RXJT and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 691
•3 June 2025
RXJT and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 691 (3 June 2025)
Applicant/s: RXJT
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1880
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:3 June 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision refusing to grant the Applicant the visa is revoked.
...............................[SGD].........................................
General Member A. Maryniak KC
Catchwords
MIGRATION – refusal to grant protection visa – citizen of Nepal – whether Applicant passes the character test – aggravated breaking and entering – Ministerial Direction No. 110 – Primary Considerations – protection of the Australian community – strength, nature and duration of ties to Australia – expectation of the Australian community – Other Considerations – legal consequences of decision – whether discretion should be exercised to refuse the grant of the protection visa under s 501(1) of the Migration Act 1958 – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
BACKGROUND
The 29-year-old Applicant, citizen of Nepal, seeks review of a decision dated 11 March 2025 refusing to grant the Applicant a Protection (Class XA) (Subclass 866) (protection visa) pursuant to s 501(1) of the Migration Act 1958 (Cth) (‘the Act’).
A 1 November 2024 finding, by a delegate of the Respondent, that the Applicant is a person in respect of whom Australia has protection obligations (essentially for mental health reasons) pursuant to ss 36(1C) and 36(2)(a) of the Act is not under review and therefore stands in respect of the Applicant.
The Applicant arrived in Australia on 23 September 2016 on a Student (Class TU) (Subclass 500) visa and was subsequently granted two further student visas. On 15 December 2022 the Applicant was convicted of a 2 October 2021 offence of aggravated breaking and entering & commit serious indictable offence – people there – S1 under the Crimes Act 1900 (NSW) and sentenced to three years imprisonment with a non-parole period of 18 months (the ‘2021 Offending’). The 2021 Offending is the Applicant’s only breach of the law. As a consequence, the Applicant’s student visa was mandatorily cancelled pursuant to s 501(3A) of the Act.
On 5 April 2023 the Applicant was granted parole (following 18 months imprisonment) and transferred to immigration detention.
On 11 March 2025, having been refused a protection visa, the Applicant was granted a Bridging (Class WR) (Removal Pending) (Subclass 070) visa (‘BVR’) and released into the community on that basis.
CONSIDERATION
The Applicant has mental health issues and a history of substance abuse which is fairly summarised by the Respondent,[1] as set out below:
14. The applicant has a complex combination of mental health problems including schizophrenia, epilepsy and cannabis use disorder
15. The applicant was diagnosed with epilepsy at age 13 in Nepal and was prescribed psychotropic medication at that time, but became non-compliant after three years. Following a seizure in Australia, the applicant commenced smoking cannabis in the belief that it would treat his. The applicant subsequently became addicted to cannabis and abused alcohol. At the time of the applicant's offending, he was not medicated for his epilepsy.
16. The applicant developed symptoms of schizophrenia in the lead up to his offending in 2021, and at the time of his offending was experiencing hallucinations along with grandiose and paranoid delusions. The applicant was diagnosed with schizophrenia during his stay in Concord Psychiatric Hospital following his arrest in 2021 and commenced on the antipsychotic medication, paliperidone.
17. On 6 October 2021, an order was made that the applicant be detained in a mental health facility until 4 November 2021 pursuant to s19(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act (NSW).
18. On 15 March and 1 November 2022, the applicant was assessed by forensic psychiatrist, Dr Christina Matthews, who diagnosed the applicant as likely having cannabis use disorder but noted that it was in remission in the controlled environment of a prison.
19. The most recent psychological assessment of the applicant dated 27 November 2023 was prepared by forensic psychologist Tim Watson-Munro, who opined that the applicant was psychiatrically unwell at the time of his offending. Mr Watson-Munro opined that the applicant's mental state had improved as the applicant is now compliant with medication and has abstained from drugs and alcohol.
[1] Respondent’s Statement of Facts, Issues and Contentions dated 12 May 2025 (‘RSFIC) [14]-[19].
The parties agree and the Tribunal finds that the Applicant does not pass the character test due to the 2021 Offending, pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
The Tribunal is to determine whether the discretion not to grant the Applicant a visa under s 501(1) should be exercised, complying with by having regard to the primary and other considerations contained in Part 2 of Ministerial Direction No. 110 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’).
