TSXN and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 329

TSXN and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 329 (5 March 2025)
Applicant:TSXN
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10739
Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:05 March 2025
Decision:The Tribunal affirms the decision under review.

.................[sgnd]..........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – refusal to grant a Protection (Class XA) visa under section 501(1)- where Applicant does not pass the character test – Applicant has substantial criminal record (rape) – family violence – Applicant in the community on a Bridging Visa – whether the discretion to refuse to grant the visa under section 501 (1) should be exercised – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
CKL21 v Minister for Home Affairs (2022) FCAFC 70
FYBR v Minister for Home Affairs [2019] FCA 50
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
CKL21 v Minister for Home Affairs (2022) FCAFC 70
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
05 March 2025
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) on 12 December 2024, to refuse to grant him a Protection (Class XA) visa (“the Protection Visa”). The Protection Visa application was refused on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of having been convicted of rape in the Melbourne County Court on 9 September 2011 and sentenced to 5 years imprisonment.[1]
[1] Exhibit 4: G-Documents, 33.
The Applicant concedes that he does not pass the character test.[2] The issue before the Tribunal is therefore, whether the discretion to refuse to grant the Protection Visa pursuant to s 501 (1) of the Act, should be exercised. In doing so, the Tribunal must have regard to Direction 110.
[2] Ibid 270.
The hearing was held on 24, 25 and 28 February 2025. The Applicant was represented by Mr Jamie Blaker of Victoria Legal Aid and the Respondent was represented by Mr David Brown of the Australian Government Solicitor.
The Applicant, his witnesses and the legal representatives of the parties attended in person at the Melbourne Registry of the Administrative Review Tribunal (‘ART’). The Tribunal joined remotely from the ART’s office in Adelaide. An interpreter joined remotely by video.
The Applicant elected to give evidence with the assistance of an interpreter. The Applicant has been in Australia for almost 15 years. He sometimes gave short answers in English before the interpreter had a chance to translate the question.
The Applicant has in the past demonstrated a capacity to “communicate adequately in the English language” when engaging with his psychologist.[3] I also note the evidence of his sister (S2) that since December 2024, the Applicant has assisted his father by acting as an English interpreter.
[3] Ibid 114.
The fact that the Applicant’s evidence was mediated through an interpreter, made the task of assessing his testimony more difficult. It was difficult to assess whether the interpreted words accurately reflected the Applicant’s intent. He tended to give lengthy, discursive answers to quite simple questions. Some answers were unresponsive to the question asked.
He was at times vague and evasive. For example, he was very reluctant to answer any questions about his father’s offending history and period in detention. He claimed never to have asked his father why he was in detention, or what offences he had committed. This issue was potentially very relevant, as the Applicant is now living with his father and intends to continue to do so.
The Applicant presented as a poor historian. He frequently contradicted recorded accounts of events, including past statements made by him, to unrelated third parties, over several years. Some examples of this are set out below.
The Applicant admitted lying to medical staff in the past.[4] He admitted that his lies were motivated by a desire to enter an opioid dependency programme. The reason for this was to access drugs that he would not otherwise have been able to get. He told the Tribunal that he has never in fact actually had an opioid addiction.
[4] E.g. See Exhibit 6: Applicant’s Supplementary Bundle, 1 at [5].
The Applicant clearly made a false statement about his drug history as recently as 19 February 2025.[5] He has admitted lying in the past to get what he wants. In the present proceedings he wants to be granted the Protection Visa.
[5] Exhibit 7: Respondent’s Supplementary G-Documents, 2 at [4].
The Applicant’s account of his past drug and alcohol use from 2010 to the present, was often inconsistent with his previous statements. He made further contradictory statements about this history during his oral evidence. He blamed others for instances where he was found with “home brew” and drug paraphernalia. He said that his past admissions to detention staff were untrue and done to help others. His story often changed and evolved during cross examination.
The Applicant sought to persuade the Tribunal that he had frequently been the innocent victim of a series of unfortunate misunderstandings, or being in the wrong place, at the wrong time.
I formed the strong view that the Applicant’s evidence to the Tribunal was unreliable. Where any contradiction arises, and that is frequently, I prefer the evidence of disinterested parties and records of his own prior inconsistent statements.
There is further consequence of the Applicant’s election to use an interpreter. Whilst I accept that he has some working knowledge of English, I was not able to form any meaningful view of his actual command of the language. This in turn means that I have no way of assessing whether the Applicant would have comprehended the content of any of the rehabilitation courses that he has completed. He confirmed that these courses were conducted in English. There is a vast difference between simply attending or enrolling in a course, thereby obtaining a certificate, and fully understanding and/or engaging with the content.
Given my view of the Applicant’s overall credibility, I am not prepared to make any uncorroborated assumptions in his favour.
The Applicant did not produce a current expert report or call an expert to support his claims that he now does not present a risk of causing serious harm or otherwise offending. The Tribunal did however have access to an old psychologist’s report from Mr Coffey, dated 29 August 2011, prepared for the County Court.[6] This is discussed below.
[6] Exhibit 4: G-Documents, 189-202.
The Applicant called his oldest sister (S1). She has provided a recent statement.[7] She gave evidence through an interpreter. She knew little about the Applicant’s offending and indeed said at one point that she did not accept that he had committed the serious offending to which he pleaded guilty and for which he was imprisoned. She gave evidence about her close relationship with the Applicant and his relationship with her sons. Since 12 December 2024, he has sometimes helped her by looking after her boys. She kept in touch with the Applicant during his time in prison and detention. She was unable or unwilling to assist the Tribunal regarding her father’s offending history. She did confirm that he had a history of problems with alcohol. She said that he was now not drinking. She thought that the Applicant would not offend again, because he was “fearful of God”.
[7] Exhibit 5: Applicant Bundle,12-15.
The Applicant called his youngest sister (S2). She provided a statement on 7 February 2025.[8] She gave evidence in English. She is recovering from a serious car accident in December 2024, and she is presently not working. This is putting her under financial pressure as she has recently purchased a house. The Applicant could help to support her if he was able to get employment. She also spoke of her close relationship with the Applicant and about the Applicant’s support for her and her father, since the Applicant’s release from detention in December 2024. She spoke of the Applicant helping her father with various tasks by acting as an English interpreter for him. She presently lives with the Applicant. She is intending to marry in November this year, and her fiancé has a good relationship with the Applicant. He will move into the house with the Applicant, S2 and her father after they are married. She was also unaware of the details of the Applicant’s offending. She said that she has not discussed it with the Applicant. She was not at the family home when the offending occurred. She was also unable or unwilling to assist the Tribunal with much information regarding her father’s offending history. She did confirm that he had a past problem with alcohol and that he had been in trouble for an interaction with a woman when he was drinking.
[8] Ibid 9-11.
The Applicant did not call his father, though his father did provide a statement.[9] This failure to call his father was unfortunate for several reasons.
[9] Exhibit 4: G-Documents, 203, 209-212.
Firstly, the Applicant has a history of having a poor relationship with his father. This led to family violence complaints against the Applicant in late 2010. According to the Applicant, his father lied to police about his conduct on 28 October 2010 and even showed them a knife which he falsely claimed the Applicant to have had. The Tribunal would have benefited from having his father’s account of events on that day and to question him.
According to the Applicant, they have since then repaired their relationship. This happened in 2018-19 when they were both being held in immigration detention.
I am not satisfied about the present status of that relationship. It would have been very helpful to have heard personally from the Applicant’ father about their relationship. He could have answered many relevant questions. He may or may not have corroborated the Applicant’s claims. The Tribunal has the Applicant’s assurances, which carry little weight (as discussed above) and the observations of S1 and S2. All of them were very reluctant to answer questions about their father.
Secondly, it seems that the Applicant’s father has a history of alcohol abuse and some other undisclosed offending history. Whatever this history was, he apparently wound up in immigration detention for some time. The Applicant is now living with his father and S2. His father is said to be one of his protective supports. This is now a critical relationship with a very volatile past. The Applicant claimed that his father was “not stable mentally”. This may be a possible factor in adding to troubles in their current relationship.
It would have greatly assisted the Tribunal in assessing the risk of the Applicant abusing alcohol or offending again, if his father could have been questioned about many things. This includes, but is not limited to, his current attitude to the Applicant, his offending history, his history of alcohol abuse, his mental state and his current needs in terms of support and assistance. The prospect of further family violence being committed, could also have been explored.
It would have been very easy to have called the Applicant’s father, indeed he attended at the Tribunal to observe final addresses on 28 February 2025. When the Applicant was asked why his father was not called, he was unable to offer any explanation. He said that he didn’t know that his father could be called. This is an unconvincing explanation, especially given that he did not have any trouble calling his sisters. Even without drawing an adverse inference that the Applicant’s father, if called, would not have assisted his case, there is an inadequately explained gap in the Applicant’s case. Given the Applicant’s lack of credibility, this absence of important evidence, cannot be simply presumed to constitute evidence in support of his claims.
This case is somewhat unusual because even if the Applicant is not granted the Protection Visa, he is currently in the community, on a Bridging Visa. This is discussed in some detail in the context of Other Consideration (a), being the legal consequences of the decision. That discussion has implications for many other considerations under Direction 110. It should be read before reading the others, to provide relevant context and background.
Background Facts
The Applicant is 36 years of age. He was born in Myanmar (Burma). He is the eldest of 4 children.[10]
[10] Ibid 37.
When the Applicant was about 6 years of age, his parents separated, and he went to live with his paternal grandparents. When he was about 8 years old his grandmother died, and he and his sisters were placed in an orphanage in Rangoon. He remained there until he was 15.[11] He looked out for his younger sisters.
[11] Ibid.
The Applicant travelled to India where he worked as a farm worker. He later returned to Burma and lived with sisters and his uncle.[12]
[12] Ibid.
In 2006, the Applicant’s father came to Australia.[13]
[13] Ibid 190.
In 2009, the Applicant met his stepmother. She was married to his father by arrangement, without having met him.[14] Exactly where and when this marriage took place remains a mystery. She is now aged about 55. She separated from the Applicant’s father shortly after the Applicant’s offending against her, on 21 March 2011.
[14] Ibid 192.
In 2010 the Applicant, his stepmother and his sisters applied to come to Australia. They were sponsored by his father.[15] They were accepted under Australia’s Special Humanitarian Program.
[15] Ibid 190.
On 14 May 2010, the Applicant was granted a XB 200 (Refugee) visa (‘the Refugee Visa’).
The Applicant arrived in Australia on 14 July 2010.[16] This was the first time that he had seen his father since he was a small child.
[16] Ibid 57, 230.
The Applicant soon developed a difficult relationship with his father. They were frequently in conflict and involved in fights. They were both drinking too much.
On 9 October 2010, the Applicant assaulted his father. He was intoxicated at the time.[17]
[17] Ibid 50-51, 195.
When asked about this he said that the main reason was his father’s jealousy of his relationship with his stepmother. He claimed that she did not like his father. The Applicant said that his father called the police and “made it look bad in our community”. The Applicant said that his father had lied to police about what took place.
On 11 October, an interim intervention order was made in the Ringwood Magistrates Court.[18]
[18] Ibid 50.
On 22 October 2010, a full intervention order made and was served on the Applicant, for the protection of his father. The order said that the Applicant could not go home when affected by alcohol.[19] The Applicant told the Tribunal that he understood this. He went to live with his maternal aunt/uncle. He said that he went to court and was given permission to return home. He said that his stepmother called him to come home.
