VBBJ and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 263

VBBJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 263 (4 February 2025)
Applicant/s:  VBBJ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9235

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:04 February 2025
Date of written reasons: 20 February 2025

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for a Resolution of Status (Class CD) visa not be refused under section 501(1) of the Migration Act, 1958 (Cth).
Written reasons for this decision will be provided within a reasonable time of the date hereof.

.................................[sgnd]..................................
Senior Member N Manetta

Catchwords
MIGRATION – refusal of visa – applicant on Bridging visa pending removal – applicant at age of 21 committing sexual offence against minor with an intellectual disability – applicant’s age and disability not known to applicant – sexual act apparently consensual from applicant’s perspective and initiated by victim’s provocative behaviour – sentencing court refers to applicant’s arrested psychological development – applicant owed non-refoulement obligations – decision to refuse applicant a resolution of status visa set aside
Legislation
Criminal Law Consolidation Act, 1935 (SA)
Migration Act, 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 415 ALR 254; (2003) 97 ALJR 1005
Secondary Materials
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 (7 June 2024)
Statement of Reasons

The hearing of this matter concluded on 29 January 2025. On 4 February 2025, I delivered my decision and indicated that written reasons for the decision would be provided within a reasonable time. I now publish a statement of my written reasons.
This is an application by ‘VBBJ’, a person whose name has been anonymised in the interests of confidentiality and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of the decision of the respondent’s delegate to refuse to grant to him what is known as a ‘resolution of status’ visa. The visa was refused by the delegate under section 501(1) of the Migration Act, 1958 (Cth) (‘the Act’). The delegate relied on the applicant’s conviction in 2017 of unlawful sexual intercourse with a minor, amongst other offending.[1] I shall describe this offending in due course.
[1] The delegate’s reasons statement of reasons was before me at Hearing Book, (‘HB’), 23ff.
TRIBUNAL’S TASK
The delegate was obliged to answer two questions under s 501(1) of he Act. The first was whether the applicant passed the so-called ‘character test’ in s 501. If the answer to that question was no, the discretion to refuse the visa arose. In considering whether to exercise the discretion, the delegate was required to apply Direction no. 110[2] (‘the Direction’) issued under section 499 of the Act when deciding whether to grant or refuse the visa under s 501(1). The Tribunal must also address these questions as part of its review.
[2] 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 (7 June 2024).
So far as the first question is concerned, it was not disputed that the applicant has received a sentence of 12 months or more and that he fails the character test for this reason.[3] The disputed issue involved the second question, and in particular, the proper application of the Direction.
[3] See s 501(6)(a) and (7)(c) of the Act.
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[4] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it. Equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.[5]
[4] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal’s exercise of jurisdiction.
[5] Paragraph [5] is a standard paragraph I use in all my decisions in this area.
At the hearing before me, Mr Simmons appeared for the applicant; Mr Morris, for the respondent. I am grateful to them for their assistance.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a resolution of status visa not be refused under section 501(1) of the Act. I now set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The applicant was born in Myanmar in September 1995. He is of Rohingya ethnicity and is of the Muslim faith. As such, he belongs to a minority that is persecuted in Myanmar. He arrived in Australia aged approximately 17, by boat and without a visa. He was detained, as I understand matters, as an ‘unauthorised maritime arrival’ for approximately two years before being granted a protection visa. He has resided in Adelaide since the grant of the visa. He is currently owed non-refoulement obligations and cannot be returned involuntarily to Myanmar.[6]
[6] Section 197C(3) of the Act.
The applicant’s history in Adelaide is set out in a helpful table in the respondent’s Statement of Facts Issues and Contentions.[7] I summarise salient features of the applicant’s history as follows. The applicant had been living in the community in Adelaide on his temporary protection visa or for a period of some one-and-a-half years. On 3 September 2016, he was arrested and charged with unlawful sexual intercourse with a 15 year-old minor.
[7] HB, 684 [5].
The temporary protection visa then held by the applicant was cancelled as a result. When the applicant came to be sentenced on his guilty plea in the District Court in June 2017, he was released from jail having regard to the nine months he had already been incarcerated. He was immediately taken into immigration detention, however, as he no longer held a visa at that point. The applicant was granted a further temporary protection visa approximately one year and eight months after being taken into detention, and he was then released.
The applicant then lived in the community for a period of four years and nine months approximately (until November 2023) when he was taken into custody again following an allegation of indecent assault. The charges in question were withdrawn in the event and the applicant was released from jail in June 2024, but he was taken into immigration detention immediately again as his temporary protection visa had expired.
