KZYH and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1718

KZYH and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1718 (21 July 2025)
Applicant:KZYH
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3321
Tribunal:Deputy President S Burford
Place:Perth
Date of decision:                 21 July 2025
Date of written reasons:      4 August 2025

Decision:The decision of a delegate of the Minister dated 28 April 2025 to refuse to grant the Applicant a Protection (Class XA) (subclass 866) visa is set aside and substituted with a decision not to refuse the grant of the visa under section 501(1) of the Migration Act 1958 (Cth).

.............................[sgd]...........................................
Deputy President

CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse to grant the Applicant a protection visa – character test – Direction no. 110 – Applicant is a 29-year-old citizen of Sri Lanka – Applicant in the community on BVR – Applicant is homeless – Applicant has convictions for breach of family violence restraining orders, unlawful assault, burglary, theft, attempted theft, intentional damage of property, breaching bail – Applicant has a protection finding from the AAT – real chance the Applicant would face treatment amounting to serious harm as a bisexual person and as a person suffering from persistent complex mental health disorders – Applicant cannot be sent back to home country – decision to refuse is set aside and substituted with a decision not to refuse the grant of the visa
LEGISLATION
Family Violence Protection Act 2008 (Vic) s 125A
Migration Act 1958 (Cth) ss 36, 36A, 15, 189, 196, 197C, 197D, 198, 198AD, 198AE, 199B, 499, 501, 501(1), 501(6)
Migration Regulations 1994 (Cth) regs 1.03, 2.20, special return criterion 5001
NATIONAL DISABILITY INSURANCE SCHEME (NDIS) ACT 2013 (CTH) S 23
CASES
2425519 (Refugee) [2024] AATA 4467
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4184
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DVRL v Minister for Immigration and Citizenship [2025] FCA 876
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47
Khalil and Minister for Home Affairs [2019] FCAFC 151
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
RRRB v Minister for Immigration and Multicultural Affairs [2025] ARTA 471
Singh v Minister for Immigration for Citizenship and Multicultural Affairs [2023] FCAFC 46
TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540
YLLP and Minister for Immigration and Citizenship [2025] ARTA 998
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 (21 June 2024) – paras 5.2, 7, 8, 8.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(4), 9, 9.1, 9.2(1)(b)
Department of Home Affairs, Section 501: The character test, visa refusal and visa cancellation (Procedural Instruction, 2 August 2024)
Statement of Reasons
The decision in this matter was made and provided to the parties on 21 July 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].

The Applicant has sought review of a decision of a delegate of the Minister for Immigration and Citizenship, dated 28 April 2025, to refuse to grant a Protection Class XA Subclass 866 visa under s 501(1) of the Migration Act 1958 (MigrationAct).[2]
[2] Exhibit R1, page 18.
BACKGROUND
The Applicant is a 29-year-old citizen of Sri Lanka[3] who first arrived in Australia in January 2017 on a Student Class TU Subclass 500 visa (student visa).[4] He departed Australia several times between 2017 and 2019 but has not departed since August 2019.
[3] Exhibit R1, page 359.
[4] Exhibit R1, page 349.
The Applicant was enrolled in a software engineering degree[5] but he did not finish his course before his student visa ceased in August 2020. The Applicant was then unlawful for a 23 days before he was granted a Bridging visa E (BVE). Between November 2020 and June 2023 the Applicant was granted 5 BVEs, and between August 2020 and January 2025 the Applicant was an unlawful citizen for a cumulative period of approximately 4 years and 6 months.[6]
[5] Exhibit R1, page 237.
[6] Exhibit R1, page 248.
Between 1 June 2019 and 8 February 2024, the Applicant was convicted of 36 offences,[7] including convictions for breaches of family violence restraining orders, unlawful assault, burglary, theft or attempted theft, intentional damage of property and breaching bail. These are detailed in annexure A to this decision.
[7] Exhibit R1 pages 42 – 44.
On 7 April 2024 the Applicant applied for a Protection (Class XA) (subclass 866) visa (protection visa).[8]
[8] Exhibit R1, page 358.
On 29 July 2024 the Visa Application was refused by a delegate of the Department of Home Affairs under s 65 of the Migration Act. While the delegate accepted that the Applicant is of Tamil ethnicity, worked as a sex worker, is bisexual, and suffered from various mental health conditions, the delegate found that the Applicant did not face a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka and did not meet the criteria for a protection visa under s 36(2)(a) (the refugee criteria) or 36(2)(aa) (the complementary protection criteria).[9]
[9] 2425519 (Refugee) [2024] AATA 4467 at [17] (AAT decision), included in Exhibit R1 from page 236.
On 29 July 2024 the Applicant applied for review of the decision with the Administrative Appeals Tribunal (AAT).[10] On 7 October 2024 the AAT found there was a real chance the Applicant would face treatment amounting to serious harm as a bisexual person and as a person suffering from persistent complex mental health disorders. Accordingly, the AAT found that the Applicant satisfied s 36(2)(a) of the Migration Act.[11] The application was remitted to the Department for further consideration with a direction to that effect.
[10] AAT decision at [9].
[11] AAT decision.
On 19 December 2024, a delegate of the Minister recorded, pursuant to section s 36A(1)(a) of the Migration Act, that for the purposes of s 36A, the delegate was satisfied the Applicant satisfies the criterion s 36(2)(a) of the Migration Act with respect to Sri Lanka and that he also satisfies the criterion in s 36(1C). This records a protection finding has been made with respect to the Applicant.[12]
[12] ‘Section 36A Record’, Exhibit R1, page 5; See s 36A of the Migration Act.
On 16 January 2025, the Applicant was issued a Notice of Intention to Consider Refusal (NOICR) pursuant to s 501 of the Migration Act. The NOICR stated that the visa application may be refused on character grounds under s 501(1) of the Act and invited the Applicant to comment and respond.[13] On 29 January 2025 the Department wrote to the Applicant again inviting him to comment.[14]
[13] Exhibit R1, page 350.
[14] Exhibit R1, page 355.
On 17 March 2025 the Applicant responded to the NOICR through his then representative, Refugee Legal.[15]
[15] Exhibit R1, page 15.
On 28 April 2025 a delegate of the Minister refused to grant the Applicant a protection visa under s 501(1) of the Migration Act.[16]
[16] Exhibit R1, page 15.
The Applicant lodged an application for review of the decision to refuse his application for a protection visa with the Administrative Review Tribunal (Tribunal) on 28 April 2025.[17]
[17] Exhibit R1, page 1.
THE HEARING AND THE EVIDENCE
The Applicant was initially represented by Legal Aid Victoria, however on 25 June 2025 Legal Aid advised they no longer had instructions to act in the proceedings and withdrew their representation. The Tribunal made multiple attempts to contact the Applicant, however he did not respond to any emails the Tribunal sent and his phone number was disconnected.
The Applicant contacted the Tribunal on Thursday 3 July 2025 and provided a new phone number and email address. The Applicant told the Tribunal that he had lost access to his former email account and his phone had been stolen, that he was homeless, that he no longer had access to the G-Documents filed by the Minister, and that he did not receive the Minister’s Statement of Facts, Issues and Contentions or evidence filed on 10 June 2025.
Later that same day, the Minister contacted the Tribunal and indicated they were concerned about proceeding with the hearing, originally listed for Monday 7 and Tuesday 8 July 2025, as it appeared the Applicant had not accessed the material served on him via email as he had reported to the Tribunal he did not have access to his registered phone or email. The Minister asked that the hearing be vacated and rescheduled for later that week to allow a hard copy of the documents to be provided to the Tribunal for the Applicant to collect from the Melbourne Registry.
The Tribunal vacated the hearing listed for 7 and 8 July and instead listed a directions hearing for 7 July at the time the hearing had been listed to commence. Outreach was made to the Applicant to notify him that he should attend the directions hearing in person at the Melbourne Registry and that documents would be available for him to collect. At this point the Applicant had not filed any submissions or evidence in support of the application for review.
The Applicant attended the directions hearing on 7 July 2025 at the Melbourne Registry. He confirmed he was no longer represented and was living on the street. The Tribunal made orders for the Applicant to file submissions and evidence by Wednesday 9 July and relisted the matter for hearing on 14 and 15 July 2025. The Applicant consented to the Tribunal contacting Victorian Legal Aid to notify them of the Applicant’s updated contact details and notifying them of the updated orders. The Tribunal encouraged the Applicant to contact Legal Aid to see if they could assist with representation.
