RBSS and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1968

RBSS and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1968 (2 October 2025)
Applicant/s:  RBSS
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4315

Tribunal:General Member S Evans
Place:Sydney
Date:2 October 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides not to exercise the discretion to cancel the visa.

..................[SGD]....................................
General Member S Evans
Catchwords
MIGRATION – discretionary cancellation of Applicant’s visa – Applicant does not pass the character test – Direction no. 110 – Applicant stateless – best interests of minor children – legal consequences of the decision – ties to the Australian community – decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] 272 FCR 454
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
PRSY and Minister for Immigration and Multicultural Affairs [2025] ARTA 983
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

RBSS (the Applicant) was born in Iraq and arrived in Australia in April 2010 when he was 13 years old. The Applicant, who is stateless, held a Protection (Class XA) (Subclass 866) (the visa) which was cancelled on 10 July 2025 by a delegate of the Minister for Immigration and Citizenship (the Respondent). He currently holds a Bridging R (Class WR) visa (BVR).
For the reasons that follow, the decision to cancel the Applicant’s visa (the reviewable decision) will be set aside.
FACTUAL BACKGROUND
The Applicant first arrived in Australia with his father in August 2010 and was held in immigration detention until 2011. When he arrived in Australia did not speak English and found adjusting to life in Australia difficult. He was also missing his mother and siblings in Iran.
The Applicant settled in Sydney with his family in May 2011. He gave evidence that high school was difficult as he experienced bullying, including a physical assault. The Applicant lived with his family but his relationship with his parents deteriorated because of the people he was associating with. In 2016 he left the family home.
On 13 December 2019 the Applicant was convicted of Wound person with intent to cause grievous bodily harm and sentenced to a term of three years imprisonment (the GBH offence)
On 11 April 2017 the Applicant had been convicted of Dishonestly obtaining property by deception-T1 and Possess prohibited drug. He received an 18-month section 9 bond and was fined $500 for the drug possession offence. On 4 March 2021 the Applicant appeared in the Bankstown local Court where he was convicted of Possess or use a prohibited weapon without permit-T2 and received a 12-month community corrections order. On 6 July 2021 the Applicant was fined $350 and suspended from driving for three months for driving while illicit drug present in blood etc-first off.
Relevantly, the Applicant was involved in a serious motorcycle accident in 2020 for which he was not at fault. He was required to spend 6 months in hospital. It was originally recommended that the Applicant have his leg amputated and the Applicant reports he came close to attempting suicide because he was in such a poor mental, emotional and physical state.
The Applicant continues to experience a decline in his mental health and suffers from post-traumatic stress disorder (PTSD), major depressive disorder and generalised anxiety disorder and frequently experiences suicidal ideation. He has trialled antidepressant medication but experienced negative side effects. The Applicant continues to have the support of a psychiatrist to manage his symptoms of depression and has engaged in counselling.
The Applicant and his close friend have established a building company together. The Applicant has funded the establishment of the company using money he received as compensation following his motor vehicle accident.
On 8 October 2021 the Applicant was sent notice by the Respondent of the intention to cancel his visa under s 501(2) of the Migration Act 1958 (the Act) because he had a substantial criminal record within the meaning of s 501(7) of the Act and did not pass the character test by virtue of s 501(6)(a). The Applicant was invited to comment providing reasons why his visa should not be cancelled.[1]
[1] H5 251-269
On 26 September 2024 the Applicant was sent a second notice of intention to consider cancellation of his visa under section 501(2) of the Act, superseding the notice of 8 October 2024. He was again invited to comment on the notice of intention to consider cancellation of his visa.
On 10 July 2025 the Applicant’s visa was cancelled pursuant to s 501(2) of the Act by a delegate of the Respondent. The delegate found that the Applicant did not pass character test as he had a substantial criminal record as defined by s 501(7)(c) owing to his having been sentenced to a term of imprisonment greater than 12 months.[2]
[2] H5 98-120
RELEVANT LAW AND MINISTERIAL DIRECTION
Subsection 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have a ‘substantial criminal record’, which is relevantly defined in s 501(7)(c) to include a term of imprisonment of 12 months or more.
The Minister has made written directions under s 499 of the Act, which apply to decision-makers in the exercise of the visa cancellation power under s 501. The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens 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 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.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[3]
[3] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the 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. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
It is not in dispute that the Applicant fails the character test as he has a substantial criminal record for the purposes of s 501(6)(a) of the Act. Subsection 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Accordingly, the issue to be determined is whether, having regard to the Direction, to exercise the discretion provided in s 501(2) to cancel the Applicant’s visa.
CONSIDERATION
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1 of Direction 110 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’
Nature and seriousness of the Applicant’s conduct to date
The Applicant has been convicted of several offences since arriving in Australia, the most serious of which is the GBH offence for which he was sentenced in December 2019. In sentencing the Applicant in the District Court, Judge Ingram SC set out the detail of the offending.[4]
[4] H5 123-157