On 12 November 2024, approximately five months later, the applicant was granted a class WR Bridging R (subclass 070) visa because at that point the respondent accepted that the applicant did not enjoy a real prospect in the foreseeable future of being resettled safely in Myanmar or in another third country. He was released into the community. The applicant has been refused a resolution of status (Class CD) visa, for which he had applied in May 2024 while he was being detained in jail on the charges that were eventually withdrawn.
It is convenient at this point to describe the applicant’s criminal record, which was before me,[8] and to deal with certain alleged conduct. I deal first with the applicant’s criminal convictions. The first conviction concerns unlawful sexual intercourse with a minor. The sentencing remarks were before me, and I accept and rely upon them.[9]
[8] HB, 36-37.
[9] HB, 38-42.
The applicant pleaded guilty and was sentenced on 1 June 2017 in the District Court of SA in relation to events that had taken place on 3 September 2016, when the applicant was 21 years of age. The facts I am about to recite are taken from the sentencing remarks, and I accept them. The applicant had travelled to the Adelaide CBD,[10] where he first met the victim, who was sitting on a bench. She was a stranger to him but she initiated contact and introduced herself, and they continued to chat until he was about to leave. At that point, the victim told the applicant that she lived in the countryside and was unable to return home because the buses had stopped running. She told the applicant that she was stranded in town and asked to borrow some money to stay in a hotel overnight.
[10] In Hindley Street.
The applicant agreed to provide the money because he felt sorry for her and was concerned about her security. The victim led the applicant to a hotel in the city.[11] The victim asked the applicant to buy a pack of ‘vodka cruisers’ (a premixed alcoholic drink). The applicant and the victim then went to the hotel, and the applicant paid for the hotel room in advance but a security bond of $100 was taken. The applicant felt he had to stay overnight to make sure he recovered the bond.
[11] In Grenfell Street.
Once they were alone in the hotel room, the victim told the applicant that she felt hot and needed to have a shower. The applicant sat on the bed and began to watch television. He also drank a vodka cruiser. The victim took her shower and emerged from the bathroom semi-naked, only wearing her undergarments. The victim sat next to the applicant on the bed and started to kiss him. The applicant began to kiss the victim back. Sexual intercourse ensued. The Court said that this was the second time the applicant had engaged in sexual intercourse in his life (the first having occurred when housemates in Adelaide took him to a brothel).
The Court indicated that the applicant did not know that the victim suffered from an intellectual disability, that she was in State care, and that she was under the age of 17 (she was, in fact, only 15 at the time).
The applicant was convicted of an offence of having had unlawful sexual intercourse with the victim contrary to s 49 of the Criminal Law Consolidation Act, 1935 (SA). Under s 49, the fact that the applicant did not know his victim was not yet 17 was apparently irrelevant. A defence is only provided under section 49 for defendants who are themselves younger than 17 and who have sexual intercourse with a person who is at least 16 years of age.
The Court referred to a report from a psychologist, Dr Lim, dealing with the applicant’s mental health condition and symptoms. That report referred to the applicant’s post-traumatic stress disorder resulting from the extreme hardships that are referred to in the sentencing remarks and suffered by the applicant in Myanmar as a Rohingya Muslim. That report refers also to the sexual and social naïveté of the applicant and his lack of knowledge about Australian law and the concept of consent. It was noted that the applicant was ‘an uneducated, unskilled, and vulnerable young man that has been fighting to survive for most of [his] life’.[12] The Court referred to a halting of the applicant’s ‘psychological functioning, emotional growth, identity formation, cognitive development, and sexual maturity to the level of an adolescent.[13]
[12] HB, 41.
[13] Ibid.
The Court further accepted that the applicant’s risk of reoffending was low, now that he had had the nature of the offence explained to him.[14] The Court accepted that the applicant was remorseful and that he ‘had been significantly deterred from committing this type of offence’ as a result of the prosecution.[15]
[14] Ibid.
[15] Ibid.
The applicant pleaded guilty in the event and received a 30 per cent discount for the early plea, which was noted to be the full discount.[16] The offending was described as being ‘at the bottom of the scale for offences of this type’.[17] The applicant had been in custody since 3 September 2016 (a period of almost nine months). The applicant was sentenced to a head sentence of two years and one month, reduced to one year and four months, given the nine months served to date in jail. A non-parole period of five months was imposed. The sentence was to be suspended upon the applicant entering into a good behaviour bond for a period of two years.
[16] HB, 42.
[17] Ibid.
It would appear the applicant was released into the community on that day. On 19 February, 2019, the applicant was granted a further protection visa, but was warned explicitly that any further criminal conduct might affect his visa status.[18] On 19 September 2023, the applicant was convicted of a number of offences in the Magistrates Court that had taken place in the course of July 2023. He was released on a good behaviour bond ($250). These offences concern his theft of garments from the Myer Department store on a number of occasions including on 13 and 19 July 2023.[19] The applicant admitted in his evidence to me that on one occasion he had attended the Myer Department store with a pair of pliers and had cut off the security tags so as to remove the garments from the store unnoticed. The charges are set out in the criminal record before me.[20] The applicant further said in cross-examination that he was not working at the time,[21] and that he had to pay off a drug debt. He was smoking methylamphetamine, or ‘ice’, at the time.
