WWHZ and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 18

WWHZ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 18 (16 January 2025)
Applicant/s:  WWHZ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8714
Tribunal:Senior Member A. Murphy
Place:Melbourne
Date:16 January 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

………………………[SGD]…………………………..
Statement made on 16 January 2025 at 9:39am
Catchwords
MIGRATION - decision of delegate of Minister not to revoke mandatory cancellation of a Class XB Subclass 200 Global Humanitarian visa - character test - Direction no. 110 -primary and other considerations - protection of Australian community - nature and seriousness of criminal offending - risk to the Australian community should the Applicant commit further offences or engage in other serious conduct - strength, nature and duration of ties to Australia - best interests of children - expectations of the Australian community - legal consequences of decision - extent of impediments if removed – Non-Revocation set aside and substituted with the decision not to cancel the Applicant’s visa
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DPP v Al-Hasan [2023] VSC 376
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
2406618 (Refugee) [2024] AATA 3017
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Some names used in this published decision are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify those individuals.
Statement of Reasons
INTRODUCTION

The Applicant seeks review of the decision by a delegate of the Respondent (the Minister) dated 24 October 2024 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Global Humanitarian visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
WWHZ (the Applicant) is a 51-year-old male of Palestinian descent, born to parents whose families were displaced from Palestine in the aftermath of the 1948 war, later residing as stateless persons in Baghdad, Iraq. In around 2005, following the invasion of Iraq by US and Coalition forces, the Applicant and a number of his family members fled the war and crossed the border into Syria using forged Iraqi passports. They lived in the Al Yarmouk camp which housed Palestinian refugees just outside of Damascus for fifteen years, during which time the Applicant married and had three children. The family approached the UNHCR and were accepted for resettlement in Australia, arriving on 2 February 2018 as the holders of Subclass 200 Global Humanitarian visas. The Applicant’s fourth child was born in Australia and is an Australian citizen.
On 30 June 2022, the Applicant pleaded guilty to four criminal charges arising out of an incident that took place over 27 and 28 December 2020 for which he was sentenced to a total effective term of imprisonment of four years and three months, with a non-parole period of two years and ten months.
On 9 August 2023, the Minister cancelled the Applicant’s visa under s 501(3A) of the Act on the basis that the Applicant had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the cancellation decision). The Applicant was notified of that decision by letter dated 9 August 2023.
On 23 August 2023, the Applicant requested that the cancellation decision be revoked, making representations in accordance with an invitation given to him under s 501CA(3)(b). In his reasons for requesting revocation, he stated that he had come to Australia as a refugee with his family after leaving first Iraq and then Syria because of war. He said that he had previously been kidnapped and tortured in Iraq before fleeing using a false passport and if returned to Iraq he would be executed.
On 24 October 2024, a delegate of the Minister for Immigration and Citizenship for Multicultural Affairs (the Respondent) decided not to revoke the cancellation decision under s 501CA(4) (the non-revocation decision) and that decision is the subject of the current review.
On 3 December 2024, the Applicant was released from immigration detention into the community on a Bridging Visa R (Subclass 070) visa (‘BVR’) subject to the conditions set out in Attachment A.
The Tribunal hearing was held on 6 and 7 January 2025 at the Tribunal’s Melbourne Registry. Both parties were represented and the Tribunal heard evidence from the Applicant and his witnesses Dr Zimmerman, Mr [AS] and Ms [AA].
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:
(a)the person does not pass the character test because of a substantial criminal record; and
(b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
A person has a ‘substantial criminal record’ in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
As noted above, on 30 June 2022 the applicant was sentenced to a total effective sentence of imprisonment of four years and three months in respect of four criminal convictions. It is not in dispute that the Applicant has a ‘substantial criminal record’ and was serving a sentence of imprisonment at the time of the cancellation. It is conceded that he does not pass the character test.
The only remaining issue for the Tribunal is whether there is another reason to revoke the cancellation decision. In considering this issue, the Tribunal is bound by s 499(2A) to comply with Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
For the following reasons, I have decided to set aside the decision under review and substitute a decision not to cancel the Applicant’s visa.
THE DIRECTION
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. [1]
[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (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.
(3) One or more primary considerations may outweigh other primary considerations. [2]
[2] Ibid cl 7.
THE APPLICANT’S REQUEST FOR REVOCATION OF THE CANCELLATION OF HIS VISA
The Direction contains five primary considerations, which 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;
(5) expectations of the Australian community. [3]
[3] Ibid cl 8.
I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[4]
[4] Ibid cl 8.1(1).
The Tribunal is directed to 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.[5]
[5] Ibid.
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. [6]
[6] Ibid cl 8.1(2).
Nature and seriousness of the conduct
Criminal offending
On 30 June 2023, the Applicant pleaded guilty to the following charges:
·     making threat to inflict serious injury;
·     conduct endangering life;
·     conduct endangering persons; and
·     damage to property.
The circumstances of the applicant’s offending are set out in the sentencing remarks of Her Honour Justice Fox in DPP v Al-Hasan [2023] VSC 376. In summary:
·     During 2020, the Applicant’s relationship with his wife deteriorated. It was alleged that he prevented her from seeing family and friends, controlled the family finances and would threaten to break things in front of the children if she refused him sex. It was alleged that she did not have keys to the house or a credit card of her own. The judge noted that while some of those facts were disputed, it was conceded that the offending occurred in circumstances of family violence and noted that given that concession, it was not necessary for her to make any particular finding about those individual background facts;
·     On the night of 27 December 2020, the Applicant’s wife refused him sex. He told her that it was his legal right and became angry and smashed a glass ashtray. He told her that he was taking her and the children to her parents’ house and threatened to burn her and the house down if she did not get ready quickly. The threat was overheard by his second eldest son, aged 10 at the time and resulted in the charge of threat to inflict serious injury;
·     The Applicant’s wife woke the children and put them in the family car whereby the Applicant drove very quickly to her parents’ house, causing his youngest child to start crying. The Applicant blamed his wife’s poor parenting skills and shouted and swore at her during the drive. That night his wife and children slept and his wife’s parents house;
·     The following day the Applicant collected his three eldest children and took them to lunch. When he returned the children to his wife’s parents’ house, he spoke to his wife’s brother outside the house and told him he no longer wanted to be married to his wife. An argument followed during which the Applicant threatened to kill his wife’s brother and the whole family, and to run the family down. His wife’s father and the Applicant’s son heard some of those threats;
·     The Applicant reversed out of the driveway and drove around a roundabout, before driving back towards his wife’s brother at speed. He drove over a bollard, across the nature strip and knocked down a tree before continuing onto the front lawn and driving towards his wife’s brother at high speed. His wife’s brother was able to dive out of the way of the vehicle just prior to being hit, but as the vehicle passed it made contact with his leg. His wife’s brother also pushed his wife’s father out of the path of the vehicle. The vehicle continued on and crashed through the front of the house causing major damage. The Applicant’s driving was witnessed by neighbours, one of whom described the Applicant as deliberately driving into the house. The judge noted that by his plea of guilty, the Applicant admitted that he foresaw his driving would probably place his wife’s brother at risk of death and probably place his wife, her parents and her brother and sister at risk of serious injury;
·     After crashing into the house, the Applicant drove forwards and backwards until he was able to dislodge his vehicle and drive away. The Applicant drove to a nearby shop and phoned 000. He remained at the shop until police arrived and arrested him and is recorded as being cooperative with police and participating in a record of interview;
·     He told police that he wanted to have sex with his wife and that she refused; and that for a woman to refuse sex to her husband is completely unacceptable in his religion. He admitted that he tried to run this wife’s brother over as he was trying to pay him back.[7]
[7] DPP v Al-Hasan [2023] VSC 376.
The Applicant was remanded in custody and subsequently sentenced to a total effective sentence of imprisonment of four years and three months, with a non-parole period of two years and 10 months.
Paragraphs 8.1.1(1) of the Direction sets out factors that the tribunal must have regard to in considering the nature and seriousness of the Applicant’s criminal offending and other conduct. The Applicant properly concedes that his offending was both serious and aggravated because it occurred in circumstances of family violence. While the judge’s sentencing remarks do not count the Applicant’s children among the victims of his offending, the judge noted that the first charge was aggravated because the threat to inflict serious injury was made against the Applicant’s wife and overheard by their son. She held that the offending on charges two and three was objectively serious, but both spontaneous and short lived, both in terms of time and distance. She agreed with the prosecution that the Applicant’s moral culpability for all of the offending was high.[8]
[8] G8: 51- 52.
As the Applicant’s criminal offending constituted an act of family violence, I am not required to consider the sentence imposed by the court. However, as both parties have made submissions on this issue, I note that the Applicant’s total effective sentence constituted four years and three months. While this falls significantly short of the potential maximum sentence for conviction on the above charges, I consider it to be a clear indicator of the seriousness of the Applicant’s offending.
Other factors to be considered in assessing the nature and seriousness of the conduct are, in summary:
·The impact on any victims of the offending,
·The frequency of offending and/or whether there is any trend of increasing seriousness,
·The cumulative effect of repeat offending,
·Whether the non-citizen has provided false or misleading information to the Department,
·Whether the non-citizen has re-offended since being formally warned or otherwise being made aware in writing of the consequences of further offending; and
·Where the offence was committed in another country, whether the offence or conduct is classified as an offence in Australia.
There is little information available to the Tribunal about the impact of the Applicant’s offending on the victims. The sentencing judge noted that victim impact statements had been provided to the court by the Applicant’s wife and brother-in-law, although those documents are not before the Tribunal. The sentencing remarks reflect that the Applicant’s brother-in-law experienced a burning pain when he was hit on the leg by the applicant’s car as well as a financial impact due to the damage caused to the house. The family had to live with the damage for a period before moving out, but continued to pay rent to the end of the lease and lost the rental bond. Furniture was damaged and the family incurred moving costs, loss of income, and exhaustion and stress as a result of the Applicant’s actions.