Following the directions hearing, Victorian Legal Aid confirmed that they would not be representing the Applicant at the hearing but would assist him to file submissions addressing several key issues arising for consideration. Those submissions were received on 9 July 2025 and were responded to by the Minister on 11 July 2025.
The hearing was scheduled to take place in Perth on 14 and 15 July 2025. The Applicant did not attend the first day of the hearing and was not contactable by phone. The hearing was adjourned to the next day. The Minister provided brief submissions to the Tribunal requesting the matter be dismissed if the Applicant did not attend the second day of the hearing.
In the afternoon of 14 July 2025 the Applicant attended the Melbourne Registry of the Tribunal and contacted the Perth Registry by telephone. He explained to Tribunal staff, and repeated before me at the hearing of 15 July 2025, that he had been unable to attend the first day of the hearing and had been unable to charge his phone the night before. The Applicant advised he would attend the second day of the hearing.
The hearing recommenced on Tuesday 15 July 2025. As discussed further below, when the hearing was adjourned during cross-examination the Applicant failed to return at the scheduled time. The matter was adjourned, and the Applicant was eventually located by Tribunal staff. At the recommencement of the hearing the Tribunal asked about the Applicant’s compliance with his regime for prescribed mental health medications and it became evidence the Applicant had not taken prescribed medications for several days, including anti-psychotic medications. In order to ensure the Applicant had an opportunity to participate in the hearing with the benefit of his prescribed medications, the Tribunal adjourned the hearing to Thursday 17 July 2025. The Minister agreed to this approach.
On 17 July 2025 the Applicant did not attend at the scheduled time for the hearing to commence and the matter was stood down. Contact was made with the Applicant and the hearing commenced an hour and a half after the scheduled start time. The parties returned on 18 July 2025 to make closing submissions.
The Minister was represented by Ms Scott of Australian Government Solicitor. The Tribunal was grateful to Ms Scott’s efforts to accommodate the additional hearings required to ensure the Applicant had an opportunity to present his case notwithstanding the challenges presented by his lack of representation, homelessness and obvious mental health challenges.
The hearing was assisted by a Sri Lankan Tamil interpreter. The hearings were held by video with the Applicant appearing from the Tribunal’s Melbourne Registry.
The following documents were marked as exhibits:
(a)The Applicant’s bundle of evidence, including the Applicant’s BVR grant dated 28 April 2025, and media material relating to the Applicant’s relocation to Nauru (Exhibit A1);
(b)Section 501G Documents, labelled G1 – G6, comprising 425 pages (Exhibit R1);
(c)Supplementary G-Documents, labelled SG1 – SG11, comprising 536 pages (Exhibit R2);
(d)Tender Bundle, labelled RTB1 – RTB6, comprising 19 pages (Exhibit R3);
(e)Applicant's Case Plan from the Department of Immigration and Border Protection filed 10 July 2025 (Exhibit R4).
I was also assisted by:
(a)The Applicant’s submissions requesting an in-person hearing, dated 3 June 2025;
(b)The Applicant’s submissions, dated 9 July 2025 (ASFIC);
(c)The Respondent’s Statement of Facts, Issues and Contentions (RSFIC); and
(d)The Respondent’s Submissions in Reply, filed 10 July 2025 (Minister’s Reply).
The Applicant gave evidence and was cross-examined. No other witnesses were called.
LEGISLATIVE FRAMEWORK
The Applicant has applied for a protection visa which has been refused under s 501(1) of the Migration Act.
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. Under s 501(1) of the Act the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.[18]
[18] Migration Act s 501(6)(e).
Under s 36A of the Act, before refusing a protection visa, the Minister must consider and make a record of whether certain requirements are met for a protection visa.
The character test is set out at s 501(6) of the Migration Act. This includes s 501(6)(d)(i) which provides that that a person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk they would engage in criminal conduct in Australia.
If the Applicant does not meet the character test, the remaining issue is whether the discretion to refuse him a protection visa should be exercised.
On 7 June 2024, the Minister issued Direction no. 110[19] under s 499 of the Act (Direction no. 110). An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[20].
[19] 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 (21 June 2024) (Direction no. 110).
[20] Direction no. 110 para 5.1(4).
Direction no. 110 includes guidance for decision-makers on applying the character test.[21] The Direction also sets out primary and other considerations to be taken into account where the Tribunal is considering the exercise of the power under s 501(1) to refuse a visa.[22] The principles and guidance set out the Direction no.110 are discussed further below.
[21] See Direction no. 110, Annexure A.
[22] Direction no. 110 para 6, referring to paras 8 and 9.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The first issue in this review is whether the Applicant passes the character test set out in s 501 of the Act on the basis that if he were allowed to remain in Australia, there is a risk he would engage in criminal conduct in Australia. The assessment of the risk is a forward-looking test, necessarily informed by the Applicant’s past conduct and current circumstances.[23]
[23] See Direction no. 110; Department of Home Affairs, Section 501: The character test, visa refusal and visa cancellation (Procedural Instruction, 2 August 2024), page 122.
Annexure A to Direction no. 110 includes an explanation of various aspects of the character test. This states at paragraph 6(2) and (3):
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
It is for an Applicant to satisfy the Minister that they meet the character test. This involves persuading the decision maker that they will not engage in criminal conduct.[24]
[24] Singh v Minister for Immigration for Citizenship and Multicultural Affairs [2023] FCAFC 46 per Mortimer J at [6].
Applicant’s submissions
As noted above, on 16 and 29 January 2025 a delegate of the Department of Home Affairs wrote to the Applicant to inform him the Department was considering refusing the Applicant’s visa under s 501(1) of the Migration Act and invited the Applicant to comment.[25] In response the Applicant made submissions through his then representative which were, in summary:[26]
(a)Section 501(6)(d) of the Act relates to risks in relation to a person’s future conduct. These grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in specific conduct. Evidence of past conduct is relevant, but not determinative, to assessing this risk.[27] Further, the reference to criminal conduct requires a risk of conduct for which a criminal conviction could be recorded.[28]
(b)The Applicant’s recent conduct in the stressful environment of immigration detention ‘strongly indicates he has undergone a process of intensive treatment and rehabilitation and that he will have ongoing treatment and support available to him if he is granted a permanent (subclass 866) visa to reside in the community’. This suggests that the likelihood of future criminal conduct is minimal or remote.
(c)The Applicant does not have a substantial criminal record as defined in s 501(7) of the Migration Act. Therefore, this is not a matter where, firstly, the Department needs to determine whether to exercise its discretion to refuse the Applicant’s visa.[29] Rather, in the first instance, we submit that our client passes the character test because there is not more than a remote or minimal chance he will engage in criminal conduct in Australia if his visa is granted.
[25] Exhibit R1, G5, pages 300 and 355.
[26] Exhibit R1, G5, page 263 at [33] – [36].
[27] Direction no. 110; Australian Government Department of Home Affairs, Section 501: The character test, visa refusal and visa cancellation (Procedural Instruction, 2 August 2024), page 122.
[28] Direction no. 110 para 6.1(2).
[29] Australian Government Department of Home Affairs, Section 501: The character test, visa refusal and visa cancellation (Procedural Instruction, 2 August 2024).
Submissions to the Tribunal did not directly address the question of whether the Applicant meet the character test and were instead directed to the consideration of the protection of the Australian community.[30] However, it was noted that these submissions may also be relevant in assessing whether the applicant passes the character test (i.e. whether the risk of the applicant reoffending is minimal or remote). In this regard it was submitted with respect to the Applicant’s past offending that:[31]
·The offending was at the lower end of seriousness, reflected in sentences received which were at the lower end of the spectrum;
·The applicant has not been convicted of further breaches of the intervention order (that prohibits him from contacting his ex-partner) since his last related offence dated in 2020 and is no longer in a relationship;
·The conditions on the Applicant’s Bridging Visa R (BVR) do not include curfew or ankle monitoring, suggesting that the Applicant does not pose an unacceptable risk to the Australian community if he were granted a protection visa;
·The Applicant’s earlier periods as an unlawful non-citizen reflect his specific circumstances at the time and are not reflective of a disregard for Australian laws.
[30] Direction no.110, para 8.1.
[31] ASFIC.

