs to succeed at school, not just for herself but for her mother as well.[109]
DV – date of birth July 2014
[105] Thereby providing her own views pursuant to paragraph 8.4(4)(f)) of the Direction
[106] G28 HB220, providing evidence of the factor in paragraph 8.4(4)(c)) of the Direction: the impact of the non-citizen’s prior conduct
[107] Transcript 16 July 2025 page 153
[108] G28 HB221
[109] Transcript 16 July 2025 page 154
DV is currently aged 10 years. The applicant’s and HSN’s statements both commented that the applicant has the closest relationship with her because he has spent the most time with her.[110] Although he has been physically separated from her since 18 March 2022 he maintained regular contact by way of phone calls, video calls, drawings, letters, and paintings.[111] HSN testified that the applicant made a bracelet for DV while he was in custody.[112] In his statement, the applicant referred to DV is the ‘most sensitive of my children’ and he expressed his regret about being separated from her when he went to prison.[113]
HV – date of birth March 2017
[110] G17 HB 156 [37], G27 HB210 [24]
[111] See for example, the drawings at HB215 – 219
[112] Transcript 16 July 2025 page 109
[113] G17 HB157 [38]
HV is currently 8 years old and is the applicant’s only son. He and the applicant connect over conversations about sports such as soccer. HV has expressed the view that he has missed having a father in his life and would like the applicant to go to school and pick him up like the other children.[114] In their statements and oral testimony the applicant and HSN both refer to the importance of having a male role model for HV.[115]
MA - date of birth February 2020
[114] G17 HB157 [39]–[40]
[115] See for example, transcript 16 July 2025 pages 72 and 105
MA is the applicant’s youngest child. As stated above, her mother passed away shortly after giving birth. The applicant’s paternity has been confirmed by way of a DNA test.[116] In May 2020 the New South Wales Children’s Court made an order that MA be placed in foster care until she reaches 18 years.[117] The applicant filed an application for rescission of the care order in November 2021 which was unsuccessful. He contended that this was due to his subsequent offending.[118]
[116] G22 HB179 [14]
[117] G39 HB264-265
[118] G16 HB141 [141]
The applicant has since connected with MA by way of phone calls and indirectly through HSN and the applicant’s other children who visit MA approximately monthly.[119] The applicant has stated that his goal is to have MA ‘placed in my care’ together with HSN.[120] Currently MA is under the parental responsibility of the Minister for Families, Communities and Disability Services.[121] During the hearing, Mr Fyfe raised questions about what might be in MA’s best interest because this a matter to be determined by the New South Wales Children’s Court. The Tribunal recognises that there may be further steps that must be undertaken by the applicant to achieve his goal of having MA placed in his care, however I can infer from the evidence that is available, including MA’s care plan, that it is beneficial for MA to maintain contact with the family that includes her biological father.[122]
[119] G16 HB141 [142]
[120] G22 HB180 [25]
[121] G39 HB264-265
[122] G40 HB266-271
CONCLUSION ON PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN
The Tribunal concludes that this consideration weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF AUSTRALIAN COMMUNITY
Paragraphs 8.5(1) and (2) of the Direction state the Australian community's expectation that non-citizens should obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter and remain in Australia. The Tribunal must give effect to this norm.[123]
[123] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68], [73] per Charlesworth J and at [92]–[93], [100]–[104] per Stewart J
Applicant’s submissions
The applicant acknowledged that this primary consideration weighs against him. However, he submitted that it should not be afforded such weight – whether considered in isolation or in conjunction with other adverse considerations – as to outweigh the cumulative force of the other considerations that support revocation of the visa cancellation.[124]
[124] Applicant’s SFIC [59]
Respondent’s submissions
The respondent submitted that this primary consideration weighs in favour of non-revocation because the applicant committed a very significant breach of Australian law, and the community would expect the Australian government not to allow him to remain in Australia.[125]
[125] Respondent’s SFIC [58]
DISCUSSION AND CONCLUSION ON PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Tribunal agrees with the respondent that the applicant has committed a very significant breach of Australian law. As discussed above, the applicant’s criminal conduct was serious. However, at this stage the evidence as to whether there is an unacceptable risk of future reoffending is equivocal. Overall, given the safety of the Australian community takes the highest priority under paragraph 5.2(2) of the Direction, this primary consideration weighs moderately against revocation.
