QLTM and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 1214

QLTM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1214 (20 May 2025)
Applicant/s:  QLTM
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/1514
Tribunal:Deputy President S. Roushan
Place:Sydney
Date:Decision: 20 May 2025; Reason for Decision: 23 May 2025
Decision:The Tribunal affirms the decision under review.

............... .........................................................
Deputy President S. Roushan
Catchwords
MIGRATION – decision of delegate of Minister to refuse to revoke cancellation of a Class XE, Subclass 790 Safe Haven Enterprise Visa under s 501CA(4) of the Migration Act 1958 (Cth) – character test not passed – whether there is another reason to revoke the cancellation – Direction No 110 – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to the Australian community – legal consequences of the decision under review – impediments – decision affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
AOU21 v Minister for Home Affairs [2021] FCAFC 60
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3
FYBR v MHA [2019] FCAFC 185
Howells v MIMIA (2004) 139 FCR 580
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42
PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483
Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791
Secretary of Department of Home Affairs v CRS20 [2025] FCAFC 3
Secondary Materials
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
INTRODUCTION

This is an application for a review of a decision of a delegate of the Respondent (the Minister) dated 18 February 2025, made under s501CA(4) of the Migration Act 1958 (Cth) (the Act), to not revoke the mandatory cancellation, made under s501(3A) of the Act, of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa (SHEV).
The issue before the Tribunal is whether the mandatory cancellation of the visa under s501(3A) of the Act should be revoked through application of s501CA(4) of the Act i.e., does the applicant pass the character test as defined in s 501(6) of the Act, or is there another reason why the cancellation decision should be revoked.
BACKGROUND
Immigration and procedural history
The applicant was born in Basra, Iraq in 1985 and he is a citizen of that country. He is a Shi’a Muslim and is the youngest of 5 children, he has three sisters and one brother. He is not married and has no children.[1]
[1] Exhibit G1, pages 65-74.
The applicant arrived in Australia as an unauthorised maritime arrival in 2013. On 20 February 2017, he applied for a Subclass 790 Safe Haven Enterprise Visa (SHEV). On 9 November 2017, the delegate of the Minister granted the applicant a SHEV, on the basis that he was a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) of the Act. Accordingly, the delegate made a protection finding within the meaning of paragraph 197C(5)(a) of the Act.[2]
[2] Ibid, pages 83-84.
On 15 August 2022, the applicant made a subsequent valid application for a SHEV. This application was converted to an application for a Resolution of Status Visa (subclass 851) (RSV) by operation of regulation 2.08G of the Migration Regulations 1994 (the regulations).[3]
[3] Ibid.
On 2 August 2024, the applicant’s SHEV was cancelled under s501(3A) of the Act on the basis that he does not pass the character test because he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more.[4] Consequently, his application for an RSV was refused by operation of s 501F of the Act.
[4] Exhibit G1, page 88.
On 28 August 2024, the applicant made representations to seek revocation of the mandatory cancellation of his SHEV.[5]
[5] Ibid, page 20.
On 18 February 2025, the delegate refused to revoke the mandatory cancellation.[6] The applicant received the notice of decision not to revoke the cancellation under s501CA(4) of the Act by hand on 25 February 2025.[7] Three days later, on 28 February 2025, the applicant applied for a review of the delegates decision to the Administrative Review Tribunal (the Tribunal).[8]
[6] Ibid, page 15.
[7] Ibid, page 175.
[8] Ibid, page 1.
The applicant is currently detained at South Coast Correctional Centre in NSW.[9] He is eligible for release on parole on 13 July 2025.[10] A parole hearing scheduled on 8 May 2025 did not proceed. The Tribunal was informed at the hearing that the applicant has been advised he will be released on parole on 13 July 2025.
[9] Exhibit A1, page 1.
[10] Exhibit A2, page 1.
Applicant’s conduct and offending
On 25 January 2024, the applicant was convicted of the following six offences in the District Court of New South Wales:[11]
a)    Accessory before fact to an offence - Aggravated break and enter dwelling etc in company steal <=$60000-T1. (Sequence 1)
b)    Actual offence - Aggravated break and enter commit serious indictable offence-in company-steal etc >$60K-SI. (Sequence 3)
c)    Actual offence - Aggravated break and enter commit serious indictable offence-in company-steal etc >$60K-SI. (Sequence 4)
d)    Accessory before fact to an offence - Aggravated break and enter commit serious indictable offence-in company-steal etc >$60K-SI. (Sequence 9)
e)    Actual offence - Aggravated break and enter commit serious indictable offence-in company-not steal. (Sequence 15)
f)     Actual offence - Deal with property proceeds of crime < $100000-T2. (Sequence 14)
[11] Exhibit G1, pages 32-35.
The convictions relate to multiple robberies the applicant was involved in together with other co-offenders between May 2022 and August 2022.[12] The applicant and his co-offenders targeted storage facilities across Sydney and primarily stole tobacco related goods which were transported to Victoria and sold.[13] The facts in relation to the offences are as follows.
[12] Exhibit G1, pages 32-35.
[13] Exhibit R1, paragraph [4].
Offence (a)
The applicant rented a space at a storage facility in Burwood thereby obtaining a unique access code to enter the facility. On 21 May 2022, three of the applicant’s co-offenders entered the storage facility in Burwood using his unique access code and removed boxes from two of the storage units in the facility. The applicant had also rented a Sixt rental van which was captured attending the premises on CCTV on the morning of the crime with false Victorian registration plates. The estimated value of the goods stolen is between $26,000 and $31,000. The applicant was responsible as an accessory before the fact as he knowingly opened a storage unit account to obtain the access code and rented a van to allow his co-offenders to access the storage facility and steal goods. [14]
[14] Exhibit G1, page 43.
Offence (b)
The applicant hired a Hino truck with two of his co-offenders also listed on the rental agreement. The truck was used in a robbery on 14 August 2022 of a storage unit owned by Mr Thai Huynh, and was used to transport stolen goods to Victoria. The applicant was responsible as an accessory before the fact as he knowingly hired the vehicle to be used by the co-offenders to commit offences.[15]
[15] Exhibit G1, pages 48-49.
Offence (c)
The applicant and two co-offenders entered Kennards Storage at Homebush in the early hours of 12 June 2022. They obtained an access code from another co-offender and entered the premises in a Ford panel van with registration plates that had been stolen from another vehicle. The applicant packed multiple trolly loads of boxes into the van, and they exited the premises at 2:31 am. At 3:56 am, the applicant and the co-offenders entered the facility again and loaded the back of the van once more. The break and enter was discovered later that day. The words ‘Thank you Bieber’ (or Beba) with a smiley face had been drawn on an exterior wall with a black marker. The victim was a man who operated a tobacconist business and used the Kennards storage unit to store imported e-cigarettes. He estimates the approximate value of the goods stolen at $150,000.[16]
[16] Exhibit Ibid, pages 44-45.
Offence (d)