Paragraph 5.2 of the Direction sets the principles which form the guiding framework to the application of the Direction as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 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
Paragraph 7(2) of the Direction relevantly provides that:
The primary considerations at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
The Tribunal must also take into account other considerations insofar as they are relevant (paragraph 9 of the Direction). These include but, are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed; and
d) impact on Australian business interests.
The Tribunal has considered the documentary material lodged by the parties, the testimony of the Applicant and Pastor AE and expert consultant psychologist Mr Tim Watson-Munro. The Tribunal has also considered the written and oral submissions of the parties.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of the Direction requires Decision-makers to 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.
Nature and seriousness of the non-citizen’s conduct to date
Primary Consideration 1 involves considering the nature and seriousness of the 2021 Offending. Whilst noting the Applicant’s submission to the contrary, which the Tribunal rejects, the Tribunal finds that such offending involved a crime of violence against, among other victims a woman and thus falls within paragraph 8.1.1(1)(a) of the Direction. This type of offending is viewed very seriously by both the Australian government and the Australian community.
However, the Tribunal does accept the submission of the Applicant that the 2021 Offending was at the lower to mid-range of the type of offending viewed as very serious, the Sentencing Judge finding that the offending fell “towards mid-range of seriousness”,[2] noting the 3-year sentence against a possible maximum sentence of 20 years for that particular offence.
[2] G7, 62.
The 3 victims of the offending were a brother and sister and cousin. There are no victim impact statements before the Tribunal. They all became housemates with the Applicant in February 2020. That arrangement broke down and the Applicant moved out in April 2021. In the months prior to the 2021 Offending the Applicant sent messages to the sister who then blocked him and the Applicant was fired from their mutual employer following allegations of “bullying and annoying” the sister.
On 29 September 2021 at 3.00am the Applicant knocked on the victims’ door and to the cousin said “you don’t understand my feelings, you don’t understand my love” and was observed having a dry mouth, was fidgeting and behaving oddly. The Applicant again knocked on the victims’ front door at 12 midnight and yelled “open the door, mother####er”.
The Applicant again banged on the victims’ door at 1.00am on 2 October 2021 and again at 8.00am. Then at 10.55am the Applicant again banged on the victims’ front door, yelling including threats to kill, then entered the home through an unlocked rear door, grabbed a knife from the kitchen and threatened the sister. The victims all ran into their respective bedrooms locking their doors and the Applicant banged on the sister’s door and yelled “until and unless I kill you, I cannot be satisfied” kicking that door for about 10 to 15 seconds. The Tribunal finds, as did the Sentencing Judge,[3] that this offending was a terrifying experience for each of the victims.
[3] Ibid, 61.
However, upon arrival the police believed the Applicant had “some mental health issues”[4] and he was taken to a mental health facility under s 22 of the Mental Health Act 2007 (NSW). On 6 October 2021 an order was made detaining the Applicant in a mental health facility until 4 November 2021, under s 19(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act (NSW). The Applicant was admitted to Concord Hospital and later released into police custody. He pleaded guilty on 7 October 2022 and was granted parole on 5 April 2023 and subsequently transferred to immigration detention.
[4] Ibid, 58.
A psychological ‘perfect storm’ impacted the Applicant in the time up to and including the 2021 Offending as the Respondent has fairly summarised as set out in paragraph 6 above. Such impact was amplified by the isolating effect of Covid-19 lockdowns.
