TVGC and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 848
•30 June 2025
TVGC and Minister for Immigration and Citizenship (Migration) [2025] ARTA 848 (30 June 2025)
Applicant/s: TVGC
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3089
Tribunal:Senior Member K Raif
Place:Sydney
Date:30 June 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 27 June 2025 at 10:01am
Catchwords
MIGRATION – mandatory cancellation of Protection (Class XA) visa under s 501 Migration Act 1958 – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – Ministerial Direction No. 110 – protection of the Australian community – family violence – violence against children – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 501
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
Introduction
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 9 April 2025 to refuse to grant a Protection (Class XA) visa to the Applicant.
The following summary of the Applicant’s personal and visa history is adapted from the Applicant’s written evidence. The Applicant was born in June 1986 and is a national of Iran. He travelled to Australia in 2003 holding a Child visa. As the Applicant was convicted of offences, his Child visa was cancelled under s. 501 in January 2021. In September 2023 the delegate decided not to revoke the mandatory cancellation. The Applicant sought review with the Tribunal and on 5 December 2023 the Tribunal (differently constituted) decided to revoke the cancellation of the Applicant’s Child visa. The Tribunal has been provided with a copy of that decision. In June 2024 the Minister decided to personally cancel the Child visa held by the Applicant.
In September 2024 the Applicant made an application for the Protection visa. That application was initially unsuccessful but in November 2024 the Tribunal (differently constituted) set aside the decision under review and found that the Applicant met s. 36(2)(a). The Tribunal has been provided with a copy of that decision. In January 2025 a decision was made that the Applicant meets s. 36A(1)(a) and s. 36(1C). That is, it was determined that the Applicant is a person in respect of whom Australia has protection obligations and that he is not a danger to the Australian community.
In February 2025 the Applicant was given a Notice of Intention to Consider Refusal (NOICR) of his visa under s. 501(1) of the Migration Act 1958 (Cth). The Applicant provided his response to the NOICR. In April 2025 the delegate decided to refuse to grant the Protection visa to the Applicant as the delegate determined that the Applicant did not pass the character test and exercised the discretion to refuse to grant the visa. The Applicant seeks review of the delegate’s decision.
The Applicant appeared before the Tribunal on 19 and 20 June 2025. The Tribunal also received oral evidence from the Applicant’s sister and pastor, as well as from Dr O’Rourke. The issues before the Tribunal are:
· whether the visa Applicant passes the character test as required by section 501 of the Act and, if not
· whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.
Legislative framework
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.
In June 2024 Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) came into effect. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 state that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out in clause 9 of Direction 110:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
Does the Applicant pass the character test?
The Applicant’s offending is set out in the delegate’s decision and various submissions. The Tribunal has also been provided with the Criminal Intelligence Commission Report dated 20 February 2025 which indicates that the Applicant had been convicted of the following offences:
25/05/22
Aggravated break and enter & commit serious indictable offence – weapon
Imprisonment 7 years and 9 months
06/12/18
· Supply prohibited drug > indictable quantity
· Robbery armed with offensive weapon
· Steal motor vehicle
· Drive motor vehicle while license suspended
Imprisonment 12 months
Imprisonment 5.5 years
Taken into a/c on form 1
s. 10 conviction
05/10/18
· Common assault
· Contravene prohibition / restriction in AVO (multiple counts)
Imprisonment 7 months
Imprisonment – various terms
08/12/16
Assault occasioning actual bodily harm
s. 9 bond, counselling
15/09/16
· Common assault
· Fail to appear in accordance with bail acknowledgement
· Contravene prohibition / restriction in AVO (multiple counts)
Imprisonment 7 months
s. 10A conviction
09/08/16
· Cth – fail to report company’s affairs to liquidator
· Company officer – fail to help liquidator
fines
24/04/15
· Destroy or damage property
· Common assault
· Stalk / intimidate intend fear physical etc harm
s. 9 bond 12 months
16/12/09
· Steal from the person (multiple offences)
s. 10 bond 2 years
Having regard to the above convictions, the Tribunal finds that in May 2022 the Applicant has been convicted of an offence and sentenced to a term of imprisonment exceeding 12 months. The Applicant concedes that he does not pass the character test. The Tribunal finds that the Applicant has a substantial criminal record as defined in s. 501(7)(c) and that he does not pass the character test.
Consideration of discretion
The Applicant concedes that he does not pass the character test and that his offending was very serious. The Applicant states that his last offending occurred nine years ago and that he has shown remorse and a genuine commitment to change. The Applicant refers to the strength, nature and duration of his ties in Australia, including the presence of his immediate family who are supportive of him. The Applicant states that he has spent the majority of his life in Australia, having travelled as a child. The Applicant refers to his close relationship with his niece, who is the only child in the immediate family. The Applicant refers to his immigration history and past Tribunal findings that had been favourable to him. The Applicant refers to the unfairness and the hardships of the BVR regime and submits that the issue is whether he can remain in Australia permanently or with the uncertainty of a bridging visa which would preclude him from forming family and other ties in Australia and impose hardship. The Applicant refers to his ongoing medical treatment and the support networks in Australia and the absence of such in any other country. The Applicant refers to evidence which, he claims, establishes that he has properly engaged in mental health treatment and had done so voluntarily.
The Respondent submits that the Applicant does not pass the character test and contends that the nature and seriousness of the Applicant’s offending weighs heavily against the visa grant and that any risk of reoffending is unacceptable. The Respondent submits that the protection of the community weighs in favour of the discretion to refuse the visa grant. The Respondent notes that the Applicant had committed family violence offending and this should also weigh in favour of visa refusal. The Respondent acknowledges that the Applicant’s immediate family are in Australia and support him and while this weighs in favour of visa grant, the Minister submits this factor should not outweigh other factors. With respect to the best interests of the child, the Respondent submits there is minimal evidence about the Applicant’s relationship with his minor niece and less weight should be given to this consideration. The Respondent submits that the expectations of the community are against visa grant. The Respondent notes that the Applicant cannot be removed to Iran and has been granted BVR and can remain in the community and while there may be restrictions on the bridging visa, this is a proportionate response to the risk posed by the Applicant. The Respondent submits there would not be an impediment to removal as the Applicant cannot be removed to Iran. The Respondent submits there is no evidence the Applicant’s removal would compromise the delivery of any service.