The applicant and two co-offenders returned to the same Kennards Storage at Homebush as in offence (c). They attended the facility in the early hours of 13 June 2022 (the following day from offence (c)) in a Ford panel van which was fitted with a new set of stolen registration plates. They attended the premises on three separate occasions during the same night and broke into four separate units. No items were stolen from one of the four units; the estimated value of goods stolen from the three other units was $120,000, $150,000 and $36,000. Following the offences the offender hired a truck, and he assisted in loading some of the stolen goods into the truck.[17]
[17] Exhibit R1, page 14.
Offence (e)
The applicant entered into a lease agreement at Storage Plus in Kingsgrove on 23 June 2022. In the early hours of 24 June 2022, the applicant and two co-offenders attended the facility with a pole camera which allowed the offenders to look into the storage cages for the purpose of surveying the facility for a possible break and enter.[18]
[18] Exhibit G1, page 48.
In relation to offence (f), the police located $12,470 in a manbag in the applicant’s home.[19]
[19] Ibid, page 50.
The police formed a strike force in July 2022 to investigate the robberies.[20] On 14 September 2022, police attended the home of the applicant where he was arrested, and a search warrant was executed. The applicant agreed to participate in a record of interview. Of note, he claimed to rent the storage unit in Burwood because one of the co-offenders told him he wanted to store some items there but could not rent out the unit himself as there was a problem with his name. Two or three days after this, the same co-offender told him to rent another space ‘because he had goods coming from another country. The applicant claimed that he was not aware of the break ins at Homebush. He confirmed that he knew about the offences but did not report it to the police.[21] In relation to the money found in the bag at his home, the applicant said that it was from taking old cars and selling them on Facebook. At the time of arrest, the applicant stated he was not employed but was receiving Centrelink payments of about $400 a week and his rent was $300 a week.[22]
[20] Exhibit R1, page 1.
[21] Exhibit G1, pages 50-51.
[22] Ibid.
Conviction and sentence
The applicant pleaded guilty to and was convicted of the offences on 25 January 2024. He was sentenced to an aggregate period of imprisonment of four years and four months with a non-parole period of two years and ten months.[23]
[23] Ibid, page 60.
In delivering the sentence, the sentencing judge observed that ‘the offences were clearly premediated and planned and to a greater degree than would commonly occur for most offences of this nature’[24] but noted the ‘offences were committed at premises which are not residential premises, and there is no issue of the emotional impact that is generally present with breaking into to a home.’[25]
[24] Ibid, page 51.
[25] Exhibit G1, page 52.
The sentencing judge found offences (a), (e) and (f) were within the lower range of objective seriousness.[26] Offence (b) was ‘just within the mid-range of objective seriousness’[27] and offence (c) was within the mid-range of objective seriousness.[28] She further found offence (d) to be ‘objectively serious, and the offender provided significant assistance by his actions.’[29] In relation to offence (d), the sentencing judge also noted that ‘by August 2022 the offender was well aware of the activities of this co-offenders and hiring a truck would be necessary where there was to be a significant quantity of good stolen.’ Her Honour found the applicant ‘was motivated by financial gain which increases his moral culpability.’[30]
[26] Ibid pages, 52-54.
[27] Ibid, page 53.
[28] Ibid, page 54.
[29] Ibid.
[30] Ibid.
Her Honour, however, noted that the applicant ‘has a strong work ethic and he has been a person of good character’ and that the applicant has no prior convictions and the ‘present offending appears to be very much out of character’.[31] The judge was ‘satisfied that the offender will not commit further offences’ and found ‘the offender has good prospects of rehabilitation’ but noted ‘much would depend upon him addressing his alcohol abuse.’[32]
[31] Ibid.
[32] Ibid, page 58.
The sentencing judge accepted the applicant has a history of using ‘alcohol as a maladaptive means of managing stress and that his alcohol use contributed to his impaired judgment in committing these offences.’ Her honour accepted the applicant’s heavy drinking ‘may provide some explanation as to how he became involved but cannot mitigate the offences.’ She noted that the applicant ‘accepted responsibility and expressed regret for his offences.’ The sentencing judge further accepted that he is ‘genuinely remorseful for his actions’ but observed that the applicant was not immediately forthcoming about his involvement in the offences and ‘made denials of being present’ for some of the offences and ‘gave innocent explanations’ upon his arrest.[33]
[33] Ibid, pages 55-58.
THE HEARING AND THE EVIDENCE
The matter was heard on 13 and 14 May 2025. At the hearing, Mr Robert McCaw of Counsel appeared for the applicant (instructed by Mr Jesse Skiller of Legal Aid) and Mr Ben Nam of Clayton Utz appeared for the Minister.
In deciding this matter, I have considered:
a)    The applicant’s bundle of documents – Exhibit A1
b)    The applicant’s statement of facts, issues and contentions (SOFIC) – Exhibit A2
c)    The applicant’s supplementary tender bundle – Exhibit A3
d)    The applicant’s SOFIC in reply – Exhibit A4
e)    The Minister’s bundle of documents – Exhibit R1
f)     The Minister’s SOFIC – Exhibit R2
g)    The G documents – Exhibit G1
h)    The supplementary G documents – Exhibit G2
i)   The further supplementary G documents – Exhibit G3
j)   Documents produced by Downing Centre District Court under Summons – Exhibit S1
k)    The oral evidence given by the applicant
All exhibits are included in the Hearing Book (HB)
The applicant’s witnesses were:
a) Dr Emily Kwok
b) Jessica Anand
The relevant parts of the oral evidence and submissions are considered in my reasons below.
RELEVANT LAW AND DIRECTION NO. 110
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds.
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to having a substantial criminal record under s 501(6)(a) and further specified in s 501(7), and if that person is currently serving a full-time sentence of imprisonment in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
The character test as set out in s 501(6) of the Migration Act essentially deems that a person does not pass the character test if the circumstances listed in that provision apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; …
(Original emphasis.)
A person whose visa has been cancelled under s 501(3A) may seek revocation of that decision pursuant to s 501CA(4) of the Act. This provision enables the Minister to revoke the original cancellation if the person makes representations in response to the invitation to do so, and if the minister is satisfied either that the person passes the character test, or that there is another reason why the cancellation should be revoked.
Direction No. 110
As stated above, the Tribunal (standing in the shoes of the Respondent) is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No. 110). Direction No. 110 replaced the previous Direction No. 99.
The purpose of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.
Objectives
Paragraph 5.1 of Direction No.110 sets out of the Migration Act. Specifically, paragraph 5.1(2) of Direction No. 110 provides:
Specifically, under subsection 501 (1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Principles
Paragraph 5.2 of Direction No. 110 sets out the ‘principles’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501’ and are expressed as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Informed by the principles set out in paragraph 5.2 of Direction No. 110, the Tribunal must take into account the ‘primary considerations’ listed in paragraph 8 of Direction No. 110, and the ‘other considerations’ listed in paragraph 9 of Direction No. 110, where relevant to the decision.
Primary considerations – paragraph 8 of Direction No. 110
