SWKZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 459

SWKZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 459 (22 April 2025)
Applicant/s:  SWKZ
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2023/6358

Tribunal:Senior Member K. Raif
Place:Sydney
Date:22 April 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 22 April 2025 at 4:58pm

Catchwords
MIGRATION – Refusal to grant Class XE Safe Haven Enterprise visa – whether applicant passes the character test – drug related offences – Ministerial Direction 110 applied – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
YMGL and Minister for Immigration and Multicultural Affairs [2025] ARTA 185
Secondary Materials
Direction No 110 – Migration Act 1958 – Direction under section 499 – Visa Refusal and Cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 25 August 2023 to refuse to grant a Class XE Safe Haven Enterprise visa (SHEV) to the Applicant.
The visa Applicant was born in July 1991 and is a national of Iran. He travelled to Australia in June 2013 as an irregular maritime arrival.
In 2016 the Applicant was convicted of an offence and was sentenced to a term of imprisonment exceeding 12 months.
In September 2017 the Applicant made the application for the SHEV (which the Applicant submits will be converted to an application for a Resolution of Status visa if he is found to meet the requirements for the grant of the SHEV). He was assessed as being owed protection in Australia. In June 2023 the Applicant was given a Notice of Intention to Consider Refusal (NOICR) of his visa under s. 501(1) of the Migration Act 1958 (Cth). The Applicant provided his response to the NOICR In August 2023 the delegate decided to refuse to grant the visa to the Applicant as the delegate determined that the Applicant did not pass the character test and exercised the discretion to refuse to grant the visa. The Applicant sought review of the delegate’s decision.
In November 2023 the Tribunal (differently constituted) affirmed the decision under review. In October 2024 the matter was remitted to the Tribunal for reconsideration by the Federal Court.
The Applicant appeared before the Tribunal on 7 and 8 April 2025. The Tribunal received oral evidence from the Applicant, his partner Ms EE, Mx Pettitt and Dr Kwok.
The issues before the Tribunal are:
· whether the visa Applicant passes the character test as required by section 501 of the Act and, if not
· whether the Tribunal should exercise its discretion to refuse to grant the visa Applicant the visa.
LEGISLATIVE FRAMEWORK
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
‘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.’
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Tribunal has been provided with the NSW Police Bail report which indicates that in 2016 the Applicant had been convicted of the following offences:
(1)Supply prohibited drug >= commercial quantity
(2)Participate criminal group contribute criminal activity
(3)Supply prohibited drug > small and <= indictable quantity
(4)Supply prohibited drug >= commercial quantity
(5)Supply prohibited drug >= large commercial quantity
The Applicant had been sentenced to imprisonment of (aggregate) 12 years and 6 months, which was reduced on appeal to 11 years and 3 months imprisonment.
Having regard to the above convictions, the Tribunal finds that the Applicant has been convicted of an offence and sentenced to a term of imprisonment exceeding 12 months. The Applicant concedes that he does not pass the character test. The Tribunal finds that the Applicant has a substantial criminal record as defined in s. 501(7)(c) and that he does not pass the character test.
CONSIDERATION OF DISCRETION
The Applicant concedes that he does not pass the character test but submits, essentially, that the incident was a ‘one off incident’ that he was young when the offence was committed and has since rehabilitated. The Applicant states that there is a low risk of reoffending, he refers to a variety of protective factors and states that, given the length of his incarceration, he has ‘paid his debt’. The Applicant states that the discretionary considerations weigh in favour of the visa grant.
The Applicant also submits that he has been in the community for ten months, has supporting family, offers of enrolment, stable accommodation, is attending counselling and rehabilitation programs and will remain on parole for over two years and through that, can be mandated to undertake counselling. The Applicant refers to the significant hardship, such as the possibility of detention and removal to a country which is not familiar to him and whether that occurs, the threat of that occurring and the hardships of uncertainty already impose hardship, which would affect his daily life. The Applicant also refers to the hardship that would be imposed on his partner. He submits that these factors are ‘not conducive’ to rehabilitation and would impede his recovery and these are not in the best interest of the community, which would be better protected if he remains in Australia on a permanent visa.
The Respondent submits, essentially, that the Applicant does not pass the character test. The Respondent submits that the Applicant has not engaged in sufficient and appropriate rehabilitation and that the risk of reoffending cannot be considered as being low. The Respondent submits that the protective factors to which the Applicant refers may not necessarily act as a strong impediment to reoffending and the Tribunal should not engage in speculation on what might happen if he was removed from Australia. The Respondent notes that the Applicant will have a number of supports if he holds a BVR and that community expectation is that people with such criminal history should not be able to remain in Australia on permanent visas.
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… 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.
The nature and seriousness of the Applicant’s conduct to date
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
There is before the Tribunal the Agreed Statement of Facts in relation to the offending. It indicates that as a result of the police investigation into the supply of prohibited drugs, the Applicant was identified as being at the centre of a criminal group that was supplying a range of prohibited drugs on a regular and systematic basis. The Statement of Facts indicates that in April 2016 the Applicant arranged with another person to supply 50 MDMA capsules. In May 2016 phone interception identified calls between the Applicant and others relating to the attempts by the Applicant to obtain a large commercial quantity of MDMA for the purpose of supply. On an occasion in June 2016 it is stated that a person known to the police met with the Applicant and purchased 55 g of MDMA. On another occasion in June 2016 a person known to police met with the Applicant and purchased 112 g of MDMA. On another occasion a person met with another person arranged by the Applicant and purchased 111 g of MDMA.
The Statement indicates that in June 2016 the police intercepted negotiations between the Applicant and another person for the purchase of 3 kg of methamphetamine. The police conducted a search of a car in which the Applicant was driving and located 1.145 kg of methylamphetamine in a backpack. The Applicant is recorded to have stated that the content of the backpack was Ice which was purchased for $80,000.
The Statement indicates that during the operation, the Applicant was identified as being ‘at the heart’ of an ongoing group supplying MDMA throughout Sydney and that he played an active role in relation to the supply of a large commercial quantity of methylamphetamine in June 2016, he helped broker the supply and acted as a middleman.
In oral evidence, the Applicant conceded that he played a ‘central’ role in the drug enterprise and was ‘in the centre of the dealing’ as he states people came to his house and without him, the activities would not have taken place. The Applicant states that everyone around him was doing this and he explained his role in the enterprise. The Applicant agreed with the assessment that he was at the heart of the enterprise supplying MDMA throughout Sydney and stated that he had been doing this ‘for a few months’ before his arrest.
In his pre-sentence letter to the Court, the Applicant had expressed remorse for his offending, stating he has learned ‘good lessons’ and will contribute to the society. In oral evidence the Applicant also expressed remorse about his offending.
The Tribunal has had regard to the sentencing remarks by Delaney J made in March 2019. His Honour refers to the supply of prohibited drug offending as being serious. His Honour stated that the supply of a large commercial quantity is just below mid-range of objective criminality while the supply of prohibited quantity of commercial drug and participation in criminal group are below mid-range. His Honour stated that these are all very serious offences requiring appropriate recognition and penalty. His Honour recognised that the Applicant was remorseful and contrite, that his time in custody would be more onerous than otherwise might be the case and that ‘it may be’ that he will be unlikely to reoffend upon release.
The Tribunal has also been provided with the appeal record.
The Applicant submits, by reference to the sentencing remarks of Acting Judge Delaney, that his offending was ‘just below mid-range’ of objective criminality in relation to some offences and ‘below mid-range’ in relation to others and the Applicant submits the offences he committed do not fall within the types of crimes specified in the Direction as being very serious. The Respondent submits that the Applicant was convicted of supply of over 1 kilogram of methylamphetamines, was at the centre of a criminal group systematically supplying a range of prohibited drugs and played an active role in the supply of drugs. The Respondent notes that the sentencing judge referred to these as ‘very serious offences’.
