TSXJ and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2020
•9 October 2025
TSXJ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2020 (9 October 2025)
Applicant:TSXJ
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4506
Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:9 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision of 14 November 2023 be revoked.
......................[SGD]..................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class CB Subclass 151 Former Resident Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – consideration of the protection of the Australian community where the applicant has been granted a bridging visa – the decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class CB Subclass 151 Former Resident visa (the Applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND TRIBUNAL HEARING
On 14 November 2023, the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
The Applicant sought revocation of the cancellation decision on 28 November 2023[2] and made representations through his lawyers in support of revocation on 30 November 2023[3] and through further letters in 2024 and 2025.
[2] G-Documents 62-6 (‘Exhibit 1’).
[3] Ibid 67-9.
On 29 July 2025, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[4] The Applicant applied to the Tribunal for review of the non-revocation decision on 1 August 2025.[5] The Tribunal heard the matter on 2 and 3 October 2025. At the request of the Applicant because of a potential application for a protection visa, the Tribunal made an order on 2 October 2025 that his name is to be replaced with the pseudonym “TSXJ”.
[4] Ibid G2, 17-9.
[5] Ibid G1, 1-16.
The Applicant was represented at the hearing but did not attend because he suffers from paranoid schizophrenia and is under compulsory inpatient care.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The Applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[6] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[7] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[8] Further, this assessment requires ‘[g]enuine consideration of the human consequences’[9] arising from my decision.
[6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].
[7] [2021] HCA 41.
[8] Ibid [14].
[9] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] per Allsop CJ.
BACKGROUND
The Applicant is a Kenyan citizen of Eritrean origin who came to Australia in 2009 when he was 13 years old.[10] He began experiencing mental health issues in about 2015 and was diagnosed with paranoid schizophrenia on 12 February 2021.[11] On 2 May 2022, he failed to attend an appointment for medication with his mental health team and then assaulted his father and brother at the family home. He pleaded guilty to two charges of intentionally cause injury and one charge of intentionally damage property and was sentenced on 26 September 2023 to a total term of imprisonment of three years and three months.[12] The sentencing Judge noted the underlying serious mental illness which drove the offending.[13] The Applicant’s father and older brother were appointed joint guardians by VCAT order dated 5 March 2025.[14] He completed his sentence on 31 July 2025 and was then detained in the Broadmeadows inpatient psychiatric unit at Broadmeadows Hospital.[15] He remains as an inpatient at Broadmeadows Hospital where he is receiving electroconvulsive therapy (ECT).[16]
[10] Exhibit 1 (n 2) G5, 486-7.
[11] Ibid 143.
[12] Ibid 41-61.
[13] Ibid 51 [52].
[14] Ibid 171-8.
[15] Applicant’s Bundle lodged 12 September 2025, 47 [3] – [4] (‘Exhibit 2’).
[16] Ibid [5].
The Applicant was granted a Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) on 24 September 2025 under regulation 2.25AB of the Migration Regulations 1994 on the basis that the Minister was satisfied that the Applicant's removal from Australia was not reasonably practicable at that time.[17] The BVR remains in effect until the Minister is satisfied that removal is reasonably practicable or there is a breach of a visa condition. The conditions include requirements:
(a)to report daily by telephone;
(b)to not contact the victim (or a member of their family) of any offence involving violence or sexual assault.[18]
[17] Notification of visa grant and conditions – class WR Bridging R (subclass 070) visa dated 24 September 2025 (‘Exhibit 5’).
[18] Ibid 4, 6.
It is a criminal offence to fail to comply with the no contact condition unless a reasonable excuse can be established.
Direction 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[19]
[19] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘The Direction’).
For the purposes of deciding whether to refuse a non-citizen’s visa or whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are 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 non-citizen 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.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:[20]
(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;
(5) expectations of the Australian community.
[20] Ibid at 8.
The other considerations are:[21]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
[21] Ibid 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[22]
CONSIDERATION
[22] Ibid 7(2).
Protection of the Australian community – 8.1 of Direction 110
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.[23] As required by paragraph 8.1(2) of the Direction, I give consideration below to:[24]
(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.
[23] Ibid 8.1(1).
[24] Ibid 8.1(2).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110
When considering the nature and seriousness of the Applicant’s conduct, I take into account that at the time of the offending on 2 May 2022 the Applicant was suffering from paranoid schizophrenia.
