1. Section 500(1)(ba) of the Act, read in conjunction with s 13 of the ART Act, are the sources of the Tribunal's jurisdiction to hear this review application.
2. Sections 49-50 of the ART Act provide that the Tribunal has a broad discretion regarding procedure and must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act provides that 'the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate'.
3. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), requires the Minister to cancel a person's visa if satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
4. The 'character test' is defined in s 501(6) of the Act and a person does not pass it if they have a 'substantial criminal record' as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more.
5. Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
6. Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied the person either passes the character test, or there is another reason why the original decision should be revoked.

1. Because of the Applicant's convictions and sentence on 16 July 2024 he has a substantial criminal record and does not pass the character test. It follows there is no basis for revocation under s 501CA(4)(b)(i) of the Act. Accordingly, the only issue to be decided is whether there is 'another reason' for revocation under s 501CA(4)(b)(ii) of the Act. The Tribunal must read, identify, understand and evaluate the Applicant's representations or those obviously arising from the evidence.[12]

1. In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as 'Ministerial Direction 110' ('the Direction').[13] This contains 'mandatory and aspirational considerations' that guide the exercise of statutory power.[14]
2. Clause 5.1(1) of the Direction sets out several objectives, the first of which is to '... regulate, in the national interest, the coming into, and presence in, Australia of non-citizens'.
3. Clause 5.2 of the Direction sets out the following principles:

(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 non­citizen poses a measureable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

1. Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to primary and other considerations where relevant to the decision.
2. Clause 7 of the Direction provides as follows:

7. Taking the relevant considerations into account > > (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. > > (2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. > > (3) One or more primary considerations may outweigh other primary considerations.

3. Clause 8 of the Direction sets out the following primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature, and duration of ties to Australia;

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:

(a) legal consequences of the decision;

(b) extent of impediments if removed; and

(c) impact on Australian business interests.

1. The weight given to an Applicant's claims and the individual and cumulative weighing process is a matter for individual decision-makers.[15]

1. At approximately 4.30 pm on 27 January 2026, the Applicant emailed a request to the Tribunal for a confidentiality order to be applied to his identity under s 70 of the ART Act. Upon commencement of the hearing the next morning, Ms Bull submitted an order was justified because the Applicant would raise non-refoulement claims that enlivened safety concerns. When referred by the Tribunal to comparable claims in the sentencing remarks, for which no confidentiality order was applied,[16] Ms Bull submitted that the Applicant's critique of the Myanmar Government would include additional claims to those in the sentencing remarks.
2. The Respondent neither consented nor objected to the confidentiality request.
3. The Tribunal gave oral reasons declining the confidentiality request and undertook to include these in its written reasons for decision. The Tribunal adopts the Federal Court's reasoning in Negri[17] about the extent to which it can elaborate upon oral reasons:

...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently...

4. Imperatives for confidentiality orders under Australian law can include the protection of minors or victims in a family violence context. In migration cases, s 501K of the Act provides that a confidentiality order must be imposed if a non-citizen has applied for a Protection Visa, protection-related bridging visa, or had a visa from this category cancelled. Absent a statutory rationale, however, sufficiently cogent reasons are required to depart from the default position of a public hearing and public availability of evidence. :[18]

A person who wishes to litigate a proceeding before a court of law does so in light of, and subject to, the principle of open justice. Suppression or non-publication orders, including the use of pseudonyms, must be applied only in circumstances where such an order is necessary in the interests of justice ... or the person's circumstances otherwise satisfy one or more of the grounds in s 37AG(1) of the Federal Court Act or a pseudonym is required by statute, such as s 91X of the Migration Act 1958 (Cth).[19] (Citations removed) > > ... > > The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice...The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.[20]

5. The Tribunal must include findings on material questions of fact and references to the evidence or other material on which these findings are based when deciding merits review applications. In doing so, it balances inevitable tensions between an applicant's interests and the principle of open justice. Emerita Professor Robin Creyke AO, as a Senior Member of the former Administrative Appeals Tribunal stated the following:[21]

...The Tribunal has discretion to decide that...the name of witnesses or parties should be suppressed, but only if satisfied that...there are cogent reasons for doing so. That principle is based on the public interest in ensuring that proceedings before the Tribunal are conducted openly. That principle reflects the need for the Tribunal to establish that it is accountable to the public which funds its operations, and that the Tribunal is "providing a mechanism of review that is fair, just, economical, informal and quick", the overarching objectives of its operations under the AAT Act.

1. Professor Creyke drew upon the reasoning in Australian Securities and Investments Commission v Administrative Appeals Tribunal, [22] where a majority of the Full Court stated:

...Although s 35(1) is subject to the balance of the section, it establishes a norm...that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 510 described the power in s35(2) to depart from this norm as one to be exercised "sparingly." ...

Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties...In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published...The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public...

When measured against the existence of the norm of a public hearing...it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm)...will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.

1. Justice Besanko has stated the following regarding confidentiality orders when potential risk to a person is advanced as the reason:[23]

...The issue is whether, to obtain an order, it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all the section requires is for the Court to be satisfied on the balance of probabilities that the order sought is necessary to protect the person's safety. As...noted in D1 v P1 [2012] NSWCA 314 (at [49]), the first construction may be put in this way:

... is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?

The alternative construction may be put in this way (at [51]):

... On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.

In my opinion, the second construction is the correct one...