In making a decision under s 501CA(4) of the Migration Act, the five ‘primary considerations’ the Tribunal must take into account are:
(i)protection of the Australian community from criminal or other serious conduct:
(ii)whether the conduct engaged in constituted family violence;
(iii)the strength, nature, and duration of ties to Australia;
(iv)the best interests of minor children in Australia; and
(v)expectations of the Australian community.
Other considerations – paragraph 9 of Direction No. 110
The ‘other considerations’ the Tribunal must take into account, as far as they are relevant, include (but are not limited to):
(vi)legal consequences of the decision;
(vii)extent of impediments if removed; and
(viii)impact on Australian business interests.
Primary & other considerations – further guidance
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:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
THE CHARACTER TEST
As the applicant has been convicted of a number of offences and sentenced to a term of imprisonment exceeding 12 months, I find that the applicant has a substantial criminal record as defined in s 501(7)(c) and that he does not pass the character test. The applicant concedes that this is the case.
As the applicant does not meet the character test, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked, taking into account considerations in the Direction and any other relevant considerations.
CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
The first primary consideration, in paragraph 8.1(1) of Direction No. 110, focuses on the protection of the Australian community. Direction No. 110 requires decision-makers 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 because of criminal activity or other serious conduct by non-citizens. 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.
Paragraph 8.1(2) of Direction No. 110 provides that decision-makers should also give consideration to:
(i)the nature and seriousness of the non-citizen’s conduct to date; and
(ii)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction No. 110 provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending and other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes and conduct described below are viewed very seriously by the Australian Government and the Australian community:
2     i. violent and/or sexual crimes;
3     ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed…
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
4     ....
5     ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled)...
c)....the sentence imposed by the courts for a crime or crimes;
d) the impact of offending on any victims of offending or other conduct and their family....
e) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
f) the cumulative effect of repeated offending;
(Emphasis added)
In this matter, I have had regard to the applicant’s criminal offending as well as other conduct.
The applicant was convicted of six offences arising from a series of serious criminal acts under the Crimes Act 1900 (NSW). Two of these offences (sequences 1 and 9) involved being an accessory before the fact to aggravated break, enter and steel, each carrying a maximum penalty of 20 years’ imprisonment and a standard non parole period of five years. Two offences involved actual break, enter and steal with aggravating circumstances (sequences 3 and 4), carrying a maximum sentence of 20 years’ imprisonment with a five-year standard non parole. One offence involved handling property believed to be derived from criminal activity, carrying a maximum penalty of three years imprisonment. Finally, he was convicted of a further aggravated break and enter offence which involved the commission of a serious indictable offence in relation to the use of a surveillance device.[34]
[34] Exhibit G1, page 41.
The applicant was consequently sentenced to an aggregate period of imprisonment of four years and four months with a non-parole period of two years and ten months.[35]
[35] Ibid, page 60.
Together, the applicant’s convictions represent a pattern of premeditated criminal conduct involving unlawful entry, theft, facilitation of such acts, and dealing with criminal proceeds. As noted in the delegate’s decision record, the offending was repetitive, having occurred over a period of several months, and committed ‘as part of an organised criminal syndicate.’[36] At the hearing, the applicant acknowledged that, despite his initial ignorance of the nature of the activities he was asked to participate in, he continued his offending after he became aware that he was participating in criminal activity.
[36] Ibid, page 24.
The sentencing judge noted in her remarks that that the offences were committed at non-residential premises, and thus did not give rise to the emotional impact on victims typically associated with breaking into to a home. However, in the absence of direct evidence from the victims, it would be reasonable to assume that the theft, which involved items of substantial monetary value, had resulted in significant financial harm to the owners of the stolen items.[37]
[37] Exhibit G1, page 51.
The sentencing judge found sequence 3 and 4 offences to fall within the mid-range of objective seriousness as ‘[the applicant] provided substantial assistance in the theft of a large quantity of valuable property’ and ‘given the multiple entries into the unit and the quantity of goods stolen.’[38] The sentencing judge also found sequence 9 to be ‘objectively serious, and the offender provided significant assistance by his actions.’ Her Honour further found the applicant ‘was motivated by financial gain which increases his moral culpability.’[39]
[38] Ibid, page 53.
[39] Ibid.
The Minister submitted that while the Tribunal is prohibited from taking into account the applicant's Form 1 offences as convictions, it can and should consider the ‘underlying conduct’ behind the Form 1 offences in assessing the overall nature and seriousness of the applicant's conduct. At the hearing, however, the Minister conceded that such consideration ultimately would have minimal impact on the Tribunal’s overall assessment of the nature and seriousness of the applicant’s conduct. For the avoidance of doubt, I have not had regard to, or relied upon, any of the applicant’s Form 1 offences or the underlying conduct giving rise to those Form 1 offences for the purposes of this decision. I consider this approach to be consistent with the statutory effect of s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the authorities cited by the Minister, namely Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs.[40]
[40] [2024] FCA 468 at [48].
While I accept that the balance of the offences was found to fall within the lower range of objective seriousness, imprisonment is the sentence of last resort in any sentencing process that is applied reasonably and correctly.[41] Such sentences are seen as a measure of the objective seriousness of an offence. I consider the sentence imposed to reflect the overall objective seriousness of the offending conduct.
[41] See s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW).
It was submitted by Mr McCaw that the applicant's ‘offending is without a doubt serious; the Sentence makes that clear.’[42] Mr Mc Caw also acknowledged that ‘the offending involved planning and was committed for financial gain.’ While, as contended by both Mr McCaw and Mr Nam, the applicant’s offending does not fall within the types of crimes or conduct described in the Direction as ‘very serious’ or ‘serious’, the range of conduct that may fall into these categories are not limited to the types of crimes or conduct described in the Direction.
[42] Exhibit A2, page 6.
[Redacted].
As to the nature and seriousness of the applicant’s conduct, I find that the applicant’s offending was serious and weighs in favour of not revoking the cancellation.
Risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No. 110 states, in part:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
6 i. information and evidence on the risk of the non-citizen re-offending; and
7 ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen -whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa. (Emphasis added)