In summary, the Applicant and his co-offender were at Star City Casino in January 2017. A disagreement developed between the victim and one or more of the offenders in relation to drugs that had been found near the table where they had been seated in the casino. The disagreement arose after security officers had approached the table, found the drugs and concluded they were in the possession of the victim. The victim had claimed that the drugs were not his and in fact belonged to one of the offenders who had already left the area.
While at the casino the victim tried to have the Applicant persuade the other offender to return and confess his guilt to authorities so as to exculpate the victim in relation to the drug offence. Later that night there was a confrontation between the victim and the Applicant in relation to the victim being investigated regarding the drugs and the refusal of the other offender to confess to his own guilt to the authorities. During the confrontation, the victim had stolen a mobile phone from the Applicant.
A few days later the Applicant contacted a female friend and asked her to befriend the victim on social media. The Applicant told his female friend to arrange a meeting with the victim. The female friend communicated with the victim over a period of about two weeks without revealing to the victim that she was a friend of the Applicant.
On 16 January 2017 the female friend arranged to take the victim by car to a park. Before she collected the victim, the female friend met with the Applicant and his co-offender. When she met with the victim she made contact with the Applicant by telephone to confirm her location. The Applicant, his co-offender and a young person entered the park and there was a brief discussion about returning the mobile phone or phones. The victim refused to do so unless the co-offender confessed to authorities that he had been the owner of the drugs at the casino.
The victim was initially punched to the ground and then assaulted by the Applicant, his co-offender and the young person. The assault lasted a relatively short time and initially involved the victim being punched to the ground where all three offenders punched and kicked the victim as he lay on the ground. The offenders then fled the scene.
The victim was taken to hospital that evening where he was assessed to have suffered a severe concussion. He reported having no memory of the assault. He also suffered wounds to the top of his head and above his left ear. He was discharged from hospital the following day.
The Court considered there was a degree of planning that involved the victim initially being lulled into a false sense of security in relation to his newfound friendship with the female friend. The nature and the extent of the arrangements for the meeting were not indicative of a spontaneous assault. The Court noted that the role of both offenders in the commission of the offence was broadly equivalent.
The Court was satisfied that the offenders intended to inflict a not insubstantial level of grievous bodily harm on the victim given the attack was perpetrated by three offenders acting in concert over a period measured over a couple or a few minutes. The Court observed the level of violence was significant in that it involved a surprise attack in a public space as the victim lay on the ground.
In addition to the GBH offence, on 11 April 2017 the Applicant was convicted of Dishonestly obtain property by deception-T1 in the Burwood local Court and sentenced to a section 9 bond for 18 months. He was also convicted on the same day of possess prohibited drug for which he was fined.
The Applicant has also been found guilty of driving charges including multiple counts of drive while suspended or licence cancelled for which he has been fined and disqualified from driving. Notably on 6 July 2021, the Applicant was convicted in the Burwood local Court of drive vehicle with illicit drug present – first offence and his license suspended for 3 months commencing 6 July 2021.
On 4 March 2021 the Applicant pleaded guilty to a charge of Possess prohibited weapon without permit and received a 12-month community correction order. The police facts record police located a bag around the Applicant’s neck containing a knife. The knife was 25 cm long with an 11 cm blade and had a flick mechanism so the blade would open automatically upon pressure. The Applicant was subject to a conditional release order at the time.
The grievous bodily harm offence was a violent crime which involved a degree of premeditation and planning over a period of weeks and must be considered serious. Having regard to the Direction, I consider that the cumulative impact of the Applicant’s repeated offending has caused harm to the community and is indicative of a disregard for the law and safety of others.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[5]
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[5] Direction 110, paragraph 8.1.2.
Should the Applicant engage in further conduct of a similar nature to his past offending there is a significant risk of physical, psychological and financial harm to members of the Australian community. Further driving related offending may endanger other road users.
In sentencing the Applicant for the GBH offence, the Court observed he was aged 19 at the time of the offence and 22 years-old when he was sentenced. The sentencing judge noted the Applicant had grown apart from his mother and siblings and experienced a strained relationship with his father which ultimately led to him leaving the family home about four months prior to the offending.
In sentencing the Applicant, Judge Ingram considered a psychological report by Mr Borenstein who opined the Applicant continued to experience symptoms of post-traumatic stress disorder which dated back to being raised in a war-torn environment between the ages of 3 and 13. The report stated the Applicant’s symptoms were exacerbated by the journey to Australia. The Court noted that the Applicant had a confirmed diagnosis of chronic and complex post-traumatic stress disorder (PTSD). Mr Borenstein also opined that the Applicant’s psychological state was more vulnerable leading up to the offence as he had moved out of the family home as a result of tensions between him and family members. The Court was satisfied that the Applicant suffered from PTSD.
The Court found that the Applicant had not insubstantial moral culpability for his offence and was not satisfied that there was any basis for a finding of remorse in relation to the Applicant. His Honour noted there was no plea of guilty in the matter which went to trial. Further there was no material tendered on sentence which satisfied the Court there was genuine remorse for the GBH offence.