At the hearing, the Applicant said he has been homeless since 2021 and his mental health has been poor as he wasn’t eligible to receive health care. He stated that he had an uncle and cousin in Australia but was not in contact with them, and he had lost contact with his friends when he started taking illicit drugs.
He said he would not reoffend because he wanted to get his life back on track, complete his studies and remain in Australia.
Minister’s submissions
The Minister’s submissions were, in summary, that there was a more than minimal or remote risk that the Applicant would commit further criminal offences, noting:[32]
(a)The Applicant has an extensive criminal history of over 30 offences, which commenced within two years of arriving in Australia demonstrating a disregard for the law;
(b)The Applicant has demonstrated a disregard for court issued orders having recorded three convictions for breaching family violence restraining orders. Two of those were ‘persistent contravention of notices and orders’, which require a person to breach an order 3 times within a 28 day period.[33] He has repeatedly breached bail and community corrections orders.
(c)The Applicant has been unable to refrain from offending outside the controlled environment of prison or detention. The repetitive nature of the Applicant’s offending, despite periods without offending, strongly supports a finding that the Applicant presents a more than remote chance of engaging in criminal conduct.
(d)The Applicant has a history of breaching Australian immigration laws, having spent a substantial period of time in the Australian community as an unlawful non-citizen, which the Minister contends demonstrates the Applicant’s disregard for Australian law;
(e)The Applicant continues to use illicit substances and abuse alcohol which was a factor in his past offending;
(f)The Applicant has undertaken some counselling and rehabilitation programs, however there is no evidence to suggest these have been sufficient to reduce the risk of the Applicant offending in the future to a minimal or remote risk, particularly in light of his offending history to date and a ‘demonstrated propensity to reoffend’.
[32] RSFIC at [19].
[33] Family Violence Protection Act 2008 (Vic), s 125A.
On this basis it was contended that the Applicant does not pass the character test by virtue of s 501(6)(d)(i) of the Migration Act.
The Applicant’s offending history
The Applicant’s criminal history is outlined in Annexure A to this decision.
The Applicant has been convicted of a number of offences including:
·Violence-related offences: Unlawful assault (2019, 2020);
·Property offences: Burglary and intentionally damage property (2 charges), criminal damage, Theft from a shop (shopsteal) (2023 (x2), 2024), Attempt theft (2024), Wilful damage (2023), Criminal damage (2023)
·Drug offences: Possess methylamphetamine (2023), Possess Cannabis (2020)
·Offences involving breaches of court and other offences: Persist contra family violence NTC/order, Contra-fam violence final intervention order, Use a carriage service to harass, Commit indictable offence whilst on bail (2023), Contravene a conduct condition of bail, State false name when requested, State false address when requested, Fail comply requirement of auth officer, Resist emergency worker on duty, Contravene a conduct condition of bail, Drunk in a public place (2024), Use threatening words in a public place (2023), Mark graffiti on property without consent (2023), Act prejudicial-security/order/management gaol (2023)
For these offences he has been convicted to terms of imprisonment, community corrections orders and fines.
His longest period of imprisonment was an aggregate sentence of 60 days’ imprisonment for various offences, consisting of theft from shop, using threatening words in public place, unlawful assault, and commit indictable offence whilst on bail.[34] His most recent conviction was on 8 February 2024 for theft.
[34] Exhibit R1, pages 43 – 45.
A number of the offences, including the breaches of the family violence restraining orders, arose in the context of the breakdown of the Applicant’s prior relationship. His partner sought and obtained a family violence restraining order which the Applicant breached multiple times by calling her on her phone and going over to her property. This incident also involved breaches to bail conditions.
Another set of offences concerned an incident with a flatmate where the Applicant was alleged to have grabbed the victim by the head and punched him approximately three times over the back of his head, his forehead and eye region.
A number of the Applicant’s property offences, including the shop steal offences, occurred while the Applicant was in unstable accommodation.
The Applicant’s background and health history
The Applicant travelled to Australia from Sri Lanka in 2017 on a student visa. It was submitted that he was unable to complete the final year of his degree following the withdrawal of family support in Sri Lanka due to the economic crisis in that country, compounded by the impacts of COVID 19 including on the Applicant’s ability to support himself.
As discussed further below, it was contended that the Applicants offending behaviour in Australia occurred when he was acutely mentally unwell, living on the streets, and misusing substances to manage his then undiagnosed mental health conditions.
The material before the Tribunal included a report from Dr. Bernard Healey, a consultant clinical psychologist, who assessed the Applicant in September 2024.[35] A further follow-up report was provided in March 2025.[36] The Tribunal notes the Applicant’s evidence was that he had not seen since Dr Healey since March 2025. According to Dr. Healey: [37]
At clinical significance was the Bipolar Spectrum, Persistent Depression, PTSD, and Schizophrenic Spectrum. He has received treatment for depression. His Persistent Depression reflected his preoccupation over the period of the last few years, with feelings of discouragement, even guilt, lack of initiative, apathy, and low self-esteem. The Bipolar Spectrum reflected rather significant mood fluctuations with restless overactivity and distractibility. Post-Traumatic Stress reflected upon traumas in his life, constant thoughts about the loss of his father 12 years ago, the unacceptability of his sexual orientation and indeed activity in secret in Sri Lanka. The Schizophrenic Spectrum reflected on past incongruous disorganised behaviour, confusion, disorientation, inappropriate affect and intrusions.
Dr Healey indicates that in terms of clinical syndromes the Applicant presented with Drug Use Disorder Syndrome and that the other disorders mentioned were present at a lesser level of clinical significance.
[35] Exhibit R1, pages 276 – 286.
[36] Exhibit R1, pages 287 – 291.
[37] Exhibit R1, page 280.
The psychological report notes the Applicant had reported a history of illicit substance use including use of heroin, methylamphetamine, and cannabis as well as alcohol. The report indicated that his use of heroin and methylamphetamine ‘had been consistently high and regular, up to half a gram of each substance on a daily basis when not in custody’.
With respect to his risk assessment, Dr Healey notes:[38]
The Historical Clinical Risk Management-20 Version 3 was administered, and a number of relevant areas examined. Where risks were pertinent and exposed, certainly management has been put in place by way of ongoing treatment, with medication, and with counselling, and there is projected the ongoing treatment and management in the future upon his release. He was quite aware that there were specific risk management areas, particularly in relation to drug use, and its impact upon his functioning. There are some resolutions in regard to intimate relationships, in the treatment for mental disorders, personality malfunction. There were no factors present in regard to violent attitudes. Again in regard to clinical factors, recent problems in regard to insight, which has improved over time, and needs to remain strong in regard to the effect of other drug substances. Factors were not present in relation to violent ideation or intent. Treatment response has been good, the treatment has targeted his problems, with the ongoing extension of that treatment on his return to community.
There will be cooperation with professional services and plans involved, his living situation has been stabilised, his personal support is there. Family involvement and counselling would be directed at stress and coping.
[38] Exhibit R1, pages 285 – 286.
Dr Healey noted that the Applicant indicated he was able to appreciate that the intake of illicit substances may have ‘a disastrous effect upon his mind and his general health’. The report records that the Applicant has ‘resolved never to take illicit drugs again and abide by a prescribed medication regime.’[39]
[39] Exhibit R1, page 284.
With respect to the March 2025 interview, Dr Healey notes the Applicant was ‘much more composed’ at that interview. In the March report Dr Healey concludes:
1.     At the time of his offending he was suffering from significant mental health decline. As noted in this Report and indeed the Report of the 17th of September of 2024, this contributed significantly to his offending with a quite reduced capacity mentally to appreciate the seriousness and consequences of his action .
2.     Treatment as outlined in the medication regime. Relevant courses already completed with a continuity of medication regime and revisiting aspects of the courses already completed and his own resolves would significantly reduce the risk of recidivism.
3.     ln view of current and previous mental health conditions the experiences of indefinite migration detention, or a Bridging Visa, with severe restrictions such as curfew, ankle bracelet, no work rights, no access to Medicare, would seriously undermine the therapeutic gains achieved, particularly with no continuity of treatment in the community. Also, ongoing detention with no fixed chronology end point would be totally demoralising and sabotage most of, if not all, the good work and achievements gained.
4.     His risk of offending against a person in the community would be minimal, with the continuity of support offered and his determination for a positive lifestyle and to complete the final year of degree study.
5.     Minimal risk, even lower risk with continuity of support, continued medication, treatment already set in place, as well as a noticeable increase in maturity.
6.     What has been outlined is more than sufficient.
The Applicant’s statement indicates he takes the following medications:[40]
·Amisulpride Tablets, 400mg daily, for Atypical Psychosis.
·Aripiprazole Tablets, 5mg daily, for Atypical Psychosis.
·Sertraline Tablets, 100mg daily, for Depression.
·Amitriptyline Hydrochloride Tablets, 100mg daily, for poor sleep pattern.
The Applicant confirmed at the hearing that these were his prescribed medications. This was also consistent with records from the Department. Those records also indicate the Applicant is prescribed Levothyroxine, Atorvastatin, Vitamin D Supplements, paracetamol, ibuprofen and melatonin.[41]
[40] Exhibit R1, page 257.
[41] Exhibit R4, ’Case Plan’, page 7.
According to the material provided by the Minister including the Department’s ‘Case Plan’ for the Applicant, he has been diagnosed with depression, anxiety, psychosis and ongoing auditory hallucinations. He also suffers from Hashimoto’s disease, hypercholesterolemia and dental issues.[42] The Report indicates Life Without Barriers had been supporting the Applicant including taking him to a GP appointment in May 2025 and following up on his prescription medication. The Case Plan records a range of supports planned for the Applicant including medical treatment, AOD counselling, mental health treatment and referral to social support programs.[43]
[42] Exhibit R4, page 6.
[43] eExhibit R4; cf Exhibit R2, page 524 which is an email from his Legal Aid lawyer in June 2025 indicating he had not been able to see a doctor or access medication since being released into the community.
The Applicant’s migration status and current circumstances
As noted above, the Applicant came to Australia in 2017 on a student visa. At some point he ceased studying due to inability to finance the final year of his studies. For various periods he was unlawful.[44]
[44] Exhibit R1, page 248. See Annexure B to this decision.
The Applicant applied for a protection visa on 7 April 2024. His visa application was refused by the Department, and he sought a review of that decision to the Administrative Appeals Tribunal (AAT). On 7 October 2024, the AAT determined that the Applicant met the definition of a refugee in accordance with s 36(2)(a) of the Act because:
·he identifies as a bisexual man and country information indicates that members of the LGBTQI+ in Sri Lanka face violence and threats of violence directed at them by the authorities, the community, and their families. They experience discrimination and bullying in employment, education, and health care; and
·he suffers from significant mental health disorders due to his past traumas and illicit drug use in Australia which is found to have exacerbated his mental health conditions, leading to experiences of psychosis and hallucinations, and his complex mental health conditions will adversely impact his ability to access employment and other essential services, such as mental health services.
The AAT found that:[45]
…if the applicant is returned to Sri Lanka, now or in the foreseeable future, there is a real chance that he would face treatment that would amount to serious harm. The treatment that he will suffer would entail violence or threats of violence to his life and liberty, significant harassment and or/ill treatment, economic hardship that would threaten his capacity to subsist, and denial to access to basic services or the capacity to earn a livelihood that would threaten his capacity to subsist.
[45] Exhibit R1, page 243 par [46].
It was submitted by the Applicant that referral for consideration under section 501 of the Migration Act only applies if an Applicant satisfies all other criteria for visa grant.[46] It was submitted that it follows that he also satisfies s 36(1C) of the Migration Act and by inference the Department must have been satisfied that he had not committed a particularly serious crime and does not pose a danger to the Australian community.[47]
[46] Exhibit R1, page 260, citing Departmental policy - Australian Government Department of Home Affairs, Section 501: The character test, visa refusal and visa cancellation (Procedural Instruction, 2 August 2024), 122; Direction no. 110.
[47] Exhibit R1, pages 263 – 265 (Applicant response to NOICR, filed by Refugee Legal).
The Applicant was granted a Class WR Bridging R (removal pending) (subclass 070) visa (BVR) on 28 April 2025.[48] The conditions of the visa are detailed in the letter notifying the Applicant of the grant of the visa.[49] These include reporting obligations.
[48] Exhibit A1, page 1.
[49] Exhibit A1, page 4.
Following the Applicant’s release from detention he was provided with accommodation in a caravan park and allocated a Case plan worker, Life Without Borders, to assist with his transition. He did not like the location and left. He has been living on the streets or ‘unhoused’ since that time.
Consideration
As noted above, the Minister contends the Applicant does not pass the character test because there is more than a minimal or remote risk he would engage in further criminal conduct if he was permitted to remain in Australia. [50]
[50] RSFIC, para [19].
The Minister contended that the Applicant’s repeated offending suggested an inability to refrain from offending noting that:
·He first offended in 2019, and 15 months later engaged in further criminal conduct;
·He then engaged in 17 offences within approximately 4 months in 2020;
·Further offending with 3 offences in September 2022 and 6 months later he committed another 4 offences; and
·In early 2024 he received 2 further convictions.
The Minister contended that notwithstanding breaks in his offending, the repetitive nature of the Applicant’s offending supports a finding the Applicant presents a more than remote chance of engaging in criminal conduct.
The Minister contended that this risk was also demonstrated by:
·An extensive criminal history that includes repeated offending in the face of court orders suggesting a disregard for the law.
·A history of breaching Australian immigration laws, having spent a substantial period of time in the Australian community as an unlawful non-citizen,
·A lack of evidence of rehabilitation sufficient to reduce the risk of offending in the future to a minimal or remote risk.
The Applicant contended that his conduct in the stressful environment of immigration detention strongly indicates he has undergone a process of intensive treatment and rehabilitation and that he will have ongoing treatment and support available to him if he is granted the protection visa to reside in the community.
It was contended that the likelihood of him engaging in future criminal conduct in Australia is minimal or remote and that he does not have a substantial criminal record as defined in s 501(7) of the Act.[51] Therefore, the Applicant contended that he passes the character test because there is not more than a remote or minimal chance he will engage in criminal conduct in Australia if his visa is granted. It was contended that neither the failure by the Applicant to declare criminal convictions in his protection visa application or his periods of unlawfulness should be considered as indicative of a risk of criminal offending in the future noting that:
·the failure to declare convictions was a procedural oversight by his representatives;
·there was evidence that he had attempted to regularise his migration status during periods of unlawfulness which were caused by a variety of factors including financial strain of the COVID 19, mental illness and drug and alcohol misuse. In any event, such conduct does not give rise to a criminal conviction.
[51] Exhibit R1, 263 – 265 (Applicant response to NOICR, filed by Refugee Legal)
It was submitted that, rather than showing a disregard to Australian laws, the Applicant’s conduct arose in the context of a prolonged mental health crisis which was exacerbated by financial difficulties, homelessness, struggles with his sexuality, fear of return to Sri Lanka, and substance misuse.
In written statements to the Department the Applicant stated, in summary, that:[52]
·He was remorseful for his past conduct;
·He was not aware of the seriousness of family violence orders when he committed past offences due to poor English and the different legal system in Sri Lanka but understands this now;
·He has undertaken rehabilitation in immigration detention, including an Anger Management program and SMART recovery. He is no longer drinking alcohol and has sought psychological and medical treatment and support;
·He was taking medication for mental health conditions, understood the serious consequences of being non-complainant with his medication and had support from groups in the community, including Partners in Wellbeing Support and the Asylum Seekers Resource Centre, to reestablish himself in the community. He also had support from friends;
·He plans to go back to university and complete his studies.
Taking into account his rehabilitation, remorse, insight, improved mental health and supports in the community, the Applicant contended he would not commit any further offences.
[52] Exhibit R1, page 249 – 258.

