YLLP and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 998
•30 June 2025
YLLP and Minister for Immigration and Citizenship (Migration) [2025] ARTA 998 (30 June 2025)
Applicant/s: YLLP
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3154
Tribunal:Deputy President Burford
Place:Perth
Date of decision: 30 June 2025
Date of written reasons: 14 July 2025
Decision:The Tribunal affirms the decision under review.
...................................[sgd].....................................
Deputy President
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – escalation in the seriousness of the Applicant’s offending – aggravated home burglary and commit – unlawful and indecent assault – property offences – Applicant is a 40-year-old citizen of Iran – Applicant has been granted a protection visa – Applicant cannot be sent back to home country – family violence restraining orders do not weigh for or against revocation – Applicant arrived in Australia as an unauthorised maritime arrival before 13 August 2012 – section 198D of the Migration Act does not apply to the Applicant – Applicant is incarcerated – plausibility of the Applicant’s removal to a third country is unknown – Non-Revocation Decision is affirmedLegislation
Crimes Act 1914 (Cth) ss 85ZR, 85ZS
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 197D, 198, 198AD, 198AE, 199B, 499, 501(3A), 501(6), 501(7)(c), 501CA, 501CA(4), 501F, 501E
Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) s 36
Migration Regulations 1994 (Cth) regs 1.03, 2.20, special return criterion 5001
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Cunningham v Khan [2006] WASC 28
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hartwig v Hack [2007] FCA 1039
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Khalil and Minister for Home Affairs [2019] FCAFC 151
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
RRRB v Minister for Immigration and Multicultural Affairs [2025] ARTA 471
Singh v Minister for Home Affairs [2019] FCA 905
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024) – paras 5.2, 6, 8, 9
Statement of Reasons
The decision in this matter was made and provided to the parties on 30 June 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].
The Applicant seeks review of a decision of a delegate of the Minister for Immigration and Citizenship under section 501CA(4) of the Migration Act1958 (Cth) not to revoke the mandatory cancellation of the Applicant’s Class XA Subclass 866 Protection visa. That visa was cancelled on 15 July 2024 under s 501(3A) of the Migration Act.[2]
[2] HB1, page 111.
BACKGROUND
The Applicant is a 40-year-old Iranian citizen. He first arrived in Australia by boat on 15 December 2010 at Christmas Island at the age of 26.[3] On January 2012, he was granted a protection visa.[4] He has returned to Iran once since arriving in Australia, from 15 January to 20 February 2014.[5]
[3] HB1, page 116.
[4] HB1, pages 103 – 115.
[5] HB1, page 116.
The Applicant’s parents are deceased. He has seven (7) siblings, six of whom reside in Iran, while one lives in Norway.[6] He has an Australian citizen daughter from a previous relationship who is around 12 years old. She lives with her mother and siblings.
[6] ASFIC at [5].
On 6 October 2022, the Applicant was convicted in the District Court of Western Australia of ‘aggravated home burglary and commit’ and ‘unlawful & indecent assault’.[7] He received a sentence of 5 years’ imprisonment for the aggravated home burglary offence, and 12 months’ imprisonment for the unlawful and indecent assault (to be served concurrently).
[7] HB1, page 42.
On 15 July 2024 the Applicant’s visa was cancelled under s 501(3A) of the Act on account conviction and sentence for these offences (the cancellation decision).[8]
[8] HB1, page 120.
The Applicant was notified of cancellation decision by hand at Acacia Prison and was invited to make representations to the Minister about revocation.[9] The Applicant sought revocation within the required time.[10]
[9] HB1, page 120.
[10] HB1, pages 79-102.
The Applicant made representations to the Minister requesting revocation of the visa cancellation and on 3 April 2025 a delegate of the Minister decided not to revoke the visa cancellation under s 501CA (the reviewable decision).[11] The Applicant was notified of the decision on 7 April 2025.[12]
[11] HB1, page 22.
[12] HB1, page 159.
On 15 April 2025, the Applicant applied to the Tribunal for review of that decision not to revoke the cancellation of his visa.[13]
[13] HB1, page 4.
In determining the application for review, the issues for consideration are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked.[14]
[14] See s 501CA(4) of the Migration Act.
For the reasons outlined below, I have decided that the Applicant does not pass the character test. Further, having considered all the circumstances of the Applicant’s case and having weighed the relevant matters in Direction no. 110, I have decided that there is not another reason why the Cancellation Decision should be revoked.
Accordingly, I have decided that the decision under review should be affirmed.
VISA CANCELLATION ON CHARACTER GROUNDS
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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 a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[15] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.[16]
[15] Migration Act s 501CA(3).
