RNJC and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 183

RNJC and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 183 (5 March 2025)
Applicant:RNJC
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10601

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:5 March 2025

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Islamic Republic of Iran – Class XE (Subclass 790) Safe Haven Enterprise Visa – conviction for Kidnapping (common law) – Blackmail – Make threat to kill – Possess morphine – Possess drug of dependence – two years and six months imprisonment – substantial criminal record – Applicant does not pass character test – non-revocation decision – whether another reason to revoke mandatory cancellation – Ministerial Direction No. 110 applied – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act2024 (Cth)
Migration Amendment (Removal and Other Measures) Act2024 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BNY23 vMinister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CKL v Minister for Home Affairs [2022] FCAFC 70
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Duncan v New South Wales (2015) 255 CLR 388
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Matthews v Minister for Home Affairs [2020] FCAFC 146
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
RDYQ v Minister forImmigration, Citizenship and Multicultural Affairs [2024] FCAFC 108
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582
Spruill v Minister for Immigration and Citizenship [2012] FCA 1401
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2820
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
Statement of Reasons
INTRODUCTION

The Applicant has asked the Tribunal to review a decision by the Respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the cancellation of his Class XE (Subclass 790) Safe Haven Enterprise Visa.[1]
[1] Exhibit R1, 4-14, 18.
The hearing was held in the Tribunal’s Melbourne Registry on 25 and 26 February 2025. The Applicant was represented by Dr Mehdi Soodi, an Australian Legal Practitioner and Registered Migration Agent from Falcon Immigration and Visa Services. The Respondent was represented by Ms Claudia Crawley, a solicitor from HWL Ebsworth Lawyers.
For the following reasons, the Tribunal affirms the non-revocation decision.
BACKGROUND FACTS
The following background facts are uncontested:
(a)The Applicant is a 41-year-old citizen of the Islamic Republic of Iran (Iran).[2] He arrived in Australia approximately 12 years[3] as an unauthorised maritime arrival[4] and was detained as an unlawful non-citizen.[5]
(b)The Applicant made protection claims about fearing persecution because he converted from Islam to Christianity while living in Iran.[6] In July 2017, a delegate of the Respondent decided the Applicant is owed protection and cannot be involuntarily returned.[7] An anonym (RNJC) is therefore applied to the Applicant’s identity because of his protection status.[8] Information tending to identify him is redacted or only referred to in a general way.
(c)The Applicant has committed crimes in Australia that include kidnapping, blackmail, and making a threat to kill.[9] Following convictions for these and other offences his visa was cancelled on 23 August 2024.[10]
(d)The Applicant made representations to have the cancellation decision revoked.[11] On 12 December 2024, a delegate of the Respondent declined to do so (non-revocation decision).
(e)On 17 December 2024, the Applicant asked the Tribunal to review the non-revocation decision.[12]
[2] Ibid 70.
[3] Ibid 135
[4] The Act, ss 5AA.
[5] Ibid ss 14 and 189.
[6] Exhibit R1, 40 [15], 170.
[7] The Act, s 197C(3).
[8] Ibid s 501K.
[9] Exhibit R1, 35-6.
[10] Ibid 50-6, 162, 167.
[11] Ibid 58-134.
[12] Ibid 4-14.
LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to hear this application.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and states that a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7), including if they have been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person either passes the character test, or there is ‘another reason’ why the original decision should be revoked.
Under ss 49 and 50 of the ART Act, the Tribunal’s procedure is at its discretion, and it must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
Section 500(6L) of the Act requires that the Tribunal decides this application within 84 days of the Applicant being properly notified of the non-revocation decision. This falls on 6 March 2025, which is six working days after the hearing concludes.
ISSUE
Because the Applicant was sentenced to a term of imprisonment exceeding 12 months, he has a substantial criminal record and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation. The Tribunal is required to read, identify, understand, and evaluate the Applicant’s clearly articulated representations or those arising from the evidence.[13]
[13] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22], [25], [27], [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 110
In making its decision, the Tribunal must comply with a direction under s 499(1) of the Act, known as ‘Ministerial Direction no.110’ (the Direction).[14] The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power.[15]
[14] The Act, s 499(2A); Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ).
[15] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The following principles at cl 5.2 of the Direction provide a framework within which
decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizen 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.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to primary and other considerations where relevant to the decision.
Clause 8 of the Direction sets out the following primary considerations:
(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.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that, when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that 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.’
Clause 7(3) states that: ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an Applicant’s claims, and the individual and cumulative weighing process is a matter for individual decision-makers.[16]
EVIDENCE
[16] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as Her Honour then was).
Statement of Facts, Issues, and Contentions
A Statement of Facts, Issues, and Contentions (SFIC)[17] is routinely lodged by parties during the pre-hearing phase. The Tribunal has considered the Applicant’s SFIC filed on 6 February 2025 and the Respondent’s SFIC dated 18 February 2025.
[17] A SFIC is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides are aware of and have an opportunity to answer each other’s case.
Documentary evidence
Documents were tendered into evidence during the hearing as follows:
(a)Document bundle from the Respondent numbering 184 pages;[18]
(b)Supplementary documents from the Respondent numbering 561 pages;[19] and
(c)Two-page statement of the Applicant’s partner dated 3 February 2025.[20]
[18] Exhibit R1. These documents were lodged with the Tribunal pursuant to s 501G of the Act.
[19] Exhibit R2.
[20] Exhibit A1.
Oral testimony
The Applicant and his defacto partner, who the Tribunal will refer to as ‘Ms AA’, were the only witnesses called. They were assisted by an interpreter in the Persian language, which is also known by its endonym ‘Farsi’. Dr Soodi informed the Tribunal he is a Farsi-accredited interpreter and had spoken with both witnesses about their privilege against self-incrimination. The Tribunal also reminded them of this during their oral testimony.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that 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.
(2)   Decision-makers should also give consideration to:
a)    the nature and seriousness of the non-citizen’s conduct to date; and
b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a 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:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the
non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(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;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Nature and seriousness of the conduct: Tribunal consideration