On the day of the offending, the mental health team from Austin Hospital visited the Applicant at his unit because he had not turned up to take his medication. The intention was to transport the Applicant to hospital because his treatment order had been varied to an inpatient one. He absconded before the clinicians could arrange his transport to hospital and about an hour later the Applicant arrived at the family home where he assaulted his brother and father by punching them. The father and brother took refuge in a bedroom but the Applicant, armed with a kitchen knife, broke the locked bedroom door and stabbed the father twice and the brother once. There was a struggle between the three of them and eventually the Applicant was disarmed and ran away.[25]
[25] Exhibit 1 (n 2) G5, 41-5 [4]-[25].
Attacking family members with a knife is a very serious crime but the sentencing Judge remarked that at the time of offending the Applicant was in the throes of a psychotic relapse.[26] Dr Ong, a forensic psychiatrist who assessed the Applicant and provided a written report dated 14 September 2023,[27] confirmed the causative relationship between his mental illness and the offending. When asked about that relationship, Dr Ong opined that the Applicant “was in a disinhibited, agitated and impulsive state due to his mental impairment (the psychotic illness).”[28] He said that he was unlikely to have offended if not unwell at the time.[29]
[26] Ibid 51 [53].
[27] Ibid 154-66.
[28] Ibid 163 [2].
[29] Ibid.
The father and the brother who were injured gave written and oral evidence. They bear the Applicant no ill will because they understand his behaviour was directly caused by his psychiatric illness. They both said that the Applicant was normally very caring and that this violent episode was out of character. The father did not want him prosecuted and he explained to the police in a letter that he was suffering from a mental illness.
The Applicant pleaded guilty at an early stage, and he was sentenced to a total term of imprisonment of three years and three months which reflects the seriousness of the crime. It was a violent crime committed in what should have been a peaceful environment, the family home. It was a terrifying incident for the father and the brother but they understand that it was caused by mental illness. They declined to give a witness impact statement,[30] and consequently the sentencing Judge said that he could not conclude that there was any sizeable long term physical impacts on them.[31] The brother said his injuries were not severe. The father’s injuries were more serious including lacerations to the neck, right hand and a wound to the stomach. The father and the older brother gave no evidence of any long-lasting physical effects on them.
[30] Ibid 45 [26].
[31] Ibid [27].
There are no other relevant convictions. The three relevant convictions relate to the same incident. There is no repeat offending. It was an isolated offence caused by a mental health episode. The Applicant has otherwise been crime free but whilst in custody since September 2022, he has been involved in numerous incidents of violence and inappropriate behaviour which appear to be related to his poor mental health in prison. The father explained that the Applicant’s mental health deteriorated whilst in custody and that his medical treatment during that period did not support his recovery. It is likely that the authoritarian and restrictive environment of prison was triggering for the Applicant’s condition and therefore I place less weight on his behaviour in that environment.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[32] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[32] The Direction (n 19) at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[33] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable.[34]
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[33] (2014) 225 FCR 424.
[34] The Direction (n 19) 8.1.2(1).
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be serious because of the fear and physical injuries caused by such offending, although I note that the physical impact of the injuries was not long lasting.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
The Applicant has a serious mental illness and, as noted by the sentencing Judge in September 2023, he has had difficulty accepting his illness or that he needs to take prescribed medication.[35] The sentencing Judge considered that he had reasonable prospects of rehabilitation if he could abstain from illegal drugs and alcohol abuse and if he could comply with the prescribed medication and treatment regime.[36] Dr Ong in his report dated 14 September 2023 said that the Applicant’s risk of re-offending is intimately linked to his psychotic illness and that his risk of re-offending would be reduced by assertive management of his mental illness.[37]
[35] Exhibit 1 (n 2) G5, 52 [56].
[36] Ibid 53 [59].
[37] Ibid 164 [6].
Dr Praveen Das, a consultant psychiatrist from the Ravenhall Correctional Centre, described the Applicant’s recent treatment in a report dated 29 May 2025:[38]
[The Applicant] has been an inpatient of the Erskine Subacute Psychiatry Unit at Ravenhall Correctional Centre since 1 April 2024. Prior to this he received inpatient psychiatric treatment on a secure treatment order (STO) under the Mental Health and Wellbeing Act 2022 (Vic) (MHWA) at Thomas Embling Hospital from 26 February to 31 March 2024. Whilst there he was treated for relapse of psychotic symptoms on the background of [the Applicant]’s well-established diagnosis of schizophrenia. This was [the Applicant]’s fifth admission to Thomas Embling hospital on an STO since his incarceration in 2022. Outside of his time in Thomas Embling hospital, [the Applicant] has spent his sentence within various mental health units within Ravenhall Correctional Centre and Port Phillip Prison.