[16] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was conducted in person at the Tribunal’s Perth Registry on 17 June 2025. The Applicant appeared in person and was represented by Mr Mukesh Chand of Shiva’s Migration Services. The Applicant’s representative appeared by video. At the time of the hearing the Applicant was serving a sentence at Acacia Prison. The hearing was assisted by an interpreter who was fluent in the English and Farsi (Persian) languages. The Respondent was represented by Mr David Brown of the Australian Government Solicitor. The Respondent’s representative also appeared via video.
The Applicant gave evidence and was cross-examined at the hearing. No other witnesses were called.
A Hearing Book compiled by the Respondent and agreed upon by the parties was exhibited at the hearing (HB).
The Hearing Book included the following submissions:
(a)The Applicant’s Statement of Facts, Issues and Contentions, dated 14 May 2025 (ASFIC);
(b)The Respondent’s Statement of Facts, Issues and Contentions, dated 28 May 2025 (RSFIC); and
(c)The Applicant’s submissions in reply, dated 4 June 2025 (Reply).
The parties were invited to make post-hearing submissions regarding issues arising under the consideration of the legal consequences of the decision. The Respondent made post-hearing submissions on this issue on 20 June 2025, and the Applicant’s reply submission was received on 24 June 2025. I have also had regard to those submissions.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s record of criminal offending in Australia commenced in 2016. A detailed table of his offending history is at Annexure A.[17]
[17] Taken from the RSFIC.
The Applicant has been convicted of a number of offences including:
·Sexual- and violence-related offences: Aggravated home burglary and commit (2022),[18] Unlawful and indecent assault (2016 – Spent conviction), Unlawful and indecent assault (2022), Common assault (2020);
·property offences: Possession of stolen or unlawfully obtained property (2022), Home burglary and commit (2022), Stealing (2022);
·driving and traffic related offences: No authority to drive – suspended (5 counts) (2017), No authority to drive – suspended (3 counts) (2018), No authority to drive – suspended (2020);
·drug offences: Possess a prohibited drug (Methylamphetamine) (2018), Possess drug paraphernalia in or on which there was a prohibited drug or plant (2018), Possess drug paraphernalia in or on which there was a prohibited drug or plant (2 counts) (2019), Possess a prohibited drug (Methylamphetamine) (2019), Possess a prohibited drug (Cannabis) (2019), Possess drug paraphernalia in or on which there was a prohibited drug or plant (2020), Possess drug paraphernalia in or on which there was a prohibited drug or plant (2022); and
·offences involving breaches of court and other offences: Possessed a controlled weapon (2019), Breach of protective bail conditions (2019), Breach of Family Violence Restraining Order (2 counts) (2019), Without lawful excuse trespassed on a place ((2020), Breached violence restraining order (48 counts) (2022).
The 16 July 2021 Offences
[18] The circumstances of aggravation included the commission of the sexual offence.
The Applicant’s most serious offending occurred on 16 July 2021 and gave rise to convictions on 6 October 2022 in the District Court of Western Australia for ‘aggravated home burglary and commit’ and ‘unlawful & indecent assault’ (the 16 July 2021 offences).[19] As noted earlier, he was sentenced to a term of imprisonment of 5 years for the ‘aggravated home burglary offence’ and 12 months for the ‘indecent assault’, to be served concurrently.
[19] HB page 42; HB page 202.
The Applicant was 36 years of age at the time of these offences. According to the sentencing remarks,[20] on the night of the offence he went to the unit of an acquaintance where he thought his former girlfriend, Ms Brown, was staying. The victim, Ms M, was in bed in a guestroom and was feeling unwell. The Applicant knocked on the door and when no one answered, kicked the door twice forcing it open. The Applicant entered the home and came to victim’s bedroom and turned on the light. He spoke to the victim asking who she was, left the room and then re-entered and left again. Ms M could hear the Applicant moving around the unit and called the owner to alert him and ask him to come home. The sentencing remarks indicated it was clear she was panicked at the time. The Applicant came back into her bedroom and started going through her bag.
[20] HB pages 48-53.
The sentencing judge described what happened as follows:[21]
You then started yelling, “Where is he? You know where he is. Do you know what he’s fucking done? He’s been fucking my girlfriend”. [Ms M] said she knew nothing about that and you then said, “So now I have to fuck you”. You leant over the victim who was still in the bed and tried to touch her and said, “Give me a kiss”. She said, “No” and got out of the bed and tried to get out of the bedroom but you stood in the doorway and said, “Where are you going?”. You kept trying to get her to kiss you. She said she needed to go to the toilet and you then reached into your back pocket. She said, “No. No. Please don’t.” You said, “You’re going to do as you’re told”, and she said, “Yep.” You then told her to sit on the bed like a good girl. She sat down. You told her to give you a hug. She said, “No.” You became angry. Eventually she put her arms around you but wasn’t touching you. You continued to be angry and said, “No. Do it properly”, and then you pushed your body weight on top of her and said, “Give me a kiss.” She put her hands up to her face. You grabbed her left breast with your hand over her top and groped her breast. She said, “Please don’t do this. Please don’t do this. I just need to pee.” You said that she wasn’t going anywhere but when she burst into tears and begged you, you let her go to the toilet. Once she was in the toilet, she locked the door and managed to call 000. From the other side of the door, you said, “Don’t fucking mention this”, and then you left the unit and she was still locked in the toilet at that time.