The Applicant submitted that apart from the 2024 kidnapping convictions he had ‘no prior criminal record’ and ‘led a quiet and law-abiding life demonstrating good character and adherence to community standards’.[21] His criminal history, however, discloses a court appearance in April 2019 where he answered charges for Reckless conduct endanger serious injury and Attempt to commit indictable offence.[22] Police reports refer to him staging a vehicle collision for the purpose of a false insurance claim.[23] The Court found the Applicant guilty of these offences but decided not to record convictions, and imposed a 12-month Community Correction Order (CCO) and 250 hours of community work.[24] The Applicant recalled this court appearance, agreed he was found guilty of these offences, but denied staging a vehicle accident for the purpose of a fraudulent insurance claim.
[21] Applicant’s SFIC, 2 [2.3], Exhibit R1, 85 [3].
[22] Exhibit R1, 36.
[23] Exhibit R2, 482-3; 557-61.
[24] Ibid 474.
The Applicant’s most serious crimes occurred in June 2022. He was arrested, charged, served a period on remand, and was bailed. In 2024, he was sentenced to two years and six months imprisonment for the crimes of Kidnapping (Common Law), Blackmail, and Make threat to kill.[25] He was also fined for two drug possession offences. The Court described the Applicant’s conduct against the victim as ‘serious’,[26] ‘frightening’,[27] and involving ‘a chilling threat to kill’.[28] The Applicant played the central role in planning the kidnapping, recruiting others,[29] and did not release the victim until a significant sum was handed over. The Tribunal has considered a statement from the victim dated 22 June 2022, referring to the adverse consequences of the Applicant’s conduct.[30]
[25] Ibid 20.
[26] Exhibit R1, 38 [4].
[27] Ibid 39 [9].
[28] Ibid 39 [6].
[29] Ibid 39 [9].
[30] Ibid 536-540, pursuant to cl 8.1.1(1)(d) of the Direction.
When asked about the Court’s finding that he carried a ‘large stick’ and his co-offender was armed with a knife during the kidnapping,[31] the Applicant denied holding a stick or threatening the victim. He insisted that he ‘didn’t demand anything’ but ‘just asked’ for money owed to him, He claimed it was the victim who suggested they go to his apartment to ‘sit down and talk’. When asked about the Court’s reference to the kidnapping being for the purpose of challenging the victim about what he said about the Applicant in the community, the Applicant initially responded: ‘No it was because he owed me money’. In later evidence he claimed the victim was also ‘talking behind [the Applicant’s] back [and] swearing at [his] wife and children’. The Applicant said he did not personally hear this but knew it from the victim’s ‘manner and behaviour’. He also claimed the victim anonymously sent threatening messages to Ms AA and their children using different telephone SIM cards.
[31] Ibid 38 [6].
The Applicant submitted that his past conduct ‘does not involve family violence’ and he ‘has consistently demonstrated his role as a caring father and husband’.[32] This claim is contradicted by references to him committing or threatening violence against Ms AA[33] and the imposition of more than one Family Violence Intervention Order (FVIO) between February 2023 and July 2025.[34] Other documents refer to him expressing knowledge about these FVIOs, consequences of breach, and involvement of Child Protective Services (CPS).[35] The Tribunal has considered a statement from Ms AA dated 8 March 2024 about the effects of the Applicant’s family violence against her.[36] This is discussed in greater detail under the family violence primary consideration. During her oral testimony, Ms AA said the Applicant frequently accused her of having extra-marital affairs, got upset at times and ‘couldn’t control himself’, pushed her causing a fall down some stairs, and she discovered recording devices he placed in her car and under her bed frame.
[32] Ibid 85 [2].
[33] Exhibit R2, 466, 475-6, 498, 501.
[34] Ibid 147, 295 (entry dated 12 June 2024).
[35] Ibid 31 [83], 32 [88], 314-5, 399-400, 432.
[36] Ibid 510-4.
In addition to the Applicant’s criminal history, ‘other conduct’ may be relevant to the Tribunal’s consideration despite not leading to charges or convictions.[37] The Tribunal is not bound by the rules of evidence[38] and, even if conduct is not substantiated by a court, there is nothing preventing the Tribunal from considering it. For example, contemporaneous records are often obtained under summons but do not assume the status of evidence until admitted. Their probative value is tested through cross-examination. Absent a prosecution and conviction, however, care must be taken when considering findings that criminal conduct may have occurred.[39] Kenny J has pointed out that the limits of contemporaneous records must be acknowledged, including their cogency and reliability.[40]
[37] The Direction, cl 8.1.1(1).
[38] ART Act, s 52.
[39] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74].
[40] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
The Applicant was reminded of his privilege against self-incrimination before being questioned about the following:
(a)References to illicit drug use in excess of that solely disclosed by his criminal history.[41] The Applicant said his drug use originated in Iran while in his 20s and persisted after arrival in Australia, escalating to a severe (daily) addiction to opium. He did contest that his illicit drug use was more extensive than that solely reflected by his criminal history.
(b)The Applicant was asked about custodial records referring to misconduct as follows:
(i)1 May 2023: The Applicant accepted that tried to divert prescription Opioid Substitution Therapy (OST) in the form of Suboxone strips.[42] He claimed this was because he wanted to reduce his reliance on OST, but agreed this could have been more simply accomplished by requesting a dose reduction from medical staff. This aspect of the Applicant’s evidence was unconvincing.
(ii)21 May 2023: Two tablets and smoking implements were found in a cell the Applicant shared with another prisoner.[43] The Applicant claimed these items belonged to the other prisoner. Given the Applicant’s denial and in the absence of more probative evidence, no weight is placed on this incident.
(iii)1 November 2024: A staff member observed a potential pass of contraband between the Applicant and another prisoner, resulting in the discovery of ’17 jail made cigarettes’.[44] The Applicant claimed the cigarettes were not his. Given the Applicant’s denial and in the absence of more probative evidence, no weight is placed on this incident.
(iv)3 November 2024: Contraband consisting of a bottle with white powder believed to be nicotine lozenges, and a black glove filled with urine were found in the Applicant’s cell.[45] The Applicant conceded he took the crushed-up powder from a released prisoner’s cell but claimed the black glove was only filled with water and not urine.
(v)3 November 2024: The Applicant agreed he returned a positive urine test,[46] claiming it was because he ‘drank from someone else’s bottle’. When asked what he tested positive to, he responded ‘I don’t know’.
(vi)19 November 2024: The Applicant and another prisoner were separated to different units because of officer concerns they were involved in trafficking and conspiring to traffick contraband.[47] The Applicant said he could not recall this incident but denied involvement in trafficking or conspiring to do so. Given the Applicant’s denial and in the absence of more probative evidence, no weight is placed on this incident.
[41] Exhibit R1, 40 [17], 41 [24]; Exhibit R2, 26 [38]-[40], [50], 280 (09/10/2024), 344, 378.
[42] Exhibit R2, 37. Suboxone is used to treat dependence on opioid drugs such as heroin or morphine.
[43] Ibid 39.
[44] Ibid 41.
[45] Ibid 43.
[46] Ibid 44.
[47] Ibid 45.
The Respondent submitted that the Applicant’s ‘offending should be viewed as very serious’ and his violence should weigh heavily in favour of affirming the reviewable decision.[48]
[48] Respondent’s SFIC, 5 [28].
Nature and seriousness of the conduct: Tribunal findings
There is no evidence the Applicant committed any crimes prior to arriving in Australia.
The Applicant accepts he was found guilty in 2019 of Reckless conduct endanger serious injury and Attempt to commit indictable offence. Given no convictions were recorded, however, current Federal Court authority means it is impermissible to take account of this.[49] The Tribunal places no weight on the Applicant’s 2019 court outcomes.
[49] WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465, [8] (Hespe J).
Crimes involving general violence and family violence fall within the range of conduct viewed very seriously by the Australian Government and community. In the case of family violence, this is irrespective of whether a conviction is recorded, or a sentence imposed. The Tribunal is not bound by Government and community views, however, and must consider the available evidence to determine seriousness and the weight to be attributed.[50] This assessment now follows:
(a)The Applicant’s kidnapping and threat to kill offences engage cl 8.1.1(1)(a)(i) of the Direction. The sentences awarded were below the available statutory maximums. That said, custodial dispositions are a last resort and the most severe sanction available to our courts.[51] A two-and-a-half-year sentence is significant, regardless of where it sits in the context of a statutory maximum. The Applicant’s central role in the kidnapping and the adverse impacts on the victim are such that this conduct is very serious. To the extent that the Applicant’s current claims conflict with Court findings, the Tribunal prefers the latter. It is impermissible to impugn convictions or their essential factual basis.[52] Moreover, the Applicant’s plea of guilty constitutes admission to, and acceptance of, the essential elements of each offence.[53]
(b)Such were the ‘severe concerns’ held by Victoria Police that ‘family violence will continue’ and could result in Ms AA’s death,[54] that interim and final FVIOs were granted.[55] Having regard for the totality of the evidence, the Tribunal is satisfied the Applicant’s was violent against Ms AA while on bail for the kidnapping offences. He also made derogatory claims by alleging infidelity and engaged in stalking behaviour using recording devices. His conduct engages cl 8.1.1(1)(a)(iii) of the Direction.
[50] BNY23 vMinister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14, [103], [107] (Rangiah, Derrington and Rofe JJ).
[51] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
[52] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, 244–245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102].
[53] Maxwell v R (1996) 184 CLR 501, [19] (Dawson and McHugh JJ).
[54] Exhibit R2, 476.
[55] Ibid 295 (12/06/2024); 477-78; 502.
In terms of ‘other conduct’, the Tribunal is satisfied the Applicant’s use of illicit drugs in Australia was much more frequent than that solely disclosed by his criminal history. The Tribunal is also satisfied he has engaged in instances of custodial misconduct, including by attempting to divert prescribed OST, returning a positive urine test, and possessing contraband in contravention of custodial rules.
The totality of the Applicant’s July 2024 convictions, family violence, and other misconduct is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Tribunal consideration
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk a non-citizen poses to the Australian community, decision-makers must take into account, 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).
(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.
This aspect of the Direction requires that decision-makers should have regard for the future risk an applicant poses to the community if they reoffend, taking into consideration the nature of any harm and its probability.[56] In Guo,[57] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme, ‘may border on certainty’.[58] The majority also observed that there are several factors in making such evaluations, and it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[59]
[56] RDYQ v Minister forImmigration, Citizenship and Multicultural Affairs [2024] FCAFC 108 [13], [15] (Murphy, Abraham, and McEvoy JJ); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J as Her Honour then was).
[57] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574.
[58] Ibid 574-5.
[59] Ibid 575.
The Applicant’s offending is variously contextualised by factors such as drug abuse, mental health issues, financial stressors during the COVID-19 pandemic, and a grudge against a former business partner.[60] He was found in possession of illicit morphine and a drug of dependence when arrested,[61] despite being on prescribed OST. This continues to the present day.[62] His drug history was recorded by a consultant psychologist and consultant forensic psychiatrist as follows:
[60] Exhibit R1, 40 [17]; 44 [39].
[61] Ibid 39 [7].
[62] Exhibit R2, 5 [36], 26 [39], 35 [105], 267, 270, 292, 294, 308, 337, 380, 385, 408, 413, 426-7.
(a)A consultant psychologist prepared a nine-page report dated 27 April 2024.[63] This was commissioned by the Applicant’s criminal lawyers and the assessment was undertaken by video link while the Applicant was in his car. The Applicant gave a history of opiate use only since 2016 or 2017. Reference is also made to his use of illicitly obtained Methadone and Buprenorphine because they were cheaper, despite the Applicant being on prescribed OST (Suboxone) and strong pain relief (Endone).[64] The Applicant is noted to have been ‘very vague’ about when he last used illicit drugs and the psychologist felt he ‘may well have been under the influence of opiates’ during their assessment.[65] The psychologist noted the Applicant’s claim he ‘almost exclusively ever abused opiates’, but considered it possible he also used methamphetamine ‘in significant quantities’, which ‘precipitated the emergence of paranoia…’[66] The psychologist nevertheless opined that the Applicant was ‘acting with reasonable awareness of his actions [at the time of the kidnapping] and the likely consequences that would flow from them’.[67]
(b)A consultant forensic psychiatrist prepared a 15-page report dated 14 July 2024, which was commissioned by the Applicant’s criminal lawyers.[68] This consultation was conducted by video link while the Applicant was on remand, but the psychiatrist had access to more comprehensive health and other records.[69] The psychiatrist found the Applicant to be a ‘poor historian’ who gave ‘vague’ answers.[70] A summary of the drug history taken by the psychiatrist follows:
(i)The Applicant said he started smoking opium in his ‘late teenage years in Iran’, evolving into daily use by his mid-20s.[71] This aspect of the report was relied upon by the Applicant’s criminal barrister.[72]
(ii)The Applicant told the psychiatrist he used cannabis and methamphetamine ‘once’ in Australia,[73] but denied methamphetamine use in other evidence.[74] His drug of choice is opium and he continued using this in Australia, which evolved into daily addiction by 2015.
(iii)Around 2021 or 2022, the Applicant said he was prescribed analgesics for a work-related back injury, which escalated and caused a relapse into opioid addiction. The Applicant used ‘illicitly-obtained methadone as well as opium and Suboxone together in the months leading up to his current incarceration’ which was ‘contributing to his financial problems’.[75] The psychiatrist noted the Applicant’s claim that back pain no longer affects him and he no longer took analgesics.[76] In oral evidence at the present hearing, the Applicant said he does not suffer any physical or psychological condition.
(c)In oral evidence the Applicant agreed his opium use started in Iran in his 20’s, but said he used ‘very little – just for fun – once or twice a year’. This conflicts with his claims to the psychologist and psychiatrist. In Australia he recalled using opium daily, mainly in the mornings before work but claimed this did not affect his interactions with the children or tasks such as driving. He recalled using methamphetamine once or twice but said opium addiction was the main issue, costing him between $100-$150 per day. The Tribunal notes the Applicant has self-referred for courses relating to cannabis and methamphetamine use while in custody.[77] The Applicant said his addiction is under control through prescribed OST, which he plans to stay on if released. He intends reducing dependence on OST ‘hopefully after all these issues go away’. The Tribunal inferred this was a reference to the end of his imprisonment and resolution of his visa status.
(d)The Tribunal asked Ms AA during her oral evidence about a police report in which she told police the Applicant was using methamphetamine, which made him ‘extremely paranoid’.[78] Ms AA agreed she made this claim but said her belief arose solely from the comments of a relative who used ice, which led her to believe the Applicant’s psychosis may also be caused by this.
[63] Ibid 1-9.
[64] Ibid 5 [38]. Endone is an opioid medication used to treat moderate to severe pain.
[65] Ibid 5 [37]-[38].
[66] Ibid 6 [58].
[67] Ibid 8 [70].
[68] Ibid 21-36.
[69] Ibid 21 [2]-[3].
[70] Ibid 23 [12].
[71] Ibid 26 [38].
[72] Ibid 18 [11].
[73] Ibid 26 [36]-[37].
[74] Ibid 31 [78].
[75] Ibid 26 [40].
[76] Ibid 25 [32].
[77] Ibid 462.
[78] Ibid 476.
In terms of expert mental health opinion, he Tribunal has considered the following:
(a)The Court referred during sentencing to a July 2024 psychiatrist’s report that assessed the Applicant as ‘likely…suffering from an independent psychotic illness, probably schizophrenia, most likely in combination with depression.'[79] The Court noted, however, that this ‘diagnosis remains uncertain’[80] and the psychiatrist did not ‘see any evidence of a connection between…[the Applicant’s]…current problems with depression and psychosis, and the offending’.[81]
(b)Earlier in 2024, a psychologist considered the Applicant was suffering Recurrent Depressive Disorder, Substance Abuse Disorder, and Delusional Disorder, which ‘may be a manifestation of substance-induced psychosis’.[82] The psychologist stated, however, that because of the Applicant’s clinical presentation and ‘many uncertainties’ about his past, it was ‘very difficult to make any predictions’ about recidivism risk. The psychologist stated the Applicant did not: ‘appear to pose a high level of committing further acts of violence, unless he is recruited to do so by others in his company’.[83]
(c)It is noteworthy that of these two reports, the psychiatrist’s report is more detailed, reflects greater access to documents, and is authored by an expert with superior medical qualifications. The psychologist’s report is largely founded on the Applicant’s claims and contains inconsistencies and omissions when compared to other persuasive evidence. These inconsistencies encompass the Applicant’s claims about his background in Iran, purported travel to Australia on a Protection Visa, inaccuracies and uncertainties about the origins and status of his drug use, and incomplete references to his criminal history and other misconduct.
[79] Exhibit R1, 40 [19], [21], 41 [22]-[24].
[80] Ibid 41 [25].
[81] Exhibit R2, 18 [12], 35 [106].
[82] Ibid 6 [57]-[58]; 17 [7].
[83] Ibid 7 [61].