1. This Applicant has not previously applied for a protection visa or protection-related bridging visa within the meaning of s 501K, nor had a visa from this category cancelled.[24] Section 501K of the Act is therefore not enlivened. A confidentiality order was not applied to the Applicant's criminal case despite the judgement including his claims about persecution, 'hostility and discrimination' by the Myanmar Government. These aspects of his non-refoulement claims are already in the public domain. His protection claims in the present matter, had not been put nor tested at the time of the confidentiality request.[25] There is no authority the Tribunal is aware of that the making of untested non-refoulement claims alone is sufficiently cogent for a confidentiality order to be imposed.
2. The nature and degree of any harm resulting from the Applicant making non-refoulement claims is speculative at best. As discussed later in these reasons under cl 9.1 of the Direction, what might follow the Tribunal's decision turns on the irresoluble branches and sequels of future events. It follows that the reason currently advanced for a confidentiality order is insufficiently cogent to depart from the open justice principle. The Tribunal will nevertheless withhold open publication of these reasons for 35 days after being handed down to preserve the Applicant's judicial appeal rights. Unless a notice of appeal is received on the confidentiality issue by 13 March 2026, which is 35 days after the decision is handed down on 6 February 2026, the Tribunal will publish these reasons as normally occurs.

1. The Tribunal has considered the Applicant's Statement of Facts, Issues, and Contentions ('SFIC')[26] dated 7 January 2026, the Respondent's SFIC dated 20 January 2026, and the Applicant's reply dated 22 January 2026.

1. The following 34 exhibits were tendered into evidence:

(a) G-documents filed by the Respondent numbering 337 pages;[27] > > (b) Applicant's statements dated 7 and 21 January 2026;[28] > > (c) Victorian Prison Service Individual Management File;[29] > > (d) Statement of Ngun Za Tling dated 7 January 2026;[30] > > (e) Statement of Ngun Lian Thang dated 6 January 2026;[31] > > (f) Statement of Dar Za Iang dated 6 January 2026;[32] > > (g) Statement of Ngun Chin Par dated 7 January 2026;[33] > > (h) Statement of Iang Men dated 7 January 2026;[34] > > (i) Second Supplementary Report of clinical psychologist Mr Guy Coffey dated 22 January 2026;[35] > > (j) Statement of Min Thang dated 6 January 2026;[36] > > (k) Statement of Di Thli dated 6 January 2026;[37] > > (l) Statement of San San Win dated 6 January 2026;[38] > > (m) Statement of Khin Za Hmung Bawi Hrin dated 6 January 2026;[39] > > (n) Statement of Bawi Veel Thawng Boi dated 6 January 2026;[40] > > (o) Statement of Gary Hlori dated 6 January 2026;[41] > > (p) Statement of Chit Oo Darua dated 6 January 2026;[42] > > (q) Statement of Lian Hlun Zakulh dated 6 January 2026;[43] > > (r) Statement of Ram Mang Lawngsang dated 7 January 2026;[44] > > (s) Statement of Van Cin Thang dated 7 January 2026;[45] > > (t) Statement of Tluang Lausaw dated 7 January 2026;[46] > > (u) Statement of Thomas Thawng Tha Cung dated 21 January 2026;[47] > > (v) Statement of Yin Yin Aye Sibia dated 22 January 2026;[48] > > (w) Statement of Van Neih Lung Baw dated 7 January 2026;[49] > > (x) Statement of Lydia Tial Bawi Hrin dated 7 January 2026;[50] > > (y) Statement of Sang Bawi Ling Bawi Hrin dated 20 January 2026;[51] > > (z) Statement of Sui Cin Tial dated 6 January 2026;[52] > > (aa) Statement of Thla Ceu dated 6 January 2026;[53] > > (bb) Letter from Alexandra Ryan and Ashleigh Purdy of Jesuit Social Services dated 17 December 2025;[54] > > (cc) Community Conference Outcome Report dated 6 October 2025 from Jesuit Social Services;[55] > > (dd) Letter from Tom Cheshire of Parkville College dated 11 December 2025, covering Student Education Profiles for the Applicant dated 2024 and 2025;[56] > > (ee) Letter dated 5 January 2026 from Shayne Hood and Stephane Shepherd of '16 Yards';[57] > > (ff) Certificate dated December 2025 from Oakview Man;[58] > > (gg) Department of Foreign Affairs and Trade ('DFAT') Country Report for Myanmar dated April 2025;[59] > > (hh) Online media articles from ABC News dated 25 November 2025 and Reuters dated 4 September 2025 relating to Australia's negotiations with Nauru.[60]

1. The Applicant, four of his siblings, his girlfriend, and clinical psychologist Mr Guy Coffey were called as witnesses. An interpreter in the Hakha Chin language was made available for two of the Applicant's siblings. This was suboptimal, however, because the Applicant's family members prefer to speak a Tibeto-Burman dialect of the Lahu ethnic group, for which no interpreter was available. The Tribunal handled this as best it could, including through additional instructions to witnesses.