It is clear that the Applicant’s mental health was a key factor in the 2021 Offending. He has a complex combination of mental health problems including schizophrenia, epilepsy and cannabis use disorder. His epilepsy was diagnosed in 2009 in Nepal when the Applicant was 13 years old, but his schizophrenia remained undiagnosed until after the 2021 Offending. A misuse of cannabis and alcohol amplified the negative mental impact upon the Applicant at the time of the 2021 Offending. As the Sentencing Judge stated “I have taken into account, however, the offender’s mental health and agree that he may not be an appropriate vehicle for the full force of general deterrence” but she also recognised the need for specific deterrence “to reinforce the importance of avoiding drug use and complying with treatment for his epilepsy condition”.[5] The Sentencing Judge also noted that:
Dr Matthews is of the view that the offender was suffering from a psychotic episode at the time of the offences with thought form disorder, auditory hallucinations and delusional ideation.[6]
After his arrest, he was assessed by Burwood Court liaison service staff as behaving in a “bizarre and disorganised manner” He was admitted to Concord Hospital under the Mental Health Act where he remained for a number of weeks - first in the high dependency ward (where he continued to experience delusion, ideation and paranoia - attempting to strangulate himself with a cable) and then in the general psychiatric ward for general observation once he began responding to treatment and medication and his condition improved.[7]
[5] Ibid, 62-3.
[6] Ibid, 65.
[7] Ibid, 65-6.
Whilst the nature of the 2021 offending was serious, it must be seen in the context of the very poor mental health of the Applicant at the time of such offending.
The risk to the Australian community should the Applicant commit further offences or engage in misconduct
The mental health aspect to the 2021 Offending is relevant not only to the nature of the Applicant’s offending but also to the risk to the Australian community, should the Applicant commit further offending or engage in other serious conduct.
By December 2022 the Sentencing Judge noted the Applicant’s mental health had improved significantly and importantly he had insight into and was remorseful for the 2021 Offending.
In relation to his attitude towards offending, he reported feeling remorseful about the offending stating that “It was the worst. I shouldn’t have done it.” He told Dr Matthews that he decided to plead guilty to the charge because he thought it was a right thing to do given he believed he did commit the offence and felt guilty about his actions despite being unwell. In his affidavit, the offender also expressed remorse stating;
“I feel very bad for the people living there. I regret my actions and what I did. They were very scared and I take responsibility for what I did and the fear and upset I have caused. I know I did the wrong thing at the time.”[8]
The Sentencing Judge further noted:[9]
In relation to remorse, I accept the offender regrets what he has done and gained some insight into the detrimental effects of his cannabis use and his prior rejection of his medication for his epilepsy condition. There is abundant evidence to find evidence and acceptance of remorse.
[8] Ibid, 66.
[9] Ibid.
The Respondent accepts that:[10]
(a) The applicant has continued to express deep remorse for his offending, and this was accepted by the sentencing judge who opined 'there is abundant evidence to find evidence and acceptance of remorse'.
(b) The applicant has taken steps to proactively engage with rehabilitation through seeking out and engaging in alcohol and drug counselling. Further the applicant has not reported any hallucinations or delusions since 2021, and it is reported by psychologists that the applicant does not currently present with any psychotic symptoms.
(c) The applicant has expressed plans to continue with treatment, obtain employment in hospitality and participate in art classes and maintain his social connections.
[10] RFIC [39].
However, the Respondent highlights the fact that the Applicant relapsed into cannabis use for ‘a few months’ whilst in detention and that he has only been in the community since 11 March 2025.[11] The Respondent also submits that the various reporting (now monthly) and other BVR conditions are directed at reducing the Applicant’s risk of reoffending.
[11] Ibid [40].
The Applicant submits, consistent with the Tribunal’s ‘perfect storm’ observation, that:[12]
[12] Applicant’s Statement of Facts, Issues and Contentions dated 29 April 2025 (‘ASFIC’) [39]-[40].
39. The conditions under which the offending occurred included unmanaged epilepsy and schizophrenia, cannabis and alcohol dependency and isolation due to the COVID pandemic.
40. The changes to those conditions mitigate the risk and interrupt the cycle of regularity:
a) Over three years have passed since [the Applicant] committed an offence, much of this within the high-pressure setting of incarceration.
b) Social supports that were not present at the time of the offence are now available.
c) Mental health supports including regular psychologist appointments as well as drug and alcohol counselling that were not present at the time of the offence are now available (see Odyssey Victoria letter dated 22 April 2025, SMART Recovery attendance confirmations provided with this document and G16 to G18).
d) [the Applicant] now has an understanding of the risks of cannabis and alcohol use.
e) [the Applicant] has not used cannabis for some years.
f) [the Applicant’s] epilepsy and schizophrenia are now managed by health professionals.
g) [the Applicant] has demonstrated a commitment to rehabilitation and good conduct.