Before the Tribunal the Applicant had difficulty recalling these statements. However, he told the Tribunal he regretted and was embarrassed by his past offending. He said he did not understand the law when he offended but does now and that he is no longer drinking alcohol which was a cause of his offending.
However, the Applicant also testified that he was living on the streets, had been taking methamphetamine in part to deal with cravings for alcohol and had not been engaging with support services including the Asylum Seekers Resource Centre or Partners in Wellbeing or mental health supports. Further, during the hearing he indicated he had not taken medication for some days due to having difficulty finding time to go to a chemist. He said he had not had contact with friends or family members because he was embarrassed about his circumstances and his family in Australia came from a different background and didn’t understand him. He confirmed he had been charged with a further offence of possession of methamphetamine on 21 May 2025[53] and that he was due to appear in court with respect to that matter.
[53] Exhibit R4, page 5.
Looking at the psychological reports, several factors were identified as lowing the risk the applicant would offend. Relevantly, these included:
·The Applicant continuing to abstain from drug and alcohol use;
·Access to community supports including friends and family and support from community organisations such as the Asylum Seeker Resource Centre and Partners in Wellbeing;
·The Applicant remaining compliant with medication and receiving psychological support;
The evidence before the Tribunal indicated that several of the protective factors against criminal offending, identified by Dr Healey, are not currently present. The Applicant admitted in evidence to continuing to use methamphetamine to control alcohol use. There was no was evidence the Applicant was undergoing any further rehabilitation including with respect to alcohol or other drugs. Further, he told the Tribunal he was not accessing the pro social and mental health supports identified in his response to the NOIR and in Dr Healey’s report, IN addition, the Applicant reported to having been non-compliant with his medication regime, albeit due to the difficulties of getting to a pharmacy to fill his prescriptions.
While the laying of further criminal charges against the Applicant for possession of methamphetamine does not amount to evidence the applicant has committed a crime, in the Tribunal’s view it adds to a concern that the factors identified by Dr Healey as reducing the Applicant’s risk of reoffending are either currently not present or alternatively not sufficient to reduce the Applicant’s risk of reoffending for the foreseeable future,
Were the Applicant granted the visa to allow him to remain in Australia the Tribunal considers there is a risk, which is more than minimal or remote, that he would engage in criminal conduct.
caving considered the evidence before me, I find that there is more than a minimal or remote risk that the Applicant would engage in criminal conduct if allowed to remain in Australia. It follows that he does not pass the character test by operation of s 501(6)(d)(i) of the Migration Act.
SHOULD THE DISCRETION TO REFUSE THE VISA BE EXERCISED?
As I am not satisfied that the Applicant passes the character test, I must then determine whether, having regard to the primary and other considerations contained within Direction no. 110, the discretion to refuse to grant the Applicant a protection visa should be exercised.
In considering the exercise of the power under s 501(1), informed by the principles set out in para 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[54]
[54] Direction no. 110 para 6, referring to paras 8 and 9.
In making a decision under s 501(1), the primary considerations to be taken into account by the Tribunal are:[55]
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
[55] Direction no. 110 para 8.
The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[56]
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
[56] Direction no. 110 para 9.
I must also take into account any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked.
The principles set out in para 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … refuse or cancel a non-citizen’s visa under s 501 ’. Those principles highlight that the safety of the Australian community is the government’s highest priority and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred in those individuals will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community. The principles state that the community expects the government to cancel visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Direction provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community for a short period of time, Australia may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
Noting that primary and other considerations relevant to the individual case must be taken into account, Direction no. 110 states that, in some circumstances, the nature of the conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation of a visa including in circumstances where the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 110 can be found in paragraph 7, which provides that:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
Applicant’s submissions
Victoria Legal Aid provided limited submissions, referred to in this decision as ASFIC. The ASFIC was limited to the consideration of the protection of the Australian community and the legal consequences of the decision. Previous, more detailed submissions, were prepared by Refugee Legal in response to the NOIR. I have taken both submissions into account. In summary, the Applicant submitted that the circumstances of the case warrant the discretion being exercised in favour of Applicant noting:
(a)The fact the Applicant’s offending was at the lower end of seriousness, reflected in sentences of fines and only relatively short prison sentences;
(e)The low risk of reoffending posed by the Applicant noting in particular a lack of a history of violent offending and Dr Healey’s assessment of the Applicant’s low risk;
(f)The Applicant’s demonstrations of remorse and good prospects for rehabilitation;
(g)The Applicant’s good behaviour in immigration detention demonstrating his capacity to rehabilitate and engage in prosocial behaviour;
(h)The Applicant’s ties to Australia through his friends, university studies, employment and connection to community supports;
(i)The community would expect the Australian Government to enable a relatively young, mentally ill refugee who is treatment compliant and who has not committed a serious violent or sexual offence, to be able to reside in the community, obtain treatment, and to complete a university degree. This is even more so where the Applicant has a protection finding and cannot be refouled to his home country, Sri Lanka, and has expressed remorse for his offending and has demonstrated a commitment to rehabilitation.
(j)in the event the Applicant is not granted a protection visa, he is liable to be granted new BVRs, including with discretionary conditions imposed. The imposition of these conditions are unlikely to provide any benefit to the Australian community. and would limit the Applicant’s ability to finalise his studies, obtain employment and engage with support services.
Victoria legal Aid submitted:
(k)The total number of the applicant’s offences is not necessarily indicative of their seriousness, attracting only fines or a 'proven” or a “convicted and discharged” outcome, and others relate to relatively minor matters. A considerable share of the applicant’s offending is not ‘so serious that any risk that it may be repeated may be unacceptable’;
(l)The Applicant has not been convicted of further breaches of the intervention order since his last related offence in 2020. All of the family violence incidents involved one victim, who is the applicant’s former partner and there was no evidence to suggest that he contacted the victim since his last related offence, and was not re-partnered. These factors suggest that the applicant poses a low risk of reoffending in relation to family violence, Further, the Applicant’s offending falls at the lower end of the scale of seriousness.
(m)There is no trend of increasing seriousness of the offending.
(n)The Minister did not impose curfew and monitoring conditions on the Applicant’s BVR for the purpose of protecting any part of the Australian community from serious harm, suggesting that the Applicant does not pose such a risk if he were granted a protection visa.
(o)With respect to the legal consequences of removal:
(i)The applicant holds a BVR, subject to conditions that curtail his autonomy. The BVR continues in effect indefinitely, ceasing if the Minister gives notice that the applicant’s removal from Australia is reasonably practicable, that he has breached a condition to which the BVR is subject, or if the Minister grants the applicant a further BVR. If the decision under review is affirmed, the applicant will continue to reside in the community holding the BVR.
(ii)The applicant is prevented from applying for any other type of visa, by operation of ss 48A and 501E of the Migration Act.
(iii)The applicant is subject to the provisions in ss 76AAA and 198AHB of the Migration Act concerning removal pursuant to a third country reception arrangement.
(p)Those consequences weigh in favour of not refusing the visa.
At the hearing, the Applicant told the Tribunal:
(a)He had stopped drinking and would not reoffend.
(b)He regretted his offending and wanted to rebuild his life and finish his studies.
Minister’s submissions
In submissions addressing whether the Tribunal should exercise its discretion to refuse to grant the Applicant a protection visa, the Minister identified the considerations of the protection of the Australian community, family violence, and expectation of the Australian community weigh strongly against the Applicant and favour his visa being refused. In addition, the Minister identified the following:
(a)The Applicant’s repeated offending was serious and demonstrates a disregard for Australian laws. He has undertaken limited rehabilitation and there is evidence of ‘slippage’ with respect to drug use. There is an unacceptable risk of reoffending.
(b)There is limited evidence of any ties to Australia which might carry weight in his favour.
(c)If the protection visa is not granted, the BVR would remain granted, he would remain in the community and have access to supports in the community, accepting the conditions that would be imposed. The Minister submitted that this should be given some weight in the Applicant’s favour.
(d)The Applicant cannot be returned to his home country of Sri Lanka unless he volunteers to return, or the Minister revokes his protection finding, though there is not any evidence that either option will occur. Accordingly the consideration of extent of impediments if removed should be given limited weight.
(e)There is no evidence of the best interests of any minor children in Australia or any impact on Australian business interests, and these considerations should be given limited weight.
Protection of the Australian Community
Direction 110 at 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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, the Tribunal is directed to 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.[57]
[57] See also Direction no. 110 para 5.2(1).
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[58] In doing so, para 8.1.1(1) of Direction no. 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be ‘serious’. I note that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[59]
[58] Direction no. 110 para 8.1(1).
[59] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant 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 Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this consideration that I consider the impact of the offending on any victims and their family, where information regarding this 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 as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[60]
[60] Direction no. 110 para 8.1.1(1)(d).
I am required, pursuant to Direction no. 110, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[61] It is clear that there will also be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of Direction no. 110.
[61] Direction no. 110 para 8.1.1(1)(a) and 8.1.1(1)(b).
The Minister contended that the Applicant’s criminal history includes violent offences and repeated acts which constitute family violence. It was submitted that those offences fall within the description of ‘very serious’ under Direction no. 110, irrespective of the sentence imposed. It was also contended that the Applicant committed an offence against a government official, which is to be considered ‘serious’. In addition, the Minister drew attention to the fact that the Applicant has a large number of repeated offences: multiple counts of failure to state name and address or providing false details, multiple unlawful assaults, multiple property damage offences and multiple theft related offences. The Minister contended that the sheer number of offences committed could lead to an assessment that an Applicant’s offending or conduct was ‘very serious’ and that this was so in the Applicant’s case.[62]
[62] Respondent’s Reply citing Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4184 at [43].
As noted above, the Applicant contended that the total number of offences is not necessarily indicative of their seriousness, noting that in many cases the sanctions imposed on the Applicant were at the lower end of the scale, including fines or declarative outcomes. It was contended that a considerable proportion of the offending is not ‘so serious that any risk that it may be repeated may be unacceptable’.:
With respect to the violent offending, the Tribunal notes, the applicant was convicted of three offences involving physical violence or threats of violence. The circumstances of these offences, as set out in the material produced by law enforcement authorities, were:
·On 13 June 2020, the Applicant is alleged to have grabbed his flatmate by the head and punched him approximately three times over the back of his head, his forehead and eye region. There is no evidence the victim suffered lasting injuries as a result of this offence.[63]
·On 16 May 2020, the Applicant is alleged to have pushed his former partner, who was under the protection of a violence restraining order, in the chest, and punched her in the hands three times with a closed fist in order to prevent her from calling the police. The Applicant denied pushing or punching his partner but also accepted he could not recall the details of the incident as he was under the influence of alcohol.[64]
·On 9 March 2023, the Applicant is alleged to have threatened a shop owner from whom he had stolen items with a smashed wine bottle, stating that he was ‘going to bash you, I’m going to stab you’. The Applicant denied having threatened the victim but accepted he had stolen from the shop.[65]
[63] Exhibit R1, page 124, 160 – 163.
[64] Exhibit R1, pages 101 – 112.
[65] Exhibit R1, page 204.
While there were no sentencing remarks before the Tribunal recording factual findings on which the convictions were based, I consider the statements of material facts and other matters provide a consistent record of the events and can be relied upon as an accurate record, noting the Applicant was given an opportunity to respond to the material. While the Applicant challenged some of the details, he acknowledged he was under the influence of alcohol during his offences and could not recall the details. He was unable to offer a credible alternate account of events and accepted in broad terms he had committed offences for which he was convicted (with the exception of taking his partner’s laptop).