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
In considering the nature and seriousness of the Applicant’s conduct to date, the Tribunal has had regard to the circumstances of his offending as set out in the sentencing remarks, police fact sheets and other materials.
2022 offending
The Tribunal has considered the sentencing remarks of Judge Yehia made on 25 May 2022 in relation to the robbery while armed. Her Honour described the circumstances of the offending, as set out in the statement of agreed facts, as follows. The Applicant’s co-accused had been consuming drugs and were discussing how to get money to buy more drugs. They decided to commit a break and enter at what was thought to be a drug dealer’s house. They switched off the electricity at the house where the victim lived with her mother and daughters. The victim was woken up and saw three intruders in her house, one holding a firearm. One of the intruders with the firearm directed her to lie on the floor and demanded money. Two of the victim’s daughters were also present. The intruder pointed the firearm at the victim’s mother and demanded money, then struck her in the face with the butt of the firearm, causing a wound to the forehead and eyebrow and then struck her body. The intruder later pointed the firearm at the head of the child asking for money and the phone. The intruders later left the house with some money, phones and credit card. The victim later found a balaclava in her house and a DNA profile was obtained matching that of the Applicant.
Her Honour referred to the offending as being ‘very serious’ containing elements of being in company and being armed with a dangerous weapon, as well as a number of other aggravating factors, such as offence being committed in the home of the victim and in the presence of her children aged 4 and 9, the degree of deliberation, the use of violence. Her Honour was unable to make a positive finding as to which of the offenders held the firearm but noted that each participated in the joint criminal enterprise to break into the house and commit a robbery in company whilst armed and there was a substantial level of threatened and actual violence. His Honour found that the offence fell just above the middle range of objective seriousness but not the higher range.
Her Honour referred to the Applicant’s personal circumstances and past drug use which ceased in 2020. Her Honour noted that the Applicant has been diagnosed with severe depression and anxiety, and provisionally with PTSD but Her Honour was not persuaded that the Applicant’s mental health conditions were causally connected to the commission of the offence.
Her Honour rejected the submission made on behalf of the Applicant that having regard to his remorse, family support, insight and contrition, he has good prospects of rehabilitation, noting that the Applicant committed a very serious offence while subject to conditional liberty, which is an aggravating factor. Her Honour stated that she was ‘guarded’ about the Applicant’s prospects of rehabilitation while accepting that these would be enhanced if the Applicant remains abstinent upon release.
The Applicant states, in relation to that offence, that he believed the home belonged to a drug dealer but acknowledges that his belief does not dimmish or absolve him of the seriousness of the crime and impact on victims. The Applicant submits that the sentencing judge found that he was not the person who carried or used the firearm but he accepts he participated in the planning and the execution of the offence.
2015-16 offending
The Tribunal has had regard to the sentencing remarks of Judge English made in December 2018 in relation to the armed robbery offending. His Honour sets out the agreed facts as follows. In October 2016 the victim, who was 77 years old at the time, was at home on her own and saw the offender in her lounge room carrying a knife with an approximately 30 cm blade. The victim tried to get out of the house but the way was blocked by the offender. As the victim fell down, the offender grabbed her and pulled her towards him and placed the knife against the victim’s throat and demanded her car keys before walking to the garage. The victim ran away and called for help while the offender drove her car out of the garage. DNA swabs were taken from the victim and the car surfaces.
In relation to the drug offending, His Honour states that in November 2016 the police attended an address and while speaking to the occupants, the offender ran out and was chased by the police. As the offender was arrested and searched, he was found to be in possession of three small resealable bags containing a small quantity of heroin (totalling 10.24g), as well as $865. The police recorded that the Applicant appeared to be drug affected at the time.
His Honour set out the Applicant’s background stating that he was raised by his mother in a loving and supportive environment (which contradicts the Applicant’s own evidence). His Honour noted the expression of support from the Applicant’s father but stated that there was little confidence that the Applicant’s father would be able to support the Applicant and minimise the risk of relapse, noting that the father had taken contraband (tobacco) into the correctional centre, was not initially aware of the Applicant’s incarceration and was not fully cognisant of the extent of his offending. The Applicant’s evidence to the Tribunal is that he had begged his father to bring in the tobacco which his father did not want to do and as a result, his father had a two-year ban on seeing him. It is of some concern to the Tribunal that the Applicant’s father had agreed to do something against his will (as the Applicant suggests) to help his son. In the Tribunal’s view that does not suggest the father will have a strong ability to support the Applicant in curbing his offending in the future.
His Honour found the offence of armed robbery to be an objectively serious one and in this case, the offence involved the offender holding a large carving knife to the throat of an elderly woman in her own home late at night, the victim fell twice and injured herself as she was forced to comply with the offender’s demands. She suffers from nightmares and has become suicidal. His Honour found the drug offending to be below the mid-range, noting that some of the heroin in the Applicant’s possession was for his own use and there was no evidence that he was actively engaged in supplying.
His Honour stated that he was unable to find the Applicant genuinely remorseful and contrite, with the applicant blaming bad friends and ill-health of his mother for introduction to drugs and does not take full responsibility for his actions. The Applicant sought to minimise his criminality in respect of serious offending and blamed others for using the knife. He was on conditional liberty at the time. His Honour found the Applicant’s prospects for rehabilitation to be ‘extremely guarded’ given the misconduct charges and unwillingness to participate in extensive rehabilitation. His Honour was ‘not filled with confidence’ that the Applicant’s family would be of assistance in the rehabilitation process. His Honour found it ‘highly likely’ that the Applicant would reoffend unless he commits to the type of rehabilitation programs recommended by the psychologist.
In his submission to the Tribunal the Applicant confirmed that he broke into the victim’s home while attempting to flee from a drug dealer and because he feared for his own safety, which, the Applicant admits, does not absolve him from his violent conduct.
There are before the Tribunal media reports relating to the offending and the Applicant’s arrest.
There is before the Tribunal the police facts sheet in relation to the May 2016 offence of assault occasioning actual bodily harm. It is reported that in May 2016 the Applicant and the victim were drinking alcohol and the Applicant was consuming drugs. As the victim was leaving the premises, the Applicant punched the victim to his face. The victim fell backwards on the concrete driveway and the Applicant started to stomp on the victim’s head and back area up to nine times. The Applicant subsequently attended the police station and was arrested.