a) The nature of the harm to individuals or the Australian community
As noted earlier, while the offences were committed at non-residential premises, they had, undoubtedly, resulted in significant financial harm to the owners of the stolen items. I do not accept the applicant’s submissions that the harm to the Australian community should he reoffend falls at the lower end of the spectrum of seriousness.
I find that, should the applicant engage in further criminal conduct, the nature of the harm would be serious and not insignificant.
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
When sentencing the applicant, the sentencing judge observed that he accepted responsibility and expressed regret for his offences.’[43] She accepted that ‘he is genuinely remorseful for his actions.’ However, her Honour also noted that the applicant was not immediately forthcoming about his involvement in the offences. Upon his arrest, ‘he made denials of being present’ for some of the offences and ‘gave innocent explanations.’[44] Her Honour stated:
I find that the offender has good prospects of rehabilitation. Much will depend upon him addressing his alcohol abuse, but he has a strong work history prior to this period of offending. I am satisfied that the offender will not commit further offences.[45]
(emphasis added)
[43] Exhibit G1, page 55.
[44] Ibid.
[45] Exhibit G1, page 58.
In his representations to the Department, the applicant also expressed ‘deep regret and remorse for [his] actions’ and apologised.[46]
[46] Ibid, page 81.
The applicant’s life history and the challenges he had endured in his home country before his departure for Australia are not in dispute. The evidence before me indicates that he started drinking alcohol in Iraq to cope with ‘emotional distress’ and his ‘alcohol intake increased significantly in Australia where he drank daily while he was living in the community.’[47]
[47] Exhibit A3, page 7.
The sentencing judge referred to the applicant’s self-described ‘history of mild depression and anxiety,’ which had developed ‘as a result of his loneliness when living in the community’ and escalated while in custody.’[48] These symptoms were also referred to in Ms North’s report, who assessed him as meeting the criteria for an adjustment disorder with mixed anxiety and depressed mood, as well as ‘alcohol use disorder in sustained remission.’[49] Her Honour noted the applicant’s heavy drinking ‘may provide some explanation as to how he became involved but cannot mitigate the offences.’[50]
[48] Exhibit G1, page 55.
[49] Exhibit A1, page 11.
[50] Exhibit G1, page 58.
[Redacted].
On 8 May 2025, the applicant submitted a psychological report prepared by Dr Emily Kwok and a report by Ms Jessica Anand, Social Case Worker, Legal Aid NSW. In the course of preparing their reports, both Dr Kwok and Ms Anand conducted interviews with the applicant. Each report records that the applicant disclosed his claimed history of drug use before his incarceration, and this information informed both the assessments and recommendations provided.
[Redacted].
On the basis of the information available to her, Dr Kwok assessed the applicant’s risk of reoffending, using a risk and need assessment tool, to be in the medium range. Dr Kwok stated that the applicant has allegedly not used alcohol since 2022 and is not currently suffering from an alcohol-related disorder. [Redacted]. She further noted that the applicant experiences emotional distress and is vulnerable to maladaptive behaviours under stress, compounded by previously untreated PTSD and depression. Continued psychological treatment and support services were recommended to aid the applicant's ‘reintegration’. Dr Kwok also referred to ‘protective factors’, including the applicant’s limited criminal history, lack of entrenched antisocial traits, and willingness to engage in treatment, suggesting positive prognosis with future risk of reoffending being dependent on sustained therapeutic engagement.
Dr Kwok diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, linked to the stress of incarceration and uncertainty about his legal status. She also diagnosed the applicant with Substance Use Disorder.[51] [Redacted].
[51] Exhibit A3, page 11.
[Redacted].
I accept the evidence presented at the hearing that the applicant will be released on parole on 13 July 2025. I find that, if the cancellation of the applicant’s visa was revoked, he would be released into the community until the determination of his RSV. [Redacted]. I accept Dr Kwok’s evidence that the applicant’s risk of reoffending is in the medium range and is dependent on his sustained therapeutic engagement. I further accept her evidence that the applicant has not used alcohol since his incarceration and does not meet the criteria for Alcohol Disorder Use diagnosis. While currently he has no cravings for alcohol, his ability to abstain from alcohol in community remains untested. [Redacted].
Mr McCaw submitted that the applicant’s criminal conduct should be viewed against both his personal history and the unusual constellation of events leading up to his offending, including his unemployment, COVID-19, ‘homelessness’, alcohol dependency, his father’s death, and losing his dog. It was submitted that his circumstances have now changed. [Redacted].
I accept that the applicant is remorseful, and he is intent on not reoffending. I have also considered the sentencing judge’s remarks regarding his strong work ethic and his good character before his offending. However, I am mindful of the applicant’s limited engagement in treatment in prison in order to address his mental health issues and Substance Use Disorder. While I accept that the applicant has completed some educational courses, and undertaken work in custody, I also accept the Minister’s submissions that there is limited evidence of the applicant’s engagement in any significant rehabilitative efforts and that his continued engagement with the relevant services in the community remain untested.
[Redacted].
[Redacted]. I accept that the applicant’s release from prison, ability to access social housing, employment and more certainty regarding his visa status are likely to reduce his life stressors. I have also considered Mr McCaw’s submissions that, if released into the community on his SHEV, he will be under the supervision of the NSW parole authorities for the balance of his head sentence and may receive support from parole authorities in accessing alcohol and other drug (AOD) treatment services.
However, the applicant will continue to face other life stressors upon returning to the community, including ‘job-seeking, finding community supports, and finding prosocial activities.’[52] He has not yet had the chance to demonstrate how he would conduct himself in the community. It is also not clear when or if he would be able to access social housing. [Redacted].
[52] Ibid.
For reasons set out further below, I do not accept the Minister’s submissions that, if the cancellation of the applicant’s visa is not revoked, the applicant is not entitled to a Bridging (Pending Removal) Visa (BVR) and that he will remain in immigration detention until his removal under s 198AD of the Act to a ‘regional processing country’. In my view, it is highly likely that he will be transferred into an immigration detention centre upon his release, where he will remain pending further considerations by the Government regarding his status.
As already noted, a protection finding has been made in relation to the applicant with respect to Iraq. That protection finding stands regardless of the fact that the applicant’s Protection visa has since been cancelled.[53] There is no evidence before me that a decision has been made in relation to the applicant under s 197D(2) to the effect that he is no longer a person in respect of whom any protection finding would be made.
[53] See s 197C(3)(b) Migration Act 1958 (Cth).
As explained by paragraph 9.1.1(2) of Direction No. 110, s 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen. The applicant, therefore, cannot be removed to Iraq in breach of Australia’s non-refoulement obligations.