In sentencing, it was noted that the Applicant had a limited criminal history, and the offending represented a significant escalation in the seriousness of his offending. His Honour observed that the Applicant was a relatively young man and there was evidence that he would be responsive to appropriate treatment to deal with this PTSD. It was considered that the Applicant had reasonably good prospects of rehabilitation provided he participated in rehabilitation courses and therapies. The Court found it was unlikely that the Applicant would reoffend by committing any offence involving significant interpersonal violence.
The Applicant submits that he understands that his actions cannot be justified by his past experiences is apologetic about his criminal history. Despite pleading not guilty to the GBH offence, the Applicant claims to be remorseful for his offending and ashamed of the harm he caused. He has acknowledged the significant impact of his violent offending on the victim. The Applicant submits that he no longer associates with his friends who were involved in the GBH offence and that he no longer drives as a result of the motorbike accident.
Regarding rehabilitation, the Applicant says that he has undertaken anger management while in prison and has learnt to better control his anger. He has also undertaken counselling and received psychological and psychiatric treatment.
There is psychological evidence that the Applicant has displayed a high level of insight into the ramifications of his actions and is remorseful. In explaining some of his offending, the Applicant demonstrated a reluctance to accept responsibility for his actions.
A psychological evaluation of the Applicant was undertaken by Istvan Schreiner who prepared a report dated 15 September 2025. Mr Schreiner also gave evidence at the hearing. Based on the Applicant’s history and assessment results, he diagnosed the Applicant with Chronic PTSD and Major Depressive Disorder. He also identified symptoms of anxiety. Mr Schreiner considers the likelihood of the Applicant engaging in further criminal or other serous conduct in Australia to be ‘minimal to none’, and noted several protective factors that would significantly reduce the likelihood of re-offending. These include ceasing contact with offending peers, using compensation from his motor vehicle accident to set up a building company, and rekindling of his relationship with his family.
The evidence of the Applicant’s siblings supports his offending behaviour being tied to the negative influence of his peers. They identified a determination of the Applicant to rebuild his life and of having made positive and meaningful changes. I accept that he will have their support in the future and this will be a significant protective factor.
A previous sentencing assessment report dated 30 September 2019 assessed the Applicant as being a medium to low risk of reoffending according to the Level of Service Inventory - Revised.[6] That report also identified protective factors including the support of the Applicant’s family and ceasing contact with negative associates.
[6] H6 p401-406
I consider the evidence of the Applicant’s remorse is limited. In his evidence the Applicant appeared to downplay his role in the GBH offence, giving evidence contrary to the findings of the Court. In relation to his less serious offending, the Applicant demonstrated an inclination not to take responsibility for his actions. He accounted for the possession of a weapon offence on feeling threatened following a ‘road rage’ incident which he had not reported to the police. He said that he drove while suspended in 2016 because his friends had told him he could continue driving during the period of license suspension. In relation to dishonestly obtain property by deception, he said that he was asked by a friend to collect a phone for him and that he was not aware the receipt that he had been given was false. The Applicant’s limited remorse and reticence to take full responsibility for his offending detracts from the protective factors he has identified.
The Applicant’s circumstances have changed considerably since the GBH offence, which was committed when he was 19 years old. He has restored his relationship with his parents, started a business with his close friend, ceased contact with negative influences and had a very serious accident. I consider these are significant protective factors.
Overall, I find that the risk that the Applicant will reoffend is low. I make this finding on the basis of Mr Schreiner’s psychological report, the protective factors including the Applicant’s family, the significant consequences for the Applicant of his motor vehicle accident, his relative youth at the time of the GBH offence and the fact that his serious and violent offending is an isolated, one-off incident.
Conclusion as to the protection of the Australian community
The Applicant’s offending is serious and weighs strongly in favour of cancelling the visa. However, the Applicant has reasonable prospects of rehabilitation, and the evidence supports a low risk of reoffending. Overall, this consideration is given substantial weight in favour of cancelling the visa.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(2) provides that this consideration is relevant where a non-citizen has been convicted of an offence involving family violence or there in information or evidence from independent and authoritative sources indicating the non-citizen is or has been involved in the perpetration of family violence.