In his submission to the delegate made on 3 July 2023 and in the submission to the Tribunal prepared in March 2025 the Applicant submits that his offending did not involve violence, sexual crimes or family violence and was not against vulnerable members of the community, etc. The Applicant submits that the nature of his drug supply offending is not specifically considered to be very serious under the Direction. However, the Tribunal is mindful that Direction 110 sets out the types of conduct that may be considered serious or very serious (the conduct to which the Applicant refers such as violence and sexual crimes and offending against vulnerable members of the community) but the Direction does not limit the types of offences as being capable of being serious or very serious. Indeed, paragraphs 8.1.1(a) and (b) expressly indicate that the examples provided are ‘without limiting the range of conduct that may be considered very serious’. Thus, the fact that the Applicant had not committed the particular type of offences described in those provisions does not preclude the Tribunal from finding that his offending may be serious or very serious.
The Applicant submits that there was no trend of offending with increasing seriousness and the offending took place almost nine years ago. He has been residing in the community since May 2024 and has no subsequent criminal history. During the hearing, the Applicant also made submissions stating that while his offending was serious, there was no evidence of repeat offending and no trend of increasing seriousness. The Applicant submits that his offending did not fall within the type of offending identified by the Direction as being very serious and he claims there is no evidence of criminal proclivities.
The Tribunal accepts that the applicant has not been convicted of any further offences over the past nine years, although the Tribunal does not accept that lack of convictions over the past nine years as being indicative of the applicant having rehabilitated, noting that he has spent much of that time in prison and that he admits the use of illicit substances prior to 2020.
The Applicant states that he was determined not to be a danger to the community for the purpose of assessment under s. 36(1C)(b) of the Migration Act. The Applicant states that he has shown genuine remorse and had cooperated with the Department. The Applicant states that he is a ‘first-time offender’ and although he has been disciplined during incarceration in relation to illicit substances, he has been described as showing significant improvement since undergoing Buvidal Injection Treatment.
The Tribunal accepts that the offending appears to relate to a single set of activities or what the Applicant refers to as a ‘one off’. However, the Tribunal does not accept the suggestion that the offending can be considered as anything other than serious because it is not of the type described in the Direction as being serious or very serious. Having regard to the nature of the offending (involving supply of a large quantity of drugs), the Applicant’s level of involvement (on his own evidence, he was at the centre of the enterprise and, without him, it would not have occurred) and the sentence imposed (noting that a custodial sentence would be considered as a last resort and a lengthy custodial sentence reflects the serious nature of the offending) the Tribunal is of the view that offending was very serious. His Honour Delaney J did refer to the offence of supply of prohibited drug as being serious and the fact that the offending may have been below the mid-range does not detract from its seriousness because the issue here is not the Applicant’s offending by comparison to other offending (which may have been relevant to determining the appropriate sentence) but whether objectively, the offending could be considered as serious.
The Tribunal finds the Applicant’s offending to have been very serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that 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 of the 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
Written evidence

The Tribunal has had regard to the pre-sentence report dated 8 August 2018 prepared by Aden Vallance. The report outlines the Applicant’s background. It refers to the Applicant’s use of alcohol from the age of 12 and the use of methamphetamines and opium from the age of 14 until his departure from Iran. In oral evidence the Applicant confirmed the use of opium by family members, who introduced him to opium from a very young age, and his use from about the age of 14. It is noted that the Applicant reported he was abstinent from all substances for the first three years in Australia and began using MDMA and cocaine recreationally, and from 2016 he was using daily amounts of methamphetamine, cocaine, opioids and gamma hydroxybutyrate. The Applicant referred to mental illness resultant from childhood trauma, neglect and drug use and past self-harm attempts. The Applicant stated that he became involved in criminal organisations as a way to socialise and he believed his associates used him to buy and sell illicit substances. The report states that the Applicant appeared to justify his role as a ‘middle man’ by stating it was merely a way to meet people and socialise and continue his lifestyle and he blamed his associates for his offending, stating they took advantage of him. The Applicant also blamed the police informant for falsely framing him as a significant supplier. The report identifies the risk of reoffending as medium and the criminogenic needs are identified as companions, alcohol / drug problems and emotional / personal. The report states that the Applicant appeared to minimise his offences stating he was set up by police and only continued his offending behaviour to help friends and maintain his party lifestyle. He claimed he made little or no money and believes he was used by others. The Applicant is reported to have stated that he intends to cease substance use and find employment although this remains untested within a community setting. The Tribunal has had regard to the psychology service progress notes.
In his submission to the delegate made in July 2023, the Applicant states that the offending behaviour occurred in the circumstances of his substance abuse, loss of employment and lack of social connections in Australia. The Applicant states that Delaney J found there to be a low risk of reoffending and the Applicant notes his expression of remorse. The Applicant also refers to the protection assessment under s. 36(1C) which determined that he is not a risk to the community (the Tribunal noes that such an assessment considered a different question to the one that the present Tribunal needs to consider and is thus unhelpful). The Applicant referred to his weekly attendance at NA meetings and his access to other supports, his commitment to faith and religious support network and psychological treatment. The Applicant refers to the treatment from 2020 and has expressed his intention to remain ‘clean’ and pursue further study and employment. The Applicant refers to the support from, and strong ties within the community, and his faith.
The Tribunal has been provided with evidence of the Applicant having completed a number of educational and other courses while in prison. In oral evidence, the Applicant referred to the NA meetings he attended in jail but has not attended since his release from custody. He described the other counselling he has received. The Applicant refers to monthly sessions with Dr Cai and daily Bupredol tablets. The Applicant could not explain why Dr Cai in his report refers to the Applicant having an oxycodone addiction as the Applicant claims that is not the case.
In his Statement of Facts, Issues and Contentions (SFIC) dated 26 October 2023, the Applicant sets out his background, refers to his unhappy childhood and drug use from a young age. He states that he used opium from the age of 14 which developed into a daily habit and he started using drugs after arriving in Australia. The Applicant refers to his diagnoses of adjustment disorder with depressed mood and substance abuse disorder. The Applicant refers to his remorse and rehabilitation, stating he has not used drugs since 2020. The Applicant claims that his offending was a ‘one off’ incident which occurred when he was a young man of 24, and he states that he has rehabilitated and is unlikely to engage in further criminal conduct in the future, so that the risk of reoffending is ‘low to zero’.
In his SFIC dated 14 March 2025, the Applicant also refers to his childhood abuse, and past drug use. The Applicant refers to sexual abuse and lack of parental support and attempts to suicide. The Applicant refers to his unhappy marriage and life in Australia. The Applicant refers to his drug use in Australia and spending close to 8 years in jail as a result of the 2016 offending. The Applicant refers to the period of imprisonment as being ‘difficult and traumatic’ and states that he had been the victim of several assaults while in custody. The Applicant refers to the steps towards rehabilitation, including his engagement with health professionals, mental health treatment and opioid agonist therapy (OAT) which he commenced in October 2020 and continued until his release in May 2024. The Applicant notes that the majority of incidents in custody occurred prior to his entry into that program. The Applicant refers to the courses he completed while in custody and his conversion to Christianity in 2021.