[18] HB, 81.
[19] HB, 188, and 198.
[20] HB, 142.
[21] An assertion that appears to be corroborated by a contemporaneous observation the applicant made to correctional service officers dated 1 August 2023 that he was in receipt of social welfare payments at that time: see HB, 296
On 29 April 2024, the applicant appeared in the Magistrates Court, again charged with a number of offences.[22] These are listed as two separate offences involving theft of property (on 13/8/23 and 1/9/23)[23] and possessing equipment to use with a controlled drug (not involving cannabis) and possessing a drug (not cannabis). The offences in question had occurred while the applicant was on a good behaviour bond. The applicant accepted that he had an ice pipe in his possession on one occasion, but denied that he knowingly had in his possession the 10 ml of a clear liquid.[24] He accepted that the police had found this liquid in his bag, and that he had pleaded guilty to the offence, but he denied it was his. I do not accept his denial of knowledge in this regard. In the event, he was discharged without penalty.[25]
[22] Described in the respondent’s SOFIC at HB, 691 [36]-[41].
[23] HB, 141.
[24] The liquid appears to have been the drug, GHB.
[25] It is not clear why that was so. The applicant is recorded, however, as having no means to pay for any order for compensation to the victims of the thefts, and for that reason, the Court decided no order to pay compensation to the victims should be made. It may be the Court took the same view with respect to the penalty.
I now turn to other conduct not leading to a criminal conviction that the respondent has asked me to take into account. I shall explain that conduct and why I have rejected the respondent’s submission that I should take it into account.
The respondent referred me to a number of incidents recorded in police ‘summary occurrence reports’.
Incident One
The first of these concerns an alleged event on 15 October 2022.[26] It concerned the alleged rape of an intellectually disabled victim by the applicant. The record before me suggests that there was no reasonable prospect of conviction, and that no charges were laid in the event. The alleged victim’s account was found to have inconsistencies. There were no independent witnesses. There was no evidence corroborating the victim’s version. In that connection, I note that the police attended the alleged crime scene and seized bedding and a used tissue. The alleged victim also underwent a forensic medical on 16 October.[27] There is a note that the victim has ‘extensive mental disabilities’ and, according to her carers, ‘is a compulsive liar’ and ‘unreliable’.[28] I do note, however, that the alleged victim had sent the applicant text messages (that were not returned), and so she had been given his mobile number.
Incident Two
[26] HB, 145.
[27] HB, 151.
[28] HB, 158.
The next incident took place on 12 January 2023. The police attended the ‘Ward 1G’ car park of the Lyell McEwen Hospital in Elizabeth Vale. There a female was found to be screaming, hitting her head against nearby objects, and swinging her arms wildly when approached by police. She was detained under section 57 of the Mental Health Act, 2009 (SA). The applicant was present. He said he had known her for about two months and did not know any of her details other than her first name. He had offered her a lift that day. As she had wanted to go to hospital, he took her to the Lyell McEwen Hospital. The Ward 1G car park had caused her to become agitated because she had been there so many times before, he said. The applicant was on the scene when police arrived and in their presence had attempted many times to coax her into the car. This incident may be accepted to have occurred, but it does not disclose criminal offending.
Incident Three
The next incident is alleged to have occurred on 1 June 2023. The allegation is made that the alleged female victim and her female friend, together with the applicant, were sitting in a living room together, having earlier spent time together at a pub. The alleged victim claimed she had been sleeping on the couch but woke up and found that she was being digitally raped by the applicant. The matter was not proceeded with by police and the applicant was not arrested. The alleged victim did not attend a forensic medical examination that had been arranged for her.[29] The friend did not provide a formal statement, but confirmed to police informally that she was present and nothing had happened. Her friend, she said, had woken up suddenly but the applicant had not been doing anything to her. The alleged victim declined to go further with any police action. The record before me notes that there is no independent evidence, and what evidence there is from the friend would cast doubt on the veracity of the alleged victim’s version.[30]
Incident Four
[29] HB, 182.
[30] HB, 183.
The next event occurred on 20 March 2023. On this occasion, the applicant was driving behind a young female pedestrian, who felt unsafe. She pretended to unlock the front gate of a random house to give the impression she had already reached her destination. The applicant wound down the window of his car and offered her a lift. She declined and the applicant drove off. I accept this event occurred, but I note the police report says there was insufficient evidence to substantiate any criminal offence. The police did, however, issue a loitering warning to the applicant.[31] No criminal offending is disclosed by this report.
Incident Five
[31] HB, 168.
The final event is said to have occurred on 10 November 2023.[32] On 10 November 2023 at about 10:40 pm, the alleged victim, a woman, entered a public laundromat at Elizabeth. At some point later the applicant entered the laundromat. She did not know the applicant. At 12:26 am on 11 November, the victim sent a text message to her partner saying she was at the laundromat and that the applicant had been acting ‘weird’ and was ‘freaking out’ about a police presence across the road. It is reported that at some stage the victim started feeling nauseous, and she believes she may have vomited.
[32] HB, 237.

