RKGV and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 100
•5 February 2025
RKGV and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 100 (5 February 2025)
Applicant:RKGV
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9678
Tribunal: Deputy President K Millar
Place:Adelaide
Date:5 February 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
· The Applicant’s application for a Protection (Subclass 866) visa is not refused under s 501(1) of the Migration Act 1958.
.............[SGND].......................
Deputy President K Millar
CATCHWORDS
MIGRATION – refusal to grant protection (Subclass 866) visa – Applicant subject of protection finding – Applicant does not pass character test – substantial criminal record –Applicant convicted of intentionally distribute intimate image without consent – whether there is another reason why visa refusal should be revoked – BVR – Direction 110 – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Pearson v Commonwealth of Australia [2024] HCA 46SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
The Applicant is a citizen of Bangladesh, who came to Australia in 2013 on a student visa. He was unable to continue with his study due to lack of financial support, and his student visa was cancelled in 2018 because he was no longer enrolled.
After ceasing study, the Applicant developed symptoms of a mental illness and started using drugs. In 2020 he was convicted of a series of offences and sentenced to a term of imprisonment of 12 months. He was released from prison to immigration detention in December 2020, and applied for a Protection (Subclass 866) visa on 26 May 2023.
On 30 November 2023, a decision was made by a delegate of the Minister that the Applicant is a person who is owed protection obligations by Australia because he is a refugee.
His application for a protection visa was refused on 14 November 2024 because a delegate of the Minister found that that the Applicant did not satisfy the character test, and that his visa should be refused under s 501(1) of the Migration Act 1958 (‘the Act’). The Applicant seeks a review of this decision.
The Applicant was granted a Bridging R (Removal Pending) (Subclass 070) visa (‘BVR’) on 14 November 2024 and released into the community.
BACKGROUND
The Applicant’s parents and sister live in Bangladesh, and he has an aunt, uncles and two cousins who live in Australia. He does not have contact with his other extended family members who live in Bangladesh and Canada.
He describes a long-term interest in information technology and came to Australia to study cyber security.
In April 2020, the Applicant states he fell from a balcony in a suicide attempt in the context of substance use. He suffered a burst facture of his T12 vertebrae which was treated with the surgical insertion of screws in his back. He was required to wear a back brace for some time and requires further surgery to repair one of the screws.
His mental health has been of concern, with a diagnosis of depression and anxiety. The precise nature of his mental illness is unclear, and he is reported to have drug induced psychosis or schizophrenia or atypical psychosis.
In his application for a protection visa, the Applicant claimed to be engaged to a transgender Australian woman, and to fear harm if returned to Bangladesh because of this relationship. This relationship has now ended.
A delegate of the Minister found that the Applicant is a refugee because he suffers from schizophrenia and faces a real chance of persecution in Bangladesh because of his mental illness.
LEGISLATIVE FRAMEWORK
Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act.
A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
If the Applicant does not meet the character test, the remaining issue is whether there is another reason the decision to refuse his visa should be revoked.
DOES THE APPLICANT MEET THE CHARACTER TEST?
On 14 December 2020, the Applicant was convicted of Steal property in dwelling-house>$2000 & <=$ 5000 T-2, take & drive conveyance w/o consent of owner-T2, intentionally distribute intimate image w/o consent (DV)-T2 and sentenced to an aggregate term of 12 months imprisonment.
In Pearson v Commonwealth of Australia,[1] the High Court held that an aggregate sentence falls within the ordinary meaning of the term ‘sentence’.[2]
[1] [2024] HCA 46
[2] Ibid at [61]
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he has a substantial criminal record as defined in the Act and does not meet the character test.
THE DIRECTION
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(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 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.[3]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(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 … (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.[4]
[4] Ibid cl 7.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1) The protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature and duration of ties to Australia;
(4) The best interests of minor children in Australia;
(5) The expectations of the Australian community.[5]
[5] The Direction, cl 8.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[6]
[6] Ibid cl 8.1(1).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[7]
[7] Ibid cl 8.1.1(1)(a).
The Applicant’s criminal offending, other than a conviction for a drink driving offence, is described in the sentencing remarks of Magistrate Reiss in the Local Court at Burwood.