Following the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ),[54] detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 if there is ‘no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future’.[55]
[54] [2023] HCA 37.
[55] NZYQ v MICMA [2023] HCA 37 at [54].
In these circumstances, it is likely that the applicant will be released into the community on a BVR pending his removal to a third country. The evidence submitted by Dr Kwok and Ms Anand clearly indicate that the applicant will continue to have access to a range of treatment services while in immigration detention and once he is released into the community on a BVR.
In immigration detention the applicant will continue to have access to AOD treatments and support, including the SMART Recovery program and individual AOD counselling and psychological counselling, depending on staff availability.[56] In any event, I am satisfied that there will be no elevated risk to the community while the applicant remains in immigration detention.
[56] Exhibit A3, pages 12-13.
As a holder of a BVR, he may access mental health treatment through services for counselling refugees and ongoing support by the Client Assessment and Referral Services (CARS). He will also be able to access an interim Medicare card, which may impact his access to health services in the future if he does not meet the criteria to re-enrol in Medicare after expiry.[57] The applicant may also be eligible for the Special Benefits Payments through Centrelink. I note that the applicant has an offer of employment. I accept that it will take him a period of time to find suitable housing through the private rental market, but, as noted earlier, he will also need to wait to access social housing. I further accept that the applicant’s access to support and services may be comparatively more limited if he were to be released into the community on a BVR. However, I am not satisfied that the risk of reoffending will necessarily be higher due to these limitations.
[57] Ibid, page 31.
Overall, while there are factors that may serve to mitigate the applicant’s risk of reoffending, I am not satisfied that these substantially diminish the risk posed to the community. I consider there to be a moderate likelihood of reoffending, and I assess the corresponding risk to the community as high. I give the primary consideration in paragraph 8.1 a moderately strong weight against revoking the cancellation of the applicant’s visa.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of Direction No. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before me that the applicant has committed any family violence offence. I give this consideration neutral weight.
The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction No. 110 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia when he was 28 years old and had resided in Australia for approximately 11 years before his offending commenced. In his representations to the Minister, the applicant stated he has been employed in Australia, prayed at Liverpool Mosque, and ‘personally clean up community on my own time (sic).’[58] I accept and have taken into account the applicant’s positive, albeit limited, contributions by the applicant to the community prior to his offending.
[58] Exhibit G1, page 77.
There is no dispute that the applicant does not have any family members residing in Australia. The applicant has given evidence that he has a friend, Mr Raed (Ray) Mashakheel, who resides in Melbourne. He and Mr Mashakheel ‘were friends in Iraq and are still friends today.’ While I accept that a friendship exists between the applicant and Mr Mashakheel, the precise nature and strength of that relationship remain unclear. Although a written statement from Mr Mashakheel was initially provided and he was scheduled to give evidence in support of the applicant, the applicant ultimately elected not to rely on the statement, and Mr Mashakheel did not appear at the hearing. In these circumstances, I give limited weight to the claimed strength of their relationship as it currently stands.
The applicant’s evidence indicates that he had ceased contact with his co-offenders. In his submissions, Mr McCaw contended that the applicant ‘maintains several prosocial connections with friends and the community broadly.’ However, these connections were not clearly identified, and no further evidence was submitted in this regard.
Overall, I find that this consideration weighs only slightly in favour of revoking the cancellation of the applicant’s visa.
The best interests of minor children in Australia
Paragraph 8.4 of Direction No. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. There are no minor children in Australia affected by this decision. Accordingly, I give this consideration neutral weight.
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) of Direction No. 110 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. 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 certain conduct, including ‘commission of serious crimes against women’. In this context, ‘serious crimes’ include crimes of a violent or sexual nature.
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 paragraph 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in.
Paragraph 8.5(4) expressly provides that decision-makers must apply the Government’s stated expectations and are not to conduct an independent assessment of those expectations in light of the individual’s circumstances.
Mr McCaw submitted that paragraph 8.5 is framed within a binary scenario: either the person is granted or continues to hold the visa and remains or is removed. Following the decision of the High Court in NZYQ, an applicant, who has a protection finding and there is no prospect of removal in the reasonably foreseeable, cannot be detained indefinitely. If the applicant’s visa remains cancelled, he will be released into and will remain in the community on a BVR, rendering the expectation in paragraph 8.5 conceptually inapplicable.
Relying on the comments of Perram J in PLQF v Minister for Immigration, Citizenship and Multicultural Affairs,[59] Mr McCaw submitted that (by analogy) it would be unreasonable to assess community expectations based on a ‘narrow reading of the Direction [which] contemplates two outcomes, neither of which apply to the Applicant.’[60]
[59] [2024] FCA 1483 at [59].
[60] Exhibit A2, paragraph [53].
Mr McCaw further submitted that interpreting paragraph 8.5 without reference to paragraphs 8.1 and 8.1.2, where the community's tolerance for risk is expressed as relative to the seriousness of potential harm, leads to an incomplete and inconsistent reading. Mr McCaw argued that the context in which the ‘Australian Community’ is referred to in the direction, implies that a community expectation is that the Government will keep it safe by minimising the risk of future offending. Given the applicant will remain in the community on a BVR even if the cancellation is affirmed, ‘the deemed expectation in cl. 8.5 would be rendered neutral in cases such as the Applicant’s’, and, therefore, this factor weighs marginally in favour of revocation.
In response, the Minister submitted that paragraph 8.5 must be interpreted and applied normatively, based on the Government's stated view within the Direction itself, rather than through any independent or case specific assessment of what the Australian community may expect. Under the Direction, the Australian community expects the Government to refuse entry or cancel the visas of non-citizens who raise serious and character concerns, regardless of whether immediate removal is possible, and irrespective of the applicant being subject to immigration detention by virtue of NZYQ.
The Minister rejected the applicant’s ‘novel’ and unsupported interpretation that the expectation of the Australian community should weigh in favour of revocation in this case. Relying on a number of authorities,[61] the Minister submitted that the Tribunal should not infer community expectations in the specific case or consider the applicant’s personal circumstances for this primary consideration. The focus should be the normative expectation of non-citizens to obey laws while in Australia.
[61] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791; and DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3.
I accept the Minister’s submissions that the expectations of the Australian community in paragraph 8.5 of Direction No. 110 are expressed in a normative matter. The consideration is directed not at the ultimate physical outcome of whether the non-citizen is removed from Australia, but at the decision to cancel or refuse a visa based on character concerns. The Direction makes clear that the Australian community holds two key expectations: first, that non-citizens will obey the law in Australia, and second, that the Government should refuse or cancel the visas of individuals who raise serious character concerns.[62] The first reflects the normative standard of conduct expected of non-citizens, and the second reflects community expectations regarding the outcome of the exercise of the power conferred by s 501 in respect of a particular person who has not met that standard.[63]
[62] See FYBR v MHA [2019] FCAFC 185 at [75], [96].
[63] See ibid at [69]-[72], [75], [95]-[96], [100]-[101].
This primary consideration is about the expectations of the Australian community as a whole, and in this respect, the Tribunal should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.[64] In my view, this expectation, as articulated in the Direction, applies to visa status, not physical presence. The decision to refuse or cancel a visa on character grounds, even where removal is not immediately possible, is the expression of this norm.
[64] Ibid.
Where a person whose visa has been cancelled is the subject of a protection finding may be granted a BVR to prevent indefinite detention while removal arrangements are being made. The grant of a BVR in these circumstances is an administrative consequence of the person’s new status. It does not negate or reverse the normative expectation. The High Court’s decision in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs[65] lends support to the view that this primary consideration ‘does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate.’[66] Referring to paragraph 8.4(4) of Direction No.90, which was expressed in identical terms to paragraph 8.5(4) of Direction Non.99 and Direction No.110, the Court stated:
Paragraph 8.4(4) is to be understood as directing the decision maker not to
attempt to infer what the expectations of the Australian community would be "in
the particular case" (that is, with the knowledge of the delegate about the
applicant's personal circumstances), but to proceed on the basis that the views
of the Australian Government set out in para 8.4(1) (3) are the relevant norm
described as the expectations of the Australian community. That norm, as
applicable by reference to the terms of para 8(1) (3), is then to be weighed with
other relevant matters as required by paras 6 and 7 of Direction 90.[67]
[65] [2024] HCA 2.
[66] Ibid at [51].
[67] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52].
The applicant has been convicted of several offences regarded as serious by the community. The community expects the Government would not allow him to remain in Australia. Therefore, the Australian community, as a norm, expects the Government to not allow the applicant to remain in Australia. I conclude that this consideration weighs strongly in favour of not revoking the cancellation of the applicant’s visa.
Other considerations – paragraph 9 of direction no 110
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;
c) impact on Australian business interests
Legal consequences of the decision
The Tribunal is 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.
While this consideration in Direction No. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a visa refusal or cancellation under s 501 or related provisions, including unlawful status, the likelihood of being detained and/or removed, and refusal or cancellation of other visas.
If an adverse visa decision under s 501 of the Act is made, the applicant becomes an unlawful non-citizen. As a result, he would be liable to removal from Australia as soon as reasonably practicable under s 198, and in the meantime, detention under s 189 of the Act. Section 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a non-citizen.
As already noted, a protection finding has been made in relation to the applicant with respect to Iraq. That protection finding stands regardless of the fact that the applicant’s SHEV has since been cancelled.[68] There is no evidence before me that a decision has been made in relation to the applicant under s 197D(2) to the effect that he is no longer a person in respect of whom any protection finding would be made.
[68] See s 197C(3)(b) Migration Act 1958 (Cth).
As explained by paragraph 9.1.1(2) of Direction No. 110, s 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made. The applicant, therefore, cannot be removed to Iraq in breach of Australia’s non-refoulement obligations.
Following the decision of the High Court in NZYQ, detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 if there is ‘no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future’.[69]
[69] NZYQ v MICMA [2023] HCA 37 at [54].
The applicant submitted that non-revocation of the visa cancellation would leave him in a precarious legal position, with no pathway to permanent residency and no realistic prospect of removal. He would be barred from applying for most visas under ss 48A and 501E of the Act, and restricted to a BVR, subject to strict and indefinite conditions. As a consequence of recent amendments to the Act, under the new s 76AAA, a BVR ceases if the holder has been granted permission by a foreign country, being a party to a third country reception arrangement, to enter and remain in that country. This ‘legal limbo’ would exacerbate the applicant’s existing anxiety and mental health issues, particularly given uncertainty about future removal arrangements under ss 76AAA and 198AHB. In addition, there is no corresponding benefit to the applicant being subject to BVR conditions in the short term, as he will already be subject to mandatory parole conditions upon release from custody, which substantially mirror the standard conditions imposed under a BVR. He would also face exclusion from key supports such as social housing, government payments, and sponsorship eligibility for other visas.[70]
[70] Exhibit A2, paragraphs [59]-[63].
The Minister responded by submitting that s 198AD of the Act applies to the applicant, an unlawful maritime arrival, and mandates his removal to a designated regional processing country (currently Nauru) as soon as reasonably practicable, unless the exemptions in ss 198AE, 198AF, or 198AG apply, which, in this case, they do not. Therefore, the duty to remove the applicant under s 198AD will arise upon the cessation of his BVE, which will occur when he is released from criminal custody. The Minister referred to Secretary of Department of Home Affairs v CRS20[71] and argued that 198(11) confirms that general removal powers under s 198 do not apply in these circumstances, and removal is governed solely by s 198AD.
[71] [2025] FCAFC 3.
It was submitted that while the applicant is the subject of a protection finding, there remains a real prospect of removal to Nauru as a regional processing country becoming practicable in the reasonably foreseeable future, bringing the applicant’s detention within the constitutional limit of lawful executive detention as expressed in NZYQ. While he may become eligible for BVR in the future, the Tribunal should not engage in speculation regarding potential future grants of a BVR or any conditions that might attach. Similarly, although ss 76AAA and 198AHB of the Act might apply to the applicant in the future, they are not currently engaged, and reliance on their possible future application is speculative.