The alleged victim recalls feeling a pain at the back of her right knee, bending down to feel what it was, and then knocking her head on one of the dryers as she stood up again. An uber her partner had ordered for her arrived at 1:36 am to take her back to her partner’s house. The alleged victim states the driver woke her up on arrival and she went into her partner’s house. There she felt she needed a shower, and when she undressed, she noticed that her underpants were ‘saturated and sticky’. She believed she had been sexually assaulted. There is a critical time between 12:26 am and 1:46 am (the time she got back to her partner’s house in the uber) during which she has little memory.
There are references in the police file to CCTV footage.[33] The CCTV footage is reported to be between four and five hours slow so that its registered time-recording is inaccurate. At 7:32 pm (according to the CCTV time log), a person believed to be the applicant enters the laundromat. The alleged victim and the applicant both leave the laundromat together. At 8:33 pm, the alleged victim returns to the laundromat on her own and she is observed to use a towel to wipe between her legs and her behaviour appears to have changed. At 8:50 pm, the victim and the applicant are seen together in the laundromat, and he is seen ‘doing something to her back’ and helping her with the laundry. He helps her place the laundry in a white vehicle believed to be the uber that was ordered. This report records that the CCTV footage from the laundromat has not been completely supplied, and there is a camera outside the laundromat which will show more.[34] There is a record of the alleged victim making a comment about leaving a water bottle inside the laundromat unattended.[35]
[33] HB, 269.
[34] Ibid.
[35] HB, 271.
The applicant was charged with sexual assault. At some point after the laying of the charge, the victim appears to have died. Subsequently, the charges were withdrawn by the DPP. It is recorded that the prosecutor within the DPP’s office had looked at the matter, and that his or her manager had also reviewed the decision to withdraw the charges and had come to the same conclusion. For the purposes of my review, it is significant that a claim of legal professional privilege had been made and certain material has been redacted. I am not able to read the full record as it appears at HB 247 and HB 248 due to the redactions. I note that just before the withdrawal of the charges, the police had arranged for a resubmission of samples taken from the victim’s sexual assault kit. These were to be retested for the presence of DNA. It is said that the results received on 27 May 2024 show the DNA of the applicant to be located on all three swabs.
The respondent submitted I should find the applicant raped the alleged victim notwithstanding the withdrawal of charges by the DPP. The respondent asked me to take into account the evidence in the police file to which I have referred. The respondent asked me to take into account the other events that have occurred, which the respondent submitted made it more likely than not that he was guilty of this very serious offence against a female victim in the laundromat.
I have decided I should not accept this submission. I explain my reason for this conclusion as follows. First, I shall assume, despite my misgivings in this regard, that it is appropriate for the Tribunal to decide whether or not the applicant sexually assaulted the alleged victims in question on the basis of evidence adduced before it. Even on this assumption, the evidence in this case led by the respondent is very limited.
The only evidence that the respondent has led is a series of extracts from police files. The extracts do not unequivocally assist the respondent. In respect of ‘Incident One’, the record shows that the evidence gathered in the investigation tended strongly against the applicant being guilty and favoured the view that the alleged victim was a strongly unreliable historian. ‘Incident Two’ does not disclose any offence. ‘Incident three’ places the applicant in the presence of the alleged victim but she declined a forensic examination and the only other person present indicated, albeit informally, that no assault had occurred. ‘Incident Four’ does not disclose a criminal offence. ‘Incident Five’ places the alleged victim and the applicant in a laundromat together. The applicant is seen on footage ‘to be doing something to [the alleged victim’s] back’, but this is not suggested to be the sexual assault. He is also seen helping her with her laundry. The footage does not disclose a sexual assault. It is reported in the police file that there is a match between the applicant’s DNA and the DNA found on the swabs from the sexual assault kit. This is, I note, simply a statement in respect of a conclusion reached by a specialist laboratory, and presumably separately recorded in a document produced by the laboratory. I do not know, for example, what degree of confidence the laboratory had in the alleged match. I did not have the original report before me and no evidence was called in relation to that important matter. I have already noted that parts of the police file have been redacted on account of legal professional privilege. So the police record is itself truncated and not available to me in its entirety.