The Applicant refers to his release in May 2024 and his living in the community as a holder of a BVR (which was subject to the curfew and monitoring device conditions which no longer apply). The Applicant states that he was provided with accommodation which was unsuitable, and supported in accessing Centrelink payments and medical treatment. He had engaged with a private medical practitioner to provide OAT which he continues to use and his doctor refers to compliance with the Opioid treatment program and improvement in managing opioid dependence, despite the positive drug test in June 2024. The applicant states that he has engaged in counselling with STARTTS which he intends to continue and has other supports around him. He is also subject to monitoring in accordance with parole requirements (the Tribunal has been provided with a copy of parole conditions), until September 2027 and in his submission of 15 March 2025 the Applicant provided a comparison of parole requirements and BVR conditions.
The Applicant refers to having a romantic relationship with Ms EE, an Australian citizen. The Applicant states that he is not a risk to the community, that he is supervised and supported in the community and that the risk of reoffending is low. The Applicant refers to having stable accommodation, a relationship with his partner and the support of his GP and counsellors. The Applicant states that he will be under parole supervision until September 2027 which would adequately manage the risk to the community.
The Applicant states that his offending must be considered in light of his personal circumstances. Her refers to experiencing sexual abuse as a child and the impact of such abuse, stating it has had significant impact on his life. The Applicant states that at the time of offending he had a long history of mental health issue, drug use, difficulties with personal relationships and economic outcomes. The Tribunal acknowledges that the Applicant’s personal circumstances and past history are relevant but the Tribunal is of the view that if these are relevant in addressing the past offending, these could be equally relevant in addressing the risk of the Applicant reoffending. That is, the impact of past abuse and experiences that, the Applicant claims, led to his past offending, could also heightened the risk of future reoffending, particularly if not properly and adequately addressed.
The Applicant refers to his assistance to the police which, he claims, is relevant in determining the seriousness of his conduct and he claims he put himself at risk of reprisals by providing the assistance. The Applicant submits that for that reason, some leniency should be extended to him in the present proceedings and that his assistance to police is also relevant in assessing the seriousness of his offence. The Tribunal does not consider that the Applicant’s assistance to the police is a significant factor in addressing the risk of offending although it may be more relevant in considering his contribution of the community and the weight to be given to various considerations.
The Applicant submits that he is no longer in contact with his co-offenders or other drug users, has better employment prospects, has a long-term relationship and has been receiving treatment for almost five years and is under the care of a GP. The Applicant states that he is at low risk of reoffending and even if he was to relapse, future offending would be for drug possession relating to personal use rather than drug supply. The Applicant refers to various reports (summarised below) which offer an assessment of the risk of reoffending and he claims that for a variety of reasons (ongoing treatment, protective factors, insight and remorse, ongoing parole supervision and the impact of incarceration), there is a low risk of reoffending.
The Applicant refers to another Tribunal decision in YMGL and Minister for Immigration and Multicultural Affairs,[1] stating that the Tribunal is required to undertake an assessment of risk to the community by reference to the Applicant holding a BVR and being able to remain in the community.
[1] [2025] ARTA 185.
In oral evidence the Applicant spoke about the childhood trauma. He states that when he came to Australia, he had limited English and had no permission to work and his family was putting pressure on him for money. The Applicant states that he is ashamed about his offending and he states that he has ‘made a mistake’. The Applicant states that his role in the drug business was ‘very important’ and he states that ‘he was at the centre of the crime’. The Applicant states that he previously did not understand the impact of the drugs on others but now that he has spent time in jail, he saw the families destroyed due to drug addiction and he has learned. The Applicant told the Tribunal that he has not had any contact with others for many years.
In his declaration of 1 July 2023, the Applicant refers to his ongoing treatment, participation in NA and the comfort he draws from his faith. The Applicant also refers to having supports in the community. He states he has been drug-free from 2020 and that he wants to do something with his life.
The Applicant provided a further statement dated 13 March 2025 in which he also outlines his background, the use of drugs, describes his traumatic time in jail and the use of drugs while in jail and the buvidal injections which helped him deal with the drug cravings. The Applicant describes his employment in jail and the program he had completed. He outlines his present circumstances and plans for the future.
In his statement dated 2 April 2025, the Applicant states that since being released from jail, he saw Dr Cai who referred him to a counsellor who was not very helpful. He has also seen a STARTTS counsellor who is helpful and he intends to continue these sessions. The Applicant states that the medication he took in jail made him feel dizzy and tired and he wants to change his medication. He is still taking suboxone and feels he is doing better. With respect to his employment, the Applicant states that he has been training to work on building sites and intends to get a Carpentry certificate and he has been offered a job as a site supervisor. The Applicant refers to the stress due to the Tribunal proceeding. The Applicant refers to his future plans, work, study, and starting a family (in oral evidence the Applicant states that he does not yet have the funds to pay for the Carpentry certificate and he also told the Tribunal that he does not wish to work as an employee in the future but prefers to have his own business).
The Tribunal has been provided with a report dated 2 April 2025 in relation to STARTTS counselling sessions completed by the Applicant. The Tribunal has been provided with Clinical Guidelines on Treatment of Opioid dependence. The Applicant told the Tribunal that he no longer uses drugs. He states that he is now talking to his health professionals and his partner about drugs and he has other supports in place. The Applicant stated that in the past, when he used drugs, he had no other supports but now he has other supports in place.
In his declaration sworn on 26 October 2023, the Applicant states that he acknowledges and accepts his guilt and that he made ‘a very big mistake’. The Applicant states that he will never engage in criminal conduct again. The Applicant states that he has learned from his actions and needs to be proactive in creating a positive change in his life. The Applicant states that he is ashamed, regretful and remorseful about the impact of his actions on the community and his family. The Applicant states that following his Christian faith has been a positive step.
With respect to rehabilitation, the Applicant states in his declaration that he was approved for the Buprenorphine program which he started in December 2020 and which helped him overcome his drug conviction. He claims he has been drug free since that time and his record in jail has been good. The Applicant refers to the guidance he seeks from the church and states that he has regularly been attending religious meetings while in jail. He refers to his employment in jail. The Applicant had presented a statement from a registered nurse who facilitates NA meetings at Long Bay and who confirmed the Applicant’s regular attendance at NA meetings while in custody and there is also evidence of the Applicant’s ongoing engagement with psychological supports while in jail. The Applicant provided evidence of his participation in the Addiction Support Program and evidence of his medication while incarcerated including evidence of buprenorphine injections. The Respondent notes that, despite the frequent and long-standing drug use by his own admission, the only evidence of the Applicant engaging in rehabilitation programs is his attendance at NA meetings and his participation in the Buprenorphine program but there was no evidence of the results of that program or his future participation if the Applicant is released from detention.
The Respondent submits, however, that the Applicant had consistently tried to downplay his involvement in the criminal enterprise, he claimed that he was only a ‘middleman’ and did so not for financial gain but to gain drugs for personal use and to maintain his lifestyle. The Respondent submits that the Applicant blames others for having manipulated him and blames the police informant for ‘framing’ him.