In reply, the applicant submitted that, although he is an unauthorised maritime arrival, the power to remove him to a regional processing country under s 198AD of the Act is not lawfully enlivened. He has already been subject to regional processing, has been found to engage Australia’s protection obligations, and is barred from applying for further visas under ss 48A and 501E. The Minister has provided no evidence of a real prospect that removal to Nauru or any third country is practicable in the reasonably foreseeable future. It was further submitted that the Minister’s reliance on CRS20 is misplaced, as the facts of that case differ from the present matter, including the absence of a protection finding in that case and a concrete prospect of removal to Iraq.
The applicant contended that further detention would exceed constitutional limits, as detention is only valid if it is reasonably necessary to achieve an identifiable statutory purpose, such as removal or visa processing. In the applicant’s case, these purposes have been exhausted. This position is reinforced by the reasoning of Bell J in Plaintiff M68/2015 v Minister for Immigration and Border Protection,[72] emphasising that the purpose of regional processing is limited, and it is designed to support the assessment of protection claims and deter irregular migration. Bell J expressly stated that the Commonwealth’s authority to restrain liberty under s 198AHA is not unconstrained and must be reasonably connected to the regional processing functions of the receiving country. Those functions include the assessment or facilitation of refugee status determination, and not broader punitive or indefinite detention. In the applicant’s case, there is no longer any processing function to be served, and no current arrangement with Nauru facilitating such assessment.
[72] (2016) 257 CLR 42.
It was submitted that the applicant is likely to be released into the Australian community on a BVR. Any conditions imposed by a BVR would be both indefinite and onerous, whereas, once released on parole, the applicant would be subject to time-limited parole conditions until January 2027, which may ameliorate concerns about the protection of the Australian community. It was submitted that the psychological and practical burdens of indefinite BVR conditions, including loss of access to essential services and a heightened risk of re-detention for minor breaches have been recognised in prior decisions as significantly harmful.
At the hearing, the Minister maintained their position and submitted that the applicant is both an ‘unauthorised maritime arrival’ and a ‘transitory person’ as defined in s 5 of the Act and is, therefore, subject to removal under s 198AD(2), which mandates his transfer to a regional processing country as soon as reasonably practicable. For transitory persons, s 198AH(1A) clarifies that this duty arises where the person was brought to Australia for a temporary purpose, is detained under s 189, and no longer needs to remain for that purpose.
The Minister contended that none of the exceptions in ss 198AE, 198AF or 198AG apply. Nauru remains a designated regional processing country and s 198AH(2) confirms that even a recognised refugee may still be removed. In support of this argument, the Minister relied on AOU21 v Minister for Home Affairs[73], noting the duty under s 198AD is not displaced by a protection finding. The Minister argued that the decision confirms the policy’s ‘absolute’ nature and the re-engagement of s 198AD once a person no longer needs to remain in Australia for a temporary purpose. The Minister further submitted that NZYQ does not affect the operation of s 198AD, referring to CRS20, and distinguished Plaintiff M68/2015 on the basis that it concerned s 198AHA, which serves a ‘logistical function’, and not the removal duty under s 198AD. The Minister maintained that, upon the expiry of the applicant’s BVE, he will become an unlawful non-citizen and subject to mandatory removal under s 198AD.
[73] [2021] FCAFC 60.
Having considered these submissions, I respectfully disagree with the Minister’s arguments. The Minister contends that the applicant is both an unauthorised maritime arrival and a transitory person within the meaning of the Act. The application of s 198AD to a transitory person is contingent upon satisfaction of the criteria in section 198AH(1A). This includes, relevantly, that the person must have been brought to Australia from a regional processing country ‘for a temporary purpose.’ In the present case, the applicant was granted a SHEV, following a finding that he engaged Australia’s protection obligations. A grant of a protection visa of this nature cannot, in my view be characterised as temporary in the sense intended by s 198AH.
The Minister has relied on AOU21 and CRS20 to support the proposition that s 198AD of the Act applies to the applicant. However, these authorities are factually and legally distinguishable.
In AOU21, the applicant had never been granted a protection visa or recognised as engaging Australia’s non-refoulment obligations.[74] His presence in Australia was solely for temporary medical purposes, and the individual had never transitioned out of this status of an unauthorised maritime arrival. In contrast, the applicant in the present case has been assessed as engaging Australia’s protection obligations, he is the subject of a protection finding and he previously held a substantive Protection visa. The reasoning in AOU21 appears to have limited relevance here, as the purpose of section 198AD, namely, to facilitate offshore processing of unauthorised maritime arrivals has, on any reasonable view, already been fulfilled.
[74] In that case, the applicant was detained in Papua New Guinea, and he was recognised as a refugee under the Convention Relating to the Status of Refugees. The Court noted that ‘The evidence does not disclose whether after that recognition he was granted a visa by Papua New Guinea in order that he could remain lawfully in that country but since he remained in detention in Papua New Guinea, it would appear he was not.’ [at 24]
Similarly, the applicant in CRS20 had pursued, and exhausted, all avenues for protection without success. In that case, the Court observed that s 198AD is capable of applying to a person who has made a valid application following a s 46A(2) determination. However, the judgement does not specifically consider the circumstance where a protection finding has been made and a substantive visa granted and later cancelled. That case did not involve a person whose protection claims had been accepted and, as in the present case, was subject to a protection finding. Importantly, the Full Court referred to the Secretary’s submission that:
... it is clear from the legislative materials that, as the Full Court held, the purpose of a transfer to a regional processing country has always been viewed by Parliament as an alternative to onshore processing, not an opportunity for a “second bite at the cherry”. So much can be seen in the legislative history... [75]
[75] Secretary of Department of Home Affairs v CRS20 [2025] FCAFC 3 at [137].
These submissions echoed the opinion of the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20:[76]
68 …[In] our opinion, the intention of the legislative scheme is that those individuals who are permitted, by an exercise of Ministerial power under s 46A(2), to apply for a visa, are thereafter not intended to be subjected to being taken to a regional processing centre under s 198AD. The reason is the same in each situation: such individuals have been given access to an onshore, domestic process to have their claims for protection heard and determined. The purpose of taking them to a regional processing centre no longer exists…
69 Once any visa application has been finally determined, as that phrase is defined in ss 5(9) and 5(9A) of the Act, a person in the respondent’s position would be exposed to removal under s 198(6) of the Act, read now with s 197C of the Act. That duty would again remain subject to removal being “reasonably practicable”: for example, depending on whether there is an outstanding judicial review application.[77]
[76] [2022] FCAFC 52.
[77] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 at [68]-[69].
The High Court subsequently held, by a majority, that there was no justiciable controversy before the Full Court and therefore set aside the Full Court’s orders in AZC20.[78]
[78] See AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26.
Nevertheless, in CRS20, the Full Court observed that the reasoning of the Full Court’s judgement in AZC20 may be regarded as being persuasive, though not determinative. It went on to acknowledge that the discretionary power in s 198AE serves as a legislative mechanism to mitigate the rigidity of s 198AD in cases where its application may produce unintended outcomes. This acknowledgment implicitly recognises that not all cases falling within the literal wording of section 198AD are appropriate for removal to a regional processing country, particularly where the purpose of removal has already been achieved.