There is no evidence to indicate this primary consideration is relevant. As such, it is afforded neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having 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 has resided in Australia for 15 years having arrived as a minor. His family in Australia consist of his parents, grandmother, 5 sisters, brother and fiancé. The Applicant’s fiancé is in Australia and has provided a statement in which she says the Applicant is a constant source of support and she would be lost without him. However, in a statement the Applicant writes that she ended their relationship because his ‘residency status in Australia was not resolved’.[7]
[7] H8 487
The Applicant's mother is physically unwell and requires the Applicant’s support to assist her in dealing with her long-term psychological issues. In a statement she writes that the Applicant’s imprisonment was painful for her whole family. She said his absence had placed a heavy emotional burden on the family and that the Applicant’s younger siblings were confused and saddened and often asked about him when he was in prison. She says the Applicant has now taken responsibility for his actions and removed himself from bad influences and now spends time with his family and in particular his younger siblings. She said that his younger sisters and see him as a role model.
In evidence are statements from the Applicant’s siblings. The Applicant’s older brother said that the Applicant has suffered because of his offending. The subsequent motorcycle accident was a major turning point in his life which forced him to reflect and make positive changes. He said that their parents were heartbroken and constantly worried about the Applicant when he was absent, and it felt like his family was falling apart. He also expressed fears for the well-being of his sisters should the Applicant’s visa remain cancelled. The Applicant’s adult sister made similar representations. It is accepted that the cancellation of the Applicant’s visa would be significant and detrimental to his siblings and parents.
Friends of the Applicant have provided statements of support. The Applicant’s close friend and business partner, along with his wife, have also expressed how important the Applicant is to them.
After being released from prison the Applicant volunteered to work with the Lebanese Muslim Association where he was described as a valued member of the community. In 2020 he volunteered to help with Youth Off the Street Youth Advisory Group. Correspondence from the Lebanese Muslim Association does do not provide any specific details as to the nature or duration of his contribution. A letter from Youth Off the Streets states that the Applicant has been actively engaged with the organisation since early 2024, leveraging his ‘personal experiences to positively influence and motivate young individuals’.[8]
[8] H5 214
The evidence regarding the Applicant’s contribution to the community through his volunteer work is sparse. I accept the Respondent’s submission that given the periods during which the Applicant was in custody or recovering from his motorcycle accident, it is likely his participation in volunteer work was very limited.
The Applicant was a minor when he came to Australia and has spent a considerable portion of his formative years here. He has a large immediate family who are Australian citizens and will be directly impacted by the cancellation of his visa. Owing to his family, his arrival as a minor, and to a lesser extent his social links to the community, this consideration is afforded significant weight against cancelling the Applicant’s visa.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[9] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[10]
(a)   the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)   the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)   the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)   the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)   whether there are other persons who already fulfil a parental role in relation to the child;
(f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)   evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)   evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[9] Direction 110, para 8.4.
[10] Ibid.
Four of the Applicant’s sisters are minor children – one is age 11, one is 12 and two are 16 years old. The Applicant’s sisters have provided statements and gave oral evidence at the hearing. They universally spoke of the Applicant’s kindness and understanding and how they fear his absence. They described him as a loving brother who is central to their family.
The 16-year-old described how he helps her with her schoolwork and drives her to see her friends. The Applicant’s 11-year-old sister said it would break her heart if her brother were to be removed as her family would be incomplete without him.
In addition to the evidence of the minor children there is a letter from a child and adolescent counsellor who counselled the applicant’s 11-year-old sister. In the 5 November 2021 letter the counsellor wrote that the child often speaks of her siblings and on many occasions had mentioned the Applicant as a positive attachment and her positive relationship with him.[11] The counsellor writes that the child’s mood and behaviour was linked to his absence when he was in prison. The counsellor opines that the cancellation of the Applicant’s visa would have a significant impact on her. She considers it would be a ‘traumatic life event’ for the child and her family that could increase the risk of developing anxiety and depressive symptoms in the future.