[38] Ibid 169.
The need for targeted treatment was identified by the Applicant’s consultant psychiatrist and the registrar at Broadmeadows Hospital who noted in a report dated 14 August 2025[39] that the assault was very out of character and that treatment will reduce the risk of aggression secondary to psychotic symptoms.
[39] Exhibit 2 (n 15) 23.
The Applicant’s most recent treatment and future recommended treatment is described in a psychiatric report dated 25 September 2025:[40]
[40] Applicant’s Reply Bundle lodged 29 September 2025, 21-2 (‘Exhibit 4’).
Due to the treatment-resistant nature of his illness and his reluctance to take oral medications, electroconvulsive therapy (ECT) was commenced under an ECT order issued by the Mental Health Tribunal. To date, he has received 15 ECT treatments, resulting in some improvement in disinhibition, self-care and agitation. However, he continues to display:
· Positive symptoms: talking and smiling to himself, paranoid thoughts
· Negative symptoms: blunted affect, social withdrawal, low motivation and poverty of thought
His insight remains poor, and he continues to lack capacity to make informed treatment decisions. A full course of ECT typically involves around 24 treatments, which is ongoing. No cognitive side effects have been observed to date.
6. Future Treatment Plan
The next recommended stage of treatment is initiation of clozapine, an antipsychotic with robust evidence for efficacy in treatment-resistant schizophrenia. It is anticipated that ECT will improve [the Applicant]’s willingness to accept oral medications, facilitating the commencement of clozapine during this admission.
…
8. Prognosis
With sustained psychiatric treatment and a supportive environment, [the Applicant]’s prognosis is guarded but cautiously optimistic. Evidence indicates that individuals with treatment-resistant schizophrenia can achieve meaningful functional improvement and significantly reduce their risk of offending with clozapine therapy, regular psychiatric follow-up, psychosocial rehabilitation and substance use interventions.
The treating psychiatrist from the Broadmeadows Hospital, Dr Itrat, wrote on 29 September 2025 that since commencing treatment under her care from 31 July 2025 she has noted improvements in the Applicant’s mental state.[41]
[41] Addendum report of Dr Itrat dated 29 September 2025 (‘Exhibit 3’).
The Applicant’s parents and older brother gave written and oral evidence indicating their understanding and support for the Applicant. I have no doubt that they will do whatever it takes to help the Applicant. His current inpatient treatment program continues until February 2026, but this may be extended. Thereafter, following stabilisation, the Applicant would undertake a residential mental health program to support his clinical and psychosocial recovery. In the longer term, his ongoing care would likely include NDIS-funded and family supports.
The Applicant has support from Africause Youth and Community Services who have developed a comprehensive support plan for the Applicant’s mental health and drug recovery. This written plan includes structured mentorship, access to counselling services, and opportunities for community engagement, for the purpose of ensuring that he remains on a positive trajectory.[42]
[42] Exhibit 1 (n 2) G5, 429 – 35.
The mother gave written and oral evidence in support of the Applicant. She has taken early retirement so she can focus on the needs of the Applicant. The older brother said he will support the Applicant and even move in with him if that is recommended. This supportive environment will assist the Applicant’s mental health recovery and assist him to stay drug and alcohol free and will reduce the likelihood of any further offending.
The Applicant’s mother said that the Applicant had expressed remorse to her for his conduct during her visits in late 2022 and 2023. During his time in prison the Applicant withdrew from his family but in August 2025 he called his mother and father. Thereafter there was an emotional reconnection in person with their son. The family have noticed positive improvements in the Applicant’s health since he completed his sentence on 31 July 2025. The Applicant seems to have developed some insight into his condition and an acceptance that he needs treatment.
Taking into account the supportive environment from his family and the treating doctors’ cautious optimism that the Applicant is improving and will continue to improve with the proposed treatment, I find that there is evidence of rehabilitation which reduces the likelihood of reoffending in the future.