1. The Applicant gave his evidence in English, under oath, and adopted Exhibit A1 as true and correct. The Tribunal advised him of his privilege against self-incrimination and is satisfied he understands this.
2. The Applicant accepts that the prosecution summary he pleaded guilty to accurately sets out the conduct leading to his convictions. He contextualised his behaviour as misplaced loyalty to adverse peers from high school. The Applicant claimed not to know most co-offenders but agreed he drove some to the first house and 'followed what they were doing'. He stated: 'I felt like if I don't do as they do, I'll stand out and lose the friendship'.
3. The Applicant said he felt shame when police came to his home to arrest him. His family and ethnic looked at him differently after this. Family debts were incurred to pay for his legal fees, and he could no longer contribute financially after imprisonment. The Applicant said these experiences motivated him to show the community he is 'not that person anymore'.
4. The Applicant referred to a two-year period of bail after arrest and prior to sentencing, during which he did not associate with co-offenders. He completed a vocational training course and opened a barber shop that employed others. He decided to be re-baptised and vowed to his family that he would 'move forward as a changed man'. Following the Applicant's sentencing / imprisonment, one of his brothers continued to run the barber shop.
5. The Applicant said he has gained insight about his offending including through attendance at a Community Conference in 2025. A 'Victim's Services' representative conveyed that some victims did not have adequate insurance to repair damage and children present at the scene continue to suffer anxiety. The Applicant said this accentuated his remorse and reinforced the detrimental effects of loyalty to negative peers.
6. When asked about recidivism risk, the Applicant said he had worked 'hard on [him]self since arrest' and demonstrated during two years on bail that he can be law-abiding and productive. He aspires to become a youth mentor so others 'think twice before making the same mistakes' he did. During cross-examination, the Applicant accepted that past regular church attendance, participation in sport, and strong family / community support did not prevent his crimes.
7. The Applicant referred to positive activities while imprisoned such as fitness, counselling, and Bible studies. He receives frequent visits from family members, his girlfriend, pastors, and friends. The Applicant referred to minor custodial incidents, following which the Tribunal sought advice about relevant records. There are none in evidence and Ms Bull said the Applicant's reference to these incidents was solely for 'candour'. Mr Rossi said the Minister does not raise custodial conduct as an issue.
8. The Applicant said his current friendships are linked to church, sport and other prosocial activities. He will never associate with adverse peers again because this loyalty resulted in him 'fighting for his life'. It is a risk he will not take again.
9. The Applicant referred to a close relationship with two nephews, one of whom is quite young and somewhat 'hard to communicate with'. He says 'hello' to this child when speaking with the child's parents by telephone. He also does not have much of a relationship with a young niece who is still an infant.
10. The Applicant said he could not cope with a return to Myanmar because he left at a young age and is unable to provide for himself. He is unaware if his family has any relatives in Myanmar. The Applicant said he is 'medically really fit' but fears possible forced labour or imprisonment if returned, which he had learned about through social media. He is open to lodging a protection visa application in the event of non-revocation.

1. Three of the Applicant's sisters and a brother gave oral evidence. A key theme in their testimony is that the Applicant's support within their interdependent family is sorely missed. All siblings said they remain in contact with the Applicant through telephone calls and visits. They were previously unaware of his association with co-offenders and shocked to learn of his offending. The Applicant's youngest sister said she is very close to the Applicant and his circumstances have affected her academic performance. The Applicant's eldest sister stated that after the Applicant's arrest, he apologised to 'God, our parents, and other family.' She does not believe he will re-associate with bad influences given what has occurred.
2. During cross-examination, Mr Ross asked all four siblings how much they earn and whether they contribute to family needs. Two of the Applicant's sisters said they are married and live in separate accommodation. They and their husbands work, earn income, and contribute to family needs. This includes buying things for minor children. The Applicant's youngest sister works part time and provides occasional financial support to her parents. The Applicant's brother looks after the Applicant's barber shop while concurrently completing a trade apprenticeship. He contributes to family needs from his earnings.

1. The Tribunal has considered three reports from clinical psychologist Mr Guy Coffey dated between 25 February 2024 and 22 January 2026.[61] He contextualises the Applicant's offending as resulting from the influence of criminally inclined peers.[62] Absent this, Mr Coffey believes the Applicant constitutes a 'low' risk of committing further violence or engaging in other general offending.[63] In a supplementary report dated 13 May 2025, Mr Coffey stated the following about the Applicant's rehabilitative progress, insight, recidivism risk, and future plans (emphasis added):

[22] I note also that the Court found that in the two years between the index offending and sentencing Mr Hmung made significant progress toward his rehabilitation. > > ... > > [24] ...His understanding of how he came to offend had deepened. He said he drove the co-accused to the scenes of the offending due to a mistaken belief that friends with criminal intent still deserve loyalty. He acknowledged that he didn't think through the very serious consequences of his involvement, and that this represented a grave error of judgment. He avowed that he would continue to ensure he chose his friendships and company carefully and would avoid association with people with criminal intentions. > > [25] Mr Hmung has commenced offence specific counselling - he has received six weekly sessions which are ongoing. He said the focus has been his decision making in relation to the offending, and his ability to communicate his feelings and beliefs and deal with daily stressors. He described the sessions as 'very helpful'. > > ... > > [28] In the first report I concluded that owing to experiences in his childhood Mr Hmung may have been 'particularly susceptible to the influence of peers at the time of the offending'...There was, therefore, a possibility that the influence of criminally inclined peers in custody may set back his rehabilitation. I found no evidence of this eventuating, on the contrary he appears to be steering his own course... > > [29] I asked Mr Hmung about his future plans. He said he wants to live with his family and to work particularly hard to make up for lost time. He thought he might open another barber's shop, perhaps one to service the Chin community in the eastern suburbs. He wants to help his family financially with their mortgage. He would attend church on Saturday evenings and Sunday mornings. He would catch up with his girlfriend a few times a week. He would like to get back to playing soccer. In speaking about his plans, he was animated and appeared eager to pursue them. > > Conclusion > > [30] My further assessment of Mr Hmung during his term of youth detention, 15 months after my first assessment, does not cause me to revise the opinions expressed in the first report. I believe he has continued to consolidate his rehabilitation. My opinion remains that the probability of recidivism is low.