While the Tribunal notes the instruction in the Direction that violent offending is viewed very seriously by the Australian Government and the Australian community, I consider that in the Applicant’s case the offending was at the lower end of seriousness for this type, taking account of the sentences imposed and the lack of evidence of any serious harm caused to the victim of the offences.
The Tribunal considers the same could be said of most of the Applicant’s offences, including the family violence order breaches, the majority of which involved texting or calling his partner repeatedly and then going to her house at what he claims was her invitation. While such behaviour is a breach of the law and is not to be treated lightly and the Direction similarly states family violence offending is viewed very seriously,[66] I consider it is at the lower end of seriousness for offending of that type, this includes taking account of the impact on the victims as demonstrated in the records of interview and other material before the Tribunal. While there is no doubt the victims were impacted by the Applicant’s offending, there is no evidence that the victims suffered significant or lasting harm as a result of the offending, particularly noting there is no evidence the Applicant has had further contact with his former partner following the last breach convictions.[67] I find the same applies to the offences against government officials.[68] While the government and the community consider such offending is serious, and there can be no doubt such offending places a burden on law enforcement and other officials and potentially undermines conduct of their important duties, in the Applicant’s case the offences did not involve harm to those officers and was at the lower end for serious.
[66] Direction no. 110 para 8.1.1(1)(a).
[67] Direction no. 110 para 8.1.1(1)(d).
[68] Direction no. 110 para 8.1.1(1)(b).
While the Applicant did fail to disclose his criminal convictions in his application for protection, I consider an explanation for this was provided by his then representative and, given his current unrepresented state, do not consider this contributes significantly to the overall assessment of his conduct in this context.[69] It was also submitted that his long periods of unlawful status in the community suggested a disregard for Australian law. I accept that this is not conduct in the Applicant’s favour and that, notwithstanding explanations for it, it did demonstrate a disregard for what the immigration system required and a willingness by the Applicant to disregard these requirements to meet his own desired outcome of remaining in Australia. Noting, however, that the AAT found the Applicant had a real chance of suffering serious harm on return to Sri Lanka, I consider less weight should be placed on his unlawful periods as serious conduct in the context of this consideration.
[69] Direction no. 110 para 8.1.1(1)(g).
I consider that the frequency of the offending does render his conduct more serious than the individual nature of the offences.[70] Repeated offending of this kind, in particular in the fact of orders of the courts demonstrates a disrespect for Australian laws and places burdens on the operation of our justice system.[71] There can be no doubt the Applicant demonstrated a disregard for Australian laws in his repeated offending, including breaching community based orders. I consider this contributes to the overall assessment of the seriousness of his conduct and offending.
[70] Direction no. 110 para 8.1.1(1)(e).
[71] Direction no. 110 para 8.1.1(1)(f).
Similarly, while the Applicant has not been convicted of further offences since his visa was refused, he is on pending charges in relation to possession of methylamphetamine. Noting the presumption of innocence I do not place weight on these charges with respect to the assessment of the nature and seriousness of the Applicant’s conduct. However, as noted above, I consider the charges, combined with the Applicant’s admission of use of methamphetamine, contribute to the assessment of risk of reoffending.
Taking the Applicant’s record as a whole, I consider the Applicant’s conduct and offending is at the lower end of the scale of seriousness. However, his repeated offending in the face of court orders and across a number of years renders that conduct and offending to be moderately serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I am required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[72] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[73]
[72] Direction no. 110 para 8.1.2(2)(a) and (b).
[73] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
Direction no. 110 refers to the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts.[74] ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In my experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably with respect assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with reoffending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
[74] RRRB v Minister for Immigration and Multicultural Affairs [2025] ARTA 471.
As noted above, the Applicant submits that he will not reoffend. He contends he is remorseful, has undertaken rehabilitation and is now receiving treatment for mental health issues. He has also ceased consuming alcohol, misuse of which was a significant factor in his offending.
With respect to the family violence offending it was contended that the Applicant has not been convicted of further breaches of the intervention order since his last related offence in 2020. All of the family violence incidents involved one victim and there was no evidence to suggest that he contacted the victim since his last related offence and was not re-partnered. These factors suggest that the applicant poses a low risk of reoffending in relation to family violence. Further, the Applicant’s offending falls at the lower end of the scale of seriousness.
The Minister contended that there was an ongoing likelihood of reoffending and that the risk to the community was unacceptable. It was submitted that although there is no evidence that the Applicant breached the relevant family violence restraining order, the Applicant had been in a controlled environment for a substantial period of time whilst that order was in effect. While not presently in a relationship, the absence of any rehabilitation to address behaviours related to family violence, which include alcohol abuse, suggest that if the Applicant was to enter a relationship he remains at risk of re-engaging in such behaviours.
Further the Minister submitted that the fact that the Applicant is not the subject of curfew and monitoring conditions is not indicative of the applicant not posing an unacceptable risk. Nothing in cl 070.612A of the Migration Regulations 1994 (Cth), which sets the test for conditions being imposed on a Bridging Visa R, expresses that the conditions are imposed if there is considered to be an ‘unacceptable risk’ (such that not imposing the conditions means there is not an unacceptable risk, or rather an acceptable risk). Rather, the test is an entirely different and separate question to the assessment that the Tribunal is to undertake.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.
The Applicant has committed a range of offences. As noted above, I consider the offending is at the lower end of the scale for seriousness.
Repeated breaches of court orders put in place for the protection of the community cause harm, not only to the victim of those breaches by causing them the psychological harm of not feeling protected, but also by undermining public confidence in such orders. If the Applicant were to repeat such offending, the harm which would be caused to individual protected persons and to the community relying on the existence of such orders to curb threatening behaviour is serious.
Violent offending, even at the lower end of the scale, causes physical and psychological harm to victims. Such harm is serious.
Property offences, including stealing, causes financial loss to businesses and individuals. Threatening behaviour to individuals running or staffing businesses causes individual members of the community to feel unsafe at their place of work. Such harm is also serious.
I consider the nature of the harm which may be caused if the Applicant reoffend in a similar manner to his past history, to be serious, albeit at the lower end of seriousness for these kinds of offending.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[75]
[75] Direction no. 110 para 8.1.2(2)(b).
As I have noted previously, Direction no. 110 refers the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts. ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In my experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably in material relevant to assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community, which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with such offending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
The risk of the Applicant engaging in further criminal conduct has been considered in the context of the character test consideration above.
In assessing the likelihood of the Applicant reoffending I have considered the reports of Dr Heath and the Applicant’s evidence at the hearing, as well as information regarding his conduct since release from detention.
As noted above, the Tribunal has serious concerns about the Applicant’s ability to make good on his declared intention not to reoffend. Most of the prosocial or protective factors identified by Dr Heath which would reduce the likelihood of his reoffending are currently lacking or absent. The Applicant does not have the prosocial support of friends or family. He is not in stable accommodation which would enable him to seek and maintain employment or study. He has been non-compliant with medication and has not had regular access to medical or psychological support notwithstanding attempts by Life Without Borders to facilitate this.
Dr Heath assessed the Applicant presented a low likelihood of reoffending with supports and treatment in place. He assessed the Applicant to be generally at a low risk of violent offending and the Tribunal accepts that assessment. However, there is evidence that when the Applicant engages in substance use he falls below the standard of behaviour he has declared to expect of himself and he has engaged in violent offending against others, albeit at the lower end of seriousness. As such, while the Tribunal accepts that Dr Heath’s assessment of the Applicant indicated a low propensity for violent offending, that could not be ruled out if the Applicant continues to use illicit substances and/or continues to be non-compliant with medication.
Otherwise, the Tribunal considers that Dr Heath’s assessment of the likelihood of reoffending are of more limited assistance to the Tribunal given the assumptions on which the assessments were based have not eventualised. Those assessments do indicate a pathway for rehabilitation should the Applicant stabilise his circumstances, including by accessing support services and substance abuse rehabilitation support, comply with his medication regime and engage with mental health supports and reach out to those who have offered pro social support in the past. Those are matters which, on the evidence before me, are considered to be largely in the Applicant’s hands. While it was contended he would have greater support to services under the NDIS, there was evidence he has had access to current support under his BVR arrangements and has not accessed or fully accessed those supports. This casts some doubt on the submission that his current issues or risk factors would necessarily be resolved if he were granted the visa.
I note that following the delivery of my decision in this matter, the Federal Court delivered a decision in DVRL v Minister for Immigration and Citizenship [2025] FCA 876. In that judgment the court indicated that where representations are made regarding risks associated with being on one type of visa or another (in that case a permanent protection visa or BVR) the Tribunal has an obligation to make an assessment of the risk posed if the applicant remained on a bridging visa or was granted a permanent visa. Bromwich J notes at [35]:
Where a visa applicant or former visa holder will remain in the Australian community regardless of the visa decision, and depending on the circumstances, including the case that was advanced by a visa applicant (or by a former visa holder), there may be a need for an evaluation of competing risks and mitigations of the risks which flow from their presence in the community were they to be granted a particular visa, compared to the risk which flows from their presence were they not. However, I decline to elevate this to the status of a separately identified and specific obligation imposed upon the Tribunal by Direction 110 to conduct a comparison of competing risks in the manner of the counterfactuals posited by the applicant. Such an argument would be difficult to maintain, given Direction 110 has plainly not been framed in a way that contemplates the NZYQ cohort. Rather, in applying Direction 110 [8.1(2)(b)] to this case, the Tribunal had an obligation here to make an assessment of the risk posed if the applicant remained on a BVR and if he was granted a protection visa, because of the evidence the applicant adduced and the arguments he made: see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [64]-[66] (Bromwich and Wheelahan JJ, Logan J dissenting).
I have taken account of this decision in preparing reasons though submissions from the parties were not sought. I am satisfied that Justice Bromwich’s findings do not impact the decision in this case. Applying a broad scope to the representations of the Applicant I consider it may be said the Applicant contended he would be less at risk of reoffending if the protection visa was granted because this would improve his access to mental health supports through the NDIS and would stabilise his circumstances. Applying Justice Bromwich’s reasoning I would then need to consider the risk of reoffending on a protection visa compared with the risk on a BVR.
In this case I find the impact of the Applicant holding either a BVR or a protection visa on risk in the foreseeable future would not be significant for the overall consideration of whether the discretion should be exercised. This is because the likelihood of reoffending is largely driven by factors particular to the Applicant. He is currently not accessing supports available to him under the BVR arrangements, is not accessing pro social supports and is, at least on occasion, non-complaint with medication. He elected to live unhoused because he did not like the location or quality of the accommodation provided to him. He testified he is relying on illicit substance use to avoid returning to alcohol use. Arguably, the assistance he has from Life Without Borders is greater than that he would have if he were on a protection visa at least in the short term in terms of connecting to services which is an identified factor in reducing his risk of reoffending. However, the Tribunal accepts he may be more inclined over time to access services if he were on a permanent visa. He may also reengage with prosocial friends in the community if he is on a permanent visa having identified embarrassment at his circumstances as one factoring in not doing so. Neither is certain given his current circumstances and conduct.
Considering the Applicant’s circumstances as a whole, I find the likelihood of reoffending in the foreseeable future to be roughly the same if he is on a BVR or a protection visa insofar as the consideration of the protection of the Australian community is concerned.
I consider that, having regard to all the material, there remains a likelihood of the Applicant reoffending. He has limited prosocial supports in the community and he testified that he has ceased contact with family and friends and has not engaged with social support organisations since his release into the community other than with Life without Borders who is managing his case for the Department. Even in that case, his engagement appears limited.
Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to have been reduced somewhat as a result of rehabilitation efforts and diagnosis and treatment of his mental health conditions. However, the Applicant’s lack of engagement with supports in the community, demonstrated non-compliance with medication regime, ongoing unstable accommodation and lack of contact with pro social supports limits the degree to which his offending risks have been mitigated. Indeed, his ongoing instability, both in terms of his mental health and his living arrangements, presents a strong likelihood of ongoing offending related to his circumstances including property and drug offending.
However, if the offending is consistent with past offending in its nature and seriousness, I consider such offending is not so serious that any risk would be unacceptable.
Conclusion on the protection of the Australian community