I asked Mr Morris at the hearing what I could infer happened at the laundromat, and he submitted that I could properly infer that the applicant had put aside her water bottle, the applicant took the opportunity to lace the contents of the bottle with a stupefying drug he had in his possession, the victim drank from the laced bottle, and then the applicant led the stupefied victim out of the laundromat where he raped her in an unspecified location. As she was stupefied, the victim had no memory of the assault.
This amounts to a theory of what might have happened, but there is no strong evidence that supports it. The suggested course of events is, I believe, conjectural to a high degree.
I believe I should pay particular attention to the clear fact that the DPP, as the responsible prosecuting authority, decided that there was insufficient evidence to continue with a charge after the alleged victim’s death. That is a very important information so far as this Tribunal is concerned, especially when all that is led is extracts from a police file with redactions.
All in all, therefore, I do not take account of any of these five incidents as disclosing criminal conduct.
In declining to view the applicant’s conduct as criminal, I am conscious of a most odd, and troubling, aspect of these incidents to which Mr Morris rightly drew my attention. The applicant has found himself on many occasions in highly unusual situations. On two occasions, when he has been found in the company of intellectually impaired persons, an accusation was made against him of unlawful sexual intercourse. One of those accusations was proven against him beyond reasonable doubt in a criminal court. On a third occasion, the applicant was seen by police to be coaxing a female person into his car. He admitted to police that she had just been in his car, and she was clearly suffering an episode of acute mental distress. On a fourth occasion, the applicant was in the company of a person who reported that she woke up to find the applicant digitally raping her. On yet a fifth occasion, the applicant met a woman in a laundromat, and she, too, believed she had been sexually assaulted at about the time the applicant was in the laundromat. The applicant has undoubtedly been present on each of these five occasions, and that is very troubling. I certainly understand why the police might take a strong interest in the applicant’s activities and treat him as a highly suspicious person. But all that said, I believe that where the allegations are so serious, I must act on persuasive evidence only that leaves me satisfied that what is alleged to have occurred did in fact occur notwithstanding contrary decisions not to pursue charges taken by responsible authorities. I cannot safely act on the basis of suspicion and conjecture. I have decided to put to one side the five incidents to which I have referred, as troubling as they appear when I view them together.
Finally, I note that the respondent asked me to take into account an alleged altercation at the Mt Gambier prison.[36] This minor incident cannot in my view be a tipping point in my deliberations, and I have decided I need merely note it, but not deal with it further.
[36] HB, 278.
REASONS
I now turn to consider the exercise of the discretion informed by the Direction.
Considerations arising under the Direction
I make the following prefatory remarks. I customarily include the following four paragraphs in my decisions, and I do so again in these reasons.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia and, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I turn now to apply the Direction. The first primary consideration I must take into account is the protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) provides that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by noncitizens decision-makers are to bear in mind that remaining in Australia is a privilege that Australia confers on noncitizens 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. I bear this principle in mind.
By subparagraph (2), I must also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I turn first to consider the nature and seriousness of the applicant’s conduct. By paragraph 8.1.1(1) I am required to have regard to a number of matters set out in paragraphs (a) to (h). I am required to consider the unlawful sexual intercourse with the minor as very serious, and I do so. I regard the thefts as less serious, self-evidently, but I bear in mind that the deprivation of property is not an insignificant matter. Storeowners are entitled to the possession of the goods. The theft of property to support a drug habit or to repay a drug debt is a strongly antisocial act. I also regard the consumption of addictive drugs like ice as highly antisocial because the drugs adversely affect a person’s behaviour in the community so substantially and often lead to antisocial acts.
I have had regard to the sentences that have been handed down. The sentence in relation to the offence of unlawful sexual intercourse with a minor was long and marked out the seriousness of the offending even though the offending did not involve an intention to do harm to the victim as such. I do not have up to date information concerning the impact of the sexual offending, but the sentencing remarks advert to, but no more than advert to, an impact upon the victim.[37] That there was an impact is not surprising.
[37] HB, 41.