[19] Ibid 50, 55.
On 28 October 2010, the Applicant breached the intervention order.[20] On this occasion, he told the Tribunal that he was arguing with his father. His father threatened to punch him. There were threats made to kill on both sides, but they were, according to him, not serious. He denied using or having a weapon. He admitted having broken a glass door. He initially said that he did not assault his father, but later he conceded that he punched his father, but only in response to being punched by him first. His father called the police. He showed them a knife and they took a picture. The Applicant told the Tribunal that his father lied to the police about the Applicant having the knife.
[20] Ibid 35.
On 7 November 2010, the Applicant breached the order again.[21]
[21] Ibid.
On 21 December 2010, the Applicant was convicted of 2 counts of contravening a family violence order, 2 counts of making a threat to kill, assault with a weapon and property damage. He was sentenced to 180 days imprisonment, which was partially suspended after having served 47 days.[22] He was released from custody.[23]
[22] Ibid 33.
[23] Ibid 190.
The Applicant conceded in cross-examination that he entered guilty pleas to the charges. He agreed that he had an interpreter. He said however, that he did not understand what he was doing. He was very vague about whether he had legal advice or representation. He implied at least, that he did not. I place little weight on his uncorroborated suggestion that he did not have legal assistance. At one point he seemed to accept that he was represented. He conceded that at this point, in December 2010, he knew that any further offending would be likely to see him back in prison.
Between 21 December 2010 and 21 March 2011, he kept away from his father’s house. He did see his father, stepmother and sisters at a Christmas event somewhere else, but they did not talk.
On 21 March 2011, the Applicant raped his stepmother. When asked to explain why he committed this crime, the Applicant struggled to provide any explanation. He said that he was “young”, “drunk” and “stupid”. None of these descriptions of his condition at the time of the offence sheds any light on why he offended. The continuing mystery as to why he offended, makes an assessment of what may place him at risk reoffending, the subject of considerable speculation. It is, however, reasonably apparent that alcohol abuse was a contributing factor.
The Applicant told the Tribunal that he went back to his father’s house on 21 March 2011, for the first time since being released from prison on 21 December 2010. He had been drinking. He wanted to borrow some money. He no longer recalled the account that he had given to a psychologist, Mr Coffey on 15 July,19 July and 19 August 2011. He said that up to that time his relationship with his stepmother was good. He claimed that she had told him that his father was “ugly” and that she “didn’t like him”. He said that his father “got jealous” and this is why “all this trouble came into our lives”. He could not explain why he decided to drink before going to his father’s house for the first time in 3 months. He said that he knew at that time, if he caused another problem, he would go back to prison. He said that he had received a call from his stepmother before Christmas telling him he should “come home or else she would leave”. She wanted him to reconcile with his father.
When the Applicant was asked why he had attacked his stepmother on 21 March 2011, he said that he “was angry with my father, I was drunk... other than that, I don’t know what to say… I did it to take revenge on my father”.
The suggestion that the Applicant was motivated by a desire to get “revenge” on his father is very disturbing. If true, it raises very serious questions about the Applicant’s thought processes.
On 29 August 2011, Mr Guy Coffey, a clinical psychologist, prepared a report at the request of the Applicant’s criminal lawyer. This report relevantly states:
“Substance Use
[37] [The Applicant] alcohol use at about 16 years old. He drank with some friends when he commenced working in Rangoon. He would drink a few times a week. They would drink beer and whisky. He denied every being involved in violent or illegal behaviour while intoxicated with the exception that two or three times in Rangoon his friends fought with another group of youths.
[38] In Australia he consumed alcohol for the first time about four months after his arrival. He commenced drinking in the company of some other young Chin Burmese friends. Alcohol intoxication appears to have affected his conduct when he assaulted his father on 9 October 2010.
[39] During 2011 until remanded, [The Applicant] said he would often but not always drink each week, up to twice a week and usually with the aforementioned friends. He would usually drink about 4-6 stubbies of full strength beer. Often alcohol was consumed after a game of soccer in a park.
[40] In relation to the effect of his alcohol use on his daily functioning, [the Applicant] said he was studying full time and looking for work in the months prior to the offence and his ability to go about his life was unaffected. I did not have any evidence to the contrary.
[41] There was no evidence that he has suffered from symptoms of alcohol withdrawal in the past or that he has had a physiological addiction to alcohol.
[42] [The Applicant] denied ever having been aggressive when intoxicated other than in the context of disputes with his father and in relation to the offence now before the Court. He denied being belligerent, argumentative or disinhibited when intoxicated in the past.
[43] [The Applicant] denied ever using illicit substances. Prior to prison he was smoking 10 cigarettes a day.
Forensic History
[44] [The Applicant] has one previous conviction in Australia: an assault on his father on 9 October 2010 resulting in him being convicted of recklessly causing injury.
….
Mental Status at time of Interviews on 15 and 29 July and 19 August 2011
[53] As mentioned he does suffer from Alcohol Dependence. Alcohol abuse has not been associated with two serious offences.
Psychological Considerations in Relation to the Offence
Mental State at the Time of the Offence.
[54] In the months and days prior to the offence. [The Applicant] was not suffering from a mental disorder. There is no evidence that a mental disorder was present when the offence was committed.
[55] [The Applicant] was intoxicated at the time of the offence. He provided the following account of his alcohol consumption on the day of the offence. He did not attend school on that day because he had a “job network” interview in the morning in Lilydale. After the interview he met a friend in Mooroolbark and in his company he drank about a half of a bottle of wine. He said drinking like this in the day was uncommon for him. He then decided to go to Nunawading to visit his family. Upon arriving at Nunawading by train, he said he purchased 6 stubbies of full strength beer and one approximately 200ml bottle of whisky.
[56] [The Applicant] said he drank one stubby of beer before he arrived at the family home. He then drank two more stubbies of beer and about 200ml of whisky while sitting in the backyard of the home prior to the assault.
[57] Consistent with the amount of alcohol he reported consuming [the Applicant] said he was intoxicated when he was in the house with his step mother immediately prior to the assault. However his memory for events leading up to the assault appeared clear and not that of someone who was highly intoxicated or stuporous.
[58] [The Applicant] denied he had any intent to assault either his father or step mother prior to arriving at their home. He said after drinking with his friend that morning he had decided to come to the family house to collect $350 he had earned which had been passed to his father by an employer (the money was owed to [The Applicant] for some casual fruit picking he had performed; the employer had given the income to the father at the Chin community church one Sunday).
[59] [The Applicant] said upon arriving at the family house, his father wasn’t at home but his older sister and step mother were and they invited him to join them for lunch which he declined. [The Applicant] said he was angry when told by his step mother that his father had the money owed to him and that she could not give it to him. He said he waited for the father to return and while he did so he sat in the backyard. The step mother went out for an house for a driving lesson. [The Applicant] said that during this time he rang a friend to see if he wanted to join him. He denied that prior to re-entering the home after the step mother returned that he had any intention if instigating an altercation with his father. He conceded he was still angry about the money.
The Relationship with the Father and Step Mother
[60] [The Applicant], as mentioned, claimed to have a strong desire to establish a normal family life with his father and step mother. This was the fulfilment of a longing he had harboured in one way or another since early childhood.
[61] The account [the Applicant] gave of family life since his arrival was necessarily partial but I believe it informed his perception of what was occurring.
[62] He said that the initial welcome from his father and relatives in Australia was warm, but that tensions emerged soon afterwards.
[63] [The Applicant] said that his father drank excessively. He found his father to be increasingly critical of him for reasons he didn’t understand. He said his father found fault with him over trivial matters, and arguments ensued. For example he said his father complained he was wasting electricity by being on the internet or watching TV too often. His father would tell him he should be more religious. He would contradict [the Applicant] in front of visitors which made him feel belittled.
[64] [The Applicant] said that his father tried to control him. He said that his father controlled the money from his Centrelink payments until he left home.
[65] [The Applicant] said that his father became jealous of the relationship between his wife and [the Applicant]. [The Applicant] said that the relationship between his step mother and his father was cordial but not warm or affectionate. Soon after their arrival in Australia, his step mother confided in [the Applicant] that he found his father ugly and subsequently told him that they did not have a sexual relationship. Later they discussed whether she should leave her husband.
[66] The father, [the Applicant] said, began to accuse [the Applicant] and his wife of having a sexual relationship. [The Applicant] said he believes his father began thinking along these lines after he found [the Applicant] massaging his step mother’s head. She had asked him to do so to relieve a headache.
[67] When out, the father would ring home to check on them. [The Applicant] would reprimand their father for making such accusations.
[68] He said he and his step mother had a confiding relationship which included discussing the state of the marriage.
[69] [The Applicant] denied he had any sexual feelings toward his step mother prior to the offence. He said immediately prior to the offence he felt some sexual desire for her but attributed this to the effect of alcohol.
[70] The periodic verbal altercations between [the Applicant] and his father became more bellicose and vociferous over time. After about three months in the country, [the Applicant] spent two weeks living with a maternal uncle due to the tensions. However his sisters insisted that he return.
[71] Police were called about three times before [the Applicant] was charged with the first offence. On the first occasion [the Applicant] argued with his father about his treatment of the step mother and punched a door. He said they threatened one another on a number of occasions and his father said several time that he would have him put in gaol.
[72] When there was a dispute between [the Applicant] and his father, his step mother would often defend [the Applicant].
….
Conclusion
[80] [The Applicant] acknowledged that the rape was largely actuated by anger arising proximally in relation to the money he was owed, but was more broadly related to the rage and disappointment he felt about the failure of the relationship with his father. He said that he also felt some sexual attraction to the complainant which he claimed to be aware of only moments before he attacked her. He was at a loss to explain why he expressed his anger by inflicting a violent sexual act upon his step mother. While acknowledging his anger, he denied that the act was a consciously vengeful or vindictive one directed at his father.
…
Recidivism and Rehabilitation
[82] [The Applicant] does not have a history of violent offending outside the context of the particular circumstances of his family. I don’t believe he has the characteristics of an offender with a predisposition to repeatedly commit sexual crimes. The offence before the Court appears to largely turn on its own facts.
[83] [The Applicant] however has a limited ability to understand and regulate intense feelings arising from frustration, sadness and disappointment.
[84] He also abuses alcohol and underestimates the extent to which it has a disinhibitory effect on his conduct.
[85] There is therefore some risk that when in an emotionally aroused state and inebriated, he could act aggressively in the future.
[86] [The Applicant] requires psychological treatment to address how he identifies and expresses strong emotion. He also needs to learn how to cease abusing alcohol. He would benefit from further involvement with Foundation House, a service which provides assistance to newly arrived refugees, to assist him with some of the psychological difficulties settlement in a new country is posing for him.
Response to Imprisonment
[87] There was no evidence when I assessed [the Applicant] that he had psychologically deteriorated during his five months of imprisonment. He was maintaining a reasonable routine and was seeking some employment.
[88] However, [the Applicant] is very isolated in prison. He had one visit, made by his older sister, during the first five months of remand. He has very limited English and he cannot communicate with other prisoners. He said there were no Chin Burmese in prison with him.
[89] To become a productive member of the Australian community he needs to successfully adapt to his new social environment, acquire English and some vocational skills, and address his psychological difficulties through treatment. None of this can be adequately addressed while he is in prison and a lengthy term of imprisonment will necessarily delay him meeting these challenges.”[24]
[24] Ibid 189-202.