In his submission to the Tribunal the Applicant states, in relation to the 2016 offending, that he was homeless and breached the AVO conditions by returning to his girlfriend’s home.
The Tribunal has considered the NSW Police facts sheet in relation to the March 2015 offending of destroy / damage property, common assault and stalk / intimidate. The victim is identified as the Applicant’s father. It is stated that the father had lent the Applicant money for his business and was helping with deliveries. It is reported that the father told the Applicant that he no longer wanted to work for his business and the father commenced work directly for the Applicant’s employer. At around 1.30 on 1 March 2015 the victim was awoken by a banging on the door and the Applicant was outside screaming and swearing. The Applicant accused his father of ruining his business and punched the loungeroom window causing it to smash. The Applicant pushed his father around upper chest and said ‘I want to kill you’. Before leaving, the Applicant threatened his father.
Conduct while in detention
The Tribunal has been provided with incident reports relating to the Applicant’s conduct while in immigration detention. These show that in November 2024 a detainee alleged that the Applicant has made verbal threats to pour hot water on his legs. The Applicant reported that it was a ‘misunderstanding’ and that he was talking about his own experience and the Applicant denied making threats. The detainee declined police investigation.
In his written submission to the Tribunal the Applicant concedes that his offending involved violent and serious behaviour and was ‘extremely serious’. However, the Applicant states that he has made meaningful changes to his conduct, has proactively engaged in rehabilitation and demonstrated commitment to change, he has expressed genuine remorse and has dedicated to abstaining from drug use and avoiding the risk of recidivism. The Applicant states that various reports support his integration into the community. The Applicant refers to the evidence he has given to the previous Tribunal. The Applicant told the Tribunal in oral evidence that he had relapsed into drug use twice while in prison and the last time he used drugs was in 2019 and he had never used drugs at home or in front of his family. The Applicant told the Tribunal that on occasions after he was released into the community, he met his old friends but did not get involved with them.
The Respondent submits that the nature and seriousness of the offending weighs against the visa grant. The Respondent refers to the comments of Judge Yehia and Judge English. The Respondent states that the offences were violent offences, the victims included females and minor children and vulnerable members of the community (an elderly woman). The Respondent notes that imposition of a custodial term must be viewed as a reflection of the objective seriousness and the Applicant’s sentences are indicative of the seriousness of the offences. The Respondent notes that the Applicant has also been convicted of drug offences and driving a motor vehicle with suspended license. The Respondent claims that there is a ‘discernible pattern’ to the frequency and increasing seriousness of the offending and the level of seriousness is high.
The Tribunal finds the Applicant’s offending involved actual violence or threats of violence towards members of the community including women and children. The Tribunal finds that the Applicant had committed offending against vulnerable members of the community which caused, or had the potential of causing, physical or psychological harm to others. The evidence indicates that the elderly victim of the home invasion had become suicidal. The Tribunal finds that the Applicant’s offending had been extremely serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. The Direction provides that some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The nature of harm, should the Applicant reoffend
The Applicant had committed several violent offences. He has multiple convictions for assaults and the ‘break and enter’ offending involved violence or threats of violence against vulnerable members of the community. The evidence before the Tribunal is that the elderly victim of the break and enter has suffered psychological trauma as a result of the Applicant’s offending. The Tribunal finds that the harm that may be caused to others, should the Applicant commit similar offences, could be significant, including the high potential of serious physical and / or psychological injury to the victims.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has considered information and evidence on the risk of the Applicant re-offending and evidence of rehabilitation achieved by the Applicant.
The Respondent submits that the nature of the Applicant’s offences and harm that would be caused by repeated offending is so serious that any risk of reoffending is unacceptable. The Applicant submits that he has integrated into the community, has the support of his family and others and is receiving meaningful treatment. The Applicant notes that he has expressed insight and genuine remorse and has been drug-free. The Applicant told the Tribunal that in the past, he never used drugs in front of his family and his drug use was ‘a secret’ as his family were not familiar with drug issues and could not help him but now he has shared with his family and they are better equipped to support him. (The Respondent queried that assertion, noting the evidence of the Applicant’s sister that she was only aware of one offence. The Respondent submits that this indicates the Applicant’s propensity for untruthful claims.) The Applicant states that he has worked hard to become a better person and he is a different person now.
The Tribunal acknowledges the various letters of support, including those from the Applicant’s immediate family, from the Applicant’s pastor and employer and the Tribunal accepts that the Applicant’s family members and others are willing to support him and believe the Applicant to have rehabilitated.
The Respondent notes that:
- Yehia J referred to the sentencing report which assessed the risk of reoffending as medium to high and that was also the risk assessment in respect of the 2018 conviction.
- the protective factors (such as family presence) did not deter the Applicant from past offending.
- the Applicant’s father was responsible for bringing contraband into the correctional centre and claims he was not aware for a month of his son’s incarceration.
- The Applicant was found in possession of drugs and failed drug tests whilst incarcerated despite his claims that he had not consumed drugs while incarcerated.
- The Applicant had previously demonstrated little insight and deflected from accepting responsibility for his offending. The sentencing judge found he was not genuinely remorseful and contrite and attempted to withdraw his plea.
- The Applicant previously offended while on conditional bail.
- In 2018 and 2022 the sentencing judges were guarded about the Applicant’s prospects of rehabilitation and in 2018 it was noted that the Applicant lacked motivation to enter residential rehabilitation and used drugs in custody, casting doubt on his willingness to abstain from drugs.
With respect to the Applicant’s claims of rehabilitation, the Respondent submits there is no evidence that the Applicant continues to adhere to buprenorphine treatment plan since being released into the community or that he continues to engage with mental health / psychological supports. The Respondent notes that evidence indicates the Applicant requires various interventions and there is no evidence that the Applicant has undertaken any of these steps since his release into the community. The Respondent submits that immigration detention notes indicate the Applicant had denied previous drug use. The Respondent notes that while the Applicant claims he has disassociated from anti-social peers, he provided evidence that he had been in the presence of individuals who had offered him illicit substances in the community.
Applicant’s written and oral submissions
In his submission to the delegate dated 25 December 2024 the Applicant states that there had been no offences or incidents since his release into the community in December 2023 and before the cancellation of his visa in June 2024. The Applicant states that the Tribunal had previously decided to revoke the cancellation of his Child visa and also determined that he was not a danger to the community for the purpose of the protection visa assessment (although the Tribunal notes that the latter assessment is substantially different to what the present Tribunal needs to consider).