OTHER CONSIDERATIONS
The Tribunal must take into account the 'other considerations' set out in paragraph 9 of the Direction, where relevant.
LEGAL CONSEQUENCES AND EXTENT OF IMPEDIMENTS IF REMOVED
As submitted by the applicant, the Tribunal must consider the ‘legal and practical’ consequences of the Tribunal’s decision under paragraph 9.1 of the Direction.[126] Paragraph 9.2(1) of the Direction requires decision-makers to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country. Importantly, the applicant is a non-citizen covered by a protection finding made in 2011 for the purposes of paragraph 9.1.1 of the Direction. The applicant argued that the Tribunal should consider the possibility of removal to a third country, such as Nauru under paragraph 9.2(1).[127] The applicant’s arguments regarding the legal consequences and extent of impediments if removed were intermingled and the Tribunal will therefore deal with these two considerations in tandem. For this part of the decision, I will refer to the respondent’s submissions first because the applicant subsequently replied to them.
Respondent’s submissions
[126] Applicant’s SFIC [61], see BAL19 v Minister for Home Affairs [2019] FCA 2189 at [54], NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [207], FRH18 v Minister for Home Affairs [2018] FCA 1769 at [44], [60]
[127] Applicant’s SFIC [71]
Legal consequences
The Minister referred to the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[128] (NZYQ), which held that where the statutory duty to remove a non-citizen has arisen (e.g. pursuant to s 198 of the Act), detention of a non-citizen is not authorised by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen from Australia in the reasonably foreseeable future. Following NZYQ, the Department assessed the applicant as NZYQ-affected because he cannot be removed to Iraq and there is presently no third country to which he could be removed.[129]
[128] [2023] HCA 37
[129] Respondent’s SFIC [60]
The Minister accepted that, pursuant to paragraph 9.1.1(2) of the Direction, the applicant has been found to satisfy s 36(2)(a) of the Act such that a protection finding has been made with respect to the applicant and his removal to Iraq is not required nor authorised under s 198 of the Act. Further, the exceptions under s 197C(3)(c) do not currently apply to the applicant. The applicant also does not have a right to reside in Iran.[130]
[130] Respondent’s SFIC [60]
In light of the above, the applicant was granted a BVR on 7 May 2025 following the decision of the delegate not to revoke the cancellation of the protection visa, that is the decision under review.[131]
[131] Respondent’s SFIC [61]
Accordingly, the Minister argued that the direct legal consequence of a decision not to revoke the cancellation of the applicant's visa is that he will remain a lawful non-citizen as the holder of a BVR. If the Tribunal were to affirm the delegate's decision the applicant would not be able to apply for another visa due to the operation of s 501E of the Act and reg 2.12AA of the Migration Regulations 1994 (Cth), and he would be prevented from making a further application for a protection visa under s 48A of the Act unless Ministerial discretion is exercised under s 48B of the Act.[132]
[132] Respondent’s SFIC [61]
The applicant is subject to the mandatory conditions imposed on a BVR, which the Minister submitted are ‘not onerous to comply with, and do not involve a restriction of his liberty’.[133] The applicant is currently permitted to live and work in the community under the BVR. The Minister’s submission was based on the practicalities of the situation. During the hearing, Mr Fyfe conceded that there is a fundamental difference between a protection visa and a bridging visa which is temporary and subject to change by the Minister but said that in this case the operation of s 197C means that the applicant cannot be sent back to Iran because of Australia’s non-refoulement obligations. Although the applicant cannot be removed to Iran as it now stands this is contingent upon the operation of section 197C and 197D and if that were to be changed, he could be removed to other places. However, Mr Fyfe argued that the Tribunal should not speculate about future executive acts and cited authority in support of this proposition, including Ali v Minister for Immigration and Border Protection (Ali)[134] and DOB18 v Minister for Home Affairs (DOB18).[135] Mr Fyfe contended that currently the applicant is on the BVR with no restrictions to stay and work in Australia lawfully and there is therefore no difference between the substantive protection visa and the BVR.[136]
[133] Respondent’s SFIC [62]
[134] [2018] FCA 650
[135] [2018] FCA 1523, see also BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199, RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
[136] Transcript 17 July 2025 page 174
The Minister contended that this consideration should be given limited weight in favour of revocation.