I have found the Applicant’s conduct and offending was moderately serious overall. The nature of the harm which would be caused were he to reoffending is similarly serious but still at the lower end for seriousness. The Tribunal considers there is a strong likelihood he will reoffend in a similar manner. Given the nature of the harm which would be caused, I consider this is not a case where any risk is unacceptable.
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, I find that this primary consideration weighs moderately in favour of exercising the discretion to refuse the visa.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Applicant submitted that there is no substantiated evidence of family violence as the existence of a Family Violence Restraining Order (FVRO) is insufficient to establish the commission of family violence under the Direction. In any event the Applicant submitted he had not been convicted of any offence of violence against his former partner, including for the alleged conduct in May 2020
The Minister submitted that there was ample evidence the order was sought due to the Applicant’s partner fearing for her safety and that this consisted family violence.
The information before the Tribunal indicates that the breaches of the Family Violence Restraining Order and related breach of protective bail condition involved the Applicant calling his former partner repeatedly and visiting her home. He was also convicted of stealing a computer.
In this case a court issued final family violence orders for the protection of the Applicant’s former partner. Those orders were or are in place for several years and the Applicant did not contest them. While he says this was because he didn’t understand English or the nature of the orders, the Tribunal does not accept he was not given an opportunity to challenge the basis for the orders and that the issuing orders indicates the court considered there were grounds for doing so. In my view the Direction requires the Tribunal to take such information into account.
With respect to the other violence restraining orders, including those repeatedly breached by the Applicant, those orders were in place for the protection of his former partner. The Applicant accepted in cross examination that his conduct towards her would have been frightening and that she sought the orders to protect herself. He said he didn’t understand it at the time, but he accepts he should not have called her or gone to her home (though he says she asked him to come over). He denied having taken her computer.
Dr Healey refers to the Applicant living with his girlfriend and the Applicant did not suggest they were not in an intimate personal relationship of the kind contemplated by the Direction. The Tribunal considers the breaches of the family violence restraining orders are conduct which arises for consideration under this part of the Direction.
The Applicant indicated he had undertaken an anger management course in immigration detention and had learnt how to respond in situations better. There was evidence the course was completed, however no program completion reports or assessments which assessed the impact of the course on the Applicant or an assessment of a likelihood of further such conduct were filed. I note that the Applicant was ordered to undertake family violence rehabilitation as part of a community based order which was breached. There was no evidence he undertook that program.
The Minister submits, and I accept, the Applicant demonstrated little insight into the nature of his offending against his former partner. He continued to minimise the impact of repeated breaches against her. However, the I note there was no evidence he had any further contact with the victim following those offences, including during the duration of the family violence restraining order which has now ceased. I consider this demonstrates a capacity to comply with such orders and that the Applicant has accepted the end of that relationship.
While the Applicant’s repeated breaches showed a disregard for the law and for the wellbeing of his former partner, the Applicant received only a brief prison sentence for the offences indicating they are at the lower end of seriousness for this type of offending.
Having considered all the information before me I consider matters arising under this part of the Direction weigh slightly in favour or exercising the discretion to cancel the visa.
The strength, nature and duration of ties to Australia
I am required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[76] I must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regarding to how long they have lived in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[77]
[76] Direction no. 110, para 8.3(1).
[77] Direction no. 110, para 8.3(2).
The Applicant has a cousin and an uncle in Australia, though he told the Tribunal at the hearing he not in contact with them as they don’t understand him and have their own issues and history. The Applicant stated that he is no longer in contact with his friends in Australia as his is embarrassed about his circumstances and wants to get his life back on track.
The Applicant arrived in Australia when he was 20 years old. He has lived here since and has returned several times to see family in Sri Lanka. His first recorded offence was in 2019, 2 years after his arrival.
The Minister contended that the Applicant’s ties were limited.
The Applicant provided letters of support from his mother and sister in Sri Lanka, and his friends in Australia, Nimalakaran Sinnakkili[78] and Jason Francis.[79] He also provides letters of support from community organisations offering to support him in the community.[80] There was no evidence from his family members in Australia.
[78] Exhibit R1, pages 308 – 309.
[79] Exhibit R1, page 310.
[80] Exhibit R1, pages 311-312, 313.
The Applicant testified he has worked in Australia and he did 3 years of a 4-year degree at Deakin University. He wants to complete his studies.
The Tribunal accepts the Applicant has worked and studied in Australia and has some ties through friends and family here. He is currently not in contact with those ties but he indicated if he remains in Australia and can turn his life around and restart university he would reconnect.
Overall, the Tribunal considers the Applicant has demonstrated very limited ties to Australia. There was limited evidence of social or community ties and I find that the strength, nature and duration of the Applicant’s ties to Australia weigh only slightly in favour of not exercising the discretion to refuse the visa.
Best interests of minor children in Australia affected by the decision
I must also consider the best interests of the minor children in Australia affected by the decision. There is no evidence that suggests the Applicant has any minor children in Australia. Consequently this consideration carries neutral weight.
Expectations of the Australian Community
I am required to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that 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.
Direction no. 110 notes that 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 particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in paragraph 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’. The Tribunal has found earlier that the Applicant has been convicted of offences which are viewed very seriously or considered to be serious under these provisions Albeit it at the lower end of seriousness for offending of that type.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, paragraph 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Applicant has engaged in conduct and offending which I have found means he does not pass the character test. There is a risk he will commit further offences in the future. His conduct and offending raises character concerns which engage the norm identified in the Direction. I find the Australian community would expect that the Applicant’s would not be granted a permanent visa. Accordingly, the expectation of the Australian community weighs in favour of exercising the discretion to refuse.
However, it remains for me to determine the appropriate weight to be given to this consideration. This will depend on my assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, I am also guided by the principles in paragraph 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
I note the Applicant did not arrive as a child or spend his formative years here, and has not spent most of his life in Australia. As such he would not be afforded the kind of additional tolerance identified in Direction no. 110.
It was contended by the Applicant that the community would expect the Australian Government to enable the Applicant to remain permanently in Australia through the grant of the visa noting he is relatively young, mentally ill and a refugee who is treatment compliant and who has not committed a serious violent or sexual offence, and that remaining would enable him to obtain treatment, and to complete a university degree. The Tribunal considers this ‘expectation’ runs contrary to the expectation deemed in the Direction and invites me to make my own assessment of the community’s expectations. Such an approach is not consistent with the Direction.
Overall, I consider this primary consideration weighs moderately in favour of refusing to grant the visa.
Other considerations
Paragraph 9 of Direction no. 110 states:
(1)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;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.
The Applicant submitted that the consequences that flow from the decision are as follows:
·As a protection finding has been made in respect to the Applicant within the meaning of s 197C(5) of the Migration Act, the Applicant’s removal to Sri Lanka is neither required nor authorised by s 198 of the Act: s 197C(3).
·At present, there is no real prospect of the Applicant’s removal from Australia in the reasonably foreseeable future and his detention is not authorised by ss 189 and 196 of the Migration Act.[81]
·The Applicant holds a BVR which continues in effect indefinitely, ceasing if the Minister gives notice that his removal from Australia is reasonably practicable, that he has breached a condition to which the BVR is subject, or if the Minister grants the applicant a further BVR. If the decision under review is affirmed, the applicant will continue to reside in the community holding the BVR. The conditions of that visa curtail his autonomy and limit his potential access to support services.
·The Applicant will be prevented from applying for any other type of visa, by operation of ss 48A and 501E of the Migration Act.
·The Applicant is subject to the provisions in ss 76AAA and 198AHB of the Migration Act concerning removal pursuant to a third country reception arrangement. The only country currently identified for such a purpose is Nauru. The prevailing conditions in that country present risks to the Applicant’s mental health and physical well-being.
[81] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
The Minister contended that the direct and immediate legal consequence of a decision to refuse the visa would be that the Applicant would remain lawfully in the community as the holder of a BVR.
The Minister accepted the Applicant is the subject of a protection finding and that his removal to Sri Lanka is neither required not authorised. The Minister also accepted the Applicant cannot be detained noting there is no real prospect of his removal to a third country becoming practicable in the reasonably foreseeable future. The Minister accepted the Applicant would be prevented from applying for any other visa, other than a BVR. However, the Minister did not accept the conditions of the BVR curtailed the Applicant’s autonomy and noted that the BVR may also cease if the Minister cancels the visa under one of the character cancellation powers, the Applicant departs Australia, or a visa is granted under s 33 of the Migration Act.
In relation to the Applicant being subject to the provisions in s 76AAA of the Migration Act the Minister submitted that to be subject to s 76AAA, the Applicant must satisfy each element of s 76AAA(1). It was contended that if the Tribunal affirms the decision, the Applicant still will not satisfy s 76AAA(1)(c) or (d) because the only third country reception arrangement currently in place between the Commonwealth and Nauru is that which was entered into on 12 February 2025 (TCRA) which only applies to three specified individuals.
If the protection visa is granted, the legal consequence of the decision is that the Applicant hold a permanent visa to remain in Australia. He will not be a removal pathway non-citizen and will not be required to comply with the conditions of the BVR he currently holds. [82]
[82] In preparing these reasons I have considered recent decision of the Tribunal concerning holders of BVRs including CRVF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1010 (7 July 2025); PRSY and Minister for Immigration and Citizenship (Migration) [2025] ARTA 983 (9 July 2025)
The consequences of a visa refusal under s 501 of the Migration Act or related provisions include:
- Unlawful status;
- The likelihood of becoming subject to detention and/or removal;[83]
- Refusal of other visa applications and cancellation of other visas;[84]
- A prohibition on applying for other visas;[85] and
- Periods of exclusion and special return criteria may apply.[86]
The obligation to remove an unlawful non-citizen under s 198 does not arise if a ‘protection finding’ has been made in respect of a finally determined protection visa application.[87]
[87] Migration Act s 197C(3).
The Direction provides that non-citizens covered by a protection finding 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.[88]
[88] Direction no. 110 cl 9.1.1(2).
As noted above, the Applicant is the subject of a protection finding and has been granted a BVR and released from immigration detention. He will continue to hold a BVR if the decision to refuse the protection visa is affirmed. For these reasons the Applicant will remain in the community whatever the Tribunal’s decision, either as the holder of a BVR or as the holder of the protection visa
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 501.[89] 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.[90] While that case concerned the exercise of a different power under s 501, I consider the same principles apply.
[89] Ali v Minister for Immigration and Border Protection [2018] FCA 650.
[90] Ali v Minister for Immigration and Border Protection [2018] FCA 650, at [31]–[33] per Flick J.
If the visa is refused under s 501, the Applicant prevented from applying for any other type of visa without the intervention of the Minister. It follows that if the Tribunal affirms the decision under review, he will continue to reside in the community as the holder of the BVR. That visa will only cease if the Applicant departs Australia or where:[91]
·the Minister gives notice stating that the Minister is satisfied that the applicant’s removal from Australia is reasonably practicable;
·the Minister gives notice that stating that the applicant has breached a condition of the BVR; or
·the Minister grants the applicant a further BVR.
[91] Migration Regulations cl 070.511.
The conditions of the Applicant’s BVR are set out in an attachment to a letter dated 28 April 2025 notifying him of the grant of the visa.[92] Those conditions cover a range of matters including a requirement to report as directed (daily by telephone), report for and facilitate removal from Australia, obtain approval for certain occupations, and notify for any interstate or overseas travel among other conditions. While I did not consider any of these conditions to be particularly onerous it is accepted that they do curtail the Applicant’s liberty in some respects and failure to comply with some conditions may open the Applicant to criminal sanction.
[92] Exhibit A1.