2. In his latest report dated 22 January 2026, Mr Coffey stated he has no reason to revise earlier opinions about recidivism risk and rehabilitation. He reinforces the importance, however, of the Applicant continuing with: 'treatment...directed at helping him to resolve conflict, manage strong emotions, and resist peer influence'.
3. Mr Coffey gave oral evidence that is summarised as follows:

(a) He has been a clinical psychologist for approximately 35 years and his involvement with refugees has been for 'nearly all that time'. > > (b) In preparing his three reports, Mr Coffey spoke with the Applicant seven times over a period of 12 hours. He has no concerns about the Applicant's honesty. Mr Coffey believes the Applicant's psychological presentation is 'stoic' and his insight has developed over time. The Applicant experiences symptoms of depression and anxiety, but these do not rise to the level of a diagnosable disorder nor bear on recidivism risk. Mr Coffey does not believe the symptoms will worsen because the Applicant is receiving mental health treatment from clinicians at Origin Health. When asked about the effect of the Applicant's childhood experiences in Myanmar, Mr Coffey believes this 'has emerged' and 'competent treatment' is being received. > > (c) Mr Coffey said the Applicant experienced a 'steep learning curve' after arriving in Australia without any educational background, English, or peer group. His transition to a new country was 'an extended process' that made him susceptible to an adverse friendship group. Mr Coffey said the Applicant has since matured, demonstrates insight and empathy towards victims, discusses his experiences in a 'thoughtful and mature way', and is now 'different'. This includes by not trying to distance himself from offending behaviour. > > (d) Mr Coffey said the way the Applicant spoke about victims after voluntarily attending a Community Conference reflects genuine remorse and is an important change. This includes statements such as: 'Imagine if this happened to my family'. Mr Coffey said most young people desist from reoffending, although some persist. He believes the Applicant is not in the latter group because he does not share common characteristics such as persistent immersion in an antisocial peer group, substance use, and neo-diversity problems. > > (e) Mr Coffey stands by his risk assessment, albeit contingent on the Applicant 'not falling under the sway of criminally inclined peers', continuing with treatment, and maintaining 'prosocial influences'. Mr Coffey referred to positive indicators such as the Applicant doing 'particularly well' on supervised bail, starting a business, maintaining a structured routine, and continuing support from his family / community / partner as demonstrative of his ability to lead a law-abiding life. > > (f) Mr Coffey said any re-engagement with co-offending peers would be a risk factor. He pointed, however, to the Applicant current exposure to innumerable custodial provocations such as adverse offenders, drugs, fights and transgressive behaviours, but is 'resisting this influence'. Mr Coffey believes the Applicant has developed 'a capacity to resist...antisocial peers' and will not do so. This includes because he has developed a full sense of belonging from prosocial sources he is committed to.

Protection of the Australian community from criminal or other serious conduct

(1) When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. 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, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen's criminal and other conduct to date:

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

1. violent and/or sexual crimes;
2. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

1. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

2. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

3. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

4. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the

   non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

(d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard 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;

(e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

(f) the cumulative effect of repeated offending;

(g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(h) whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

(i) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. In December 2023, five of the Applicant's co-offenders were sentenced by Judge Michael O'Connell in the County Court of Victoria. On 16 July 2024, the Applicant appeared for sentencing, also before Judge O'Connell, who convicted him of the following:

(a) 'Aggravated home invasion (damage) offensive weapon' - sentenced to four years imprisonment; > > (b) Two counts of 'Criminal damage (intent damage/destroy)' - sentenced to 12 months imprisonment on each count; > > (c) 'Aggravated burglary - person present' - sentenced to three years and six months imprisonment; and > > (d) 'Possess controlled weapon without excuse' - sentenced to two months imprisonment.

2. After concurrency and cumulation was assessed, the Applicant received a total effective sentence of four years and three months' imprisonment. He remains imprisoned to the present day.
3. Key aspects of the sentencing remarks[64] are summarised as follows:

(a) The Applicant's offending was limited to a few hours in the early hours of 18 June 2022.[65] He was one of several disguised offenders who attacked three residential premises in suburban Melbourne. Their motivation was retaliatory and arose from conflict between two gangs on the western and southeastern suburbs of Melbourne called the 'Brotherhood' and 'Southside Boys'. Residents of the three homes were innocent family members of young men associated with the Southside Boys. > > (b) After a police investigation, 16 search warrants were executed. Charges were subsequently laid against 14 offenders, including the Applicant. > > (c) The Court found the conduct engaged in was 'wanton violence and destructiveness', characterised by 'sheer ferocity', and intended to 'terrorise' house occupants.[66] Significant property damage was inflicted on three homes and nearby vehicles. > > (d) The Applicant drove some co-offenders in his vehicle to the first house, carried an extendable baton, smashed a light, climbed in through a window, and stole clothing.[67] The Applicant stated during oral evidence that the baton was given to him by a co-offender, and another left a machete in his car. Approximately $46,000 of property damage was caused at the first home. The Applicant then drove co-offenders to a second house but there is no evidence he entered it. His plea of guilty was accepted on the basis he was complicit. Approximately $20,000 damage was caused to the second home and nearby vehicles. The Applicant was not punished for the third incident although the Court noted his car was present. > > (e) Victims experienced significant fear. One victim reported a loss of safety, intrusive memories, vulnerability, and anxiety. She received counselling and reportedly sold her business. Her home and car were not adequately insured, causing significant financial hardship. > > (f) The Applicant was noted to have told 'significant lies' during police interview.[68] His early guilty pleas were nevertheless found to be of high utilitarian value. > > (g) The Applicant's offending was found to be 'very serious'.[69] His Honour decided, however, there were 'substantial and compelling circumstances' amounting 'to a special reason' to depart from the statutory minimum non-parole period.[70] > > (h) The Applicant was given a total effective sentence of four years and three months' imprisonment, with a non-parole period of two years and three months.

4. Custodial dispositions are the most severe judicial sanction.[71] The length of the Applicant's sentence plainly reflects the objective seriousness of his crimes, which fall within the meaning of cl 8.1.1(1)(a) of the Direction. Given his offending relates to a single course of conduct over a few hours on 18 June 2022, however, it is not frequent and there is no trend of increasing seriousness.
5. The Applicant's crimes are very serious.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

1. Clause 8.1.2(2) of the Direction states that in assessing the risk a non-citizen poses to the Australian community, decision-makers must take into account, 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:

1. information and evidence on the risk of the non­citizen re-offending; and
2. 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.