The Tribunal has carefully considered all the material before it and questioned the Applicant about his past conduct and, in particular, his insight and desire to refrain from cannabis and alcohol misuse. The Applicant was a credible witness and the Tribunal is satisfied that the one off 2021 Offending was very much out of character and that the Applicant now has a solid understanding of his mental health issues, how to manage them, and how he should conduct himself in the Australian community. His mental health issues are now stabilised and there has been no similar incidents since the 2021 Offending.
The Applicant submits that:[13]
3. [the Applicant] has now spent two months in the community and is making an undeniable effort to reintegrate and set up protective measures. His statement of 14 May 2025 sets out his engagement with health professionals, his intent to contribute to the Australian community, the protective measures and plans that he has in place.
4. A crucial protective factor that is clearly in place now that was not in play at the time of the index offence is the [Applicant’s] awareness of the effects of cannabis and alcohol on behavior [sic] and mental health. His ongoing efforts towards abstinence, and his active engagement with support services including alcohol and other drug counselling with Odyssey House and online SMART recovery courses (letter and confirmation of attendance submitted with our SOFIC) are apparent.
5. [the Applicant] has a regular General Practitioner (see client statement and GP to psychiatrist referral emails provided with this reply) and psychologist (see client statement provided with this reply). He has proactively sought out a psychiatrist in the community which involved a number of referrals from his GP and has an appointment on 4 June 2025 (see client statement, GP referral letters and appointment confirmation SMS screenshot provided with this reply).
6. While in immigration detention [the Applicant’s] dose of the anti-psychotic medication paliperidone was gradually reduced under the supervision of the onsite psychiatrist. The IHMS Medication Table (at S2, pages 29-30) shows a reduction from 75mg per dose at the end of 2023 to 50mg per dose January to September 2024, then 25mg in October 2024.
7. Clinical Encounter notes released by Primary Health Services Australia (provided with this reply), who have replaced IHMS as the provider for Medical Services to onshore detention facilities, show that [the Applicant’s] paliperidone injections ceased following consultation with psychiatrist Dr Sally Chow on 31 January 2025 (pages 10-11 of the release). Dr Chow described 'nil psychotic symptoms’ at that consultation and at their final appointment on 1 March 2025 described ‘nil features of relapse evident from review today’.
8. [the Applicant’s] continues to take his epilepsy medication carbamazepine which is listed as a current medication in the attached GP referral letters.
9. [the Applicant’s] behaviour in the community and ongoing absence of psychotic symptoms minimise the likelihood of [the Applicant] engaging in further criminal conduct.
[13] Applicant’s Reply submissions dated 15 May 2025 [3]-[9].
The Tribunal also heard from Pastor AE who was not only an impressive witness but is an impressive human being. Whilst the Tribunal accepts that the great support which the Pastor is presently providing the Applicant in the community is finite, the Tribunal is satisfied that the Applicant’s behaviour in living with the Pastor is consistent with the Applicant’s evidence and submissions. The Tribunal is satisfied that the Applicant now has great insight and is sufficiently rehabilitated in respect of the 2021 Offending.
The expert evidence of Mr Tim Watson Munro was also consistent with the above.
Whilst the offending itself was serious in nature, the Tribunal is satisfied that in all the circumstances there is a low risk of the Applicant repeating the one off 2021 Offending and further the Tribunal is not persuaded that the BVR conditions incrementally lower that risk.
The Tribunal finds that this Primary Consideration weights slightly in favour of visa refusal.
Family violence
The parties submit and the Tribunal finds that there is no evidence that the Applicant has been associated with any family violence, hence this Primary Consideration is given neutral weight.
Strength, nature and duration of ties to Australia
The Applicant has a ‘cousin sister’ living in Queensland and her supporting statement before the Tribunal indicates they are close and that she will provide support to the Applicant if he is permitted to remain in Australia. This is only given minimal weight by the Tribunal.