In terms of motivation for the Applicant’s most recent offending, this is somewhat opaque and inconsistent across the evidence. Dr Soodi submitted that the kidnapping occurred ‘during a period of immense financial and mental distress caused by the COVID-19 pandemic, which significantly affected [the Applicant’s] business’, and his inability to ‘qualify for government financial support’.[84] The Applicant’s conduct is contextualised as an ‘aberration’ and ‘a unique and unlikely-to-recur situation’.[85] In oral testimony the Applicant claimed he ‘didn’t have a plan’ when hiring a van to be used in the kidnapping and only intended to recover a business debt owed by the victim. The Court instead attributed the Applicant’s crimes to a grudge against the victim.[86]
[84] Exhibit R1, 84.
[85] Ibid 79.
[86] Ibid 38 [5].
In terms of recidivism, the Court considered that there was ‘much to indicate’ the Applicant would ‘resume a lawful life’.[87] An assessment in June 2024, while the Applicant was on remand, recommended a ‘consultant psychiatrist opinion on diagnosis, risk management and treatment optimization’.[88] A consultant forensic psychiatrist noted in July 2024 it was not possible to ‘make much useful comment’ about recidivism risk because the Applicant was reluctant to discuss the motivation for his crimes.[89] The only formal assessment of the Applicant’s recidivism risk was in prison, which found him to be a ‘Medium’ and ‘Low’ risk respectively.[90]
[87] Ibid 44-5 [45]
[88] Exhibit R2, 299.
[89] Ibid 35 [109].
[90] Ibid 460, 465; This was based on an internationally validated actuarial tool used in custodial settings to assess an offender’s recidivism risk and criminogenic needs. See: Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995).
In terms of rehabilitation, the Applicant completed the following courses during an approximately five-week period in mid-2024:[91]
[91] Exhibit R1, 87-99.
(a)Helping Your Children Learn to Manage Anxiety Seminar on 3 June 2024;
(b)Healthy Relationships Program on 5 June 2024;
(c)Jobs and Careers Program on 13 June 2024;
(d)Learning for Life Program on 18 June 2024;
(e)Family, Friends, and Community Program on 19 June 2024;
(f)Healthy Living Program on 19 June 2024;
(g)Adapt Program on 26 June 2024;
(h)Take Stock A Program on 26 June 2024;
(i)Houses and Homes Program on 27 June 2024;
(j)Create short simple texts for employment purposes on 28 June 2024;
(k)Take Stock B Program on 4 July 2024; and
(l)Raising Confident, Competent Children Seminar on 10 July 2024.
There is a dearth of evidence about what these courses contained, how the Applicant performed, or why they are relevant to factors such as drug addiction, violence, and dealing with financial stressors. The Applicant stated he was advised to do rehabilitative courses by his lawyer, and they were delivered in English. He said an interpreter was not provided and he did not ask for one. When asked by Ms Crowley if he only did these courses because his lawyer recommended them, the Applicant denied this and said he also ‘wanted to improve’. Dr Soodi submitted that the Applicant worked as a painter in the community, had tried to answer some questions in English during the hearing, and it should therefore be accepted he had some understanding of course contents. When asked about each course by Ms Crowley, the Applicant did not remember several courses. Of those he could recall, he gave very general responses about what he had learned. Examples include:
How to treat your partner, communicate with your partner, and react to things…how to do jobs…how to spend time with your family and children…how life is important…How socialising and interacting with friends is important…how to have a good life and do well…
The Applicant stated he is remorseful for past crimes, is a ‘zero’ risk of reoffending, and will attend more rehabilitative courses if required. He referred to the salutary effects of imprisonment and overcoming mental health issues in custody.[92] Dr Soodi referred to the Applicant’s ‘substantial rehabilitation’, during which he has ‘addressed the root causes of his offending’, and currently poses ‘no meaningful risk to the community’.
[92] Ibid 79.
There is no expert clinical opinion about risk, or the efficacy of courses undertaken, or the extent of the Applicant’s rehabilitative progress. If released in Australia, he wants to work, take his family on ‘trips’ to make his absence up to them, and show his gratitude to the Australian community for the opportunities he has been afforded. Ms AA stated in oral testimony that she has seen positive changes in the Applicant and considers imprisonment ‘has taught him a hard lesson’. She wants them to start a business and the Applicant had undertaken to do ‘counselling together’. Ms AA said she ‘didn’t ask’ if the Applicant is on OST and has no knowledge if he has been involved in custodial misconduct.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Tribunal findings
A repeat of the Applicant’s crimes has the potential to cause very serious physical, psychological, or financial harm.
The Applicant’s offending cannot be attributed to youth and immaturity. He was 39 years’ old when committing the kidnapping offences. His illicit drugs use commenced at a young age in Iran[93] and it is uncertain if his mental health issues are drug-induced or have another organic origin. Evidence about his drug history is inconsistent. For example, he has variously claimed never to have used methamphetamine, or only tried it once, or only tried it once or twice.[94] Ms AA, who knows the Applicant best, told police in January 2023 that she believed he started using methamphetamine two months earlier, which caused paranoia.[95] A consultant psychologist has also referred to a possible link between use of ‘significant quantities’ of methamphetamine and substance-induced psychosis.[96]
[93] Exhibit R2, 26 [37].
[94] Ibid 24 [19], 26 [37].
[95] Ibid 476.
[96] Ibid 6 [58].
The Tribunal accepts the Applicant may have experienced financial stress at the time of his offending, including because of the $100-$150 daily cost of his opium addiction. This contextualises but in no way excuses his crimes. It is noteworthy the Court attributed the Applicant’s conduct to a grudge against the victim. The Tribunal considers aspects of the Applicant’s evidence about motivators for his offending to be revisionist and seeking to shift blame on the victim. There is also a stark inconsistency between his evidence about family violence, that of Ms AA, and the contemporaneous police reports. This diminishes the persuasiveness of his claims about insight, remorse, and rehabilitation.
In terms of protective factors, it is noteworthy the Applicant’s relationship with Ms AA and their children did not prevent persistent drug abuse, family violence, and crimes. This cuts across his claims about the protective effects of family. Moreover, the evidence refers to the Applicant and Ms AA permanently separating,[97] including after he committed family violence against her while on bail in 2023 and during a relatively lengthy period when FVIOs were in place between 2023 and 2025.[98] The Applicant’s denial that they ever separated and inability to recall claims that he intended to live with a male friend if released,[99] came across as less than forthright. The Tribunal prefers the contemporaneous records, including his claims recorded by mental health practitioners and in custodial settings, to the Applicant’s revisionist claims.
[97] Ibid 3 [18], 29 [61], 510 [3].
[98] Ibid 147.
[99] Ibid 297 (last paragraph), 311, 314, 397, 399, 401.
In terms of rehabilitative courses delivered in English, the Tribunal remains uncertain about their benefit given the limited information about the courses, absence of expert evidence about rehabilitative progress and unmet needs, and the Applicant’s very general claims about what he learned. His involvement in custodial misconduct diminishes the persuasiveness of his claims. Someone with developed insight and who is rehabilitated would not attempt to divert OST medication, or fail a urine test, or engage with contraband. On his own evidence, the Applicant has relapsed into drug addiction several times in the community, including while receiving prescribed OST. The Tribunal considers he has unmet drug rehabilitation needs and there is scant evidence about how he would avoid relapse and step down from dependence on OST in the community. Decisions should not be delayed, however, for rehabilitation to be completed.[100]
[100] The Direction, cl 8.1.2(2)(b)(ii).
Reference is made to the Applicant’s participation in ‘prison work’ as an indicator of his resolve to be a ‘productive citizen’. Little weight is placed on custodial employment, however, given that any good behaviour in a strictly controlled custodial setting is incomparable to the environment into which the Applicant would be released.
There is a dearth of expert evidence about the Applicant’s recidivism risk. Noting that the safety of the Australian community is the highest priority of the Australian Government, the gravity of possible harm from a repeat of the Applicant’s crimes is such that it falls into a category where even a low risk of repeat is unacceptable.[101] The Tribunal is unpersuaded that his recidivism risk has been ameliorated through rehabilitation to an acceptable level. When the very serious nature of the Applicant’s crimes and other misconduct is coupled with an unacceptable recidivism risk, which may cause serious harm, this primary consideration weighs substantially against revocation.
Family violence committed by the non-citizen: Tribunal consideration
[101] CKL v Minister for Home Affairs [2022] FCAFC 70, [66] (Moshinsky, O’Bryan and Cheeseman JJ).
Clause 8.2(1) of the Direction reflects the Australian Government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The High Court has held that cl 8.2 of a previous but comparable ministerial Direction (Direction 90) ‘involves a field of operation separate’ to the other primary considerations:
‘the potential relevance of the commission of family violence is not logically or reasonably confined either to the protection of the Australian community (under para 8.1) or the expectations of the Australian community under para 8.4 [of the Direction]. Paragraph 8.2 (“Family violence committed by the non-citizen”) is identifying a different relevance for family violence’.[102]
[102] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] (‘Ismail’).