Extent of impediments if removed
The respondent made submissions that were predicated upon the applicant being removed to Iran. The respondent contended that the applicant cannot be removed to Iran under s 198 of the Act, and there is no evidence that the applicant intends to voluntarily return. Accordingly, the Minister submitted that this consideration should be afforded neutral weight.[137]
Applicant’s submissions
[137] Respondent’s SFIC [64]
Legal consequences
The applicant submitted that one of the legal consequences of the Tribunal affirming the decision under review is eventual removal of the applicant from Australia should the statutory framework permit it at a future time.[138] There may be restrictions on future visa applications under sections 501E and 48A of the Act.[139] The applicant contended that the inability to apply for future visas underscores the finality of the protection granted in the absence of risk, which strengthens the case for revocation as the applicant’s lawful presence is recognised and protected under existing law.[140] The applicant noted that the respondent’s submissions that the mandatory conditions on the BVR are ‘not onerous’ and do not restrict liberty implicitly concede that the applicant is able to live and work in the community without unacceptable risk.[141] The applicant stated ‘[i]f the applicant posed a genuine threat it would be incongruous to allow unrestricted community liberty and employment’.[142]
[138] Applicant’s SFIC [63]
[139] Applicant’s SFIC [64]
[140] Applicant’s SFIC [64]
[141] Applicant’s SFIC [65]
[142] Applicant’s SFIC [65]
Extent of impediments if removed
Although the applicant accepted that he cannot currently be removed to Iran under s198 of the Act, he argued that the respondent’s submission that this consideration should be afforded only neutral weight should be rejected as it fails to acknowledge two key contingencies that remain operative under the statutory framework. First, the operation of s197C and s197D, particularly ss197C(3)(c)(ii), 197C(4)–(7) and s 197D(2), (6), of the Act provide mechanisms through which removal may still be pursued in circumstances where protection obligations are said not to apply, or if a subsequent reassessment is triggered. These provisions are highly relevant to any assessment of the applicant's long-term legal position in Australia and undermine the assertion that his removal is entirely foreclosed.[143] Second, the possibility of removal to a third country, such as Nauru, remains a live contingency.[144] While such removal may not be imminent or practical at present, the respondent continues to maintain offshore processing arrangements. The statutory duty to remove under s198 is not limited solely to return to a country of citizenship but extends to any country willing to accept the applicant.[145] For these reasons, the applicant contended that this consideration should not be treated as neutral. Rather, it weighs significantly, in and of itself constitutes ‘another reason’, in favour of revocation.[146]
[143] Applicant’s SFIC [70]
[144] Applicant’s SFIC [71] citing Migration (Regional Processing Country—Republic of Nauru) Designation (LIN 23/017) 2023
[145] Applicant’s SFIC [71]
[146] Applicant’s SFIC [72]
DISCUSSION OF LEGAL CONSEQUENCES AND EXTENT OF IMPEDIMENTS IF REMOVED
The Tribunal notes the Minister’s argument that the Tribunal is not required to speculate about future possibilities or further executive acts when considering the legal consequences of the Non-Revocation Decision. However, it was appropriate for the Minister’s representative in the hearing to make the concession that there is a significant difference between a bridging visa which is temporary and subject to change by the Minister and a permanent protection visa.