The Applicant sought to sub-lease a property and obtained a key to the property from the couple subletting the property. He returned after the couple left the property and stole two laptops, a computer mouse and a passport. He was apprehended and granted bail, after which he stole a car a person had left at a garage with the engine running and the keys in the car. The Applicant was homeless at the time and lived in the car for a few weeks. In this time he used stolen cards to tap and pay for items, which were described as having relatively modest value. The Applicant also sought help with the battery of the car he had stolen, and after receiving help had driven off with a battery tester worth $800 in the boot of the car.
While on bail he committed the offence of distributing intimate images, comprising nude pictures of a former partner, by sending these to her mother. The Magistrate found that the Applicant had made threats to his former partner and the underlying intention was to cause pressure and gain an advantage from his former partner for shelter and financial help.
The Applicant stated at the hearing that he was not in a relationship with the victim and had distributed the images to protect her because he wanted to let her mother know she was behaving badly in Australia.
I do not accept his evidence that he was not in a relationship with her at some point in time as the sentencing Magistrate states she was his former partner. I found his explanation that he was trying to protect the victim unconvincing in the context of him seeking to use the images to pressure her to provide financial or other support.
This conduct was against a person with whom the Applicant had an intimate relationship and involved threatening behaviour to make the victim fearful, and falls within the definition of family violence. It was accepted in his submissions that this conduct involved family violence. As his conduct involved an act of family violence it is regarded as very serious in accordance with cl. 8.1.1(1)(a)(iii) of the Direction regardless of the sentence imposed.
There is no information before me on the impact of the victims of the offending. While there are a number of offences, the time period in which these occurred is limited, apart from one drink driving conviction. I do not consider his offending is frequent other than in that relatively short period. There is a relatively small cumulative effect as there are a limited number of offences for which he has been convicted.
There is no information to show the Applicant has provided false or misleading information, has reoffended after being warned, or has committed offences in another country.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[8]
(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:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[8] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[9] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[10]
[9] The Direction, cl 8.1.2(2)(a).
[10] Ibid cl 8.1.2(2)(b).
Nature of the harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[11]
[11] The Direction, cl 8.1.2(2)(a).
The Applicant has taken advantage of people for his own financial gain resulting in loss of property. He has been willing to send intimate pictures of a former partner without her consent. The type of harm that may be suffered is loss of property, psychological harm to a victim of future offending, and damaging the interpersonal relationships of others.
Likelihood of the non-citizen engaging in further criminal or serious conduct
The Applicant provided a psychology report from Dr Noon, who also attended to give evidence. Dr Noon assesses the Applicant at the lower end of the moderate category of offending risk relative to other general offenders.[12] Dr Noon considers this risk would drop to low if the Applicant were to make good use of his time, engage meaningfully with the community, and engage in education or employment.
[12] Ex A8, 78
The Applicant is currently housed with other people who have left immigration detention. He said he does not spend much time with them as several of these people use illegal drugs, and points to his decision not to engage with others to show he has developed a pro-social lifestyle.
Immediately prior to the hearing the Applicant said he was able to obtain a lead for employment but could not give the name of his potential employer. I consider this effort as a late-stage attempt to meet Dr Noon’s recommendations, and do not accept this shows he has developed a pro-social lifestyle to a degree that significantly reduces the risk of reoffending.
Rehabilitation
The Applicant has been in the community since his release from immigration detention in November 2024, and it is not suggested his conduct in the community has been anything other than satisfactory.
He declined drug and alcohol rehabilitation in immigration detention. And his conduct was less satisfactory in this environment. Following a warning about self-incrimination, the Applicant acknowledged he had been using methamphetamine in immigration detention, which is consistent with the notes of the International Health and Medical Services (IHMS). These notes include that he declined drug and alcohol counselling because ‘he does not have any issues’[13].
[13] Ex G23, 211
I accept he last used methamphetamine in May 2023, and has had a period of abstinence. While it is submitted that abstinence is harder in immigration detention than in the community, it is also a more structured environment and his ability to abstain in the community has not been tested over a significant period.