The Applicant is recorded as telling a psychologist and psychiatrist that he was previously imprisoned for family violence, but Ms AA withdrew her complaint.[103] Custodial reports also refer to him as having a history of family violence.[104] Ms AA is recorded in police reports as claiming to officers that on 25 January 2023 the Applicant accused her of infidelity, punched her to the head and body 20 times, and smashed her telephone on the floor before she could call 000.[105] This violence reportedly caused ‘a large black eye…potential broken wrist…[and]…further injuries’. Police noted in a subsequent report that bruising from the assault was still visible on Ms AA’s eye, she had an x-ray appointment for her hand, and police escorted her to a cousin’s house ‘secured by gates and CCTV footage’.[106] It is noteworthy the Applicant was on bail from the kidnapping offence at the time of these events, having been released on 15 August 2022.[107] Ms AA is also recorded telling police the Applicant entered her bedroom on 15 February 2023 with a knife in his hand, again accused her of adultery, and threatened to kill her. A police report dated 19 February 2023 contains a claim from Ms AA that the Applicant told her she was his ‘property’, he can do ‘whatever he wants to her’, and sexually assaulted her on more than one occasion.[108] Police held ‘severe concerns’ for Ms AA and the children, and feared that without ‘relevant protection…further family violence will continue [and] could result in [Ms AA’s] death’.[109]
[103] Exhibit R2, 4 [33]; 29 [61].
[104] Ibid 281, 286, 297, 314-5, 321, 324, 396, 400, 460, 465.
[105] Ibid 466, 475-6.
[106] Ibid 501.
[107] Ibid 13 [30].
[108] Ibid 476, 498.
[109] Ibid 476.
An interim FVIO was taken out against the Applicant from 20 February 2023 with Ms AA and the children named as protected persons.[110] A final FVIO was taken out from 6 October 2023 to 26 July 2025.[111] Other documents refer to the Applicant informing others about the FVIOs, his awareness about the consequences of breach, and involvement of CPS.[112]
[110] Ibid 295 (entry dated 12 June 2024).
[111] Ibid 147.
[112] Ibid 31 [83], 32 [88], 314-5, 399-400, 432.
Perhaps most notably, a signed statement from Ms AA to police dated March 2024[113] refers to the following conduct:
(a)The Applicant telling Ms AA he does not believe he fathered their youngest child;
(b)The Applicant asking Ms AA, through her cousin, to remove a FVIO because he was ‘sorry and wanted to be better’, which she did;
(c)The Applicant repeatedly abusing Ms AA, including calling her a ‘bad mother’ and a ‘whore’, some of which allegedly occurred in the presence of their children;
(d)Ms AA discovering a black recording device in her car, which the Applicant purportedly accepted he had placed. She also claims to have discovered another recording device taped to the underside of her bed frame and a black memory card on her bedroom door frame, which she gave to police;[114] and
(e)Ms AA feeling ‘scared and frightened’ of the Applicant, not wanting to continue their relationship, and leaving their home.
[113] Ibid 510-3.
[114] Ibid 514.
In oral testimony the Applicant said he and Ms AA fell in love at first sight in 2013 and built a warm and loving family home together. He said they still love each other and have enjoyed a good life. He denies ever separating from Ms AA. When asked by Ms Crowley if he recalled a final FVIO being served on him that was active between 6 October 2023 and 26 July 2025,[115] the Applicant responded: ‘I don’t remember’. He denied ever telling Ms AA she should not have custody of the children because of infidelity or calling her a ‘whore’ and ‘bad mother’.[116] He also denied ever punching, threatening, or otherwise physically harming her, causing a black eye, breaking her mobile telephone when she attempted to call police, entering her bedroom with a knife, stating she should be punished for sleeping with other men, claiming not to be the father of their youngest child, or placing recording devices around the home and in her car. He said any contrary claims from Ms AA in police reports and a statement is because she was not provided with an interpreter and ‘expressed herself incorrectly’. When asked if Ms AA did anything to provoke his anger, the Applicant stated: ‘I was thinking she was betraying me – infidelity’.
[115] Ibid 147.
[116] Ibid 466.
The Applicant agreed that he was arrested following a ‘report [Ms AA] made’ about family violence but stated: ‘that case was withdrawn – I wasn’t convicted of anything’. When put by Ms Crowley that the information in police reports was a fair characterisation of the Applicant’s conduct towards Ms AA, the Applicant responded: ‘I don’t accept that – I wasn’t convicted of anything’. The Applicant also disagreed with the police reference to him being an extreme risk to the safety of Ms AA and their children.
At the commencement of her oral testimony, Ms AA adopted her statement dated 3 February 2025 as true and correct. She recalled writing it in Farsi and a friend produced the English version. Her statement contains no reference to family violence. Ms AA’s oral evidence is that she met the Applicant on Facebook in 2013, they love each other, and she considers him a wonderful husband and father. Ms AA said she has been the sole financial provider for her family during the last two-and-a-half years. The Applicant’s imprisonment has distressed her to the point that she had four vehicle accidents, was unable to operate her courier business, and lost a $25,000 franchise fee. There is no independent corroboration of these claims. When asked about references to family violence in police reports and a statement she submitted to police on 8 March 2024,[117] aspects of Ms AA’s oral evidence were in stark contrast to these records. For example:
(a)Ms AA claimed she ‘never’ reported the Applicant to police for committing family violence and attributed these reports to a ‘neighbour’ and a ‘best friend’ who ‘forced’ her to go to police.
(b)Ms AA initially claimed the Applicant never made her concerned for her safety or the safety of their children. When pressed by Ms Crowley about her signed police statement, Ms AA responded: ‘I did sign it but I didn’t say any of it’. She claimed an interpreter was not provided and her only purpose in attending the station was to get help for the Applicant because his ‘tablets were finished’ and he needed to go to hospital. She said police refused because the Applicant could go to the hospital and renew his medication voluntarily.
(c)Ms AA denied the Applicant ever told her he was not the father of their youngest child and claimed it was her cousin who said this. She denied ever separating from the Applicant but said they slept in separate bedrooms after arguments, which occurred about every two or three months. Ms AA said the ‘only problem’ she had with the Applicant is when he accused her of having boyfriends and being unfaithful. She said the Applicant initially accepted her denials, but soon raised the issue again, which she estimated was once or twice a week. She claimed the children were not present when they argued. Ms AA denied the Applicant ever called her a ‘whore’, but said he frequently expressed concern she was ‘betraying him with other men’. When asked if the Applicant ever told her she was a bad mother, Ms AA responded: ‘Not from the viewpoint of insulting me’ and said these were just comments about why she did not ‘feed the baby on time’ or ‘put the children to bed on time’.
(d)Later in her evidence, when asked by Ms Crowley if the Applicant ever got upset with her, Ms AA responded: ‘Yes’. When asked if the Applicant was ever physically violent, Ms AA responded: ‘I don’t like to discuss this’. When instructed to answer, she said he physically harmed her ‘just once’ by pushing her, causing her to fall off stairs and bruise her face. She insisted, however, that the Applicant pushing her was not a violent act and at one point said her injuries occurred when she ‘slipped over’. She also denied he smashed her mobile telephone[118] or punched her 20 times to the head and body. When asked how she got a black eye, Ms AA said she caused this by punching him first and he ‘couldn’t control himself’. Ms AA stated: ‘All people lose control at some point in their life’. Ms AA recalled leaving home for eight days because she ‘didn’t want the kids to see me in that situation’. This was a reference to having a black eye and not being in a ‘good mental space’.
(e)When asked about the reference in a police report to the Applicant coming into her bedroom at 3am holding a knife,[119] Ms AA agreed she expressed concerns to police about him possessing a knife, but insisted she saw it in his car and was only concerned about his safety. Ms AA agreed the Applicant was arrested on 20 February 2023 and claimed police told her she could not stay in the house, so she moved in with a cousin. She denied the arrest occurred because of her reports about family violence. Ms AA also denied the Applicant ever asked her to withdraw complaints she made to police. When asked about police holding ‘extreme concerns’ for her safety and the safety of their children because of the Applicant’s ‘drug use and sudden violent and escalating unpredictable behaviour’,[120] Ms AA responded: ‘This happened when he didn’t take his medication’. Ms AA insisted his conduct ‘wasn’t violent’ but accepted his anger ‘happened suddenly’.
(f)Ms AA agreed that she discovered recording devices placed by the Applicant in her car and under her bed frame. She claimed this did not upset her and she did not ask the Applicant about it because it ‘wasn’t important’. Later in her evidence she recalled crying about ‘why [her] life had got to such a point’ before immediately claiming the Applicant ‘is not such a person’. Ms AA disagreed with Ms Crowley’s contention that the Applicant put her life at risk on more than one occasion and she only currently feels safe visiting him because he is imprisoned, which may change upon release. Ms AA said she will support the Applicant by taking him to the doctor for medication and he promised they would attend counselling together.
(g)At one point in her evidence Ms AA related a story about the Applicant taking the children to a doctor, who subsequently reported to CPS that the Applicant was ‘not in a good mental space’. Ms AA considers CPS intervention ‘oppressive’ and deprives her children of their father. Ms AA referred to CPS removing the children from her care on two occasions. The first was in February 2024 for 14 days during which she was required to undertake alcohol, drug, and mental health tests. The second was for seven days and she recalled a ‘judge’ approving supervised visitation. She also claimed that after finding recording devices in her car and under her bed, CPS ‘forced’ her to move out of the family home for a time.
(h)Ms AA said CPS remains involved in their home and the agency had facilitated a supervised video call between the Applicant and their children about two to three weeks ago. She currently feels ‘100% safe’ with the Applicant and is comfortable with the children being with him despite police and CPS concerns.
[117] Ibid 510-513.
[118] Ibid 475.
[119] Ibid 466.
[120] Ibid 467.
Family violence committed by the non-citizen: Tribunal findings