The sentencing judge recorded that the Applicant’s wife had experienced less restrictions since the Applicant was remanded in custody, that she now drives a car and takes the children to school in playgroup and that in some ways her emotional well-being has improved. However, she is worried about what will happen when the Applicant is released from prison and the judge considered the Applicant’s actions have had a severe impact on all of his family and disrupted their lives in many ways.
The Applicant has no other known criminal offending in Australia or elsewhere. While the nature and seriousness of the conduct is significant, the available evidence indicates it constituted a series of incidents that occurred over a twenty-four-hour period. There is no known history of the offending conduct and there is no cumulative effect of repeat offending. The sentencing judge noted the conduct which led to the most serious charges were both spontaneous and short lived. It is not suggested that the Applicant has provided false or misleading information to the Department or that he has reoffended since being warned about the consequences of such further offending on his migration status.
Other conduct
The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence. There is no evidence before the Tribunal that the Applicant has engaged in any other behaviour or conduct of concern. The Tribunal notes that Victoria Police produced under summons all of the records it holds in relation to the Applicant and those records do not suggest he has come to their attention on any other occasion.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[9]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)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; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[9] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[10] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[11] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[12]
Nature of the harm
[10] Ibid cl 8.1.2(2)(a).
[11] Ibid cl 8.1.2(2)(b).
[12] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[13]
[13] The Direction, cl 8.1.2(2)(a).
The Applicant has been convicted of very serious offences and the Tribunal accepts that if he were to reoffend in a similar manner, there is a significant risk of harm to members of his family and the Australian community.
Likelihood of the non-citizen engaging in further criminal or serious conduct
Counsel for the Applicant submits that the Applicant poses a low risk of reoffending; that his behaviour in custody has been exemplary; that the offending was isolated and was the first and only incident of offending by the Applicant in Australia or overseas; that he has demonstrated profound remorse for his offending and that he has an impeccable record of behaviour while he has been in prison. It is also argued that the Applicant continues to remain compliant with the terms of the intervention order which prohibit him from contacting his wife and children as well as the conditions of his BVR which prohibit him from contacting the victims of his crimes or their family members.
In her sentencing remarks, Her Honour Justice Fox noted that the Applicant’s prospects of rehabilitation were somewhat difficult to assess, recording that he had ‘obviously survived through a great deal of adversity in his life’ and she considered that his two years on remand was a very significant deterrence from further offending. She noted that the Applicant had accepted his conduct was serious; displayed an intention to abide by any conditions imposed on his release and had the support of his sister and brother-in-law and a good friend. Overall, she considered the Applicant’s prospects of rehabilitation were at least reasonable, if he was released and not deported.
Before the court was a confidential psychological report prepared by Ms L Jackson and dated 22 November 2022, who noted that the Applicant’s potential for further offending would be reduced with appropriate mental health interventions including treatment for his depression, anxiety and post-traumatic stress disorder. She noted he would also benefit from further psychiatric evaluation and participation in a family violence program. She recorded that he acknowledged the seriousness of his charges; that he was prepared to engage in support services and comply with Court directions and that with intervention, support, and encouragement, he should be able to achieve some positive changes in his behaviour and reduce his reoffending risks. Ms Jackson reports that the Applicant had previously attended his Arabic speaking GP reporting suicidal thoughts, but said he would never go through with this because it was against his religion. She records he was first prescribed medication in custody.
A report by Dr L Walton, Consultant Psychiatrist dated 16 June 2023, records among other things that while the Applicant appears to be of a somewhat volatile temperament, he was thoroughly cooperative with the tasks of psychiatric assessment. Dr Walton agreed that he would attract a diagnosis of post-traumatic stress disorder but considered that a diagnosis of any psychotic illness could be safely excluded. He made no specific mention of the Applicant’s anxiety or depression symptoms, but considered that the introduction of mood stabilising medication and specific medication to combat nightmares were indicated. He noted however that this treatment may not be available to the applicant in the prison context. Dr Walton concluded that the Applicant is a person lacking insight into his motivation and behaviour, which on the one hand implied some risk of recurrent offending, but that on the other hand, the lack of prior criminal history was reassuring.
A Parole Suitability Assessment conducted in May 2024 assessed him as a low risk of reoffending according to the Level of Service Risk Need Responsivity (LS RNR) assessment tool.
The most comprehensive and contemporary assessment of the Applicant’s psychiatric history and matters relevant to his risk of reoffending are contained in the report of Dr Zimmerman dated 22 December 2024. She assessed the Applicant in December 2024 over a three hour in-person interview. In her opinion, the Applicant has post-traumatic stress disorder, currently in remission and for which he is at significant risk of relapse should he be exposed to high levels of stress or reminders of the initial trauma. She noted that he is appropriately diagnosed with depression that has been treated with anti-depressants in the past, opining that he is in partial remission but at risk of a worsening of symptoms in the context of increased stress.
Dr Zimmerman used the tool the HCR-20 version 3 to formulate the risk of future violent offending by the applicant. She recorded the static or historical risk factors to consist of his history of violence (being one episode of violence that occurred over a single 24-hour period), the history of problems with relationships (with his wife and in-laws); his mental health conditions of depression and post-traumatic stress disorder and his significant history of exposure to traumatic experiences. She states that addressing these identified historical risk factors would reduce his risk of future offending, but that there it was not possible to remove or change these historical risk factors which must be recorded in the assessment regardless of any continuing impact.
In relation to current or recent risk factors, she states that she believes there is evidence of recent problems with insight into mental illness and violence and partial evidence of recent problems with mental disorder (referring to his mood and the history of depression). She recorded there is no evidence of recent problems with violent ideation or intent and that it appeared the Applicant had completed the intimate partner violence course while imprisoned and complied with his medication regime.
Dr Zimmerman noted that the Applicant was released into the community without warning and without any professional supports in place. She considered the Applicant might experience future problems with professional services and plans, personal supports and stress. She noted his protective factors included: his lack of a history of violence prior to the offending, lack of substance abuse, willingness to abide by court-imposed orders, willingness to comply with the treatment prescribed to him and his current accommodation with a long-term friend together with support from his sister.
Dr Zimmerman noted the Applicant has no history of violence outside of an intimate relationship and assessed the risk of violence outside such a setting is low. She assessed that he currently presents a low to moderate risk of future violence (noting that a person assessed as being at low risk would require no interventions at all); a low risk of serious physical harm and a low risk of imminent violence. She recommended interventions including follow-up by a GP to ensure prescription of the applicant’s antidepressant medication; counselling and psychiatric input to assist him to work through his past experiences of trauma; and referral to a men’s behavioural program to understand cultural norms and ways to navigate differences of opinion and conflict in relationships.