The Applicant’s prison records show a number of incidents while in detention. These include assaults in 2016 and 2017, drug possession in December 2018 and October 2019 and failing prescribed drug test in December 2018, September 2019 and July 2020. Notes show that the Applicant had engaged in fighting beyond self-defence in 2017 and in an assault in 2016. Reports refer to the Applicant’s poor work ethic and needing reminders that he was required to work rather than socialise and it is noted that in August 2019 the Applicant was dismissed as a worker as being ‘not suitable’ and the report refers to ‘aggression issues’. A March 2020 report refers to the Applicant being a ‘non-compliant inmate’, a non-worker and being ‘far from a model inmate’. Other reports refer to the Applicant being polite and following directions. It is stated that in June 2023 the Applicant pleaded guilty to possession of tobacco and drugs (marijuana). In his evidence to the first Tribunal the Applicant explained that tobacco and marijuana were left to him by another person in prison and that he hid these in his cell but they were discovered and the Applicant admitted that the drugs were his. Whether the Applicant obtained the drugs himself, or hid it after being given these by another inmate, the Tribunal considers it highly significant that the Applicant chose to accept these drugs – which he would have known were illicit substances – and to hide these. Even though the Applicant may have admitted the ownership once the drugs were discovered, there is nothing to suggest that he had handed in these drugs to prison authorities. The Applicant claims that since he commenced OAT in 2020, he has not been involved with drugs and has not engaged in any inappropriate conduct. However, the fact that as late as in June 2023 the Applicant was willing to accept and hide illicit drugs contradicts, in the Tribunal’s view, his claim that he had lost interest in drugs following the treatment.
The Applicant referred in oral evidence to the use of drugs in Iran. He states that he last used Opium in Iran, and he stated that he used cannabis once since he was released from jail. The Applicant told the Tribunal that he was experiencing hardship after being released from jail, having no friends and no supports and nowhere to live, and he used cannabis and MDMA with others at the boarding house.
There is before the Tribunal a statement from Rev Father Tadros El-Bakhoumi, who refers to the Applicant’s genuine desire to be a Christian. Rev Bakhoumi refers to the Applicant having ‘changed’ and ‘becoming a total new person’ and showing a genuine regret for his actions. The Applicant presented a number of character references, which included an offer of future employment. There are also letters of support from the Chaplaincy Service of Parklea Correctional Centre. In a further statement from Rev El Bakhoumi dated 5 February 2025 he refers to the Applicant’s baptism while in prison and the Applicant’s ongoing engagement in various activities, such as bible reading, study and prayers. Rev El Bakhoumi refers to the Applicant as a good person.
The Tribunal has had regard to a psychological report by Dr Emily Kwok dated 11 March 2025. Dr Kwok refers to the Applicant’s family, personal and employment history and the Applicant’s description of past drug use. The Applicant reported stopping using suboxone after starting on a buprenorphine program in December 2020. The Applicant admitted to using MDMA once after being released from prison as he says he was under a lot of pressure. Dr Kwok refers to the Applicant displaying little global psychological distress with some areas being elevated, his somatization level and distress around obsessive – compulsive symptoms being above average. Dr Kwok refers to a moderate level of anxiety and level of depression being somewhat elevated but not representing a clinical condition. With respect to risk of reoffending, Dr Kwok refs to protective factors and risk factors and expresses a clinical opinion that the Applicant has a low risk of reoffending if the applicant receives intervention to assist with psychological symptoms, prevent relapse to drug use and support his reintegration into the community.
The Applicant concedes that in his statements to the Tribunal, and in his interaction with Dr Kwok, he referred to MDMA use but not his use of cannabis. The Applicant suggested that ‘maybe he forgot’ to mention the use of cannabis to Dr Kwok.
In oral evidence Dr Kwok stated, with respect of the Applicant’s drug use, that at the time of offending the Applicant was not describing drug use consistently with a substance use disorder. Dr Kwok expressed the view that the Applicant would presently be in remission of the drug use disorder that he may have had previously. Dr Kwok stated that the Applicant’s present circumstances are different, stating that at the time of offending the Applicant experienced a range of psycho-social difficulties (his desire to find friends, employment difficulties, associations with anti-social peers) whereas at present, the Applicant is no longer in contact with anti-social peers, has a stable relationship, participates in leisure activities, his religion and engages with the church community.

Dr Kwok stated that she had administered psychometric testing but due to the error in responses, the results were not used on formulating the basis of her opinion. She relied on the RNR model which encompasses an examination of risk and protective factors and on the basis of RNR model, an assessment of risk could be produced. Dr Kwok states that since 2018 (when the assessment of risk of reoffending was determined to be medium), there had been dynamic factors impacting on the risk level, such as (self-referred) AOD counselling and other protective factors. Dr Kwok confirmed that she had recommended individual drug and alcohol counselling with an AOD therapist for at least 12 months since the most recent drug use in June 2024. Dr Kwok referred to anxiety exacerbated by visa issues and uncertainty about the future but accepted that there may be other stressors for the Applicant in the future. In relation to her evidence that a Protection visa will provide the Applicant with better employment options, Dr Kwok confirmed that she was not familiar with the conditions that may apply to a bridging visa.
The Tribunal has been provided with two reports by Mx Sid Pettitt, senior social worker with Legal Aid NSW. In the first report Mx Pettitt states that the Applicant would be best supported by having sustainable and affordable access to medical services, financial stability and employment opportunities, trauma specific mental health supports. Mx Pettitt refers to the Applicant’s relapse with substance use in June 2024 being indicative of his lack of appropriate housing and social supports and the Applicant working on his relapse prevention skills. Mx Pettitt refers to the Applicant engaging with various supports. Mx Pettit states that the Applicant’s well-being and safety of the Australian community would be best served with the Applicant having access to ongoing public services and being able to travel to see his family. With respect, the issue of determining what is in the best interests of the Australian community is not within the ambit of the brief for the Applicant’s support worker. Mx Pettitt states that with the protection visa, the Applicant will have more affordable access to medical care, psychological care and travel and he will be able to access education. Mx Pettitt fails to explain why the Applicant would have more affordable access to medical and psychological care, given that the Applicant will be eligible to Medicare whether he is a permanent resident or a BVR holder and will be access care, as well as employment opportunities and in oral evidence Mx Pettitt confirmed they were not familiar with the intricacies of visa conditions.
A further statement from Mx Pettit dated 2 April 2025 outlines the rehabilitation programs available to the Applicant and the Applicant’s approach to rehabilitation following his release is described as ‘dynamic and sustainable’.
In oral evidence Mx Pettitt refers to the multiple sessions with the Applicant which included incidental counselling and referral advice. Mx Pettit states that in these sessions the Applicant has been able to take responsibility for the offending and his shame about his past offending and claimed he would not repeat it. Mx Pettitt referred to protective factors such as support from EE and other supports, better English ability, etc. Mx Pettitt states that the Applicant has been able to access appropriate supports such as a GP for OAT treatment and access counselling. Mx Pettitt spoke about counselling and support available to the Applicant and triggers for substance use. With respect to the drug use in June 2024, Mx Pettitt suggests the lapse to be contextual to time and space (lack of supports and problematic housing) and a single incident which did not continue. Mx Pettitt states that the same circumstances no longer exist as the Applicant has greater support, housing and motivation provided by the partner. Mx Pettitt spoke about the impact of religion on being a stabilising influence. Mx Pettitt also spoke about the Opioid treatment program and the Applicant’s stated benefits from that program, noting however, that in the absence of opioid dependence, participation in the opioid treatment program could lead to the overdose.
Mx Pettitt states that since his release from prison, the Applicant’s treatment comprised counselling through STARTTS, spiritual services and the opioid dependence treatment. Mx Pettit confirmed that the supports that have been recommended in their report as being helpful to the Applicant could be accessible to the Applicant through SRSS and as a holder of the BVR.
The Tribunal has had regard to a report by Dr Matthew Cai dated 21 February 2025. Dr Cai states that the Applicant has been under his care since June 2024 and is seen monthly, being treated for opioid dependence. Dr Cai states that the applicant undergoes regular urine drug screening which has constantly shown that he has not used opiates and is fully compliant with the program. He is actively engaged in treatment demonstrating a positive attitude and commitment to recovery. He also receives treatment for anxiety and depression and has shown a good insight and judgment regarding his health and is proactive in seeking psychological support. In his report dated 10 March 2025 Dr Cai refers to the drug screen in June 2024 which detected the presence of MDMA but Dr Cai states that he has determined it is clinically appropriate to continue the Applicant with the OTP.