1. In Akpata[72] the Full Court of the Federal Court of Australia explained the nexus between the character test and Parliament's intent:

The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime...or general conduct indicating bad character...should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister's discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

1. This aspect of the Direction requires a 'future‑focused assessment'[73] of risk, taking account of the nature of harm and its probability. In Guo,[74] the High Court held that past actions can legitimately predict future behaviour, but this is an uncertain guide. Depending on the circumstances, the probability of an event occurring could be so low as to be 'safely disregarded' or at the other extreme 'may border on certainty'.[75] Maxwell P and Weinberg J have observed that risk assessments are best founded on expert input:[76]

Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult...the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion ... The necessary expertise combines the ability to make a qualitative assessment of an individual and the ability to utilise the available quantitative risk assessment instruments.

One thing is clear. Judges, including experienced criminal judges, have no such expertise. Neither the conduct of criminal trials nor the sentencing of offenders requires judges to have, or equips them with, the ability to assess the likelihood that an offender will re-offend...

1. A repeat of the Applicant's crimes has the potential to cause devastating physical, psychological, or financial harm. Pursuant to cl 8.1.2(1) in the Direction, the community's tolerance for such harm would be very low.
2. The Applicant spent approximately two years on bail prior to sentencing. Supervised Bail Progress Reports dated between August 2022 and May 2023 refer to his conduct during this period,[77] which the Court noted was 'exemplary'.[78] The Applicant was assessed as achieving 'self-management capabilities...monitored by the family'.[79] Positive aspects of his conduct on bail include:

(a) Separation from adverse peers. > > (b) Writing to the Court and expressing a commitment to turn his life around,[80] which was found to be consistent with remorse.[81] > > (c) Maintaining stable family accommodation and commencing a relationship with a young woman from his ethnic community who he plans to marry.[82] > > (d) Accepting support from family and community members who rallied around him after arrest.[83] The Applicant become more involved in community activities and was re-baptised on 5 October 2023.[84] Supportive statements and references are to the effect that he restored his community standing.[85] > > (e) Completing psychosocial programs,[86] vocational training, and starting a barbershop that employed three people. The Court described the latter as 'a thriving success'.[87]

3. The Applicant's offending is isolated and reflects an immature decision to join adverse peers. His conduct since arrest reflects contrition, insight, and a persuasive commitment to change the course of his life. This is strengthened by the community support that rallied around him and his family. Current protective factors are broader than before and in the context of salutary lessons that arose after the Applicant's arrest and imprisonment.
4. The Tribunal accepts Mr Coffey's assessment that the Applicant no longer needs validation from negative peers because he is committed to prosocial influences in his life. In terms of recommended rehabilitation, decisions should not be delayed for this to be undertaken.[88]
5. The Applicant's crimes are very serious and fall into a category of conduct where even a low risk of repeat elicits concerns. His offending is isolated, however, and resulted in severe consequences. The Applicant's post-offending conduct points to a persuasive intention to remain law-abiding. This is strengthened by new protective factors such as greater maturity, rehabilitative progress, a romantic relationship, business interests, and a desire help alleviate family financial pressures that his conduct caused.
6. On balance, this primary consideration carries no more than moderate weight against revocation.

1. There is no evidence the Applicant has engaged in family violence within the meaning of cl 8.2(1) of the Direction. It follows that this primary consideration weighs neutrally.

Strength, nature, and duration of ties to Australia

(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:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

2. 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.

1. The Applicant has lived in Australia for just over 11 years. He refers to his parents, six siblings, a de facto partner and other relatives.[89] There is no dispute these people fall within the meaning of the Direction. Statements tendered by his family are to the effect that he is loved, supported, and an integral part of an interdependent family group.[90]
2. The Tribunal has considered a statement from the Applicant's partner who attended the hearing but was not required to give evidence. This is a genuine relationship. The Tribunal has also considered statements about the Applicant's broader community links. Many supporters attended each hearing day and statements are to the effect that he is an active and respected community member. His community contribution includes starting a new business that employs others.
3. The Applicant's offending did not begin soon after arrival in Australia, such that less weight should be afforded to this primary consideration. He has made positive contributions through study, work, opening a small business, and involvement in prosocial activities.
4. The Applicant's community ties are very strong. Despite the caution generally applied to supportive references from family / friends, the Tribunal accepts a non-revocation decision would likely cause adverse emotional, practical, and/or financial effects. The Applicant has spent much of his childhood and all his adult life in Australia. His only known ties are here. This primary consideration weighs substantially in favour of revocation.

Best interests of minor children in Australia affected by the decision

1. Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[91] It is generally for an Applicant to 'identify the personal facts and circumstances relevant to the decision'.[92] This primary consideration applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ. In considering the best interests of the child, the following factors must be considered where relevant:[93]
   1. 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);
   2. 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;
   3. 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;
   4. 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;
   5. whether there are other persons who already fulfil a parental role in relation to the child;
   6. any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
   7. 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;
   8. evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
2. The Applicant invokes the interests of two minor nephews and a minor niece who are between one and nine years of age. One minor nephew suffers autism, ADHD, and receives treatment under the National Disability Insurance Scheme.[94] The Applicant lived with these children prior to his arrest. Evidence from family members is that he cared for and meaningfully engaged in the children's lives.[95]
3. The Applicant's role in the lives of his niece / nephews is non-parental and, in the case of two of the children, limited because of their age. There has also been a long period of absence or limited meaningful contact since his imprisonment. The strong interdependent bonds within the Applicant's family are such that others assist with the children's care and development. The Tribunal accepts, however, that the Applicant intends playing a positive avuncular role if allowed to remain in Australia.
4. Revocation is in the best interests of the Applicant's niece and nephews. On balance, however, this primary consideration carries limited weight in favour of revocation.

