PFQG and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 260

PFQG and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 260 (7 March 2025)
Applicant:PFQG
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10738

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:7 March 2025
Date of written reasons: 18 March 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant’s application for a visa not be refused under section 501(1) of the Migration Act, 1958 (Cth).
Written reasons for this decision will be provided within a reasonable time hereof.
....................................[sgnd].................................
Senior Member N Manetta

Catchwords
MIGRATION – refusal of protection visa under s 501(1) of Migration Act 1958 (Cth) – applicant does not pass character test – applicant committed act of gross indecency in presence of a child – exercise of discretion to refuse visa – Direction 110 – applicant from Myanmar and owed non-refoulement obligations – applicant has behavioural problems and has a guardian – applicant recently placed on bridging (removal pending) visa – decision set aside
Legislation
Acts Interpretation Act, 1901 (Cth)
Administrative Appeals Tribunal Act, 2024 (Cth)
Guardianship and Administration Act, 1990 (WA)
Migration Act, 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

The hearing in this matter concluded on 6 March 2025, and my written decision was delivered on the following day. When I gave my decision, I was clear as to the appropriate outcome and my reasons, but time had not allowed me to prepare detailed written reasons.[1] My decision indicated that written reasons would be provided within a reasonable time.[2] I now publish my written reasons.
[1] The last day by which I had to render a decision, failing which the decision under review would be taken to be affirmed in law, fell on Monday, 10 March 2025, a public holiday in Adelaide. I decided to give my decision, if possible, on Friday, 7 March rather than hold over the decision to Tuesday, 11 March, which may have been too late (depending on the view taken of the applicability, or otherwise, of s 36(2) of the Acts Interpretation Act, 1901 (Cth)).
[2] This course is permitted under s 111(3) of the Administrative Review Tribunal Act, 2024, when read with the applicable practice direction.
This is an application by ‘PFQG’, a person whose name has been anonymised in the interests of confidentiality and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of a decision of the respondent’s delegate dated 16 December 2024 refusing his application for a Safe Haven Enterprise (Class XE) visa, a form of protection visa. The refusal took place under s 501(1) of the Migration Act, 1958 (Cth) (‘the Act’). This section permits the respondent to refuse the grant of a visa in his or her discretion where the applicant fails the so-called ‘character test’ as described in section 501. In this case, the respondent’s delegate decided that the applicant failed the character test on account of his conviction of a sexually based offence involving a child. I shall describe that offending in due course.
Having decided that the jurisdictional threshold under section 501(1) of the Act was satisfied, the delegate then considered the exercise of the discretion. In this regard, the delegate was required to apply Direction no. 110, issued under s 499 of the Act (‘the Direction’).[3] After weighing all the relevant considerations arising under the Direction, the delegate concluded that the discretion should be exercised to refuse a visa.[4]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
[4] The delegate’s decision and reasons were before me at Hearing Book (‘HB’), 29ff.
TRIBUNAL’S TASK
I must address the same two questions as the delegate. The applicant does not pass the character test. Section 501(6)(e) of the Act provides that a person does not pass the character test where the person has committed a sexually based offence involving a child. There is no doubt that this was the case here. The only contestable matter, therefore, concerns the exercise of the discretion. Like the delegate, I must also apply the Direction in this regard.
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[5] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it. Equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.[6]
[5] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal’s exercise of jurisdiction.
[6] This paragraph is one I routinely insert in my decisions in this area to describe the Tribunal’s merits review function.
At the hearing before me, Mr Moyes appeared for the applicant; Mr d’Assumpcao, for the respondent. I acknowledge their assistance to me. Both made helpful and measured submissions.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s visa application not be refused under s 501(1) of the Act. I set out below the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The applicant is 52 years of age. He arrived in Australia by boat on or about 1 June 2013. It would appear that he spent approximately six months in an immigration detention centre on Christmas Island before being released into the community on a bridging visa. Eleven years ago, the applicant was found in possession of a knife in a public place or school. On 7 April 2014, he appeared in the Beenleigh Magistrates Court in Queensland in respect of this offending. No conviction was recorded, he was released on a recognisance of $100 and was required to be of good behaviour for three months.[7] I infer from the result that the offence was treated by the Court as a relatively minor one. I have also formed the view that this offence cannot be a ‘tipping point’, so to speak, in my deliberations, and so I need not refer to it again.
[7] HB, 46.
On 3 August 2016, the applicant appeared in the Burwood Local Court in New South Wales. He pleaded guilty to an offence of committing an act of indecency with a person under the age of 16 years. The facts surrounding the offending are as follows, and in this regard I base myself upon, and accept, the facts as set out in the police facts sheet that informed the sentencing remarks.[8] The applicant was in a toilet block near an Anglican church hall on 15 May 2016 at about 6.30 pm. (Other evidence before me suggests the applicant may have had casual employment at the hall.) A ten-year-old boy entered the toilet block to wash his hands. After he had finished washing his hands, the boy began to leave the toilet area; and as he was about to walk through the doorway, he saw the applicant about half a metre away to the left-hand side. The boy saw the applicant with his pants down to his knees, and the applicant had his hand over his penis. The boy witnessed the applicant moving his hand back and forth while he was looking at the boy. The applicant held out a piece of tissue and mumbled something incomprehensible to the boy. The boy believed the applicant wanted him to wipe the applicant’s penis with the tissue. The boy ran off and told his mother. The applicant was arrested two weeks later when the boy saw the applicant again at the church hall. The police fact sheet notes that the boy was not physically injured, but that he was suffering ‘psychological trauma’ and was unable to attend the toilets at the church hall for fear of being assaulted.