There is no further instance in the applicant’s criminal record of his having engaged in an unlawful sexual assault. But the applicant has been caught on a number of occasions stealing, and he has been found in the possession of drugs. His most recent offending was in breach of a good behaviour bond and there is a trend of increasing seriousness in that respect. I take into account the cumulative effect of repeated offending on store owners and on the community generally.
I also take into account also that the applicant was formally warned by the respondent in 2019 of the potential effect of further criminal offending upon his visa status.
I turn now to consider the risk to the Australian community. By paragraph 8.1.2(1), I am to have regard to the Government’s view that the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct the harm that would be cause if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. I bear that principle in mind.
In assessing risk, I am to have regard to two matters ‘cumulatively’. First, I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, and I must also have regard to the likelihood of his so doing taking into account information and evidence on the risk of his reoffending and evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since the most recent offence. Clearly enough, if the applicant were to have sexual intercourse with a person who was unable to consent (whether through age or disability) the consequences could be very serious indeed for that person. In this particular case, for example, it would appear that the victim had already been sexualised and had initiated a sexual encounter with a total stranger, which was a most concerning aspect of the matter given her age and intellectual disability. I did not have evidence concerning the ongoing harm to intellectually disabled children who seek sexual encounters, but the effects could be quite profound psychologically.
The harm to the Australian community of theft is not to be underestimated. Everyone, including large department stores, is entitled to the lawful enjoyment of property. Theft generally disrupts a well-ordered society. The use of drugs is especially antisocial. Participation can lead the consumer to anti-social behaviour, and the purchase of drugs aids a pernicious trade by providing anti-social traders with profit. The spread of the trade does untold harm to the community.
So far as the sexual assault is concerned, I think the risk of its recurrence must be assessed as very low. This reflects what the sentencing court found. Moreover, the applicant is aware of the need to ensure that his sexual partners are of a certain age and are capable of understanding the nature of a sexual encounter. I must bear in mind that on the basis of the sentencing remarks, this applicant did not know that the victim was under the age of 17 and did not know that she had a mental disability. That is the premise on which I must base my reasons in this matter.
The applicant spent nine months in jail in circumstances where he had responded to a sexual invitation from a person he did not know was under 17 or suffering from a disability. And that must have been a very confronting experience for him. He would well understand now the possible consequences of a rash decision to yield to the temptation of having a sexual encounter with a stranger. I accept also that as at the time of my decision, the offending is some eight-and-a-half years old, and the applicant is at a different stage of life.
I think the risk of the applicant returning to drugs is a medium one tending towards high, and I am particularly concerned that he may return to stealing in order to support a habit or defray drug debts. The applicant has a most uncertain future in the community on the evidence before me. He does not have a settled life, and has had periods of homelessness and unemployment. He does not have settled accommodation or work at the present time. He does not have the support of family, but he does have the support of Catholic social services if he desires. Sister Meredith, a Catholic nun, who gave evidence to the Tribunal, will do what she can to ensure that the applicant makes prosocial choices either here or in Brisbane, where he indicated he would like to move. I regard this applicant as living in a very precarious way. On the other hand, the number of offences involving drugs have been relatively few and the appearances in court for drug-related theft and antisocial behaviour relatively few as well. There is no evidence before me that the applicant was markedly addicted to drugs or has an ongoing serious drug-dependence issue. Nevertheless, his proclivity to use drugs may well be exacerbated in the future by spells of boredom, unemployment, poverty, and poor associations, all of which have been frequent features in his life to date.
There is no family violence for me to consider.[38]
[38] Paragraph 8.2 of the Direction.
The applicant has few ties to Australia.[39] I agree with the delegate’s analysis of the matter at paragraphs [51] to [55] of his or her statement of reasons.[40] I shall not recapitulate the analysis. I would not, however, place moderate weight on this factor but would, rather, attach slight weight to it.
[39] Paragraph 8.3 of the Direction.
[40] HB, 30.
There are no minor children’s interests to consider.[41]
[41] Paragraph 8.4 of the Direction.