1. Clause 8.5(1) of the Direction identifies the expectations of the Australian community:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a) acts of family violence; or

b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f) worker exploitation.

1. Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm.
2. Clause 8.5(4) of the Direction provides that this consideration is 'about the expectations of the Australian community as a whole', and decision-makers are to proceed based on the Government's views as articulated in the Direction, without independently assessing the community's expectations in a particular case. This correlates with the reasoning in FYBR[96] where the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the 'deemed community expectation' will in most cases call for cancellation, but 'the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine'.[97] The High Court refused an application for special leave to appeal from the orders in FYBR.[98]
3. The Applicant's submissions about this primary consideration have been considered.[99] To the extent he invites the Tribunal to independently assess the community's expectations based on his specific circumstances, this is impermissible.[100] The Tribunal does not accept the claim at paragraph 70 of the Applicant's SFIC that his 'low' recidivism risk weighs in his favour. Clause 8.5(3) of the Direction provides that the deemed community expectation applies regardless of whether a non-citizen poses a measureable risk of causing physical harm to the Australian community.
4. The Applicant has engaged in very serious crimes. The presence of women and children in the houses attacked on 18 June 2022 means his offending is of the kind specified at cl 8.5 (2)(c) of the Direction. The nature of such crimes is such that the Applicant should expect to forfeit the privilege of staying in Australia. On balance, however, this primary consideration weighs no more than moderately against revocation.

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has

non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

9.1.1 Non-citizens covered by a protection finding

(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

(3) Decision-makers should also be mindful that where the refusal, cancellation or

non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.

9.1.2 Non-citizens not covered by a protection finding

(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

1. The country of reference for this application is Myanmar.
2. An Applicant's claims under this aspect of the Direction, in the context of whether there is 'another reason' for revocation, can be less categorical than the more comprehensive process under s 36A of the Act.[101] It is permissible, however, for the Tribunal to defer assessment of non-refoulement claims if an Applicant is eligible to lodge a protection visa.[102] The Tribunal must nevertheless read, identify, understand and evaluate the representations made,[103] and the 'direct and immediate consequences' of its decision.[104]
3. The Applicant is not covered by a protection finding, has not lodged a protection visa application, and his circumstances fall within cl 9.1.2 of the Direction.[105] His claims regarding legal consequences[106] are summarised as follows:

(a) A non-revocation decision will prevent the Applicant from applying for parole and he will be taken into immigration detention when his sentence ends. > > (b) The Applicant fears persecution because of his religion, ethnicity, imputed political opinion, as a returnee from the West, and because he has no family or other support in Myanmar. Submissions are made about specific and general types of harm from which Myanmar authorities could not protect him. These claims draw on the DFAT Country Report for Myanmar dated April 2025.[107] > > (c) It is submitted the Tribunal should not defer consideration of the Applicant's non-refoulement claims, because they are 'not complex' and failure to consider them in the current proceeding would add to the 'disproportionate nature of a non-revocation outcome'. Ms Bull contends that although the Applicant can apply for a protection visa and will not be removed until this is determined, it would be a 'futile exercise' because the Respondent does not believe he should reside in Australia. > > (d) The Applicant claims to be confronted by a 'protracted and potentially very lengthy period of immigration detention'. Reference is also made to the operation of cl 9.1.2(3) of the Direction, which 'means that s 197C(3) of the Act would not operate to preclude [his] removal...even if the Tribunal agrees that non-refoulement obligations are engaged'. Ms Bull submitted this could include the Applicant being removed to Myanmar prior to his prison sentence ending. > > (e) The Applicant claims a non-revocation decision may result in his removal to a third country with adverse consequences such as detention, no minimum standards of treatment, or refoulement by that third country to Myanmar. Reference is made to Australia's negotiations with Nauru.

4. The Respondent's submissions[108] are summarised as follows:

(a) The Applicant does not currently have a protection finding, has not previously applied for a protection visa, and the Tribunal should defer consideration of his claims in accordance with cl 9.1.2(2) of the Direction. > > (b) The DFAT country information report for Myanmar should be considered. > > (c) Little weight should be given to witness statements referring to current circumstances in Myanmar because the authors are not qualified to give evidence about socio-political matters, and many have not lived in Myanmar in recent years. > > (d) The immediate consequence of non-revocation is that the Applicant remains an unlawful non-citizen liable for detention and removal. He would not be liable for removal, however, while a valid protection visa application was determined.[109] > > (e) To the extent the Applicant agitates a prospect of indefinite detention pending the assessment of any prospective protection visa application, the Tribunal should find that to the extent this weighs in his favour, it is not outweighed by the primary considerations weighing against revocation.[110] > > (f) The Applicant's claims about possible removal to Nauru or another third country pending prospective resettling are not a direct consequence of the Tribunal's decision, because he is not a member of the 'NZYQ cohort'. The Respondent points to an absence of evidence to the effect that if the Applicant were granted a Class WR Bridging R (Subclass 070) visa ('BVR') in future, he would be subject to a removal pathway direction to Nauru or another third country.