The Applicant refers to his past drug addiction and states that he has been on buprenorphine treatment plan since 2020 receiving monthly injections during imprisonment, detention and in the community. He states that during the period of his living in the community between December 2023 and July 2024 there had been no offending and he had complied with parole conditions. The Applicant refers to his counselling and psychiatric treatment (addressed more fully below). The Applicant states that medical records show that his drug addiction played a significant role in his offending and he is now receiving treatment for PTSD. The Applicant states that he has maintained his remorse, drug abstinence and demonstrated commitment to rehabilitation. The Applicant refers to his medical condition and states that he presents minimal, if any, risk of reoffending. The Applicant also refers to his family support.
The Applicant included the submission he made in support of his protection visa application in which he outlined the reasons he cannot return to Iran. In his declaration sworn on 8 November 2023 the Applicant refers to his anxiety and trauma and abuse he had suffered in Iran. The Applicant states that he started using drugs in his 20s and becoming ‘hooked’ on ICE after 2013 and starting heroin in 2016. The Applicant states that drug use was his way to cope and he states that his addiction to heroin led him to commit the serious offences and alter his behaviour. (The Tribunal is mindful that the Applicant had been convicted of some offences prior to 2016 when he claims he started using Ice so that the Tribunal is not satisfied the offending can be attributable to Ice addiction.) The Applicant states that he is ashamed of his behaviour and is sorry to his victims. He states that he should not have taken drugs. (In his communication of 10 July 2023 the Applicant also refers to his regret and remorse and the rehabilitative course he has engaged in).
The Applicant admits to using illicit drugs in jail on two occasion, the last time being in 2019. He states that since that time, he decided to change his life and participated in EQUIPS program, and other vocational courses, which motivated him to change. The Applicant states that he continues to be drug free and has engaged with a psychiatrist Dr O’Rourke for treatment of PTSD. In June 2023 he started sessions with STARRTS and he completed several courses while in detention which help him reflect and think about his past behaviour. The Applicant referred to his relapse prevention plan, which includes distancing himself from people who take and sell drugs, getting support from the family, accessing the family GP and getting referral to Drug and Alcohol service and a psychiatrist. The Applicant states that he will engage with Odyssey House for drug and alcohol service if released from detention. He will continue the STARTTS treatment and will seek treatment with a psychiatrist for PTSD. The Applicant presented to the delegate evidence of having completed various courses. There is before the Tribunal a copy of communication from Odyssey House dated April 2025 confirming the offer of a placement in the AOD recovery group from May 2025 and evidence of the Applicant’s engagement in that program.
In oral evidence the Applicant also stated that his last drug use was in 2019 and since that time he had participated in multiple programs and sought treatment for mental health and drug use. The Applicant claims he now understands the effect of drugs and is involved in counselling. He states that he feels sorry to his victims and no longer has contact with people who use drugs. The Applicant refers to having a good relationship with his family and their support and he states that he wants to support his father and sister. He also wants to study and become a drug and alcohol counsellor.
In his written submissions to the Tribunal the Applicant states that he has engaged in meaningful medical treatment, including Bupe therapy, he is prescribed medication for PTSD and has ongoing counselling. He states that he has expressed insight and genuine remorse and had written a personal letter to each of his victims. The Applicant states that he fully accepts that his past drug use does not excuse or absolve his behaviour and he has taken responsibility for his actions and engaged in rehabilitation. The Applicant refers to treatment offered by Dr O’Rourke and states that Dr O’Rourke’s evidence concerning the risk of recidivism should be given significant weight. The Applicant told the Tribunal that he has been in Bupe therapy since 2020 and has continued since his release from detention.
In his declaration dated 16 June 2025 the Applicant also expressed remorse for his past offending and his engagement in rehabilitation programs, treatment with Dr O’Rourke, AOD group participation and the ongoing buprenorphine treatment.
There is before the Tribunal a statement from Odyssey House dated 19 December 2024. It confirms that the Applicant had successfully completed a non-residential treatment program comprising 6 online sessions on relapse prevention group counselling.
There is before the Tribunal a statement from Dr O’Rourke dated 4 November 2024. It refers to four previous reviews completed between March and July 2024 which confirmed that the Applicant is adhering to parole condition, abstaining from illicit substances, attends drug counselling sessions and maintains employment. It is stated that he has established a supportive social network and receives support from his family. It is stated that the Applicant’s care includes psychological therapy with a counsellor, medical and mental health reviews. It is stated that the Applicant reported PTSD symptoms have been exacerbated by his detention and he is supported by church community. The Tribunal has also been provided with Dr O’Rourke’s treatment summary notes during the Applicant’s detention (the IHMS records) and the Justice Health notes which outline the treatment provided to the Applicant.
Dr O’Rourke provided a further report to the Tribunal in June 2025. He refers to the diagnosis of complex PTSD, adjustment disorder with depressed anxious mood, opiate dependence (on substitution therapy) and ulcerative colitis. Dr O’Rourke confirms that the Applicant requires ongoing treatment such as psychiatric review and psychological therapies, which are available in the community, and states that, if untreated, the Applicant’s symptoms would be exacerbated, limiting his capacity to sustain relationships and employment. Dr O’Rourke has expressed the view that a Bridging visa would contribute to increased anxiety which would trigger chronic symptoms of PTSD. With respect to the risk of recidivism, Dr O’Rourke has assessed that risk as being low, based on the Applicant complying with parole conditions with no concerns, abstinence from illicit substances, absence of reoffending and anti-social behaviour and other factors such as employment and involvement with the church. Dr O’Rourke refers to the Applicant’s expressions of remorse and improvement in his PTSD symptoms. Dr O’Rourke offers treatment recommendations.
In oral evidence Dr O’Rourke confirmed he has treated the Applicant since June 2022 and he states he found the Applicant to be honest and truthful about his past experience. Dr O’Rourke refers to the number of drug and alcohol prevention courses completed by the Applicant and his desire to improve himself. Dr O’Rourke outlined the treatment received by the Applicant and the skills he had gained and confirmed that his assessment of the risk of reoffending was low. Dr O’Rourke confirmed that the Applicant remaining in a BVR would exacerbate his mental health condition such as anxiety and PTSD. Dr O’Rourke referred to the desirability of ongoing treatment until the Applicant has sufficient skills and stated that there is nothing to suggest the Applicant’s unwillingness to engage in ongoing treatment.