[21] HB page 50.
The Applicant was arrested the next day but denied going into the unit.
In submissions the Applicant stated that, with respect to these offences, he went to a friend’s residence to collect a debt. When his friend failed to answer the door he became frustrated and kicked the door open, noting he was under the influence of drugs and not thinking clearly. Upon entering, he discovered that his friend was not present. In relation to the indecent assault, the Applicant acknowledged that he spoke to the victim but claimed he has no recollection of any physical contact due to his intoxicated state at the time.[22]
Violence restraining order breaches
[22] ASFIC at [29], HB page 164.
In sentencing remarks for the 16 July 2022 offences, the Judge noted that prior to the sentencing hearing the Applicant had been convicted of 50 violence restraining order breaches and was serving a 21-month sentence for a range of recent offences including breaches, the last of which occurred the day prior to the 16 July 2022 offences.[23]
[23] HB page 52.
The Applicant received a combined total of more than 12 years imprisonment for breaches of violence restraining orders, though many were to be served concurrently.
The Applicant was convicted on 31 July 2019 of two counts of breaching a family violence restraining order in place for the protection of his former partner, stepchildren and daughter.[24] The Applicant’s daughter was the victim of one breach and his former partner was a victim of the other.[25] The breaches involved contacting his ex-partner, visiting their home and speaking to his then 5-year-old daughter in the garage.
[24] HB pages 296-298, 334-335.
[25] HB page 296.
The Applicant explained he was just trying to see his daughter but accepted in cross examination he knew he was not supposed to call his ex-partner or be at the property. He submitted that the restraining order was taken out by the Applicant’s ex-wife. He claims that he was attempting to maintain contact with his daughter and is currently seeking a variation of the order through the appropriate legal process.
In 2022 the Applicant was convicted of 48 counts of breaching a violence restraining order.[26] These were dealt with in two tranches before the Magistrates Court – 36 on 1 June 2022 and 12 on 9 June 2022.[27]
[26] HB pages 60-73.
[27] HB pages 54-58 and 60 -74.
The convictions relate events in 2021 following the grant of a two-year restraining order to the mother of the Applicant’s then girlfriend against the Applicant.[28] Between 22 May 2021 and 15 July 2021, the Applicant called victim 349 times and sent 423 text messages and attended her premises in breach of the terms of the restraining order.
[28] HB pages 337-338.
According to the Applicant, the restraining order was initiated by victim, who opposed his relationship with her daughter. The Applicant believed the order only prohibited him from attending the family’s residence. He explains that he contacted the mother to speak with his girlfriend, who did not have a phone, and that the mother would also call him to check on her daughter. The breach was identified by police through a phone search during the home burglary investigation, and not through a complaint.
The content of the communications with the victim included a screenshot of the live location of the protected person’s daughter and a message ‘If she not answer me or not call, If not seeing me you have to pay $5000.00 that’s for the fuck around’ and ‘7.30 I come take money. If she not show up.” [29]
[29] HB page 219.
The sentencing judge noted that the messages were not benign, describing the Applicant’s conduct as ‘unrelenting calls and texts which must have extracted a personal toll on the complainant’.[30] She sentenced the Applicant to a total effective sentence of 18 months’ imprisonment for the breaches. The magistrate dealing with the balance of the breaches noted that there was no conclusion to be reached other than that the Applicant had ‘a complete and utter disregard for the violence restraining order’.[31]
Property Offences
[30] HB page 59.
[31] HB page 56.
In addition to the ‘aggravated home burglary and commit’ conviction arising from the 16 July 2021 offences, the Applicant’s property offences include stealing, home burglary, home burglary and commit and possession of stolen or unlawfully obtained property.He received prison sentences for several of these offences.
The Applicant’s property offences included a home burglary and stealing where he plead not guilty and was found guilty having broken into the property through a roof cavity following the death of a friend whose body was still on the premises, stealing $3,000 worth of jewellery.[32] With respect to that offence the Applicant submitted that personal belongings of his were kept at a friend’s residence. Upon learning of the friend’s death, he went to retrieve his items before the friend’s family could intervene. His explanations were not accepted by the Court.[33]
Traffic offences
[32] HB pages 61, 278-279.
[33] HB page 61.
The Applicant has been convicted of a number of traffic offences including 9 convictions for driving while suspended. Eight of those offences occurred over a period of 8 months. Two of the offences occurred within a period of 4 days. The Applicant received a variety of penalties for these offences including fines and further suspensions. He was also sentenced to imprisonment several times for driving while suspended, including when under a term of suspended imprisonment.