[8] HB, 47ff.
The very brief sentencing remarks were before me in the form of a transcript.[9] The Court refers to the offence being very serious and one committed against a vulnerable member of the community. It also refers to a plea of guilty having been entered at the first possible opportunity; but mention is also made of a reference in the presentence report to the applicant having denied the offence. The Court sentenced the applicant to twelve months’ jail to be suspended on condition that he be of good behaviour and commit no further offences.
[9] Part of Ex A1, p 5 of 5.
The applicant was apparently taken into immigration detention on the day of sentencing as his bridging visa had earlier been cancelled under the Act because of the charge that had been laid. The applicant then spent over eight years in detention before being released on a bridging (removal pending) visa in late 2024.
The respondent drew my attention to a number of instances of misconduct involving the applicant while he was in detention. These are detailed in the respondent’s Statement of Facts, Issues and Contentions.[10] They are also detailed in the delegate’s reasons.[11] As the respondent’s Statement indicates, the behaviour in question often appeared ‘erratic’, and it also reflected, according to a psychiatric review, ‘emotional dysregulation’ attributable to ‘chronic stress and ongoing conflicts in detention’.[12]
[10] HB, 251-252 [16].
[11] HB, 34-35 [32].
[12] HB, 251 [16.2.1], [16.2.2], [16.2.5], [16.3].
I bear in mind that many of the events in question occurred after the applicant had spent a considerable amount of time in detention. He did not know in advance when exactly his detention might end. In the event, he ended up spending more than eight years in detention. The stresses associated with a prolonged and ongoing period of detention provided a specific context for at least some of the applicant’s behaviour that I also need to weigh in my opinion. I accept that the applicant’s functioning can be erratic and unpredictable, but I do not believe it would be safe to conclude from the applicant’s behaviour in detention that he has entrenched anti-social tendencies and that he poses a risk of violent behaviour when in the community. As is the case with the offence in 2014, I have decided that the applicant’s behaviour in detention is not a ‘tipping point’ in my deliberations, and I need not refer to it further.
REASONS
Prefatory remarks
With this background in mind, I come to the Direction. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in [15] – [18] below.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I turn first to consider the protection of the Australian community.
Paragraph 8.1(1) requires decision-makers, when they are considering the protection of the Australian community, to keep in mind that the community’s safety is the highest priority of the Australian Government. This paragraph further records that the Government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers are to have particular regard to the principle that entering and 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. I bear this principle in mind.
Paragraph 8.1(2) provides that decision-makers should also give consideration to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I turn first to consider the nature and seriousness of the applicant’s conduct to date. Paragraph 8.1.1(1) provides that decision-makers must have regard to a number of matters that appear in paragraphs (a) to (i).
Paragraph (a)(ii) nominates sexual crimes against children as very serious offences regardless of the sentence imposed. Accordingly, I regard the applicant’s offence as a very serious one. I must also have regard to the impact of the offending on the victim where information in this regard is available.[13] The police facts sheet indicates that the victim was suffering psychological trauma (at the time the applicant was sentenced in 2016) and was unable to attend the church hall toilets for fear of being assaulted.[14] That is the only information before me. I take it into account, and I think I can also fairly assume that there may well be ongoing effects for this victim; but in the absence of other evidence, I can be no more definite than that.
[13] Paragraph 8.1.1(d) of the Direction.
[14] HB, 50.
I turn now to consider the question of risk. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. I bear that principle in mind, and there is an obvious potential for its application in the case of sexually based offences involving children.
In assessing the risk that the applicant poses to the Australian community, I am to have regard to two matters ‘cumulatively’; first, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, and secondly, the likelihood of his so doing taking into account information and evidence on the risk of the applicant reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
The harm to a child who witnesses an act of gross indecency and is invited to participate in it, as the victim was in this case, is difficult to predict, as much will depend upon the psychological disposition of the child in question. But there is no doubt that it can be very serious. A child’s psychology is frequently delicate and is in all cases immature. A confronting and coarse act of gross indecency of the type that occurred in this case can have a lasting, sometimes indelible, impact whatever understanding the victim may be able to reach later in life in respect of the aberrant misconduct. I bear that steadily in mind.
The likelihood of the applicant re-engaging in this conduct is difficult to estimate. There are a number of matters to be borne in mind in my opinion. First, the applicant did not demonstrate any remorse in respect of the offending. In cross-examination, he flatly denied all aspects of the offending. He has always adopted that position. As I have already said, the sentencing Court noted the reference in the presentence report that he denied the offending.
In these circumstances, I cannot lessen my estimate of the applicant’s risk on account of remorse. That said, it does not follow from an absence of demonstrated remorse that the risk of recidivism is necessarily high. It would be illogical to reason in that way.
Secondly, the extent to which the applicant will be deterred from this behaviour in the future is relevant. I am not persuaded on the evidence before me that the applicant committed this offence while under some substantial mental disability. The applicant’s representative at the sentencing hearing referred to the fact that the applicant had no mental health issues that had been disclosed to him or her. The representative added that the applicant had denied being formally admitted to any mental health facility. The representative did venture a view, based upon his or her own interactions, that the applicant might potentially be suffering from some ‘undiagnosed issues’ stemming from loneliness in the community.[15] All in all, this was a view offered during a plea in mitigation.
[15] Ex A1, transcript, p 4 of 5.