The Applicant has embarked on the targeted treatment regime which the experts have said will likely improve his mental health and therefore reduce the risk of another psychotic criminal episode. The proposed regime of inpatient treatment, followed by residential care in a supervised environment and support from his family will likely cause his mental health to improve and provide an environment in which further offending is unlikely. In my opinion the likelihood of re-offending is low.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
There is both a backward and forward looking assessment to be made when considering the protection of the Australian community. It requires a consideration of the Applicant’s past conduct, namely an isolated incident of family violence (with no long-lasting physical impact) towards his brother and father caused by a psychotic episode, and a consideration of the low risk of further offending. I believe that this is a case where the Applicant’s conduct and the harm that would be caused, if it were to be repeated, is not so serious that any risk that it may be repeated is unacceptable.
Counsel for both the Applicant and the Respondent agreed that, at least in the short term when the Applicant is outside of the community as an inpatient receiving care and supervision, there is minimal risk of harm to the Australian community. The longer-term considerations involve some speculation particularly because it is early days for the current ECT treatment and follow up program. The risk of harm to the community is minimised by the proposed longer-term program of supervised residential treatment and family support, but there remains a material risk, albeit low, of serious potential harm to the Australian community.
When considering the protection of the Australian community, I need to take into account that the Minister considers that it is not reasonably practicable to remove the Applicant from Australia and that, if the decision under review is affirmed, the Applicant will not be placed into detention because he has been granted a BVR. It follows that if the cancellation decision is not revoked (i.e. the decision under review is affirmed), then the Applicant will not be removed to immigration detention or Kenya and he will continue to hold his BVR. If the cancellation decision is revoked, then the Applicant’s visa will be reinstated and he will regain his rights of permanent residency. Either way, the Applicant remains in Australia.
Counsel for the Applicant relied upon the decision of DVRL v Minister for Immigration and Citizenship[43] (DVRL) to contend that the risk of harm to the Australian community would be greater if the decision is affirmed and the Applicant continued to hold a BVR. The Applicant submitted that the conditions attached to a BVR make it unsuitable for a person with paranoid schizophrenia and that a BVR will create a greater risk of reoffending than if the Applicant’s visa was reinstated. In other words, the Applicant contends that the protection of the Australian community is actually a factor that weighs in favour of revocation of the cancellation decision.
[43] [2025] FCA 876.
In DVRL Bromwich J said:
[35] Where a visa applicant or former visa holder will remain in the Australian community regardless of the visa decision, and depending on the circumstances, including the case that was advanced by a visa applicant (or by a former visa holder), there may be a need for an evaluation of competing risks and mitigations of the risks which flow from their presence in the community were they to be granted a particular visa, compared to the risk which flows from their presence were they not. However, I decline to elevate this to the status of a separately identified and specific obligation imposed upon the Tribunal by Direction 110 to conduct a comparison of competing risks in the manner of the counterfactuals posited by the applicant. Such an argument would be difficult to maintain, given Direction 110 has plainly not been framed in a way that contemplates the NZYQ cohort. Rather, in applying Direction 110 [8.1(2)(b)] to this case, the Tribunal had an obligation here to make an assessment of the risk posed if the applicant remained on a BVR and if he was granted a protection visa, because of the evidence the applicant adduced and the arguments he made: see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [64]-[66] (Bromwich and Wheelahan JJ, Logan J dissenting).
[36] Applied to the present context, Direction 110 [8.1(2)(b)] continues to require the Tribunal to consider whether the risk to the Australian community was such as to preclude the grant of the permission to the applicant to remain in the Australian community under a protection visa, or to be a contributing reason for that conclusion. In the ordinary case of the kind identified in Mizen, which does not include the NZYQ cohort, that would not call for any risk assessment to be carried out in the event of the visa being refused. However, in this case any risk posed by the applicant’s continuing presence in the community under a protection visa would not be avoided altogether if the protection visa was not granted, because being in the community was required on the constitutional basis identified in NZYQ.
[37] It follows that, as a practical matter, the required assessment of the “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct” could give rise to a risk arising by refusal of the grant of a protection visa to a member of the NZYQ cohort, who nonetheless is going to remain in the Australian community. But even then, it does not turn only upon a comparison between any differences in the situation arising from two different visas, but upon all of the factors bearing on risk.
[38] The possible risk assessment outcomes in any given case involving a member of the NZYQ cohort could be that refusal of the protection visa would result in no discernible or ascertainable difference in risk, a higher risk, or a lower risk, to the Australian community. In the case of the applicant, this rose above the level of abstract or conceptual, because he expressly relied upon evidence and submissions to establish his asserted higher risk arising from refusing him a protection visa. He sought to do that by, inter alia, comparing his existing circumstances in being in the community on a BVR, and favourable differences he asserted by reason of being in the community on the protection visa he sought. There was no issue of him being eligible for a protection visa but for the operation of s 501(1) in the context of him failing the character test.