Deputy President Millar dealt with this issue in PRSY and Minister for Immigration and Multicultural Affairs (PRSY).[147] In that case, the Deputy President noted that cases referred to by the respondent such as DOB18 did not prevent her from looking at the immediate legal consequences of the decision, which include that the applicant remains liable to be given a removal pathway direction and the effect of such direction.[148] The Deputy President referred to the judgment of Moshinsky J in TCXM v Minister for Immigration and Multicultural Affairs[149] (TCXM) which described the arrangement with Nauru for three specific non-citizens as an ‘interim’ arrangement with Nauru and found that this was the exercise of a non-statutory prerogative power.[150] Moshinksky J found in TCXM that the decision to apply for a permission on behalf of a removal pathway for a non-citizen is not a decision where the person is required to be afforded procedural fairness.[151] Applying TCXM to the s501(1) decision under review in PRSY, the Deputy President found that the legal consequences for an applicant who might be granted and later hold a BVR subject to conditions are that the applicant:
·is subject to the prospect of being removed from Australia, …
·will be detained under s 189 of the Act if his visa ceases; and
·can be removed to a third country without any further opportunity to present reasons why he should not be removed to that country.
Further: ‘
·the BVR will cease if he has permission to enter and remain in a foreign country with whom there is a third country reception arrangement. [152]
[147] [2025] ARTA 983
[148] [2025] ARTA 983 at [130]
[149] [2025] FCA 540
[150] [2025] FCA 540 at [118]
[151] [2025] FCA 540 at [152]
[152] PRSY and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 983 at [134]
In the present case, both parties acknowledged other legal consequences of the Non-Revocation Decision, for example, restrictions on future visa applications under sections 501E and 48A of the Act. This was also acknowledged by the Deputy President in PRSY.[153] The Deputy President found that the legal consequence weighed heavily in favour of not refusing to grant the applicant a protection visa in that case.[154]
[153] [2025] ARTA 983 at [140]
[154] [2025] ARTA 983 at [141]
As regards the Minister’s contention that the Tribunal should not speculate about further executive acts, the Tribunal notes the Federal Court’s comments in Ali that were recently discussed by Deputy President Burford in YLLP and Minister for Immigration and Citizenship (YLLP)[155] as follows:
The Federal Court has determined that, in giving consideration to the legal consequences of a decision, the fact that future decision‐making may confront the Minister with difficult choices cannot impact upon the present exercise of the power conferred by s 501CA(4). … Regardless of ‘how real the prospect may be of future decisions being impacted upon by the adverse assessment… for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised’ by reference to the facts and circumstances then prevailing.[156]
[155] [2025] ARTA 998
[156] YLLP and Minister for Immigration and Citizenship (Migration) [2025] ARTA 998 at [183] citing Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]–[33] per Flick J.
Deputy President Burford in YLLP accepted the Minister’s submission that removal to a third country in the circumstances of that case was speculative and did not necessarily arise as a legal or practical consequence of the decision in the applicant’s case. Deputy President Burford stated as follows:
While the Applicant cannot be removed to Iran, arrangements can be made for him to be removed to a third country at some unspecified time in the future. This may be viewed as a serious legal consequence of the refusal of the Applicant’s visa. However, it is also contingent on several preceding factors and conditions, including permission by a foreign country, and could ultimately never materialise. As such, I accept the Minister’s contention that removal to a third country is speculative and does not arise as a legal or practical consequence of this decision in the Applicant’s case.[157]
[157] YLLP and Minister for Immigration and Citizenship [2025] ARTA 998 at [190]
Deputy President Millar in PRSY and Deputy President Burford in YLLP both found that the legal consequences in those cases weighed ‘heavily’ or ‘strongly’ respectively in favour of not refusing to grant the applicant a protection visa or revoking mandatory cancellation of the protection visa. However, both cases are distinguishable on the facts. For example, in YLLP the applicant would be subject to detention upon his release from prison and at the time of the hearing, he had not been granted BVR. In PRSY the applicant led evidence about the extent of the impediments if he was removed to Nauru.[158]
[158] PRSY and Minister for Immigration and Multicultural Affairs [2025] ARTA 983 at [144]
In the present case there is considerable uncertainty about whether the removal pathway would be applied to the applicant and the Tribunal accepts to some extent the respondent’s argument that I should not engage in speculation about future executive acts. The applicant did not provide submissions that directly addressed the factors in paragraph 9.2 of the Direction in relation to Nauru e.g. the non-citizen’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to them in that country.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
No submissions were made by the parties during the tribunal proceedings regarding the impact on Australian business interests if the applicant is not allowed to remain in Australia.