[11] G85-86
I note that Applicant’s imprisonment, extensive period of hospitalisation following his motorbike accident and his having left the family home prior to the index offence would have limited his interactions with his sisters between 2016 and 2020.
The Applicant does not have parental responsibility for the children who are being cared for by their parents. However, the evidence provided by the minor children persuasively demonstrated that his imprisonment and absence had a significant emotional impact on them. I accept that the cancellation of his visa would be similarly distressing on account of their individual relationships with him. The evidence also supports the Applicant’s wellbeing being an important factor in the stable functioning of their family.
Overall, I accept that that cancellation of the Applicant’s visa would be emotionally detrimental to the minor children, and this primary consideration weighs heavily against the cancellation of the visa.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:[12]
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
[12] Direction 110, paragraph 8.5.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.[13]
[13] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] (Charlsworth J).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated in the Direction, without independently assessing the community's expectations in the particular case.
The Applicant has failed to meet the Australian community’s expectation that visa holders obey its laws. I accept the Respondent’s contention that the nature of the Applicant’s offending – particularly the crime involving the use of violence – is such that the Australian community would expect the Applicant’s visa to be cancelled.
Having regard to the Direction and taking into account the nature of the Applicant’s offending and the sentences imposed, this consideration weighs moderately in favour of cancelling the visa.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that the legal consequences of a decision to cancel an applicant’s visa are that the applicant will be liable to removal from Australia pursuant to s 198 of the Act, and in the meantime, subject to detention under s 189 of the Act.
The Applicant was previously granted a protection visa on 22 June 2011 on the basis of being a member of the family unit of another applicant. No protection finding was made specifically in respect of the Applicant, but it is not controversial that the Applicant is stateless and there is no real prospect of his removal to Iraq or Palestine becoming practicable in the reasonably foreseeable future.
Following the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, the Applicant cannot lawfully be detained as there is no real prospect of his removal from Australia being practicable in the reasonably foreseeable future.[14] The Applicant is currently the holder of a Bridging R (Class WR) visa (BVR) and as such he is lawfully in Australia and residing in the community. A decision to affirm the cancellation of the visa will not affect his entitlement to continue to hold the BVR. As such, the direct and immediate consequence of a decision to affirm the cancellation of the visa is that the Applicant will continue to remain lawfully in the community as holder of the BVR.
[14] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Should the Applicant’s visa be cancelled and he remain the holder of a BVR, the Respondent submits he will be entitled to access health and social welfare benefits. The Applicant may not be able to access the NDIS as holder of a BVR, but this would not be a direct and immediate statutorily prescribed consequence of cancellation.[15]
[15] See Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [135]-[136]
As the holder of a BVR, the Applicant is defined as a ‘removal pathway non-citizen’ in s 5(1) of the Act. The BVR includes a range of conditions with which the Applicant must comply, and breach of certain conditions may amount to an offence. A BVR may cease if the Minister cancels the visa under one of the character cancellation powers, or the Applicant departs Australia, or another visa is granted. A BVR would also cease in the event the Minister notifies the Applicant that removal is reasonably practicable or notifies the Applicant he has breached a condition, or when the Minister grants another BVR.
Under s 76AAA the Applicant’s BVR would cease should he be given permission to enter and remain in another country and that country is subject to a third country reception arrangement. The Applicant would then be liable to being detained under s 198 of the Act. The Applicant does not currently have permission to enter and remain in another country.
In February 2025 the Australian Government announced it had entered into an interim third country reception arrangement with Nauru. On 29 August 2025 the Australian government announced that a Memorandum of Understanding between Australia and Narau had been signed which contains undertakings for the proper treatment and long-term residence of people who have no legal right to stay in Australia, to be received in Narau.[16]
[16] Respondent’s SFIC [124]