I note that there are aspects of the Applicant’s evidence that diverge from his comments as recorded by Mr Coffey. Given the passage of time and my view of the Applicant’s credibility, I am inclined to prefer Mr Coffey’s account of the Applicant’s historic statements. I note that he was unable to explain to Mr Coffey why his frustration with his father would lead to an unprovoked attack on his stepmother. This lack of an explanation for his offending, remains a very significant issue in this case. It goes to the difficult task of assessing the risk of future offending. There is also no evidence that the Applicant has completed the treatment recommended by Mr Coffey. In the absence of appropriate treatment Mr Coffey says that there “is therefore some risk that when in an emotionally aroused state and inebriated, he could act aggressively in the future”.
On 9 September 2011, the Applicant was sentenced for various offences including rape. The sentencing remarks of Gullaci J state:
“HIS HONOUR:
1. [The Applicant] you have pleaded guilty to Charge 1, indecent assault, maximum penalty ten years imprisonment. Charge 2, rape, maximum penalty 25 years imprisonment. Charge 3, recklessly cause injury, maximum penalty five years imprisonment. You have also pleaded guilty to a summary charge of breaching an intervention order, maximum penalty two years imprisonment.
2. The Crown opening has been tendered as Exhibit A, and also read into the record of the court. I do not propose to repeat the full detail of it, however I make it clear that you are to be sentenced on the basis of the full content of that Crown opening which was not challenged. The victim in this matter is 41 years of age, she is your stepmother, and travelled with you and your two younger siblings from Burma to Australia in July of last year.
3. On 11 October of last year your father made an application for an interim intervention order at the Ringwood Magistrates' Court, and a full order was granted on 22 October. That order expires on 23 October of this year. One of the conditions of the order is that you not attend or remain at the family home in Nunawading when effected by alcohol. Your drinking was a source of conflict between you and your father, which resulted in verbal and physical confrontations. On 21 December of last year you were convicted of contravening the intervention order on 28 October, and 7 November of last year. You were also convicted of making threats to kill, damage property, assault with a weapon, and recklessly cause injury to your father. You were sentenced to 180 days imprisonment, with 47 days declared as time served, and the remainder suspended for a period of 12 months.
4. On 21 March of this year the victim was at home with her stepdaughter, your sister, who was then aged 16. They were eating lunch when you arrived and said you were hungry. The victim offered you some food before going about her daily activities, including a driving lesson, and returned home at about 2.30 pm.
5. Shortly after arriving home the victim was seated in the lounge room whilst her stepdaughter was asleep in her room, when you sat beside her and started grabbing her around the waist, then her neck, scratching at her face and pinching her cheeks. The victim was fighting back, trying to stop you by pulling at your hair. She was screaming and crying, and asking why you were doing this, to which you replied because of what your father had done to you were angry, and getting revenge against her for his father.
6. Your sister came out of her room and tried to pull you away. The victim tried to run away but was not successful. A struggle ensued with all three of you in the lounge room. Your sister tried to pull you out of the house, but eventually you locked her out of the house, and you and the victim were alone. Once alone with the victim you pushed her and knocked her to the floor in the hallway. The victim was lying on her back and asked you why you were doing this, and you got a towel and put it over her mouth. The victim was struggling to get away but you kept saying you were not happy with what the father did to you, and you were going to get revenge. You were lying on top of the victim, and pulled her pants and underwear down to her knees. You were attempting to digitally penetrate the victim, touching her vagina as she struggled preventing you putting your fingers inside her vagina. That is the foundation of Charge 1, indecent assault.
7. You then lifted the victim and carried her to your bedroom where you removed her pants and underwear completely before lying on top of her and placing your penis in her vagina. That is the basis for the charge of rape. The victim described the rape as lasting three to four minutes, as you were worried about the sister who was outside, and you told the victim that you expected your sister was on the phone to the police. During the rape the victim was pleading with you saying why are you doing this to me, and no I am your mum.
8. You then got dressed, gave the victim back her clothes, she went into her bedroom and cried. You then went to her bedroom and asked for money to which the victim replied she did not have any money. Police arrived, however you had left before they arrived.
9. The victim suffered bruising and abrasions as a result of the attack, and she believed that you also bit her on the right wrist. She was examined by a doctor, who noted redness swelling and tenderness to her right cheek, and tiny abrasions, a red bruise under her chin, a purple bruise on her right forearm, and a red/purple bruise on her left upper arm with linear abrasions.
10. At about 7.30 pm you returned home whilst the victim was still at the police station making her statement. There was a confrontation between you and your father, and during the course of that confrontation you were asked by you father why you had - you did what you did to your mother, and you responded:
"I fight with your wife, and I bite her on the arms."
11. You were subsequently arrested and interviewed, and you made some limited admissions, but denied the serious allegations.
…
15. A report from a psychologist Mr Coffey was tendered on your behalf. Mr Coffey who also gave evidence before the court concluded inter alia
(1) That you had endured a deprived and dysfunctional personal history.
(2) That there is no evidence you have suffered any mental disorder.
(3) That you have you consumed excessive amounts of alcohol on occasions, however your ability to go about your life was unaffected, and you were in full-time study leading up to the current offending.
(4) There is no evidence you had a psychological addiction of alcohol or ever suffered withdrawal symptoms. I am referring to the report of Mr Coffey, his evidence seemed to be somewhat different as to your use and abuse of alcohol when he gave evidence before me viva voce.
(5) That you denied being aggressive or disinhibited in the past when intoxicated, other than in arguments with your father and the current offending.
(6) That you are of normal intelligence.
(7) That you did not suffer from a personality disorder.
(8) There is no evidence you were suffering from a mental disorder in the period leading up to or during the current offending.
(9) That you were intoxicated at the time of offending, however you have a clear recollection of the events leading up to the assault.
(10) That your personality traits derive from your childhood environment, and characteristics of your newly formed family life in Australia assist in explaining the offence.
(12) That your intoxication disinhibited your expression of pent up anger.
(13) That you were at a loss to explain why you expressed your anger by inflicting a violent sexual act upon your stepmother.
(14) That you expressed remorse.
(15) That there is some risk that when in an emotionally aroused state and inebriated, you could act aggressively in the future.
(16) You require treatment.
(17) That there was no evidence you had psychologically deteriorated whilst in custody.
16. As I noted above Mr Coffey gave viva voce evidence before me, adopting the contents of his report, and in addition emphasised the significance of your deprived history, lack of role models, inability to handle stresses in your life, alcohol abuse, and its impact on you coping with the family problems, in particular with your father. Mr Coffey gave evidence as to your special needs,. in particular need for ongoing need for treatment for anger alcohol abuse problems.
17. Mr Coffey expressed that you had prospects for rehabilitation with appropriate specialised treatment being successful. However he indicated that there was a risk of you re-offending in a similar manner if you did not receive appropriate long-term treatment. Mr Coffey also confirmed that you had received some counselling from a social worker at Foundation House, that you had engaged in some severed alcohol secessions with an alcohol counsellor, however he expressed the view that you had not yet gained insight or grappled appropriately your alcohol problem and its effects on you and that counselling, to quote him:
"Had barely scratched the surface."
18. A report from Dr Pereira of Forensicare was also tendered on your behalf. Dr Pereria concluded you had a history of alcohol abuse and required treatment to control your usage of alcohol so that it did not impact on your behaviour and impulse control.
…
23. I turn to consider the issue of intoxication. Your counsel as I understood her submissions initially submitted that your intoxication was a disinhibiting and mitigated your offending in view of your deprived history and emotional issues faced by you. In my view there was an intervention order sought by your father and granted by the court that you were not to attend the family home under the influence of alcohol, or remain there whilst you were under the influence of alcohol. You had breached that intervention order and offended against your father as reflected in your prior convictions. I am satisfied beyond reasonable doubt that you were aware that whilst intoxicated you became aggressive and prone to violence.