The applicant entered detention and spent over eight years there. He could not help but be significantly deterred by this experience were he ever to contemplate a further act of gross indecency in the presence of a child. The loss of liberty that he experienced in detention as a consequence of his offending behaviour[16] was extremely long. Given the severe consequences he has experienced, I do not believe that the applicant would seriously entertain a further indecent act in the presence of, or with, a child to satisfy his own urge for gratification. I am not persuaded on the evidence that the applicant is presently disturbed to an extent that it would make deterrence of this type irrelevant in his case.
[16] Since it led to the cancellation of his visa.
That said, I bear in mind the assessment that has been made in respect of the applicant’s very low mental functioning. I had before me a report from a clinical psychologist, Dr Brooker, dated 12 October 2020.[17] The psychologist indicated that the applicant had sound mental health based on her interactions with him[18] and she did not believe he had an autism spectrum disorder. She did conclude, however, that he had poor frontal-lobe function. Her conclusion was that the applicant had a significantly reduced intellectual ability and that his functioning was erratic and unpredictable.[19]
[17] Part of Ex A1.
[18] Ibid, p 8 of 9 of the report.
[19] Ibid.
This report was apparently sent to the relevant guardianship authority, the Western Australian State Administrative Tribunal (‘SAT’), which found that the preconditions for the making of a guardianship order were established in the applicant’s case. The SAT made a limited order of guardianship (in favour of the Public Advocate) in respect of matters involving the applicant’s immigration status. An amendment to the SAT’s guardianship order refers to the initial order having been made on 22 December 2020.[20] The four preconditions for the making of an order are statutorily prescribed,[21] and these were found to have been met in the applicant’s case. These four preconditions were as follows: the applicant was incapable of looking after his own health and safety; he was unable to make reasonable judgments in respect of matters relating to his person; he was in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and he was in need of a guardian.
[20] HB, 174-175.
[21] See s 43 of the Guardianship and Administration Act 1990 (WA).
I think that is an important aspect of the matter because there is clearly some impairment in the applicant’s intellectual functioning that would make his risk profile higher than it might otherwise be.
All in all, however, I do believe deterrence still has a significant role to play in this applicant’s case; whilst I acknowledge that he exhibits poor intellectual functioning as well as erratic and unpredictable behaviour, and that these factors operate to raise his risk of recidivism.
Thirdly, I should take account of expert opinions in respect of the applicant’s risk profile. I bear in mind the actuarial assessment that was part of the presentence report. This assessment had regard to so-called ‘static’ risk factors; i.e., factors which depended solely on the applicant’s history. The conclusion reached there was that the applicant fell into the ‘moderate low’ risk range although I note that no one-on-one assessment took place.[22]
[22] HB, 760.
Fourthly, I should take into account the applicant’s overall history in the community. The applicant has been in the community most recently for approximately two months, but only two months, since his release in late 2024. There have been no recorded incidents in this time. There is no evidence suggesting the applicant was involved in child-sex offending between his arrival in Australia in June 2013 and the commission of the offence in May 2016.[23] I accept that the applicant has spent a limited time in the community, but what time he has spent does not demonstrate more than the one offence.
[23] Noting that part of this time was spent in detention on Christmas Island.
All in all, I have concluded that it is appropriate to assess the risk of recidivism as moderate trending towards low.
It was an agreed position between the parties that the family-violence consideration under paragraph 8.2 of the Direction carries neutral weight.[24]
[24] See HB, 253 [24].
So far as ties to the Australian community are concerned,[25] the applicant has few if any. He has spent the vast majority of his time in Australia in immigration detention. It would appear that he has never been employed. He is not living with family in the community, I note. He has a case worker from LWB,[26] who has assisted him most recently with his accommodation needs. There is no evidence before me that he has any regular contact with family members or has any friends in Australia. I generally agree with the delegate’s analysis of the situation,[27] and I attach no weight to this consideration.