CONCLUSION ON OTHER CONSIDERATIONS: LEGAL CONSEQUENCES, EXTENT OF IMPEDIMENTS IF REMOVED AND IMPACT ON AUSTRALIAN BUSINESS INTERESTS
Doing the best that I can to evaluate the ‘other considerations’ under paragraph 9.2 of the Direction, in the present case, I conclude that consideration of the legal consequences weighs significantly in favour of revocation of the cancellation. In relation to the extent of impediments if removed and the impact on Australian business interests, I give these considerations neutral weight.
CONCLUSION
As conceded by his legal representatives, the applicant does not pass the character test under s 501(6) of the Act. Therefore, the task of the Tribunal is to synthesise the relevant considerations to reach a single dispositive finding[159] as to whether there is ‘another reason’ why the mandatory Cancellation Decision ought to be revoked.
[159] Byers and Minister for Immigration and Multicultural Affairs [2024] ARTA 183 at [95] and Wallis and Minister for Immigration and Multicultural Affairs [2024] ARTA 624 at [106]-[108] per DP McMillan KC, citing CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
In doing so, I have had regard to all the primary and other considerations and I am now required to carry out the evaluative exercise of weighing up the considerations within the overarching framework provided by the Direction.
The primary consideration of the protection of the Australian community weighs heavily against revocation of the Cancellation Decision.
The primary consideration of family violence is neutral.
The primary consideration regarding the strength, nature and duration of the applicant’s ties to Australia weighs heavily in favour of revocation of the Cancellation Decision.
The primary consideration regarding the best interests of the minor children weighs very heavily in favour of revocation of the Cancellation Decision.
The primary consideration regarding the expectations of the Australian community would be that the visa ought to be cancelled, and this consideration weighs moderately against revocation of the Cancellation Decision.
Of the ‘other considerations’ identified in the Direction, the Tribunal finds that the legal consequences of his removal weigh significantly in favour of the revocation of the Cancellation Decision. The impediments to removal and impact on Australian business interests are neutral.
Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Having regard to all primary considerations and other considerations in the Direction, I am satisfied that there is ‘another reason’ to revoke the Cancellation Decision.
The decision of the Tribunal is to set aside the Reviewable Decision and to substitute a decision to revoke the Cancellation Decision.
Date of hearing: | 16 – 17 July 2025 |
| Solicitors for the Applicant: | Mr F. Nikjoo Nikjoo Lawyers |
| Solicitors for the Respondent: | Mr J. Fyfe Minter Ellison |
ANNEXURE A
DIRECTION 110 - EXTRACTS
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations into account
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are 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;
(5)expectations of the Australian community.
8.1. Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the 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
8.1.1. The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
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:
[Violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children acts of family violence]
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 Australia community to be serious:
[Examples include crimes committed against vulnerable members of the community] …
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)…
h)whether the non-citizen has re-offended 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).
…
8.1.2. The risk to the Australian community should the non-citizen commit
further offences or engage in other serious conduct
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.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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 non-citizen 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). …
...8.2. Family violence committed by the non-citizen
…
8.3. The strength, nature and duration of ties to Australia
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.
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.
8.4. Best interests of minor children in Australia affected by the decision
Decision-makers must make a determination about whether cancellation or a refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may 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
8.5. Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
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:
[None of the examples apply in this case]
…
…
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case
9. Other considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests
9.1. Legal consequences of decision under section 501 or 501CA
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(l) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
…
9.1.1. Non-citizens covered by a protection finding
Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
…
9.2. Extent of impediments if removed
Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
9.3. Impact on Australian business interests
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
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