The Applicant provided a number of explanations to police for these offences including that he misunderstood the length of the suspension,[34] that he thought he could still drive his wife’s car;[35] or that he was starting to apply for an extraordinary drivers license.[36] Before the Tribunal he admitted to driving after losing all his demerit points, stating that he continued to drive out of necessity for work.
Drug Offences
[34] HB page 320.
[35] HB page 319.
[36] HB page 308.
The Applicant has engaged in 8 drug-related offences. The Applicant’s offending comprises possession of illicit substances including methylamphetamine and cannabis and being in possession of materials associated with drug use.[37]
[37] HB pages 41 – 42.
The Applicant states he used drugs as a form of self-medication to cope with trauma experienced in 2010, when the boat he was on capsized near Christmas Island, resulting in the deaths of approximately 70 people, including several close friends.[38]
Other conduct and offending
[38] ASFIC [29], HB page 165.
The Applicant also has convictions for common assault and possession of a controlled weapon. He received fines for both.[39]
[39] HB page 44.
With respect to the common assault conviction, the Applicant stated that this offence involved him pushing his landlord in order to access the property to retrieve his belongings.[40]
[40] ASFIC [29], HB page 165.
The Applicant has an earlier spent conviction for indecent assault in 2016 when he was 31 years old. The victim was 18 years of age. While the Tribunal does not treat that matter as a conviction, it is reported in the prison program reports considered below and appears on the Applicant’s record. While the Tribunal notes the conviction was a significant period ago and is now spent, it has had regard to the conduct as it is permitted to do for Western Australian offences,[41] in particular as far as it is recorded in treatment reports considered in the context of the likelihood of reoffending.
[41] Such convictions are not caught by ss 85ZR and 85ZS of the Crimes Act 1914 (Cth), see Hartwig v Hack [2007] FCA 1039 at [11] and Cunningham v Khan [2006] WASC 28 [28]-[929]
According to the records, the Applicant engaged in conduct where he sought to force a younger acquaintance to kiss him.[42]
[42] HB page 325.
According to the Statement of Material Facts for the offence the victim was known to him. He attended her home address and she was sitting in the car. After having greeted her with a kiss on each cheek (as is Persian tradition), they had a conversation. The Applicant asked the victim if he could kiss her on the lips. She said ‘no’. The Applicant sought numerous times to kiss the victim. She leant away to avoid him and he grabbed her right breast. The victim pushed away again stating ‘no’. The Applicant persisted, continuing his attempts to grab the victim’s right breast, until she told him to leave.
While the Tribunal has had regard to this conduct, given the time which has passed, as noted below, it does not consider it adds to the overall assessment of the seriousness of the Applicant’s conduct, but to the extent reflected in the treatment reports is relevant to an assessment of likelihood of reoffending, though not decisively so.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[43] Failure to pass the character test arises as a matter of law.[44][43] Migration Act s 501(7)(c).
[44] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
As noted above, on 6 October 2022, the Applicant was convicted in the District Court of Western Australia of ‘aggravated home burglary and commit’ for which he received a sentence of 5 years’ imprisonment.[45]
[45] HB1, page 41.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, I am not satisfied that the Applicant passes the character test.[46]
[46] See Migration Act s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As I am not satisfied that the Applicant passes the character test, I must then determine whether there is another reason why the cancellation decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the cancellation decision should be revoked.[47]
[47] Migration Act s 501CA(4)(b)(ii).
I am required to form a state of satisfaction as to whether there is ‘another reason’ why the cancellation decision should be revoked, reasonably and on a correct understanding of the law.[48] In doing so I must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.[49]
[48] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[49] Migration Act s 499(2A).
Direction no. 110
On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act. Direction no. 110 commenced operation on 21 June 2024, replacing the previous Direction no. 99.[50]
[50] Direction no. 110 para 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[51] In considering the exercise of the power under s 501CA(4), informed by the principles set out in para 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[52]
[51] Direction no. 110 para 5.1(4).
[52] Direction no. 110 para 6 referring to paras 8 and 9.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[53]
·the protection of the Australian community from criminal or other serious conduct;
·family violence engaged by the Applicant (if any);
·the strength, nature and duration of the Applicant’s ties to Australia;
·the best interests of minor children in Australia affected by the decision; and
·the expectations of the Australian community.
[53] Direction no. 110 para 8.
The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[54]
·the legal consequences of the decision;
·the extent of impediments if removed; and
·the impact on Australian business interests.
[54] Direction no. 110 para 9.
I must also take into account any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked.
The principles set out in para 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’. Those principles highlight that the safety of the Australian community is the government’s highest priority and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred in those individuals will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community. The principles state that the community expects the government to cancel visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Direction provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community for a short period of time, Australia may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
Noting that primary and other considerations relevant to the individual case must be taken into account, Direction no. 110 states that, in some circumstances, the nature of the 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 revoking a mandatory cancellation of a visa including in circumstances where 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.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations.