I turn now to consider the expectations of the Australian community. Paragraph 8.5(1) provides that where a non-citizen has engaged in serious conduct in breach of the expectation that he or she be law-abiding, the Australian community ‘as a norm’ – but not as an inflexible rule – expects the Government not to allow the non-citizen to enter or remain in Australia. Paragraph 8.5(2) refers to an additional factor; namely, that visa refusal may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person not be granted a visa. The nominated character concerns include sexual crimes against children and the vulnerable.[42] This is a consideration that applies strongly in this case. I bear in mind that the consideration applies regardless of whether the non-citizen poses a risk of causing harm to the Australian community.[43] Moreover, I am not to assess the community’s expectations in the particular case at hand, but am bound to apply them as they appear in the paragraph.[44] This consideration weighs strongly against the applicant in this case.
[42] See paragraph 8.5(2)(c) of the Direction.
[43] Paragraph 8.5(3) of the Direction.
[44] Paragraph 8.5(4) of the Direction.
I must have regard to other considerations under section 9. A non-exhaustive list is given, which includes the legal consequences of my decision. In this case, the legal consequence of a decision to affirm the decision under review would be to leave the applicant on his bridging visa (pending removal); whereas the setting aside of the decision would in effect give the applicant a right to a resolution of status visa (provided he meets other specified criteria). I accept that the effect of my decision to affirm the decision under review will not be to expose the applicant to removal to Myanmar. As the law presently stands, he cannot be removed there against his wishes.
Left on a bridging visa pending removal, the applicant would face, however, a serious ongoing uncertainty in his life; namely, being removed to a third country against his will in the future. I note that last year the Parliament passed legislation which authorises the Government to pays third countries to take non-citizens the Government does not wish to have in Australia.[45]
[45] See section 198AHB inserted by the recent Migration Amendment Act, 2024.
How likely it is that this applicant would be resettled in a third country is unclear. Intuitively, one supposes that, all things being equal, a third country would not accept the applicant as a prospective resident given his criminal record and given the fact that the Australian Government does not wish to have him remain here. The recent amendments to which I have made reference do change that perspective somewhat. A financial inducement might persuade some countries to consider taking someone like the applicant.
I cannot say on the evidence before me how likely that would be. It would be an entirely speculative exercise. I have noted that the applicant is currently on a bridging visa (pending removal).[46] The grant of that visa indicates that as at the time of its grant there was, in the respondent’s opinion, no real prospect that the applicant would be resettled in a third country (or in a reformed Myanmar) in the reasonably foreseeable future.[47] But that situation might change. And I am not in a position one way or the other to know what the present state of negotiations is ‒ assuming any are taking place at all between Australia and third countries.
[46] A Bridging (Removal Pending) (subclass 070) visa.
[47] Cf NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 415 ALR 254; (2003) 97 ALJR 1005.
It may be said fairly, however, that the applicant would face the ongoing threat of removal at any time from Australia if I affirmed the decision under review. That would be a significant burden for him, I believe. Most people wish, understandably, to have certainty in their lives, at least in respect of such a fundamental matter as residency. To go forward in life knowing that one’s residency may be terminated at any time and that one may be sent to a third country is, in my opinion, a significant burden to a person in its own right. I take that matter into account as a very significant factor favouring the applicant.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. This has not been an easy exercise. The offence of unlawful sexual intercourse with a minor in this case is clearly a very serious one. It must be viewed from two perspectives in my opinion. First, the law the applicant breached implied that a person should satisfy himself or herself of the age of a prospective sexual partner; otherwise, any sexual relations, even if they are consensual, might lead to a severe criminal sanction. The reasonableness, or excusableness, of the perpetrator’s behaviour is irrelevant. The offence, therefore, seeks to protect minors in the community. That is an important aspect of the matter that I must bear in mind.