[25] Paragraph 8.3 of the Direction.
[26] ‘Life Without Barriers’.
[27] HB, 38-39 [47]-[59].
There are no interests of minor children to consider in this case under paragraph 8.4 of the Direction.
Paragraph 8.5 of the Direction requires me to take into account the expectations of the Australian community. Paragraph 8.1(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where non-citizens have engaged in serious conduct in breach of the expectation, or there is an unacceptable risk of their doing so in the future, the Australian community expects the Government to refuse them permission to remain in Australia ‘as a norm’. I bear this principle in mind.
Subparagraph (2) then provides that refusal of a visa may also be appropriate simply because of the nature of the character concerns. In particular, certain offences are nominated that are deemed to give rise to serious character concerns. These include crimes of a sexual nature against a child.
It is quite clear that this consideration counts substantially against the applicant. I note in particular that I am not to evaluate the community’s expectations in any particular case for myself and that it does not matter that the applicant may pose no risk of reoffending in the future: see subparagraphs (3) and (4).
I turn now to the so-called ‘other’ considerations under s 9. There is a non-exhaustive list of three such considerations. The first concerns the legal consequences of my decision, and the second concerns impediments on removal from Australia. I should note that if I affirm the decision under review, the applicant will have no right to apply for another protection visa.[28]
[28] Section 48A of the Act.
The applicant has been granted a bridging (removal pending) visa, and his eventual removal from Australia is envisaged by the grant of this visa. The applicant may not be returned to Myanmar under the Act as he has been found to be owed non-refoulement obligations. Furthermore, he may not voluntarily repatriate himself to Myanmar as matters presently stand. Mr Moyes placed emphasis upon the applicant electing to return to Myanmar contrary to his own best interests; but the applicant now has a guardian in respect of immigration matters, and the necessary consent would have to be given by the Public Advocate of WA. There is no evidence before me to suggest that the Public Advocate would agree to the applicant returning to a place where he could face persecution. I have decided that the likelihood of the applicant being returned to Myanmar, either voluntarily or involuntarily, is effectively nil. It follows that there are no impediments on removal to Myanmar to consider.
It is appropriate to weigh, however, the prospect that the applicant may be removed to a third country. I do not know how likely that prospect is. I accept that the grant of the bridging visa in this case reflects the fact that, at the time of the visa grant, the respondent was of the view that there was no real prospect of the applicant being removed to a third country in the reasonably foreseeable future.[29]
[29] The applicant’s ongoing detention became unlawful once the respondent formed this view and this explains the decision to release the applicant into the community on a bridging visa (removal pending): see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005.
Nevertheless, that situation could change at some point in the future. As a result of certain amendments to the Act, the Executive is now authorised to offer financial inducements to third countries to take non-citizens presently residing in Australia.[30] Without the possibility of financial inducements, it might well appear counterintuitive to suppose that third countries would receive those the Australian Government wishes to see removed because their continued presence is considered undesirable. As I have said, however, the Parliament has authorised the payment of money as an inducement to third countries to take non-citizens in the applicant’s position, and that does cast a different light on the prospect of removal.
[30] See s 198AHB of the Act inserted by an amendment last year.
I bear in mind that the refusal of the applicant’s visa application and the decision to grant him a bridging (removal pending) visa instead, indicate clearly the respondent’s position that it is preferable that the applicant be removed from Australia at some unspecified point in the future if that is feasible. As I have said, it is not clear when that might occur, or indeed if it will ever occur. It does mean, however, that the applicant faces a great deal of ongoing uncertainty. There is no doubt in my opinion that this applicant requires, or at least would substantially benefit from, greater certainty in his life and this is a matter to be weighed as another consideration under section 9 of the Direction. Most people benefit substantially from certainty in respect of their residency status. Uncertainty is a burden the applicant will continue to shoulder if I affirm the decision under review. I note that at the present time the applicant has a guardian. The guardianship order is limited to immigration matters, I acknowledge, but the preconditions for the making of such an order are as I have described earlier in this reasons, and the preconditions are serious: they required the SAT to be satisfied of a marked degree of incapacity. I think it would be a special burden on this particular applicant to face the ongoing uncertainty of a possible removal to a third country given his circumstances.