In her oral evidence, Dr Zimmerman noted that she did not observe any evidence of the ‘somewhat volatile temperament’ referred to by Dr Walton. She stated that she did not have access to the detention or prison records at the time of writing her report, but they had since been made available to her and it was apparent that the applicant had not experienced any episodes of discontrol or violence while in prison or detention and the evidence did not suggest a pattern of volatility.
Dr Zimmerman considered it very significant that in a high stress environment and at a time when the Applicant was separated from his wife and children, he was recorded as responding calmly and politely to significantly distressing news, including that his visa had been cancelled, his parole denied and that he was facing deportation. Dr Zimmerman stated that it was encouraging that the character traits of violence and emotional dysregulation were not present in the Applicant and that this was a positive sign in terms of the Applicant’s risk of future violence.
In that regard, the Tribunal notes that a file note dated 24 June 2024 from Ravenhall Prison reports that when advised that his parole had been denied, his only response was to thank the officer.[14] A file note dated 23 October 2024 records that when the Applicant was advised that he would be detained in a detention centre prior to being deported, he was recorded as being disheartened by the news, but appreciative of the support he had received and respectful during those interactions.[15] The following day he was observed to be distressed after receiving news of his deportation, but it was recorded that after assessment there was no change to his current risk rating and management.[16]
[14] Hearing book page 289.
[15] Hearing Book page 276.
[16] Hearing Book page 275.
Dr Zimmerman did express concerns about the Applicant’s current living arrangements, noting that the person with whom he was currently living, Mr [AS], was previously married to the Applicant’s wife’s sister and has his own convictions for family violence. She considered that while the arrangement is not ideal, there are limited accommodation options open to the applicant and that Mr [AS]’s history of offending is not significant enough to change her assessment of the Applicant’s own future risk of reoffending. She gave evidence that the Applicant sees himself as a law-abiding person and holds himself strictly to the terms imposed by the family violence orders and his visa conditions.
Overall, Dr Zimmerman assessed that the Applicant is at the low end of moderate risk of future violence, explaining that an assessment of low risk is indicative of a person who has no need of any intervention. She considered that appropriate interventions included managing the applicant’s depression, providing support for his PTSD, and engaging in a men’s behavioural program. She stated that for a person with a significant trauma history such as the Applicant, it is entirely usual that appropriate interventions will reduce the level of risk.
At hearing, the Applicant acknowledged his offending, stating that his actions were wrong and inappropriate although he maintained that they were out of character. He said that he could not remember preventing his wife from seeing family and friends, but noted that Melbourne experienced long COVID19 lockdowns during 2020 which caused great difficulties for his family because he was the provider and he could not provide. He believes that the stress of COVID19 was one of the major contributors to his stress at the time of the offending.
He said his wife always had a key to the family home and that he held her bankcard not because he wanted to, but because her brother who had accompanied them to the bank to open the account insisted the Applicant do so. He said he had tried to teach his wife to drive and gave her a copy of the car key and that she once drove the car up the street and into the driveway at his request, but that she ceased learning after coming under pressure from her brother. He confirmed that he had blamed his brother-in-law for his offending during his police interview, but said he now took responsibility for his actions and had engaged with prison services to change himself.
He acknowledged his statement to police to the effect that in Islam, women are obliged to have sexual intercourse with their husbands. He said that while this was his point of view at the time he made this statement, it is not his point of view now. He said he had spent much time since his offending studying Islam, participating in prison programs about behaviour and relationships and reflecting on his own behaviour. He said that he now understands that marriage relations are based on request and acceptance; that women have the right not to have sex and the right to divorce their husbands and that what happens within a marriage is a negotiation, or a consultation. He said that he wanted these rights not just for his wife, but for his sister and his daughters. He said he had been quick to judge other people and that he had stressed and embarrassed his wife, his family and his community, that Australia had given he and his family a safe haven and he feels that he should repay the debt. He wants to be a law-abiding citizen and was deeply hurt when his visa was cancelled.
Like the sentencing judge, I found the Applicant’s evidence to be somewhat self-serving, but I acknowledge his good behaviour while in prison and detention and I accept he is genuine in his efforts to engage with services and reflect on his behaviour. The evidence before the Tribunal indicates that he has engaged in a number of courses while in prison, including a men’s behavioural course and an intimate partner course. The prison records indicate that he has been a willing and engaged participant in a range of courses and activities, although there have been occasions his engagement has been restricted by the lack of interpreter services. He also received medication for his mental health conditions for the first time while in prison, although Dr Zimmerman reports that his treatment with antidepressant medication ceased at some point before his release from detention. Since being released into the community, the Applicant has made contact with Centrelink and is attempting to have his Medicare card restored, so that he can seek medical treatment for his back pain and his mental health conditions. He has been referred to Foundation House for specialist trauma counselling.
Dr Zimmerman gave evidence that the Applicant had engaged in all interventions that are practically available to him and I accept that to be the case. I note that there is comprehensive documentary evidence that records him as being cooperative, polite and respectful in prison and detention. I note that the Parole Suitability Assessment conducted in May 2024 assessed him as a low risk of reoffending and that Dr Zimmerman assesses he has a number of protective factors including his lack of a history of violence prior to the offending, lack of substance abuse, willingness to abide by court-imposed orders, willingness to comply with the treatment prescribed to him and support from his sister and long-term friend.
I have considered the submission that any reduction of stress, trauma, and uncertainty in relation to the Applicant’s visa status and potential deportation will improve his chances of remaining settled, stable, productive and well. It is submitted that as a result, revocation of the cancellation decision would be significantly protective of the Australian community and therefore I should weigh this factor strongly in favour of revocation of the cancellation decision.
I do not doubt the Applicant’s genuine distress at the prospect of deportation from Australia and permanent separation from his family. I further accept that the conditions on his BVR that require him to assist with, report for, and facilitate his own removal from Australia are particularly distressing for the Applicant. I accept in broad terms that the prospect of deportation is a stressor for the Applicant and that any reduction in stressors can only improve his prospects of not reoffending.
However, it does not follow that revocation of the cancellation decision will of itself be significantly protective of the Australian community. As noted by the Respondent, the prospect of deportation is just one of a range of stressors the Applicant faces as he re-enters the community. Other stressors identified by Dr Zimmerman include the separation from his children, finding employment, resettling into the community and accessing professional and social supports.