The Tribunal has considered a report by John Machlin, dated August 2018, who offered the diagnoses of substance use disorder and adjustment disorder with depressed mood, the assaults in prison and states that the Applicant has expressed remorse for his offending and recognised the need for therapeutic assistance. The Tribunal has been provided with other medical records and reports, including reports relating to the Applicant’s engagement with health services during his period of imprisonment.
Summary of claims made at hearing
With respect to the likelihood of reoffending, the Applicant states that he had acknowledged offending and showed good insight into the drivers for offending and the consequences. The Applicant notes that Dr Kwok in her report confirms that he accepted responsibility and recognised the consequences of his behaviours and did not display signs of denying or minimising his crimes and that is consistent with his oral evidence as he was able to identity his significant role in the offending and the consequences of crimes. The Applicant states that his time in custody was traumatic, with assaults on him. The insight is significant in assessing future risk and assessing the extent of rehabilitation.
The Applicant refers to the rehabilitation achieved, in relation to both the supply offences and the personal use. The Applicant notes that Dr Kwok refers to him as being in remission in relation to drug use and claimed there was no evidence that he has a substance use disorder. In relation to drug use, the Applicant relies in Dr Kwok’s report who identified the link between trauma and drug use which has been addressed by the Applicant with ongoing counselling. Dr Kwok’s evidence indicates that the Applicant does not meet the criteria for an anxiety disorder while the adjustment disorder will improve with further integration in the community.
With respect to the opioid substitution program, the Applicant refers to Dr Kwok’s evidence, who was aware of his drug history, who identified the benefit of the Applicant being on the buprenorphine program despite not having an opioid dependence issue. The Applicant submits that when he was receiving the injections while in prison, he was monitored by a nurse and assessed him as being suitable to receive the injections. He has stayed on the program since 2020. The Applicant notes his past long-term dependence on opioids and the illegal use of Bupredol while in jail, stating that the opioid substitution program is suitable for him.
The Applicant refers to his participation in the drug and alcohol counselling in addition to the NA involvement. It is also the evidence of Mx Pettit (who is not a drug and alcohol counsellor) that there was some discussion about availability of drug and alcohol counselling and that shows that the Applicant has made an effort to seek that counselling and has engaged in some form of counselling and has never refused counselling that was suggested to him. The Applicant admits that not having specific drug and alcohol counselling ‘is not ideal’ but claims there is other form of counselling such as STARTTS counselling.
In considering the risk of reoffending in the future, the Applicant relies on the Dr Kwok’s report which considered the protective factors available to him and indicated that the Applicant is at the low-risk category. The Applicant states that his present circumstances are very different to what they were when the offences were committed and he refers to the protective factors such as the emotional support from his partner, his social activities, the availability of a GP, religious involvement (social and connection with the community), finances and employment and the factors that led to the offending (such as financial hardship) is no longer present. The Applicant states that his housing situation is no longer present (noting also that the last use of drugs was due to his living arrangements) and all of these factors are protective factors.
The Applicant refers to the ongoing parole which includes the possibility of random drug and alcohol testing (however there is no evidence to indicate that since the Applicant’s release from prison about 10 months ago he was tested for drugs as part of his parole), the oversight of the corrections officer and there will be a significant incentive for the Applicant, for the duration of the parole, to engage with the health professionals and the consequences of the breach, which means that parole has a purpose and offers appropriate supervision.
In terms of future harm, the Applicant notes that future drug use will not necessarily result in a drug disorder and there is not necessarily the link between personal drug use and the sale of drugs on a commercial scale. The Applicant submits that there is no evidence that he has a drug use disorder and even if he were to commit further offending, it is necessary to consider the nature of such offending.
The Respondent claims that the offending was serious and, with respect to protective factors, the Respondent submits that the present factors ‘do not add to much’ and these are insufficient to prevent future reoffending.
In terms of formal rehabilitation, the Respondent notes that the Applicant has spent 7 years in custody and the only program he was involved in was NA, with scant evidence of what that entailed. He attended some sessions in 2023 but these did not appear to have had a significant impact on the Applicant. Given the length of time the Applicant has spent in jail, there is little other evidence, the Respondent claims, of the Applicant’s engagement in formal rehabilitation. His attendance at STARTTS is fairly recent (5 sessions to date) and it has taken 8 months since release for the Applicant to begin these sessions, which appear to have been taken in the lead up to the hearing and there is no evidence of any ‘life-changing’ rehabilitation.
With respect to the opioid treatment, the Respondent notes that at time of going into custody, the Applicant had not been using opioids for some time. He had been using opioids in jail and then Buprenorphine as prescribed by Dr Cai for oxycodone addiction which the Applicant claims he does not have. The Respondent notes that there is a real question about the purpose of the Bupreorphine treatment. The Respondent submits that the opioid treatment – which is the ‘high point of the Applicant’s treatment’ - does not assist the Applicant with the drug treatment. The Applicant states that neither Dr Kwok nor Dr Cai believed the oxycodone addiction was too historic for treatment but there is no evidence that the Applicant continues to have the oxycodone addiction.
The Respondent submits that the Applicant had been evasive and minimising his drug use, for example by not disclosing cannabis use. The Applicant submits that his reluctance to refer to cannabis use in oral evidence may have been in response to the warning about self-incrimination and his shame about drug use. However, the Tribunal also notes that the Applicant failed to mention the cannabis use in his interactions with Dr Kwok and that cannot be responsive to a warning about self-incrimination, given that the applicant disclosed other drug use.
In terms of other supports, the Respondent submits that Dr Kwok does not refer to church attendance as a critical factor, even if it may be helpful. The Respondent notes that while Dr Kwok refers to the low risk of reoffending, that assessment is dependent on the Applicant receiving ongoing intervention and Dr Kwok identifies appropriate intervention as one on one counselling with specialist drug and alcohol counsellor. The Respondent notes that a STARTTS counsellor is not a AOD counsellor and the Applicant has not received specific AOD counselling since being released from jail. The Respondent submits that the counselling suggested by Dr Kwok has not occurred.
The Applicant notes that Dr Kwok’s recommendation for 12 months counselling was only until June 2025 (12 months after last drug use) but there was no specific evidence by Dr Kwok about whether her assessment of future risk would change if that counselling over the next two months is not achieved. The Applicant submits that Dr Kwok’s report is still reliable as there are other protective factors present. The Applicant submits that Dr Kwok’s report would not change significantly or at all irrespective of the availability of that counselling.
The Respondent submits that the Applicant’s employment is relevant to the risk of recidivism (noting the Applicant’s evidence that loss of employment and financial hardship were among the factors that led to the earlier offending). The Respondent states that the Applicant’s evidence about future employment is limited. Since his release, the Applicant ‘has not been motivated to work’, even though there are no barriers to his employment. The Respondent notes that the Applicant had completed a number of courses while in detention and but he does not seem to have sought work in these fields and instead wants to engage in employment for which he is not presently qualified. The Respondent submits that the Tribunal cannot be satisfied there will be any significant change in the Applicant’s employment status if he is granted the visa.
In terms of the relationship as the protective factor, the Respondent states that the relationship has been in existence for about 6 months, which is not a lengthy period, and while it may presently be a genuine relationship, such things might be subject to change. If the relationship were to change, the Applicant would be in the situation that is similar to his situation in 2016. The Respondent submits that this factor cannot be relied on as a significant protective factor. The Applicant submits that this claim is purely speculative and there is no evidence that this is anything other than a genuine relationship. The Applicant also submits that there is no suggestion that the training opportunities and access to counselling would cease even if the relationship did break up.
