Yeuvaaraja and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 488

Yeuvaaraja and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 488 (2 May 2025)
Applicant/s:  Premkumar Yeuvaaraja
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/1093

Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:2 May 2025
Decision:The Tribunal affirms the decision under review.

.............[SGD]...........................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – refusal to grant visa on character grounds under s 501(1) of the Migration Act 1958 – whether discretion to refuse to grant a visa should be exercised – applicant engaged in family violence - primary considerations of family violence, protection and expectations of the Australian community weigh in favour of refusal – best interests of minor children and risk of harm if returned to Malaysia weigh in favour of granting visa – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
EPU19 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
FUD18 v Minister for Home Affairs [2021] FCAFC 132
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Splendido v Assistant Minister for Immigration and Border Protection [2019] FCAFC 132
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
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 of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Statement of Reasons

The Applicant is a citizen of Malaysia who seeks review of a decision of the Minister’s delegate dated 13 February 2025 refusing to grant the Applicant a Bridging E (Class WE) visa (the bridging visa) on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth).
Background
The Applicant was born in Malaysia on 16 December 1990 and is 34 years old. He described his childhood as painful. His parents and four siblings live in Malaysia.
The Applicant first arrived in Australia on 19 May 2011 for a short visit. Thereafter he went back and forth between Malaysia and Australia until 31 December 2012 when he returned to Malaysia where he stayed for the next three years.
He met his partner in 2015 in Malaysia and they developed a very strong bond. Their relationship was strongly opposed by her family whose brothers are known to be involved in gang activities. They have received threats of violence. They decided to come to Australia to try to find a way of being together without fear of harm from her family.
On 10 February 2016, the Applicant arrived in Australia on a visitor visa. He was included as a dependent on his partner’s application for a protection visa on 5 May 2016. The application for a protection visa was refused on 12 April 2017. The delegate who made the decision was not satisfied that the Applicant and his partner were owed protection obligations.
In 2018 the Applicant was convicted in the Dandenong Magistrates Court for damaging property and unlawful assault. The assault involved family violence towards his pregnant partner, but she remains supportive of him.
The Applicant and his partner have two children, born in Australia on 4 December 2017 and 5 May 2019.
The Applicant applied for the bridging visa on 7 March 2022.
There were further offences relating to property damage and causing injury for which the Applicant was convicted on 22 August 2023. The Applicant was sentenced to an aggregate of three months’ imprisonment.
On 22 February 2024, through immigration lawyers, the Applicant and his partner applied for a s 48B ministerial intervention on the grounds of fearing significant harm from the partner’s family and connected gangs plus fear of being targeted as retribution for a previous stabbing incident. On 4 November 2024, the Assistant Minister declined to intervene.
On 13 December 2024, the Applicant was served with a notice of intention to consider refusal of the bridging visa which invited the Applicant to comment on information held by the Department of Home Affairs. That information was said to indicate that the Applicant may not pass the character test as defined in s 501(6)(d), namely that if allowed to remain in Australia there was a risk that the Applicant would engage in criminal conduct. The Applicant responded to the notice on 7 January 2025 by providing a personal circumstances form.
On 13 February 2025, a delegate of the Minister decided to refuse to grant the Applicant the bridging visa under s 501(1). The Applicant applied to the Tribunal to review that decision on 17 February 2025. The hearing before the Tribunal took place on 23 April 2025. The Applicant and his partner gave oral evidence to the Tribunal.
THE LEGISLATIVE SCHEME
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(d)In the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Sabharwal,[2] said that s 501(6)(d)(i) requires an ‘evaluative judgment by the decision-maker’ as to whether the decision-maker is satisfied there is such ‘a risk’. If I am so satisfied, then the discretion is enlivened, and I may refuse to grant a visa having regard to Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[3] The Tribunal is bound by s 499(2A) to comply with any directions (such as the Direction) made under the Migration Act.
[2] [2018] FCAFC 160 (‘Sabharwal’) at [2] as cited by Perry J in EPU19 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [175].
[3] Direction No 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
It follows that the legislative scheme provides for a two-step process. The first step is the evaluative judgment as to whether the Applicant is of good character and in particular in this case whether there is a risk of further criminal conduct. The second step arises if I am not satisfied that the Applicant is of good character in which case, I may exercise a discretion to refuse to grant the Applicant a visa.
The Applicant does not concede that he fails the character test and contends that the risk of him harming the community does not meet the required threshold.
The first step involves a forward-looking process to evaluate the risk of a person engaging in the future in criminal conduct in Australia. In Minister for Immigration & Ethnic Affairs v Guo,[4] Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
[4] [1997] HCA 22; (1997) 191 CLR 559 at 574–5.
In Assistant Minister for Immigration and Border ProtectionvSplendido,[5] Mortimer J said:
[77] The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, …
[78] The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
[5] [2019] FCAFC 132 (‘Splendido’).
Wheelahan J added that the evaluation of the risk of offending in the future must have an ‘evident, intelligible and rational foundation’.[6]
[6] Ibid [131].
In FUD18 v Minister for Home Affairs,[7] at [68], the Court explained:
… The test in s 501(6)(d) is that “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would” engage in certain types of conduct, including “engage in criminal conduct in Australia”, or “harass, molest, intimidate or stalk another person in Australia”, or “vilify a segment of the Australian community” et cetera. As can be seen, the word “risk” in the context of s 501(6)(d) clearly bears the first of the two meanings of “risk” referred to earlier; the possibility or probability of something occurring in the future. The risk is that the person would or might do one or more of the identified acts in s 501(6)(d) in the future.
[7] [2021] FCAFC 132.
As to the level of risk required to satisfy the statutory test, Kerr J said in Sabharwal at [84] that ‘a derisorily small possibility’ is not sufficient.[8] In that decision, Kerr J referred to the terms of the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at paragraph 46 of Schedule 1, which states that the ‘intention’ of s 501(6)(d)(i) was that ‘the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’[9]
[8] Sabharwal (n 2) [84]. The decision of Kerr J was overturned on other grounds.
[9] Ibid [83] .
The approach of Kerr J is consistent with paragraph 6(2) of Annex A to the Direction which provides that ‘the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance’ of future offending.
The second step involves the exercise of a discretion guided by the considerations set out in the Direction.
For the purposes of deciding whether to refuse a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:[10]
(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.
[10] The Direction (n 3) at paragraph 8.
The other considerations are:[11]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
[11] Ibid 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[12]
CONSIDERATION
[12] Ibid 7(2)
Does the Applicant Pass the Character Test?
The first issue to consider is whether, in the event that the Applicant was allowed to remain in Australia, there is a risk that he would engage in criminal conduct. As set out above the level of risk required is more than a minimal or trivial likelihood of risk. Some guidance for the decision-maker is provided by Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[13]
If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
[13] (1996) 68 FCR 422, 425.
I turn now to consider the nature of the Applicant’s criminal activity and whether it reflected adversely on his character. The Applicant came to Australia with his partner in February 2016. He engaged in significant criminal conduct on 29 November 2018 and on 4 and 6 June 2022.
The 2018 conduct involved family violence against his current partner. The Applicant pleaded guilty and was convicted of unlawful assault and intentionally damage property. He received a community corrections order for 12 months and was required to perform 150 hours of unpaid community work which included 60 hours of programs for treatment and rehabilitation. The statement of alleged facts in the Police brief described the offence: the Applicant ‘punched the victim to the arms, legs and head with a closed fist’ and then threw and broke two wooden chairs inside the home.[14] Three and a half hours later, they argued again and he punched her again to the arms.[15]
[14] G-Documents, 41.
[15] Ibid.
In his evidence to the Tribunal, the Applicant admitted hitting his partner and causing her pain to her shoulder but he said that he did so with an open hand. I do not accept this evidence from the Applicant and I prefer the account in the record in the Police brief which was based on a contemporaneous statement from his partner and which includes a record that the Applicant made full admissions to assaulting the victim and damaging property. In her oral evidence to the Tribunal, the Applicant’s partner said that she did not say that he punched her but that “he beat me – he hit me” adding that it was a long time ago and she could not remember. Either way, it was a serious act of family violence made even more abhorrent because she was four months pregnant with their second child. Not only did he hit his pregnant wife in two separate incidents on the one day, but he also threw two wooden chairs in the house, which broke them and damaged an internal door. The Applicant was clearly in a rage over an extended period of time and it must have been extremely frightening for his partner.
There was a further episode of violence by the Applicant on 4 and 6 June 2022. The Applicant smashed the window of a work colleague’s car and then two days later smashed the windscreen of a related person’s car. When they confronted the Applicant outside of his house, he produced a knife and stabbed one of them in the chest causing him to be hospitalized.[16] When arrested, the Applicant made full admissions and appeared to be genuinely remorseful.
[16] Ibid 47.
On 22 August 2023, the Applicant was convicted of intentionally causing injury for the stabbing incident and two counts of criminal damage. He was sentenced to an aggregate of three months imprisonment and a community corrections order for 12 months. In his oral evidence to the Tribunal, the Applicant said that he had been harassed by his work colleagues for one and a half years and that one of them spoke about his wife in an obscene way. He said he was drunk and angry when he stabbed him.
In addition to his convictions for violent offending, the Applicant appeared in the Magistrates Court on 16 December 2020 and 20 April 2022 for contravening conditions imposed under community correction orders. The Applicant said that the contraventions related to not attending court as required but they also appear related to his failure to attend the specific rehabilitation and treatment programs which were conditions of the community correction orders.