The Applicant has presented a psychological assessment by STARTTS counsellor Ms Fernandes. It refers to the Applicant self-reporting sexual abuse in childhood and his other experiences and the report state that the Applicant is likely to benefit from supportive counselling. Ms Fernandes states that the Applicant reported and presented with symptoms of depression, PTSD and anxiety with exacerbation of symptoms compared to June 2023 assessment. There is also a report from a STARTTS counsellor Ms Momartin prepared in July 2023 which recommends ongoing counselling and psychological treatment.
The Tribunal has had regard to statements by Diana Curuenavuli dated 13 November 2024 and 16 September 2023, which refer to the Applicant participating in the Number 8 Prison Project. It is stated that the Applicant has participated in faith and self-reflection sessions and demonstrated commitment to personal growth and change. The writer states that the program will equip the Applicant with essential life skills and his active participation in the project is a testament to his commitment to rehabilitation. The Tribunal accepts that Ms Curuenavuli may genuinely hold these views.
There is before the Tribunal a statement from NSW Health South Western Sydney LHD confirming that the Applicant has been attending Liverpool Opioid treatment clinic and evidence of the Applicant’s engagement with other health professionals. The Applicant told the Tribunal he attends the clinic monthly and is also seeing a psychologist.
There are before the Tribunal several letters of support. There is a statement from Rev. Hanger dated 16 September 2024 who refers to the Applicant becoming a committed Christian. (Ms Fernandes in her report refers to the Applicant being Muslim.) In oral evidence Rev. Hanger spoke about baptising the Applicant and maintaining contact with him during his imprisonment and since release. Rev Hangar stated that they have explored the Applicant’s attendance at church but it was not possible due to his visa conditions.
There are statements of support from the Applicant’s step-mother Ms SM and his uncle. There is a letter of support from Mr Dzambic and letters of support from the Applicant’s father, Mr MK who states that the Applicant is rehabilitated, remorseful and a law-abiding person who is no longer a risk to the Australian community. Mr MK outlines the Applicant’s circumstances and the reason he cannot return to Iran. Mr MK refers to his own health issues. He refers to the Applicant’s relapse plan and requests a ‘second chance’ for his son. The Applicant’s sister Ms SaK provided a written statement in support of the Applicant and expressed her belief that the Applicant has rehabilitated.
The Applicant’s sister Ms SK provided a declaration supporting the grant of the protection visa to the Applicant and, with respect to the offending, Ms SK states that the Applicant is remorseful and regrets his past actions, he is rehabilitated and is no longer a risk to the community. In oral evidence Ms SK has expressed the view that her father is not at risk from the Applicant. She stated that she did not know about the Applicant’s drug use prior to his imprisonment. Ms SK also referred to the hardship relating to the Applicant being a BVR holder. When asked about the extent of the Applicant’s criminal offending, she recalled one of the offences but was not familiar with the other offences. Ms SK states that the Applicant is remorseful and regrets his past actions, has a relapse prevention plan and she believes he is now a different person. She also stated that she believes the family are better equipped to identify manage the Applicant’s problematic behaviour (although it is not entirely clear to the Tribunal how that could be done).
The Applicant submits in a written statement that his parents have offered him accommodation and he intends to work as a truck driver and will explore other employment options. His oral evidence to the Tribunal is that he cannot work as a truck driver because of the visa restrictions and he is looking for other employment. The Applicant states that his father is unwell and he wants to support his father but he told the Tribunal he lives in shared accommodation as he cannot live with his family due to the visa restrictions. The Applicant states that he is no longer a risk to the community and with family support he will be able to achieve his goals. He states that he intends to comply with parole conditions. The Applicant refers to having a loving and supportive network in Australia.
Tribunal’s assessment of rehabilitation and the risk of reoffending
The Tribunal accepts that the Applicant’s present circumstances are significantly different to those that existed at the time of the offending. In particular, the Tribunal accepts that the Applicant has engaged in counselling and rehabilitation programs, that he is actively pursuing counselling with a variety of services and that he has developed a plan to remove himself from the circumstances which he claims had led to past offending. He claims to be drug free since 2019 and has expressed his intention to remain drug free. Significantly, the Applicant also refers to monthly buprenorphine injections and ongoing counselling. The Tribunal accepts that in the Applicant’s present circumstances, the risk of reoffending has been greatly reduced.
The Tribunal acknowledges that earlier assessments identified the risk of reoffending as being above low. As noted above, the Tribunal accepts that the Applicant’s present circumstances have changed and the Tribunal also acknowledges the assessment by Dr O’Rourke indicating the risk of reoffending being low.
Having regard to all the circumstances, the Tribunal finds that the risk of reoffending is low in the Applicant’s present circumstances, although it is likely to increase if he were to resume the drug use. However, the Tribunal has also formed the view that there may be significant harm to the community if the Applicant were to reoffend. In the Tribunal’s view, the harm that would be caused if the Applicant were to reoffend is so serious that any risk that it may be repeated is unacceptable. The Tribunal finds that this consideration weighs very strongly in favour of exercising discretion to refuse to grant the visa.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of family violence offending, including breaches of the AVOs. The Respondent notes that the Applicant had received convictions for common assault and ‘contravene prohibition / restriction in AVO’, which were for offences against his father. The Respondent submits this consideration weighs strongly against visa grant.
In his written submission to the Tribunal the Applicant concedes that his conduct falls within the definition of family violence but states that he has demonstrated genuine remorse and insight into the impact of his offending and has taken active steps towards rehabilitation including addressing his drug addiction and completion of programs in prison and detention. The Applicant states that his father, who is one of the victims, has forgiven him. The Applicant states that he is ‘deeply sorry and ashamed for his conduct’ and accepts responsibility.
The Tribunal finds that the Applicant had committed family violence offences. This is, and is considered to be, serious offending. The Tribunal finds that this consideration weighs heavily against visa grant.
The strength, nature, and duration of ties to Australia
Paragraph 8.3.1 of the Direction provides:
Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Subparagraph (2) directs the decision-maker to consider the strength, nature and duration of any ties that the non-citizen has to the Australian community and to have regard to the length of the person’s residence in Australia and the strength, duration and nature of any family or social links with Australian citizens or permanent residents.