I note that the Applicant’s offending occurring despite the fact he held a permanent visa at the time. The interventions recommended by Dr Zimmerman to mitigate his risk of reoffending are capable of being provided to the Applicant as the holder of the BVR and the evidence indicates that steps have already been taken to put those interventions in place. The Applicant will be entitled to Centrelink and Medicare. He has been referred for specialist trauma counselling from Foundation House. He has an offer of employment in a bakery which he intends to accept as soon his he has stabilised his health conditions and his BVR conditions permit his employment, so long as he complies with the visa conditions that require him to notify of any changes to his employment and seek permission to take up employment in specified occupations (such as those that involve the use of or access to weapons or explosives or similar).
I consider that even if the visa cancellation is revoked there remains some level of risk to the Australian community, and if reoffending were to occur the consequences are potentially serious. I accept Dr Zimmerman’s evidence as cited above and consistently with that evidence, I find that the Applicant presents a low to moderate risk of future violence (noting her evidence that a person assessed at low risk would require no interventions at all) and a low risk of serious physical harm or imminent violence. I further accept that with the interventions suggested by Dr Zimmerman, all of which have been or are in the process of being put in place, the applicant poses a low risk to the Australian community.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs moderately in favour of not revoking the cancellation of the visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.[17]
[17] The Direction, cl 8.2(1).
It is not in dispute that the Applicant’s offending took place in the context of family violence. While the victims of the Applicant’s criminal offending included the Applicant’s wife and her adult family members, it was an aggravating factor that the Applicant’s threat to his wife was overheard by their second eldest son and that the Applicant’s children were inside the property where the most serious offending took place, albeit that they were at the back of the house and did not directly witness those events.
During cross-examination, the Respondent took the Applicant through each of the findings of the sentencing judge about the Applicant’s offending and the Applicant acknowledged both the accuracy of those findings and his responsibility for those events. He gave evidence that his hope is to fix what has been broken and that he hopes to eventually be reconciled with his wife and resume a meaningful relationship with his children, although he understands this will not be his decision.
He acknowledged the Family Violence Orders that prevent any contact with his wife, children and in-laws until 2027 and gave evidence that out of respect for those orders and Australia’s laws he stayed away not only from those persons protected by the Family Violence Orders, but also Mr [AS]’s four children with whom he had previously enjoyed a close relationship. He does so because Mr [AS]’s children are his wife’s nieces and nephews and his own children’s cousins and out of an abundance of caution he has no contact with them to ensure there can be no suggestion that he is indirectly contacting the persons protected by the Family Violence Orders or having contact with family members of the victims of his offending contrary to the conditions of his BVR. For the same reasons he did not move in with his sister upon his release from detention as she lives in close proximity to the residence where the offending took place.
I do not accept the Respondent’s submission that the Applicant’s offending demonstrates repeat offending or a trend of increasing seriousness because of the fact that it started on the night of 27 December and continued in the afternoon of 28 December 2020. Rather, I have assessed the offending on the basis that it arose out of a single episode of violence that took place over a period of slightly less than 24 hours.
I acknowledge that the Applicant has no history of criminal offending or family violence and that he has not breached the terms of the Family Violence Orders or the conditions of his BVR despite his strong desire to have contact with his children. However, given the gravity of the Applicant’s acts of family violence, I weigh this factor in favour of not revoking the cancellation of the applicant’s visa.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant was resident in Australia for almost three years at the time the offending occurred, having arrived in Australia with his wife and three eldest children in February 2018.
Immediate family
The Applicant’s immediate family members are his wife and four children, now aged between 5 and 15. Applicant’s youngest child is an Australian citizen while his wife and other children are permanent residents. He has had no contact with any of them since his arrest in December 2020. While he is hopeful that the relationship with his family can be re-established, he acknowledges the Family Violence Orders prevent any contact until February 2027 and that in any event his wife and children may choose not to resume contact.
As noted above, the sentencing remarks indicate that the Applicant’s wife experienced some positive changes following the Applicant’s incarceration and that she was worried about what would happen when the Applicant was released from prison. There is otherwise no information about the Applicant’s wife’s current views about her relationship with the Applicant or the manner in which she intends to interact with him in the future. For these reasons, I proceed on the basis that she may choose to have no further contact or relationship with the Applicant at all.
The Tribunal considers that any re-establishment of the relationship between the Applicant and his children is merely speculative at this stage, but that if the Applicant is ultimately deported from Australia there will be little to no chance that the Applicant will have any meaningful relationship with his children in the future.
The applicant’s sister, Ms [AA] her husband and their three adult daughters are also in Australia. Ms [AA] is an Australian citizen while her daughters are permanent residents. Ms [AA] gave evidence that her husband had suffered a stroke with some paralysis and her own health was not good. They live with two of their adult daughters in a three-bedroom property close to the Applicant’s wife’s parent’s house where the offending took place. It is difficult for the Applicant to live with them given Ms [AA]’s husband’s health, a lack of space and close proximity to the Applicant’s wife’s parent’s family home.