24. You attended at the family home on this occasion intoxicated, and offended in an aggressive and violent manner against the victim who had been supportive of you, and with whom you had a close relationship. In my view the fact that you were intoxicated is not a mitigating factor. However in view of the limited period of time that you had been abusing alcohol in Australia, and the limited evidentiary material as to the impact of alcohol, and your knowledge of that impact of abusing alcohol on you, I am not satisfied beyond reasonable doubt that the court should regard your intoxicated state as an aggravating factor. See R v. Hassan [2010] VSCA 352.
25. On the second day of the plea hearing your counsel abandoned as I understood her previous submission that your intoxication was a mitigating factor and submitted that the court should not be satisfied it was an aggravating factor.
26. The learned Crown prosecutor submitted the circumstances of your offending warranted the imposition of a term of imprisonment in the range of five to seven years as a head sentence, with a minimum term of three and a half to five years for the following reasons.
(1) This was a revenge rape of your stepmother because of anger that you had had against your father.
(2) That you have a relevant prior series of convictions on the occasion.
(3) That your intoxication in the circumstances is an aggravating feature and not a mitigating feature of your offending.
(4) That you offended in breach of an intervention order.
(5) That you did not use a condom.
(6) That it was a breach of trust, and the victim was raped in her own home.
(7) That both specific and general deterrence are significant matters for the court to consider.
(8) That there was a need to protect family members from you.
(9) That there was a risk of re-offending in a similar manner in the future.
27. Relevant sentencing considerations for crimes such as these involve a combination of factors. The seriousness of the offences, your culpability for their commission. Your personal history and circumstances; mitigating factors that exist in your case, and the prospects of rehabilitation. Whilst it is clear that if you are abstinent from using or abusing alcohol, or are able to control the use of alcohol and manage your pent up anger, you have some prospects of rehabilitation. Yet in my view you remain vulnerable. You have a history of binge drinking and whilst disinhibited by alcohol you have a deep anger against your father, and have a relevant prior court appearance with convictions arising in circumstances of breaching intervention order and committing offences of violence against your father.
28. Further despite the ongoing existence of the intervention order, and whilst on a suspended sentences for offences committed against your father, and again intoxicated you committed the current offending. The psychologist concluded inter alia as I noted above, that when you are in an emotionally charged or aroused state and intoxicated you could act aggressively in the future. In my view the sentence of the court must be one that deters you from offending in a similar manner again in the future.
29. General deterrence is a primary consideration in the circumstances of your offending. Those who are minded to offend against victims for no other reason that she was the wife of a person, your father, against whom you had significant anger against, must be made aware the courts will strongly denounce such serious offending, and impose sentences that deter others. Whilst there are a number of mitigating factors as set out above these matters can be taken into account in your favour. The following matters in my view are matters of aggravation that exist in your case.
(1) There was an intervention order against you with a specific condition that you not attend or remain at the home of the victim whilst intoxicated.
(2) In breach of that order you had previously attended your parents home and offended against the father in breach of that order, and on 21 December of last year you were before the Melbourne Magistrates' Court charged on breaches of intervention order, making a threat to kill, intentionally destroy property, recklessly cause injury, and sentenced to a term of 180 days imprisonment partially suspended for 12 months.
(3) Again in breach of the intervention order you attended the family home and committed the current offending on 21 March this year.
(4) You had a good supportive relationship with the victim, your anger was directed against your father. I am satisfied beyond reasonable doubt that you committed the current offending because of that anger and in order to seek revenge against your father for perceived grievances that you had against him. I accept the evidence of the complainant in her statement at p.25 of the depositions in which she says;
"In was fighting him back trying to stop him and pulling at his hair. I was screaming and crying, and asking him what he was - why he was doing this to me. He said because of what his father had done to him he was angry, and that he was getting revenge against me for his father."
Further at p.26 she says:
"[The Applicant] was saying to me I'm not happy with what my father did to me so I do it to you. He said he was not happy with what my father did to me so I'd do it to you. He said he was not happy and he wanted to get revenge against me. [The Applicant] was laying on top of me, and I think he was trying to rape me."
I reject the assertions to Mr Coffey which are set out at Paragraph 80 of his report, when you were asked questions as to why you had raped the victim, and you informed Mr Coffey that you were at a loss to explain why you expressed your anger by inflicting a violent sexual act on your stepmother.
(5) I am satisfied beyond reasonable doubt that you did not use a condom when you forcibly penetrated the victim, however I am not satisfied beyond reasonable doubt that you ejaculated inside the victim.
(6) That you used actual violence against the victim, and recklessly caused her injury.
(7) As conceded by your counsel this was a breach of trust that you owe towards your stepmother.
(8) The offences occurred in the victims own home.
…
32. The formal order of the court is as follows with conviction on all charges. Charge 1, indecent assault you are sentenced to 14 months imprisonment. Charge 2, rape, you are sentenced to five years imprisonment. Charge 3, recklessly cause injury you are sentenced to ten months imprisonment. The summary charge of breach of an intervention order you are sentenced to six months imprisonment.
33. I order that six months of the sentences imposed on Charge 1 and 3 and two months of the sentence imposed on the summary charge be served cumulatively on the sentence imposed on Charge 2, and on each other. The total effective sentence is six years and two months. I fix a minimum term of four years before you become eligible for parole.
34. Pursuant to s.18 of the Sentencing Act I declare the period of 172 days be reckoned as already served, and direct that be noted in the records of the court. The Crown has sought a retention order, pursuant to s.464ZFB of the Crimes Act, I have proposed to make that order for the following reasons. Your prior convictions, the circumstances of your offending, that the order is not opposed or consented to, and that the making of the order is in the public interest. Pursuant to s,6AAA of the Sentencing Act I am required to inform you what sentence I would have imposed had you pleaded not guilty and been found guilty by a jury.”[25]
[25] Ibid 34- 49.
In relation to his offending the Applicant says:
“14. Although it felt like a relief to reunite as a family, I had a lot of unresolved feelings towards my father and his decision to leave us in Myanmar. I was very young at this time, and did not have the maturity to process these feelings. I began acting out as a result of this and it would often end in heated arguments between my father and I. My father became very jealous and critical of me once intoxicated, and he would often accuse my step-mother and I of being too intimate and implied that we were having an affair behind his back. He based this off the friendly relationship between my step-mother and I, ad although it wasn’t true, it created a lot of tension in our family home.
15. These arguments were often made worse by alcohol. Both me and my father drank a lot and we would get drunk. My father responded to these arguments and my bad behaviour by applying for an intervention order against me.
Criminal Offending
16. In December 2010, I was convicted of breaching an intervention order, making threats to kill, damage of property, assault with a weapon and recklessly causing injury. The victim of my offending was my father.
17. In September 2011, I was convicted of several criminal offences, including rape, indecent assault, recklessly causing injury and breaching an intervention order. The victim of my crimes were my step-mother and my father.
18. I pleaded guilty to all charges and was sentenced to a term of 5 years imprisonment, with a non-parole period of 4 years.
19. I served my sentence from the time in which I was placed on remand in 2010 until I was released into immigration detention in April 2015.
20. My behaviour was fuelled by alcohol and a very strained relationship between my father and me. I was significantly under the influence of alcohol at the time, which impacted my decision making and my subsequent actions. This does not make my off ending any less bad.
21. I carry a lot of remorse about my behaviour, and the impact my actions have had on other people. I am very sorry for the pain that my behaviour has caused my stepmother. I have had no contact with my step-mother since I was placed on remand, and I am aware that my father and her are no longer in a relationship. I would apologise if I could. I do not want to cause her more pain.”[26]
[26] Exhibit 5: Applicant Bundle, 1-8 at [14]-[21].