The Applicant failed to attend any sessions of the Anglicare Men’s Behaviour Change Program to which he was referred in 2019. He said he was careless and did not understand the seriousness of the matter at that time. He also said that he became unemployed in 2019. It is apparent that he was stressed financially because he received a notice to vacate due to unpaid rent in March of 2019. His wife was pregnant with their second child who was born in May 2019. I accept that these were difficult times for the applicant which no doubt distracted him from complying with the conditions of the community correction order dated 4 December 2018. However, that does not excuse his failure to comply with the clearly written conditions on the community correction order signed by the applicant and dated 4 December 2018.[17]
[17] Ibid 34.
The 16 December 2020 community correction order imposed further requirements to attend treatment and rehabilitation programs.[18] He was referred again to Anglicare but failed to attend any group sessions. He said he went on his own to at least two sessions and then later about five or six sessions. In total, he did less than 10 sessions amounting to less than 20 hours of rehabilitation which fell way short of the hours required by the community corrections orders. The Applicant said that he did not complete the required programs “because the Judge said I didn’t have to” but that seems very unlikely and is contrary to the terms of the orders made on 16 December 2020 and 20 April 2022.
[18] Ibid 36
The Applicant’s failure to attend appropriate rehabilitative programs is very concerning. First, it shows a disregard for authority because he failed to comply with court orders. Second, it shows that the Applicant has failed to address the factors that caused him to offend. The Applicant said that he learnt anger management strategies from the few sessions he did attend but I consider that he is not adequately rehabilitated. The simple fact is that the Applicant has not completed any rehabilitative program. Having committed serious family violence, the Applicant should have attended and completed a specific program addressed to family violence. As a consequence I consider that there remains a real and significant risk that he will reoffend.
My opinion is supported by a psychologist’s report dated 22 July 2022 which recorded a diagnosis of numerous mental health disorders which remain untreated.[19] In terms of a risk of reoffending, the psychologist expressed his opinion that the prognosis for the Applicant was positive but only if he engaged in the psychological treatment he recommended. Under cross examination, the Applicant admitted not undergoing the recommended treatment but said he did not have the opportunity to do so since his last conviction in August 2023 because he went into prison and then detention from January 2024. However, he did have an opportunity from July 2022 until August 2023 when he was in the community but he failed to do so which means that he has failed to address the mental health problems which appear to have contributed to his offending. The Applicant said that he would complete the rehabilitative and treatment programs if released, which reflects positively on him, but given his failure to do so in the past I cannot be confident that he will do so. In any event, I am required to take into account the evidence of rehabilitation achieved by the time of the decision. The evidence clearly indicates a failure to rehabilitate.
[19] Respondent’s Tender bundle, 25-44.
The Applicant expressed remorse and assured me that he would not reoffend because he has learnt to control his anger and because he wants to be there for his wife and children. I accept that this is a significant motivating factor but his failure to attend appropriate rehabilitative programs or to undergo the recommended treatment for his mental health issues means that there is more than a minimal or remote chance of further criminal conduct. The Applicant asked for a second chance to prove his good character, but he was given a second chance on 16 December 2020 and a third chance on 20 April 2022 and then, less than two months after that last community correction order, he stabbed his work colleague with a knife. The violent nature of his offending and the fact that it was repeated, resulting in a significant cumulative effect, when considered in the context of a lack of rehabilitation and treatment leads me to conclude that there is a significant risk of reoffending.
Offences involving family violence are very serious. Due the serious nature of his offending and because he is not reformed, I am not satisfied that the Applicant passes the character test.