It would appear, for example, that he has an LWB caseworker who is assisting him with basic matters such as accommodation. He needs that support. Although it is too speculative to take into account the supports he might, or might not, find in a hypothetical third country at some hypothetical time in the future, I do believe I should take into account in a general way that removing the applicant from Australia would be likely to cause him special problems at that time because of his low level of functioning. I believe it is appropriate to bear that consideration in mind generally, even though I am unable to conclude that the applicant will inevitably be removed from Australia at some future time.
Weighing the considerations
I turn now to weighing the considerations. I immediately note the prominence that the Direction gives to the protection of the Australian community. The Direction speaks at various points against the sexual offending that occurred in this case. In my opinion, I need to bear that steadily in mind. I need also to bear in mind that none of the primary considerations assists the applicant while, to the contrary, there are primary considerations that count against him. Moreover, primary considerations are ‘generally’ to be given more weight than other considerations.[31]
[31] Paragraph 7(2) of the Direction.
Nevertheless, the Direction must be applied having regard to the individual circumstances of the case at hand. That is made explicit in the Direction.[32] The case at hand has very unusual features. The applicant has a low level of intellectual functioning according to the evidence before me. He is not employed. An expert administrative tribunal in WA charged with making guardianship orders has found the serious preconditions for the appointment of a guardian satisfied in the applicant’s case, even though the resulting guardianship order is limited to matters concerning immigration.
[32] Paragraph 5.1(2) of the Direction.
The applicant has spent a very significant amount of time in immigration detention, and although I do not equate the conditions in detention to those of a jail, there is undoubtedly a serious loss of liberty and autonomy in detention which is fundamentally incompatible with the liberty and autonomy adults usually need in order to maintain good mental wellbeing, satisfaction, and an overall sense of purpose. Detention for over eight years could not have assisted this applicant in maintaining good mental health, and it is at least doubtful that it would have assisted him to develop the independent skills he requires to function autonomously in a community setting. I note the occasions in detention where his behaviour has been inexplicable and erratic.
I must give serious weight, I believe, to this applicant’s individual circumstances and his need for support. This need is better met in my opinion by not refusing his protection visa application rather than by leaving him on a bridging visa (pending removal).
I have found this case very difficult precisely because the offending involved was of a type that the Direction speaks so strongly against (for obvious reasons). Each case must be assessed on its own merits, however, as the Direction makes clear. In this case, I have decided that the preferable decision, after evaluating and weighing all considerations under the Direction, is not to refuse the applicant’s visa application. In reaching this decision, I have been conscious, as I say, of the strong emphasis the Direction places upon community safety and community expectations.
FORMAL DECISION
Having reached this conclusion, I shall set aside the decision under review and substitute a decision that the applicant’s visa application not be refused.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

...................................................................
Associate

Dated: 18 March 2025

Date of hearing: 5 and 6 March 2025

Advocate for the Applicant:

J Moyes (Refugee Advice and Casework Service)

Advocate for the Respondent: P d’Assumpcao (instructed by Minter Ellison)

Date of hearing:	5 and 6 March 2025
Advocate for the Applicant:	J Moyes (Refugee Advice and Casework Service)
Advocate for the Respondent:	P d’Assumpcao (instructed by Minter Ellison)