·One or more primary considerations may outweigh other primary considerations.
The Applicant’s central contention was that the delegate was incorrect in finding that the Applicant represents an unacceptable risk to the Australian community and that the decision not to revoke the cancellation should be set aside. With respect to the matters arising for consideration under Direction no 110 the Applicant contended, in summary:[55]
[55] ASFIC, HB pages 160 – 171; Reply, HB page 585 – 588.
·The Applicant plead guilty to the charges he was convicted of on 6 October 2022.
·The Applicant has completed behavioural programs, maintained positive custodial conduct, and shows strong motivation to reintegrate.
·The Applicant experienced a significant emotional and psychological setback as a result of the trauma he endured in 2010 when the boat he was travelling on capsized, resulting in the deaths of approximately 70 people, including several of his close friends. This event has had a profound and lasting impact on his mental health.
·The traumatic experience has been further compounded by his prolonged inability to maintain contact with his daughter, a factor that has markedly contributed to his emotional dysregulation and deepened his sense of social isolation.
·The breach of family violence restraining order arose as a result of the Applicant attempting to maintain contact with his daughter and he is currently seeking a variation of the order through the appropriate legal process.
·The Applicant has ties to the community. He has lived in Australia for more than 14 years, having arrived by boat at Christmas Island in 2010 and being granted a protection visa in 2012. His daughter lives in Australia and he is currently going through the appropriate legal process to maintain close contact with her.
·He has contributed to the Australian community through employment, payment of taxes and child support payments for his daughter.
·It is in the best interests of the Applicant’s daughter that he remain in Australia to re-establish contact with her and participate in her life. This should outweigh any considerations weighing against revocation.
·The Australian community would never want children to grow up without their father, would favour revocation as the Applicant’s conduct was mainly due to his mental health issues and trauma and would be compassionate and willing to allow the Applicant to reintegrate into the Australian community, particularly when he has a minor child.
·As the Applicant is the subject of a protection finding and is not subject of removal provisions, the legal consequence on not revoking the cancellation of his visa is that the applicant will be transferred to immigration detention, where he is likely to remain indefinitely.
·The grant of a protection visa to the Applicant reflects the serious risks the Applicant faces if returned to his country of origin.
·The Applicant has been offered full-time employment and has consistently demonstrated qualities of trustworthiness, honesty, and a strong work ethic which make him a desirable asset in the workforce. His removal from Australia would result in the loss of a reliable and dedicated employee, to the detriment of both the local industry and broader community and in that sense would impact Australian business interests.
·Taking into account the compelling humanitarian considerations, his prospects of rehabilitation, the strong ties to the Australian community, and the serious legal and practical consequences of non- revocation, revocation is the appropriate and proportionate outcome in this case.
The Minister submitted, in summary, that:[56]
·Having regard to the Applicant’s extensive history of offending and the individual nature of those offences, his conduct and offending is serious. His criminal history comprises of serious and repeated conduct which breached the law and caused lasting physical and emotional effects on his victims. The harm which may be caused is extremely serious. The risk of the applicant re-offending is not just possible, but against his history and the absence of meaningful and proven rehabilitation, probable.
·The family violence consideration should be given neutral weight noting a lack of information regarding the grounds on which the family violence restraining orders where made.
·The Applicant came to Australia as an adult and other than his daughter he has limited ties here.
·It was accepted it was in the best interests of the Applicant’s daughter that the cancellation decision be revoked. However less weight should be afforded this consideration in the Applicant’s circumstances where the Applicant has not had contact with his daughter for 4 years and it appears her mother fulfils the parental role.
·Given the conduct the Applicant has engaged in, the Australian community expects that his visa should remain cancelled. The Applicant is not a person for whom the Australian community would show a higher level of tolerance. The Applicant did not spend his formative years in Australia, and his contributions to the community, prior to his offending, are lacking.
·The Applicant is the subject of a protection finding and as such his removal to Iran is not permitted. He would be subject to detention once released from prison however would not be able to be detained indefinitely.[57]
·The Applicant cannot be returned to his ‘home country’ Iran, and therefore the extent of the impediments that he would experience in that country is not a matter which should attract any weight.
·While the Applicant has an offer of employment, the evidence does not support a finding that his removal and inability to take up this position would impact upon the business itself, or business interests of the community more generally.
[56] RSFIC, HB pages 259 – 173.
[57] This was submitted in the Minister’s post-hearing submissions. In initial submissions the Minister had contended the applicant is an unauthorised maritime arrival and that is a person to whom s 198AD of the Migration Act applies. As such, he was required to be removed to a regional processing country as soon as reasonably practicable. Currently, the only regional processing country is the Republic of Nauru. This submission was later withdrawn, noting the date of the Applicant’s arrival meant that s 198AD did not apply to the Applicant.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, 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.[58]
[58] See also Direction no. 110 para 8(1).