5. The Tribunal now addresses the direct and immediate legal consequences of its decision:

(a) Cancellation of the Applicant's visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. Under ss 189, 196 and 198, this status renders him liable for detention, removal from Australia, impacts his ability to make other applications, and may lead to permanent future exclusion from Australia.[111] > > (b) There is no evidence to suggest the Applicant will do other than complete his current prison sentence. There is also no evidence to support the claim that a non-revocation decision precludes him applying for parole or may result in him being returned to Myanmar before his prison sentence ends. > > (c) Revocation by the Tribunal would restore the Applicant's permanent visa. The Minister could challenge this in the Federal Court or exercise a personal power such as setting the Tribunal's decision aside under s 501BA of the Act. These are not direct or immediate consequences of the Tribunal's decision, however, and turn on future Departmental / Ministerial decision-making for which there is no evidence. > > (a) In the event of a non-revocation decision by the Tribunal, the Applicant can appeal this to the Federal Court under Part 7 of the ART Act. After completion of his prison sentence and absent any change in his current visa circumstances, the Applicant is likely to be taken into immigration detention under s 189 of the Act and be liable for removal as soon as reasonably practicable pursuant to s 198. Section 197C(1) of the Act provides: 'For the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen'. The duration of detention is unpredictable and turns on factors such as whether the Applicant exercises appeal rights or lodges a protection visa application. An unlawful non-citizen's detention is permissible while other valid applications are considered.[112] > > (b) The Applicant advised during the hearing he will lodge a protection visa application if the current reviewable decision is affirmed. Legal possibilities vary depending on the outcome such an application as follows: > > > (i) If the protection visa application is approved, the Applicant may then be in a cohort of persons affected by the High Court's decision in NZYQ[113] and perhaps released on a BVR with certain conditions pursuant to the Migration Regulations 1994 (Cth).[114] This is a fast-moving area of the law and it remains uncertain what BVR conditions might be applied. These can be restrictive, have a compliance burden, and possible prosecution if breached. BVR holders currently become a 'removal pathway citizen' within the meaning of s 5(1) of the Act.[115] Under s 199E of the Act, compliance with a removal direction is required if a third country approves the Australian Government's request for the non-citizen to enter and remain. The Applicant could be removed irrespective of a protection finding if one of the circumstances in s 197C(3)(c) of the Act applied, such as the Minister deciding under 197D(2) of the Act that a protection finding no longer be made, or the Applicant requests voluntary removal. It is not known how long the possibilities above could take, or whether the Australian Government would apply for the Applicant to receive a third country visa if he fell within the NZYQ cohort, or how that country would respond. Any decision to grant the Applicant a BVR, seek his removal to a third country, or remove a protection finding is an exercise of non-statutory executive power rather than a direct consequence of the Tribunal's decision. > > > > (ii) If the Applicant lodged a protection visa application that was refused, he would remain in prison until his sentence ends, then likely be taken into immigration detention pending removal. The disentitling effect of s 501E of the Act would be enlivened. In this event, other possibilities include him asking the Minister for another visa under s 195 of the Act, or an exercise of non-compellable discretion under s 195A,[116] or the Minister may make a residence determination under s 197AB, or the Applicant could elect voluntary removal.

6. The possibilities referred to above are not direct and immediate consequences of the Tribunal's decision and reflect intended legal options under the Act.[117] Irrespective of how future events unfold, the Tribunal accepts that a non-revocation decision would be a distressing outcome for the Applicant and his supporters.
7. Pursuant to the so-called '84 Day Rule' at s 500(6L) of the Act the Tribunal must decide this application within six working days. This is insufficient to properly assess the Applicant's comprehensive non-refoulement claims, current circumstances in Myanmar, and issues such as whether he has any support to rely upon there. His oral and documentary claims about the latter are somewhat inconsistent.
8. If the Applicant did apply for a protection visa, the process of consideration can encompass assessment of his claims by the Migration Jurisdictional Area ('JA') of this Tribunal. This JA specialises in considering whether protection obligations are owed under section 36 of the Act.[118] These assessments are not subject to the 84 Day Rule. There is no evidence, to support the Applicant's contention that lodging a protection visa application is a 'futile exercise' because the Respondent already considers he should not remain in Australia. Any such application must be considered on its merits and consider an applicant's protection claims before any character issues. The Tribunal is not required to decide the prospects of such an application.[119]
9. In terms of the other possibilities advanced, such as lengthy detention, removal to a third country, standards of treatment, or refoulement by a third country, the Tribunal adopts persuasive judicial guidance in cautioning against speculation regarding difficult decisions confronting future decisionmakers.[120]
10. It follows that this consideration carries neutral weight.

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

b) Whether there are substantial language or cultural barriers; and

c) Any social, medical and/or economic support available to them in that country.

1. The Applicant claims extensive impediments confront him if removed. This includes because he does not speak his native language as well as he used to, is unaware if his parents have family or other connections in Myanmar, and he could not be protected from harm and persecution by 'state and non-state agents'.
2. The Applicant does not have diagnosed medical or psychological conditions.[121] The Tribunal accepts, however, that after living in Australia since the age of 11, an extended period of imprisonment, without known sources of support, and in an environment characterised by outbreaks of generalised violence, he could be confronted by significant barriers. This is supported by DFAT country information. The Tribunal also notes from open-source information (https://www.smartraveller.gov.au) that Australian authorities strongly advise against travel to Myanmar.
3. The Applicant could stand out as someone with a criminal record returning from a foreign country. There is scant evidence about publicly available support in Myanmar and without currently known sources of family support, his vulnerability can only be accentuated. Notwithstanding the Applicant's youth and the education and work experience he has gained in Australia, there are few positive indicators of him being able to re-establish himself in a country he has not lived in since the age of 11.
4. This consideration weighs substantially in favour of revocation.