The Applicant has been living in Australia since 2003, for a period exceeding 22 years. He travelled to Australia as a minor, around the age of 17, and did not begin offending soon after arriving in Australia. In his submission to the Tribunal the Applicant states that he has lived in Australia for majority of his life, has spent his formative years here, and has never travelled outside of Australia. There is evidence of the Applicant’s past employment and the Tribunal accepts that he has made some contribution to the Australian community through employment and payment of taxes.
The Applicant’s immediate family, including his father, step-mother, two sisters, niece and extended family, all live in Australia and are Australian citizens or permanent residents. In his submission to the delegate the Applicant states that he does not have a good or meaningful relationship with his mother and he does not trust her because of his past abuse in the hands of her brothers.
The Applicant states that he has a good and meaningful relationship with his immediate and extended family in Australia. The Applicant’s father, step-mother, two sisters and his uncle provided several written statements concerning their close relationship with the Applicant. The Applicant’s father refers to his own health issues and the support that he needs and in his declaration the Applicant states that his father requires surgery and that his father is worried about him. The Applicant told the Tribunal that he wants to support his father and take him to appointments but he cannot do it because of his BVR conditions.
The Tribunal accepts that the Applicant has strong family ties to Australia. The Tribunal also accepts that if the Applicant was to be removed from Australia (which is a speculative assessment), there may be an adverse impact on the Applicant’s family in Australia. The Tribunal accepts that if the Applicant remains on a BVR, the conditions of that visa prevent the Applicant’s contact with his father so that a decision not to grant the Applicant a substantive visa may adversely affect the father and the Applicant’s capacity to support his father.
The Applicant also refers to his employment ties in Australia, stating that he was previously engaged in employment and is offered ongoing work as a truck driver. The Applicant states that his present work opportunities are limited due to visa conditions. The Applicant refers to his involvement with the church and the support he receives from the pastor.
The Tribunal accepts that the Applicant has significant family, community, social, employment and other ties in Australia. The Tribunal accepts that the Applicant’s family and others may be adversely affected if the Applicant was to depart Australia (noting that this is not an immediate consequence of the decision to refuse to grant him the visa). The Tribunal has also accepted that there may be an adverse effect on others, in particular the Applicant’s father and niece, if the Applicant remains in Australia on a BVR. The Tribunal finds that this consideration weighs significantly in favour of visa grant.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.5(4) sets out the factors that must be considered when considering the best interests of the child. These include
(a)The nature and duration of the relationship between the child and the non-citizen
(b)The extent to which the non-citizen is likely to play a positive parental role in the future
(c)The impact of the non-citizen’s prior conduct, and likely to future conduct
(d)The likely effect that any separation from the non-citizen would have on the child
(e)Whether any other person already fulfils a parental role
(f)Any known views of the child
(g)Evidence that the child has been, or is at risk of being subject to or exposed to family violence
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
The Applicant does not have children of his own. In his submission to the delegate the Applicant refers to his close relationship with his niece E. The Applicant states that he missed out on E’s childhood due to his imprisonment and wants to have a ‘proper uncle and niece relationship’. The Applicant states that he speaks to E often and they have a close bond. The Applicant’s sister Ms SaK provided a statement in which she refers to regular contact between her daughter and the Applicant and the close bond between them. Ms SaK states that if the Applicant was to be removed from her daughter’s life, it would affect her ‘drastically’ as E has experienced her parents’ divorce and the Applicant has tried to fill the ‘fatherly figure’ role. The Applicant submits that, contrary to the Respondent’s claims, this factor should be given significant weight.
There is no evidence that E has suffered or experienced physical or emotional trauma arising from the Applicant’s conduct. There is no evidence that E has been, or is at risk of being subjected to or exposed to family violence perpetrated by the Applicant. There is no evidence concerning the impact of the Applicant’s prior to conduct on the child. The Applicant’s evidence to the Tribunal is that there were no incidents involving his niece and there is no reason for her to be scared of him. The views of the child are not known to the Tribunal.
The Respondent submits that there is no evidence in relation to the Applicant’s relationship with his niece and no evidence of any parental role he plays in relation to that child. The Respondent submits this consideration should be given less weight.
There is no suggestion that the Applicant has, or that he has ever had any parental role in the relation to the child. The Tribunal acknowledges the written statement of Ms SaK who states that the Applicant has a ‘father figure’ role for the child but the applicant’s own evidence is that he had “missed out on E’s childhood” due to his imprisonment. The Tribunal gives Ms SaK’s evidence limited weight in the circumstances where the Applicant had spent considerable period of time in detention and his contact with the child during that period would have been limited. The Tribunal also acknowledges the Applicant’s evidence that the conditions of his BVR do not allow contact with any children.
In terms of the Applicant’s positive parental role, the Applicant refers to having conversations with E and his desire to be present in her life. The Tribunal is prepared to accept that if the Applicant abstains from the use of illicit substances and does not reoffend, he may play a positive role for his niece. The Tribunal accepts that the Applicant may not be able to do that if he remains on a BVR which precludes his contact with children. There is no suggestion that the Applicant will play a parental role. As for the duration of the relationship between the child and the Applicant, the Tribunal notes that the Applicant has been in prison or immigration detention for the majority of E’s life.
The Tribunal is prepared to accept that the Applicant has a relationship with his niece. The Tribunal accepts that the relationship exists and also that the Applicant may wish to have a closer and ongoing relationship with his niece. The Tribunal is prepared to accept that it is in the best interest of E to maintain a relationship with the Applicant. However, noting the fact that E lives with her mother and that the Applicant has never had any parental responsibility in relation to E, the Tribunal gives this consideration limited weight in favour of visa grant.
Expectations of the Australian community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[1] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[2]
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail v MICMA,[3] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
The Applicant submits that, given his entry to Australia as a minor and the substantial length of his residence in Australia, he should be granted a higher level of tolerance. The Applicant states that this factor should weigh in his favour. The Tribunal does not accept the Applicant’s argument. The Direction and case law suggest that the Government expects visa holders to abide by the Australian laws and that the community would expect those who commit offences would not, as a norm, be allowed to remain in Australia. That is, this factor would generally weigh in favour of discretion to refuse to grant the visa.
Insofar as the Applicant submits that this factor should be given limited weight, given his particular circumstances and the length of his residence in Australia, the Tribunal is of the view that the community expectations would consider not only the length of the visa holder’s stay in Australia but also the nature of the offending.