Bromwich J concluded:
[48] The task required by Direction 110 [8.1(2)(b)] was to assess risk to the Australian community in all the circumstances. In the particular circumstances of this case, that did require at least an attempt to evaluate the risk if the protection visa was granted as compared to the prevailing risk arising from the applicant being in the community on a BVR.
The Respondent informed me that DVRL was under appeal and, in any event, could be distinguished because for the immediately foreseeable future the Applicant will remain in inpatient care under the orders of the Mental Health Tribunal and will therefore be effectively under supervision and outside of the community.
The Applicant is subject to an inpatient treatment order made by the Mental Health Tribunal which expires on 22 February 2026 and which may be extended. The current treatment is electroconvulsive therapy which remains ongoing. The next recommended stage of treatment is initiation of clozapine, described in the 25 September 2025 report from the consultant psychiatrist as an antipsychotic with robust evidence for efficacy in treatment resistant schizophrenia.[44] The report further provides that clozapine initiation requires a structured inpatient setting for several weeks due to the need for intensive monitoring.[45] Thereafter, the Applicant would benefit from a residential mental health program such as a community care unit or secure extended care unit.[46]
[44] Exhibit 4 (n 40) 21.
[45] Ibid 22.
[46] Ibid.
The report from the consultant psychiatrist makes it clear that the Applicant’s paranoid schizophrenia requires treatment in the foreseeable future in a supervised environment within a psychiatric or residential facility and therefore outside of the community. In these circumstances there would appear to be very little risk in the foreseeable future to the Australian community. Whether the applicant regains his visa or remains on a BVR, his foreseeable future involves a supervised environment outside of the community. In these circumstances, a comparison of these two outcomes reveals very little difference in terms of risk to the Australian community.
In my view, there is significant uncertainty with respect to the duration and details of future treatment required for the Applicant. However, it is likely based on the experts’ current prognosis that the Applicant will emerge from inpatient care and then be in the community under the care of the family with professional support. If his condition improves and he is able to return to the care of his family then I would accept the Applicant’s submission that a BVR raises impediments compared to the visa that was revoked. This is because the BVR has a no contact condition that prevents the Applicant from contacting his family members and because as a BVR holder the Applicant is ineligible for the National Disability Insurance Scheme. However, the no contact condition is not absolute and, in any event, this analysis involves some speculation given the uncertainties about how and when the Applicant will respond to his current treatment. Nevertheless, on the approach adopted in DVRL I would assess the risk of reoffending to be greater, albeit still low, under a BVR because of these impediments when compared to the situation under the Applicant’s visa that has been cancelled.
In the short term, the Applicant will remain in a supervised environment receiving treatment outside of the community irrespective of my decision, but in the longer term when the Applicant concludes his inpatient care and is returned to the community, there is a material difference in the risk to the Australian community when comparing the Applicant under a BVR and the Applicant under the visa. I have found that the risk of reoffending is low because of the likely improvement in the Applicant’s mental health but that low risk would be marginally higher if the Applicant were subject to a BVR instead of the visa that was cancelled. It follows from this marginally higher risk under a BVR that the protection of the Australian community is a factor that weighs marginally in favour of the revocation of the cancellation decision so that the Applicant’s visa can be reinstated.
Family Violence – 8.2 of Direction 110
The psychotically induced violence on the Applicant’s brother and father comes within the definition of family violence. It was a terrifying incident and took place in the family home. The Applicant has been receiving treatment to address the mental illness which is causatively linked to the criminal conduct. The Applicant has expressed remorse for his behaviour and accepts responsibility for it. He understands the impact it had on his father and his brother and they are very supportive of him. It was an isolated incident which is unlikely to reoccur if the Applicant maintains his current treatment regime. In terms of rehabilitation, the Applicant is taking appropriate steps to address his mental health condition. The treating doctors have expressed cautious optimism about his prognosis. It is expected that his condition will improve as a result of the ECT and clozapine treatment. Given the Applicant’s efforts to address the factors which contributed to his conduct, I consider it unlikely that the Applicant will commit further family violence in the future.