The Respondent submits that the entry into a third country reception arrangement is an exercise of non-statutory executive power and therefore not a ‘statutorily prescribed consequence’ of a decision to cancel a visa.[17] However, in PRSY and Minister for Immigration and Multicultural Affairs (PRSY) Deputy President Millar found that one of the legal consequences of a decision to refuse a protection visa was that the applicant may be removed to a third country, including Nauru, should a third country reception arrangement exist.[18]
[17] See TCXM v Minister for Immigration and Multicultural Affairs
[18] See PRSY and Minister for Immigration and Multicultural Affairs [2025] ARTA 983 at [128]-[134]
The Applicant expressed concern about the possibility of being removed to Nauru. He submits that employment opportunities are scare and basic services largely inadequate. The Applicant is heavily dependent on specialised medical care following his motorcycle accident and requires ongoing psychological support, which he says may not be accessible in Nauru. The Respondent submits that removal to Nauru is speculative, but acknowledges the challenges faced by the Applicant as a consequence of the severity of his injury and concedes it is unclear whether Nauru could provide the level of care he requires and by when.
I note that in his report Mr Schreiner recommends the Applicant receives ongoing psychological treatment for depression and PTSD. He opines that without this support, it is likely the Applicant’s conditions would deteriorate and if also separated from family support, he considers suicide may become a realistic possibility.
In conclusion, the legal consequences of the decision are that the Applicant will remain in the community irrespective of the Tribunal’s decision. Should the visa remain cancelled, the Applicant will continue to hold a BVR which includes conditions and restrictions which the visa does not. If the visa is cancelled, the Applicant will be subject to continued uncertainty regarding his ability to remain in Australia, the possibility of removal to a third country, and the consequences that would follow. He will be prohibited from applying for other visas by s 501E of the Act which would apply as a result of the cancellation decision. Without Ministerial intervention, will also be barred from making a further application for a protection visa by s 48A of the Act.
Having regard to these consequences, this consideration weighs moderately in favour of not cancelling the visa.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1)    Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)   the non-citizen's age and health;
b)   whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
Should the Applicant be removed from Australia, I accept that he may experience practical, financial and emotional hardship. However, the Applicant is stateless and will not be returned to his home country. Accordingly, this consideration weighs neutrally.
Impact on Australian business interests
I accept the submissions of the parties that this consideration is not relevant and should be afforded neutral weight.
CONCLUSION
The primary considerations of the protection of the Australian community and expectations of the Australian community weigh in favour of cancelling the Applicant’s visa. The protection of the Australian community is afforded less weight owing to his serious offending being a one-off and the low risk of the Applicant reoffending. The expectations of the Australian community are afforded moderate weight.
The strength, nature and duration of the Applicant’s ties to the community weigh significantly against cancelling the visa owing to the impact a decision to cancel his visa would have on his immediate family and his having arrived in Australia age 13. The Applicant does not have any children of his own, but the cancellation of his visa would be emotionally detrimental to his four minor siblings, and their interests weigh heavily against cancelling his visa.
The legal consequences of a decision to cancel the Applicant’s visa are that he would remain in the community lawfully but face ongoing and considerable uncertainty. This consideration weighs moderately against cancelling his visa.
On balance, the correct and preferable decision is not to exercise the discretion to cancel the Applicant’s visa. It follows that the reviewable decision will be set aside.
DECISION
For the reasons outlined above, the Tribunal sets aside the decision under review and in substitution decides not to exercise the discretion to cancel the visa.

Date(s) of hearing: 18, 19 and 22 September 2025

Counsel for the Applicant:

Solicitors for the Applicant:

Mr David Godwin of Queen Squares Chambers

Ms Vicky Nguyen of Brett Slater Solicitors

Solicitors for the Respondent: Ms Cate Cloudsdale, Mills Oakley Lawyers