(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

2. It is submitted that the Applicant's failure to return to his barbershop attracts weight within the meaning of this consideration.[122] The Tribunal disagrees. Any business impact resulting from this possibility is opaque at best. There is no evidence about a shortage of barber services or the precise business effect his absence would cause. The barber shop continues to operate under the supervision of the Applicant's brother and there is no evidence non-revocation will significantly compromise the delivery of an important service in Australia. On current facts this consideration is irrelevant and weighs neutrally.

1. The Applicant does not pass the character test. In determining if there is 'another reason' for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason to depart from the guidance in the Direction to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government.
2. The two primary considerations relating to protection and expectations of the community weigh against revocation. The Applicant's crimes are very serious and fall into a category of conduct where even a low probability of recurrence raises significant concerns. He should expect to forfeit the privilege of staying in Australia.
3. Two other primary considerations and the only relevant 'other' consideration weigh in favour of revocation. The Applicant's community ties are very strong and he has developed a bond with several minor children, Removal to Myanmar would confront him with substantial impediments.
4. Having weighed the relevant considerations individually and cumulatively as required by the Direction, the Tribunal finds there is another reason for revocation. That is because the primary and other considerations weighing in favour of revocation outweigh the countervailing primary considerations.

1. It follows that the Tribunal sets aside the reviewable decision and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant's visa.

1. I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................

[6] Ibid 56-57 [67]-[68], 60 [88].

[7] Ibid 71-73; DPP v Hmung [2024] VCC.

[12] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 ('Plaintiff M1/2021'), [22]; [25]; [27]; [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).

[13] The Act, s 499(2A); Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33, [1]; Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (the Direction).

[14] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].

[15] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582, [23] (Mortimer J, as Her Honour then was).

[17] Negri v Secretary, Department of Social Services [2016] FCA 879, [72] (Bromberg J).

[18] Commonly referred to as the 'open justice principle'.

[19] Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186, [8], citing with approval Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 (Rares, Perry and Hespe JJ). [8].

[20] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-477 (McHugh JA).

[21] Re Tennant and Secretary, Department of Social Services (2014) 140 ALD 677 [18].

[22] Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130, [74]-[76] (Downes and Jagot JJ).

[23] Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36, [16]-[17] (Besanko J).

[24] Sections 501K (1)(a) and (2) of the Act require that the identity of applicants for protection visas, or their relatives or other dependents, is not to be published by the Tribunal.

[25] C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 [16] (Katzmann, Wigney and Abraham JJ).

[26] A SFIC is routinely lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides are aware of and have an opportunity to answer each other's case.

[62] Exhibit R1, 68 [118],189-190 [93]-[95].

[71] See for example: Sentencing Advisory Council (Vic), 'Imprisonment' (Web Page, updated 7 May 2024) .

[72] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, 105 (Lander J).

[73] CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).

[74] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 ('Guo**'**).

[75] Ibid 574-5. See also, Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 392 [154] (Nettle J, albeit in dissent); Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 [78] (Mortimer J, as her Honour then was).

[76] RJE v Secretary to Department of Justice [2008] VSCA 265; (2008) 21 VR 526 [16]-[17] (Maxwell P and Weinberg J]).

[88] The Direction, cl 8.1.2(2)(b)(ii).

[91] RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201; (2022) 295 FCR 365, [44].

[92] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [23] ('Ismail') (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203, 221 [61].

[96] FYBR v Minister for Home Affairs (2019) 272 FCR 454, 471-2 [66] (Charlesworth J), 476 [91] (Stewart J) ('FYBR').

[97] Ibid 473 [75]-[76] (Charlesworth J).

[98] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.

[99] Applicant's SFIC, 13-14 [67]-[72].

[100] FYBR [97], Ismail [52], Direction, cl 8.5(4).

[101] The Direction cl 9.1.2(2); Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513, 521 [27]-[28].

[102] _Plaintiff M1/_2021, [9], [20], [29]-[30].

[103] Plaintiff M1/2021, [24]; YKSB v Minister for Home Affairs [2020] FCAFC 224, [5]

[104] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, [84] (Kenny, Flick and Griffiths JJ).

[105] The Act, s 36(1C)(b); Plaintiff M1/2021 [18].

[107] DFAT Country Information Report Myanmar, 7 April 2025, 2.18, 2.56, 2.62, 3.8, 3.9, 3.14, 3.43, 3.79, 3.85, 4.1, 4.4, 4.6, 4.12, 5.19, 5.28,

[109] Citing cl 9.1.2(3) of the Direction and CZA19 v Commonwealth of Australia; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8; (2025) 422 ALR 133, [72] (Gordon J) ('CZA19').

[110] Citing BDFW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 109, [110].

[111] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143, [35] (Charlesworth J).

[113] NZYQ v Minister for Immigration and Citizenship and Multicultural Affairs (2023) 280 CLR 137 ('NZYQ'). The High Court held that constitutional limits apply on the executive detention of unlawful non-citizens under ss 189(1) and 196(1) of the Act. Continuing detention under those provisions is now unlawful if there is no real prospect of a non-citizen's removal becoming practicable in the reasonably foreseeable future.

[114] Migration Regulations 1994 (Cth) sub-reg 2.20(12)(b).

[115] The legislative architecture includes ss 76AAA(1), 198, 198AHB, 199B, 199C of the Act.

[116] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 191 [16].

[117] BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387, [88]-[90] (Button J); Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143, [35]-[36] (Charlesworth J).

[118] DXJL and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 18 [186] (Nikolic SM); BYMD and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 16 [186] (Nikolic SM).

[119] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199, [13]-[15] (Thawley, Stewart and Cheeseman JJ).

[120] See, for example, Ali v Minister for Immigration and Border Protection [2018] FCA 650, at [28], [31]-[33]; DOB18 v Minister for Home Affairs [2018] FCA 1523, [35] (Griffiths J); MNLR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 35, [150]; RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27, [37] (Nicholas, Yates and Burley JJ).