On 2 December 2013, the Applicant’s nephew (Child A) was born.[27]
[27] Ibid 153.
On 3 December 2014, the Applicant completed a personal circumstances form. In this he identified a number of relatives living in Australia including his father, 2 sisters, 5 uncles/aunts, 12 cousins and 1 nephew.[28] He has now 3 more nephews, being the sons of S1.
[28] Exhibit 4: G-Documents, 162-169.
On 12 January 2015, the Applicant’s sisters wrote a joint letter of support. Their primary concern, was for the Applicant’s safety if he were to be returned to Myanmar.[29]
[29] Ibid 206-7.
On 20 January 2015, the Applicant completed another personal circumstances form. In this he refers to having 8 uncles/aunts and 21 cousins living in Australia.[30]
[30] Ibid 170-176.
On 28 January 2015, a case worker looking after the Applicant’s sister, made representations in support of the Applicant on her behalf.[31]
[31] Ibid 204-5.
On 4 February 2015, the Applicant’s Pastor and other Church members wrote a letter of support.[32]
[32] Ibid 208-212.
On 11 March 2015, the Applicant’s Refugee Visa was mandatorily cancelled on character grounds under s 501 of the Act (the mandatory cancellation).[33]
[33] Ibid 57.
On 22 March 2015, the Applicant was transferred to Yongah Hill Detention Centre.[34]
[34] Ibid 252.
On 26 March 2015, the Applicant completed a personal details form.
On 2 April 2015, the Applicant requested revocation of the mandatory cancellation.[35]
[35] Ibid 57.
On 1 March 2016, the Applicant was moved to Christmas Island.[36]
[36] Exhibit 5: Applicant Bundle, 146.
On 29 August 2016, the Refugee Visa cancellation decision was affirmed by the Assistant Minister (the first Minister’s decision).[37]
[37] Exhibit 4: G-Documents, 57, 268.
On 10 September 2016, the Applicant sought judicial review of the first Minister’s decision.[38]
[38] Ibid 57.
On 22 December 2017, the Federal Court quashed the first Minister’s decision and remitted the matter for reconsideration.[39]
[39] Ibid 57, 268.
On 15 March 2018, the Applicant was identified by a Parole Officer as being “unsuitable for offence specific treatment in custody, as a result of language barriers”.[40] Whilst this is not the Applicant’s fault, it is important to note that he did not receive treatment.
[40] Exhibit 5: Applicant Bundle, 47.
On 24 May 2018, the Assistant Minister affirmed the Refugee Visa cancellation decision (the second Minister’s decision).[41]
[41] Exhibit 4: G-Documents, 57, 269.
On 27 July 2018, the Applicant sought judicial review of the second Minister’s decision.[42]
[42] Ibid 57.
On 27 August 2018, whilst awaiting the outcome of the judicial review proceedings concerning the second Minister’s decision, the Applicant made an application for the Protection Visa.[43]
[43] Ibid 57, 231-262, 269.
On 9 October 2018, the Respondent refused to grant the Protection Visa (the first Protection Visa refusal) on the basis that the Applicant’s claims did not meet the refugee or protection criteria.[44]
[44] Ibid 57, 269.
On 10 October 2018, an incident report states that the Applicant was found with smoking implements. He denied ownership of the contraband.[45] On 12 October 2018, the Applicant sought merits review of the first Protection Visa refusal in the AAT.[46]
[45] Ibid 156.
[46] Ibid 57.
On 17 October 2018, an incident report states that the Applicant was found with 15 litres of home brew in his room. The Applicant denied ownership of it.[47]
[47] Ibid 155.
This is but one of several records associating the Applicant with home brew, when he was in detention. In relation to this the Applicant stated on 7 February 2025 that:
“22. I have changed a lot since my offending, which was over 15 years ago now. I quit drinking while I was in prison and have not had a drink in 13 years. I understand that alcohol was a big reason for my offending and realise that consuming alcohol is not good for myself, my family or my community.
23. I also acknowledge that my detention records include incident reports for homebrew, meth, and tattoo guns. I accepted responsibility for these incidents at the time, and continue to acknowledge my involvement, however, I never drank the homebrew, nor did I use substances. There is a lot of drinking in detention as it helps people cope, my roommate would make it and provide it to other detainees. I would often take responsibility for concealing homebrew in my room as my roommate would be too fearful of the consequences to do so himself, and as it was in my room, I felt like I had no choice. I acknowledge there is a detention report from July 2021 that records me saying that I drink homebrew as a coping mechanism. I wish to clarify that I do not remember saying that. I also do not recall admitting to the Tribunal member in my previous hearing, I only recall making an admission that I took responsibility for my roommate in incident reports relating to homebrew. I confirm that I was not drinking during my time in immigration detention, nor have I had a drink since my offending.”[48]
[48] Exhibit 5: Applicant Bundle, 1-8 at [22]-[24].
This seems to be at odds with his sworn evidence before the AAT on 23 July 2023, wherein he said that he did help make the home brew and he did drink it.[49] His claim that he did not use substances is also plainly false, even on his own admission in his oral evidence. Blood/urine tests confirmed the presence of illicit substance as set out below.
[49] Ibid 38-46.
On 17 November 2018, an incident report states that the Applicant was found with 5 litres of fermented liquid (home brew). He claimed ownership of it at the time.[50] The Applicant told the Tribunal that this was not true. His friend had made it. He later admitted that he was involved in making it but said that he did not know what they were doing with it. He had taken responsibility in exchange for money for cigarettes.
[50] Exhibit 4: G-Documents, 153.
On 3 December 2018, an incident report states that the Applicant was found with drug paraphernalia which had traces of methamphetamine. He denied that it was his.[51] He told the Tribunal that he was in the gym at the time and that the contraband belonged to his roommate.
[51] Ibid 152.
When asked about this in cross examination, he initially said that he never used methamphetamine, only prescribed medications. Later, when confronted with the evidence of positive blood/urine samples contained in Exhibit 7, he said that he had been given methamphetamine by a friend, before that sample was taken.[52]
[52] Exhibit 7: Respondent’s Supplementary G-Documents, 340.
On 3 January 2019, the Applicant received a parcel containing suboxone and methamphetamine secreted in the sole of sandals. He accepted the parcel as his when he signed the mail register.[53]
[53] Exhibit 4: G-Documents, 151.
When asked about this, he told the Tribunal that the parcel was not his. He said that a friend had asked him to receive a parcel in his name, in exchange for money. The Applicant claimed that he did not know the contents of the parcel.
On 20 April 2019, an incident report states that the Applicant was found with drug paraphernalia. Subsequent testing revealed the presence of methamphetamine.[54]
[54] Ibid 150.
When asked about this he told the Tribunal that he did not remember this incident, but that “people come and go”. He denied using methamphetamine. He said his roommate used drugs.
On 11 May 2019, the Applicant’s nephew (Child B) was born.[55]
[55] Exhibit 5: Applicant Bundle, 154.
On 10 August 2020, the Federal Court quashed the second Minister’s decision not to revoke the Refugee Visa cancellation and remitted the matter for reconsideration.[56]
[56] Exhibit 4: G-Documents, 57, 269.
On 5 September 2020, the Applicant’s Church Pastor wrote another letter of support.[57]
[57] Ibid 213.
On 6 September 2020, the secretary of the Chin Community in Victoria wrote a letter of support.[58]
[58] Ibid 214.
On 15 November 2020, an incident report states that the Applicant was involved in a fight with another detainee.[59]
[59] Ibid 149.
When asked about this the Applicant told the Tribunal that he was trying to separate 2 other detainees who were fighting. One swore at him, so he grabbed him. He denied throwing a punch.
Also on 15 November 2020, the Applicant’s nephew (Child C) was born.[60]
[60] Exhibit 5: Applicant Bundle, 155.
On 1 December 2020, an incident report states that the Applicant was found with 10 litres of home brew. The Applicant claimed ownership of it.[61]
[61] Exhibit 4: G-Documents, 148.
When asked about this he told the Tribunal that he took the blame for a friend because he “didn’t think it would affect my case”. He said that he told his friend that he would not take the blame again.
On 3 February 2021, a SERCO note mentions the Applicant being involved with making home brew.[62]
[62] Exhibit 5: Applicant Bundle, 55.
On 5 February 2021, the Applicant was advised of the Respondent’s decision not to revoke the mandatory cancellation.[63]
[63] Exhibit 4: G-Documents, 57, 269.
On 10 February 2021, the Applicant sought merits review of the Respondent’s decision not to revoke the mandatory cancellation, in the AAT.[64]
[64] Ibid.
On 10 February 2021, an incident report states that the Applicant was found with 15 litres of home brew.[65]
[65] Ibid 146.
When asked about this he told the Tribunal that this was not his, but others put it in his room because they knew that he did not drink.
On 16 March 2021, the Applicant withdrew the AAT application seeking a review of the non-revocation of the mandatory cancellation.[66]
[66] Ibid 58.
On 4 May 2021, an incident report states that the Applicant was found with 10 litres of home brew. He claimed ownership of it.[67]
[67] Ibid 145.
When asked about this he told the Tribunal that he took the blame for a roommate (a different one to the roommate mentioned in para 93 above) because they knew that he didn’t drink.
On 19 July 2021, a SERCO note says:
“[The Applicant] stated that he wouldn’t have behaved carelessly and recklessly if he knew that his visa would be subject to cancellation.
[The Applicant] mentioned that he is not the person he used to be, he is a changed man and he regret for his mistake in the past. He has learnt from his mistake. He also takes the responsibility of a big brother and advices from his own Burmese community to be careful of their behaviours in the community.