Ms [AA] gave evidence that her brother was generous, compassionate and helps her in every way. She is aware of the details of his offending and that he is trying to fix things. She can see that he is praying, remaining calm and trying to be a good person in the community and she has never before seen him behave in a threatening, frightening or intimidating way. When her daughters were growing up he looked after them often and had a good relationship with them. They continue to call each other every now and then, but they have no direct contact as a result of the Applicant’s wishes to keep his distance from the location of his offending. It would affect her deeply if he were unable to stay in Australia as he is her only immediate family member here apart from her husband and daughters, and she relies on him and leans on him for support.
Other ties with to the Australian community
I accept the Applicant also has strong ties to his friend Mr [AS], who is also of Palestinian descent and born Iraq. Mr [AS] also lived in a refugee camp in Syria between 2005 and 2009, although it was a different refugee camp from the one in which the Applicant resided. They and their families have been friends since childhood and the Applicant currently resides with Mr [AS] and his second wife. As noted above, Mr [AS] was previously married to the sister of the Applicant’s wife and Mr [AS]’s children are the nephews and nieces of the Applicant. I accept the Applicant’s relationship with Mr [AS] is very important to the both of them.
Statements of support were submitted to the Tribunal by the Applicant’s friends Ms [HA] and Ms [AB], also Palestinian refugees formerly resident in Syria. Both speak of their long friendships with the Applicant and the help he has provided to them as widows living alone in Syria and Australia. I note that they were not called as witnesses and their written statements do not suggest they are aware of the Applicant’s offending, which lessens the weight I give to their evidence.
The Applicant’s evidence is that he worked as a mechanic, boilermaker and welder prior to arriving in Australia and that he has a lot of contacts in the Arab community in Australia who are happy to assist him in giving a job in metalwork. The Tribunal has been provided with a letter from Mr [IH], who is the employer and friend of Mr [AS]. Mr [IH] operates a bakery manufacturing facility in Victoria and confirms that he has offered employment to the Applicant at that facility as soon as his visa conditions allow him to do so. At hearing, the Applicant gave evidence that he was very pleased to receive this offer and that he intended to take it up as soon has his physical condition allowed and he received permission from the Department in accordance with his visa conditions.
I find that the Applicant’s relationship with his sister and the presence of his children in Australia indicate that he has strong family ties in this country. I find that he has lesser but not insignificant ties to members of the Australian community. The strength, nature and duration of his ties to Australia weigh moderately in favour of revoking of the decision to cancel his visa.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:
·The nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·Whether there are other persons who already fulfil a parental role in relation to the child;
·Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[18]
[18] The Direction, cl 8.4(4)(a)-(h).
As noted above, the Applicant has four children in Australia who are now aged between 5 and 15. He described his relationship with his children prior to his offending as close and loving, but I treat this evidence with caution given the nature of his offending and the absence of any evidence from the children or their mother. He has had no contact with them since his arrest in December 2020 and Family Violence Orders are in place preventing any contact until at least February 2027. By that time his oldest child will be almost 18 and the younger children aged between 8 and 16. He has given evidence that even if he is not permitted to re-establish contact with his children, he intends to provide for their financial support.
In such circumstances, and in the absence of any direct or indirect evidence about the wishes of the children, it is difficult for the Tribunal to assess how their best interests are served. Nor is there any information about any physical or emotional trauma the children may have experienced arising from the Applicant’s conduct, or indeed arising from his incarceration and abrupt removal from their lives.
The Australian courts have held that there is no error with the Tribunal proceeding from the commonly held assumption that in most cases the child’s best interests are served by remaining with their parents where that is possible.[19]
[19] Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 [201].
I accept that the applicant strongly desires to re-establish his relationship with his children if permitted to do so. I further accept that it is possible his children may also wish to re-establish their relationship with their father and that if his visa remains cancelled and he is deported they will lose that opportunity. In the absence of any information as to the country to which he might be deported, it is impossible to say what ability the children would have to initiate or maintain contact with the applicant should they wish to do so.
I find that the best interests of the Applicant’s children are served by the revocation of the visa cancellation so that they have the opportunity to re-establish their relationship with him if they choose to do so. I consider the right to have a relationship with their father attaches to the children, not the Applicant, and for this reason I consider it inappropriate to reduce the weight I give to this factor because of the Applicant’s own conduct. I give this factor significant weight in favour of revocation of the visa cancellation.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[20]
[20] The Direction, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.5(4) of the Direction requires the Tribunal to proceed on the basis of the government’s views as to the expectations of the Australian community as expressed in paragraph 8.5.
I have been referred to Justice Fox’s statement in the sentencing remarks where she acknowledged that prior to arriving in Australia, the Applicant faced the type of violence, trauma and fear that most people would never experience in their lifetime, and that she treated this matter, along with the Applicant’s mental health conditions, culture and religion, as a consideration in sentencing. I have also been referred to his good behaviour since the offending, his strict compliance with the terms of the intervention order, and the conditions of his bridging visa and his strong desire to re-establish his relationship with his children and to support them financially, which it is submitted would incline the Australian community towards mercy and a higher tolerance for his past offending.
However, the Federal Court of Australia has held that the assessment of community circumstances is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen. Rather the Court held that a decision-maker can take into account the personal circumstances of an individual in so far as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the considerations accordingly.[21]
[21] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 [56].