Equally, however, as the sentencing remarks demonstrate, a young person of 21 who does not know that a prospective sexual partner is under 17 and does not know that the person is mentally unstable, and who has himself an arrested psychological development, may find himself jailed for a considerable time as a result of an apparently consensual sexual encounter. That is the logical consequence of making the offence in question independent of knowledge or fault and it has been demonstrated in this case.
The case I am faced with is not at all a typical case of unlawful sexual intercourse with a minor, as the sentencing remarks attest. I have assessed the risk of recidivism as low. I agree with the sentencing Court that the applicant is significantly deterred from committing this type of offence. It would be very strange if he were not, given the consequences he has personally experienced of incarceration and the adverse consequences for him in respect of his visa.
Nevertheless, the community expectations consideration counts heavily against the applicant (and it is irrelevant in this regard that the applicant may pose no future risk). I have taken into account the antisocial aspects of drug use and the associated offending of theft. There is still a very real risk of relapse in this regard.
The Direction requires me to evaluate carefully the individual circumstances of the case at hand. I return to the statement by the Court on sentencing that, as at the date of sentencing, the applicant’s past had halted ‘his psychological functioning, emotional growth, identity formation, cognitive development, and sexual maturity to the level of an adolescent’.[48] That casts his offending in a very different light to that which it might otherwise bear. I bear in mind that the sexual encounter was initiated by the victim whose youth and intellectual disability were not known to the applicant. The offending is some years ago now. The other offending is relatively minor, although by no means trivial.
[48] HB, 41.
I bear in mind what I consider to be the very significant imposition of uncertainty in respect of this particular applicant because he has known great uncertainty and hardship in his life. A bridging visa pending removal may well pose an ongoing stress to him. That is a potential burden that I ought to take into account. I acknowledge that considerations arising under section 9 are, ‘generally’, not to be accorded the same weight as primary considerations. But I return again to my duty to assess the individual circumstances of this case, which are so highly unusual. It does appear to me that this applicant requires some degree of certainty in order to stabilise what has been a very unsettled life in Australia, punctuated, as it has been, by a significant time spent in and out of jail and detention.
FINAL CONCLUSION AND FORMAL DECISION
I have found this a very difficult case, principally because the Direction speaks strongly, and understandably so, against offences directed towards the vulnerable (including minors). Nevertheless, having regard to the individual circumstances of this case, I believe the preferable decision on balance, having weighed all relevant considerations, is not to refuse the applicant a resolution of status visa under section 501(1) of the Act. My formal decision, therefore, will be to set aside the decision and to substitute a decision to this effect.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.
…………[sgnd]………….
Dated: 20 February 2025
Date of Hearing: 29 January 2025

Applicant’s Representative

M Simmons

Estrin Saul Migration Specialists

Respondent’s Counsel

O Morris

Mitchell Chambers

Respondent’s Representative

M Pappas

Australian Government Solicitor