The devastating pervasiveness of violence against women and girls is not delimited by nationality, ethnicity, or status.[121] Such violence is all too frequently committed by an intimate male partner. Even one act of family violence can have enduring consequences for victims and family members.
[121] TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2820 [116].
The Tribunal is unpersuaded Ms AA did not make the claims to police contained in a very detailed statement dated 8 March 2024 and other contemporaneous reports. These were prepared or taken by different officers on different days and there is no evidence they recorded other than what they saw or was stated to them. The Tribunal is also unpersuaded that the absence of an interpreter resulted in Ms AA’s claims to police being almost entirely misreported. This includes because aspects of her current oral evidence coincide with the contents of these contemporaneous reports and her statement. It is noteworthy Ms AA referred to a courier business she ran in Australia as a franchisee, which is suggestive of at least a basic ability to communicate in English and make herself understood to others. The Tribunal found aspects of Ms AA’s evidence, which was given through an interpreter and in the Applicant’s presence, to be overly apologetic for or dismissive of his family violence. Another example of her tendency to offer excuses for his conduct was her claim that his use of illicit opium was necessary because doctors failed to provide adequate pain relief for an injury he suffered.
Based on contemporaneous police reports, which are independent and authoritative sources of information, the Tribunal is satisfied the Applicant engaged in family violence against Ms AA within the meaning of cls 4(1)(a), (c), and (d) of the Direction. Although the extent of this cannot be precisely established because of the differences between Ms AA’s current evidence and her past claims as recorded by police, the Applicant has engaged in some physical violence, derogatory taunts alleging infidelity,[122] and stalking type behaviour by using concealed recording devices. The Applicant’s family violence is not isolated but occurred on several occasions in 2023 while on bail.[123] The effect on Ms AA was cumulative and her claims as recorded to police disclose at least one occasion when she packed bags so she and the children could escape.[124] On another occasion they escorted her to the safety of a relative’s residence.
[122] Exhibit R2, 30 [73], 34 [99], [103], 345, 398.
[123] Ibid 476, 487, 494, 500.
[124] Ibid 476.
It is difficult to discern which of the courses undertaken by the Applicant are relevant to ameliorating his risk of committing further family violence. Aspects of his evidence came across as opaque and less than forthright, which casts doubt on the extent to which he accepts responsibility, how well he understands the impact of family violence, and the reliability of his claims about engaging in respectful intimate relationships in future.
This primary consideration weighs at least moderately against revocation.
Strength, nature, and duration of ties to Australia: Tribunal consideration
Clause 8.3 of the Direction provides:
(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 did not spend his formative years in Australia. He stated that he met Ms AA at a party in 2013 and they subsequently had three children between 2015 and 2021.[125] Apart from Ms AA and their children the Applicant does not have other family here. His parents, a sibling, and other relatives live in Iran.[126]
[125] Exhibit R1, 116-118.
[126] Ibid 78.
Ms AA and her children were granted permanent visas on 13 December 2023[127] and Dr Soodi submitted they ‘are in the process of applying for Australia citizenship’.[128] The Tribunal is satisfied they fall within the meaning of this primary consideration. The sentencing remarks refer to a claim that Ms AA has spinal injuries and mental health issues.[129] There is no expert corroboration of this, and it was not raised during the hearing.
[127] Ibid 100-115.
[128] Applicant’s SFIC, 2.
[129] Exhibit R1, 43 [38].
As discussed earlier, the Applicant denies ever breaking up with or separating from Ms AA, and said they speak by telephone daily. The persuasive weight of evidence, however, refers to past relationship problems and periods of separation, including because of the imposition of FVIOs.[130] The Applicant has referred to Ms AA as his ex-partner, that he intends living with a male ‘friend in Albion’ if granted bail, and plans to ‘discuss with his solicitor how to get access to his children’.[131] A consultant psychologist recorded the Applicant’s claim in April 2024 that he was ‘permanently separated’ from Ms AA, had no fixed abode, and CPS were involved in the home.[132] A statement from Ms AA to police in March 2024 includes a reference to her and the Applicant having separated in or about January 2024.[133]
[130] Exhibit R2, 344, 448, 475.
[131] Ibid 314, 399.
[132] Ibid 3 [18]-[19], 29 [61].
[133] Ibid 510 [3].
The Tribunal has considered Ms AA’s two-page letter dated 3 February 2025 referring to the adverse impact of the Applicant’s imprisonment and visa issues. She refers to him as a ‘loving father’ and asks he be given a ‘second chance’ to remain in Australia. Ms AA states she is unable to accompany the Applicant if removed to Iran because of financial implications and the impact on their children’s lives. She states this would result in permanent separation and force her to raise their children as a single mother.
The Applicant refers to employment as a ‘sole trader’ painter in Australia who paid taxes, employed others, and gave ‘cheap prices’ to those unable to afford his work. There is scant corroboration of these claims.[134] The sentencing remarks refer to the Applicant’s involvement in a workplace injury in 2020 that purportedly ended his working life, that his WorkCover payments were terminated, and the Applicant was then undergoing ‘medical reviews and proceedings’ to try and have these reinstated with the assistance of ‘personal injuries lawyers’.[135] There is no independent evidence of this and the Applicant stated in oral testimony he is unaware why the Court referred to him as unable to work. He aspires to immediate re-employment if released. In terms of cl 8.3(2)(b) of the Direction, there is no other statement from prosocial friends, work colleagues, or others with whom the Applicant formed relationships in Australia.
[134] Exhibit R1, 80-81.
[135] Ibid 43 [33], [36], 44 [40].