The Applicant has lived in Australia since 2016 and has made some contribution to Australia as both a fee-paying international student and working as a waiter prior to the limited employment opportunities caused by the onset of the COVID pandemic. The Applicant also has a childhood friend who continues to live in Australia and has recently befriended his housemate, Pastor AE.
The Tribunal finds that this Primary Consideration weights slightly against visa refusal.
Best interests of minor children
The parties submit and the Tribunal finds that there is no evidence of minor children affected by this decision hence this Primary Consideration is given neutral weight.
Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws while in Australia. That expectation may be informed by conduct overseas by a visa applicant and is so informed in this review application. The expectation is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered (the Direction para 8.5(4)). It is not for the Tribunal itself to determine such expectation.[14]
[14] See also FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67], [91], [101] and [104].
Such expectation may be tempered by the fact that this matter involves a one-off offence and that as submitted by the Applicant:[15]
A forensic psychiatric assessment of [the Applicant] by Dr Christina Matthews dated 30 March 2022 concluded ‘that [the Applicant] would be eligible for the defence of mental impairment or cognitive impairment if this outcome were to be considered by the Court.’ (G21, page 153). [the Applicant] pleaded guilty, so this defence was not considered by the District Court. The Australian community, as a norm, do expect however that mental impairment is available as a defence against criminal responsibility - this is reflected by the defence being available in Australian jurisdictions.
[15] ASFIC [55](b).
The 2021 Offending was serious, but the result of essentially a mental impairment of the Applicant at the time. The Tribunal finds that this Primary Consideration weighs just slightly in favour of visa refusal.
OTHER CONSIDERATIONS
Legal consequences of the decision
Pursuant to paragraph 9.1.1 of the Direction the Tribunal is to consider the legal consequences of a visa refusal
The Respondent accepts the protection finding in favour of the Applicant (which is not challenged) and accept that his removal to Nepal is not required nor authorised under s 198 of the Act and that the exceptions under s 197C(3)(c) do not presently apply to the Applicant.
The Respondent further submits that:[16]
As a result of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ), where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of a non-citizen is not supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, a non-citizen, if in immigration detention, must be released. The applicant is NZYQ-affected and was granted a BVR and released from immigration detention following the refusal of the protection visa. Accordingly, the direct legal consequence of a decision to refuse the applicant's visa is that he will remain a lawful non-citizen as the holder of a BVR. If the Tribunal were to affirm the delegate's decision the applicant would not be able to apply for another visa due to the operation of s 501E of the Act and reg 2.12AA of the Migration Regulations 1994 (Cth), and he would be prevented from making a further application for a protection visa under s 48A of the Act unless Ministerial discretion is exercised under s 48B of the Act.
[16] RSFIC [58].
The Respondent submits that the Tribunal should confine itself to considering only the “direct” legal consequences of a visa refusal and that there is ‘currently’ no suggestion the Applicant will be removed to a third country despite that being the essence of the BVR visa the Applicant is presently on.
The Applicant submits that there is a real chance that the Applicant could be removed to Nauru if he remains on the BVR visa. The Applicant submits that as a consequence of:[17]
The recent passage of the Migration Amendment Act 2024 (Cth) and the Migration Amendment (Removals and Other Measures) Act 2024 (Cth) means that a BVR holder’s visa will cease if they receive permission to enter and reside in a third country. There is no requirement that a person have a permanent right to reside in the third country nor any guarantee of their safety. The new laws provide no safeguards against the third country returning the person to their home country where they fear harm, a concept known as ‘chain refoulement’ which is prohibited under international law.
[17] ASFIC [67].
Further it is submitted that being on a BVR has a legal consequence of an ever-present risk of detention and removal consistent with the BVR conditions.[18]
[18] See, for example BVR visa conditions 8541 to 8543.