Dr Noon considers the Applicant’s history of drug and alcohol use has contributed to violations of the law, work concerns, and contributed to the assessment of his risk of reoffending being moderate.
The Applicant has been repeatedly non-compliant with anti-depressant medication while in immigration detention and failed to attend appointments with the mental health team. The Applicant said his counsellor was found to be unqualified and was dismissed from IMHS in August 2023 which caused him distress. I do not consider this explains his failure to attend appointment with other medical professionals or his non-compliance with medication.
The Applicant claims to have little memory of his offending, and I did not find his claimed memory loss compelling. He has memory of events surrounding his offending, and his account of the reasons he sent the intimate images is not credible given that I accept he was seeking financial and other support from the victim and was not trying to assist her as he claims.
Overall, I consider there has been little active rehabilitation and the rehabilitation that has occurred has been intermittent, with low engagement by the Applicant.
Protective factors
The Applicant lost contact with his aunt, uncle and cousins in his period of incarceration and has only relatively recently re-established contact with them, visiting once since he left immigration detention. His ties with his extended family provide little support and assistance that will prevent future offending.
The Applicant claims to have maintained a pro-social lifestyle since leaving immigration detention, not socialising with the other detainees who live in the same residence and enquiring in the day prior to the hearing about a job. Dr Noon said any pro-social effort would need to be sustained over time to allow a conclusion that his risk of reoffending has abated. The Applicant has made promising initial steps, but it is not yet established whether this reduces the risk of further criminal conduct.
The focus of the Applicant’s offending was gaining financial and other benefits in a period where he was an unlawful non-citizen, was homeless, and did not have an income. The Applicant now has access to Centrelink payments, housing, and medical care for his mental illness which will reduce the risk of further criminal conduct. Much of his offending relates to seeking food and shelter, and addressing these needs significantly reduces his risk of reoffending. He has not used drugs since May 2023 and, if it is sustained, abstinence from drugs removes a factor that precipitated his offending.
Conclusion on the protection of the Australian community
Overall, I consider there is a moderate risk of the Applicant engaging in further offending to obtain a financial advantage. However, the degree to which this is likely to occur is reduced with the provision of income support and health care and this weighs moderately, but not determinatively, in favour of not granting the visa.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
While the Applicant denied a relationship with the victim of the offending that involved intentionally distributing intimate images, I do not accept this account and find that at the least he was in an imitate relationship with the victim in the past. I am satisfied that his actions were an attempt to coerce the victim into providing him with financial assistance and falls within the definition of family violence in the Direction.
However, this was a single occurrence and the Applicant does not have a history of family violence. His denial of any intent to harm the victim and that he was trying to help her is not plausible and he does not accept responsibility for his conduct and has not engaged in rehabilitation on this issue.
Overall, this weighs somewhat in favour of not granting the visa.
THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction 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’s immediate family are in Bangladesh, with only extended family members in Australia.
The Direction only requires ties to the Australia community where consideration is given to cancellation and non-revocation, and this does not apply to refusal of a visa.
The Applicant has been in Australia since 2013 but was unlawful in the period from when his student visa was cancelled in 2018 until he was granted a BVR in 2024. He has limited ties with family and friends in Australia and a limited employment history.
This factor weighs slightly against refusing the visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
The Applicant has minor cousins in Australia but has had limited contact with them over the last several years.
The interests of each of these children do not differ. He does not play a parental role towards the children, and separation from these children is unlikely to cause any distress. He intends to play a greater role in their lives in the future, and I accept this is a benefit to the children.
The best interests of these children weigh somewhat against refusing the visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction 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.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[14]
[14] The Direction, cl 8.5(2).
Clause 8.5(3) of the Direction 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.
The expectation of the Australian community is that the Applicant will not be granted a visa, and this weighs in favour of not granting the visa.
OTHER CONSIDERATIONS
Clause 9 of the Direction 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 decision under s 501 or 501CA
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.[15]
[15] Ibid cl 9.1.
In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
The Applicant made a valid application for a protection visa and a protection finding has been made. As a result, he will not be removed from Australia unless a further decision is made that a protection finding would no longer be made, or a foreign country is identified to which he could be removed. As he will not be removed from Australia to the country where he fears harm, Australia’s non-refoulement obligations are not engaged by a decision to refuse his visa application.