Tribunal’s consideration on the risk of reoffending
The Tribunal accepts that the Applicant’s present circumstances are significantly different to those that existed at the time of the offending. The Tribunal accepts that the Applicant has expressed his remorse and has shown insight into his offending and the impact on drugs. The Tribunal accepts that he has actively sought, and continues to be engaged in, counselling. He has a stable relationship, has cut ties with certain friends and has positive community ties, he has the benefit of his faith and is actively involved in the church. The Tribunal also accepts that the possibility of further imprisonment and of removal from Australia will act as strong incentives for the Applicant not reoffending. The Tribunal accepts that in the Applicant’s present circumstances, the risk of reoffending has been greatly reduced. However, for the reasons that follow, the Tribunal does not consider that the risk is no longer present.
Firstly, the Tribunal accepts the Respondent’s submission that there is limited evidence of specific rehabilitation (such as AOD counselling) as recommended by Dr Kwok. Dr Kwok in her report does identify the Applicant as having a low risk of reoffending if he receives intervention to assist with his psychological symptoms, prevent further relapse to drug use and support his reintegration into the community. Dr Kwok states that there is a low risk of further drug-related offending with intervention and a low risk of general offending. Dr Kwok refers to the Applicant undergoing AOD counselling and it is not apparent that the Applicant did receive specific AOD counselling, as opposed to more general counselling. Further, the Applicant admitted to not having disclosed some drug use to Dr Kwok. Thus, while the Tribunal gives weight to Dr Kwok’s assessment, in the circumstances noted above, the Tribunal gives Dr Kwok’s assessment more limited weight that it may have done otherwise
Secondly, it is significant that the Applicant admits recent drug use since his release from jail. The Applicant states that he used marijuana and MDMA when he was placed in the boarding house. The Applicant referred to experiencing hardship at the time, having no supports after his release from prison and prevalent drug use in the boarding house. However, the Applicant claims to have participated in rehabilitation programs (such as NA and opioid substitution program) in jail and to have been drug free since 2020 and to have learned strategies to avoid drug cravings. And yet, when he perceived he was experiencing difficulties, the applicant sought to address these through drugs.
The Tribunal is of the view that there is a real likelihood the Applicant will experience other hardships in life in the future. He may or may not have the extensive support that he has at present. The fact that the Applicant has so recently used drugs despite claiming to have learned ways to avoid drugs and being drug-free since 2020, and despite having at least some supports in place in June 2024 such as religion and church community and access to health providers and support programs in the community, brings into question the Applicant’s claim that he is able to overcome his cravings in the future and abstain from future drug use.
The Tribunal also notes that in his statement dated 14 September 2022 the Applicant referred to coming to Australia to start a new life and stop using drugs, but he had not done so, instead taking up what he himself describes as a ‘central’ role in the distribution of drugs. In his 2018 statement the Applicant described his arrest as a ‘slap in the face’ and making a mistake but the evidence shows that he continued to use drugs while in jail until at least 2020. The Applicant states that he asked for help, but it was not offered but that can also occur in the future when the Applicant might feel unsupported. In his 1 July 2023 statement the Applicant also referred to having a drug-free future, yet the Applicant concedes to using drugs in June 2024. The evidence suggests that the Applicant had in the past made undertakings to avoid drugs, but he has failed to comply with those. This also brings into question the Applicant’s willingness or ability to abstain from drug use in the future.
Thirdly, the Applicant repeatedly told the Tribunal that his situation is now different, and he has better supports, including the support of his partner and his ongoing engagement in rehabilitation and counselling. The Applicant states that he now has different people around him. The Tribunal accepts that evidence but also accepts the Respondent’s submission that future circumstances may change. The Tribunal would be more persuaded if the Applicant was able to demonstrate his ability to overcome any drug cravings and proactively seek appropriate support. The Applicant had demonstrated the capacity to do so to some extent but, in the Tribunal’s view, that has not been fully demonstrated. As noted above, the Applicant has not engaged in AOD counselling despite that being the recommendation of Dr Kwok. He refers to an offer of employment but he also told the Tribunal that he does not wish to work as an employee and prefers to have his own business but has no money for the training and a license. He has been out of jail and in the community for a relatively short period of about ten months and in that period he had a very strong incentive not to use drugs due to the possibility of visa refusal and such incentive will not be present in the future. The applicant did recently use drugs when he felt he was in a difficult situation. The Tribunal considers that the presence of supports and other protective factors to which the Applicant refers do significantly reduce the risk of reoffending but do not altogether remove that risk.

The Applicant submits that ongoing parole until 2027 would act as a strong preventative factor. The Tribunal does not accept this is so. As noted above, there is no evidence before the Tribunal to indicate that any drug testing had taken place under the parole, even though the parole conditions allow for this to occur. The use of drugs in 2024 seems to have been in breach of parole conditions and did not result in any repercussions for the Applicant. The Tribunal does not consider parole to be an effective mechanism to avoid future offending and the Tribunal also notes the temporary nature of that protective mechanism, as parole expires in 2027.
The Applicant told the Tribunal that he was experiencing hardship at the time he used drug in 2024. It would appear that if the Applicant feels that for some reason he needs to use drugs, he would do so irrespective of his parole requirements. The Tribunal does not necessarily consider the ongoing parole to be a strong preventative factor.
As noted above, the Tribunal accepts that the Applicant’s present circumstances are different to what they were when the offending conduct took place. The Tribunal accepts that there are a number of strong preventative factors present, including the Applicant’s stable accommodation and at least a possibility of future employment, his relationship, community involvement, religion and, importantly, access to a number of counselling options, as well as pharmacological intervention. All of these factors, and the combination of such factors, are likely to significantly reduce the risk of reoffending. As noted above, Dr Kwok has assessed the risk of reoffending as low, but has also recommended continued AOD counselling for relapse prevention and recommends ongoing counselling for at least 12 months since last drug use which has not happened.
The Tribunal has formed the view that there remains some, albeit low, risk of reoffending. This is because the Tribunal is not satisfied that if the Applicant were again to experience hardship for any number of reasons, he will necessarily have the ability to avoid relapse into drug use. The fact that as recently as in 2024 when the Applicant referred to poor living conditions and lack of supports, he chose to use drugs suggests to the Tribunal that return to drug use is a real possibility, despite the presence of multiple protective factors. In the Tribunal’s view, the Applicant’s ability to abstain from future drug use is dependent, to a considerable degree, upon his ongoing engagement in rehabilitation and the presence of protective factors. However, his engagement in rehabilitation is voluntary (and can thus be discontinued at any time particularly once the parole has finished), and the Applicant’s future circumstances may be different from his present circumstances. The recent drug use in 2024 when faced with difficulties does not suggest to the Tribunal that the possibility of future drug use cannot be discounted. The evidence suggests that the more serious drug offending of which the Applicant was convicted stemmed from personal drug use and drug dependence.
Thus, while the Tribunal accepts that the risk of reoffending has been greatly reduced and may be low (as Dr Kwon suggests) and no longer ‘medium’ (as suggested by Mr Vallance in 2018), the Tribunal does not consider that the risk is no longer present. The Tribunal is of the view that there remains a low but nevertheless a real risk that the Applicant would reoffend.