The Applicant having failed the character test, I now turn to consider if he should be refused a visa guided by the considerations set out in the Direction.
Protection of the Australian Community – 8.1 of Direction 110
There is a very significant overlap between the factors considered above as part of the character test and the factors relevant to protection of the Australian community. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[20] As required by paragraph 8.1(2) of the Direction, I give consideration below 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.
[20] The Direction (n 3) 8.1(1).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110
The Applicant’s criminal record is set out in the report from the Australian Criminal Intelligence Commission.[21] The November 2018 offence was a violent act of physical assault against the applicant’s pregnant partner. It was a serious act of domestic violence. The June 2022 property offending was deliberately planned and took place over two separate days. The intentionally cause injury offence involved a knife used as a weapon, which the Applicant deliberately went inside his house to obtain for the obvious purpose of stabbing the victim. This second episode of violence occurred whilst the Applicant was subject to a community corrections order and only two months after appearing in the Magistrates Court. The cumulative effect of the repeated violence is very significant.
[21] G-Documents at 32-3.
I conclude that this is a very significant factor in terms of whether I should refuse to grant a visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[22] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
[22] The Direction (n 3) at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[23] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[23] (2014) 225 FCR 424.
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be very serious. By committing acts of family violence and stabbing with a knife, the Applicant has caused significant physical and emotional trauma and damage to property. If the Applicant continued to engage in similar conduct it would have serious consequences.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
The Applicant has expressed remorse for his offending but for the reasons expressed above, I have concluded that there is a real likelihood of further criminal conduct because he has not engaged in appropriate rehabilitation and has not addressed the issues which contributed to his past offending. My opinion is supported by the independent and authoritative psychologist report from July 2022 which recommended specific treatments for numerous mental disorders that needed to be treated in order to reduce the likelihood of further reoffending. The Applicant did not undertake the recommended treatment. Given the seriousness of the past offending, the risk of further offending is unacceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[24] The Applicant has committed serious crimes involving domestic violence and the use of a dangerous weapon. It is my view that the Applicant’s 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 is unacceptable.[25] In the circumstances where there remains a significant risk of re-offending, I conclude that the protection of the Australian community is a factor that weighs heavily against the Applicant.
[24] The Direction (n 3) at 8.1(1).
[25] Ibid 8.1.2(1).
Family Violence – 8.2 of Direction 110
As stated above in these reasons, the Applicant has engaged in family violence which caused fear and physical pain to his partner. In considering the seriousness of the family violence engaged in by the Applicant, the following factors in paragraph 8.2(3) are relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
It is not acceptable in Australia (or elsewhere for that matter) for a man to beat his wife. The Applicant hit his partner after an argument in the morning and later again in the afternoon. It was fortunate that the police arrived soon after the second beating or it may have continued. I take into account that the Applicant engaged in family violence on no other occasions, so in that sense it was not frequent or repeated. The Applicant accepts responsibility for his conduct but he has not completed any rehabilitative program for domestic violence. He has not received the recommended treatment for his mental health issues. In my opinion the Applicant has not made the appropriate effort to address factors which contributed to his conduct. The Applicant expressed genuine commitment to improving himself for the sake of his children, but his older child was born and living in the house at the time of his previous offending and that clearly made no difference. There is an unacceptable risk of further family violence.