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[59]
[59] Direction no. 110 para 7(2).
Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[60] In doing so, para 8.1.1(1) of Direction no. 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be ‘serious’. I note that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[61]
[60] Direction no. 110 para 8.1(1).
[61] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this consideration that I consider the impact of the offending on any victims and their family, where information regarding this is available, and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[62]
[62] Direction no. 110 para 8.1.1(1)(d).
The Applicant contended he had accepted responsibility for his offending and that he was not in a right state of mind when he committed his most serious offences on 16 July 2021. He started taking drugs to deal with the trauma of the tragedy of the boat he was onboard sinking and the death of friends in that accident.
The Minister submitted the Applicant’s offending should be regarded as very serious noting:
· The impact of the 16 July 2021 offences on the victim was very serious causing psychological and financial harm to the victim;
· The frequency of the Applicant’s offending is ‘extreme’. noting he has offended consistently, save for a 13-month period following his first offence in 2016, and has otherwise been unable to abstain from offending for any substantial period of time;
· The seriousness of the Applicant’s offending has escalated over time.[63] In particular the Applicant’s sexual based offending and property offences have increased in severity; and
· The cumulative effect of the Applicant’s offending is significant[64] impacting public resources.
[63] Direction 110, para 8.1.1(e).
[64] Direction 110, para 8.1.1(f).
I am required, pursuant to Direction no. 110, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[65] It is clear that there will also be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of Direction no. 110.
[65] Direction no. 110 para 8.1.1(1)(a) and 8.1.1(1)(b).
The 16 July 2021 offences involved a sexual offence against a woman in the context of a home burglary. In my view those offences fall within par 8.1.1(1)(a) of the Direction and should be regarded as very serious. This also applies to the 2020 assault conviction which is a violent offence, though noting that offence was at the lower end for seriousness for offending of that type.
With respect to the 16 July 2021 offences, the sentencing judge noted that ‘this was a terrifying course of conduct for the victim’:[66]
This is a terrifying course of conduct for the victim. She believed she was safe, locked in a unit in a bedroom. You entered without permission and offended against her. Everyone should feel safe when locked in a unit knowing that only those who have permission will enter. You knew you didn’t have the consent of [Mr L, the owner of the unit] to be inside and once inside, when you realised [Mr L] wasn’t there and the woman you did not know was in the bedroom, you should have left but you stayed and you terrified and tormented her.
[66] HB page 51.
The sentencing judge observed that sexually offending against another person was very serious and that the victim had been deprived of her liberty. He observed that the Applicant’s record provided no mitigation.[67]
[67] HB page 52.
The victim impact statement recorded that she reported ‘having panic attacks, nightmares, insomnia, and suffering post-traumatic stress disorder…She no longer felt safe. She no longer had a deposit for a house available because of counselling needs. Her life has been shattered in many ways.’[68]
[68] HB page 51.
The 16 July 2021 offences were not the Applicant’s first resulting in a term of imprisonment. As noted above, the Applicant has been convicted of more than 70 offences between 2016 and August 2022. He has received, fines and licence disqualifications, in addition to terms of imprisonment (suspended and unsuspended) totalling more than 20 years. In my view this is a demonstration of the very serious nature of his ongoing offending.[69]
[69] Direction no 110, par 8.1.1.1(1)(c).
The Minister submitted, and I accept, that the 16 July 2021 offences reflect an escalation in the seriousness of the Applicant’s offending.[70] Indeed this could be said for the period leading up to those offences, including the breaches of restraining orders for which the Applicant was sentenced to multiple terms of imprisonment, totalling an effective sentence of 18 months’ imprisonment, and the repeated offences of driving while suspended which eventually resulted in sentences of imprisonment, including a final sentence which was not suspended.
[70] Direction no. 110 para 8.1.1(1)(e).
The Applicant has been convicted of numerous driving and breach offences spanning across the period 2017 to 2022. While these offences were not individually as serious as the 16 July 2021 offences, a significant number resulted in sentences of imprisonment, and they contribute to the overall assessment of the Applicant’s offending as very serious.
As noted above, the sentencing judge dealing with some of the breach offences noted the Applicant’s ‘unrelenting calls and texts’ ‘must have extracted a personal toll on the complainant’.[71] I share the view of the Magistrate dealing with the balance of those offences that the Applicant had ‘a complete and utter disregard for the violence restraining order’.[72] I consider his repeated driving while suspended convictions including in the face of suspended terms of imprisonment also demonstrates a disregard for the law. Such conduct is very serious.
[71] HB page 59.
[72] HB page 56.