In the Applicant’s particular circumstances, the Tribunal has formed the view that, given the seriousness of the Applicant’s conduct and the potential harm to the community of any repeat of such conduct, the community expectations weigh very heavily in favour of exercising the discretion to refuse the grant of the visa.
The Tribunal will now turn to the other considerations listed in section 9 of the Direction.
Legal consequence of the decision
The legislative provisions relevant to this case have been considered by the Tribunal elsewhere and are adopted here from earlier decisions.
Paragraph 9.1.1(2) of the Direction directs a decision-maker to take into account the following:
Section I97C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
In his submission to the delegate and declaration of 29 August 2024 and other evidence, the Applicant outlined the reasons he cannot return to Iran. The Tribunal acknowledges that evidence. It is not in dispute in this case that the Applicant is subject of a protection finding and such a finding implies that Australia owes protection obligations to the Applicant. That means that the Applicant cannot be removed to his home country.
If the Applicant is not granted a visa, he may be an unlawful non-citizen and he may be detained and such detention would be subject to the principles set out in NZYQ[4]. As such, the Applicant is unlikely to face indefinite detention. Evidence before the Tribunal indicates that the Applicant has been granted a BVR since his application was refused in April 2025. The Applicant states that he is subject to strict visa conditions and is fully compliant with those and he provided to the Tribunal a submission made to the Minister for variation of visa conditions. He outlined to the Tribunal the conditions of his BVR (which include a monitoring device and limitations on being with minors, curfew, limitations on his contact with victims including his father and other limitations). The Applicant states that he has been compliant. The Applicant states that he remains on parole until February 2026 and that includes regular monitoring for drugs (the Applicant told the Tribunal that drug testing occurs through the Bupe program rather than as part of parole) and home visits by parole officers. The Applicant states that he submitted a request to vary the conditions of the BVR as these conflicted with parole conditions and that request is under review. The applicant claims that as a result of the BVR conditions, he cannot attend church because most churches are located near a school and there would be children present. The Applicant states that due to his visa conditions he cannot spend time with his niece he cannot support his father and he cannot work as a truck driver as he cannot make deliveries near kids’ facilities. The Respondent accepts that some of the conditions imposed on the BVR may impose substantial restrictions on the Applicant’s daily life but submits this is a proportionate response to the risk to the community presented by BVR holders.
If the Applicant is not granted a substantive visa, he is likely to remain a holder of BVR unless there is a removal pathway available. This is set out in the Migration Amendment Act (Cth) 2024 and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 which provide that a BVR may cease to be in effect once a mandatory notice is given to a visa holder by the Minister that s 76AAA applies to the visa holder. This may occur where permission is granted by a third country for the BVR holder to enter and remain in that country. The Applicant would be required to cooperate with efforts to ensure his prompt and lawful removal and may face a mandatory sentence of imprisonment if he does not cooperate with the Minister’s direction or if there is otherwise a breach of visa conditions.
The Applicant submits that as a BVR holder, there are substantial restrictions on his daily life and these impair his ability to maintain meaningful family and community connections and create ongoing uncertainty and instability for him and his immediate family. Generally, the Tribunal accepts that the need to comply with visa conditions – some of which are restrictive and particularly so in the Applicant’s circumstances – and the uncertainty about the future, including the prospect of future detention and removal, are matters that may cause significant hardship to the Applicant and his family. The Tribunal also accepts the evidence of Dr O’Rourke that ongoing stay on a BVR may exacerbate the Applicant’s mental health condition.
The Tribunal also accepts that if the Applicant’s visa is refused, he will not have the possibility of seeking other Australian visas in the future.
The Tribunal finds that this consideration weighs in favour of the visa grant and gives it considerable weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are any substantial language or cultural barriers; and
c) any social, medical and/or economic support available to that non-citizen in that country.
The Applicant claims he cannot return to Iran for a number of reasons outlined in his various submissions. As the Applicant is the subject of a protection finding, he may not (and will not) be removed to his home country. That is, irrespective of the present decision, there is no prospect of the Applicant being removed to his home country unless he consents to such removal. The issues relating to the possibility of the Applicant being removed to another country are addressed elsewhere.
The Tribunal finds that this consideration is neutral.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
In his submission to the Tribunal the Applicant refers to his past employment and the offer of future employment. The Applicant states that he has demonstrated work ethic, reliability and a willingness to contribute positively to Australian society. The Applicant refers to the shortage of truck drivers in Australia impacting businesses and he states that his employment addresses such labour shortage. The Applicant states that if he holds a BVR, this would have a negative impact on the Australian employer and a key economic sector and this weighs against the visa refusal. There is before the Tribunal a statement from Mr Dzambic, the Applicant’s previous employer. The Applicant’s evidence to the Tribunal is that he presently does not work due to visa restrictions.
The Tribunal does not accept the Applicant’s argument regarding the shortage of truck drivers and his capacity to address labour shortages and considers it speculative. Firstly, while the Applicant has expressed a desire to work in a particular industry, and may have an offer of employment, the Applicant is not bound by any undertaking and may choose to work in this or any other field. Secondly, there is a possibility that the Applicant will be able to continue employment as a truck driver if he holds a BVR, although he may be limited in the routes that he may undertake to ensure his compliance with the visa restrictions. Thirdly, there is no evidence to satisfy the Tribunal that the Applicant’s inability to work as a truck driver would significantly compromise the delivery of a major project or of an important service in Australia. The Applicant’s evidence to the Tribunal is that he has not been working as a truck driver and there is no evidence that the industry has suffered as a result.
The Tribunal has assessed this consideration as being neutral.
Other Matters
As noted above in relation to the impediment of removal the Applicant outlined several reasons why he cannot return to Iran. The Tribunal finds that, due to the protection finding, there is no prospect of the Applicant being removed to Iran, unless he decides to return voluntarily. However, the Tribunal has considered the consequences of the Applicant being removed to another country.
The Applicant refers to his medical condition, stating he was diagnosed with Crohn’s disease around 2009 and had a colectomy in July 2024. His current evidence is that he is due to undergo two more operations and he is treated with a number of medications. The Applicant provided to the delegate and the Tribunal medical reports and hospital records relating to his condition and recent hospitalisation. The Tribunal accepts the Applicant’s evidence although the Tribunal is mindful that the Applicant will have access to Medicare and the required treatment as a BVR holder.