The Applicant invited the Tribunal to determine the nature of future offending, stating that personal drug use would not be as significant as the type of offending he engaged in previously. This is a speculative exercise and the Tribunal is unable to determine with any precision what type of offence the Applicant might commit, if he were to reoffend. The Tribunal is of the view that there is a higher risk of the Applicant engaging in personal drug use, as evidenced by the June 2024 incident. However, as noted above, it is also possible (even if there is only a low risk) that the Applicant will commit more serious offences if he perceives his circumstances as being unfavourable, for example due to lack of employment or financial hardship or due to any other stressor, as he claims such difficulties led to his offending in the past.
The Tribunal considers drug offending, particularly if the Applicant were to engage in similar offending as he did before, to be capable of causing significant harm to users and the community as a whole, and, as such, to be serious.
The Tribunal finds that this consideration weighs heavily in favour of exercising discretion to refuse to grant the visa.
Whether the conduct engaged in constituted family violence
There is no evidence to indicate that the Applicant had engaged in family violence. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3.1 of the Direction provides:
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.
The Applicant has been living in Australia since 2013, for a period of approximately 12 years. He has spent the majority of this time in jail. Other than his partner, the Applicant does not have immediate family in Australia who are Australian citizens, permanent residents or people who have the right to remain in Australia indefinitely.
The applicant refers to have a stable de facto relationship with an Australian citizen, Ms EE and states that they have been living together since late 2024. The Applicant states that they intend to marry and start a family if he is able to remain in Australia. The Applicant submits that it would have a significant impact on Ms EE and their ability to start a family if he cannot obtain a permanent visa.
Ms EE provided a statement dated 21 February 2025. Ms EE outlines her personal background and employment history in Australia. Ms EE refers to the development of the relationship with the Applicant since his release from prison and his involvement with her family, who have accepted the Applicant. Ms EE states that the Applicant does not drink or take drugs and will not reoffend and that he does not want to go to jail. Ms EE outlined the plans for the future, including starting a family, and a business, the Applicant receiving counselling and seeing a psychiatrist. Ms EE states that it would be difficult for her if the Applicant stays on the bridging visa. Ms EE also gave oral evidence to the Tribunal referring to her relationship with the Applicant, their interactions and activities as a couple, and her family’s acceptance of the Applicant. Both the Applicant and Ms EE gave oral evidence about their relationship and the impact on Ms EE if the Applicant was to be removed from Australia. In particular, they state that they want to have children but this will not happen unless the applicant holds a permanent visa.
The Applicant’s and Ms EE’s oral evidence is that the relationship has been in existence for over six months. The Applicant refers to significant impact on Ms EE, given the serious and committed nature of their relationship, irrespective of its length. The Tribunal accepts that both the Applicant and Ms EE indicated their plans to get married (Ms EE Indicated that she would need to convert) and have children and the Applicant claims that given Ms EE’s age and the uncertainty if he does not hold a permanent via, the decision to have a family “will not happen”.
The Tribunal is mindful that the Applicant will be able to remain in the community, at least in the foreseeable future, and maintain his relationship with Ms EE whether or not he holds a substantive visa. The Tribunal also notes that both the Applicant and Ms EE stated in oral evidence that Ms EE would need to convert before they are able to start a family and there seem to be other factors that are delaying the couple’s plans to start a family and not necessarily (or not only) the Applicant’s visa status. Nevertheless, the Tribunal accepts that there will be significantly adverse consequences to the Applicant and Ms EE if the visa is not granted.
The Applicant provided a number of character references and letters of support and the Tribunal accepts that the Applicant has formed social ties in this country.
The Applicant refers to the length of his residence in Australia, stating that he is now ‘anchored’ in Australia. The Tribunal is mindful that the Applicant had spent most of this time in custody. The Applicant refers to his contribution to community through employment and his involvement in the religious community and he states that the decision to refuse him the visa will affect others.
The Tribunal generally accepts that the Applicant has been residing in Australia for about 12 years and that he has formed social, employment and other ties in this country. The Tribunal accepts that if the Applicant was to leave Australia (which is not an immediate consequence of his visa application being refused), this may have significantly adverse impact on Ms EE and her family members, as well as the applicant himself. The Tribunal gives this consideration significant weighs against using discretion to refuse to grant the visa.
The best interests of minor children in Australia
There are no children whose best interests would be affected by the present decision. This consideration is neutral.
Expectations of the Australian community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
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.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[2] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[3]
[2] [2019] FCAFC 185 (‘FYBR’).
[3] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs,[4] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
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...
[4] [2024] HCA 2 at [51]-[52].
The Applicant submits in his submission to the delegate made in July 2023, by reference to BHKM v Minister for Immigration and Border Protection,[5] that the community would be concerned if Australia were to breach its treaty obligations. The Applicant also submits that the Australian community would not expect the Applicant to have a lifetime in detention after demonstrating his rehabilitation and remorse. The Tribunal does not accept that argument. There is no suggestion in this case that the Applicant would be removed to his home country in breach of Australia’s treaty obligations. Neither is there a suggestion that the Applicant will be detained indefinitely, or even for a long period. He has been granted BVRs and will be able to remain on the BVR unless there is a possibility of his removal. At present, there is nothing before the Tribunal to suggest that there is a realistic possibility of the Applicant being removed to a safe country (which might result in the Applicant being detained) and the Tribunal is unable to speculate as to whether, or when, this might occur.
[5] [2018] AATA 3.
In his submission prepared in March 2025 and during the hearing the Applicant submits that since there is no prospect of removal, he is likely to remain in the community on a bridging visa for the foreseeable future. The Applicant submits that that there can be no assumption that the Minster took into account this state of affairs when the text of the Direction was prepared. Whether that is the case, the Tribunal must apply the Direction rather than attempt to determine the Ministerial state of mind from the wording of the Direction.
The Applicant submits that nothing in the Direction suggests that he should be granted a more restrictive visa rather than a permanent visa. The Applicant refers to the wording of the Direction that those who commit crimes should not be able to remain in Australia or hold an Australian visa but the Applicant submits that this is not the case here as he will be able to remain in Australia and hold a visa irrespective of the outcome of this process. The Applicant submits that it is permissible and appropriate to moderate the weight given to this factor, given that the stated community expectation cannot be realised in his case and this factor should be given lesser weight.
The Respondent submits that the Direction expressly provides that where a non-citizen has engaged in serious conduct in breach of the expectation to obey Australian laws, the Australian community expects the government to not allow such a person to remain in Australia. The Respondent submits that a BVR would put the Applicant on the pathway to removal.
The Tribunal accepts the Respondent’s submission that a bridging visa which (although presently allowing an Applicant to remain in Australia) does provide for the possibility of future removal, better reflects the community expectations set out in the Direction. That is, the expectations that the government would not allow those who engage in serious conduct and disobey the Australian laws to remain in Australia. In the Applicant’s particular circumstances, the Tribunal has formed the view that, given the seriousness of the Applicant’s conduct and the potential harm to the community of any repeat of such conduct, even given the low risk of reoffending, the community expectations weigh very heavily in favour of exercising the discretion to refuse the grant of the visa.
Other Considerations
It is necessary to look at the other considerations listed in section 9 of the Direction.
Legal consequence of the decision
The legislative provisions relevant to this case have been considered by the Tribunal elsewhere and are adopted here from earlier decisions.
It is not in dispute in this case that the Applicant is subject of a protection finding made in March 2021. Paragraph 9.1.1(2) of the Direction directs a decision-maker to take into account the following:
Section I97C(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.