Aboriginality

Even if an applicant makes no submissions about Aboriginality, nor advances any connection to the Australian Aboriginal community, this is no longer the end of the matter. Justice Feutrill held in Brownlie that neither the absence of an express representation nor materials disavowing the relevance of this consideration are determinative.[136] Mr Brownlie was born in Wales and expressly stated he did not identify as an Aboriginal or Torres Strait Islander person. No claims about Aboriginality were advanced by Mr Brownlie or his barrister during the hearing. His Honour noted at [80] of Brownlie:
There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?
[136] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
In quashing the Tribunal’s decision, however, his Honour held that it should have searched for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials’.[137] The Tribunal is obliged to follow his Honour’s decision, which requires detailed review of the evidence to identify any conflict between an applicant’s express non-identification as Aboriginal and contrary unarticulated representations or ‘integers’ in the evidence.[138] His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[137] Brownlie, [101].
[138] Ibid [50], [54], [102].
The Applicant responded ‘No’ to questions asking if he is of Aboriginal or of Torres Strait Islander origin.[139] Neither the Applicant nor his lawyer advanced any Aboriginality claims during the hearing.
[139] Exhibit R2, 267 272, 287, 430.
Strength, nature, and duration of ties in Australia: Tribunal findings
The Tribunal finds that:
(a)The Applicant is currently in a relationship with Ms AA, who would be emotionally impacted by a non-revocation decision. This is ameliorated, by the Applicant’s protection finding, however, which means he is not currently subject to removal or indefinite detention. It is not contested that in the event of a non-revocation decision his status would likely be resolved through the grant of a Bridging (Removal Pending) Visa (BVR), enabling him to live in the community.
(b)The Applicant has spent approximately 12 years in Australia, much of which has been contextualised by illicit drug use or in custodial settings. It cannot be said, however, that his offending commenced soon after arriving in Australia, such that less weight is given to his application.[140]
(c)There are no statements from prosocial friends in this proceeding. It is unlikely the effect on any friends the Applicant may have in the community would rise any higher than sadness or disappointment.
(d)Some weight is placed on the Applicant’s positive contributions, including through work as a painter, although the evidence about this is scant.
(e)The Tribunal was unable to identity other integers or references in the materials that may raise an unarticulated case to the effect that the Applicant identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
[140] The Direction, cl 8.3(2)(a)(i).
The Applicant’s connection to the Australian community is relatively limited and centres on Ms AA and their children. Irrespective of the Tribunal’s decision, the Applicant would not be subject to removal or indeterminate detention. On balance, this consideration weighs moderately at best in favour of revocation.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[141] It is generally for an Applicant to ‘identify the personal facts and circumstances relevant to the decision’,[142] including the existence of any minor children whose best interests may be affected by the decision. This primary consideration applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ. In considering the best interests of the child, the following factors must be considered where relevant:
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.
[141] Tohi, [180], citing Spruill v Minister for Immigration and Citizenship [2012] FCA 1401, [18]; RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365, [44].
[142] Ismail, [23]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 221 [61].
Best interests of minor children in Australia: Tribunal consideration
The Applicant invoked the interests of three minor children who are currently 3, 7, and 9 years of age.[143] If released he wants to assist them with their studies so they can be ‘successful people and not labourers’. He also referred in revocation submissions to a 9-year-old nephew in Iran who he telephones ‘several times a week’.[144] That child’s interests do not fall within the meaning of the Direction and are not considered further.
[143] Exhibit R1, 74-75, 85 [4], 116-134.
[144] Ibid 76.
A psychologist noted the Applicant’s claim that he is unable to have contact with his children ‘unless he demonstrates engagement with treatment services for his drug use disorder’.[145] Police reports refer to the Applicant’s past conduct frightening Ms AA and the children. There are also references to CPS involvement, a FVIO in place until 2025,[146] and a Family Court proceeding that may impact the Applicant’s access to the children.[147]
[145] Ibid 26 [42].
[146] Ibid 147.
[147] Exhibit R2, 3 [19], 23 [11], 280, 285-286, 303.
In oral testimony both the Applicant and Ms AA referred to continuing CPS involvement. There are no documents about this before the Tribunal and the expedited nature of this proceeding precludes these being obtained in the available time. The Applicant referred to a period of about ‘7-8 months’ when he could not speak with Ms AA or the children because of a FVIO. He could not recall when this was or when resumed contact was allowed. Ms AA said CPS had reactivated an intervention order that prevents the Applicant from having contact, other than supervised contact, with their children. She referred to one of the children being ‘very quiet’, another having a ‘very drastic drop in school’, and the third purportedly ‘stopped talking’ because of separation from the Applicant. Ms AA said she has changed the children’s school and they are ‘on a waiting list to see a psychologist’. Dr Soodi stated during closing submissions that the children face a ‘lifetime of emotional and developmental consequences if deprived of their father’.
Best interests of minor children in Australia: Tribunal findings
It is not possible on current facts to differentiate the children’s interests. There is no independent corroboration regarding the extent to which the Applicant has been denied access or any effects his absence has caused, such as from schools or counsellors / psychologists / psychiatrists. It was uncontested that the Applicant is currently prevented from seeing his children by a FVIO in place until approximately mid-2025 and CPS remain involved, including by facilitating supervised calls.
The Applicant’s prolonged illicit drug use, crimes, and family violence can only have been detrimental to the children’s interests. There has been a long period of absence and limited meaningful conduct following the kidnapping offence during which Ms AA has played the prominent parental role.
For reasons elaborated upon in the ‘Legal consequences’ section, the Applicant’s removal or indeterminate detention is not currently a consequence of the Tribunal’s decision. He would remain in Australia and be able to interact with Ms AA and their children within the constraints of any FVIOs, CPS, or other agency conditions.
On balance, revocation is in the best interests of the Applicant’s children, but this finding is conditioned by multiple factors. These include if the Applicant can avoid relapse into drug addiction, not commit further crimes or family violence against Ms AA, and more persuasively address his rehabilitative needs. This is questionable given his history. The potential for him to play a positive parental role also turns on the extent to which FVIOs, CPS intervention, or other orders may impact his access to the children, which is unclear on current evidence. The Applicant or Ms AA could have put on such evidence, which would have assisted the Tribunal’s understanding.
On balance, including because the Applicant will remain in Australia irrespective of the Tribunal’s decision, this primary consideration only weighs slightly in favour of revocation.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(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.
Clause 8.5(2) of the Direction states:
In addition, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.

Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clause 8.5(4) of the Direction provides that this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case. This correlates with the reasoning in FYBR[148] where the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[149] The High Court refused an application for special leave to appeal from the orders in FYBR.[150]
[148] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[149] Ibid 473 [75]–[76] (Charlesworth J).
[150] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The High Court has more recently held in Ismail at [51]–[52] regarding this primary consideration in an earlier Direction (Direction 90):
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. The delegate’s reasoning accords with these requirements.
Expectations of the Australian community: Tribunal consideration
The Applicant advances the following submissions regarding this primary consideration:
3.4 The Australian Community’s expectations were misinterpreted
·Reasonable proportionality was not exercised in the decision-making not to revoke the Minister’s decision to cancel the applicant’s visa.
·The public interest does not demand permanent family separation in cases where:
oThe applicant poses no continuing threat to society;
oThere are compelling humanitarian grounds to allow them to remain.[151]
[151] Applicant’s SFIC, 3.
The Respondent contends that the Applicant’s kidnapping offence and family violence fall within the meaning of serious character concerns and the Australian community would expect his visa to remain cancelled.
Expectations of the Australian community: Tribunal findings
The High Court’s decision in NZYQ results in this primary consideration being considered in a different context,[152] particularly the norm expressed at cl 8.5(1) of the Direction about not allowing certain non‑citizens to ‘enter or remain in Australia’. A non-revocation decision does not result in continuing detention until removal, and the Applicant would remain in Australia, likely under a BVR. A revocation decision on the other hand would restore his cancelled visa.
[152] See, for example: TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475.
The Applicant’s conduct reflects a failure to obey Australian laws. The kidnapping-related convictions and family violence against Ms AA raise serious character concerns within the non-exhaustive ambit of cl 8.5(2) of the Direction. He has breached the community’s reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct that harms others. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, notwithstanding the approximately 12 years he has spent in Australia.[153] He should expect to forfeit the privilege of staying in Australia, which is an expectation that is undisturbed by the different context in which the Direction is now be considered after NZYQ.
[153] The Direction, cl 5.2(6).
This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
Impact on business interests
In terms of cl 9.3, there is no evidence about any impact on Australian business interests in the event of non-revocation, nor are submissions advanced in this respect. The Tribunal finds this consideration is not relevant and attributes it neutral weight.
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has
non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 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 in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or
non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Legal consequences of the decision: Tribunal consideration
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties.[154] As held in Ibrahim v Minister for Home Affairs, non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.[155] Legal consequences can be quite broad and encompass factors such as duration of detention, prospects of removal, and the refusal or cancellation of other visas.
[154] Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
[155] (2019) 270 FCR 12, 35 [103].
The Tribunal is obligated to give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[156] This is in the context of ‘another reason’ for revocation under s 501CA(4) of the Act, where claims are not required to meet predetermined benchmarks and can be less categorical than the more comprehensive assessment process under s 36A of the Act.[157] Active intellectual consideration of his claims requires the Tribunal to:
…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.[158]
[156] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-10 [34]–[44].
[157] The Direction cl 9.1.2(2); Plaintiff M1/2021, 605 [39]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521 [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] (‘Ali’).
[158] Plaintiff M1/2021, 592 [9], 598 [24].
The Applicant stated in documentary submissions that as a ‘Christian convert he faces torture or execution in Iran’.[159] The following is also advanced:
3.3 Non-Compliance with International Human Rights Obligations
Under Article 33 of the Refugee Convention, Australia cannot return a refugee to a country where they will face persecution (non-refoulement).
Deporting [the Applicant] to Iran, where apostasy is punishable by death, violates: The Convention Against Torture (CAT);
The International Covenant on Civil and Political Rights (ICCPR), Article 7;
Australia’s obligations under the Migration Act, Section 197C(3).[160]
[159] Applicant’s SFIC, 3.
[160] Ibid.
The Applicant stated he was raised and educated in Iran, completed a ‘Diploma in Carpentry’ and welding qualifications, following which he ran his own business. He claims that he left Iran because his ‘life was at risk’ after converting from Islam to Christianity. Later in evidence, however, the Applicant said a ‘Mullah’ or ‘Imam’ presided over a religious ceremony in Australia to seal his relationship with Ms AA. When asked why a Muslim cleric would do this if the Applicant converted to Christianity, the Applicant claimed it was because his children and Ms AA are Muslim. There is no evidence of this ceremony, and it remains unclear why a Muslim cleric would solemnise a relationship if the groom had committed apostacy in conflict with Shariah Law.
The Applicant was asked by Dr Soodi how deportation would affect his family in Australia, in the context of a ‘third country’ relocation rather than removal to Iran. Dr Soodi accepted, however, there is no evidence of this currently in prospect.
The Respondent submitted the following regarding this consideration:
58. …the applicant is covered by a protection finding (paragraph 9.1.1 of the Direction). The applicant was granted the visa on 4 May 2020 and the criteria for that visa included a finding that the applicant was owed protection (protection finding). The applicant's protection finding has not been quashed or set aside, and the applicant does not want to be removed from Australia to Iran. In these circumstances, the applicant is not required or authorised to be removed from Australia and is owed non-refoulement obligations: s 197C(3) of the Act.
59. The Minister submits that the delegate's decision indicates that the applicant will be subject to the decision in NZYQ and will therefore be released into the community upon completion of his sentence of imprisonment. The applicant will be granted a Bridging visa R, to allow him to remain in Australia lawfully, subject to any conditions imposed.
60. The Minister submits that this consideration should therefore be given neutral weight.
Legal consequences of the decision: Tribunal findings
The Tribunal is satisfied the country of reference is the Iran.
The Applicant’s 2024 conviction resulted in visa cancellation and rendered him an unlawful non-citizen within the meaning of s 14 of the Act. The legal consequence of a revocation decision is that the permanent visa cancelled in this matter would be restored. A non-revocation decision would result in the Applicant remaining in detention until removed or granted a visa.[161] Although s 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, the protection finding in the Applicant’s favour means that s 197C(3) of the Act prevents him from being involuntarily removed to Iran, unless a decision is made under s 197D(2) that a protection finding would no longer be made. There is no evidence this is in prospect. Removal is therefore not an immediate consequence of a non-revocation decision. Given the High Court’s decision in NZYQ, neither is indeterminate detention.[162] Their Honours held that constitutional limits apply on the executive detention of unlawful non-citizens under ss 189(1) and 196(1) of the Act. Continuing detention under those provisions is unlawful if there is no real prospect of a non-citizen’s removal becoming practicable in the reasonably foreseeable future,[163] which has routinely resulted in release on a BVR.[164]
[161] The Act, s 196.
[162] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ').
[163] TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451 [27] citing NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37.
[164] Migration Regulations 1994 (Cth) reg 2.20(12)(b).
It is not contested the Applicant is likely to be released on a BVR in the event of a non-revocation decision, which would require him to comply with conditions. As a BVR holder he would fall within the definition of ‘removal pathway non-citizen’ under ss 5(1) and 199B of the Act, which would require him to comply with a removal pathway direction from the Minister. Failure to act in accordance with a removal pathway direction under s 199C of the Act constitutes an offence under s 199E and may lead to mandatory imprisonment. Pursuant to s 199B(3) of the Act, however, the Applicant still cannot be removed to Iran while under a BVR because of the protection finding in his favour.
Recent amendments to the Act have resulted in the inclusion of s 76AAA.[165] This provides that a BVR can cease if a foreign country grants the holder permission to enter. Pursuant to s 76AAA(2), the Minister must notify the BVR holder that this section applies to them. It is conceivable, therefore, that at some future stage the Applicant could be removed to a third country agreeing to receive him. There is no evidence this is currently in prospect.
[165] Migration Amendment Act2024 (Cth) and the Migration Amendment (Removal and Other Measures) Act2024 (Cth).
In the event of a non-revocation decision the Applicant would have judicial appeal rights. It may also be open to him to apply for an exercise of non-compellable ministerial discretion, or seek third-country relocation, or voluntary removal. There is no evidence about any such possibility. Future events remain uncertain, and the Tribunal need not speculate.[166] The Federal Court’s reasoning in Ali is respectfully adopted:
The prospect that future decision-making may confront the Minister with difficult choices…cannot presently impact upon the present exercise of the power conferred by s 501CA(4) ... [167]
[166] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[167] Ali [33].