I note the Applicant offered various explanations for his offences which were not accepted by the courts whose sentencing remarks are in evidence before me. The Applicant offered no evidence which would persuade me to accept those explanations which sought to minimise his responsibility for the offending. I note the limitations in any event on the capacity of the Tribunal to ‘go behind’ his convictions and the findings of fact on which these are based.[73] In any event, I do not accept there was any basis to accept his explanations which might impact the assessment of the seriousness of his offending.
[73] See HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] and HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.
In submissions he stated:[74]
The Applicant experienced a significant emotional and psychological setback as a result of the trauma he endured in 2010, when the boat he was travelling on capsized, resulting in the deaths of approximately 70 people, including several of his close friends. This event has had a profound and lasting impact on his mental health.
The traumatic experience has been further compounded by his prolonged inability to maintain contact with his daughter, a factor that has markedly contributed to his emotional dysregulation and deepened his sense of social isolation.
[74] ASFIC, HB 165.
While I accept the Applicant suffered trauma as a result of the 2010 boat tragedy, I do not accept this mitigates the seriousness of the offences he committed since then, noting the Applicant gave evidence that he had access to counselling support services immediately after that incident and during his initial settlement in Australia,[75] at some point the Applicant disengaged with those services. While past trauma may provide part of the explanation for why the Applicant commenced using illicit drugs it does not, in my view, mitigate the serious nature of his offending over an extended period. I also note his offending commenced 6 years after the boat capsized and the Applicant arrived in Australia.
[75] HB pages 589 – 657.
Nor do I accept that separation from his daughter is a mitigating factor, noting that the existence of a restraining order for her protection and multiple sentencing of imprisonment over several years suggests that the Applicant’s conduct was a cause rather than a consequence of separation for his daughter. I also note the Applicant’s offences commenced prior to his separation from his wife in 2018 and cessation of his contact with his daughter in 2019.
Overall, the Tribunal finds the Applicant has engaged in a number of offences which, applying Direction no.110, are serious or very serious. His offences have been frequent and have escalated in seriousness with his most recent offending resulting a significant term of imprisonment.
Taking the Applicant’s record as a whole, the Tribunal considers the Applicant’s conduct and offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I am required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[76] 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.[77]
[76] Direction no. 110 para 8.1.2(2)(a) and (b).
[77] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
Direction no. 110 refers the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts.[78] ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In my experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably with respect assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with reoffending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
Nature of the harm
[78] RRRB v Minister for Immigration and Multicultural Affairs [2025] ARTA 471.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[79]
[79] Direction no. 110 para 8.1.2(2)(a).
The Minister contended that the nature of the harm to the community should the Applicant re-offend is ‘self-evident and serious’. In this regard the Minister contended:
· If the Applicant were to commit further sexual offending, the nature of the harm which would be caused is ‘both physical and emotional/psychological, and can be carried by the victim for the duration of their lifetime’. The effect of the conduct on the victim of the 16 July 2021 offending was clear. The nature of the harm therefore must be considered extremely serious;
· If the Applicant were to engage in further driving offences the harm which would be cause ‘should not be lightly dismissed’. Such offending places members of the public at risk from, at least, economic harm, as an unlicensed driver is not insured and, should Applicant cause an accident, the other road user will have no choice but to use their own insurance to cover vehicle damage;
· Further drug offending perpetuates and supports the illicit drug trade. The prevalence of drugs in the community causes harm to the community on many levels, including drug-related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families; and
· Further breach and property offences undermines the criminal justice system and public confidence in that system to protect them. The harm to the community, by way of use of public resources, to respond and prosecute such offending ‘is not the undermined’.
In my view the harm associated with the Applicant’s burglary and incident assault offending against members of the community is clear from the sentencing remarks. The Applicant caused clear psychological harm to his victim and in turn, disrupted her life, including impacting her financial security. Conduct which deprives a person of their liberty and makes them fearful of sexual violence causes that person significant harm. Were the Applicant to reoffend in a similar way, the harm which would be caused is very serious.
The Applicant was also convicted of drug offences and traffic offences. While those offences did not have an identified victim, such offending poses a risk of harm to the community, through the harm caused by illicit substance use including but not limited to the physical and psychological harm to the user. Repeated traffic offending presents a risk to other road users, undermines the confidence of road uses and causes public costs associated with dealing which such offending. The Tribunal considers the harm which would be caused were the Applicant to commit further driving or drug offences is also serious.
Repeated breaches of court orders put in place for the protection of the community also cause harm, not only to the victim of those breaches by causing them the psychological harm of not feeling protected, but also by undermining public confidence in such orders. If the Applicant were to repeat such offending, the harm which would be caused to individual protected persons and to the community relying on the existence of such orders to curb threatening behaviour is serious.
Similarly, property offences, including home burglaries, cause financial loss to individuals and compromises the privacy and security of their dwelling. Such harm is also serious.