The Applicant had sworn a declaration in September 2017 outlining the reasons he travelled to Australia and why he cannot return to Iran. In his declaration sworn in October 2023 the Applicant states that he fears persecution and even the death penalty if he is returned to Iran and he refers to the protection assessment made in March 2021. The Applicant states that he cannot return to Iran and he provided a copy of his baptism certificate
The Tribunal accepts that a protection finding implies that Australia owes protection obligations to the Applicant. That means that the Applicant cannot be removed to his home country. If the Applicant is not granted a visa, he may be an unlawful non-citizen and he may be detained and such detention would be subject to the principles set out in NZYQ[6]. As such, the Applicant is unlikely to face indefinite detention.
[6] [2023] HCA 37.
Evidence before the Tribunal indicates that the Applicant has been granted a BVR, most recently in December 2024. The applicant is likely to remain a holder of BVR unless there is a removal pathway available. This is set out in the Migration Amendment Act (Cth) 2024 and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 which provide that a BVR may cease to be in effect once a mandatory notice is given to a visa holder by the Minister that s 76AAA applies to the visa holder. This may occur where permission is granted by a third country for the BVR holder to enter and remain in that country.
The Applicant would be required to cooperate with efforts to ensure his prompt and lawful removal and may face a mandatory sentence of imprisonment if he does not cooperate with the Minister’s direction or if there is otherwise a breach of visa conditions.
The Applicant’s evidence indicates that he was initially subject to monitoring and curfew restrictions which have been removed. The Tribunal accepts, however, that the conditions of the BVR are more restrictive than if the Applicant was a holder of a substantive visa and that there may be significant consequences if the Applicant breaches the conditions of his visa.

Dr Kwok in her report refers to the Applicant having limited employment and other options if a holder of a BVR and Mx Pettit also refers to the restrictions in the Applicant being able to access counselling and other services as a holder of a Bridging visa. The Tribunal does not accept that these restrictions apply as the Applicant, as a holder of a BVR, would be eligible to work and be eligible for Medicare and he would have access to appropriate health and counselling services. He has been able to engage in such activities and such services since his release from prison as a holder of the BVR.
The Applicant states that it would be hard to find a job and he might have to delay starting a family. However, he also told the Tribunal that he has a possibility of a job offer (and presently, training) from a family friend to work on a building site and the Applicant’s evidence is that he intends to obtain a license and open his own business. It is not apparent that the Applicant had (and would have) difficulties in finding employment if he holds a BVR. The Applicant spoke about the difficulties of finding a job while he wore an ankle monitor but he is no longer subject to such monitoring. the Tribunal does not accept that the applicant would have difficulties finding a job, or engaging in training, as a BVR holder.
The Applicant states that he would need to study and spend money to progress and get the license and the uncertainty about his future would affect his engagement in these programs. It is not apparent to the Tribunal why that would be the case. As noted above the Applicant is able to work and also engage in study.
The Applicant refers to general if he does not retain the substantive visa and the possibility of detention and removal. The Applicant claims this may affect his relationship and the possibility of staring a family. The Tribunal accepts that this maybe the case. Ms EE in oral evidence also spoke about the uncertainty associated with the BVR and how it would affect the family and the Tribunal accepts that such uncertainty is likely to have a detrimental effect on the Applicant and Ms EE.
Generally, the Tribunal accepts that the need to comply with visa conditions – some of which are restrictive – and the uncertainty about the future, including the possibility of future detention and removal, are matters that may cause hardship to the Applicant and others.
The Tribunal finds that this consideration weighs in favour of the visa grant and gives it considerable weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
c) any social, medical and/or economic support available to that non-citizen in that country.
As the Applicant is the subject of a protection finding, he may not be removed to his home country. That is, irrespective of the present decision, there is no prospect of the Applicant being removed to his home country unless he consents to such removal. The issues relating to the possibility of the Applicant being removed to another country are addressed elsewhere.
The Tribunal finds that this consideration is neutral.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence that if the Applicant cannot remain in Australia, this would significantly compromise the delivery of a major project or important service in Australia or otherwise affect any business interest. This consideration is neutral.
Other Matters
As noted above in relation to the legal consequences of removal, the Tribunal has determined that the Applicant cannot be removed to his home country as he is the subject of a protection finding. However, the Tribunal has considered the consequences of the Applicant being removed to another country.
Both the Applicant and Ms EE spoke about the uncertainty and the effect of that uncertainty on their well-being and the family and on Ms EE personally, particularly on her ability to start a family. Dr Kwok in her report also refers to the uncertainty about the future as a factor that may cause anxiety to the Applicant and the Tribunal accepts that this is so.
For the reasons set out above, the Tribunal accepts that there may be considerable hardship to the Applicant and those close to him if the Applicant is not granted a permanent visa. Whether this is a legal consequence of the decision, or another consideration, the Tribunal accepts that these matters are relevant and, in the circumstances of this case, weigh against the exercise of discretion to refuse the visa grant.
CONCLUSION
The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances. The Tribunal has found that the Applicant had engaged in serious offending, noting the significant hardship that drugs can cause to the individual users and the community. The seriousness of the Applicant’s offending is reflected by the lengthy custodial sentence.
The Tribunal has determined that, due to the Applicant’s present circumstances and the presence of numerous protective factors, the risk of reoffending is low. However, the Tribunal has formed the view that some level of risk continues to exist, noting in particular the Applicant’s drug use in June 2024 and the possibility of future stressors and the possibility of his disengagement from supports in the future. The Tribunal finds that the protection of the community weighs in favour of exercising the discretion to refuse to grant the visa.
The Applicant did not engage in family violence and there are no children whose interests are affected by these proceedings. No business interests would be affected by the decision and there is no possibility of the Applicant being involuntarily removed to his home country. These considerations are neutral.
The Tribunal accepts that the Applicant has formed meaningful ties in Australia, most significantly with his partner and her family, as well as community ties (including his involvement with the church) and employment ties. The Tribunal accepts that hardship may be caused to the Applicant’s partner if the Applicant is not granted the permanent visa. The Tribunal finds that the nature of the Applicant’s ties in Australia weigh against the exercise of discretion.
Given the serious nature of the Applicant’s criminal offending, the Tribunal has formed the view that the community expectations would weigh strongly in favour of exercising discretion to refuse to grant the visa.
The Tribunal accepts that there will be significant legal consequences to the decision to refuse to grant the visa, as the applicant will not be able to apply for other visas in the future or gain the Australian citizenship and it would create uncertainty about the Applicant’s visa status and the possibility ongoing stay in Australia. The Tribunal accepts that there may be some hardship associated with compliance with BVR conditions. There may be more limited opportunities for the Applicant in terms of future services, although the Tribunal has formed the view that the Applicant will still be able to engage in employment, access education and utilise public and private healthcare options as a holder of a BVR. Nevertheless, the Tribunal finds that there will be adverse legal consequences and general hardship to the Applicant if he is not granted a substantive visa and these factors weigh heavily against the exercise of discretion.
In the circumstances of this case, the Tribunal has decided to give greatest weight to the primary considerations of the protection of the community and the expectation of the community. The Tribunal has formed the view that there could be serious harm to the community if the Applicant were to engage in similar offending in the future. The Tribunal has formed the view that the expectations of the community do not support the visa grant.
Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should be exercised.
DECISION
The Tribunal affirms the decision under review to refuse the application for a Class XE Safe Heaven Enterprise Visa.

Date(s) of hearing: 7 & 8 April 2025

Solicitors for the Applicant: Mr W. Berthelot, Legal Aid NSW

Solicitors for the Respondent: Mr J. Hutton, AGS

Date(s) of hearing:	7 & 8 April 2025
Solicitors for the Applicant:	Mr W. Berthelot, Legal Aid NSW
Solicitors for the Respondent:	Mr J. Hutton, AGS