It follows that this consideration will, in all cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future, and I have considered the Applicant’s personal circumstances elsewhere in these reasons against the other considerations to which they are relevant.
The Tribunal is guided by the principles in cl 5.2 of the Direction which direct that the safety of the Australian community is the highest priority. While I have found that the Applicant is at low risk of reoffending, the seriousness of his offending and the fact that the offending took place in the context of family violence, must be considered regardless of the level of risk he poses to the Australian community.
I weigh this consideration against revocation of the visa cancellation.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[22]
[22] Ibid cl 9.1.
If the mandatory visa cancellation is revoked, the legal consequence is that the applicant will remain on the subclass 200 visa and will not be subject to the conditions that attach to the BVR.
If the mandatory visa cancellation is not revoked, there are a range of potential legal consequences under s 501 and related provisions, including:
- The likelihood of becoming an unlawful non-citizen subject to detention and/or removal;[23]
- Refusal of other visa applications and cancellation of other visas;[24]
- A prohibition on applying for other visas;[25] and
- Periods of exclusion and special return criteria may apply.[26]
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[27] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[28]
[27] Ibid s 15.
[28] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Direction provides that non-citizens covered by a protection finding 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.[29] Non-citizens such as the applicant who are not the subject of the protection finding may also make claims which give rise to international non-refoulement obligations, but those claims need not be considered in the same level of detail in these proceedings as those types of issues considered in protection visa applications.
[29] Ibid cl 9.1.1(2)
In this case, the Applicant has already been granted a BVR and released from immigration detention by the Department and he will not become unlawful as a result of the cancellation. The parties agree that the Applicant will remain in the community following the Tribunal’s decision, either as the holder of a BVR or as the holder of the Refugee (Class XB) (subclass 200) visa.
The applicant is not currently the subject of a protection finding within the meaning of s 197C(3). He is eligible to make an application for a protection visa (noting that the Refugee (Class XB) (subclass 200) visa is not a visa included in the class of visas designated as protection visas by ss 5 and 35A of the Act and therefore the applicant is not statute barred from making such an application by s 48A), but he has not done so to date.
As a stateless Palestinian formerly resident in Iraq and Syria, it would appear prima facie that the Applicant has strong grounds for a protection finding, however the making of such a finding involves some factual and legal complexities not addressed in the material before me and the outcome cannot be free from doubt. While some information as to his personal history and the circumstances in which he resided in Iraq and Syria is before the Tribunal, and it appears the Respondent accepts that the Applicant is not a citizen of those countries, it is not suggested by the parties that the Tribunal should undertake a full protection assessment and I do not consider that I have sufficient information to do so.
In any case, the parties agree that the Tribunal should make its decision on the basis that there is no real prospect of the Applicant’s removal to Iraq, Syria or Palestine where he does not hold citizenship in the reasonably foreseeable future, regardless of whether or not there is ultimately a protection finding in respect of any or all of those countries.[30] As he has no right of return or residence in any of those countries, I accept that there is no real prospect of the Applicant’s removal to any of those countries in the foreseeable future.
[30] For the sake of completeness I note that a number of decisions of this Tribunal and its predecessor the Administrative Appeals Tribunal have found that the Palestinian Authority does not have a nationality or citizenship law or full control over the issuing of its official documentation and exit and entry to its territory with the result, with the result that bearers of Palestinian travel documents or passports are considered stateless persons rather than citizens – see 2406618 (Refugee) [2024] AATA 3017 at [27] and the ART decision in matter 1913747 (unpublished) at [20] – [21].
If the Applicant’s visa remains cancelled, the Applicant will be prohibited from applying for most other kinds of visas and in any case, he will not pass the character test for the same reasons that arise in the current review.
While it is hypothetically possible that the Applicant might be granted a protection visa if he were to make such an application, a decision-maker considering refusal of the protection visa on character grounds is required to assess matters similar to those that arise in the current review. The manner in which such a hypothetical decision-maker might exercise their powers in the future cannot be known to this Tribunal but it is appropriate to acknowledge that the Applicant may not be granted a protection visa, even if a protection finding were made.
The Respondent contends that if the Tribunal were to affirm the delegate’s decision, the Applicant would remain in the community as the holder of the BVR until such time as there is the real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, subject to the grant of any other visa (for example, a protection visa). If on the other hand the Tribunal were to set aside the delegate’s decision, and substitute a decision revoking the visa cancellation decision, he would again become the holder of the Global Humanitarian (subclass 200) visa. The Respondent argues that in these circumstances the Tribunal should attach limited weight to the legal consequences of its decision because in either case the Applicant has been released from immigration detention and will remain in the community until such time as he is removed to a suitable third country.
The Applicant argues that it is no longer true that persons holding BVRs will remain in the community irrespective of the Tribunal’s decision to affirm or set aside a character cancellation, because of amendments to the Migration Act by the Migration Amendment Act (Cth) 2024 (Amendment Act) and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 (Removal Act) which came into effect on 5 December 2024. In particular, it is submitted that the Applicant is now a ‘removal pathway non-citizen’ under s 5(1) and s 199B of the Act and his removal to a third country would become legally possible even if there were a protection finding in respect of his countries of former residence.
‘Removal pathway non-citizen’ is defined in section 5(1) of the Act to include a lawful non-citizen who holds a subclass 070 Bridging (Removal Pending) visa and I accept the Applicant comes within its terms. Section 199B provides that a removal pathway non-citizen for whom a protection finding has been made may be given a removal pathway direction by the Minister and may commit the offence of refusing or failing to comply with the direction under section 199E.
While section 199D prevents the Minister from giving a removal pathway direction to any country in respect of which that non-citizen has a protection finding, s 198AHB allows a non-citizen to be removed to a foreign country that is a party to a third country reception arrangement.
As at the time of the Tribunal’s decision, there is no evidence that the Commonwealth has entered into a third country reception arrangement with any country, nor that the Commonwealth will enter into an arrangement with any third country to receive the Applicant. The Respondent argues that such issues, and the question of the potential treatment of the Applicant in any third country, are merely speculative and should not be countenanced by the Tribunal.