[The Applicant] mentioned it is obvious, he had involved in incidents related to homebrew, he has been in detention for many years, his mental health is deteriorated, he is also from minority Burmese group in detention, his English was limited, therefore his only coping strategy was to consume homebrew to keep him going.
[The Applicant] responded ‘I’m honest, I have had homebrew related contraband incidents in the past, but I never harmed anyone, I had never been aggressive/abusive towards officers or other detainees, in fact some of the incidents where my other detainee friends would make the homebrew and I would take the responsibility for it, because those detainees are so fearful of the consequences.” [The Applicant] further mentioned, when he was in Yongah hill detention centre, there was an incident where his room mate made the home brew and when his roommate got caught, roommate stated to the officers, ‘that’s not mine’. [The Applicant] stated without any option I took the blame.
However, [the Applicant] mentioned, from when he received his last negative outcome from AAT, he had set the boundaries with his detainee friends that he would not take part in any homebrew related activities, because he has learnt his lessons and it’s time for him to look after himself and his future.”[68]
[68] Exhibit 5: Applicant Bundle, 68.
This is different to the story that the Applicant told the Tribunal. He claimed that he did not consume alcohol. He said that he was asked a question by the SERCO officer but that it was “just a conversation…I didn’t know it would be recorded….I did say that, but it was not an appointment, not an interview…it was a joke”. The Applicant was unable to elaborate on how his comments were a “joke”.
On 4 November 2021, the AAT remitted the Protection visa application for reconsideration with a direction that the Applicant satisfies s36(2)(a) of the Act.[69]
[69] Exhibit 4: G-Documents, 58, 269.
On 31 May 2022, an incident report states that the Applicant was found with contraband.[70]
[70] Ibid 144.
On 1 August 2022, an incident report states that the Applicant was found with contraband.[71]
[71] Ibid 143.
On 25 October 2022, an incident report states that the Applicant was found with contraband.[72]
[72] Ibid 142.
On 3 February 2023, the Applicant’s nephew Child D was born.[73]
[73] Exhibit 5: Applicant Bundle, 156.
On 1 March 2023, the Applicant was interviewed by a primary health nurse. Her record is as follows:
“01/03/2023
Progress Notes
Note added on 2:50 PM:
[The Applicant] attended D&A appointment for D&A assessment;
Presented well, mood bright and engaging well in conversation
[The Applicant] is a 34 y/o gentleman from Burma
Reported has been in Australia for 14 years, has been in / out detention for 7 years;
Reported had family (siblings/ cousins/ father) in the community;
Reported started taking drugs when he 1st came in Australia
Says hanged out with wrong crowd, started drinking and taking drugs at early age;
D&A History
Tabaco : Reported started smoking when he was young unable to recall exactly when. Reported smoking 3 pack per week. Reported ready to cut down consumption. Offered NRT, agreeable on same.
Alcohol : Says he started drinking when he was 6 y/o. Drinks any alcoholic beverages, last drink was 2021. Denies drinking home brew.
THC : Stated he started smoking since when he first came in Australia, smoking 1/2-1 gram daily/ when available. Last use was 18 month ago. ;
ICE : Started using few years ago, reported last use was 2 days ago smoked5-6 puffs. ;
Heroine : Reported started using 1-2ml when he 1st came in Australia, denies |VDU. Last use was few years ago. ;
BUPE : Claimed started 7 years ago while in custody, Last use was yesterday, smoked 8mg film
Cocaine: ; Says started using few years ago . Last use was 2019, 1/2 gram via snorting. ;
Denies using any other drugs;
Denies history of withdrawals, denies history of overdose
Denies history of HCV infection; agreed to get re-tested
Requested to join OSTP, provided education on how to commence on the program;
Education regarding drugs and the affect on ones mental health and physical well-being ;
Brief reminder provided on OD prevention;
Nil other concern ATOR;
Agreed to engage with D&A team”[74]
[74] Exhibit 7: Respondent’s Supplementary G-Documents, 330.
The Applicant agreed that this record probably reflects what he told the nurse.
On 6 March 2023, IHMS notes state that the Applicant said of his past “I was young and I did stupid stuff after I started drugs”.[75]
[75] Ibid 332.
On 8 March 2023, the Respondent determined that the Applicant did not satisfy the criterion in s36(1C), and further that 36(2C)(b) applies and therefore the Applicant does not satisfy the criterion in s 36(2)(aa).[76] The Respondent was satisfied that the Applicant presented “a danger to the Australian Community”. The Protection Visa application was refused.[77]
[76] Exhibit 4: G-Documents, 56.
[77] Ibid 269.
The Applicant sought merits review of the decision not to grant the Protection Visa, in the AAT.
On 14 March 2023, IHMS notes record the Applicant reporting that he had smoked 4 mg. of Bupe that day and was usually using up to 8 mg. He was advised regarding the risk of overdosing. He was thinking of doing the methadone programme.[78]
[78] Exhibit 7: Respondent’s Supplementary G-Documents, 333.
On 22 March 2023, IHMS notes record the Applicant reporting that he was smoking Bupe daily and that he had used 2 mg. that day. He tested positive for Bupe in an onsite urine test. A sample was sent for analysis. He was again advised regarding the risk of overdosing. He said that he “preferred” the methadone programme.[79]
[79] Ibid 337.
On 27 March 2023, IHMS notes record that the sample taken on 22 March tested positive for buprenorphine. The Applicant said that he smoked Bupe to get himself on a drug treatment programme.
On 30 March 2023, IHMS notes record that a random urine test was taken. Bloods were also taken. The Applicant tested positive for buprenorphine and methamphetamine. He admitted to smoking 4 mg of Bupe daily. He was again advised regarding the risk of overdosing. He was advised about the Opium Substitution Programme (OSTP) and he agreed to go on Buvidal injections.[80]
[80] Ibid 340.
I note that the Applicant stated in a signed statement dated 19 February 2025, that “I have never used methamphetamine, either inside or outside immigration detention and prison. I have only ever taken what has been prescribed for me”.[81] It is clear from the various IHMS reports appearing in Exhibit 7, that this claim is false. The Applicant conceded as much in cross examination. He said that he was given “ice” by friends. He admitted to using “ice” regularly in Villawood.
[81] Exhibit 6: Applicant’s Supplementary Bundle, 1 at [4].
I note also that Buvidal is used to treat dependence on opioid drugs.
On 4 April 2023, IHMS notes record the Applicant reporting that he had smoked Bupe on the previous night.
On 13 April 2023, IHMS notes record the Applicant reporting that he was using Bupe regularly and that he requested Buvidal treatment.[82]
[82] Exhibit 7: Respondent’s Supplementary G-Documents, 343.
On 19 April 2023, IHMS notes record the Applicant reporting that he had started the OSTP. He reported having used “ice” that morning.[83] The Applicant conceded in cross examination that he may have said that he used ice, but that they should “not believe everything” that he said. They should have tested his urine.
[83] Ibid 345.
On 20 April 2023, IHMS notes record the Applicant reporting that he had used “ice” again that morning. He was cautioned about taking illicit substances when on the OSTP.[84]
[84] Ibid 346.
On 24 April 2023, IHMS notes record the Applicant reporting that he attended the clinic for a Buvidal injection. He said that he was “scared” due to the risk of an overdose. He was again cautioned about taking illicit substances when on the OSTP.[85]
[85] Ibid 347.
On 1 May 2023, IHMS notes record the Applicant reporting using Bupe on top of his weekly Buvidal injection. He was again cautioned about this.[86]
[86] Ibid 348.
On 9 May 2023, IHMS notes record the Applicant was again cautioned about the use of other illicit drugs.[87]
[87] Ibid 349.
On 24 May 2023, IHMS notes record the Applicant as having been a heavy drinker before incarceration and being a former user of “weed and ice”.[88]
[88] Ibid 351.
On 13 June 2023, a psychological assessment report was prepared by Ms. Yvette Aiello. The interview upon which the report was based was conducted by telephone, in English, on 8 June 2023. The Applicant was able to “communicate adequately in the English language.” In her summary, Ms Aiello says:
“3.9 Summary, Analysis and Recommendations
To summarise: [The Applicant] is a 34 year old man from Myanmar, who reported coming to Australia in 2010 due to conflict occurring in his country of origin. He reported having arrived with a dependence on alcohol, which he developed in his teenage years, and with complexities in his relationship with his father, who had left him at a young age. This culminated in [the Applicant] often being in conflict with his father and receiving assault charges, which resulted in prison sentences and the cancellation of his visa to remain in Australia.
[The Applicant] presented with symptoms of depression and anxiety linked with his prolonged detention and with his anticipatory fear of being repatriated to Myanmar, where he does not believe he will be safe due to ongoing conflict occurring in the country.
[The Applicant] presented as being motivated to address mental health concerns and currently engaging in a number of activities to assist him to manage his distress, including engaging in exercise, prayer and learning activities. However, his upcoming review of his case at court appears to be a significant stressor for [the Applicant] and is exacerbating his level of anxiety. [The Applicant] would benefit from supportive counselling to assist him to manage his current stress and continue to build his coping strategies.
In the longer term, [the Applicant] may benefit from therapy where he is provided the opportunity to process his feelings towards his parents and the impact of their absence on him.”[89]
[89] Exhibit 5: Applicant Bundle, 29-37.