It follows that this factor weighs against revoking the cancellation decision but only moderately so.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of Direction 110:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for 16 years, having arrived when he was 13, which represents the majority of his life. His parents and three brothers are Australian citizens, and he has many other relatives living in Australia including an aunt and an uncle and numerous cousins and friends. If the Applicant were removed from Australia it would have a devastating impact on his parents and brothers who have expressed concern about him being returned to Kenya and want to care for him in Australia.
The Applicant has established significant links to Australia. The Applicant has contributed to the Australian community by participating in sport, coaching basketball, completing his secondary education and working numerous jobs. I take into account the character references from his school and friends which reflect the close ties he has to the community.[47]
[47] Exhibit 1 (n 2) G5, 379-428.
The Respondent acknowledges that the Applicant has developed ties to Australia during his period of residence and that this consideration weighs significantly in favour of revocation.
This is a factor that weighs heavily in favour of revoking the cancellation decision.
Best interests of minor children – 8.4 of Direction 110
The Applicant has identified eight children aged up to 11 years whose interests would be affected by my decision.
The Applicant’s cousin provided a statement dated 29 September 2025 which referred to her two children with whom the Applicant had a relationship and who would be negatively impacted if he were removed.[48] The Applicant’s uncle provided a statement dated 29 September 2025 that refers to three children who would be negatively impacted by his removal,[49] in particular the oldest son who is nine years old with whom the Applicant has bonded.[50] A friend of the Applicant who is a nurse assistant provided a statement dated 29 September 2025 referring to his three children.[51] He said that not only is the Applicant his children’s cousin, but he is like a brother who they have known closely and loved dearly and who maintained a strong positive relationship with the children prior to his illness and incarceration.[52]
[48] Exhibit 4 (n 40) 57 [3].
[49] Ibid 59 [3].
[50] Ibid.
[51] Ibid 67 [2].
[52] Ibid [7].
The Applicant’s relationship with these children is nonparental but it is in their best interests for the cancellation decision to be revoked. The weight that I would place on this factor is less because it is unlikely that the Applicant will be removed from Australia and it is difficult to see how the Applicant will play a significant role in the lives of these children in the foreseeable future when he is undergoing inpatient treatment for his mental health illness.
This is a factor that weighs in favour of revoking the cancellation decision but I give it limited weight in the circumstances.
Expectations of the Australian community – 8.5 of Direction 110
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 remain in Australia.[53] The Applicant has failed to obey the laws of Australia and has engaged in In this case, the Applicant’s offending was an isolated incident but it was serious criminal activity involving family violence. He would therefore be expected to be removed from the community. However, Australia would afford the Applicant a higher level of tolerance of his criminal conduct because he has lived in Australia for the majority of his life.
[53] The Direction (n 19) 8.5(1).
I conclude that the Australian community expects that the Australian government should cancel the Applicant’s visa. There is a real, albeit low, risk of further crime. I give this factor significant weight when deciding whether to revoke the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, where relevant, but these are not exhaustive.[54]
[54] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 110
As a consequence of affirming the decision under review, the Applicant would be liable to be removed from Australia as soon as reasonably practicable. Currently, the Respondent accepts that because of the Applicant’s paranoid schizophrenia it is not practicable to remove the Applicant but if his condition improves such that it becomes practicable to remove him then he would be liable to be removed.
The Applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for not cancelling the Applicant’s visa. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to Kenya.
I note that the risks of harm that the Applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The Respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the Applicant to apply for a protection visa.
The Applicant has not applied for a protection visa, but it is open to him to do so. Consequently, the Applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of the Direction is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[55] (Plaintiff M1/2021) provides that I am required to read, identify, understand and evaluate the representations made by the Applicant. Those representations included a claim of non-refoulement under domestic law. I intend to defer assessment of whether the Applicant is owed non-refoulement obligations because it is open to the Applicant to apply for a protection visa. That does not mean that I ignore the representations made by the Applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[56] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[57] This is consistent with the terms of paragraph 9.1.2 of the Direction.
[55] [2022] HCA 17 (‘Plaintiff M1/2021’).
[56] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[57] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
In this case the Applicant has, through his lawyers, expressed a fear of what will happen if he is returned to Kenya. The delegate of the Minister accepted in the decision under review that the claims made by the Applicant indicate a potential for Australia’s non-refoulement obligations to be engaged.