The Applicant’s domestic violence is a factor that weighs heavily in favour of refusing the Applicant’s visa.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of the Direction:
(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.
I note for the purpose of this consideration that the Applicant’s immediate family members, namely his partner and two children, are not Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. They are holders of bridging visas and have no right to reside in Australia indefinitely. It follows that the impact of my decision on them is not a factor that I am obliged to consider under the terms of paragraph 8.3(1) of the Direction. However, the interests of the children is a factor that I will consider below under paragraph 8.4 of the Direction.
Despite not being considered under this primary consideration, I consider that the partner’s interests are not irrelevant to the exercise of my discretion as to whether to refuse to grant the Applicant a bridging visa. In that regard, I take into account that she will suffer emotionally, practically and financially if the Applicant returns on his own to Malaysia as a result of my decision. She genuinely loves the Applicant and it will be difficult for her to raise the children on her own. She has no other family help in Australia and therefore she relies heavily on the Applicant. She has struggled over the last 20 months when he has been in prison and detention.
The Applicant has lived in Australia for about 10 years and since he was 25 years old. His children were born in Australia and have lived here since birth. The ties that the Applicant has to Australia are mainly through his family, but he also has some limited ties arising from his work in Australia which included working in a restaurant and in a powder coating company. He made some social links while working but said that he lost his right to work in about 2020 and that he has few friends now.
In conclusion with respect to ties to Australia, I conclude that the Applicant’s ties to Australia is a factor that weighs in favour of the Applicant but not significantly.
Best interests of minor children – 8.4 of Direction 110
I must determine whether the visa refusal and the non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[26]
(a) the nature and duration of the relationship between the child and the non-citizen. 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 (including whether an existing Court order restricts contact);
(b) 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;
(c) 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;
(d) 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;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) 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;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[26] Ibid 8.4(4).
The Applicant has two children. His daughter is seven years old and his son is five years old. I have no doubt that the Applicant has a very loving relationship with his children and that if released he would play a very positive role in their future. If he returned to Malaysia, the effect of the separation of the children from their father would be very detrimental to them. They could keep in contact by video calls but that is a poor substitute for his physical presence with them. Being brought up by a single parent in not in their best interests. I take into account that if their father was released then there is a risk that they would be exposed to family violence. I also take into account that the Applicant has been absent from the family home for the last 20 months. The Applicant’s daughter has experienced a significant decline in her mental health in his absence according to a letter from the kindergarten. Her mental health would decline further if her father were removed to Malaysia. Overall, it is in the best interests of the children for the father to be released. This is a factor that weighs significantly in favour of granting a bridging visa to the Applicant.
Expectations of the Australian community – 8.5 of Direction 110
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[27] The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious because it included physical violence against his pregnant partner and the stabbing of a work colleague. There is an unacceptable risk of further re-offending. The nature of these offences, in particular the violence against a pregnant woman, is such that the Australian community would expect that the Applicant should not be granted a bridging visa.
[27] Ibid 8.5(1).