This, in my view, reinforces the proposition that s 198AD is intended to operate where protection claims have not been finally determined. In the present case, they have been. The rationale for further removal to a regional processing country, particularly for the purpose of processing, is therefore spent. To read s 198AD as applying in these circumstances risks extending its operation beyond its intended purpose.
The Minister’s interpretation also gives rise to a broader tension in the legislative scheme. Following NZYQ, Parliament introduced ss 76AAA and 198AHB to create new and more structured framework for facilitating removal to third countries in circumstances where individuals cannot be returned to their country of origin due to Australia’s protection obligations. If s 198AD were to operate in the manner contended by the Minister, the more recent provisions would be rendered largely redundant. These provisions introduce a distinct and detailed framework for third-country removal, including specific procedural safeguards. Their enactment strongly indicates that parliament did not regard s 198AD as adequate for addressing circumstances such as those in the present case. Accepting the Minister’s interpretation would undermine the coherence of the legislative scheme by creating overlapping and, potentially, inconsistent removal pathways.
Accordingly, I am not inclined to accept the Minister’s contention regarding the application of s 198AD and its consequences. Even if the Minister’s position were accepted, it could result in the applicant being subjected to prolonged or potentially indefinite detention, particularly where removal to a ‘regional processing country’ may not be reasonably practicable. Notably, at the hearing, the Minister was unable to identify any examples of removal under s 198AD in circumstances comparable to those of the applicant. This necessarily increases the significance of the legal consequences that would flow from a decision not to revoke the cancellation.
In my view, if the cancelation of the applicant’s visa is not revoked, he is likely to be transferred to immigration detention upon release from criminal custody and the expiration of his BVE. He may then be eligible for, and granted, a BVR, provided he satisfies the definition of an eligible non-citizen under regulation 2.20.
A BVR holder under the Act is a ‘removal pathway non-citizen’.[79] 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,[80] and the non-citizen must comply or face a mandatory sentence of imprisonment.[81] 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.[82]
[79] See s 5(1) Migration Act 1958 (Cth).
[80] See s 199C Migration Act 1958 (Cth).
[81] See ss 199B, 199C and 199E Migration Act 1958 (Cth).
[82] See 199B(3) Migration Act 1958 (Cth).
The effect of these and other amendments made to the 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, the government can arrange for the non-citizen to be received by a third country. In other words, while the applicant cannot be removed to Iraq, arrangements can be made for him to be removed to a third country at some unspecified time in the future. This may be viewed as a serious legal consequence of the refusal of the applicant’s visa. However, it is also contingent on several preceding factors and conditions, including permission by a foreign country, and could ultimately never materialise.
I accept that, as a consequence of the cancellation of his visa, the applicant will be barred from applying for any other visa other than a BVR.[83] The applicant may also be subject to permanent exclusions from Australia as he may not be able to meet Special Return Criteria 5001(c). I further accept that his uncertain immigration status is likely to exacerbate existing mental health concerns and leave key life stressors unresolved. While the specific conditions of any BVR granted are presently not known, it is likely that such a visa would be subject to mandatory, ongoing and onerous conditions. I also accept that the applicant would have more limited access to support services, including limited access to income and housing, which are likely to increase vulnerability and be detrimental to his mental health.[84]
[83] See 501E Migration Act 1958 (Cth) and reg 2.12AA of the Migration Regulations1994.
[84] Exhibit A3, page 31.
Notwithstanding the above, the applicant has secured an offer of employment and will be in a position to earn an income and secure rental accommodation through the private market upon his release on a BVR. He also retains access to a range of support services, albeit more limited than those that would be available to him if he were to be released into the community on his former SHEV.
I conclude that the legal consequences of the decision weigh strongly against the exercise of the discretion not to revoke the cancellation of the applicant’s visa.
Extent of impediments if removed
Paragraph 9.2 of Direction No. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110, the Tribunal must consider the extent of any impediments that the applicant may face if removed from Australia to their home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraph 9.2(1)(a) to (c) of Direction No. 110 are:
(1)The applicant’s age and health;
(2)Whether there are substantial language or cultural barriers; and
(3)Any social, medical and/or economic support available to the applicant in their country.
As already noted, a protection finding has been made in relation to the applicant with respect to Iraq and, therefore, he cannot be removed to Iraq unless he asks the Minister, in writing, to be removed to that country. At no point has the applicant indicated or expressed the wish to make such a request. Therefore, I give this consideration neutral weight in relation to Iraq.
While this consideration appears to relate to the applicant’s home country, I accept the applicant’s submissions that the Government is currently attempting to remove three individuals ‘within the NZYQ cohort’ to Nauru. However, that removal is the subject of ongoing legal proceedings, and the timing or outcome of those proceedings remains uncertain. However, if he were to be removed to Nauru, I accept that, due to his underlying mental health issues, language and cultural barries, and apparent lack of support networks or services available to meet his needs, he is likely to encounter significant hardship and impediments in establishing himself. The Minister also accepted that if the applicant was to be removed to Nauru as a ‘regional processing country’, he is likely to face significant impediments arising from the same factors.
Nevertheless, I am also of the view that the prospects of the applicant being removed from Australia to Nauru is speculative at this point.
Overall, this consideration weighs in favour of revoking the cancellation decision but only moderately so.
Impact on Australian business interests
In his written submissions, the applicant contended that he is an experienced labourer in the construction industry and his employment history indicates that he has a strong work ethic and can find and maintain full-time employment.[85] However, the applicant also conceded that ‘there is no evidence to suggest that he will, or will likely be, involved in the delivery of a major project, or delivery of an important service to Australia.’
[85] Exhibit A2, paragraph [65].
At the hearing, Mr McCaw submitted that the applicant’s employment history should be considered against this consideration. However, I am mindful that paragraph 9.3 specifically states that ‘unemployment link would generally only be given wait 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 me that the cancellation of the visa would impact Australian business interests in the manner contemplated by Direction No. 110. I give this consideration neutral weight.
CONCLUSION
Weighing the considerations arising under the Direction involves a complex and finely balanced evaluative exercise. As noted by the Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs:[86]
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[87]
[86] [2023] FCAFC 138
[87] Ibid at [35].
I have found that the applicant does not pass the character test under s 501 of the Act. In considering whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision, I have had regard to the specific circumstances relating to the applicant. I have also had regard to the considerations referred to in Direction No. 110. The evaluative exercise of weighing up the factors in the Direction is not subject of some ritualistic formula.[88]
[88] Howells v MIMIA (2004) 139 FCR 580 at 127.
Direction No. 110 says that the protection of the Australian community is the highest priority of the Government. Paragraph 7(2) expressly states that primary consideration 1, 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. However, ultimately, appropriate weight to be given to both 'primary' and 'other considerations'.