In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and cautioned against speculating about the course of future decision-making:[168]
Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40] … In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making ...
[168] DOB18 v Minister for Home Affairs [2018] FCA 1523.
Indefinite detention or removal are not currently consequences of a non-revocation decision. On balance, this consideration only weighs slightly in favour of revocation, primarily because of uncertainty resulting from the grant of a conditional BVR.
Extent of impediments if removed
Clause 9.2 (1) 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.
Extent of impediments if removed: Tribunal consideration
The Applicant is 41 years’ old. Reference is made in documentary materials to him being ‘diagnosed with Mental illness,’[169] although the Court referred to an uncertain diagnosis.[170] In revocation submissions he refers to taking ‘Suboxane’ (sic) for ‘Pain Relief’,[171] although open-source information and the Tribunal’s own experience suggests this is used to treat opioid addiction rather than pain. The Court referred to the Applicant suffering ‘addiction to opioids’, which was being ‘appropriately addressed…by…prison health services’.[172] A consultant forensic psychiatrist who prepared a medico-legal report in 2024, referred to a hospital discharge summary containing a principal diagnosis of ‘major depressive disorder’, with a secondary diagnosis of ‘psychosis’.[173] The psychiatrist also referred to the difficulties of diagnosing the Applicant.[174] A prison psychiatric registrar assessed in June 2024 that the Applicant had ‘severe depression’ and ‘Non organic Psychosis’,[175] but stated that a ‘consultant psychiatric opinion on diagnosis’ was required.[176] In terms of physical issues, there are references to the Applicant suffering a work-related back injury and the Court stated he was on the wait list to address hearing loss.[177] References in custodial records also highlight the need for dental treatment.[178]
[169] Exhibit R1, 81.
[170] Ibid 41 [25].
[171] Ibid 81.
[172] Ibid 41 [24].
[173] Exhibit R2, 33 [93].
[174] Ibid 34 [102]-[103].
[175] Ibid 297.
[176] Ibid 299.
[177] Exhibit R1, 43 [36].
[178] Exhibit R2, 300.
In oral testimony the Applicant said he has addressed mental health issues through rehabilitation in custody and described his current mental health as ‘very good’. He said there were no physical or psychological issues preventing immediate return to work as a welder or painter, which are occupations he previously undertook. When asked about the Court’s reference to a workplace accident in 2020 that purportedly ended his working life,[179] the Applicant said he is unaware of what the Court was referring to.
[179] Exhibit R1, 43 [33].
Extent of impediments if removed: Tribunal findings
The Applicant is 41 years of age and continues to receive OST in custody for addiction. The Tribunal accepts his evidence that does not currently suffer any condition preventing re-employment in labour-intensive trades.
No substantial language or cultural barriers are disclosed by the evidence.
Given the protection finding in the Applicant’s favour, he is not subject to removal to Iran, nor is there any evidence that a third country is willing to accept him. The issue of impediments if removed therefore does not currently arise. As discussed earlier under ‘Legal consequences’, he will remain in Australia for the foreseeable future irrespective of the Tribunal’s decision and likely be released on a BVR. This consideration is therefore not enlivened and carries neutral weight.
Additional considerations
Continuing punishment
The Applicant advanced in closing submissions that he has already been punished for his crimes and, having ‘paid his debt to society’, there is no ‘justifiable public interest’ in deporting him. That submission is misguided. Removal of the Applicant is not a direct consequence of a non-revocation decision because of the protection finding in his favour. Any association of the visa cancellation process with continuing criminal punishment is also rejected. The former is enlivened by conduct falling within the ambit of s 501(3A) of the Act. The latter is exclusively a matter for the courts. The High Court has held that ‘[l]egislative detriment cannot be equated with legislative punishment’.[180] Gleeson CJ observed in Woolley that not ‘all hardship or distress … constitutes punishment’.[181] The Court has further reflected upon the dichotomy between judicial and administrative decision-making as follows (footnotes omitted):
What s 501(3A) does is to require the cancellation of a visa in certain circumstances. It confers a power, which the Minister has a duty to exercise, to determine whether a non-citizen can enter, or remain in, Australia. That power is administrative in character. It forms no part of the judicial power of the Commonwealth [and] does not trespass on the exclusively judicial function of determining or punishing criminal guilt.[182]
[180] Duncan v New South Wales (2015) 255 CLR 388, [46].
[181] Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1, 12 [17].
[182] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [88] (Gageler and Gordon JJ), citing Lim (1992) 176 CLR 1 at 27. See also Nettle J in Falzon at [92]-[94].
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government.
The Applicant’s 2024 convictions, family violence against Ms AA, and other misconduct is collectively very serious. Aspects of his conduct raise serious character concerns, and any repeat of his crimes or family violence could cause physical, psychological, or financial harm. The Applicant has breached the community’s reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct that harms others.
The Applicant has unmet rehabilitative needs, and his future intentions are largely aspirational. There is a dearth of persuasive evidence about recidivism risk. His family violence against Ms AA while on bail and involvement in custodial misconduct diminishes the persuasiveness of his claims regarding insight and rehabilitative progress.
The Applicant’s reliance on the protective effect of his relationship with Ms AA and their children is unpersuasive. This did not previously curtail his persistent addiction, commission of serious crimes, family violence, or custodial misconduct. A FVIO is in place and continuing CPS involvement raises uncertainty about the extent to which the Applicant can regain unsupervised access to his children. While revocation is in the children’s best interests, this finding is heavily conditioned by the Applicant’s ability to abstain from illicit drugs, not commit further crimes or family violence against Ms AA, and more persuasively address his rehabilitative needs.
The Applicant’s connection to the Australian community is quite limited. The Tribunal accepts his closest relationships are with Ms AA and their children, and he aspires to continue their life together in Australia. Because of the protection finding in his favour, he is not subject to removal or indeterminate detention, irrespective of the Tribunal’s decision. That said, there is uncertainty about the extent to which a continuing FVIO and the involvement of CPS may affect his future plans for a resumption of family life.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight than the other primary considerations, coupled with Family violence committed by the non-citizen, and Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

131. I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 5 March 2025

Date of hearing: 25 & 26 February 2025

Advocate for the Applicant:

Solicitors for the Applicant:

Dr Mehdi Soodi

Falcon Immigration and Visa Services

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Claudia Crowley

HWL Ebsworth Lawyers