The Applicant receives supports currently through Life Without Borders to assist him in finding accommodation, employment and accessing medical and mental health services. As noted above, the Applicant has struggled to engage with these services and has elected to live on the street. However, the Tribunal does not consider those circumstances are a consequence of the refusal of his protection visa but rather are the result of the complexity of the Applicant’s mental health issues, failure to accept offers of prosocial support and social service support and ongoing use of illicit substances.
While the Applicant accepted the Tribunal could not make a finding that the Applicant would be eligible to receive assistance under the NDIS if the visa was granted, it was submitted that if it were not granted he would not be eligible for such assistance.[93] The Minister submits the Applicant’s access to the NDIS is not ‘a direct and immediate statutorily prescribed consequence’ of the Tribunal’s decision. I consider that his ineligibility is a legal consequence of the decision as it directly and deliberately flows form restrictions on services available to BVR holders.[94] However, I consider that in the Applicant’s case it would be speculative to find that he would be eligible for the NDIS, in the event he chose to apply, if the visa is not refused such that might weigh in favour of not exercising the discretion.
[93] Under National Disability Insurance Scheme (NDIS) Act 2013 (Cth) s s 23.
[94] CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 [61].
A BVR holder under the Migration Act is a ‘removal pathway non-citizen’. Under s 199B, a removal pathway non-citizen for whom a protection finding has been made may be given a ‘removal pathway direction’ by the Minister to do specified things necessary to facilitate their removal, and the non-citizen must comply or face a mandatory sentence of imprisonment. However, a removal pathway non-citizen cannot be removed to a country in respect of which a protection finding has been made in relation to the non-citizen. This means removal to Sri Lanka would not occur.
The effect of these and other amendments made to the Migration Act is that, in addition to the Minister being able to decide that a non-citizen is no longer a person in respect of whom any protection finding would be made under s 197(1), the government can arrange for the non-citizen to be received by a third country. While the Applicant cannot be removed to Sri Lanka, 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.
The Minister submitted that the Court held in TCXM v Minister for Immigration and Multicultural Affairs (TCXM), entry into an agreement with a third country is an exercise of non-statutory executive power and therefore not a ‘statutorily prescribed consequence’ of a decision to affirm.[95] Therefore s 198AHB only applies if the Commonwealth exercises its executive power to enter into a third country reception arrangement and the evidence before this Tribunal, insofar as the Applicant is concerned, is that the Commonwealth has not done so. The agreement with Nauru entered into on 12 February 2025 does not cover the Applicant and as such the power under s 198AHB is not enlivened with respect to the Applicant.
[95] TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [110]-[127]
The Tribunal must have regard are the ‘direct and immediate statutorily prescribed consequences’.[96] In TCXM, the Federal Court of Australia held that entry into a third country reception arrangement involves an exercise of non-statutory power and as such was not a statutorily prescribed consequence.[97]
[96] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [9]-[10] (Allsop CJ and Katzmann J), [177]-[178].
[97] TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [127] and [129]
In the same decision, the Court noted that it was common ground that the act of applying for a Nauruan visa pursuant to the Interim Arrangement was an exercise of statutory power, namely the power conferred by s 198AHB(2).[98] I consider that the exercise of the statutory power conferred by s 198AHB(2) is part of the legal framework in which this decision is made and therefore must be taken into account.
[98] Ibid at 142
I refer to the consideration by Senior Memebr Murphy of the arrangements between the Commonwealth and Nauru.[99] I will not repeat that discussion here. In another decision Deputy President Millar considered the process for the exercise of statutory power under s 198AHB(2), noting in particular the lack of review of a decision under that provision.[100]
[99] CRVF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1010.
[100] PRSY and Minister for Immigration and Citizenship (Migration) [2025] ARTA 983.
I accept that while section 199D of the Migration Act prevents the Minister from giving a removal pathway direction to any country in respect of which that non-citizen has a protection finding, s 198AHB allows a non-citizen to be removed to a foreign country that is a party to a third country reception arrangement.
It is clear that a legal consequence of refusal would be the Applicant would remain on a removal pathway on a BVR. His exposure to removal to a third country is a legal consequence of the decision. In my view, the significance of that legal consequence for the purpose of this decision does not rest in the third country to which the Applicant might be removed if an agreement was reached with respect to him, or a class of persons to which he belongs (such as persons affected by the decision in NZYQ). The significance lies in the ongoing uncertainty created by the prospect of removal and the lack of any avenue for review. Such consequences are significant, particular for the Applicant who has ongoing need for mental health support and treatment. In my view that consequence weighs heavily against exercising the discretion to refuse the visa in the Applicant’s case.
In these circumstances, I consider that the legal consequences of the decision weigh strongly in favour of granting the protection visa.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in their home country, in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
It was not suggested by either the Applicant or the Respondent that the Applicant would be subject to removal to Sri Lanka, noting he is the subject of a protection finding.
However, the Applicant did submit under this consideration that the finding the Applicant is owed protection and the findings of the AAT in that regard, demonstrates serious risks the Applicant faces if returned to his country of origin.
The Minister contends that as the Applicant cannot be returned to his ‘home country’ Sri Lanka, the extent of the impediments that he would experience in that country is not a matter which should attract any weight.
As I have previously observed,[101] issues concerning the Applicant’s possible third country resettlement might be relevant to determining if there is another reason why the discretion to refuse the visa should be exercised, in my view the issue of settlement to a place which is not the Applicant’s country of citizenship or the country in which they are ordinarily resident does not arise for consideration under this part of the Direction. ‘Home country’ has a clear meaning in the Migration Regulations.[102]
[101] YLLP and Minister for Immigration and Citizenship [2025] ARTA 998.
[102] Migration Regulations reg 1.03.
At present, the Applicant cannot be removed from Australia to Sri Lanka as he is the subject of a protection finding where the country of reference is Sri Lanka.
The Applicant submitted that, in the event the Applicant is not granted a Protection Visa, he is liable to be granted new BVRs, including with discretionary conditions imposed and that the imposition of these conditions are unlikely to provide any benefit to the Australian community and would limit the Applicant’s ability to finalise his studies, obtain employment and engage with support services.
It was contended in initial submissions that there was no third country that would be able or willing to accept the Applicant and that his complex mental health conditions must also be considered as a barrier to removal and integration in a third country. The impediments to and of removal are therefore very significant and this consideration weighs strongly against refusing the visa. I note that this submission was at odds with the later Victorian Legal Aid submissions that the Applicant’s removal to Nauru was a foreseeable legal and practical consequence of the refusal of his visa.[103] In any event, I have considered the fact the Applicant will remain on a removal pathway if the visa is refused under the consideration of the Legal consequences of the decision. I do not consider it has application under this consideration.
[103] ASFIC para [6.d].
There was no suggestion the Minister was considering a decision under s 197D, and as such there is no evidence to support a finding that the Applicant faces impediments if removed to that country other than as a matter of speculation. If such a decision were made it would be on the basis the Applicant no longer meets the criteria for a protection finding refusal of the protection visa but on the basis of a subsequent and separate decision.
There is no information before the Tribunal to suggest that the Applicant will be removed to Sri Lanka in the reasonably foreseeable future as a result of the decision to refuse his visa. As such the Tribunal finds this consideration weighs neither for nor against exercising the discretion in the Applicant’s case.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
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.
There is no evidence before the Tribunal that refusing the Applicant’s visa will have any impact on Australian business interests and I find this consideration carries neutral weight.
CONCLUSION
I have found that the Applicant does not pass the character test under s 501 of the Migration Act, and I must consider whether the discretion to refuse the Applicant the grant of a protection visa should be exercised, having regard to the primary and other considerations in Direction no. 110..
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed. I must weigh the various primary and other relevant considerations outlined in Direction no. 110 against each other and undertake an evaluation of whether the discretion to refuse the visa should be exercised.
In determining the weight to be applied to each consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. I have gone on to compare and balance all of the considerations.
I have found that the Applicant’s offending is at the lower end of the spectrum of seriousness and that the risk to the community is moderate. The protection of the Australian community weighs moderately in favour of exercising the discretion not to grant him the visa. Similarly, although the Applicant has engaged in conduct which constitutes family violence, that conduct was at the lower end of the spectrum and weighs only slightly in favour of exercising the discretion not to grant the visa. The expectations of the Australian community weigh moderately in favour of refusing to grant the visa.
The Applicant has limited ties to the Australian community and this consideration only carries slight weight in favour of not exercising the discretion to refuse to grant the visa.
The consideration of the best interests of children carries neutral weight noting no children were identified as being impacted by the decision.
The legal consequences of the decision weigh strongly in favour of not exercising the discretion to refuse to grant the visa. The extent of impediments if he is removed from Australia weighs neither for nor against not refusing the grant of the visa, and the impact on Australian business interests is neutral.
The Applicant has repeatedly breached Australian laws, including with respect to conduct constituting family violence, albeit at the lower end of the spectrum for seriousness. He has limited ties to the community and the community’s expectation is that he would be refused a visa. However, he has been found to be owed protection and must remain in Australia unless he can be removed to a third country. At this stage no third country has been identified for the Applicant’s removal and he will remain in Australia on a temporary visa if the discretion to refuse the visa is exercised. The legal consequences are significant for the Applicant.
Generally primary considerations are to be given greater weight than other considerations. The protection of the Australian community is to be given greater weight than other primary considerations. However, in this case I find that the considerations weighing in favour of not exercising the discretion to refuse the Applicant a protection visa outweigh those that weigh in favour.
Accordingly, the correct or preferrable decision is that the decision under review be set aside and substituted with a decision that the visa not be refused under s 501(1) of the Migration Act.
DECISION
The decision of a delegate of the Minister dated 28 April 2025 to refuse to grant the Applicant a Protection (Class XA) (subclass 866) visa is set aside and substituted with a decision not to refuse the grant of the visa under section 501(1) of the Migration Act 1958 (Cth)