I have concluded that the offending was of a serious nature and there remains a moderate risk of reoffending. I have found that primary consideration 1, the protection of the Australian community, weighs moderately strongly against revoking the cancellation of the applicant’s visa. I have also found primary consideration 5, the expectation of the Australian community, weighs strongly against revocation. On the other hand, I have found that primary consideration 3, the strength, nature and duration of the applicant’s ties to Australia, weighs only slightly in favour of revocation. I have given neutral weight to primary considerations 2, the impact of family violence, and 4, the best interests of minor children. I have also found that, among the other considerations, the legal consequences of non-revocation weigh strongly in favour of revoking the cancellation of the visa, and that the extent of impediments to weigh moderately in favour of revocation. I have given neutral weight to the remaining consideration of Australian business interests.
Having regard to all of the primary considerations and the relevant other considerations, I find that the protection of the Australian community and the expectations of the Australian community should be given greater weight than primary consideration 3 and the other considerations. I conclude that primary considerations 1 and 5 outweigh all other considerations that, individually or cumulatively, weigh in favour of not revoking the cancellation of the applicant’s visa. I am not satisfied that there is another reason to revoke the cancellation decision.
DECISION
The decision under review is affirmed.

Date(s) of hearing: 13 – 14 May 2025

151.    Counsel for the Applicant:

152.    Mr R McCaw

153.    Solicitors for the Applicant:

154.    Legal Aid NSW

155.    Advocate for the Respondent:

156.    Mr Ben Nam

Solicitors for the Respondent:

157.    Clayton Utz

151. Counsel for the Applicant:	152. Mr R McCaw
153. Solicitors for the Applicant:	154. Legal Aid NSW
155. Advocate for the Respondent:	156. Mr Ben Nam
Solicitors for the Respondent:	157. Clayton Utz