The Applicant fears harm on account of his Eritrean ethnicity and actual and imputed political opinion as against the Eritrean government, which targets political dissidents and their family members through its embassies in African countries such as Kenya. He fears he will be unable to access the support and treatment that he needs for his schizophrenia in Kenya and this would negatively affect his mental health, placing him at a significant risk of a profound deterioration in his mental health and rendering him particularly vulnerable to other forms of harm including kidnapping. As a returnee from Australia perceived to be wealthy, he would be at risk of kidnapping in Kenya. The Applicant’s father has expressed negative opinions about the Eritrean regime and has been an advocate for human rights which could result in the Applicant being targeted if returned to Kenya. The Applicant has no family or social supports available to him in Kenya.
Assertions of a current risk of harm are difficult to assess and are more appropriately dealt with as part of any future application for a protection visa. Nevertheless, I am prepared to accept that he would face a risk of harm if returned to Kenya. This is a factor that weighs in favour of revoking the cancellation decision.
Because the Applicant can apply for a protection visa and has a BVR, an adverse Tribunal decision will not necessarily result in the Applicant’s removal to Kenya. The Applicant would not be removed whilst a valid protection visa application was being determined and while on a BVR.
In conclusion with respect to legal consequences, this is a factor that weighs moderately in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 110
The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to Kenya in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:[58]
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
[58] The Direction (n 19) at 9.2(1).
The Applicant is 29 years old and suffers from a debilitating mental illness, paranoid schizophrenia. He has no family or social supports in Kenya, which he left when he was 13 years old. He does not speak Swahili. The Respondent accepts that the Applicant would face significant practical, financial and emotional hardship if removed to Kenya arising from his severe mental illness and lack of family support. The Respondent acknowledges this factor weighs heavily in favour of revocation.
This is a factor that weighs heavily in favour of revocation but I give it less weight because he is unlikely to be returned to Kenya in the current circumstances.
Impact on Australian business interests – 9.3 of Direction 110
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
It usually follows that where a serious crime has been committed, the protection of the Australian community weighs heavily in favour of not revoking the cancellation decision. However, in this case I have found that the protection of the Australian community is a factor that weighs in favour of revoking the cancellation decision but only marginally so.
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
This is an unusual case because the Applicant has only ever been involved in one criminal incident which occurred during a psychotic episode. The medical evidence is that he was unlikely to have offended if not unwell at the time. The likelihood of any future offending is linked to the treatment of his mental illness. That treatment has begun and appears to be bearing fruit. The doctors are cautiously optimistic about his prognosis, and he has the full support of his family and community. For those reasons I concluded that the Applicant is unlikely to reoffend and does not pose any significant risk to the Australian community.
There is a further unusual aspect to the case because the Applicant has been granted a BVR which will continue to apply if the Applicant is not successful in having the visa reinstated. Direction 110 is not directed to this situation because it assumes that the Applicant will be removed from the community if not successful. This has particular consequences when considering how to approach the protection of the Australian community. The Federal Court considered this issue in DVRL.
The primary considerations of the expectations of the Australian community and family violence weigh heavily in favour of non-revocation because of the seriousness of the offending. The primary consideration of the protection of the Australian community would generally be given greater weight in favour of non-revocation but in the case, I have adopted the approach from DVRL and given it marginal weight in favour of revocation because the Applicant’s visa is more suitable than a BVR and is preferable in terms of providing protection to the Australian community.
The ties to Australia, the best interests of minor children, the legal consequence of a decision and the extent of impediments if removed are countervailing factors that weigh in favour of revocation, but I would not give significant weight to the interests of children and the extent of impediments. The Applicant has spent much of his formative life in Australia from the age of 13 years old. He has contributed to the Australian community through his education and employment. He developed his paranoid schizophrenia whilst in Australia and he is at a very critical stage of treatment which shows early signs of being successful. I consider that these countervailing factors, in particular the ties to the community, outweigh the primary consideration of family violence and expectations of the Australian community.
I consider that there is another reason to revoke the cancellation decision. The decision under review should be set aside and substituted with an order that the cancellation decision of 14 November 2023 be revoked.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
..................[sgd]......................................................
Associate
Dated: 9 October 2025
Date(s) of hearing: 2 and 3 October 2025 Applicant’s Counsel: Ms Kylie McInnes Applicant’s Representative: Ms Ellen Moore (Clothier Anderson Immigration Lawyers)
Respondent’s Representative: Mr David Brown (Australian Government Solicitor)
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