(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - 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 be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
The Applicant has the benefit of a protection finding as set out above.
The Applicant accepted in his SOFIC that he is currently not liable to involuntary removal to Myanmar and “there are no other countries to which he can be removed”.[126]
[126] Exhibit 1: Applicant’s Statement of Facts, Issues and Contentions, [37]-[38].
This proposition remains correct, for the reasons set out below. He is not presently facing any materialised risk of involuntary removal.
The Applicant was released into the community on a Bridging visa on 12 December 2024.[127]
[127] Ibid [38].
The current issue is whether the Applicant continues to remain in the community for the time being on the Bridging visa, or he is granted the Protection Visa and the Bridging visa is no longer required.
The Applicant accepts that “there is no immediate prospect of ‘indefinite detention’”.[128]
[128] Ibid [39].
The Applicant’s Bridging visa is “subject to numerous monitoring and other provisions, breach of which is punishable by up to 5 years’ imprisonment with a minimum term of 1 year.”[129]
[129] Ibid.
The Applicant accepts that, at least until amendments to the Act on 5 December 2024, he would “‘remain in the community’ irrespective of the Tribunal’s decision to affirm or set aside a character refusal or cancellation”.[130]
[130] Ibid [40]-[42].
The Applicant says that this has now changed for 2 reasons.
Firstly, if he is not granted the Protection Visa and continues to therefore rely on the Bridging visa, he may now become liable to removal to a third country.
Failure by the Applicant to comply with a removal “pathway direction”, should it arise, is a criminal offence punishable by imprisonment.[131]
[131] Ibid [46].
The Applicant’s removal to a third country would obviously require that country to issue him with a visa.
If such an agreement were to be reached between the Australian Government and a third country, “his bridging visa will cease. He will become liable to removal to the third country, and (his) detention prior to removal”.[132]
[132] Ibid [44].
The Applicant submits that a third country may detain him or mistreat him. He may be sent back to Myanmar.[133]
[133] Ibid [45].
The Applicant accepted in his SOFIC that there were no such third country arrangements in place. He said that if he gets the Protection Visa, he will not be liable to removal.[134]
[134] Ibid [48].
He now says that because of the recently announced Nauru arrangements, that this is no longer so.
No offer has been made to the Applicant by Nauru.
There are presently proceedings in the courts which may be determinative of the lawfulness or otherwise, of the Nauru arrangements, or similar ones. How long this litigation may take to be resolved is unknown.
Leaving aside the uncertainty flowing from the current court proceedings, predicting the prospect of an offer ever being made to the Applicant by a third country, involves uninformed speculation.
If such international arrangements were to be in place, and lawful, there is no way of knowing whether the Minister of the day, would actually seek to prioritise the removal of the Applicant, rather than any number of other non-citizens.
If there ever are such international arrangements lawfully made in the future, there is no way of knowing whether a third country would agree to offer a visa to the Applicant, even if an Australian Government request was made to do so. Again, this is all a matter of uninformed speculation.
The Applicant’s counsel submitted that it was the policy of the Australian Government to enter into these international arrangements and to seek to remove people who are in the same cohort of Bridging Visa holders as the Applicant.
Leaving aside the question of the lawfulness of such arrangements, (now before the Courts), I accept that the current Minister has made public comments which are consistent with this submission.
The Applicant’s counsel went so far as to submit that if the Applicant did not get the Protection Visa, his removal was “likely”.
I do not accept this submission.
As things presently stand, it is much more likely that the Applicant will remain in the community on his Bridging Visa, at least for the foreseeable future, even if he is not granted the Protection Visa. There is presently no clear, lawful alternative.
Secondly, the Applicant says that he may be removed if “the Minister decides that a protection finding would no longer be made”.[135]
[135] Ibid [49].
There is no evidence before the Tribunal to suggest that there is any prospect of any current or future Minister making such a decision. If a Minister were to make such a decision in the future, it would presumably be based on new, relevant information, or a change in circumstances in Myanmar. It is a matter of uninformed speculation to consider such a possibility.
If the Applicant was to have his protection finding removed, presumably the basis for the Protection Visa would also be removed. Again, this is all a matter of uninformed speculation.
The Applicant says that he will be “hamstrung by his temporary status” if the visa is not granted.[136]
[136] Ibid [53].
To the extent that this submission seeks to compare the durability, certainty and security of the Applicant’s Bridging visa and the Protection visa, I accept that the latter would provide greater security, certainty and peace of mind. If the Applicant held the Protection Visa, he would not remain potentially liable to be removed to a third country, at some indeterminate time in the future, under Nauru type arrangements.
This Other Consideration (a) weighs in favour of revocation.
(b) 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.
The Applicant has the benefit of a protection finding and therefore there is no current prospect of him being involuntarily removed to Myanmar.
The Applicant is presently unlikely to be going anywhere, for the reasons set out above.
The Applicant says that if the Protection Visa is not granted, the Applicant may be liable to removal to Myanmar for the reasons set out in detail in the context of Other Consideration (a). He may then suffer persecution. Nevertheless, the Applicant says that this Other Consideration should be given neutral weight.[137]
[137] Ibid [55]-[57].
I agree. There is no presently foreseeable prospect of the Applicant being removed to any third country, let alone to a third country, that then sends him back to Myanmar.
This Other Consideration (b) is neutral.
(c) Impact on Australian business interests
Paragraph 9.3 of the Direction 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 was no evidence on this topic, so this Other Consideration is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs very heavily against revocation.
Primary consideration 2 weighs very heavily against revocation.
Primary consideration 3 weighs slightly in favour of revocation.
Primary consideration 4 weighs slightly in favour of revocation.
Primary consideration 5 weighs very heavily against revocation.
Other consideration (a) weighs in favour of revocation.
Other consideration (b) is neutral.
Other consideration (c) is neutral.[138]
[138] Find in the above paragraphs.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against women and family violence are viewed very seriously by the Australian Government and the Australian community.
It is necessary to weigh up all of the primary and other considerations.
This case is unusual in that the Tribunal’s decision in this matter will not change the Applicant’s capacity to remain in the community, at least for the immediately foreseeable future.
That situation could, however, change either for the better or the worse from the Applicant’s perspective, perhaps with little notice. Relevant factors may include, but are not limited to, changes in the Australian Government or the responsible Minster and decisions yet to be made by the courts. There is also the unknown attitude of as yet unspecified foreign sovereign governments, to any possible future request from the Australian Government, to issue a visa to the Applicant.
A refusal to grant the Protection Visa in this matter, would see the Applicant remaining in the community for the time being, albeit subject to the conditions of his Bridging visa. I accept that these conditions are more restrictive than the conditions that would apply if he held the Protection Visa. I also accept that the Bridging visa has a more temporary quality than the Protection Visa. I accept that the Bridging visa would result in greater uncertainty for the Applicant and his links in our community, than would the Protection Visa. This is discussed in some detail above.
The Applicant’s offending has been very serious. Even a small risk of any repetition of such conduct would in my view, be unacceptable. In this case I have assessed that risk as being at least moderate, for the reasons set out above. This assessment powerfully engages the Direction’s priority of protecting the Australian community. This is the highest priority of the Australian Government. I also note that the Direction states;
(9)“The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.”
In this case, for the reasons set out in detail above, Primary Considerations 1, 2 and 5 overwhelmingly outweigh Primary Considerations 3, 4 and the legal consequences of the decision.
In my view, the proper application of the Direction leads the Tribunal to a finding that there is not “another reason” pursuant to s501(1) to revoke the original decision.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding three hundred and twenty (320) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