I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Simone Burford

..............................[sgd]..........................................
Associate
Dated: 4 August 2025

Date of hearing: 14 & 15 July 2025

Applicant: KZYH

Counsel for the Respondent: Ms Madisen Scott

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE A – APPLICANT’S CRIMINAL HISTORY

Offence	Offence Date	Court	Sentence Imposed	Sentence Date
Persist contra family violence NTC/order	12 March 2019	Bail and remand court	Initial sentence: No conviction. 12 month Community Correction Order (CCO) and 75 hours of community work. Breach of CCO on 16 May 2020. Applicant convicted and resentenced to $500 fine and 21 days imprisonment.	1 June 2019
Unlawful assault
Commit indictable offence whilst on bail (2 charges)
Contravene a conduct condition of bail (2 charges)
Fail to answer bail
Commit indictable offence whilst on bail	26 September 2020	Ringwood Magistrates Court	With conviction, fined an aggregate of $900.00	23 November 2020
Contravene a conduct condition of bail
State false name when requested
State false address when requested
Fail comply requirement of auth officer
Resist emergency worker on duty	Ringwood Magistrates Court	With conviction, fined $200.00	23 November 2020
Contravene a conduct condition of bail	Ringwood Magistrates Court	With conviction, fined $100.00	23 November 2020
Burglary	16 May 2020	Ringwood Magistrates Court	Aggregate 1 month	23 November 2020
Intentionally damage property (2 charges)
Unlawful assault
Contra-fam violence final intervent order	29 May 2020	Ringwood Magistrates Court	14 days’ imprisonment. Concurrent.	23 November 2020
Use a carriage service to harass	Ringwood Magistrates Court	7 days imprisonment. Sentence to commence on 23/11/2020. Time spent in custody, 59 days, reckoned as a period of imprisonment already served under this sentence.	23 November 2020
Unlawful assault	Ringwood Magistrates Court	Aggregate 1 month imprisonment. Base sentence.	23 November 2020
Persist contra family violence NTC/order	Ringwood Magistrates Court	Aggregate 1 month imprisonment. Base sentence.	23 November 2020
Contravene community correction order	Ringwood Magistrates Court	Proven	23 November 2020
Criminal damage (intent damage/destroy)	13 June 2020	Bail and Remand Court	With conviction, fined an aggregate of $750.00	19 February 2023
Theft from shop (shop steal)
Unlawful assault
Act prejudicial – security/order/MGMT Gaol
Refuse or fail to state name and address
Commit indictable offence whilst on bail (2 charges)
Mark graffiti on property w/o consent	25 September 2022	Melbourne Magistrates Court	Convicted and discharged.	3 May 2023
Possess methylamphetamine	25 September 2022	Melbourne Magistrates Court	Convicted and discharged.	3 May 2023
Wilfully damage property	25 September 2022	Melbourne Magistrates Court	30 days imprisonment. Concurrent.	3 May 2023
Use threatening words in public place	9 March 2023	Melbourne Magistrates Court	Aggregate 60 days imprisonment. Concurrent.	3 May 2023
Theft from shop (shop steal)
Unlawful assault
Commit indictable offence whilst on bail
Drunk in a public place	Melbourne Magistrates Court	Convicted and discharged.	8 February 2024
Attempt Theft	Melbourne Magistrates Court	With conviction, fined an aggregate of $600.00	8 February 2024
Theft from Shop (shop steal)	Melbourne Magistrates Court	With conviction, fined an aggregate of $600.00	8 February 2024

ANNEXURE B – PERIODS OF BEING AN UNLAWFUL NON-CITIZEN[104]
[104] Taken from the Department of Home Affairs’ file note made 9 January 2025 at Exhibit R1 page 248.

Period	Days
31 August 2020 to 23 November 2020	23 days
12 December 2020 to 15 December 2020	3 days
14 January 2021 to 5 May 2023	841 days
20 May 2023 to 23 June 2023	37 days
1 July 2023 to 9 January 2025	739 days

ANNEXURE C – PERIODS OF IMPRISONMENT/REMAND/DETENTION[105]
[105] Taken from the Department of Home Affairs’ file note made 9 January 2025 at Exhibit R1 page 248.

Period	Days	Detention
28 September 2020 to 23 November 2020	56 days	Criminal detention
11 April 2023 to 7 May 2023	26 days	Criminal detention
22 June 2023	1 day	Immigration detention
31 August 2023 to 11 September 2023	12 days	Criminal detention
11 September 2023 to 28 April 2025	595 days	Immigration detention

Date of hearing:	14 & 15 July 2025
Applicant:	KZYH
Counsel for the Respondent:	Ms Madisen Scott
Solicitors for the Respondent:	Australian Government Solicitor