The Applicant argues that the legislative changes that have been made by Parliament, and the publicly reported statements of the Minister to the effect that the Australian Government does not want people like the Applicant in Australia at all, are evidence that the government is determined to achieve a removal outcome for persons in the Applicant’s position. It is submitted that while it is unclear whether a third country will become available to receive the Applicant, it is fanciful to imagine that any potential third country will be a well-resourced, industrialised country with legal protections for stateless persons such as the Applicant. It is argued there are no guaranteed minimum standards of treatment upon removal to a third country and conditions in the country are likely to be highly oppressive and include detention.
I do not consider it appropriate to speculate as to which if any countries may potentially enter into such third country reception arrangements with Australia, nor the level of legal protections or other resources that may or may not be available to persons removed from Australia to those countries.
However, I do accept that the legislative provisions passed by the Australian Government give it the power to enter into such arrangements and should it do so, the Minister may well exercise his or her powers to remove the Applicant to such a country. At the same time, I acknowledge this is a consequence that may never happen, as it depends on the Australian Government entering into a third country reception arrangement; that third country being willing to receive the applicant; and the Minister deciding to exercise his powers in the manner envisaged in the legislation.
If the visa remains cancelled and the Applicant is not removed to a third country, he will remain on the BVR indefinitely. As noted above, while the Applicant is eligible to apply for a protection visa, I have accepted that it cannot be assumed that a decision-maker considering refusal of the protection visa on character grounds would exercise their powers differently if the current cancellation stands. This is because the matters which are required to be assessed are in effect the same as those in the current review.
The Respondent submits that the Applicant’s failure to comply with any of the visa conditions will have serious consequences for the Applicant, including that he can be convicted of a criminal offence relating to the breach of the conditions (s 76B, s 76C, s 76D, s 76DAA, s 76DAB and s 76DAC) for which a court must impose a minimum sentence of one year imprisonment (s 76DA).
While on a BVR, the Applicant is required to comply with the conditions of that visa. Until recently, those conditions have required that he report to the Department daily by telephone. However during the course of the hearing it was confirmed by the Respondent that those reporting conditions have recently been varied so that he is only required to report once per week. Other conditions attached to the BVR include that he notify the Department of any change to his address, his material circumstances and his employment, that he obtain approval before undertaking certain kinds of employment or activities and that he is prohibited from undertaking other kinds of specified employment and activities. Those conditions do not include a curfew or a monitoring device.
I accept that the conditions that cause the applicant the most immediate distress are those which require him to assist with, report for and facilitate his own removal from Australia. I note that Dr Zimmerman gave evidence that these conditions had a potentially destabilising impact on the applicant because they introduced an element of uncertainty and threatened his sense of security. She gave evidence that the degree of uncertainty around his potential removal undermines the factors that are protective, being the applicant’s connection to his work, home and his personal connections to his friends and his sister’s family. The applicant gave evidence that he had spent all his life being a refugee, and had never been seen as an individual. He had never been able to obtain Iraqi citizenship or citizenship of any other country and the cancellation of his Australian visa was deeply hurtful to him. I accept that the applicant, being a person who has never held nationality of any country, who has lived as a stateless refugee for the vast majority of his life and is unable to be returned to any country in which he has previously resided or has any family members, is particularly adversely affected by these conditions.
A further condition requires that he not have contact with the victims of his offending or their family members. I consider this condition will have a profound impact on the Applicant as it will prevent him from having any contact with his wife and children, even if they wish to resume contact when the Family Violence Orders cease. It also arguably prevents him from having contact with Mr [AS]’s children, who are the nephews and nieces of the Applicant and his wife, with the result that Mr [AS]’s children are not currently permitted to visit their father in his own home. This condition does not merely impact the Applicant but also his wife, children and extended family. Most particularly, it removes the right of the Applicant’s children to resume a relationship with their father if they choose to do so.
In these circumstances, I consider that the legal consequences of the decision, whether or not the Applicant is deported or remains in Australia as the holder of a BVR, weigh significantly in favour of revoking the visa cancellation.
Extent of impediments if removed
Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
- the Applicant’s age and health;
- whether there are substantial language or cultural barriers; and
- any social, medical and/or economic support available to the Applicant in that country.
In this case the applicant is a 51-year-old male with not insignificant health problems including a back injury, hepatitis A and B and the mental health conditions referred to elsewhere in these reasons.
However, it is common ground between the parties that in circumstances where there is no real prospect of the Applicant’s removal to any identifiable country in the reasonably foreseeable future, this consideration should be regarded as neutral.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)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.
It is conceded by the Applicant that there is no evidence that the cancellation of the Applicant’s visa would compromise the delivery of any major project or important service in Australia and I weigh this consideration as neutral.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act, and I must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
Clause 7 of the Direction sets out the ways in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[31]
[31] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [being the precursor to Direction 110] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[32]
[32] [2023] FCAFC 138, [23].
In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[33]
[33] Ibid [27].
In bringing together the considerations in the manner required by CRNL, I give the primary consideration of the protection of the community greater weight than other primary considerations. I have assessed the Applicant as being at low risk to the Australian community but that risk is appreciable and I have given this factor moderate weight against revocation of the visa cancellation. I have found that the Applicant’s offending involved family violence and I have also weighed this factor against revocation of the visa cancellation. I have found that the Australian community expects that the cancellation of the Applicant’s visa is not revoked and I have weighed this factor against revocation of the visa cancellation.
I have found that the strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revocation of the visa cancellation, but that the best interests of the Applicant’s children weigh significantly in favour of revocation. Similarly, I have found that the legal consequences of the decision weigh significantly in favour of revocation of the visa cancellation. I have assessed the considerations relating to the extent of impediments if removed and the impact on Australian business interests to be neutral.