.........................[SGND].................................
Associate

Dated: 05 March 2025

Date of hearing: 24, 25 and 28 February 2025

Advocate for the Applicant:

Jamie Blaker (Victoria Legal Aid)

Advocate for the Respondent:
David Brown (Australian Government Solicitor)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues and Contentions

2

Respondent

Statement of Facts, Issues and Contentions

3

Applicant

Applicant Response

4

Respondent

G-Documents

5

Applicant

Applicant’s Bundle

6

Applicant

Applicant’s Supplementary Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court

Court Date

Offence

Court Result

MELBOURNE COUNTY COURT (VIC)

09/09/2011

RAPE

5 YEARS IMPRISONMENT

MELBOURNE COUNTY COURT (VIC)

09/09/2011

INDECENT ASSAULT

14 MONTHS IMPRISONMENT

MELBOURNE COUNTY COURT (VIC)

09/09/2011

RECKLESSLY CAUSE INJURY

10 MONTHS IMPRISONMENT

MELBOURNE COUNTY COURT (VIC)

09/09/2011

CONTRAVENE FAMILY VIOLENCE INTERVENTION ORDER

6 MONTHS IMPRISONMENT

MELBOURNE
MAGISTRATES
COURT (VIC)

21/12/2010

CONTRAVENE FAMILY VIOLENCE INTERVENTION ORDER (2 CHARGES)

MAKE THREAT TO KILL (2 CHARGES)

INTENTIONALLY DESTROY PROPERTY

RECKLESSLY CAUSE INJURY

INTENTIONALLY DAMAGE PROPERTY

AGGREGRATE 180 DAYS IMPRISONMENT

MELBOURNE
MAGISTRATES
COURT (VIC)

21/12/2010

ASSAULT WITH WEAPON

AGGREGRATE 180 DAYS IMPRISONMENT

Date of hearing:	24, 25 and 28 February 2025
Advocate for the Applicant:	Jamie Blaker (Victoria Legal Aid)
Advocate for the Respondent:	David Brown (Australian Government Solicitor)

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions
2	Respondent	Statement of Facts, Issues and Contentions
3	Applicant	Applicant Response
4	Respondent	G-Documents
5	Applicant	Applicant’s Bundle
6	Applicant	Applicant’s Supplementary Bundle

Court	Court Date	Offence	Court Result
MELBOURNE COUNTY COURT (VIC)	09/09/2011	RAPE	5 YEARS IMPRISONMENT
MELBOURNE COUNTY COURT (VIC)	09/09/2011	INDECENT ASSAULT	14 MONTHS IMPRISONMENT
MELBOURNE COUNTY COURT (VIC)	09/09/2011	RECKLESSLY CAUSE INJURY	10 MONTHS IMPRISONMENT
MELBOURNE COUNTY COURT (VIC)	09/09/2011	CONTRAVENE FAMILY VIOLENCE INTERVENTION ORDER	6 MONTHS IMPRISONMENT
MELBOURNE MAGISTRATES COURT (VIC)	21/12/2010	CONTRAVENE FAMILY VIOLENCE INTERVENTION ORDER (2 CHARGES) MAKE THREAT TO KILL (2 CHARGES) INTENTIONALLY DESTROY PROPERTY RECKLESSLY CAUSE INJURY INTENTIONALLY DAMAGE PROPERTY	AGGREGRATE 180 DAYS IMPRISONMENT
MELBOURNE MAGISTRATES COURT (VIC)	21/12/2010	ASSAULT WITH WEAPON	AGGREGRATE 180 DAYS IMPRISONMENT