The Applicant submits that his condition is a longstanding and ongoing issue and it is ‘neither logical nor reasonable’ to require someone with such a medical condition to remain on a temporary visa that offers no stability, certainly or long-term prospects. However, there is no medical or otherwise probative evidence to indicate that holding a visa such as the BVR has exacerbated the Applicant’s medical condition (as opposed to mental health). There is no evidence that the future uncertainty, lack of stability etc would have an adverse effect on the Applicant’s medical condition. The Tribunal is mindful that as a holder of a BVR the Applicant has access to medical treatment and the Applicant’s evidence indicates that he has had access to health professionals and has made plans for ongoing treatment while not being a holder of a substantive visa. In these circumstances, there is nothing illogical or unreasonable, in the Tribunal’s view, about the Applicant maintaining access to appropriate treatment as a holder of a bridging visa, rather than a substantive visa.
The Applicant states that he suffers from PTSD and is receiving treatment from a psychiatrist. The Tribunal accepts that evidence. The Applicant states that around 2021 he started Buprenorphine injection program and receives injections monthly. He states that he will not receive similar medical treatment in Iran. However, as noted above, the Applicant would not be removed to Iran. There is no evidence before the Tribunal about the health system and the availability of treatment in any country where the Applicant may be removed and in the Tribunal’s view, any finding that the applicant may be removed is, at presently, entirely speculative.
The Applicant has expressed his remorse and states that he will be law-abiding, wants to marry and have a family. The Applicant states that the love and support of his family are important to him. The Applicant refers to his father’s ill-health and states that his father’s condition is exacerbated by his situation. The Applicant states that he wants to return home and support his father. The Tribunal accepts that evidence and accepts that this may not be possible if the Applicant holds a BVR, unless the conditions of that visa change.
The Applicant states that the delegate found that he is not a danger to the Australian community and it was determined that he met the requirements of s. 36(1C). The Applicant submits that this finding should be given considerable weight as it reflects a careful assessment by the delegate that he does not represent an ongoing risk to public safety. It is not entirely clear to the present Tribunal why this particular finding of the delegate should be given significant weight while the finding of the delegate that discretion should be exercised to refuse to grant the visa (which is the decision that is the subject of the present review) or the finding of another delegate in September 2023 should be given no weight. Further, as noted above, the Tribunal is of the view that the assessment that the Applicant meets s. 36(1C) is of limited (if any) application here where the Tribunal is tasked with considering a very different issue.
The Applicant submits that the Applicant needs medical care which will require him to hold a protection visa. This has been addressed above. Essentially, the Tribunal has formed the view that the Applicant will have access to Medicare if he holds a Bridging visa and there is no evidence to indicate that he will not have access to requisite healthcare unless he holds a substantive visa.
The Applicant claims that he will not have the family support that he requires, particularly in light of his medical condition. The Tribunal is mindful that the only limitation on family contact imposed by the bridging visa condition is in relation to the father and minor niece. The Applicant has unlimited and free access to all other family members and is able to receive support from these family members.
The Applicant submits that a bridging visa will have significant limitations and such visas are not designed to be used on long-term basis as he cannot plan his life or consider marriage or do anything else due to the uncertainty about his future. The policy and moral settings of the bridging visa regime are not considerations for this Tribunal. As noted above, the Tribunal accepts that the ongoing, and likely lengthy stay on the BVR, with its limitations and restrictions, may cause significant hardship to the Applicant and those around him. The Tribunal has given this consideration considerable weight in favour of visa grant.
For the reasons set out above, the Tribunal accepts that there may be considerable hardship to the Applicant and those close to him if the Applicant is not granted a substantive visa. Whether this is a legal consequence of the decision, or another consideration, the Tribunal accepts that these matters are relevant and, in the circumstances of this case, weigh considerably against the exercise of discretion to refuse the visa grant.
CONCLUSION
The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances.
The Tribunal has found that the Applicant’s offending had been very serious. It spanned over a lengthy period exceeding ten years and may be said to have been escalating in seriousness. The Applicant had committed violent offences against the vulnerable members of the community including the elderly and children. Importantly, while the Tribunal accepts that the risk of reoffending is now low, having regard to the Applicant’s present circumstances and in particular the degree of rehabilitation, protective factors and his personal circumstances, the Tribunal has decided that this is the case where the harm that may be caused by reoffending is such that any risk of reoffending is unacceptable. The Tribunal gives very strong weight to the protection of the community as a factor in favour of exercising the discretion to refuse the visa grant.
The Applicant has committed family violence offending and that also weighs against visa grant. The Tribunal considers that the expectations of the community weigh very strongly against the visa grant.
The Tribunal accepts that the best interests of a child weigh in favour of the visa grant but has decided to give this factor limited weight in circumstances where the Applicant does not have, and has never had a parental relationship in relation with the child. The Tribunal finds that the Applicant has strong ties to Australia and that the extent, nature and duration of his ties weighs heavily in favour of visa grant. The Tribunal finds that the Applicant’s family members may be adversely affected if the Applicant remains on the BVR and that also weighs in favour of the visa grant. The Tribunal accepts that the legal consequences may cause considerable hardship to the Applicant and others if he is not granted the substantive visa, particularly due to the restrictive BVR conditions and the uncertainty about the future, the limitations on his contact with family members, on employment and religious activities. These factors weigh heavily in favour of visa grant.
The Tribunal finds that considerations such as business interests are neutral.
In the circumstances of this case, the Tribunal has decided to give greatest weight to the primary considerations of the protection of the community and the expectation of the community. The Tribunal acknowledges the wording of Paragraph 7(2) of Direction 110 that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. The Tribunal has formed the view that there could be serious harm to the community if the Applicant were to engage in similar offending in the future and any possibility of such harm, no matter how low, is unacceptable. The Tribunal has formed the view that the expectations of the community do not support the visa grant.
Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should be exercised.
Date(s) of hearing: 19 and 20 June 2025 Solicitors for the Applicant: W. Milojkovic, Milojkovic Visa & Migration Legal Services Respondent: In person Solicitors for the Respondent: S. Frankel, Minter Ellison
[1] [2019] FCAFC 185 (‘FYBR’).
[2] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
[3] [2024] HCA 2 at [51]-[52].
[4] [2023] HCA 37.
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