Other legal consequences of the decision are that he will be prevented from making a further application for a protection visa under s 48A of the Act unless the Minister decides this section does not apply to him, and he will be prevented from applying for any visa other than a BVR under s 501E of the Act.
In the Applicant’s circumstances the legal consequence of refusing the visa application is that he will remain in the community on a BVR unless it otherwise ceases. This in turn has the consequence that he can potentially be removed from Australia in the future, that he is subject to the conditions of a BVR for an indeterminate period, and that he is not eligible for services in Australia that require him to be an Australian citizen or permanent resident, in particular funding under the NDIS or a disability support pension.
Potential Removal from Australia
As the holder of a BVR, the Applicant is defined as a ‘removal pathway non-citizen’ in s 5(1) of the Act.
A person who is a removal pathway non-citizen and who cannot be removed because of a protection finding can be given a removal pathway direction if the person can be removed to another country.[16] There is currently no foreign country identified to which the Applicant could be removed, however possible removal from Australia is a legal consequence of the decision to refuse to grant the Applicant a protection visa.
[16] Section 199B of the Act.
Subject to BVR conditions
The Applicant was granted a BVR on 14 November 2024. This visa includes conditions that that require him not to engage in certain activities or occupations, to report as directed, and notify of changes to his address or employment. He must notify of interstate or overseas travel and notify of contact with people who he knows have been charged with or convicted of a criminal offence. He must not contact the victim or a family member of the victim.
Many of these conditions will not cause the Applicant difficulty at present, but some will be onerous. He must maintain reporting to the Department, and notify of employment, a change of address, other changes in circumstances, and any interstate or overseas travel.
The legal consequence of the decision to refuse his visa is that the Applicant is subject to the conditions on his BVR for an indeterminate period.
Eligibility for services
If he is not granted a permanent visa, the Applicant will not be eligible for services that require him to be an Australian citizen or permanent resident.
Overall, the legal consequences of the decision weigh moderately in favour of not refusing to grant the visa.
Extent of impediments if removed
The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia.
As a protection finding has been made in respect of the Applicant, he will not be removed from Australia unless a protection finding would no longer be made or a third country arrangement is entered, and a foreign country agrees he can enter and reside in that third country. This consideration is neutral.
Impact on Australian business interests
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant does not have an employment history in Australia, and this does not apply.
CONCLUSION
The Applicant does not pass the character test, and I must consider whether his application for a visa should be refused. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
The Applicant is the subject of a protection finding because of his mental illness. His offending, while involving family violence, occurred in a short period as a sequence of events. He has a back injury due to jumping from a balcony and requires further surgery for this condition.
He has a moderate risk of reoffending, however other than the publication of intimate pictures, his offending has involved property offences at a time when he was homeless and did not have an income. He now has income support and access to medical care, and the protection of the Australian community weighs moderately in favour of refusing to grant the visa. The family violence consideration weighs somewhat in favour of refusing the visa, and the best interests of children weigh somewhat against refusing the visa.
The protection of the Australia community from harm as a result of criminal activity is the highest priority of the government, and with the expectation of the community weighs moderately in favour of not granting the visa. However, the Applicant will not be removed from Australia if his visa is refused, and the legal consequences of the decision weigh moderately against refusing the visa.
In the circumstances of this case, I consider those factors that weight against refusing the visa outweigh those in favour. As a conclusion, the decision under review is set aside and emitted for reconsideration in accordance with the order that the Applicant is not refused a protection visa under s 501(1) of the Act.
DECISION
The decision under review is set aside and remitted for reconsideration in accordance with the order that the grant of a Protection (Subclass 866) visa is not refused under s 501(1) of the Migration Act 1958.
Date of hearing:
23 and 24 January 2025
Counsel for the Applicant
Solicitors for the Applicant:
Ms Nguyen
Mr Jimi Muirhead
Asylum Seeker Resource Centre (ASRC)Counsel for the Respondent:
Solicitors for the Respondent:
Mr Hillyard
Mr Tutti Copping
SPARKE HELMORE
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