The Applicant submits that the most likely third country to accept the Applicant from any removal is Nauru because:[19]
[19] ASFIC [69].
a) The most likely third country accepting [the Applicant] for removal would be Nauru, because:
i. the Commonwealth has entered into a third country reception arrangement with the Republic of Nauru, at undisclosed cost, allowing actions to be taken in relation to that arrangement for s 198AHB of the Act, and reflected in Nauruan law by the Immigration (Long Term Stay Visa) Regulations 2025 (the Nauruan Regulations).
ii. The first three’ people identified have been granted 30-year visas for travel to Nauru.
iii. Australia has a close diplomatic relationship with Nauru, who are heavily dependent on Australia for support.
b) Removal and detention arrangements are made extremely quickly. Nauru established its Regulations on 12 February 2025. The ‘first three’ individuals were detained by 16 February 2025, with removal scheduled as early as 24 February 2025. There is no suggestion they were given an opportunity to raise claims about fears in respect of Nauru in light of the proposed arrangements.
c) The Nauruan Regulations contemplate insecurity of status, including by the duration, visa cancellation, the impact of change of circumstances, the prospect of removal, and the imposition of terms and conditions which include not behaving in a manner prejudicial to morale or engaging in a religious vocation.
d) The Respondent’s own policy toward removal could not be clearer in light of public statements with respect to this cohort: where a person has unsuccessfully defended their visa, they will be removed.
e) The conditions in Nauru are apt to cause [the Applicant] serious harm amounting to persecution, as set out below.
f) As soon as the Minister gives [the Applicant] notice of permission being granted to enter and remain, even if conditional, [the Applicant’s] BVR will cease and he will be taken into detention pursuant to s76AAA of the Act. This detention could become indefinite if removal is not effected, noting [the Applicant’s] health.
The Tribunal is satisfied that there is a more than a de minimis chance that the Applicant could be removed to Nauru in the future and that such a chance is more real than speculative. In circumstances where life on Nauru would be less than ideal for the Applicant,[20] the Tribunal finds that the real chance of such removal is a legal consequence to the Applicant of visa refusal.
[20] See ASFIC [70]-[77].
It is also apparent to the Tribunal that a further legal consequence of visa refusal will be that the Applicant will remain on a BVR visa or essentially ‘in limbo’ indefinitely. The BVR conditions on the Applicant are onerous yet as the Tribunal has found, add little by way of reducing the risk of harm to the Australian community from this Applicant in the circumstances of his one-off 2021 Offending. The BVR also impacts the Applicant’s ability to get on with his life and restricts access to any support services such as accommodation. In that sense, at least, they undermine factors that would otherwise be protective. The Tribunal is satisfied that such negative impacts are also legal consequences to the Applicant the result of a visa refusal.
On balance the Tribunal is satisfied that this Other Consideration weighs against visa refusal.
Extent of impediments if removed
Paragraph 9.2 of the Direction require the Tribunal to consider the extent of any impediments that the Applicant may face if removed from Australia to Nepal. There is nothing in that paragraph which suggests such should not be considered where, as here, a protection finding has been made.
The protection finding (which is not challenged) was made on the basis of the ongoing established mental health issues the Applicant has and the distinct lack of social and medical supports which would be available to him in Nepal. He would also be subject to discrimination in Nepal because of his mental health issues.[21] The consequence of removal to Nepal would be these impediments.
[21] See ASFIC [83].
The Tribunal finds that this Other Consideration weighs heavily against visa refusal.
Impact on Australian business interests
There is no evidence of any impact upon Australian business interests, hence the Tribunal gives neutral weight to this Other Consideration.
CONCLUSION
The Tribunal has conducted the evaluative exercise of weighing up the considerations to determine whether it is satisfied the available discretion should be exercised to refuse the visa.
Having applied the findings above and allocated the weight respectively to be applied to each of the Primary and Other Considerations above, the Tribunal is satisfied that those against the visa refusal outweigh those in favour of visa refusal. Therefore the visa refusal should be revoked.
1. I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
.........................[SGD]....................................
Associate
Dated: 3 June 2025
Dates of hearing: 21 and 22 May 2025 Counsel for the Applicant: Ms Shannon Finegan
Mr Sverre GunnersenSolicitors for the Applicant: Asylum Seeker Resource Centre Advocate for the Respondent: Ms Miriam Williams Solicitors for the Respondent: Minter Ellison
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