This is a factor that weighs heavily in favour of not granting a visa.
Other Considerations
In deciding whether to exercise the discretion to refuse to grant a visa, I must also take into account the ‘other considerations’ listed in the Direction, but these are not exhaustive.[28]
[28] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303, 258 [86].
Legal Consequences of Decision – 9.1 of Direction 110
As an unlawful citizen, the Applicant is liable under s 198 to be removed from Australia as soon as reasonably practicable. He cannot apply for a protection visa because he has already tried and failed. He was found by a delegate of the Minister in 2017 not to be owed protection obligations. He withdrew his application for a review of that decision and his subsequent request to the Minister for intervention to allow him to file a further protection visa application was unsuccessful. However, in his response to the notice of intention to consider refusal of the bridging visa, the Applicant did raise claims of a fear of harm if returned to Malaysia which may give rise to non-refoulement claims which I must consider pursuant to paragraph 9.1.2(1) of the Direction.
The Applicant and his partner both fear harm from her family in Malaysia who disapprove of their relationship. Her brothers have hit her and have threatened both of them with violence. They tried to take evasive action by moving to another area in Malaysia and by reporting the matter to the police, but her brother found them. They came to Australia so that they could live together without fear of harm from her family. The Applicant is scared that if he returns to Malaysia his partner’s family will seek revenge and harm him. I consider this fear of harm to be genuine. Both the Applicant and his partner gave oral evidence as to the past violence against them and why they feared further violence if either of them returned. I consider that their fear which must have been significant to cause them to leave Malaysia.
The Applicant raised a separate fear based on rumours of retaliation by the son of the victim of the 2023 offences but there was little evidence to support this claim which was only based on rumour.
I consider that there is a real risk of violence being inflicted on the Applicant by his partner’s family if he returns to Malaysia. This risk of harm is also relevant to the extent of impediments if removed which I will consider next. The risk of harm is a factor that weighs in favour of granting the bridging visa to the Applicant.
Extent of impediments if removed – 9.2 of Direction 110
The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:[29]
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
[29] The Direction (n 3) 9.2(1).
The Applicant is 34 years old and has been diagnosed with numerous mental health disorders. The Applicant lived in Malaysia for the first 20 years of his life so there would not be any significant language or cultural barriers to overcome. The most significant impediment would come from his partner’s brothers and family who are likely to follow through on their threats of violence against the Applicant. I consider there to be a real risk of violence but the country information on Malaysia suggests that some protection would be provided by the local police.[30]
[30] Respondent’s Tender Bundle, TB5 146-93.
The Applicant would face impediments in establishing himself in Malaysia which would be exacerbated by his mental health issues and the risk of violence from the partner’s family. I believe the Applicant will be able to maintain basic living standards after a period of adjustment, but this will be made more difficult because he says that his family is unlikely to provide him with any support.
The extent of impediments is a factor that weighs in favour of granting the Applicant a bridging visa.
Impact on Australian business interests – 9.3 of Direction 110
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have found that the Applicant does not pass the character test and I have considered the specific circumstances relating to the Applicant as part of my consideration in accordance with the Direction. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I exercise the power under s 501(1) to refuse to grant the visa to the Applicant.
The three primary considerations of family violence and the protection and expectations of the Australian community weigh against the Applicant. I give the most weight to the protection of the Australian community which is a very significant factor because of the serious nature of the family and other violence and because of the Applicant’s failure to adequately rehabilitate himself resulting in an unacceptable risk of harm to the Australian community if he were released.
The countervailing considerations are the interests of the two children, the ties to Australia, the risk of harm if returned, the legal consequences and the extent of impediments if removed. Of these countervailing considerations I give significant weight to the interests of the Applicant’s children and the risk of harm in Malaysia posed by the partner’s family, but I give less weight to the other factors. The children are very young and will grow up in the absence of their father if he is removed to Malaysia. I also have considered the difficulties his partner will have raising the children on her own. With respect to the risk of harm in Malaysia, it is difficult to access the likelihood of the partner’s brothers inflicting harm to the Applicant if he is returned, but I accept the Applicant and his partner’s evidence that there have been threats of violence and that the risk of harm is genuinely held.
My evaluation is that the primary considerations significantly outweigh the countervailing considerations primarily because the protection of the Australian community is paramount. The Applicant has committed repeat offences of violence and has failed to take the necessary steps to rehabilitate himself including a failure to undergo recommended mental health treatment. The risk of further violence is unacceptable to the Australian community and the preferable decision is for the Applicant to be returned to his country of origin. The Applicant has repeatedly abused the privilege of remaining in Australia. He has himself to blame for the consequences of his actions.
The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

...........[sgd].............................................................
Associate
Dated: 2 May 2025

Date of hearing: 23 April 2025

Applicant’s Representative:
Self-represented

Respondent’s Representative: Ms Mary Baras-Miller (Australian Government Solicitor)

Date of hearing:	23 April 2025
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Ms Mary Baras-Miller (Australian Government Solicitor)