Although I have given the consideration of the protection of the Australian community greater weight than the other primary considerations, I conclude that the combined weight of the considerations that weigh in favour of revocation of the visa cancellation outweigh those that favour cancellation of the Applicant’s visa. I consider that the primary considerations of the best interests of his minor children as well as the strength, nature and duration of the Applicant’s ties to Australia, together with the consideration of the legal consequences of the decision, cumulatively weigh in favour of revocation of the visa cancellation.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 136 (one-hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Murphy

.................................[SGD].......................................
Associate
Dated: 16 January 2025

Date(s) of hearing: 6 and 7 January 2025

Counsel for the Applicant
Jessie Taylor and Lawson Bayly

Solicitors for the Applicant:
Christian Boffa
Victoria Legal Aid

Solicitors for the Respondent:

Anthony Gardner
Mills Oakley

ATTACHMENT A
(as extracted from the Notice of Visa Grant and Conditions dated 3 December 2024 at pp 190 – 200 of the Hearing Book)
Bridging R (Class WR) (Removal Pending) (subclass 070) VISA CONDITIONS
8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the
Australian community or a group within the Australian community.
8401 – Report as Directed
The holder must report:
Frequency: you are directed to report daily, Monday to Sunday.
Times: you must report between the hours of 8.30am and 2.00pm local time.
Manner: you are directed to report by telephone by calling [redacted].

8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.
8514 – No change in circumstances
During the visa period of the visa, there must be no material change in the circumstances on the basis of
which it was granted.
8541 - Must Assist with Removal
The holder:
(a) must do everything possible to facilitate his or her removal from Australia; and
(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

8542 – Report for removal from Australia
The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.
8543 - Facilitate removal from Australia
The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.
8551 – Obtain approval for certain occupations
(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations, or occupations of a similar kind:
(a) occupations that involve the use of, or access to, chemicals of security concern;
(b) occupations in the aviation or maritime industries;
(c) occupations at facilities that handle security-sensitive biological agents.

(2) In this clause:
Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for
this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify the chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.
8553 – Must not be involved in activities prejudicial to security
The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
8554 – Must not acquire specified goods
(1) The holder must not acquire any of the following goods:
(a) weapons;
(b) explosives;
(c) material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.
8555 – Obtain approval before undertaking specified activities
The holder must obtain the Minister’s approval before undertaking the following activities, or activities of a
similar kind:
(a) flight training;
(b) flying aircraft.

8556 – Must not communicate with specified entities or organisations
The holder must not communicate or associate with:
(a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or
(b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

8560 – Obtain approval to acquire chemicals of security concern
(1) The holder must obtain the Minister’s approval before acquiring chemicals of security concern.
(2) In this clause:
chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

8561 – Must attend interview if directed
If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder’s visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.
8562 – Must not take up specified employment
(1) The holder must not take up employment in:
(a) occupations that involve the use of, or access to, weapons or explosives; or
(b) occupations of a similar kind.

(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.
8563 – Must not undertake specified activities
(1) The holder must not undertake the following activities, or activities of a similar kind:
(a) using or accessing weapons or explosives;
(b) participating in training in the use of weapons or explosives;
(c) possessing or accessing material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.
8614 – Notify travel
The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.
8616 – Notify contact with certain individuals or organisations
(1) The holder must notify Immigration of the details of any contact with any individual who is known by the holder to have been charged with, or convicted of, a criminal offence.
(2) Subclause (1) does not apply to:
(a) contact in the course of attending a therapeutic or rehabilitative service; or
(b) contact in connection with legal proceedings or legal advice or
(c) incidental contact.

8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.
8625 – Notify changes in personal details
The holder must notify the Minister of any change in the following:
(a) the holder’s name;
(b) an address of the holder;
(c) a phone number of the holder;
(d) an email address of the holder;

within 2 working days after the change occurs.

Date(s) of hearing:	6 and 7 January 2025
Counsel for the Applicant	Jessie Taylor and Lawson Bayly
Solicitors for the Applicant:	Christian Boffa Victoria Legal Aid
Solicitors for the Respondent:	Anthony Gardner Mills Oakley