I consider the nature of the harm which would be caused were the Applicant to reoffend in a similar manner to be very serious.
Likelihood of reoffending
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 also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[80]
[80] Direction no. 110 para 8.1.2(2)(b).
As I have noted previously, Direction no. 110 refers the ‘risk to the Australian community’ and ‘likelihood of reoffending’ as distinct though related concepts. ‘Likelihood’ of reoffending is an element to be considered in determining the ‘risk’ to the community. The other is the nature of the harm which would be caused if the Applicant were to reoffend. In our experience, the terms ‘risk’ and ‘likelihood’ are often used interchangeably in material relevant to assessing whether an Applicant may reoffend. This can blur the analysis of risk to the community, which requires not only an assessment of the Applicant’s individual likelihood of reoffending, but also the nature of the harm associated with such offending. For example, a low individual likelihood of reoffending may still represent a significant risk to the community where the harm which would be caused is very serious. Care must be exercised when referring to risk or reoffending assessments which are more properly characterised, in the context of this consideration, as assessments of the likelihood of reoffending. Those assessments may or may not involve assessments of the nature of harm which would be caused if the Applicant would reoffend such as must be considered by the Tribunal.
The Applicant contended that he has completed behavioural programs, maintained positive custodial conduct, and shows strong motivation to reintegrate.[81] The Applicant highlighted that he as undertaken rehabilitation programs in prison including ‘Stopping Family Violence’ and ‘Pathways’. He contended that he is genuinely remorseful and that this is supported by statements of friends. It was contended that given the Applicant has a real prospect of rehabilitation and that he is unlikely to re-offend, these considerations weigh in favour of revocation.[82]
[81] Reply, HB 585. While the Applicant cited FYBR v Minister for Home Affairs [2019] FCAFC 185 (24 October 2019) at [102] those comments of the Court were with respect to the expectations of the community consideration.
[82] ASFIC, HB pages 165 – 166.
The Minister contended the Tribunal should conclude that the Applicant was likely to reoffend and that the risk of further offending by the Applicant is unacceptable having regard to, in summary: [83]
·The fact that the Applicant was assessed in July 2023 as ‘high’ risk of general reoffending, a ‘moderate’ risk of violent offending and ‘well above average’ in the risk/need level for sex offending.
·Competition reports for the 2 programs undertaken ‘reflect that the Applicant had demonstrated minimal insight and limited problem awareness, was at the “contemplation stage” of change in relation to his treatment needs, had limited appropriate and sufficient skills to mitigate his risk, that he took a “victim” stance and sought to justify his behaviour, and contained multiple references to the holding a “risk”’. The Minister contended that ‘ultimately, the reports paint a picture that the Applicant remains a risk, and that the applicant’s participation in those courses does not provide any clear indication that that risk is reduced’.
·The Applicant has shown a ‘blatant disregard for authority and a disposition to disregard such because it was not convenient to him, or he felt entitled to act a particular way’ citing his explanation for driving offences as the need to work and for his breaches of violence restraining orders as the entitlement or desire to see his child or contact his girlfriend. The Minister contended this behaviour reflected a ‘lack of problem-solving skills and pro-criminal attitudes, none of which have been addressed’.
·A lack of targeted drug rehabilitation programs to address his drug habits in any substantive way. The applicant was charged with ‘used a drug not issued to him’, pursuant to s 70 of the Prisons Act 1981 (WA), on 27 March 2025 having tested positive for Methylamphetamine.[84] This should give the Tribunal little confidence of an ability to abstain from drugs.
·The Applicant justifies his conduct and minimises his offending and did not plead guilty at the earliest opportunity, as noted by the sentencing judge.
·The Applicant would have limited pro-social support if he were released. The protective factor of his daughter is constrained by the fact that there is a violence restraining order in place.
·The risk is real, and should be assessed, at a minimum, as a moderate to high risk. Given the nature of the harm, such risk is unacceptable.
[83] RSFIC, HB pages 187 – 188.
[84] HB pages 418, 456, 453.
The material before the Tribunal included the risk assessment, referred to by the Minister in submissions, included in the ‘Treatment Assessment Report’ from Hakea Prison. As noted in submissions, that report records the Applicant was assessed as presenting a ‘high’ risk of general reoffending, a ‘moderate’ risk of violent offending and ‘well above average’ in the combined risk/need level for sex offending (above average for risk and high for need). In that report, it is stated:[85]
[the Applicant] presented a barrage of justifications, rationalizations and or denial regarding each of his 42 index offences. He disputed the facts of each offence, he appeared intent on positive impression management, continually adopted a victim stance when discussing antecedents to the offences. He categorically denied the sexual and domestic violence offending. He adopted a victim stance and demonstrated no victim empathy or remorse by maintaining his stance of denial.
[85] HB pages 438 – 441.
2
11
0